HRD Holds Public Hearing On Proposal To Change Rules To Allow Banding

Massachusetts Chief Human Resources Officer Paul Dietl today held a public hearing on his proposed changes to the Personnel Administrator Rules (PARs)(as previously reported, you can see the proposed changes here. While there was discussion of the other proposed changes, the majority of the hearing, and of the comments, was to the proposal to allow for the banding of scores on police and fire promotional examinations. (You may remember that HRD needs to change its rules before banding based on the injunction Sandulli Grace obtained last spring). The overwhelming message to HRD, delivered by unions, Fire and Police Chiefs, and interested individuals was “DON’T BAND!”

Prior to public comments on banding, HRD testing expert Jay Silva from testing company EB Jacobs gave a description of banding. According to Silva, using banding allows the test givers to eliminate variances in test scores that are not actually reflective of knowledge or ability. According the Silva and HRD, banding is intended to make the process “fairer” for test takers. He concluded that banding ultimately allows the municipality and/or chief to make a decision that allows for a “better fit” for the individual department.

Of course, here in Massachusetts we know that the officer who is a “better fit” will, no doubt, be the officer who is favored by management, or makes the political donation to the appropriate candidate, or…. A “better fit” will not be a better manager, nor does allowing a town to pick the “better fit” comport with the Civil Service mandate of merit based promotional decisionmaking.

Following HRD’s presentation, the public comment period commenced. 100% of the folks who took the time to go to the hearing voiced UNIFORM OPPOSITION to banding. State Senator (and former firefighter) Ken Donnelly spoke eloquently and movingly about how banding will eviscerate the preference for veterans that c. 31 requires. BPPA President Tom Nee spoke about how banding will allow favoritism to overcome objective criteria of merit. MCOP In House Counsel (and Waltham Sgt.) Tim King discussed how banding will undermine confidence in the testing procedure. PFFM President Bob McCarthy spoke passionately about how banding will undermine the authority of fire and police commanders – who make life and death decisions about those who work under them. And the comments continued, from representatives of the IBPO, the MPA, other Fire Departments, and individual officers and test takers – all unified in their opposition to banding. Perhaps most surprising, and heartening, a representative of the Fire Chief’s Association stood to oppose banding – noting that Fire Chiefs do not want discretion when it would undermine confidence in the system.

To their credit, the representatives from HRD, from Chief Dietl to General Counsel John Marra and Deputy General Counsel Michele Heffernan, were respectful and open to all the submissions. They indicated that they will take all of the comments into consideration prior to issuing the final propose rule changes. Those changes will then go to the Civil Service Commission for review, where we will again request to be heard. As always, we’ll keep you posted. (And if you don’t know, you can join our mailing list – just fill in your e-mail address in the box in the upper left corner of this page. By joining, you will get an e-mail every time a new blog entry is posted.)

24 thoughts on “HRD Holds Public Hearing On Proposal To Change Rules To Allow Banding”

  1. It’s too bad they haven’t looked at changing the testing process in general. All this test is about is who has the most time to read and memorize the books, basically, when it should be based on the laws that we use every day and powers of arrest.

  2. I posted the last time this reared its ugly head. Fellas, I do not share your optimism about being heard or your concerns being taken seriously. My humble opinion: at Civil Service, the firm, EB Jacobs, has to be attacked vociferously, both on process and intent. They claimed quite recently, until the New Haven case in fact, that their methods ARE intended to aid in affirmative action hiring practices by the design of thier testing procedures and protocols.
    Not only will merit be destroyed, but political pressure to promote minorities will naturally result once scores are banded. The scenario is natural and just what Patrick is aiming for: 6 candidates in a band, 5 are white and one is hispanic/black.
    More humble advise: if you are new to the profession (under 10 years) get out if you can. The meritocracy that has been offered in the field is about to be replaced with affirmative action 2.0 with the group thinkers (Mass Chiefs) marching lock step, driving these changes. Can’t wait to see the reactions of these chiefs when their political favorite meets one of the oppressed, who of course will be on page one of the Globe.

  3. The problem with this whole hearing and review before Civil Service is that it was already approved. HRD had no intention of having this hearing- they were forced to go through the procedure for a rule change. Civil Service already stated that they agree that releasing scores in bands of 1 through 7 is considered to be “whole number” scoring. After we lose this at HRD and then Civil Service, we will be forced to take it to court. In the meantime, although we have an anti-police governor, we should look into changing the lineup at Civil Service. Also, when Deal goes, so should his appointee- Dietl. To quote the amn himself- I’m just trying to make this fair.

  4. shelia, if you are saying that the ” content ” of the test should more accurately reflect real life practice… but if you are implying that changing in any way the 100% objective nature of the testing to something that factors in subjective criteria like oral interviews and other ways for these cities and towns and chiefs to NOT promote based on merit ( and that’s what it is despite what they will say ) they you are way way off. as Alan pointed out earlier, this is Massachusetts… the straight 80/20 exam is the last mechanism available for a non politically connected person to have a chance to EARN promotion…do not be fooled by anyone who says otherwise….you are insulting many people when you toss around the ” most time to read and memorize comment” you have no right to say that and should be ashamed of yourself… you choose not to make the time.. i choose to for the betterement of myself and my family… your position is nothing but a cop out and an excuse because you want something for less ….95% of us can do the job of sgt and lt .. be honest.. the question is how to pick them…. the certainly not perfect , but clearly most fair way , is to level the playing field for EVERYONE .. and that is exactly what an 80 / 20 test does.. regardless of what you think of the material … you just won’t admit that you are not willing to put the time in …

  5. Your comments have inspired a few comments from me:

    1. Banding as a mechanism to increase diversity is a canard. If a band has 40 people in it, an employer cannot just select a minority or a female because of race or gender any more than it could select white males because of their race or gender. In either case, it’s illegal. At yesterday’s hearing, the Vice President of the Boston Police Superior Officers Union said that among a recent group of 6 sergeants with tie scores on the lieutenants’ list, 4 black and 2 white, the Police Commissioner promoted the 2 whites. This is not about diversity; its’ about appointing authorities getting to promote whomever they want.

    2. While many do not like tests other than “pen and paper” multiple choice ones, for decades HRD has authorized communities that want to spend the money the option of including other tests, such as assessment centers, as part of the exams. Generally, the higher the rank, the more likely employers have been to opt for assessment centers. This could be, in part, due to the smaller numbers of candidates seeking higher ranks. Whether you like these other forms of testing or not, under current law HRD has authority to approve them and has routinely approved them for years. These must be distinguished from the phony “assessment centers” where the Chief invites in a couple of buddies from the Mass. Chiefs’ picnic to engage in an “interview” process and, lo and behold, validate the Chief’s deep-seated concerns that the union president who scored highest on the test lacks the leadership skills of the DARE officer who has wholeheartedly embraced the community policing philosophy in his 8-3, Monday through Friday, exhortations to the local youth.

    Alan Shapiro

  6. Mr. Shapiro,
    All I can say “well said”. Under our former administration the phony “Chiefs interview” was a way of doing business in our North Shore community. Under our new chief thankfully that interview system has gone out the door.

  7. Gentlemen now that the rule change ball is rolling what is your educated opinion that HRD or the appointing authorities will shoot for another test asap instead of past practice, ie 2002 -2005, 2005 – 2008.

  8. No idea, jOHN. At this point, they haven’t stated that they WON’T attempt to band future certifications based on the results of the 2008 test, and nothing in the proposed rules would stop them from doing so.

    I do think that Alan’s right – the way to make the test “better” is to add additional “tests” to the multiple choice paper test. The problem, however, is that costs money, and nobody’s got any. Given the threatened cuts to the Quinn Bill, I’d rather see any “extra” money going back into Quinn funding.

  9. Posted May 21, 2009 on this site under “HRD GIVES UP ON BANDING FOR NOW” states: …Posted on HRD (site).. HRD will not band scores for the Oct. 2008 promo exams..” Has something changed. Its just all so much to take in.

  10. As of right now, our injunction prevents them from banding scores for the Oct. 2008 promo exams. And they well might let those lists die before starting to band. All I’m saying is that the proposed rules (link in article) would not prohibit HRD from banding future lists. They did not answer when the question was put to them at the hearing.

  11. But Alan, look at the 02 Boston test ( scam is the more accurate way to describe it ) administered by morris and mcdaniel … the ” assessment center ” portion was proven in court to be 100% corrupt…they have REPEATEDLY shown that they cannot run a fair test that has any subjective portions because of excatly what you said…. they want to promote who they want to promote and will do anything and everything , ethical or unethical , to get what they want… the straight 80 20 is the only way , if you are not on their A list or A team, to by sheer will and hard work , to get promoted… the irony is that the books they give us to read and study talk about the ” spoils system ” that corrupted so many police organizations… is the height of hypocrisy….

  12. Alan, I respect your opinion-I hope you are right and I am wrong. I look at the convergence of what the governor’s agenda had been previously and what it is currently (diversity at all costs) along with EB Jacobs’ claims relative to affirmative action.
    One thing to keep in mind was the HRD original statement relative to banding in which they claimed that changes were based on an exhaustive job performance review. (This was never done). They dipped into this well again at the hearing. Jacobs has been successfully sued for not following their own protocols in examining job titles, responsibilities and past test performance. This is the weakest link in the process and should be challenged. Again, HRD will go forward with what Patrick wishes-these are appointees after all. The best case for merit and testing remains an attack on this particular firm and how they arrive at their conclusion that point differences do not matter based on past performance.

  13. Look, folks, the appointing authorities simply want to dilute civil service and the promotional process to the point that it will be a shell of an organization. It will resemble the Appeals Board that the Boston Police “utilizes” for personnel complaints after an IAD investigation. This has been a goal right along, in addition to diminishing a civil service employee’s ability to seek a remedy when unfair discipline is imposed. We in the civil service community need to persist in our vigilance; look at the fight the Conn. firefighters had to put up in order to attain advancement. If an exam is not reflective of the higher position, then develop a written test that is so reflective. However, keep the test because it is the difficult part of the process; it seperates those who give up time, family and money in order to pursue promotion. It is a righteous cause, worthy of the fight.

  14. I am not a lawyer but HRD’s rule changes do not trump civil service law. The law seems to challenge a lot of these “rule changes”. Why aren’t the unions working to protect our interests with law changes. How about ch31 sec blah blah states “tests will not be banded. Some language already supports an argument that the list will be presented a certain way. We need to be proactive in this fight.

  15. In response to some of the comments above:

    1. Assessment centers are not, in and of themselves, inherently “corrupt” or incompatible with a meritocratic system. It all depends on how they are administered. I understand that many feel that only a multiple choice exam with one right answer for each question is truly objective, but other forms of testing have for decades been approved by HRD, courts, and many other jurisdictions.

    2. I have no knowledge of any overt perfidies committed by E.B. Jacobs, although there are cases where tests they designed have been challenged for age and race bias. See e.g. Howe v. City of Akron (Fed. District Court, decided 10/2/09).

    3. The idea of challenging banding as in conflict with the civil service statute is one that will obviously be pursued if it is implemented. This is also something that was suggested by the Civil Service Commission in a decision by Commissioner Stein in a recent decision in Rodriguez v. Boston Police Dept., (

  16. No union has asked me to support assessment centers. I am merely explaining that assessment centers, like them or not, are a longstanding and integral part of the testing process in Massachusetts and in much of the country. I fully realize that many seeking to be promoted are skeptical of all but multiple choice tests. Nevertheless there is no viable legal basis to challenge the use of assessment centers in principle. Where they are procedurally flawed, they can be challenged in those instances.

    In putting out information on this blog, I attempt to give the most accurate presentation of what the law is, not how some would like it to be.

  17. i don’t think anyone should be questioning Al Shapiro’s motives or integrity when it comes to this …..Al is a stand up guy….the tossing of the 08 banding was not going to happen without Al , Bryan et al….these guys are on our side and because of them i will probably ( although my employer will do so kicking and screaming ) get promoted of the 08 exam….I have no use whatsoever for any sort of assessment center component of a police promotional exam…I know for a fact that the organizaton that i work for uses them to corrupt the promotional process…. they were caught doing so and really are nothing but evil , hypocritical vermin……i truely believe there is nothing that is asked in an assessement center setting that cannot be asked on an objective , uncorruptable blind exam format……but that is the whole point… doing so would remove the ability of the organization to manipulate the results…..but i understand when Al states that in and of themselves they are not , or better phrased , do not, have to be corrupt….But the sad reality is when you are dealing with an unethical and spineless organization like the Boston Police Department , the assessement center portion does get corrupted….EVERY SINGLE TIME….they can’t help themselves.. they can’t help sticking their fingers into the results to get what they want….

  18. Ralph I would never question the motives or integrity of any person that I don’t know and I certainly woudn’t
    question that of the very lawyers who are fighting with us. It was an honest question thats all. I am sorry if any offense was taken by any party. None was intended. Good luck on the promotion.

  19. Is Civil Service required to hold a promotional list for at least 2 years from the date of certification? The 08 promotional exam was not certified until May 15,2009 does that mean they are required by law to keep it until at least May 15, 2011? Thanks

  20. Under Chapter 31, Section 25, “Persons on an eligible list shall be eligible for certification from such list for such period as the administrator shall determine, but in any event not to exceed two years,” subject to certain events which can extend a list beyond two years.

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