Judge Orders HRD To Not Issue Banded Eligibility Lists Pending Consideration Of Motion For Preliminary Injunction

Massachusetts Superior Court Judge Bruce Henry today ordered the Human Resources Division to NOT issue any eligibility lists for police promotion until after he rules on the request for a preliminary injunction submitted by Sandulli Grace attorneys on behalf of the Boston Police Patrolmen’s Association, the Massachusetts Coalition of Police, and individual test takers.  As we noted last week, we have challenged the Civil Service Commission’s rubberstamping of HRD’s decision to band.  Judge Henry today heard argument on our request for an injunction, and indicated that he will issue a decision on the injunction request soon. 

 At the hearing, HRD, represented by counsel from the Attorney General’s office, continued to insist that banding is lawful in the face of HRD’s rule that says scores have to be put out in “whole numbers.”  “Bands 1 to 7 are whole numbers, just like 1 to 100,” was essentially what HRD contended.  Attorney Shapiro responded that, under that logic, the bands could be 1 to 2 (pass/fail), 1 to 1,000 (scores broken to tenths of a point), or 1 to 10,000 (scores broken to hundredths of a point).  In other words, the Commonwealth contends that its rule has no substantive meaning.

After the Judge ordered that no lists be established utilizing banding, counsel for HRD complained that some unnamed municipalities could lose funding for promotions if they are not made quickly.  Sandulli Grace’s Alan Shapiro quickly pointed out that HRD is free to issue lists based on the 10/08 tests – as long as it follows its own rule and lists the scores by whole numbers from 1 – 100. 

As always, we’ll keep you posted.


34 thoughts on “Judge Orders HRD To Not Issue Banded Eligibility Lists Pending Consideration Of Motion For Preliminary Injunction”

  1. Good job S&G mayne the Chiefs Asociation will takea lesson away from this. No one mentioned that is was not the HRD that proposed this change at their own doing. It was the Chief of Police Association that pushed for it. The old system of 2n+1 worked fine.

  2. Does the above mean that the “old” list is no longer eligible/valid? It sounds like that no list new or old can be used?
    Also how long do you think it will be before sometype of ruling?

    Thank you!

  3. According to HRD counsel, the old lists are dead. By statute, new lists are due by 4/21. Still figuring out how this all washes out, but we should have a decision soon.
    Thanks to all for your support and interest.

  4. If there is no new list Civil Serice law states under Chapter 31: Section 25 that :
    (2) the administrator is temporarily enjoined by a court order from certifying names from an eligible list, in which case eligibility of persons on such list shall be extended for a period equal to the duration of such order; or (3) no new list is established, in which case eligibility of all persons on such list shall be extended until a new list is established
    So how can they say the old list is dead when these are their laws?

  5. I was just reporting what HRD counsel claimed at the hearing. The problem is getting a certification list out of HRD even assuming the “old” list is still in existence. There are cases holding HRD has the right to decide when to fill a request for a list. Thus, my guess is that if a town asked for a list today, they’d be told to hold by HRD. I’m not sure if this has happened. As noted, we should have a decision soon.

  6. Any word on a decision? Are we looking at days, weeks or months here? Soon is a broad term! Should we read anything into the length of time it takes for the judge to make a dcision? Its crazy HRD is putting us through this.

  7. If I was a betting man (which I’m not), I’d say a decision is likely next week. The judge indicated he wanted to take the time to understand the case before issuing a decision. I can’t see how that can hurt our chances. Stay tuned…

  8. I want to add a comment about the “old list/new list” issue that a number of people are asking us about. Our union clients are not seeking to interfere with the normal process by which a new list supercedes an old one. This is set out in 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, unless one of the following exceptions applies: (1) such eligibility is extended by law because such persons are in the military or naval service; (2) the administrator is temporarily enjoined by a court order from certifying names from an eligible list, in which case eligibility of persons on such list shall be extended for a period equal to the duration of such order; or (3) no new list is established, in which case eligibility of all persons on such list shall be extended until a new list is established for the same position for which the original list was established; provided, however, that the administrator may revoke the eligibility of the entire list or of any persons on such list subsequent to said two-year period if he shall determine that the effective maintenance of the merit system so requires such revocation and, provided further, that a written notice and explanation for said revocation is sent to the clerks of the senate and house of representatives.”

    We have not asked the court to enjoin HRD from certifying names off the new list. We have asked only that HRD be enjoined from certifying names in bands. This is what Judge Henry told HRD: don’t certify names in bands. If they want to certify off the new lists in the traditional 1-100 format, they are free to go ahead and do that.

    Our client unions have no interest in the identity of who is appointed or off which lists, they are only trying to ensure that when lists go out, they go out in accordance with HRD’s “whole number” rule, which means scored in points, not in bands. We are trying to force HRD to maintain some integrity in the process, something that the majority of Civil Service commissioners seem to have little interest in at this time.

  9. Bottom line… If a department who had a Sgt. Lt. Capt’s exam in 10/08 went to civil service today 4-2-09 and asked for a Sgt’s list what if anything would they walk out with? Thanks for all your help.

  10. Thanks for the kind words JimG.

    EnojughAlready, to be honest, I’ve no idea what HRD would say to a dept. that asks for a list today. My semi-educated guess would be “wait a few days,” but I’ve no idea.

    Waiting for news, I can promise you that we’ll report a decision as soon as we get one.

    Thanks to all.

  11. A metro Boston PD asked for a list on 4/1. HRD will send nothing until a new list comes out. They will not send the old list. Any promotions made prior to the new list (10/08) will be considered “provisional” and will be vacated once the new list is certified by HRD. (old scoring or banding)

  12. This seems basically consistent with my understanding, although I’m not sure they can technically make a provisional apppointment while there is an outstanding list. At any rate, the judge should rule soon, thereby ending the guessing. We will put the decision on the blog as soon as we get it.

  13. Would you a have case for a bypass appeal if they refuse to provide a list from the still active and current list for promotion, per ma gen law 35/21, if the new exam isn’t certified yet, and wait to make promotion off a the new list?

  14. Does anyone know when the “whole numbers” language was added to the law? If so, perhaps an attorney could find out what prompted the language change so as to confirm the true spirit of “whole numbers”. Obviously, to most, using 1 through 7 doesn’t satisfy what was intended. Also, if the law states whole number lists, then why was the 2002 list created with scores going to two decimal places? Another example of HRD of applying the rules when it suits their “interests”?

  15. Two questions

    First, the whole number rule is something that can be changed by HRD with proper notice and procedures which they failed to do, correct? If yes, for future exams they could bring banding into play, if they follow procedures or change civil service laws, correct?

    Second, here’s a question regarding the past 10/08 HRD exam for police promotions (Sgt). In your honest opinion, could HRD contend that their bands (1,2,3,4,5,6) followed the rules IF – IF the bands represented whole numbers and rounded all scores up or down for whole numbers……?????

    For example, Band 2 = 66.00 to 72.00 (NOT 66.00 to 71.67) and Band 3 = 73.00 to 79.00 (NOT 71.68 to 78.76) Band 4 = 80.00 to 86.00 etc. etc.???? With that said if your score was 71.66 HRD placed you in Band 2, BUT if HRD rounded your score up (or down) like past exams your 71.66 would = 72.00 CHANGING your band from 2 to Band 3 (big difference) – this seems more legit than what they tried to pull.

    Could this scenario have worked for HRD???

    Lets say HRD makes all the proper changes and notifications to all parties involved, I think HRD could get away with bands. In my opinion if a change is made, HRD would be wise to go with Whole Number Bands (that are smaller, 3pt range max) and placing you into those bands by your Whole Number Score.

  16. HRD is releasing the November Fire Exam scores today and they too are banded. Looks like they are determined to ruin the merit based promotional system. I expect to have more details tomorrow. Would it benefit us to start a whole new appeal through the civil service commission or is this pending decision pertaining to the fire exams as well?

  17. Technically, the case we filed applies only to police, since it was the police who were originally affected. The whole number rule, however, applies to all tests. If the court enjoins banding of police scores, I don’t see how HRD could band any scores. However, one must never underestimate the chutzpah of HRD.

  18. In response to ? Says:

    You only have a bypass appeal if someone with a lower score (band or whole number, depending on the scoring system) is appointed over you with a higher score.

    In response to Bluejay says:

    We have asked HRD for the history of the whole number rule, but they have not provided it. When I argued to the Superior Court that the rule was presumably enacted after HRD started rounding off to the nearest whole number in 1974, HRD objected that there was no basis for my conclusion but did not present any facts disputing it.

    In response to FutureBanding:

    If HRD engages in rule-making, which we believe is what they have to do to band scores, they might well be able to present arguments that would permit them to do it. There would be a question whether banding violates Chapter 31, Section 27, which legislatively creates the “2n +1” rule. In addition, it may be that testing experts testifying in a rule-making proceeding could suggest other methods of more accurately testing, such as creating a better test.

  19. When is a decision due from Superior Court?? This entire process will effect Fire, following suit with the Police. Everyone is watching, it’s been a week??????

  20. I sent an email to Civil Service on the issue of the “old/new list and Cathy Noyes Director of Civil Service and this was her response:

    Good Morning

    Eligibility lists are good for at least 2 years. Due to legal issues we cannot produce a new list. Anyone municipality calling for now for a list is being told we are unable to produce a list until the legal issues are resolved. We hope this is resolved in the new few days and then we will provide new lists.

    Cathie Noyes

  21. Thanks for the info Frank7899. Again, just so everyone knows, HRD historically has a great deal of latitude with regards to releasing eligibility lists around the time that old lists expire and new ones are issued. For example, if a municipality requests a list in the weeks prior to the issuance of new lists (even without any legal challenges), HRD will sometimes refuse to issue a list until the new lists are compiled. There have been court decisions upholding HRD’s right to “sit on” a list request.
    So, while the current delay is frustrating, it isn’t actually anything new, and we believe that upholding basic merit principles is worth the delay.
    One thing I can promise is that we will issue a blog as soon as the court rules on our challenge. If you are signed up to receive notifications (just enter your e-mail address in the “Join our Mailing List” box in the left hand column of the blog homepage), you will get an immediate e-mail.

  22. Bryan, is there a law/rule with civil service that does not allow them to make any changes to a test without notice or hearing?

  23. There’s the laws which law out the process to follow to change or add rules, found at c. 31, s. 3 and 4. Section 22 of Chapter 31 says, “The administrator shall determine the passing requirements of examinations.” So, our contention is that they can’t change the scoring methodology in a way that violates an existing rule (the “whole number” rule), without notice and hearing.
    No word yet from the Court. We promise that you’ll know as soon as we do. Again, to get instant notification of new blog entries, just enter your e-mail address in the “Join our Mailing List” box in the left hand column of the page.

  24. If HRD is holding up creating lists due to this and a temporary position opens up and my town promotes a senior man because they couldn’t get a list from HRD, can those that would have gotten the temporary job seek relief from HRD?

  25. Firefighter, Not sure that I understand the question. Under c. 31, s. 15, HRD can authorize a Provisional Promotion when there is no list. Once the list is established, the provisional promotion goes “poof,” and appointment need to be made off the list. I don’t know who would be “those that would have gotten the temporary job” in your question. No one “tops” the list until there is a list.

  26. Any thoughts on when to expect a decision? I know you figured it might be this week. Do you guys get any updates on when to expect it? Thanks again for all your work with this issue.

  27. Hi Jim G,
    We’re waiting on it just like everyone else. Wish we had some “inside information,” but we don’t.
    We will let you know as soon as we know. Make sure you are signed up to receive updates.

  28. You work on this topic is greatly appreciatied.- Just for clarification- You are trying to have HRD release the scores for this exam in whole number from 1-100 on eligibility lists. The reason for this is that HRD did not have a public hearing on this matter, therefore they cannot change the rules without proper notification before the exam? I guess from what I have been reading on this blog is that HRD can implement Banding on the next exam, with proper notifacation? So you are saying that this may be the last time we can fight for whole grades??
    Now if they hold a public hearing can we as Police and Fiefighters attend, or be represented by you or any other agency to help fight the Banding process? Is this a losing battle possibly? Is it possible to have a compromise,( Example -the banding go in order of score and not alphabetical order, or still have our grades sent in the mail. I have a hard time comprehending that a few individuals at HRD can make a decision that could greatly impact my life and career. This in my opinion is criminal. I guess Merit means nothing in society, and this is very dissapointing.

  29. Jim:

    Your comments are basically accurate, in that:

    1. We are trying to get HRD to release scores in the traditional 1-100 whole number system.
    2. The reason we are advancing is that HRD has a rule calling for whole numbers and they have to follow their own rules.
    3. To change the rule they need to hold a public hearing. Anyone could attend and be heard at such a hearing.
    4. The case we have filed does not really address the issue of whether HRD could change the rule to allow for banding and then go ahead and band scores. That would be for another day, assuming we succeed in stopping them from banding now.

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