Police Union Clients Of Sandulli Grace, Pc Challenge Hrd’s Surprise Sudden Switch To “Banding” Civil Service Promotional Lists

On Friday, February 13, 2009, the Massachusetts Human Resources Division (HRD) suddenly informed police officers around the state that HRD will start “banding” scores from civil service promotional exams when placed on eligibility lists.  Because this radical shift in the promotional process will make it much easier for cities, towns and chiefs to use favoritism as a basis for promotions, Sandulli Grace, PC, today filed papers to restore basic merit principles.  Attorneys Alan Shapiro and Bryan Decker today challenged the proposed banding by filing an appeal and request for speedy hearing with the Civil Service Commission on behalf of Sandulli Grace clients Boston Police Patrolmen’s Association, the Massachusetts Coalition of Police, and Boston Patrol Officer (and BPPA Treasurer) Tom Pratt.  You can read the appeal in its entirety by clicking here.

HRD rules require the state agency to list police officers on promotion lists in order of the “whole number” score they received on the exam.  Thus, an officer who scored an “88” is listed ahead of an officer with an “87.”  If the chief wants to promote the lower-ranked officer, he must justify this bypass of the higher-ranked officer in writing to HRD, and the higher-ranked officer can file a bypass appeal with the Civil Service Commission.  The Chief then has to prove that there is reasonable justification for the bypass and that the bypass was and not arbitrary or capricious.  This vetting and appeal process ensures that the chief must be prepared to justify a decision to promote a lower–ranking candidate to an independent third party.  

A bypass does not occur, however, when the Chief selects one of two or more officers with the same score.  In other words, if three officers scored “87” on the exam and the Chief selects one of them, then the other two officers have not been bypassed under the law and the other two officers have no automatic right to file a case with the Commission.  Except for large communities, ties are infrequent under this established promotional process.

HRD’s new policy on “banding” promotional lists dramatically changes the promotional process in a way that explicitly leads to more unfettered decision-making by the Chief.  The new banding results in large numbers of officers being “tied,” even when they score as much as seven points apart on the exam.  For example, the bands HRD currently proposed for the Sergeant are as follows:

 

2008 Statewide Police Sergeant Exam

Legend for Score Bands

(Includes General Average Plus Preference)

6=92.92-100

5=85.84-92.91

4=78.76-85.83

3=71.68-78.75

2=66.00-71.67

1 = Failed Written and failed overall exam

 

Officers are automatically “tied” with everyone else in their band.  Under banding, the chief can promote any officer within the band without having to justify the decision to anyone.  You got a 99 and the Chief’s coffee buddy got a 93?  Guess what, you’re tied.  And the Chief doesn’t have to justify his decision to promote his buddy to anyone.

We believe that it is obvious that banding increases the illegal influence of favoritism and bias in promotional decision making.  Unfortunately, HRD prevented police unions and our firm from stopping this dramatic change because HRD refused to hold a hearing demanded by G.L. c. 31 prior to adopting this new regulatory policy.  HRD’s neglect of its statutory duty forms the basis of the appeal filed today – the failure to follow c. 31 and its own rules prior to implementing such a drastic change.

Because it is likely that eligibility lists with banded scores will appear in civil service communities throughout Massachusetts in a matter of weeks, we have asked that the Civil Service Commission conduct a speedy hearing, so that the Commission can determine the validity of this new process before any promotions based on banding are announced.  As always, we’ll keep you posted.