Superior Court Grants BPPA and MCOP Request for Injunction – Orders HRD to NOT Band Scores on Police Promotional Eligibility Lists
In a thoughtful, well-reasoned 11-page decision issued this morning, Massachusetts Superior Court Judge Bruce Henry ordered the Commonwealth’s Human Resources Division to NOT “band” scores on police promotional eligibility lists. Here’s the full decision. Judge Henry agreed with the arguments advanced by Sandulli Grace Attorneys Alan Shapiro and Bryan Decker that HRD must follow the statutory rule-making process before “banding” scores rather than issue them by “whole numbers.” The decision does not inhibit HRD’s ability to issue promotional lists as Judge Henry expressly notes HRD can keep issuing lists under the traditional “whole number” format. This decision represents a significant victory for the merit-based principles that serve as the foundation of the Civil Service system and a victory for the faith that the Boston Police Patrolmen’s Association, Inc. and Massachusetts Coalition of Police placed in this system.
As you may recall, HRD for decades listed promotional candidates in the order of the exam scores of police officers. HRDs rules require the agency to rank scores in order of “whole numbers.” In other words, HRD ranked both 88.4 and 88.1 as an 88. In February, HRD reversed this longstanding practice by announcing it would group scores among ranges, or “bands” of up to seven points as equivalent. Sandulli Grace, PC, on behalf of BPPA, MCOP, and several individual police officers, filed suit.
Injunctions are rarely granted in Massachusetts. Courts only can grant them if the plaintiffs have standing to challenge the practice, the plaintiffs seeking the injunction have a likelihood of success, and if an injunction will serve the public interest. On all points, the Judge sided with our clients. After summarizing the facts of the case, Judge Henry concluded that plaintiffs have “standing” to challenge HRD’s actions and thereby rejected one of the Civil Service Commission’s major arguments. In his finding on standing, the Judge favorably cited the plaintiffs’ contention that banding will allow increased favoritism into promotional decisions:
The plaintiffs also contend that the banded scores will expand the candidate pool, thus increasing the potential that promotions will be based on favoritism and bias, rather than merit… In addition, by creating a promotional system that provides fewer safeguards against favoritism and bias, the Division has potentially violated its duty to the plaintiffs. Accordingly, I am persuaded that the plaintiffs have standing to maintain an action under G. L. c. 231A to challenge the banded promotional eligibility lists.
Turning to “likelihood of success,” The Judge again sided with the BPPA and MCOP in concluding that plaintiffs have a “strong likelihood of success” on our claim that HRD violated its statutory obligation to conduct rulemaking prior to banding scores:
The practice of banding scores represents a significant departure from the way scores have been reported in the past. While the proposed banding will be reported as whole number bands, the scoring is very different than what appears to have been intended by the requirement that scores be reported in whole numbers. The scoring bands are a significant change in the manner of scoring and establishing the eligibility lists and that change should have been put in place using the procedure established by the Legislature for making a significant change in the rules. G.L. c. 31, §4. (emphasis added).
Turning to the issue of “harm,” the Judge found that an injunction will promote the public interest by upholding the integrity of the Civil Service system:
[A] determination of the issues raised by the plaintiffs will promote the public’s interest in guarding against political considerations, favoritism, and bias in governmental hiring and promotion … and ensuring that the system operates on ‘basic merit principles, as defined in G.L. c. 31, § 1, absent properly documented and supported bases for departing from such principles in particular cases. (citation omitted, emphasis added).
With regards to the harm claimed by HRD – that an injunction will delay promotions – the Judge agreed with what we’ve been saying all along – that any delay is caused by HRD. HRD can let municipalities make promotions TODAY by issuing lists with whole number scores:
While the defendants assert that any delay in the implementation of the new scoring method will impact communities which are attempting to fill vacancies on their police forces, I do not so find. There is nothing which prevents the HRD from issuing eligibility lists in the same fashion that it has done so for years.
Finally, the Judge issued his conclusion and order:
For these reasons, I find that a preliminary injunction should enter enjoining the defendants from issuing eligibility lists for the promotion of police officers in score bands rather than in the manner in which it has been doing so until a final resolution of this matter on its merits.
Until a final resolution of this matter on its merits, the defendants are preliminarily enjoined from issuing eligibility lists for promotions of police officers in score bands rather than in the manner in which such score have been reported up to the time of this proposed change.
SO WHERE DO WE GO FROM HERE?
Obviously, this decision affirms of the deeply-held faith that the BPPA and MCOP have long placed in the merit-based principles that form the cornerstone of the Civil Service system. This faith was tested and ridiculed by the arrogance of HRD and the Civil Service Commission’s refusal to hear the case.
It is not 100% clear where this case will go from here. As HRD has repeatedly stated, it is under a statutory obligation to issue lists within 6 months of the taking of the exam, i.e. by April 20. We hope that HRD will abide by Judge Henry’s thorough decision and the law and issue those lists in a timely fashion with scores listed and ranked in WHOLE NUMBERS.
As always, we will keep you posted…
23 thoughts on “Superior Court Grants BPPA and MCOP Request for Injunction – Orders HRD to NOT Band Scores on Police Promotional Eligibility Lists”
Great work to all involved. I’m a firefighter and I heard we filed an injuction also. If the lists are not out in 6 months from the date of the exam what happens ? Do they throw them out and extend the current lists one year?
Thank you for your work with this issue. Do you think this ruling will apply to the fire promotional exams as well?
What happens now? Can civil service release a list with banding even though the judge said no way?
Thanks to those who have acknowledged the efforts we have made, with the support of our clients, MCOP and BPPA, to try to preserve the civil service promotional system.
With respect to the various questions submitted, we need to wait and see how the AG responds to this and what HRD does. The theory on which we challenged the banding applies to firefighters as well as police. For HRD to issue banded lists in the face of the Court’s issuance of the injunction would place it in jeopardy of contempt and there is no indication they would do so.
We will keep you posted of further developments as they occur. Thank you again for your support.
Firstly, great job by all involved !!! Secondly, what are HRD’s options at this point? What are some hypothetical actions or roads they could choose to go down, and the likelihood of such……..Thanks Again !!!
So, should we expect that a promotion list will be issued by 4/20/09?
Excellent work – you guys rock !!!
I can’t really comment at this point on what specifically will happen. There are a number of avenues open to HRD but I do not want to speculate until we see where this is heading. Right now, all we can say definitively is that HRD cannot issue any banded lists for police promotions. It is of course our hope that they will start issuing lists with the traditional whole number scoring system and go through the proper rule-making process if they want to change the rules.
As always, we will keep you informed.
There is a rumor going around that if Boston called for a list in the near future civil service would use the old one until this list gets certified. Please tell me this is not the case? Thank you again for everything you have done.
There is a rumor going around that if Boston called for a list civil service would use the old one for the time being until the new one gets certified?
I was told by HRD today that the older list will not be sent out. 🙁
They are working on a way to issue the recent test other than the banded method. We’ll see……..
There are lots of rumors out there, but we have no confirmation from HRD regarding how they are responding to the Superior Court injunction. As soon as we have definitive information, not rumor, we will put it out there.
I must reiterate that the court decision ONLY tells HRD not to band the scores. There is nothing preventing the agency from placing the scores on lists in the traditional 1-100 “whole number” scoring format.
I know many of you are concerned about this issue, so we want to be sure that whatever information we give out is accurate.
HRD did not realese the scores until 133 days after the exam. This is 73 days longer than Ch 31 S 25 requires. Don’t expect HRD to adhere to the law with respect to deadlines in establishing lists either. The law states they must establish a list within 6 months, but it’s the same Ch 31 S 25 that they didn’t adhere to when sending out scores.
Alan, regarding what Phil was told from HRD about the old list no longer being sent out, can a Dept. ask for an extention on the 2006 list while civil service is fixing the 2008 list?
can they redo the passing score?
Many of you are submitting questions and comments while we wait and see what HRD is going to do. I have made inquiries, but nobody is responding to them.
We continue to maintain that all HRD has to do is send out the certifications from the new lists in whole numbers, instead of bands. Nothing else has to change.
Wish I had more information to pass along, but no one is giving us anything definitive and we cannot just spread rumors.
Thanks again for all the support.
To: PFFM Executive Board and PFFM Locals
From: Bob McCarthy, President
Subj: Rescinding, HRD’s scoring Fire Promotional Exams
I have been informed by a reliable source that the Human Resources Division of the Commonwealth of Massachusetts will be notifying candidates this week, who participated in the most recent fire promotional exams (Fire Captain, Fire lieutenant) that; the scoring of those exams will be changed from”Banding” of the marks to “Whole Marks” in compliance with the most recent Superior Court Judge’s decision.
Will continue with updates as they occur.
The PFFM (Prof. Fire Fighters of Mass.) is notifying it’s members that scores will shortly be out in whole numbers. This is a positive development.
Can this ruling pertain to entrance exams too? Will there be a lawsuit from those that took the police and fire entrance exams?
In response to Joe’s question, technically, the injunction applies only to police promotional exams. The same legal theory, however, would apply to banding of any scores by HRD under its current rules. We do not represent people trying to become police officers or fire fighters generally (although occasionally we take on individual clients in that situation), so I cannot say what will happen in that regard.
Also, to repeat what I just sent out on Twitter, I received a message from the Assistant Attorney General in our case saying that HRD is very close to making a decision on what course of action it will follow and that it will be announced on its web site. Also, the message said, individuals on the lists will receive a mailing on this.
The civil service website changed the banded grades to whole number grades. But there is no certified list online as of yet. Definately a good sign and a step in the right directions…
Human resources has changed the banded scores to the whole number scores on their web site. Good job to all involved in the process!
HRD posted whole number scores, check it out.