Tag Archives: civil service

Massachusetts Civil Service Residency Amended

The Governor has just signed the budget which includes an amendment to MGL c. 31 sec 58.

C. 31 sec 58 is a section of the Civil Service Law and addresses “Municipal police officers and firefighters; qualifications.”  It includes a residency requirement for civil service police officers and firefighters, stating that within 9 months of appointment a person must reside within the city or town where he/she is employed or at any other place in the Commonwealth that is within 10 miles of the perimeter of such city or town. The Amendment to sec 58, included in the budget, provides that a city or town may increase the 10 mile residency limit under a collective bargaining agreement negotiated under chapter 150E. Therefore, police and firefighter unions in civil service cities and towns may now negotiate to expand the civil service 10 mile residency requirement of sec 58 beyond the 10 miles.

What remains unclear is the relationship of this amendment and the residency requirement of MGL c. 41 sec 99A which requires police officers and firefighters to reside “within fifteen miles of the limits of said city or town.”  For any city or town where the police and fire departments are not covered by the civil service statute, this new amendment will have no impact and those police officers and firefighters continue to be covered by c. 41 sec 99A and must reside within 15 miles of the City or Town where he/she is employed. As for civil service communities, at a minimum, the amendment to c. 31 sec 58 certainly provides for collective bargaining in order to increase the 10 mile limit of sec 58 to the 15 mile limit of sec. 99A.

Based upon the case Mulrain v. Board of Selectmen of Leicester, 13 Mass App Ct. 48 (1982) it is reasonable to take the position that the 15 mile limit of c. 41 sec 99A already superseded the 10 miles requirement of c. 31 sec 58 since the Mulrain  case addressed the conflict between the 2 statutes and stated that:

“We hold that the more specific provisions of the new sec 99A control the more general provisions of new c. 31 sec 58, concerning the effect of town by-laws.”

However, the Mulrain decision did not specifically address the conflict between the 10 mile and 15 mile limits.

When the Civil Service Commission recently decided the case of Erikson v. Rockland Fire Department, I-12-100, (January 24, 2013), it found that c. 31 sec 58 continued to require civil service firefighters to reside within 10 miles of the city or town where he/she was employed. That case did not address the conflict with c. 41 sec 99A and was a Civil Service Commission decision, not a judicial determination. Furthermore, when the Appeals Court in City of Lynn vs. Lynn Police Association, 12-P-1122 (March 27, 2013), addressed the applicability of c. 41 sec 99A to the City of Lynn police officers, it affirmed that the 15 mile limit of c. 41 sec 99A applied and that under the provisions of c. 41 sec 99A the only way that a city or town can impose a more stringent residency requirement is through collective bargaining. Therefore the Appeals Court made it clear that the 15 mile limit of c. 41 sec 99A governed even though Lynn is a civil service community.  The Court made no reference to c. 31 sec 58.

Therefore, as a result of this amendment to c. 31 sec 58, public safety unions can now bargain over the appropriate distance for a residency obligation.  At a minimum the bargaining can move the 10 mile requirement to 15 miles so as to reconcile c. 41 sec 99A with c.31 sec 58.  However, since this amendment is the Legislature’s most recent action concerning residency for civil service police and firefighters, under the principles of the Mulrain case, it certainly can be argued that municipal employers and public safety unions can bargain for a distance in excess of the 15 mile limit since the new amendment does not put any cap on the appropriate distance for a residency requirement and merely says that the distance may be increased under a collective bargaining agreement negotiated under chapter 150E.

In addition, there continue to be bills being considered by the Legislature to further address residency requirements for police and firefighters.  Some would increase the mile limitation and others would limit the residency requirement to a period of years and still others would preclude requiring residency within a city or town. We will continue to monitor the progress of these other bills and inform you if anything else changes.  Stay tuned..


Like one of those standard joke setups, I have good news and bad news.

First the good news: Human Resources Division (HRD) has dropped banding, at least for now. The Civil Service Commission just issued an email with the announcement of a public hearing on February 25 to review proposed amendments to HRD rules. The rules no longer contain a provision for banding of examination scores.

In reviewing the proposed changes, I actually find some of them improvements. For example, they clarify how to deal with the period when old lists are expiring and being replaced by new ones. If HRD does not receive the certification (“the list”) back from the employer at least three weeks before a list expires, it will not, assuming these rules go through, issue a certification. This creation of a “bright line” separating the two lists removes some of the politicking that has invariably influenced this process.

Now for the bad news. On January 27, Governor Patrick filed legislation that would go a long way towards gutting civil service. The Commission now has, as it has had for decades (at least as long as I’ve been practicing, which goes back to at least the Hoover Administration), five Commissioners: a chairman and four others. Only three of them now receive full salaries, with Commissioner Dan Henderson’s being the lowest of those, at about $77,000.

The Governor has proposed to essentially eliminate Commissioner Henderson, by converting his position from one of a relatively modest salary to one with no salary. Since Henderson presumably does not have a trust fund to fall back on, this would necessitate his leaving this position. Ironically, this change would come following significant criticism from the management labor community (including Boston Police Commissioner Davis and the Mass. Municipal Association) protesting Commissioner Henderson’s repeated insistence on issuing decisions in accordance with the law and not as a rubber-stamp for public employers.

Also in the bill, Commissioner Jack Taylor, who is already reduced to a part-time schedule, would see his salary go from about $35,000 to zero. Coincidentally, Taylor was the only other commissioner, besides Henderson, to vote against allowing banding to go through about a year ago. The other three commissioners, including Chairman Bowman, saw no problem with it. We had to then go to Superior Court to find someone who would actually read the law and force HRD to live with its regulations requiring scores to be set out in “whole numbers.”

What is particularly nefarious about the legislation is that, by the way it was filed, it automatically goes into effect on March 27, unless one branch of the Legislature votes it down before then. A copy of the bill can be found here.

If you still believe that having an independent Civil Service Commission has any value, I cannot urge you strongly enough to contact your union, your legislators, and anyone else who will listen to try to stop this legislation from becoming law.

Had this been done by the Romney Administration it would not have been surprising, but coming from the first Democratic governor in over 15 years, it is shameful.

Alan Shapiro

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.)

Civil Service Commission Clarifies Firefighter Seniority Rules For Layoffs

The Civil Service Commission issued a decision on August 6, 2009 that allows employers to count some prior non-fire service in calculating firefighter seniority in the event of a layoff.  The decision confirms two prior Commission decisions from the 1990s, both of which relied on a 1991 Attorney General opinion.  The case, Ponte, et al. v. City of Fall River, D1-09-155-158, arose after the City of Fall River laid off a number of firefighters in March 2009.  The City laid off the least senior firefighters, using a seniority list that counted prior service by current firefighters in other civil service positions in the City.  The four Appellants were laid off firefighters who had all served as firefighters with the Fall River Fire Department longer than four of the firefighters who were not laid off (“the retained firefighters”).  The Appellants claimed that the City erred when it counted prior service in other City departments in calculating seniority.  In fact, the Appellants argued, the four retained firefighters should have been laid off instead of them.  The retained firefighters were represented by John M. Becker, of Sandulli Grace, P.C.

            The legal arguments centered on the applicability of the last sentence of the fourth paragraph of General Laws, Chapter 31, Section 33: “In determining the seniority of a firefighter for the purpose of reduction in rank or reduction in force, his ranking shall be based on his length of service in the fire department in which such reduction is to take place.”  If the sentence applied, then the City was wrong to include service outside the fire department in calculating seniority for the layoffs.

            In a searching statutory analysis, Commissioner Paul Stein, writing for a unanimous Civil Service Commission, explored the language and history of Section 33 to conclude finally that the sentence did not apply.  Specifically, Commissioner Stein found that each paragraph of Section 33 referred to different scenarios and by placing the disputed sentence at the end of one of those paragraphs, instead of creating a new paragraph, the Legislature intended the sentence to apply only to the scenarios discussed in that paragraph.  Paragraph four discusses voluntary and involuntary transfers from one town or city to another, but service in other departments in the same city or town is discussed in paragraph three.  Therefore, the City was correct when it included service in other departments in the retained firefighters’ seniority.

            Commissioner Stein’s conclusion echoed that of a 1991 Attorney General Opinion, which had already been affirmed twice by the Commission in Maccarone et al. v. Lawrence Fire Dep’t, 4 MCSR 1105 (1991) and Smith v. Lawrence Fire Dep’t, 6 MCSR 35 (1993).  Ultimately, the Commission held, the Legislature must make any changes in the statute.

            In a subsidiary finding, Commissioner Stein interpreted the words of the dispute sentence “service in the fire department.”  Ruling against the Appellants, the Commission found that service as EMTs in the same fire department (which three of the four retained firefighters possessed) would be counted.  Commissioner Stein wrote, “If the intent was to calculate firefighter seniority solely on the basis of service as a firefighter, and not other service in any other division or departmental unit, the statutory language could easily have been modified to express that distinction.”

            In the end, the retained firefighters kept their jobs, and the Appellants remained laid off.  Commissioner Stein notes, however, that that Appellants and other laid off firefighters are continuing to challenge their layoffs before the Commission on other grounds.

 Link to Ponte case

SJC Gives Public Employers New Tool For Blocking Disability Retirements

In a recent decision, the Massachusetts Supreme Judicial Court has allowed a public employer to block an injured employee’s attempt to retire on disability by modifying his work duties so that they no longer resemble his original core job duties.  The decision, Foresta v. Contributory Retirement Appeal Board, was issued on April 24, 2009 as 453 Mass. 669 and can be found here . Sandulli Grace, PC, filed a friend-of-the-court brief on behalf of the Boston Police Patrolmen’s Association, Inc. and the Massachusetts Coalition of Police, in support of the disability employee.

 Foresta involves an employee of the Mass. Turnpike Authority who sought a disability retirement after two job-related lower back injuries.  His job as safety inspector primarily involved driving around the state inspecting fire extinguishers.  A small portion of his job involved teaching courses and doing paperwork.  After Foresta suffered two on the job injuries, his doctors concluded that he was disabled from lifting the fire extinguishers, or driving for significant periods of time.  In other words, the work injuries prevented him from performing his essential job duties.  As a result of his disability, the Authority gave the fire extinguisher duties to another employee and assigned clerical/desk duties to Foresta, which used to be a minute function of his job.  Although a panel of doctors agreed that Foresta could not perform his core duties, it concluded that he could perform the duties of his new job. Foresta still sought a disability retirement, arguing that he was entitled to it because his job injuries prevented him from performing the essential functions of the job as it existed at the time of his injuries.

 The SJC disagreed with Foresta and instead ruled in favor of the Massachusetts Turnpike Authority Employees’ Retirement Board’s decision to deny the accidental disability retirement application.  The SJC found that the Board’s denial was consistent with the history and purpose of the disability retirement laws.  In particular, those laws encourage employers to make accommodations for injured employees and provide rehabilitation for them to keep them on the job, which allegedly limits the Commonwealth’s liability and prevents possible abuses of the system.

 Foresta argued that anti-discrimination laws such as the Americans with Disabilities Act only require employers to make reasonable accommodations, and changing the essential duties of the job is unreasonable.  The SJC ruled instead that the employer may make accommodations that go beyond its obligations under anti-discrimination law, as the Turnpike Authority did here.  Therefore, the SJC held, Foresta was not disabled if he could perform the essential duties of the job after the Turnpike Authority modified it into a desk job.  The bottom line of the SJC’s distinction between an employer’s rights and responsibilities under ADA and disability retirement law is that the public employer gets the final word on the employee’s employment– a public employer can deny a request to change the essential functions of the job when sought by an employee or applicant without violating the ADA, but the employer may force an injured employee to change the essential duties of his or her job in order to prevent him from leaving work on a disability retirement. 

 The SJC did place some limits on the changes that an employer may make to accommodate an injured employee.  “The essential duties of the job as modified must be similar in responsibility and purpose to those performed by the employee at the time of the injury, and must result in no loss of pay or other benefits,” the Court stated.  Presumably, then, there must be some continuity between the original job and the modified position in terms of duties performed.

 The SJC’s decision leaves a number of questions unanswered, notably, How will employers and retirement boards determine which duties are similar in responsibility and purpose to those the employee performed at the time of the injury?  What if other employees with the same job title performed the duties but the injured employee did not?   Does this case extend to light duty assignments for police and fire fighters, whose essential functions involve physically demanding crime and fire prevention/suppression?  Unfortunately, further litigation may be required to answer these and other questions that arise from the SJC’s vague language.  Only time will tell how severely public safety employees will be affected.  But there is no question that the right has been restricted by the Foresta decision: if a public employer wants to block an employee from getting a disability retirement – even where the disability results from the employee’s public service – the employer now has one more weapon in its arsenal.



HRD Appears To Have Given Up On Banding

Based on the attached memo sent to the police chiefs by HRD, it appears the agency has finally relented and will establish promotional lists from the October 2008 exam in the traditional “whole number” formula.

As the memo goes on to state, HRD will attempt through rulemaking to change the current rule requiring scores in whole numbers.  If the rule is changed, they would then, presumably, band results of the next promotional examinations.

 I know that within seconds of this entry’s going out, we will be asked these questions:  (1) “Will you challenge banding in rulemaking?” and (2) “What is the likelihood of winning such a challenge?”  The answer to Question 1 is simple: we will do what our clients ask us to do.  To stop banding of this exam, our clients Mass. Coalition of Police and Boston Police Patrolmen’s Association jointly retained us.  Whether to contest the issue in rulemaking will be their decision.  As for the likelihood of a successful legal challenge to the rulemaking, I will say only that there are arguments that could be raised on both sides of the issue.

We (my law partner Bryan Decker and myself) again want to thank all of you for your support, but most especially our clients, MCOP and BPPA, without whom HRD would have been able to run roughshod over its own rules and the merit-based system Civil Service is supposed to be.

Download Memo

MCOP and BPPA File For Injunction to Stop Banding

Today, March 27, Massachusetts Coalition of Police and Boston Police Patrolmen’s Association, jointly represented by Alan Shapiro and Bryan Decker of Sandulli Grace, filed a lawsuit in Suffolk Superior Court to enjoin the Human Resources Division from promoting with banded lists.

The Court set a hearing on the injunction for Tuesday, March 31, at 2:00 p.m. in Suffolk Superior Courthouse, Room 916.

The arguments are essentially the same ones made, and rejected, before the Civil Service Commission.  HRD has a rule saying it establishes lists with “whole numbers.”  We all know that means the scores are supposed to be in a 1-100 format.  If they want to start banding, they have to change their rules.  The legal way to do that is to follow the procedures in the Civil Service law for rule-making. 

We want to thank all of you who have shown your support over these past weeks for our efforts to preserve a merit-based, civil service promotional system for police officers (and, by extension, others) in Massachusetts.

Read the complaint and the memorandum 

The Band Plays On: Civil Service Commission Abdicates Oversight Role To Human Resources Division – Refuses To Investigate Decision To “Band” Promotional Test Scores

The Civil Service Commission today rejected appeals filed by Sandulli Grace on behalf of the Boston Police Patrolmen’s Association and the Massachusetts Coalition of Police (and companion cases filed by the Boston Superior Officers and IBPO) challenging the Human Resource Division’s decision to start “banding” scores from civil service promotional exams when placed on eligibility lists.  Specifically, the Commission rejected the straightforward argument that HRD violated its own rule requiring that exam scores be listed “in whole numbers.”  Instead, Civil Service decided that scores expressed in bands, each containing up to 8 points, are in “whole numbers” because the bands are numbered 1 through 7.  When the HRD attorney made this ridiculous argument in the civil service hearing room, members of the crowd, including one sitting commissioner, audibly laughed.  Now, apparently, it is the law, contradicting the old adage that an argument should first have to “pass the laugh test.”

            In one decision the Commission ruled that individual offers are not “aggrieved” because they have not suffered “actual harm” – YET!  Reading Chapter 31 (Civil Service law) to only remedy past wrongs, the Commission ruled that since no one has been yet harmed by banding, the appeals are untimely.  Of course, it was our hope and desire to AVOID a situation where individuals are promoted based on banding only to have those promotions undone through an after the fact appeal.  (Indeed, Counsel to HRD, while claiming that our appeal was not ripe, simultaneously argued that the Commission could not go back and undo initial hiring decisions already made because of the chaos that would result.)  Unfortunately, the Commission punted rather than take the issue on headfirst.

            In the second decision on our request for an investigation (as opposed to an appeal), the Commission rejected our argument that HRD had violated its own rule.  Although our request only sought to require HRD to follow proper rulemaking regarding banding, the Commission nonetheless wrote a lengthy exegesis on how terrific banding really is, citing law review articles and unrelated dicta in federal civil rights cases.  Amazingly, the Commission quoted Massachusetts Federal Judge Saris, who opined in a decision that “banding … seems consistent with” civil service.  This is amazing because Judge Saris noted in the same case that “the attorneys have not briefed the issue,” and that “HRD has expressed some legal uncertainty as to whether the statutory framework in Massachusetts allows banding.”  Without a hearing, rulemaking, or any other legal proceeding, HRD has now gone from questioning the legality of banding to making it the law of the land.

            As to WHY HRD’s decision to band scores does NOT violate the “whole number rule,” the Commission held that bands “are whole numbers.”  By this logic, HRD could follow its “whole number” rule by scoring exams 1-100, 1-7 (as in banding), or 1-10,000 (as it did when it used to break down scores to the hundredth of a point).  In other words, the rule has no meaning.  This would be comic were it not for its effect on the careers of literally thousands of police officers who arduously studied, sacrificing earnings and time with their families, expecting their efforts to be scored by the rules.

            A stern dissent by two of the five Commissioners (Henderson and Taylor) pointed to the time and effort put in by test-takers with the expectation that their tests would be scored as they have been in the past: in whole numbers of 1-100.  They disagreed with the majority and would order the relief requested by our clients:

That the Commission order HRD to comply with its present rules and establish eligible lists from the October 2008 police promotional examinations in whole numbers and not utilize banding or any other method. 

To the extent that HRD desires to amend PAR. 07 (4)[the “whole number” rule], the Commission should then order that no such amendment become effective unless and until HRD complies with the statutory requirements of G.L. c. 31, §§ 3 and 4.

            Like the indulgent parent admonishing the wayward teenager taking the family Mercedes out for a spin to “be careful,” the Commission wagged a finger at HRD that, because of the enormous new power it was conferring on appointing authorities, it had better “embark[] forthwith on an inclusive, transparent selection process to ensure effective implementation by municipalities of post-banding selection procedures.”  That was what the Legislature created under the statutory “2N +1 Rule,” until HRD and Civil Service saw fit to destroy it.  But we need not worry, because the decision tells us that the Commission “will not stand idly by if presented with competent evidence that unlawful favoritism was the driving force behind a particular promotional appointment.”  This gives little comfort as we have watched Civil Service stand idly by while HRD makes up its own rules and the agency abrogates its statutory oversight role.

            The role of the Civil Service Commission as a watchdog against favoritism and overreaching by HRD is called into question when Civil Service refuses to demand that HRD conduct rulemaking in the open – AS IT IS REQUIRED TO DO. 

            Needless to say, we are reviewing our options with our clients.  Stay tuned…