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.
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.