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Bppa And Mcop Request That Civil Service Commision Hold Speedy Hearing On Legality Of Decision To “Band” Promotional Test Scores

Alan Shapiro
Alan Shapiro March 3, 2009

The Civil Service Commission today held a pre-hearing conference in the “banding” cased filed by Sandulli Grace on behalf of the Mass. Coalition of Police (MCOP) and Boston Police Patrolmen’s Association (BPPA).  At the hearing, Sandulli Grace attorneys Bryan Decker and Alan Shapiro, along with other appellants, contested the issues with counsel for the Human Resources Division (HRD) for almost two hours.  At the end of the hearing, Civil Service Commissioners Bowman and Taylor took the action under advisement, promising to quickly rule on what action the Commission will take, if any.

From the beginning of the hearing, HRD counsel made clear the agency’s position that it is entitled to make whatever rules it would like regarding test administration and grading, and that it does not need to justify its decision to any other party.  The scope of HRD’s hubris was revealed when Commissioner Bowman asked counsel to respond to our argument that “banding” scores violates HRD’s own rule requiring that scores “be presented on eligible lists in whole numbers.”  The HRD attorney replied that the bands, expressed as “Band 7,” “Band 6,” etc., are “whole numbers.”  The retort drew audible laughter from the crowd in the hearing room.  Atty. Shapiro replied that, presumably, the rule was put into place when HRD went from establishing lists with scores expressed in one or two decimal points to rounded off whole numbers.  Therefore, under HRD’s logic, HRD could comply with its rule by expressing scores in a system of 1 to 1,000 or 1 to 10,000, and the rule would mean nothing.  Atty. Decker added that, with this logic, HRD could make the test results “Pass-Fail,” just by assigning only scores of 1 or 2.  HRD had no real counter to these arguments but continued to insist that it could do whatever it wanted in establishing lists, provided it was not arbitrary or capricious.

Under questioning from Commissioner Taylor, HRD counsel admitted that HRD had consulted with the chiefs of police regarding banding.  When Commissioner Taylor asked if the unions representing police officers were consulted, she replied they had not, suggesting there were too many of them.  Sandulli Grace clients MCOP and BPPA, who together represent almost 5,000 police officers, were never consulted by HRD.  It became rather obvious whom HRD viewed as more important in this process.

On the larger issue, the Sandulli Grace attorneys contended that banding flew in the face of both the statutory “2N + 1” system, and the overall intention of a civil service system.  Quoting from a 2005 Connecticut Supreme Court case  which rejected any deviation from the “2N + 1 system,” we contended that banding would conflict with the overall design of a governmental civil service system:

“to secure more efficient employees, promote better government, eliminate as far as practicable the element of partisanship and personal favoritism, protect the employees and the public from the spoils system and secure the appointment to public positions of those whose merit and fitness have been determined by proper examination”

Specifically, MCOP and BPPA asked the Commission to take the following actions:

  • Conduct a speedy hearing to ascertain whether HRD is acting within its authority in establishing eligible lists by banding;
  • Order HRD not to send out any eligibility lists using banding until the issue has been decided by Civil Service;
  • After the hearing, order that HRD follow its own rules and establish police promotional lists using whole numbers, unless and until it lawfully changes the rules.

In response to questioning from Commissioner Bowman, HRD did indicate that it will not be prepared to establish eligibility lists until the end of March at the earliest even absent the appeal.

In perhaps the most telling comment, when asked about the practicality of appointing authorities in large cities having to wade through dozens of names to make a single appointment, the HRD attorney replied that when HRD posted a job, hundreds of people applied.  Here we see again the ultimate goal of HRD and its friends among the appointing authorities: the conversion of a merit-based civil service system to a private sector unregulated model.

We now await the Commission’s decision on what the next step will be.  Stay tuned.