Tag Archives: Promotion

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.)

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.




            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…

Judge Orders HRD To Not Issue Banded Eligibility Lists Pending Consideration Of Motion For Preliminary Injunction

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.


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…