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…

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

  1. Couple of points to make: At the next step in the process, possibly court, is it worth mentioning that HRD thought it important enough to mention banding in the exam posting for other jobs, i.e. firefighter entry exam, police entry exam etc…but NOT the police promotional? Second, I didn’t read in the commission’s decision any mention of the fact that secondary criteria are ALREADY factored into the exam raw score before banding by allowing certifications, degrees held, time on the job etc.. which would eliminate or lessen the effect of a supposedly “statistically insignificant [differences]due to measurement error inherent in scoring the examination.” Was this not brought up by any of the appellants? I will continue on another reply.

  2. Civil Service mentions several journals etc… that back HRD’s argument in favor of banding. Is it unusual for the commission not to mention any reading that might argue the opposite point? For instance, immediately after the banding issue was raised I read the book “The Bell Curve” which completely dismantles the critique of standardized testing by citing dozens of studies that show a direct correlation between job productivity and cognitive test scores. As a matter of fact, the decision mentions that modern workplace competencies should be included. The problem with using these non intellectual skills and qualities to assess candidates is that it assumes that people with lower test scores will, on average, be better endowed in these other areas. Obviously, these are not truly measured and the scores that some candidates need in these areas to compensate for an alleged adverse impact are somehow arrived at without regard for the other positive attributes of the higher scoring applicant. Is HRD stating or has Boston specifically looked at the race or gender of an applicant in determining the passing mark or bandwidths? Thanks, thats’ enough for now.

  3. John,
    Thanks for your reply. You raise a number of excellent points regarding whether or not banding is a good idea. These are exactly the types of points that the parties would have raised had HRD followed its own rules and subjected the decision to band to the public hearing and CSC review process c. 31, §§3 and 4 demand. These points were not raised by the appellants in this proceeding, as we were not yet challenging banding, only HRD’s failure to follow the law in changing its rules.
    Thus, the lengthy discussion about the “merits” of banding by the CSC is actually entirely dicta. The actual “decision,” finding that HRD didn’t violate its rule by deciding to band, takes about a page. Of course, we are weighing our options.
    In solidarity,


  5. I have had to take the FD Lieutenants exam the last 2 years straight because my Chief does not like the candidates and the town came up with a BS story of having to have 3 on a list to promote. They always promoted of 1 and 2 person lists. So I can see myself (I always scored well) being jumped for lower band candidates. Plus we always have 6 or 7 sign up and only 2 pass.

  6. It is true that under civil service law, an appointing authority does not have to make a permanent appointment if there are fewer than three names on a list:

    Chapter 31, Section 27. Except as provided otherwise by section fifteen, if the administrator certifies from an eligible list the names of three persons who are qualified for and willing to accept appointment, the appointing authority, pursuant to the civil service law and rules, may appoint only from among such persons. If such eligible list contains the names of fewer than three such persons, the appointing authority may appoint from among those persons or may request authorization to make a provisional appointment pursuant to sections twelve, thirteen and fourteen.

  7. In response to Steve, above, HRD now sets the passing score for each test based on data from their “testing experts.” I know that they were saying that the bands originally mailed out last month could change after the appeals period, based again on their supposed experts, so I guess the passing scores could as well, if that’s your question.

  8. your saying that the new bands that they gave us could change after appeals? You have got to be kidding. I am going to call civil service and find out.

  9. Bill,
    Our understanding, based on conversations with HRD counsel, is that the bands are not yet finalized. This shows that the change to bands is actually subjective, in that the scores are being assigned to bands based on how folks did. This is a big change from objective whole number scoring.

  10. Just for clarification, if Chiefs want to promote based on who topped the exam, so as to avoid any future appeals once this idiotic process is overturned, will they be able to ascertain who scored what on the actual exam?

  11. Addition to last comment. When is it time to take this to the press? Howie Carr would have a field day with this. Towns with exhausted lists are spending untold amounts of money paying provisional appointees top-step pay while being faced with lay-offs.

  12. Firstly, I was present at the hearing at civil service. All the attorneys representing various officers did a great job. I am still shaking my head after their politically motivated decision not to investigate banding.
    Secondly, I know the common phrase since the decision came down Friday was “we are exploring our options”. Now that the dust has settled, what is the next step going to be? Injunction? Superior Court? I know you confer with all your clients in making this decision according to their desires etc… But being a BPPA member, I am looking forward to you fighting this on my, and all the other officers in the commonwealths behalf. It comes down simply to whats right is right, and whats wrong is wrong. We have clearly been wronged !!! Thanks you for all your expertise and tenacity in fighting this fight. Please keep us updated on the next step.

  13. Thanks for the kind words JohnBPD. Hang in there, we should have our plan of attack ready to go by the end of the week, and we will update everyone then. Also, I’ll be at the BPPA House of Reps meeting today to answer any questions about this case (and about our big win at the SJC). If you have specific questions, contact your house member and ask him or her to ask me.(unless you are a house member, in which case I’ll see you later).
    In solidarity,

  14. Hi Paul, Too early to know how this is all going to play out. We’ve had some press, and would welcome any inquiries into this. The old addage, “light is the best disinfectant” is certainly applicable here, where HRD appears to work behind the scenes without public scrutiny.

  15. Paul’s question about whether Chiefs, or any appointing authority, could still promote based on the actual scores is a good one. I know of one department where, even with the “whole number” system, officers on the list were always required to bring their raw scores broken down to the hundredth of a point to the appointing authority, which then promoted in strict numerical order. Whether an appointing authority could require this of candidates, whether a union could negotiate it as a requirement, and what oversight Civil Service might exercise over it are all open questions at this point.

    We are still hopeful of getting a Superior Court judge to try to get HRD to follow its own rules – seemingly a simple request in a supposedly civil society.

  16. First of all, I have no stake in the game. Didn’t take exam, but see other issues that need addressing. You represent officers that have finished all over in every band. Did you forget that? These same officers that have been badgered in other blogs are guys/gals that have finished with high scores and some over 90 that are in the bottom of another band. Most of these officers are hard working cops whom at least to me are left to feel as though they are idiots whom are trying to get the edge. Tough on which way to think on this issue. I have seen bookworms with no street experience rise through the ranks, that do nothing but study. I have seen other hard working cops whom put in the time but just can’t put in 12 hours a day year round that finish a few points behind, and didn’t get the job because of the system. I want to be against this banding system but find it hard too based on what I am reading in the blogs. Just remember the other guys you represent and what they must be thinking as well. Thanks.

  17. Tom:

    You make a point that banding helps some and hurts others. Also, you point out that the pre-banding system was not perfect. Our clients have made the determination that, as imperfect as it may be, the system of rank-ordering scores by numbers of 1-100 at least reduces the cronyism and favoritism that we see in non-civil service towns. If the tests rely too heavily on “book learning” and not enough on “street knowledge,” then HRD should design tests that measure all needed skills for the job. We are not telling HRD what should be on the tests, only that they should be scored in accordance with their regulations and governing law.

  18. I agree Alan. Its easy to put the cart before the horse in this agrument. A conversation regarding banding quickly slides into one about the merits and shortcomings of banding. An argument of the pros and cons, right and wrongs of banding are for a later date. Now the problem is simply the changing of the scoring system by HRD without following the steps laid out in the Mass. General Laws. They didn’t follow their own rules, Period. I am sure there will be much debate down the road of the more broader issues of the concept of banding, but thats for another day. Thanks for all your efforts Alan and Brian…

  19. Alan, the new list comes out any day, can anything be done with the banding in regards to going with the old system which I am in favor for as well? Is time running out?

  20. I just heard the average passing mark for Fire Lieutenant is 62.5 and Fire Captain is 67.5 . Marks will be out on the 31st of March and they are banded……………….

  21. John:

    Please see latest blog entry (it will be up soon). We filed for an injunction today in Suffolk Superior Court and the hearing will be Tuesday, March 31, at 2 p.m. in Courtroom 916.

  22. Alan,

    The passing grades for each rank were also changed:
    66 for Sgt
    72 for Lt
    75 for Capt

    This change from what was always the passing grade -70- was done without notice as well.

    In some smaller depts where 2 people took the Lt exam for 1 opening, if one failed and the other got a 71, which would’ve been a passing grade, no one would get promoted!

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