Arlington Sergeant Bypass Overturned

The civil service commission allowed the appeal in part of a candidate bypassed for Sergeant in DOUGLAS CRONIN, v. TOWN OF ARLINGTON, case #’s G2-07-269 & G2-07-270. The case revolved around a huge disparity in scores, purported disciplinary history, and a lackluster interview process. The issues in his interview revolved around a proposed hypothetical involving an elderly woman in the towns park after hours and whether the letter of the law should be rigidly enforced.

The commission in deciding the case stated “I listened carefully to the Appellant’s testimony before the Commission in regard to his ability to exercise discretion as opposed to seeing all things as “black and white” as alleged by the Town. Specifically, I considered the Appellant’s testimony before the Commission in regard to the “hypothetical grandmother walking in the park after hours” scenario as well as his strict enforcement of the parking regulations in the Town’s Center while he was assigned to a walking beat in that area.

While the Appellant attempted to soften his answers regarding the hypothetical grandmother in the park scenario, he continued to maintain a rigid, “by the book” mentality during his testimony in which he seemed to relish ensuring compliance with the letter of local bylaws and challenging local officials to change these bylaws if they didn’t want them strictly enforced. In short, the interview panel’s concerns about the Appellant’s rigidity were not fabricated in an attempt to justify a decision to bypass the Appellant. In fact, during the three days of hearing, the Appellant at no time introduced any evidence, or even suggested, that the Town’s decision to bypass him for promotion was politically motivated, either against the Appellant or in the favor of the candidates that were promoted. Rather, based on the Appellant’s own testimony before the Commission, I could understand how the Appellant’s answers before the panel caused them to have concern about his ability to effectively serve in a leadership position in the Arlington Police Department.

In contrast, the two selected candidates did not show the rigidity displayed by the Appellant and one of the selected candidates talked about the need to be able to manage the vast “gray areas” that police officers confront on a daily basis.

It appears to be undisputed, that the panel, and the Town, failed to consider, in any way, the wide disparity in civil service scores between the Appellant and the two selected candidates with the Appellant scoring a 94 and the selected candidates scoring an 82 and 80 respectively.

The fact that the Appellant scored higher on a civil service examination does not demonstrate that he was the most qualified candidate for the position of sergeant. (See Francis E. Murphy, III v. Cambridge and Mass. Civ. Serv. Comm’n, No. 03-0815, Middlesex Super. Court (2004). (City was not required to given any particular weight to the 8-point score differential on the civil service exam for two candidates competing for the position of Fire Chief.) However, given the 12 and 14-point differential in scores in this case, the Town can not summarily dismiss the scores as irrelevant as they appear to have done in this case.

The Town acknowledged that one of the three reasons proffered to HRD for bypassing the Appellant (lack of supervisory experience) was an error. In regard to the second reason, the Appellant’s disciplinary record and past performance, the Town, in some instances, failed to substantiate that certain discipline ever occurred and, in other cases, provided HRD with incomplete information, including information regarding the Appellant being “exonerated” regarding one citizen complaint lodged against the Appellant. Thus, these two reasons are insufficient to justify the bypass of the Appellant.
As referenced above, however, the Town has shown that the Appellant, through his answers to an interview panel and his past performance, has shown a rigid, “black and white” mentality that are a legitimate concern for any Town considering who to appoint to a leadership position in their police department.

In summary, the Town failed to substantiate 2 of the 3 reasons offered for bypassing the Appellant and disregarded the substantial difference in civil service scores between the Appellant and the selected candidates. The Town did, however, substantiate their concern that the Appellant had a rigidity that gave them cause for concern.

For all of the above reasons, the Appellant’s appeals under Docket Nos. G2-07-269 and G2-07-270 are allowed in part. While the traditional relief granted to an Appellant in a successful bypass appeal is to place the candidate’s name at the top of the next certification to be issued to the Town to ensure at least one additional consideration for promotion, I have concluded that an alternative form of relief is warranted given the circumstances in this particular appeal. Therefore, pursuant to Chapter 310 of the Acts of 1993, the Civil Service Commission directs the state’s Human Resources Division to:
Place the Appellant at the top of the first list of eligible candidates for the position of sergeant issued to the Town of Arlington after January 1, 2010 to allow the Appellant to be given at least one additional consideration for a sergeant position in the Town of Arlington.

This relief is intended to recognize the Town’s failure to substantiate two of the three reasons proffered for bypassing the Appellant and their failure to consider, at all, the difference in civil service scores between the Appellant and the selected candidates, while also recognizing the very real, palpable, rigidity of the Appellant that has given the Town such concern. Hopefully, the one calendar year that elapses before the relief is effective will give the Appellant the opportunity to demonstrate the traits of leadership, including flexibility and the appropriate use of discretion, that are required of any candidate seeking a leadership position in a police department.
Civil Service Commission”

Attorney Ronald A. Sellon

About Attorney Ronald A. Sellon

Ronald A. Sellon is a licensed Attorney in the state of Massachusetts and U.S. District Court, Massachusetts as well as a Sergeant with a Municipal Police Department and U.S. military Veteran. Additionally, he has taught Criminal Procedure at the Massachusetts State Police Academy in New Braintree and has written a text on Criminal Procedure for police field training officer programs. He is a graduate of the FBI National Academy, was a 2008 recipient of the Massachusetts Coalition of Police (Mass C.O.P.) Presidents award and holds a Bachelors Degree in Law Enforcement, a Masters Degree in Criminal Justice Administration, and a Juris Doctor Law Degree. Questions related to content material may be directed to RSellon@PoliceLegalPromotions.com
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