Civil Service Dismisses Appeal Filed 3 Years After Bypass

The Civil service commission recently dismissed the appeal for lack of timliness in JOSEPH J. McMAHON, Appellant v. TOWN OF BROOKLINE, Respondent Case # G1-09-323.

The appellant, who had previously been bypassed for original appointment to the position of Police officer for the town of Brookline sought to appeal his subsequent bypass for the position of Firefighter as well. The problem was, that he wanted to appeal it more than 3 years after it occurred. The Appellant argued that he learned after the fact that a “relative” of the Chief of the fire Department had been hired in violation of Chapter 31 as they were a non resident. Due to the fact that he had learned of these facts recently he argued that the normal statute of limitations should be tolled.

The commission in deciding to dismiss the appeal stated “ Here, it is undisputed that on both August 21, 2006 and October 11, 2006, HRD sent the Appellant written correspondence stating that they were accepting the reasons offered by the Town regarding his non-selection as a fire fighter. In both letters, it stated: “You have the right to appeal this determination by filing your appeal, in writing within sixty calendar days of the receipt of this notice, with the Civil Service Commission, One Ashburton Place, Room 503, Boston, MA 02108 or visit their website at http://www.state.ma.us/csc. Please file a copy of this correspondence and all enclosures with your appeal to the Commission.”
Two of the reasons for bypass (residency and prior employment history) were also used as reasons for bypassing the Appellant for the position of police officer three years earlier. The third reason related to the Appellant’s performance before an interview panel assembled by the Town’s Fire Department.
The Appellant has not offered any explanation regarding why he failed to file a bypass appeal within sixty days of being notified of his bypass by HRD in 2006. He does not dispute that he received the HRD correspondence advising him of his appeal rights. Having filed an appeal with the Commission three years earlier regarding his bypass for the position of police officer, he was not unfamiliar with the appeal filing process. In fact, the Appellant visited the offices of HRD regarding this selection process and successfully obtained an unusual preliminary letter from them regarding the reasons offered by the Town to justify his bypass.
Rather, the Appellant argues that the deadline for filing his appeal should be tolled because of a recent discovery that the Town had allegedly hired a non-resident as a firefighter during the 2006 hiring cycle that was related to a senior official in the Town’s Fire Department.
The Appellant’s argument fails. First, it is not plausible that the Appellant failed to file a timely bypass appeal in 2006 simply because he was not aware that the Town allegedly hired a non-resident in the same hiring cycle. In 2003, when the Town used the same reason to bypass him as a police officer, the Appellant filed an appeal and vigorously contested the Town’s claim that he did not meet the residency requirement. Here, he has failed to show why he didn’t file an appeal to contest the issue when the Fire Department used the same reason for bypass. Further, the Town’s decision to bypass him as a fire fighter was not limited to the residency issue, but also referenced his employment history and his performance before an interview panel assembled by the Fire Department.
The Appellant also argues that he first learned about the Town allegedly hiring a non-resident as a fire fighter in 2006 as part of an interview with a Brookline police detective in October 2008. Even if the Commission were to accept this statement, which is vigorously contested by the police detective, as true, it does not justify the Appellant’s request to toll the period of time in which to file an appeal. First, the Appellant’s bypass appeal was not filed until several months after he allegedly “discovered” this information. It would be unreasonable to then grant the Appellant several additional months to “confirm” the alleged information before filing an appeal with the Commission. However, as stated above, the Town’s decision to bypass the Appellant relied on two additional reasons, including his employment history and his performance before an interview panel assembled by the Fire Department.
Finally, the Appellant argues that the Commission, regardless of the statute of limitations regarding bypass appeals, is obligated to investigate allegations of wrongdoing regarding a civil service hiring process.
G.L.c.31, Section 2(a) provides:
“In addition to its other powers and duties, the commission shall have the following powers and duties: (a) To conduct investigations at its discretion on upon the written request of the governor, the executive council, the general court or either of its branches, the administrator, an aggrieved person, or by ten persons registered to vote in the commonwealth.”
The Commission construes the statute to grant it considerable discretion in whether, and if so, in what manner, and to what extent, it may elect to conduct any investigation of matters concerning civil service law and rules. See “Memorandum, CSC Docket No. I-07-34 (2007) (“The plaintiffs here also urge that their request to seek an investigation was improperly denied. Judgment should enter for the defendants on this issue . . . . [W]hile the statute certainly does not require that a petition for investigation need only be made by an aggrieved person, the statute, in my view, can only be fairly read to confer significant discretion upon the Civil Service Commission in terms of what response and to what extent, if at all, an investigation is appropriate.”); and Decision” in Boston Patrolmen’s Association v. Massachusetts Civil Service Commission, Suffolk C.A. SUCV2006-4617; SUCV2007-1220 (Mass.Sup.Ct. December 18, 2007) (Brassard, J.), affirming, Commission’s Response to Petition for Investigation Filed By Boston Police Patrolman’s Associationcf. Boston Police Superior Officers Federation v. Civil Service Commission, 35 Mass.App.Ct. 688,693-94, 624 N.E.2d 617, 620-21 (1993) (construing Commission’s discretion and authority to conduct a de novo hearing on a “fair test” appeal)
When warranted, the Commission has exercised its authority to conduct investigations under Section 2(a). See Review and Selection of Reserve Police and Firefighters in the City of Methuen, CSC Case Nos. I-09-290 and I-09-423).
Here, the Commission is not persuaded, on the evidence presented, that formally initiating an investigation of the 2006 hiring process regarding firefighters in the Town of Brookline would be a fruitful or appropriate use of the limited resources available to the Commission. For all of the above reasons, the Appointing Authority’s Motion to Dismiss is allowed and the Appellants’ appeal under Docket No. G1-09-323 is hereby dismissed.”

Commentary,

The statute of limitations on an appeal is very specific. He had ample time to appeal the original appointment, and a simple discovery request filed by a competent attorney would satisfy the “unknown facts” that the appellant relied on to support his case here. All without waiting 3 years and risking a dismissal based on statute of limitations.

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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