The Civil service commission recently allowed the bypass of an Appellant for promotional appointment to the position of Deputy Police Chief in the Springfield Police Department in MARK S. ANTHONY, Appellant CITY OF SPRINGFIELD, Respondent v. G2-09-262. The most interesting part of the case however was that a member of the department who had failed an earlier portion of the promotional process (assessment center) was allowed to participate in the selection process.
In deciding the case the Commission stated “The City, by a preponderance of the credible evidence, has shown that it had reasonable justification to bypass the Appellant for promotional appointment to Deputy Police Chief. Commissioner Fitchet, a 37-year veteran of the Department who has worked his way up the ranks from police officer to Commissioner, instituted a fair, merit-based process in order to select four Deputy Chiefs to help him lead the Department. The review and selection process began with an Assessment Center examination conducted by an independent, outside consultant, instead of a traditional written multiple choice examination. The Assessment Center examination included an in-basket exercise, a program development exercise where a paper had to be written and defended before a panel, a city council meeting, a press conference and several situational response / scenario exercises.
After including promotional preference points and/or employment and experience credit, the Appellant was ranked fourth among those candidates who passed the examination, with a score of 81. Four passing candidates scored lower than the Appellant with scores of 80, 79, 75 and 74. Although the Appellant was ranked fourth, this alone does not demonstrate that he was the most qualified candidate for the position of Deputy Police Chief. (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.) Here, Commissioner Fitchet did consider the civil service scores of each of the candidates, but also wanted to consider other factors, including an interview of each of the candidates. The authority to interview candidates is inherent in G.L. c. 31 § 25. Flynn, 15 Mass. App. Ct. 206, 208 (1983).
The 3-member interview panel consisted of Fitchet and the two most senior captains in the Department. The interview process provided a meaningful additional review and all applicants who were interviewed were on a level playing field. Although subjectivity is inherent in the evaluation of interviews, I conclude that there was no undue subjectivity on the part of the panelists. It is an error to require adequate indicia of objectivity for the statutorily authorized interviews. Neither the statute authorizing interviews, nor the Flynn case, nor any other authority…imposes such (a) requirement on appointing authorities.” Westfield v. Civil Service Comm’n & another., No. 98-601, Hampden Superior Court (1999).
I carefully considered the Appellant’s argument regarding the potential bias of the two panelists who had filed an MCAD complaint that related to the Appellant’s prior provisional promotion to the position of Deputy Police Chief. Captain Arpin and Captain Parylak credibly testified that their MCAD complaints were based on former Commissioner Flynn’s decision to disregard seniority when making provisional promotions and were not meant as a personal attack on the Appellant and/or his qualifications. I believe that these two Captains, both of whom have been with the Department for approximately forty (40) years, showed no personal bias or animus toward the Appellant in relation to their MCAD complaints.
I also accept Captain Parylak’s testimony that he had no knowledge regarding whether the Appellant played an administrative role as part of a series of grievances that Parylak filed during the tenure of former Police Chief Paula Meara. I credit his testimony that these prior grievances never even entered his mind when he was evaluating the Deputy Police Chief candidates.
Finally, I conclude that the fact that Arpin failed the Assessment Center did not impact his ability to serve as a fair, impartial and competent member of this review panel. Commissioner Fitchet’s decision to select the two most senior Captains to serve on the interview panel was rooted in a genuine desire to receive advice and counsel from the most experienced members of his command staff. As a result of this interview process, all three panelists ranked candidates McFarlin and Dudley higher than the Appellant. They provided sound reasons for their ratings, both as part of their written notes as well as their credible testimony before the Commission. Thus, the City, in regard to the superior interview performances of McFarlin and Dudley, has substantiated a valid reason for bypassing the Appellant.
The City proffered other reasons for selecting McFarlin and Dudley over the Appellant, including their extensive service as uniform division commanders. Although some of these positive reasons appear to apply equally to the Appellant, I credit Commissioner Fitchet’s testimony that he considered McFarlin and Dudley’s performance of these duties on a permanent basis to be of more value than the Appellant’s performance in an “acting” capacity. Thus, the City, in regard to the issue of relevant command and other experience, has substantiated another valid reason for bypassing the Appellant.
There was reasonable justification for the City’s decision and there is no evidence of bias or improper motive. Thus, the City’s decision to bypass the Appellant is “not subject to correction by the Commission.” Cambridge, 43 Mass. App. Ct. at 305. For this reason, the Appellant’s appeal under Docket No. G2-09-262 is hereby dismissed.”
The fact that he failed the assessment center but then was found sufficiently qualified to judge those who passed it is troubling. I wonder if on appeal to the Superior court it would pass muster.
Attorney Ronald A. Sellon