Update: Civil Service Commission and Boston Police Dept. Psychological Bypass

In the ongoing drama over mountains of appeals for Boston Police Psychological Bypasses for appointment, a Superior court Judge ruled against the plaintiffs (BPD) motion for a judgment on the pleadings and granted the CSC’s cross motion in BOSTON POLICE DEPARTMENT v. KELLEY COUTTS and CIVIL SERVICE COMMISSION Civil action # 09-2400. The original case is incredible in its facts as it really seems to outline a serious concern with the process used by the City of Boston.

In the original case, KELLEY COUTTS, Petitioner v. BOSTON POLICE DEPARTMENT, Appointing Authority, G1-07-277 it stated “Appointing Authorities are expected to exercise sound discretion when choosing individuals from a certified list of eligible candidates on a civil service list. The appointing authority may also decline to make any appointment. See Commissioner of the Metropolitan Dist. Commn. v. Director of Civil Serv.348 Mass. 184, 187-193 (1964). See also Corliss v. Civil Serv. Commrs.242 Mass. 61, 65; (1922) Seskevich v. City Clerk of Worcester, 353 Mass. 354, 356 (1967); Starr v. Board of Health of Clinton, 356 Mass. 426, 430-431 (1969). Cf. Younie v. Director of Div. of Unemployment Compensation, 306 Mass. 567, 571-572 (1940).

Ms. Coutts presented herself before the Commission as a likeable, capable, mature, experienced and well-mannered woman with a sincere desire to continue serving her community as a police officer.

She is someone who understands her role in a rigidly structured environment, such as a police department is, and as someone who for more than 8 years successfully undertook the duties of a police officer within the City of Boston and is now currently undertaking such duties in Needham. Even with the heightened scrutiny that is rightly imposed upon police officers, Police Comms. of Boston v. Civil Serv. Commn., 22 Mass. App. Ct. 364, 370-371 (1986), Ms. Coutts has proven over many years that she is capable of performing the duties of a Boston Police Officer. What is required is the type of qualities that Ms. Coutts has exhibited over the course of her career.

The Appointing Authority has put forth evidence that even its expert witness characterizes as small reasons to justify a psychological by-pass (Testimony of Dr. Reade). The actual reasons stated by the Appointing Authority in its bypass letter are highly suspect base on the findings of fact made here. The excessive focus on Ms. Coutts’ personal life, including the expectation of a detailed explanation why she broke up with a boyfriend in the early 1990’s, is inexplicable. The entire interview-evaluation process smacks of sexism or some impermissible standard and undermines even further the small reasons that the Appointing Authority has put forward. The relevance of probing into long ago relationships can be established when there is a connection with a particular candidate’s fitness to serve as a police officer. Cases involving a candidate accused of domestic abuse or some other crime toward a close relation or some continuing bad behavior would make inquiries into such relationships not only relevant, but essential. Unfortunately for the Appointing Authority, those circumstances do not exist here. When coupled with Dr. Reade’s focus on the Appellant’s decision to have children with her husband prior to their marriage and her comments regarding the lack of emotion toward the loss of her mother, Dr. Reade’s detailed focus on the Appellant’s personal and emotional relationships, without some relevant factual basis suggest that these inquiries are not about establishing the Appellant’s fitness to serve as a police officer. Rather, they are inquiries that are wholly unrelated to Ms. Coutts’ fitness to continue serving the City of Boston as a police officer.

the Commission concludes that the BPD’s bypass of Ms. Coutts for appointment to the position of Boston police officer did not comport with basic merit principles resulting in harm to her employment status through no fault of her own.

The BPD in bypassing the Appellant for appointment due to some level of psychiatric limitation or disability opens itself up to the consequential obligation to make “reasonable accommodations” to her to facilitate her employment. The Boston Police Department did not produce any evidence regarding its exploration of or offer of or attempt to provide any “reasonable accommodations” to Ms. Coutts, due to her alleged “disability” or mental limitation, so that she could perform the duties of a Boston Police Officer. This could be considered an act of employment discrimination or the denial of an employment opportunity to a job applicant who is an otherwise qualified individual with an alleged disability. This appears to be a possible violation of the so called “Americans with Disabilities Act of 1990”. (Administrative notice Americans with Disabilities Act of 1990, § 2 et seq., 42 U.S.C.A. § 12101 et seq.)

Considering the fact that the BPD’s psychiatrists found no reliable historical evidence or any objective reason to conclude that Ms. Coutts could not successfully perform the duties of an armed police officer and also found no disqualifying mental impairment in October 2006 (Exhibit 3) and that the Appointing Authority has put forth no evidence to establish any change in the Appellant’s psychological makeup during the 4 months between examinations, it is clear that the Appointing Authority has failed to establish sound and sufficient reasons for this by-pass.

Ms. Coutts served the City as a police officer for a substantial period of time prior to her position being abolished. Dr. Reade’s failure to take into account Ms. Coutts’ past experience as a municipal police officer when assessing her current and future ability to perform the duties of a police officer is inexplicable.

Dr. Reade herself testified that Ms. Coutts very may well have been deemed fit to serve had she been examined by another physician. Such a subjective review is arbitrary and violates the basic merit principles upon which the civil service system is founded. See G.L.c. 31, § 1 and Cambridge, 43 Mass. App. Ct. at 304.

A further objective finding is her prior successful service as a police officer. When these objective findings are compared to the subjective findings, there is even less support for the conclusions and opinion of Dr. Reade. The overall approach to Ms. Coutts’ psychiatric screening by Dr. Reade bear the earmarks of capriciousness if not bias. The reasons as given for the bypass by the BPD were small and inconsequential to the ability of the Appellant to perform as a Boston Police Office.

After considering all the testimony and evidence in the record, I conclude that the Boston Police Department did not have sound and sufficient reasons for bypassing the Appellant, Kelley Coutts, for selection as a police officer in the City of Boston.

In so finding I have made credibility findings of the witnesses that appeared before me. Those findings are reflected in my findings of fact and as noted above. These credibility findings are based on my observations of the witnesses and their testimony, including their responses under direct and cross-examination.

For all of the above reasons, the appeal under Docket No. G1-07-278 is hereby allowed.”

Commentary,

A previously employed police officer with no history of disqualifying issues and is now unfit as found by the City of Boston? Raises serious questions.

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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One Response to Update: Civil Service Commission and Boston Police Dept. Psychological Bypass

  1. Pingback: Civil Service/Boston Police Psychological Bypass Updates | Massachusetts Police Legal News

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