Barnstable Loses Civil Service Lieutenant Bypass Case

Recently the Boston Superior Court ruled in a Barnstable bypass for police promotion to Lieutenant. The case decided was Michael J. Clark vs. Civil Service Commission, Superior court civil action number 10 – 0079. There are bypasses that are right, there are bypasses that are wrong, and then there are ones that can be charitably defined as a “travesty”. It is for situations just like this one in Barnstable that the Civil Service system was designed to protect against happening.

The court in ruling stated the following: “This is a general law chapter 30(a) sect. 14, and general law chapter 31 section 2 b appeal from a bypass of the plaintiff Michael J Clark for promotion to the position of permanent full time police Lieutenant for the Barnstable police department. For the reasons discussed below, Clarks motion for judgment on the pleadings is allowed and the commissions order is vacated.

In November 2006, the department had a vacancy for the position of Lieutenant which was created as a result of then Lieutenant Paul Mcdonald being appointed to the position of interim police chief. Mcdonald was subsequently appointed to the position of permanent chief on August 16, 2007. As a result there of, the town of Barnstable filed a civil service commission request for a certification list of eligible candidates for the department to fill the vacancy for 1 permanent full time Lieutenant. The town subsequently received a certification list from the Human Resources Division. The certification list included the 3 highest scores with Clark 90 and then Sean Balcolm with an 88.
The chief and the union agreed that the candidates would have until December 11, 2007 to sign of the certification list as a candidate and the procedure would proceed as follows:

1. submission of a career profile

2. oral board interviews with 3 members from outside the department.

3. input from immediate supervisors and

4. interviews with the chief.

On November 27, 2007 the chief sent an email to the union president confirming the details of the procedure agreement that was reached. Therupon the selection process began.

Notwithstanding Chief Mcdonalds agreement with Sgt. Mckenna and the union, Chief Mcdonald appointed 1 member of the oral board from within the department. He also introduced in additional writing component to the selection process requiring each candidate to submit a community policing plan that he himself would evaluate. lastly Chief Mcdonald requested from his staff and supervisors their input as to the candidates for the position.

January 7, 2008 the department promoted Balcom to the position of Lieutenant. In a letter dated January 8, 2008 to the Human Resources Division, Chief Mcdonald stated the reasons for Balcoms appointment. The letter also outlined the selection process for the position. On March 3, 2008 H.R.D. accepted the reasons proper by the department to bypass Clark. Clark filed an appeal of this decision. Hearings were held before Magistrate Joan Friedman Fink on July 30, 2008 and August 8, 2008. A 12 page recommended decision was issued on August 17, 2009 ruling in favor of the department.

Analysis
This court has held a hearing, read all submissions and has given much thought and consideration to the record and transcript of hearings before the Magistrate on July 30, 2008 sent August 8, 2008. This court determines that the appointing authority decision cannot stand because it applied an incorrect legal standard in determining which candidate to appoint. Several aspects of the selection process was flawed. First Chief Mcdonald’s erred in considering the candidates experience in addition to the civil service examination scores. In particular Chief Mcdonald’s applied additional credit to Balcom for his experience as a police officer which credit had already been considered by the commission and applied to his initial score of 88. Seniority is built into the test score as part of the training and experience, and as a result is weighted twice in this matter.

Second, Chief Mcdonalds never revealed Clarks performance evaluation. Clarks most recent evaluation was done by Lt. Cameron in 2005. The written evaluation was sent to Chief Mcdonalds and a copy was retained in Clark’s personnel file. While one supervising officer indicated that he saw the evaluation in Clark’s personal file, nevertheless it has become missing when Chief Mcdonald reviewed Clark’s personnel file prior to interviewing Clark. Mcdonald testified that never saw the evaluation prior to his bypass of Clark. This court has read this 10 page evaluation dated April 17, 2005 and it contained strong performance reviews for Clark. The performance evaluations were an intregal part of the selection process. Chief Mcdonald relied on the personal evaluations to decide which candidate was better for the position. Consequently, Chief Mcdonald’s could not have been able to make a fair and impartial assessment without considering Clark’s evaluation.

Third, Chief Mcdonald failed to create the oral board with the proper composition. Notwithstanding Chief Mcdonald’s agreement with the union that the old board would be made out of membership from outside the department, Chief Mcdonald’s appointed 1 member from the department. The reason why the board should not be made out of persons who do or have served with the department was to avoid any possibility or even appearance of partiality. There is no reason in the record to indicate why the Chief breached the agreement.

Fourth, the Chief failed to record any of the interviews. Chief Mcdonald’s admitted that the departments policy requires videotaping to provide a reliable record for later purposes of determining accuracy and impartiality. Nevertheless he did not do it.

Fifth, the department erred in considering the results of Chief Mcdonald’s interview in the appointing decision. Chief Mcdonald described the interview as a “set up” interview with no substance involved. The purpose of the interview was “to tell them we were in the process, what was going to happen next, and if they have any questions”. Despite the lack of substantive value Chief Mcdonald erred in considering the results in the interviews to determine which candidate to appoint.

Finally, Chief Mcdonald’s improperly introduced the community policing plan very late in the process. He did not give advance notice to the candidates or to the union regarding the plan. Failing to provide such notification, Chief Mcdonald violated the department policy to ensure fairness. Moreover the Chiefs opinion that Balcoms community policing plan was better than Clarks was entirely subjective. Chief Mcdonald has no training or education in community policing. Without proper training on the subject matter in question, Chief Mcdonald opinion that Balcoms community policing plan was better is unsound and unsupported by an objective standard.

In the instant case, Clark had a higher examination score than Balcom. The department application of an incorrect legal standard in determining which candidate to appoint and the obvious flaws in the selection process suggest unlawful bias was used in the appointment of Balcom.

Conclusion, for the reason stated above it is ordered the Clarks motion for judgment on the pleadings be allowed in the commissions order be vacated accordingly, it is ordered the Clarks name be placed to the top of the eligibility list for the current or next promotional appointment of police Lieutenant for the town of Barnstable.
Justice Thomas E Connolly, Boston Superior Court”

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
This entry was posted in Civil Service News & Information, General, Mass. Labor Law News & Cases. Bookmark the permalink.

One Response to Barnstable Loses Civil Service Lieutenant Bypass Case

  1. Santino says:

    Sounds like “Chief” McDonald was playing favorites or he was getting his orders from the board pf selectmen or local governing body. Apparently, the plaintiff didn’t fit with the “Chief”-hopefully the reasonable decision by Judge Connolly stands; he’s a very fair jurist. Deals with the facts not the political nonsense.

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