| Date: | 12/18/2025 |
|---|---|
| Organization: | Civil Service Commission |
| Docket Number: | E-25-258 |
The Commission dismissed the non-bypass equity appeal of a Boston police lieutenant as he was unable to show that he was aggrieved by the Boston Police Department’s temporary use of an acting-out-of-grade appointment to police captain at the Boston Police Academy.
On October 31, 2025, the Appellant, James B. Conley (Appellant), a Police Lieutenant in the Boston Police Department (BPD), filed an appeal with the Civil Service Commission (Commission), contesting the BPD’s alleged use of “acting out of grade” appointments to fill three police captain positions. Both parties filed pre-hearing conference memos, and I held a remote pre-hearing conference attended by both parties on December 9, 2025. I have deemed the parties’ submissions to be cross motions for summary decision.
The following three police captain positions underly the Appellant’s appeal as it relates to impermissible out-of-grade appointments:
Regarding the first two positions, the Appellant acknowledges that the BPD has not filled those positions with acting-out-of-grade police lieutenants, but, rather, concedes that the functions related to those positions have been performed by other police captains who are receiving overtime. Put another way, even viewing the facts most favorable to the Appellant, the BPD has chosen to keep these two positions vacant and not fill them using the existing eligible list for BPD Police Captain, upon which the Appellant is now ranked first.
The parties generally agree on the facts related to the third position related to the Boston Police Academy. The BPD acknowledges that the Academy position became vacant due to retirement on August 25, 2025 and that the BPD began filling the position with two different BPD police lieutenants almost immediately. According to the Appellant, the BPD stopped using a BPD police lieutenant to fill this position on November 21, 2025.
Both parties agree that the Appellant did not rise to first on the BPD Police Captain eligible list until two other unrelated BPD Police Captain promotions were made on October 25, 2025.
The Commission may, on motion or upon its own initiative, dismiss an appeal at any time for lack of jurisdiction or for failure to state a claim upon which relief can be granted. 801 CMR 1.01(7)(g)(3). A motion before the Commission seeking, in whole or in part, summary decision may be filed pursuant to 801 C.M.R. 1.01(7)(h). An appeal may be decided on summary disposition only when, “viewing the evidence in the light most favorable to the non-moving party”, the undisputed material facts affirmatively demonstrate that the non-moving party has “no reasonable expectation” of prevailing on at least one “essential element of the case”. See, e.g., Milliken & Co. v. Duro Textiles LLC, 451 Mass. 547, 550 n.6 (2008); Maimonides School v. Coles, 71 Mass. App. Ct. 240, 249 (2008); Lydon v. Massachusetts Parole Bd., 18 MCSR 216 (2005). See also Mangino v. HRD, 27 MCSR 34 (2014) and cases cited (“The notion underlying the summary decision process in administrative proceedings parallels the civil practice”).
The fundamental mission of Massachusetts civil service law is to enforce “basic merit principles” described in Chapter 31, which command, among other things, “recruiting, selecting and advancing of employees on the basis of their relative ability, knowledge and skills including open consideration of qualified applicants for initial appointment” and “assuring that all employees are protected against coercion for political purposes, and are protected from arbitrary and capricious actions.” G.L. c. 31, § 1. The most important mechanism for ensuring adherence to basic merit principles in hiring and promotion is the process of conducting regular competitive qualifying examinations, open to all qualified applicants, and establishing current eligible lists of successful applicants from which civil service appointments are to be made based on the requisition by an appointing authority of a “certification” which ranks the candidates according to their scores on the qualifying examination, along with certain statutory credits and preferences. G.L. c. 31, §§ 6 through 11, 16 through 27. In general, each position must be filled by selecting one of the top three most highly ranked candidates who indicate they are willing to accept the appointment, which is known as the “2n+1” formula. G.L. c. 31, § 27; PAR.09.
Section 2(b) of Chapter 31 authorizes appeals to the Commission by persons aggrieved by certain actions or inactions by the Human Resources Division (HRD) or, in certain cases by appointing authorities to whom HRD has delegated its authority, and which actions have abridged their rights under civil service laws. The statute provides:
No person shall be deemed to be aggrieved . . . unless such person has made specific allegations in writing that a decision, action, or failure to act on the part of the administrator [HRD] was in violation of this chapter, the rules or basic merit principles promulgated thereunder and said allegations shall show that such person's rights were abridged, denied, or prejudiced in such a manner as to cause actual harm to the person's employment status.
Chapter 310 of the Acts of 1993 prescribes the discretionary authority granted to the Commission to remediate a violation of civil service law:
If the rights of any person acquired under the provisions of chapter thirty-one of the General Laws or under any rule made thereunder have been prejudiced through no fault of his own, the civil service commission may take such action as will restore or protect such rights notwithstanding the failure of any person to comply with any requirement of said chapter thirty-one or any such rule as a condition precedent to the restoration or protection of such rights.
Individuals may file a "non-bypass equity appeal" with the Civil Service Commission under Section 2(b) to contest an action or inaction (not involving a bypass) by the state's Human Resources Division (HRD), or, in certain cases by appointing authorities to whom HRD has delegated its authority, and which actions or inactions have abridged their rights under the civil service law.
Generally, the Commission has long held that appointing authoritiesrun afoul of the civil service law when they eschew certifications in filling actual vacancies, generally defined by the Commission as positions not filled by an incumbent for thirty or more days, and instead have an incumbent in the next lower title (i.e. – Police Lieutenant) perform those duties regarding of their rank on the eligible list for the higher position (i.e. – Police Captain) or whether they appear on the eligible list at all. In response, the Commission has generally required the appointing authority to take remedial action to end the practice of these “acting, out-of-grade appointments on a going-forward basis. This longstanding Commission precedent is consistent with the provisions of the civil service law that allow for emergency appointments for up to 30 days based solely on notification, as opposed to approval, by HRD. See G.L. c. 31, § 31.
As a preliminary matter, it is undisputed that no bypass occurred here as no candidate ranked below the Appellant on the BPD police captain eligible list active at the time was then promoted. Rather, this appeal was filed as a non-bypass equity appeal.
Further, that part of the Appellant’s out-of-grade appointment argument related to the Night Command and Court Unit positions can be easily disposed of here. Even viewing the facts in the light most favorable to the Appellant, no impermissible acting, out-of-grade appointments have occurred here. Rather, the BPD has used other BPD police captains to perform those duties using overtime, effectively choosing not to fill the vacancies at this time. “The appointing authority . . . may not be required to appoint any person to a vacant post [and] may select, in the exercise of sound discretion, among persons eligible for promotion or may decline to make any promotion.” Goldblatt v. Corporation Counsel of Boston, 360 Mass. 660, 6665 (1971); O’Toole v. Newton Fire Dep’t, 22 MCSR 563 (2009) (Notwithstanding a provision in the collective bargaining agreement to make “promotions as soon as practicable after a vacancy occurs”, the appointing authority “is not required under the civil service law to fill a permanent or a temporary vacancy in a permanent position.”)
The Appellant has also not presented facts sufficient to show that this case presents the rare situation justifying Commission intervention in which an appointing authority was motivated by impermissible reasons such as personal animus to manipulate the appointment process by not filling a vacancy from a current eligible list. See, e.g., LeDuc v. City of Lawrence, after further investigation, E-23-135 (2023), (mayor’s animus); Cutillo v. City of Malden, 23 MCSR 348 (2010) (police chief’s personal animus.)
That part of the appeal related to the Police Academy vacancy must also be dismissed, but for somewhat different reasons. It appears to be undisputed that the BPD began using acting-out-of-grade appointments almost immediately after the vacancy occurred on August 25, 2025, and did so through November 21, 2025. As the BPD has not provided any evidence that HRD provided approval for emergency appointments beyond 30 days, the Appellant would likely be able to show that the BPD’s use of acting, out-of-grade appointments to fill this position from September 25, 2025 to November 21, 2025 was not permitted by the civil service law or rules. The Appellant has no likelihood of showing, however, that he was aggrieved by this violation. Specifically, if the BPD chose to fill this vacancy, the first step in that process would be to allow other BPD Police Captains the opportunity to express interest in being reassigned to the Police Academy post. A BPD Police Captain vacancy, to be filled from the eligible list, would not actually occur for at least several months later, after all the reassignment dominoes have fallen. Put another way, there is no likelihood that the Appellant would have been promoted to BPD Police Captain prior to the expiration of the eligible list even if the BPD had not utilized acting, out-of-grade appointments for the Police Academy post for more than 30 days.
As the Appellant has no reasonable expectation of showing that the BPD violated the civil service law or rules regarding two of the positions identified by the Appellant, and because he would be unable to show that he was aggrieved by the short-term use of such appointments regarding the Police Academy post, he cannot show that he is an aggrieved person. For those reasons, the Appellant’s appeal under Docket Number E-25-258 is hereby dismissed. [1]
Civil Service Commission
/s/ Christopher Bowman
Christopher C. Bowman
Chair
By vote of the Civil Service Commission (Bowman, Chair; Dooley, Markey and McConney, Commissioners) on December 18, 2025
Either party may file a motion for reconsideration within ten days of receipt of this Commission order or decision. Under the pertinent provisions of the Code of Mass. Regulations, 801 CMR 1.01(7)(l), the motion must identify a clerical or mechanical error in this order or decision or a significant factor the Agency or the Presiding Officer may have overlooked in deciding the case. A motion for reconsideration does not toll the statutorily prescribed thirty-day time limit for seeking judicial review of this Commission order or decision.
Under the provisions of G.L c. 31, § 44, any party aggrieved by this Commission order or decision may initiate proceedings for judicial review under G.L. c. 30A, § 14 in the superior court within thirty (30) days after receipt of this order or decision. Commencement of such proceeding shall not, unless specifically ordered by the court, operate as a stay of this Commission order or decision. After initiating proceedings for judicial review in Superior Court, the plaintiff, or his / her attorney, is required to serve a copy of the summons and complaint upon the Boston office of the Attorney General of the Commonwealth, with a copy to the Civil Service Commission, in the time and in the manner prescribed by Mass. R. Civ. P. 4(d).
Notice to:
James Conley (Appellant)
Joseph McClellan, Esq. (for Respondent)
[1] Nothing in this decision should be construed as sanctioning impermissible acting out of grade promotional appointments. Rather, given the facts of this appeal, including the short-term nature of any violation, the fact that it has been reportedly remedied, and because it would be several months, after internal re-assignments before it is determined what specific Captain position is vacant, the Commission has concluded that this particular Appellant is not aggrieved and/or that the requested remedial relief is not warranted here.
