On January 13, 2026, the Appellant, Paul Cotter (Appellant), a lieutenant in the City of Lynn (City)’s Police Department, filed an appeal with the Civil Service Commission (Commission), arguing that he was aggrieved by the City’s decision to not make promotions to Police Captain from an expiring eligible list upon which the Appellant was ranked first. On March 31, 2026, I held a remote pre-hearing conference which was attended by the Appellant, his counsel, counsel for the City, the City’s Police and the City’s Human Resources Director. The City subsequently filed a Motion for Summary Decision and the Appellant filed an opposition and a Cross Motion for Summary Decision.
Undisputed Facts
- The Appellant was appointed as a police officer by the City’s Police Department in September 2002 and has served in the position of police lieutenant since September 2021.
- In September 2022, the Appellant sat for the statewide promotional examination for police captain administered by the state’s Human Resources Division (HRD).
- HRD canceled and did not score those examinations due to litigation in Tatum et al v. Human Resources Division, Suffolk Sup. Crt. No. 0984CV00576 (2023).
- HRD subsequently administered a revised promotional examination in September 2023 and limited eligibility to those individuals, including the Appellant, who had applied to take the September 2022 (canceled) examination.
- The Appellant received a score of 92 on the September 2023 examination and was ranked second on an eligible list for Lynn Police Captain established by HRD on February 15, 2024.
- As of October 22, 2024, the Appellant was ranked first on the police captain eligible list after the first ranked candidate was promoted to fill a captain vacancy.
- HRD administered the next statewide promotional examination for police lieutenant in September 2025.
- A new eligible list for Lynn Police Captain was established by HRD on January 15, 2026. Lt. Timothy Donovan was ranked first on the new eligible list and the Appellant was ranked sixth.
- On February 2, 2026, the City promoted Donovan, the first ranked candidate on the new eligible list, to police captain.
Parties’ Arguments
The Appellant argues that, driven by personal animus, the City’s Police Chief sought to preclude the Appellant’s promotion to Police Captain by: a) delaying the process to establish an eligible for the next higher position of Deputy Police Chief; b) impermissibly using an acting out-of-grade appointment while the Deputy Police Chief position was vacant; c) failing to fill the Deputy Police Chief vacancy for 31 days after the eligible list for the position was established; and d) finally making the delayed promotion to police captain three weeks after the new police captain eligible list (upon which the Appellant was ranked sixth) was established. Further, in an argument not raised in the initial appeal filed with the Commission, the Appellant argues that the City engaged in the impermissible practice of an acting out-of-grade appointment to fill the Deputy Police Chief position.
The City argues that the Appellant is unable to show that he is aggrieved as the City was not required under civil service law to fill a permanent vacancy from an expiring eligible list; and the Appellant has failed to show or credibly allege that the decision to promote from the new eligible list, upon which the Appellant was ranked sixth, was due to personal animus or bias against him.
Standard for Summary Disposition
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, in whole or in part, via 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 under Mass. R. Civ. P. 56, namely, when no genuine issues of material fact exist, the agency is not required to conduct a meaningless hearing.”); Morehouse v. Weymouth Fire Dep’t, 26 MCSR 176 (2013) (“a party may move for summary decision when . . . there is no genuine issue of fact relating to his or her claim or defense and the party is entitled to prevail as a matter of law”).
Applicable Service Law
Appeals Filed Under Section 2(b)
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.
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” that 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.
To deviate from the rank order of preferred hiring and appoint a person “other than the qualified person whose name appears highest”, an appointing authority must provide written reasons – positive or negative, or both – consistent with basic merit principles, to affirmatively justify bypassing a lower ranked candidate in favor of a more highly ranked one. G.L. c. 31, §§ 1, 27; PAR.08. A person who is bypassed may appeal that decision under G.L. c. 31, § 2(b) for a de novo review by the Commission to determine whether the bypass decision was based on a “reasonably thorough review” of the background and qualifications of the candidates’ fitness to perform the duties of the position and was “reasonably justified”. Police Dep’t of Boston v. Kavaleski, 463 Mass. 680, 688 (2012), citing Massachusetts Ass’n of Minority Law Enforcement Officers v. Abban, 434 Mass. 256, 259 (2001); Brackett v. Civil Service Comm’n, 447 Mass. 233, 543 (2006) and cases cited; Beverly v. Civil Service Comm’n, 78 Mass. App. Ct. 182 (2010); Leominster v. Stratton, 58 Mass. App. Ct. 726, 727-28 (2003).
Section 2(b) Bypass Appeals
Here, the undisputed facts establish that the City did not appoint any candidates ranked below the Appellant, but, rather, appointed a candidate from the newly-established eligible list that was ranked above the Appellant. Thus, as a matter of law, the Appellant’s non-selection is not a bypass and the City was not required to provide written reasons for his non-selection in favor of the higher ranked candidate. Moreover, he does not have a statutory right of appeal to the Commission for a de novo review of the “reasonable justification” sustaining the reasons for selecting the higher ranked candidate.
Section 2(b) Non-Bypass Equity Appeals
As the Appellant filed this appeal as a non-bypass equity appeal, I reviewed whether the Appellant could be deemed an aggrieved person by considering whether it could be shown that the City’s decision not to fill the Police Captain position from an expiring eligible list was tainted by nepotism, favoritism or personal bias and/or was arbitrary and capricious, in violation of “basic merit principles”.
Analysis
A person’s ranking on an eligible list does not create any “vested right” or expectation to receive an appointment or promotion during the life of the eligible list. In Callanan v. Personnel Administrator, 400 Mass. 597, 601 (1987), the plaintiffs, BFD firefighters, claimed that failure of the personnel administrator [HRD] to establish the eligible list for district fire chief deprived them of the opportunity to be considered for promotion to fire lieutenant before the time for expiration of the lieutenant's eligibility list. The delay in creating the district fire chief list had a “ripple effect” and prevented promotions from captains to fire chief, from lieutenants to captain, and hence from fire fighter to fire lieutenant. In rejecting the plaintiffs’ claims, the Supreme Judicial Court stated: “The system the Legislature created, in which eligible lists expire and are replaced by new lists, involves risk that positions might become available immediately after the expiration of an old list – or immediately before the establishment of a new list. . . . [T]he statute does not justify expectations that certain positions will become available during the period of a single list.” See also Brackett v. Civil Service Comm’n, 447 Mass. 233, 252-53 (2006) and cases cited (placement on civil service list is no guarantee of appointment or promotion); Stuart v. Roache, 951 F.2d 446, 455 (1st Cir. 1991), cert. den., 504 U.S. 913 (1992) (“a police officer's expectation of promotion based on that list will not rise to the level of a “property interest” entitled to constitutional protection”); Davis v. Personnel Administrator, 27 Mass. App. Ct. 1113 (Rule 1:28) (citing Callanan), rev. den., 405 Mass. 1202 (1989).
Second, an appointing authority is granted considerable latitude in making decisions as to when, and whether, to fill vacancies. In the absence of arbitrary or capricious behavior, the Commission will not generally intrude. See Mayor of Lawrence v. Kennedy, 57 Mass. App. Ct. 904, 906 (2003); Gillespie et al v. Boston Police Dep’t., 24 MCSR 170 (2011); Mandracchia v. City of Everett, 21 MCSR 307 (2008); Catterall v. City of New Bedford, 20 MCSR 196 (2007). Thus, when it comes to filling a vacancy in a civil service position, an appointing authority is vested with “considerable authority . . . [and] retains the sole power to decide whether to fill vacancies on either a permanent or temporary basis.” City of Somerville v. Somerville Municipal Employee’s Ass’n, 20 Mass. App. Ct. 594, 597, rev. den., 396 Mass. 1102 (1985). See Goldblatt v. Corporation Counsel of Boston, 360 Mass. 660, 666 (1971); O’Toole v. Newton Fire Dep’t, 22 MCSR 563 (2009) (notwithstanding provision in collective bargaining agreement to make “promotions as soon as practicable after a vacancy occurs”, appointing authority “is not required under the civil service law to fill a permanent or a temporary vacancy in a permanent position”).
Third, the Appellant has not shown, or credibly alleged, that this case presents the rare situation, which the Commission does take seriously, in which an appointing authority is motivated by personal animus when making its decision to not to make promotions from an eligible list that will be expiring in the near future. See, e.g., LeDuc v. City of Lawrence, after further investigation, 36 MCSR 233 (2023) (mayor’s animus); Cutillo v. City of Malden, 23 MCSR 348 (2010) (police commissioner’s personal animus). Put another way, the Appellant has no “reasonable expectation” of showing that the City’s decision was anything more than a legitimate management call.
Rather, the Appellant relies on a series of highly speculative assertions and incorrect interpretations of the civil service law and rules to try and show that there was an orchestrated attempt to deny him the opportunity to be promoted. In fact, an objective view of the record shows that the only thing out of the ordinary here was the Appellant’s rather overt attempts to expedite the filling of the higher position of Deputy Police Chief to bring about the domino effect of filling the Police Captain position that would come about as a result.
Both parties agree that an incumbent Deputy Police Chief retired on July 31, 2025. The Appellant’s argument rests largely on the premise that the City, in anticipation of that retirement, was obligated to fill any resulting vacancy immediately—on or shortly after July 31st—and to take proactive steps months in advance to do so. While that may arguably be good management practice, there is nothing in the civil service law or rules that requires such action by a civil service appointing authority in Massachusetts. Anticipating that back-filling the Deputy Police Chief position immediately would have the domino effect of creating a Police Captain vacancy prior to the expiration of the eligible list upon which the Appellant was ranked first, the Appellant took a series of steps to try and get those dominos falling as quickly as possible. As early as February 2025, the Appellant, according to his brief, began what would end up being multiple inquiries to the City, the Police Department, the local union and the state’s Human Resources Division (HRD) to try and expedite the filling of the anticipated Deputy Police Chief vacancy immediately on July 31, 2025 to create a Police Captain vacancy while he was ranked first on the soon-to-be-expiring Police Captain eligible list.
Even if the civil service law or rules set a timeline on whether and when to fill a vacancy, which it does not, the documents submitted by the City dispel any notion that the City was dragging its feet. Approximately 2 ½ months prior to the Deputy Police Chief vacancy arising, the City’s Police Chief, via email, asked the City’s Mayor for authorization to conduct a Deputy Police Chief assessment center. The City reached agreement with a vendor to conduct the Assessment Center on June 17, 2025 and HRD approved a delegation agreement on June 26, 2025. Allowing time for candidates to prepare for the Assessment Center, the exam was administered on November 1, 2025 and an eligible list was established on December 15, 2025. This is not evidence of foot-dragging. In another misunderstanding of the civil service law, the Appellant, in an affidavit accompanying his brief, speculates that the Deputy Police Chief exam date was delayed to November 1st to ensure that four candidates in the next lower title of Captain would be eligible, thus ensuring that the exam was not opened up to additional candidates, including the Appellant. The problem with that speculation is that the civil service law was amended in November 2024 to only require two candidates to register for the examination for it to go forward. Even, however, if that change in the statute had not taken place, scheduling the examination to occur in November, as opposed to October, 2025, does not show evidence of the purported conspiracy that the Appellant has outlined in his voluminous brief and accompanying affidavit.
Again, even though the Appellant was not a candidate for Deputy Police Chief, he continued making inquiries with HRD about the Deputy Police Chief examination, including communication on August 18, 2025, seeking assurance from HRD about the November 1st examination date. Shortly before the establishment of the Deputy Police Chief eligible list on December 15th, the Appellant visited HRD’s offices in person, on December 3rd, seeking assurance from an HRD representative that the Police Captain eligible list remained in effect and that “promotions from a list can typical[ly] be made very quickly by HRD, usually in a day or so once the City of Lynn requests the list.” By any objective standard, this again shows that it was the Appellant, not the City, that was seeking to tip the timeline in his favor to ensure that the lower ranked Captain vacancy would be filled while he remained ranked first on an expiring eligible list.
One day after the Deputy Police Chief eligible list was established, the Appellant met with the Police Chief on December 16, 2025. The Police Chief told him that any promotion to Police Captain would be made from a new eligible list to be established in January 2026, citing the staleness of the existing eligible list, which was limited to candidates deemed eligible to sit for the examination back to September 2022. According to the Appellant’s own affidavit, it was at this point that he developed a belief that the Police Chief had a personal animus for him. I carefully reviewed the years-long chronology set out by the Appellant regarding what he perceives as the basis for the Police Chief’s alleged bias against him. The problem for the Appellant, however, is that, even if the Appellant were able to show that the Police Chief had a personal animus against him, he has no reasonable expectation of showing that the Police Chief orchestrated a campaign to ensure that the Appellant was not promoted to Captain. Rather, as stated above, the Appellant’s argument rests on a series of highly speculative assertions, most related to filling the higher position of Deputy Police Chief; some resting on an incorrect reading of the civil service law and rules; and a chronology of events showing that the Appellant himself was trying to tip the scales in his favor.
Finally, to the extent that it is even relevant to this appeal, which it does not appear to be, there is no evidence that the City violated the civil service law or rules by using an impermissible acting-out-of-grade appointment for Deputy Police Chief. Rather, that can only occur if there is an active eligible list in place for Deputy Police Chief, which there was not. Further, even the Appellant acknowledges that the Deputy Police Chief’s post-retirement contract was limited in scope and did not include performing all of the duties of that position.
Conclusion
For all the above reasons, the City’s Motion for Summary Decision is allowed and the Appellant’s appeal filed under Section 2(b) is hereby dismissed.
CIVIL SERVICE COMMISSION
/s/ Christopher Bowman
Christopher C. Bowman
Chair
By a vote of the Civil Service Commission (Bowman, Chair; Dooley, Markey, McConney and Stein, Commissioners) on July 9, 2026.
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:
Adela Aprodu, Esq. (for Appellant)
John P. Slattery, Esq. (for Respondent)
