Decision  Darmofal and Sniezek v. Town of Fairhaven & HRD 12/18/25

Date:	12/18/2025
Organization:	Civil Service Commission
Docket Number:	G2-24-148 & G2-24-156

• Appearance for Appellant: Joseph G. Donnellan, Esq.
• Appearance for Respondent: Richard Massina, Esq. & Jane Medeiros Friedman, Esq.
• Hearing Officer: Paul M. Stein

The Commission ordered the Town of Fairhaven to rectify its failure to comply with civil service law in appointments and promotions made in the Fairhaven Police Department (FPD) and the Fairhaven Fire Department (FFD) on the Town’s erroneous assumption that it had removed the FPD and FFD from the applicability of Chapter 31.  

Decision on Appellants' Motion for Summary Decision

Background 

On August 28, 2024 and October 7, 2024, respectively, the Appellants, Marc C. Darmofal and Frank M. Sniezek, then employed by the Town of Fairhaven as sworn police officers with the Fairhaven Police Department (FPD), appealed to the Civil Service Commission (Commission), pursuant to G.L. c. 31, § 2(b), from their respective alleged bypasses for promotion to the position of FPD Police Sergeant in or about September 2024. The parties agreed that the appeals involved substantially identical issues of fact and law concerning the Town’s claim that the Commission lacked jurisdiction over the appeal because, prior to the promotions in question, the Fairhaven Town Meeting had voted on an Article on May 6, 2023 seeking to remove both the FPD and the FFD from the civil service system.

By Interim Decision dated May 15, 2025, the Commission determined that the process used by  the Town to purportedly remove the FPD (and the FFD) from the civil service system was flawed and ineffective and all appointments made by the Town to positions in the FPD (and FFD) have been, and remain to this date, subject to the requirements of the civil service law and rules. The Appellants correctly contend that they were unlawfully bypassed in violation of their civil service rights, by their non-selection for promotions to the positions of FPD Sergeant in violation of their civil service rights.

The Commission’s Interim Decision ordered the parties to confer and submit, either separately or jointly, a plan to remediate the violation of the Appellants’ civil service rights occasioned by the Town’s invalid abandonment of the civil service regime, as well as to address what other or additional action, if any, may be required by the Commission to remediate violations of the civil service rights of other FPD and FFD personnel or candidates for appointment affected by the Commission’s May 2025 decision.

Pursuant to the Commission’s Interim Decision, the Town filed the “Respondent’s Plan in Light of Commission’s Interim Decision” on June 13, 2025 and a supplementary email on June 24, 2025; the Appellants filed their “Proposed Interim Remedy  of the Appellants, Marc Darmofal and Frank Sniezek”; and the New England Police Benevolent Association (NEPBA) filed a “Position of the NEPBA Regarding Remedies for Appellants and Impacted Union Members” on July 16, 2025, on behalf of the FPD officers that this union represented.

I also conducted a status conference on June 23, 2025, attended by legal counsel for the Appellants, Fairhaven and the Human Resources Division (HRD), as well as legal counsel for the labor union representing FFD members.

On December 9, 2025, at the request of the Commission, the Town provided an updated report on the status of FPD and FFD hiring and promotions, which included information about the appointed candidates’ backgrounds, prior civil service examination performance, and PAT testing.

Undisputed Facts 

Based on the submissions of the parties and representations of counsel at the June 23, 2025 status conference, the following relevant facts appear to be undisputed:

1. Fairhaven intends to move forward with a town ballot vote proposing that the voters approve a ballot question authorizing the Town to remove all current and future FPD and FFD personnel from the application of civil service law under Chapter 31 of the General Laws.
2. The next opportunity to place such a ballot question before the voters will be the 2026 town election which, pursuant to a warrant article passed at a recent Town Meeting, has been moved from April to the second Tuesday in June 2026.
3. FPD Promotions. After the 2023 town meeting vote that the Commission subsequently declared invalid, Fairhaven promoted the following FPD officers through a non-civil service process:[1]
   1. Promoted to FPD Captain – Scott Gordon - 9/16/24. At the time of this promotion no active eligible list existed for the position of FPD Captain.
   2. Promoted to FPD Lieutenant – Matthew Botelho, Timothy Souza & Kevin Swain. At the time of these promotions an active eligible list existed (established 7/1/22) on which Matthew Botelho was ranked #1, Timothy Souza was ranked #2 and Kevin Swain was ranked #6.  Scott Gordon & Scott Joseph were tied for #3 and Daniel Dorgan was ranked #5. That list expired on 4/30/25, with only one name on the list (Scott Joseph).[2]
   3. Promoted to FPD Sergeant – Janis Guerreiro & Jerome Penha (8/26/24); Jerald Bettencourt & Wayne Mello (9/16/24). At the time of these promotions, an active eligible list existed (established 7/1/22) on which Appellant Marc Darmofal was ranked #1; Appellant Frank Sniezek & Janis Guerreiro were tied for #2; Jerome Penha was ranked #4; Wayne Mello was ranked #7; and Jerald Bettencourt was ranked #9. Three other candidates appeared on the list ranked #5, #6 & tied for #7, respectively. That list has also now expired.
4. FPD Original Appointments. After the 2023 town meeting vote that the Commission has adjudged ineffective in removing the members of the FPD and FFD from civil service, Fairhaven made the following original appointments to the position of FPD Patrol Officer through a non-civil service process:
   1. Appointed on 8/26/24 – Patrick Claflin, Lindsay Halewood, Cooper Howel, Colby Nowicki & Allisen Swisher.  Colby Nowicki has since resigned. The other four appointed candidates all passed a PAT prior to appointment.
   2. Three of the four other appointed candidates took prior civil service examinations for patrol officer within the past three years; all appear qualified for appointment and hiring documents show no indicia that nepotism or undue influence contributed to the decision to appoint them to the FPD.  Patrick Claflin, whose father was a FPD officer,  is the only Fairhaven resident. He last appeared on a civil service list in 2015.
   3. At the time of these original appointments, an active eligible list for FPD Patrol Officer had been established (6/1/24) containing 360 names.  The first twelve names on the list included two 402A candidates (residents of Boston & Weymouth) and ten Fairhaven residents (including one disabled veteran and nine non-veterans), followed by sixteen non-resident disabled veterans and twenty-six non-resident veterans. Allisen Swisher, a non-resident veteran, was ranked #49 on that eligible list. None of the other candidates appointed to Patrol Officer appeared on that list.
   4. The FPD 6/1/24 Patrol Officer eligible list was merged with a new current, eligible list established 6/1/25, which contains 289 names.  The first fifteen names on the current FPD Patrol Officer eligible list include two 402A preference candidates (from Boston & Weymouth) followed by ten Fairhaven residents (the disabled veteran on the 6/1/24 list, four non-veterans on the 6/1/24 list, and five non-veterans not on the 6/1/24 list).
5. FPD Transfer. On March 18, 2024, Michael Wyche transferred from the Cambridge Police Department (a civil service community) to the position of FPD Patrol Officer, through a non-civil service process.
6. FFD Promotions. After the 2023 town meeting vote that the Commission has now determined to have erroneously removed the members of the FPD and FFD from civil service, there was no eligible list for promotion above the rank of FFD Firefighter, and Fairhaven made no promotions above the rank of Firefighter.
7. FFD Original Appointments.  After the 2023 town meeting vote that the Commission has now determined to have erroneously removed the members of the FPD and FFD from civil service, Fairhaven has made seven original appointments to the position of FFD Firefighter through a non-civil service process (Brad Johnson – 9/10/23; Ryan Langlois – 10/15/23; William Oliver – 12/10/23; Wilson Smith – 9/8/24; Charel Bongarzone – 4/27/25; Chase Miranda – 7/13/25; Cody Piche-8/25/25).
   1. Six of the seven candidates originally appointed to the FFD had taken a civil service examination within the past five years. William Oliver had not. All candidates had prior employment experience with an EMS ambulance service. Firefighters Langlois, Miranda and Oliver also had prior employment experience with a fire department.
   2. At the time of these original appointments, an active eligible list for FFD Firefighter had been established and was then active. None of the candidates appointed appeared on the then active eligible list at the time of their respective appointments.
   3. The current eligible list for FFD Firefighter (4/1/24 and merged into the current eligible list established 5/1/25) contains 256 names.  The first fifteen names on the list included three non-resident 402A preference candidates (Boston, Billerica & another unidentified municipality of residence) and ten Fairhaven residents (non-veterans), followed by thirty-one non-resident disabled veterans and eighteen non-resident veterans.

THE PARTIES’ POSITIONS

The Appellants. The Appellants proposed that the appointment to FPD Captain be made provisional and that Fairhaven conduct a civil service examination process for appointment to permanent FPD Captain. They proposed that all others promoted whose names appear on the then active eligible lists for FPD Lieutenant and FPD Sergeant be made permanent in the order in which their names appear on the eligible list; and they further propose that candidate(s) on the eligible list who were not promoted be afforded the opportunity to file a bypass appeal with the Commission.  The Appellants reserved their claims to a full evidentiary hearing in their own pending bypass appeals to the extent necessary to fully remediate the violation of their civil service rights.

Fairhaven.  The Town of Fairhaven proposed that, going forward, all future appointments and promotions in the FPD and FFD will be made in compliance with applicable civil service law until such time as the FPD and FFD are duly removed from Civil Service through a ballot vote at an annual Town election.  In view of the prior procedural flaws, Fairhaven seeks specific confirmation that its proposed further ballot vote, if successful, would meet all civil service requirements  to remove the Town’s police and fire departments from civil service.[3] 

As to original appointments made to date since the 2023 Town Meeting vote, Fairhaven proposed that all FPD firefighters and FPD patrol officers hired to date be granted civil service permanency as of the respective dates of their original appointments. The Town also proposed that the promotions to FPD Captain, Lieutenant and Sergeant also be granted permanent civil service status as of the respective dates of their promotion. As to the Appellants’ pending bypass appeals, Fairhaven proposed that the Appellants be granted “traditional” equitable relief, placing them at the top of all eligible lists until such time as they have been promoted or bypassed. Fairhaven opposed a remedy that would vacate the FPD Sergeant promotions of candidates ranked below the Appellants.

Police Union. NEPBA proposed that the original appointments to FPD Patrol Officer and promotions to FPD Captain, Lieutenant and Sergeant be made permanent civil service appointments and/or promotions, respectively, as of the date of the appointment or promotion.  As to the Appellants, NEBPA proposed:

• Mr. Darmofal be immediately promoted to the rank of Sergeant, made whole for any and all lost wages and benefits, and have his civil service seniority retroactively recognized as of August 26, 2024, the date on which he would have been promoted had the Town complied with civil service law.
• Mr. Sniezek shall be automatically and immediately promoted to Sergeant upon the next Sergeant vacancy that the Town elects to fill. His promotion shall not be subject to further examination, selection process, or discretionary review.
• If the Town’s Police Department remains under MGL c. 31, MA civil service, at the time of the very next Sergeant vacancy, he may not be bypassed for any reason.
• If, at the time of the next Sergeant vacancy, the Town has lawfully withdrawn from civil service and such withdrawal has been formally recognized by the Civil Service Commission, any applicable collective bargaining provisions may not be used to delay or deny Mr. Sniezek’s promotion.
• Upon promotion, his civil service seniority shall be retroactively dated to August 26, 2024.
• Both Appellants shall be reimbursed for any documented costs incurred in preparing for or taking the most recent civil service promotional exam, including exam fees and study materials.
• Both Appellants shall be reimbursed for attorney fees/costs in accordance with M.G.L. c. 31, §§2(3) and 45.

Fire Union. The collective bargaining union representing FFD firefighters did not file a written remedial plan.  Legal counsel advocated at the 6/23/25 status conference that all FFD firefighters hired after the 2023 Town Meeting vote and who are currently represented by the union be granted civil service permanency as of the dates of their respective original appointments.  The union took no position on the relief, if any, that non-union members on the current or prior FFD Firefighter eligible lists be granted.

HRD.  At the 6/23/25 status conference, HRD confirmed that it concurs with the Commission that the FPD and FFD had not been properly removed from civil service by the 2023 Town Meeting vote and all original appointments and promotions in the FPD and FFD remained at all times, and currently remain, subject to civil service law.  HRD confirmed that it would abide by the Commission’s Interim Decision and any further decision regarding the relief that would be granted to the Appellants; to FPD Patrol Officers and FFD Firefighters originally appointed; and to the FPD Captain, FPD Lieutenants and FPD Sergeants promoted to date.

APPLICABLE LAW

The Commission has been granted broad discretionary equitable powers to remediate violations of the civil service law.

• Section 2(b) of Chapter 31 authorizes the Commission to “hear and decide appeals by a person aggrieved by any decision, action, or failure to act by the administrator” [meaning HRD and (per G.L. c. 31, § 2(c)) any appointing authority to whom HRD has delegated its responsibilities, including, specifically, appointments and promotions to civil service positions].
• Chapter 310 of the Acts of 1993 (entitled “An Act Providing for the Protection or Restoration of the Rights of Certain Public Employees”) provides: “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.”
• Section 73 of Chapter 31, as amended by Chapter 238, Section 159 of the Acts of 2024, provides: “If, in the opinion of the commission or the administrator, a person is appointed or employed in a civil service position in violation of the civil service law and rules, the commission or the administrator shall mail a written notice of such violation . . . [to] the treasurer, auditor or other officer whose duty it is to pay the salary or compensation of such person[.] . . . The payment of any salary or compensation to such person shall cease at the expiration of one week after the filing of such written notice . . . .”
• Section 77 of Chapter 31, as amended by Chapter 238, Section 162 of the Acts of 2024, provides: “The [civil service] commission or the administrator [HRD] may take any necessary and appropriate action to enforce the civil service law and rules.”

The Commission has applied this authority to enforce the civil service law and to correct violations thereof on a case-specific basis, with relief tailored as necessary to remediate the rights of persons aggrieved by violation of civil service law. The Town of Fairhaven correctly asserts that the “traditional” equitable relief granted when an appellant is “bypassed” without reasonable justification for appointment or promotion is to order that the bypassed candidate be placed at the top of the current and future civil service certifications and to receive at least one future opportunity to be considered for appointment or promotion, but not to disturb the civil service status of the lower-ranked persons. See, e.g., White v. Town of Plymouth, 37 MCSR 201 (2024);  Brisson v. Town of Auburn, 36 MSCR 270 (2023); Foote v. City of Brockton, 36 MCSR 107 (2023); Marchionda v Boston Police Dep’t, 35 MCSR 72 (2022); Souza v. Town of Stoneham, 34 MCSR  413 (2021).

The Commission, however, is not limited to “traditional” relief and, in an appropriate case, has the authority to order other tailored relief, including orders that appointments and promotions be vacated, that eligible lists be revived, and that other equitable relief (including monetary compensation) be ordered when deemed necessary in the exercise of the Commission’s sound discretion to remediate the violation of civil service law and make an aggrieved party whole. See generally Mulhern v. Civ. Serv. Comm'n, 57 Mass. App. Ct. 920, 920 (2003) (“The remedy to be accorded a plaintiff is a matter within the commission's discretion and will rarely be overturned.”), citing Bielawski v. Personnel Administrator, 422 Mass. 459, 464 n.11, 465 (1996); Hester v. Civil Service Comm’n, 78 Mass. App. Ct. 1109 (2010) (unpublished) (denial of request to convert a “provisional” appointment to “permanent” is within the Commission’s discretion). 

For example, in a case similar to the facts here, the Commission recently ordered Chapter 310 relief to grant civil service permanency to two East Bridgewater police officers who had been hired in violation of civil service law on the mistaken assumption that a pending home rule petition seeking to exempt the town from civil service law excused such compliance. In re: Request for Relief Filed by the Town of East Bridgewater, 37 MCSR 272 (2024). In granting the requested equitable relief, the Commission noted that the two officers had appeared on the then-active civil service eligible list and each had previously served as a police officer.  Importantly, however, in order to provide relief to those individuals who were aggrieved by the Town’s actions, the Town agreed that:

. . . its next two appointments of fulltime, permanent police officer will be made from names on the eligible list or reserve roster in place at the time of the appointments of [those individuals whose names did not appear on the civil service eligible list] in compliance with all other civil service law and rules and any candidate bypassed for appointment for these two vacancies shall be entitled to bypass appeal rights and remedies, regardless of whether the Town successfully opts out of the civil service system, either through adoption of a home rule petition or by any other means.[4]

See also Chuilli v. Town of Bridgewater,  38 MCSR xxx (2025), further decision, 38 MCSR xxx (2025) (ordering retroactive appointment and back pay, converting prior appointees’ status to “temporary”); Allender v. City of Amesbury, 37 MCSR 247 (2024), final decision, 37 MCSR 359 (2024), revised, 38 MCSR xxx  (2025) (vacating prior appointment and conditioning future permanent promotional appointments on outcome of another bypass appeal opportunity); Guindon v. Department of Correction, 37 MCSR 255 (2024) (future consideration must use different medical evaluator); Estrella v. City of Brockton, 37 MCSR 47 (2024) (ordered future hiring cycles comply with civil service law and provide additional safeguards to assure objective assessment of candidates’ abilities beyond personality traits); Neenan v. City of Quincy, 36 MCSR 263 (2023) (conditioning future appointment as “temporary” pending outcome of another bypass appeal opportunity); Fairchild v.  City of Somerville, 35 MCSR 229 (2022), on reconsideration, 35 MCSR 295 (2022) (conditioning future appointment as “temporary” pending outcome of another bypass appeal opportunity); Wallace v. Town of Saugus, 35 MCSR 215 (2022), clarification, 35 MCSR 278 (2022) (requiring recusal of fire chief from future hiring involving appellant and conditioning future appointment as “temporary” pending outcome of future bypass); Blanchette v. City of Methuen, 34 MCSR 431 (2021)  (ordering promotion of candidate with retroactive pay from date of impermissible bypass).

ANALYSIS

The present unnecessary and prolonged uncertainty for dozens of Fairhaven public safety employes and candidates for those positions presented in this appeal could have been averted if the Town, rather than setting in motion, unbeknownst to HRD or the Commission, a series of unauthorized personnel actions, had simply reached out and sought prior clarification regarding the proper method for releasing its public safety agencies from G.L. c. 31 requirements. The Town's failure to do so had left many thorny problems that now must be addressed.

I am mindful of the consequential nature that any attempt to unravel the mistakes of Town officials will have on the careers of incumbent employees and candidates for those positions.  While, given the passage of time, there is no perfect solution to address this predicament, I have sought to balance the interests of those who have been aggrieved by the Town’s missteps with those who were impermissibly appointed or promoted outside the civil service law or rules through no fault of their own. Specifically, I have considered the rights and interests of all those persons affected: (1) the relief to be granted to the two named appellants who were unlawfully deprived of the opportunity for promotion to FPD Sergeant and who filed appeals with the Commission; (2) the relief, if any, to be granted to other incumbents promoted improperly without regard to civil service processes (and whose seniority in title may now be called into question); (3) the civil service status, if any, to be granted to FPD patrol officers and FFD firefighters hired improperly outside the civil service process;  (4) the relief, if any, to be granted to candidates for original appointment and promotion to positions with the FPD and FFD whose names appeared on civil service eligible lists in effect at the time that appointments and promotions were made by a non-civil service process rather than from such eligible lists as required by civil service law; and (5) what prospective order, if any, should issue to govern future appointments and promotions of FPD and FFD personnel (and the duration of any such order).

In reaching a conclusion regarding appropriate relief, I am guided by three core principles: (1) to the extent practicable, all aggrieved persons should be made whole for any violation of G.L. c. 31; (2) the public interest is best served by uninterrupted service of all qualified personnel currently employed by the FPD and FFD; and (3) Town officials ought to be given a final opportunity to take full ownership of the problems largely of their own making and show a good faith willingness to "think outside the box"  to bring about  the best solution that serves all those concerned.

 After considering the proposals of all the interested stakeholders and guided by the above principles, I recommend the following relief and orders:

1. Within 45 days of the issuance of this Decision, the Town shall initiate a new selection process related to the promotional appointments of the two police sergeants who were promoted without conforming to the civil service law and rules. Specifically, the promotional appointment of Officer Penha, ranked fourth on the existing civil service eligible list, below Darmofal and Sniezek, was made without regard to these civil service rankings and with no notification of bypass reasons and rights of appeal to Darmofal and Sniezek.  Officer Bettencourt’s promotional appointment was even more problematic, as he was ranked ninth on the eligible list, outside the so-called 2N+1 formula.  (The promotional appointment to sergeant of Officer Guerrero, would have been permissible and would not have triggered bypass appeal rights, given that she was tied for second on the eligible list for sergeant.)     The Town’s final decision regarding these promotional appointments, and notification of any bypass reasons, if applicable, must be made within 90 days of the issuance of this Decision.   Should the parties reach an alternative mutual agreement (between themselves) that provides appropriate equitable relief to the aggrieved Appellants, the Commission will accept a motion to reconsider the Town’s request to grant civil service permanency in the position of police sergeant to the  four sergeant incumbents (Guerrero, Pena, Mello and Bettencourt); and rescind its order to re-do the promotional appointment process.  To ensure clarity, a good starting point for discussion for a private agreement would be a variation of the proposal put forth by NEPBA as part of these proceedings.  I am mindful that this course of action (a private agreement between the parties followed by a motion for reconsideration to grant permanency to the incumbents) may not provide relief to the candidates who were ranked fifth, sixth and seventh on the eligible list for police sergeant.  This, unfortunately, is driven by the inability to find a perfect solution given the passage of time and in consideration that those candidates opted not to file an appeal with the Commission.
2. The promotions of Botelho, Souza and Swain to police lieutenant shall be deemed permanent promotions as of the date of the promotions.  In recommending this relief, I considered that all of these candidates were on the existing eligible list at the time, that they were within the statutory 2N+1 formula and that the one candidate (Joseph) who was potentially bypassed did not file an appeal with the Commission.    
3. The promotion of Scott Gordon as Police Captain, when no eligible list was in place shall be deemed a provisional promotion.  Permanency in that position shall only be obtained if the Town complies with civil service law and rules by conducting an examination (which could consist of assessment center exercises), establishing an eligible list, and making promotional appointments from candidates on a certification from that eligible list within the statutory 2N+1 formula.  I considered that a more equitable resolution regarding this position, one that would provide a potential for promotion to other candidates, would be a Commission order mandating the administration of a promotional examination for Police Captain, followed by the creation of an eligible list and certification and review process.  Reality, and the calendar, however, dictate a more practicable path forward.  Given that the Town may be on the cusp of removing its Police Department from civil service in June, this series of events is not practical.  Further, I considered that no eligible list was in place at the time and the relief here does not grant Captain Gordon civil service permanency in the position of Police Captain.  Finally, if the Town opts to remain in civil service during the June 2026 election, nothing prohibits the Commission from issuing orders requiring the Town to end the use of provisional appointments in their Police Department.
4. As to the FPD patrol officers and FFD firefighters who were appointed without regard to the civil service law and rules, those appointments shall be deemed provisional appointments 45 days from the issuance of this decision.  Should the Town, within 45 days, agree to provide relief to those candidates whose names appeared on the civil service eligible list at the time of appointment, and who were unlawfully excluded from consideration, the Commission will accept a motion for reconsideration seeking to deem the incumbent fire fighters and police officers as permanent civil service employees.  I did consider whether granting civil service permanency to these police officers and firefighters, without condition, was appropriate.  However, I have concluded that it would be fundamentally unfair to grant civil service permanency to these individuals unless and until those candidates on the civil service eligible list at the time, who should have been considered for those positions,  are given a fair opportunity for consideration on a going forward basis.    The fix here is not complicated.  The Town simply needs to agree, as part of a motion for reconsideration, to provide those candidates on the eligible list with the same relief that the Town of East Bridgewater agreed to when facing a similar predicament.  Finally, regardless of what path the Town pursues here, the Town, in conjunction, with HRD, is hereby ordered to provide a copy of this Decision to any potentially impacted individual whose name appeared on the eligible list in place for Fairhaven Police Officer at the time of the impermissible police officer appointments.
5. Regarding the Patrol Officer who transferred from the Cambridge Police Department to the FPD, the Town shall, forthwith, but no later than 45 days from the issuance of this Decision, follow all civil service law and rules under Section 35 of Chapter 31 as it relates to transfers to effectuate a proper transfer.   No civil service permanency in Fairhaven shall be recognized for this officer until such time as the Town has complied with the civil service law and rules.  Should the Town provide appropriate relief to those candidates referenced in Paragraph 3, the Commission would accept a motion for reconsideration  to allow this transfer and the assignment of a civil service seniority date in Fairhaven notwithstanding the provisions of Section 35 of Chapter 31

REMOVAL FROM CIVIL SERVICE

As the Commission determined in its May 15, 2025 Interim Decision, the procedure by which the Town of Fairhaven may properly remove positions in the FPD and FFD from civil service must be either (1) a Town ballot vote; or (2) a Special Act of the legislature.  The Commission has considered the Town’s concern that the original 1953 ballot language was defective in that it specified that the Town was voting to accept Section 47 of Chapter 31 as then in effect (covering all official and labor service civil service positions) and did not mention the acceptance of Section 48 (relating specifically to police and fire departments).  The Town appears concerned that, if the failure to specify Section 48 rendered the 1953 ballot vote defective, the only option for removal from civil service would be a special act of the legislature.

In the May 15, 2025 Interim Decision, the Commission carefully reviewed the 1953 ballot process and the applicable provisions of civil service law in effect at the time of the 1953 ballot vote and 1954 special act. After further review, the Commission’s opinion remains unchanged that the Town may lawfully remove the FPD and FFD from civil service EITHER by a town ballot vote OR via a special act.

The 1953 ballot question unambiguously accepted the provisions of civil service for all official service and labor service positions and the 1954 special act was, as the Commission determined, merely intended to clarify the status of call firefighters, but not to replace the 1953 ballot vote as the triggering event for accepting the civil service law for the town’s employees.  The Town did subsequently treat official service and labor service positions other than fire and police as subject to civil service law.[5] So it does not seem that, at the time, the intent was to accept civil service law for the police and fire department only, in which case reference to Section 48 rather than Section 47 might have been more appropriate. Accordingly, should the Town proceed to place a question on the ballot at the next town election to remove the FPD and FFD from civil service and should the question pass by a majority vote, that action will suffice to remove the FPD and FFD from civil service, subject to any grandfathered rights of then tenured civil service employees  or any further orders that may be made by the Commission upon the submission of a motion for reconsideration within 45 days of this Decision.  To ensure clarity regarding the global “grandfathering” protections afforded under civil service law to incumbent civil service employees, I summarize the Commission’s prior observations (see Keaveney v. Town of Brookline, 37 MCSR 307 (2024)) about how limited those protections are:

• An employee serving in a probationary period at the time a position is removed from civil service shall never gain civil service permanency in the Town position that has been removed from civil service.
• No incumbent employee (or candidate for appointment) may contest a non-selection for appointment or promotion to the Civil Service Commission.
• No incumbent employee promoted to a higher position after the position has been removed from civil service shall maintain any civil service protections in that higher position.
• No incumbent employee may transfer to a civil service community under the provisions of Section 35 of the civil service law.
• Any reinstatement or re-employment rights of incumbent employees after layoff or resignation are limited to the Town only and do not extend to the placement on any statewide re-employment lists for the same or similar positions in civil service departments.

CONCLUSION

For the reasons stated above, and in the Commission’s May 15, 2025 Interim Decision, pursuant to the authority granted under Sections 2(b)  and 77 of Chapter 31 and Chapter 310 of the Acts of 1993, the appeals of the Appellants, Mark C. Darmofal and Frank M. Sniezek, Docket Nos. G2-24-146 & G2-24-1576 are hereby allowed in part.

Civil Service Commission

/s/Paul M. Stein   

Paul M. Stein
Commissioner

By vote of the Civil Service Commission (Bowman, Chair; Dooley, Markey, McConney, and Stein Commissioners) on December 18, 2025, the Commission voted to accept all of the recommendations of the Presiding Officer and hereby orders such actions and relief as herein recommended. 

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:
Joseph G. Donnellan, Esq.  (for Appellant)
Richard Massina, Esq. (for Respondent)
Jane Medeiros Friedman, Esq. (for Respondent)
Hailey Ferguson, Esq. (for FFD Union)
Thomas E. Horgan, Esq. (for FPD Union)
Sheila M. Gallagher, Esq. (for HRD)

[1] On August 6, 2024, the position of FPD Police Chief was filled by promotion of then FPD Sergeant Daniel Dorgan in compliance with civil service law from the active eligible list established on 8/1/23.  See Botelho v. Town of Fairhaven, 38 MCSR --- (2025).

[2] As noted, Scott Gordon had been promoted to FPD Captain and Daniel Dorgan had been promoted to Police Chief.

[3]The Town noted at the 6/23/25 Status Conference that the initial 1953 ballot vote that the Commission found was the trigger for placing Fairhaven’s FPD and FFD into civil service “only accepted Section 47 but not Section 48 of Chapter 31” as it appeared at that time.

[4] The East Bridgewater decision is distinguished from those situations in which, absent an agreement or relief provided in a home rule petition or under separate statute, the Commission has determined that its jurisdiction is limited to enforcing the “grandfathered” rights of civil service employees under G.L. c. 4, § 4B, once a municipality has properly removed itself from the purview of civil service law.  See Keaveney v. Town of Brookline, 37 MCSR 307 (2024) (pending judicial review); In re: Request for Investigation Against the Town of Franklin, 28 MCSR 296 (2015).

[5] For example, the Commission notes that the Town’s subsequent actions to remove other official and labor service positions from civil service confirms that the Town understood that those positions had been placed into civil service. The civil service status of any such positions, other than those in the FPD and FFD, is not before the Commission and the Commission does not intend that anything in this Decision raise any issues regarding such other positions.