Decision  Espino, David v. Boston Police Department 3/5/26

Date:	03/05/2026
Organization:	Civil Service Commission
Docket Number:	G1-25-195

• Appearance for Appellant: Gary G. Pelletier, Esq.
• Appearance for Respondent: Omar Bennani, Esq.
• Hearing Officer: Shawn C. Dooley

The Commission allowed the Appellant’s bypass appeal for original appointment as a Boston police officer as the Boston Police Department failed to establish by a preponderance of the evidence that judgment and conduct issues prevented the Appellant from meeting the high standards required of police officers.

Decision

Cayla Kwok, intern for the Civil Service Commission, assisted in the drafting of this decision.

On August 20, 2025, the Appellant, David Espino (Appellant), pursuant to G.L. c. 31, § 2(b), filed an appeal with the Civil Service Commission (Commission), contesting the decision of the Boston Police Department (Department) to bypass him for original appointment to the position of permanent, full-time police officer. The Commission held a remote pre-hearing conference on September 23, 2025. On December 9, 2025, I conducted the full hearing in-person at the offices of the Commission, located at 100 Cambridge Street, Boston, MA. The hearing was recorded via the Webex[1] platform and both parties received a link to access the recording. Both parties filed proposed decisions. For the reasons set forth below, the Appellant’s appeal is allowed.

FINDINGS OF FACT

The Respondent entered eight exhibits (Res. Ex. 1-8)[2] and the Appellant did not submit any exhibits. Based on the exhibits entered into evidence and the testimony of the following witnesses:

Called by the Department:

• Natasha Gumbs-Levarity, Director of HR
• Det. Joel Resil, Recruit Investigations Unit

Called by the Appellant:

• David Espino, Appellant

and taking administrative notice of all matters filed in the case, pertinent law and reasonable inferences from the credible evidence, a preponderance of evidence establishes the following facts:

1. The Appellant is a 36-year-old Hispanic male who was raised in Quincy, Massachusetts. He graduated from a local high school in 2009. (Testimony of Appellant)
2. The Appellant is married and has three children. (Testimony of Appellant)
3. After graduating from high school, the Appellant trained in mixed martial arts and fought professionally for eight years. (Testimony of Appellant)
4. The Appellant joined the United States Army but was discharged early from his commitment due to needing to return home on account of the death of his brother.  (Testimony of Appellant)
5. The Appellant worked as a maintenance worker at two different health care facilities. He currently works as a kick boxing instructor and serves full-time as a Public Safety Officer for the Boston Public Health Commission.[3] (Testimony of Appellant)
6. The Appellant’s brother (now deceased) and his mother’s live-in boyfriend, who was a father figure to the Appellant, were both dependent on drugs. (Testimony of Appellant)
7. In 2004, when the Appellant was a freshman in high school, a large-scale fight broke out at the school. He was named as a participant and sent a summons after the fact. The Appellant was charged as a juvenile in the Quincy Juvenile Court for assault with a dangerous weapon (shod foot). He argued that it was a case of mistaken identity as he was not a participant in the brawl.  He was found not guilty after a jury trial. (Testimony of Appellant)
8. In 2007, the Appellant, while he was a senior in high school, was sitting in a parked car with three other teenagers in a Quincy apartment building parking lot and he was approached by a police officer. The officer stated that he smelled marijuana, took the teenagers’ information, and told them to leave the parking area. The Appellant was not using marijuana and was not arrested or cited for this incident. In an incident report regarding this matter, the police named the Appellant as being a passenger in the car and stated that he put out a blunt when the officer approached the car, which the Appellant denies. (Res. Ex. 2; Testimony of Appellant)
9. In 2007, the Appellant witnessed his mother’s live-in boyfriend displaying signs that indicated that he had overdosed. The Appellant called 911 for assistance. While waiting for Emergency Medical Services to arrive, he pulled a needle from the victim’s leg and performed CPR. (Res. Ex 3, Testimony of Appellant)
10. Also in 2007, the Appellant was inside a motor vehicle stopped by officers. The driver of the vehicle was arrested for Operating a M/V without a License, but the Appellant and the other passengers were released without charges. (Res. Ex. 1 and 2)
11. The Appellant is listed in a 2011 incident report and was driving a motor vehicle with a passenger who was stopped by the Quincy Police Department Drug Control Unit. The passenger had purchased Oxycodone from a location under surveillance and was issued a summons for Possession of Class B. The Appellant was released with no charges and submitted a written explanation about the incident. The explanation expressed that the Appellant was unaware his friend was carrying anything illegal and was transparent when police officers pulled the motor vehicle over. He explained that he had no intention of engaging in unlawful or criminal activity. (Res. Ex. 1 and 4)
12. In 2015, the Appellant went to a motorcycle repair shop in Brockton to pick up his motorcycle which they had finished repairing. When the Appellant arrived, he began speaking with two employees before taking possession of his motorcycle and observed that they were exhibiting signs that they could be having an overdose (falling asleep while talking). Upon realizing this, he called 911. (Res. Ex. 5, Testimony of Appellant)
13. Appellant stated that he knew one of the employees and not the other. He stated that he was unaware that the employee he did know was a drug user. He stated that he did not witness any drugs at the scene nor did he witness either of them doing any drugs. (Testimony of Appellant)
14. Both men were revived by first responders when they arrived on scene. One of the victims stated that they had snorted Percocet. (Res. Ex. 5)
15. In 2019, the Appellant received a call from a friend that he played high school football with and asked if they could meet up and talk.  Appellant stated that they had not spent time together since high school. (Testimony of Appellant)
16. The friend said that he wanted to meet up to discuss getting involved with MMA, boxing, Ju Jitsu training etc. so they agreed to meet up and chat.  (Testimony of Appellant)
17. The two of them went to Avalon Beach in Quincy in the appellant’s car to talk. He knew that the friend had used drugs in the past but was under the impression that he had completed a treatment program and cleaned his life up.  (Testimony of Appellant)
18. The Appellant stated that the friend appeared clean, well dressed and groomed. While he did not use any substances in his presence, shortly after they arrived at the beach, he started displaying signs of a drug overdose – going in and out of consciousness with labored breathing. (Testimony of Appellant, Res. Ex. 6)
19. Knowing his friend had previously had a drug issue, the Appellant called 911 as he suspected he was overdosing. He then helped him onto his side to monitor him while he waited for the ambulance to arrive. After the first responders arrived, the friend was given three doses of Narcan before responding. He vomited and then walked to the ambulance where he was transported to Quincy Medical Center. (Testimony of Appellant, Res. Ex. 1 and 6)
20. Officers responding to the scene stated there were no drugs or paraphernalia found inside the Appellant’s motor vehicle. (Res. Ex. 6)
21. The Appellant has no criminal convictions on his record. (Testimony of Appellant)
22. On March 16, 2024, the Appellant took the civil service examination for police officer and received a score of 87. (Stipulated Fact)
23. On June 1, 2024, the Appellant’s name was placed on an eligible list of candidates established by the state’s Human Resources Division (HRD) for Boston Police Officer. The Appellant was ranked 90th among those willing to accept appointment. (Stipulated Fact)
24. On June 28, 2024, HRD issued Certification #09999 to the Department to fill vacancies from the top candidates willing to accept employment. (Stipulated Facts)
25. The Department sent conditional offers for the position of Boston Police Officer to 49 candidates ranked below the Appellant on the certification. (Stipulated Facts)
26. The Recruit Investigations Unit assigned Det. Joel Resil to conduct a background investigation on the Appellant. (Testimony of Resil)
27. On January 23, 2025, Det. Resil submitted a “Privileged and Confidential Memorandum” (PCM), containing the results of his investigation. The PCM included the Appellant’s driving history, police reports, neighbor and supervisor forms, and additional information. (Res. Ex. 1)
28. The references that were cited regarding the Appellant’s job history were “exemplary” as to job performance and stated that he “got along well with his co-workers and supervisors” and that he had no conduct issues or complaints. All other references were positive. (Res. Ex. 1)
29. The PCM listed all of the above-referenced instances in which the Appellant’s name was referenced in a police report.  (Res. Ex. 1)
30. Det. Resil also reviewed a background file on the Appellant from the Emerson College Police Department (ECPD). Det. Resil reported that this file expressed concern with the applicant’s failure to mention police interactions and juvenile court cases on the Peace Officer Standards and Training (POST) Questionnaire and the ECPD Employment Questionnaire. These findings led to ECPD’s concerns about the Appellant’s integrity and truthfulness. (Res. Ex. 1)

The Department’s Decision to Bypass

31. The Department convened a roundtable comprised of representatives from Human Resources (HR), the Legal Department, and the Internal Affairs Department (IAD) to review the Appellant’s candidacy for the position of permanent full-time police officer. Director Natasha Levarity (Ms. Levarity) served as the HR representative at the roundtable. The HR and IAD representatives are the only voting members of the roundtable. (Testimony of Levarity)
32. Members of the roundtable considered the PCM that Det. Resil submitted and they were concerned about the large number of incidents where the Appellant was in the presence of people overdosing and believed that the sheer volume of incidents established a concerning pattern. The roundtable members concluded that the Appellant’s inability to remove himself from situations where people were using drugs and overdosing showed poor judgment on his behalf. (Testimony of Levarity)
33. The members of the roundtable also considered Det. Resil’s description of the ECPD application discrepancies. The roundtable representatives did not review the ECPD form or the Appellant’s application. (Testimony of Levarity)
34. The Department did not conduct a discretionary interview with the Appellant. (Testimony of Levarity)
35. Ms. Levarity informed the Appellant of the Department’s decision in a July 9, 2025, letter, enclosing his appeal rights. The letter referenced concerns with the Appellant’s conduct and judgment as reasons for the bypass stating:

• You were listed in a Quincy Police Department incident report on 08/04/2019 in which you called 911 for assistance for a friend who was overdosing inside of your vehicle.
• You were listed in a Brockton Police Department Incident Report on 08/15/2015, in which you contacted 911 for assistance for friends who had overdosed.
• You were listed in a Quincy Police Department Incident Report on 06/29/2011, as an “other person” operating a motor vehicle containing a passenger who was stopped by the Quincy Police Department Drug Control Unit. That passenger had purchased Oxycodone from a location under surveillance and was subsequently issued a summons for Possession of Class B. You were released with no charges.
• You were listed in a Quincy Police Department incident report on 12/26/07 where you were named as a witness to an overdose at your residence. According to the report, you located the victim in the bedroom and took a needle out of the victim’s leg and tried to wake him up.
• You were named in a Quincy Police Department incident report of 05/26/2007 as an “other person” in a vehicle stopped by officers in which the other occupants were smoking marijuana. According to the report, you were the front passenger and were observed “putting out a marijuana blunt with his fingers” upon the officer’s approach. The driver was arrested for operating a motor vehicle without a license. You, along with the other passengers, were released.

(Res. Ex. 7)

36. The letter continued that:

[Y]ou were previously bypassed for employment with the Emerson College Police Department. Detectives from the Boston Police Recruit Investigations Unit reached out to the Investigators at Emerson College Police Department. The Investigator found several inconsistencies in your answers on the POST Questionnaire and the ECPD Questionnaire. It was noted that there were several omissions, raising concerns about “questionable integrity issues” and overall truthfulness.

Some of these omissions include but are not limited to:

• Answering “no” to a question on the ECPD Questionnaire about being in the presence of someone who was using/possessing illegal drugs.
• Answering “no” to a question on the ECPD Questionnaire about whether or not you had ever been detained by police.
• Answering “no” to Question 17 on the POST Questionnaire regarding whether or not police were ever called to your residence.

(Res. Ex. 7)

37. On August 8, 2025, the Appellant filed an appeal with the Commission. (Stipulated Fact)

LEGAL STANDARD

The core mission of Massachusetts civil service law is to enforce “basic merit principles” for “recruiting, selecting and advancing of employees on the basis of their relative ability, knowledge and skills” 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; See, e.g., Massachusetts Ass’n of Minority Law Enforcement Officers v. Abban, 434 Mass. 256, 259 (2001); MacHenry v. Civil Serv. Comm’n, 40 Mass. App. Ct. 632, 635 (1995), rev. den., 423 Mass. 1106 (1996); See also Brookline v. Alston, 487 Mass. 278 (2021) (analyzing broad scope of the Commission’s jurisdiction to enforce basic merit principles under civil service law). The role of the Civil Service Commission in a bypass appeal is to determine whether “on the basis of the evidence before it, the appointing authority has sustained its burden of proving that there was reasonable justification for the action taken by appointing authority.” Cambridge v. Civil Serv. Comm’n, 43 Mass. App. Ct. 300, 304 (1997).  See Watertown v. Arria, 16 Mass. App. Ct. 331 (1983); McIsaac v. Civil Serv. Comm’n, 38 Mass. App. Ct. 411 (2000); Police Dep’t of Boston v. Collins, 48 Mass. App. Ct. 411 (2000); Leominster v. Stratton, 58 Mass. App. Ct. 726, 728 (2003).

Original appointments of civil service employees are made from a list of candidates, called a “certification,” whose names are drawn in the order in which they appear on the civil service “eligible list,” using what is called the 2n+1 formula. G.L. c. 31, §§ 6 – 11; 16 – 27; Personnel Administration Rules, PAR.09.  An appointing authority must provide specific written reasons, consistent with basic merit principles, when choosing to bypass a higher- ranked candidate in favor of a lower-ranked one.  G.L. c. 31, § 27; PAR.08(4).

In its review of bypass decisions, the Commission must determine whether the appointing authority has shown, by a preponderance of the evidence, that it had “reasonable justification” for the bypass, after conducting an “impartial and reasonably thorough review” of the relevant background and qualifications bearing on the candidate’s present fitness to perform the duties of the position. Boston Police Dep’t v. Civil Serv. Comm’n, 483 Mass. 461, 474-78 (2019); Police Dep’t of Boston v. Kavaleski, 463 Mass. 680, 688-89 (2012); Beverly v. Civil Serv. Comm’n, 78 Mass. App. Ct. 182, 187 (2010); Leominster v. Stratton, 58 Mass. App. Ct. at 727-28.  A decision to bypass a candidate is justified when it is “done upon adequate reasons sufficiently supported by credible evidence, when weighed by an unprejudiced mind, guided by common sense and by correct rules of law.” Cambridge, 43 Mass. App. Ct. at 304, quoting Selectmen of Wakefield v. Judge of First Dist. Court of Eastern Middlesex, 262 Mass. 477, 482 (1928); Commissioners of Civil Serv. v. Municipal Court of the City of Boston, 359 Mass. 211, 214 (1971).  The Appeals Court’s Cambridge decision further states:  “In the task of selecting employees of skill and integrity, appointing authorities are invested with broad discretion.” Id. at 304.

The Commission’s role, while important, is relatively narrow in scope: reviewing the legitimacy and reasonableness of the appointing authority’s actions. Falmouth v. Civil Serv. Comm’n, 447 Mass. 814, 824-26 (2006). The issue for the Commission is “not whether it would have acted as the appointing authority had acted, but whether, on the facts found by the Commission, there was reasonable justification for the action taken by the appointing authority in the circumstances found by the Commission to have existed when the appointing authority made its decision.” Arria, 16 Mass. App. Ct. at 334. See also Commissioners of Civil Serv. v. Municipal Ct. of Boston, 369 Mass. 84, 86 (1975) and Leominster v. Stratton, 58 Mass. App. Ct. at 727-28.  The Commission owes substantial deference to the appointing authority's exercise of judgment in determining whether there was “reasonable justification” shown. Beverly v. Civil Serv. Comm’n, 78 Mass. App. Ct. at 188. That “deference is especially appropriate with respect to the hiring of police officers.” Id.

Public safety officers are vested with considerable power and discretion and therefore must be held to a high standard of conduct. See, e.g., Falmouth v. Civil Serv. Comm’n., 61 Mass. App. Ct. 796, 801 (2004), citing Cambridge, supra, 43 Mass. App. Ct. at 303-305; Police Comm’r v. Civil Serv. Comm’n, 22 Mass. App. Ct. 364, 371, rev. den. 398 Mass. 1103 (1986).

ANALYSIS

The Department failed to establish by a preponderance of evidence that it had reasonable justification to bypass the Appellant for the position of police officer. While the Department cited judgment and conduct as reasons for bypassing the Appellant, an impartial and objective review of the record shows that, in many cases, actions by the Appellant were commendable and consistent with the adage that when citizens “see something”, they should “say something”.  Addiction touches everyone in our community and having a person take proactive steps to save these lives by contacting the authorities shows the type of good judgment needed in police officers. While the Appellant witnessed overdoses and his name appears in several police reports, most of those reports do not implicate him in any wrongdoing. Both parties agree that the individual incidents do not, on their own, provide a basis for bypass, as no reports indicate engagement in criminal or mal-intentioned activity. However, the Department argues that the quantity of incidents speaks to a concerning pattern and a lack of proper judgment.  Members of the Department’s roundtable asserted that after the earlier incidents, the Appellant should have removed himself from situations where people were at risk of overdosing. However, they failed to conduct a discretionary interview with the Appellant, resulting in a lack of a thorough process rather than an accurate assessment of his background. Rather than seeking to understand the context of the incidents and whether they speak to the Appellant’s judgment, the Department relied on their determination that the Appellant had knowledge that the individuals were using drugs and intentionally spent time with them. Instead of relying on assumptions based on the Appellant’s record, the Department should have conducted a thorough review and spoken to relevant parties in order to reach a well-reasoned conclusion about whether the incidents indicate a judgment issue.

Contrary to the roundtable’s assumptions, the Appellant credibly testified that, since the last instance, he has been actively taking steps to avoid people whom he believes may be currently or in the past involved with drugs.  I appreciate his frustration that his doing the “right thing” and intervening to save lives, is now seen as a negative and he is being punished for these actions. In each of the past incidents, the evidence does not show that he possessed knowledge of the victim’s on-going drug use, so it is unreasonable to conclude that he should have known not to associate with these individuals. Without understanding the nature of the incidents, the Department cannot use poor judgment as a justification for bypassing the Appellant. Neither the presence of the Appellant’s name in police reports nor the nature of the incidents are sufficient, on their own, to show that the Appellant exhibited poor judgment. While it is understandable that the Department would pause regarding a candidate who was often around people who had addiction issues, to not delve further into the circumstances surrounding these events resulted in a rush to judgement and conclusions that are not justified. The Department has not shown that the Appellant used narcotics at any time in his past and it appears he is more a victim of growing up in a troubled environment than anything else. 

The Department’s bypass letter also listed ECPD’s non-selection of the Appellant as a reason for their decision. The roundtable did not have access to the ECPD’s questionnaire or the Appellant’s application. The Department did not subpoena the records nor were they able to review the context and nature of the questions asked to the Appellant. The Appellant completed a POST questionnaire and provided necessary information as a part of the Department’s application. They found no issue with his transparency or truthfulness in this application. When asked about the ECPD application, the Appellant remained fully transparent and truthful about his answers and explained his confusion regarding the questions. Because many of the incidents causing concern in relation to the Appellant’s answers occurred roughly two decades ago, it is not unreasonable to assume the Appellant failed to recall the details of the specific incidents. I find it misguided to conclude that he was less than forthcoming as to whether or not police enforcement showed up to his residence during his mother’s boyfriend’s overdose. I find it reasonable that a minor being involved in such a traumatic and chaotic situation would not recall whether a police officer was one of the individuals on the scene. I also do not consider that calling 911 for an ambulance with the result that a police officer also showed up constitutes the police being called to your residence.  I would also state that the definition of what constitutes being detained is open for interpretation, especially regarding an incident where he was pulled over but not arrested or even cited. While technically he was detained during the traffic stop, I do not believe that all reasonable people would label it as such.  Furthermore, when Det. Resil inquired about the ECPD application, the Appellant was transparent about his confusion and was upfront about the relevant incidents on his record. It is not unreasonable to assume that the Appellant did not fully understand the nature of ECPD’s questions and learned from that process. When applying with the BPD, he made sure to clarify his answers to address the issues that arose during ECPD’s hiring process and appears to have had a better understanding of how to more completely answer similar questions. The Department was not justified in concluding that the Appellant showed poor judgement without the supporting documents or complete understanding of the ECPD’s processes.

After reviewing the police reports mentioning the Appellant and the context of the ECPD application, I conclude that the Department’s review was not reasonably thorough, deficient in investigative process, and failed to incorporate a full vetting of the incidents on which the Roundtable based its decision.

CONCLUSION

               For all the above reasons, the Appellant’s appeal under Docket No. G1-25-195 is hereby allowed. Pursuant to the Commission’s authority under Chapter 310 of the Acts of 1993, the Commission hereby orders the following:

• HRD shall place the name of the Appellant at the top of any current or future certification for the position of permanent full-time police officer in the Boston Police Department until he is given one additional consideration for appointment.
• If the Appellant is appointed as a Boston Police Officer, he shall receive the same civil service seniority date as the candidates appointed from the Certification No. 09999. This date is for civil service purposes only and is not intended to provide the Appellant with any additional compensation or benefits, including creditable service toward retirement.
• Once the Appellant has been provided with the relief ordered above, the Department shall notify the Commission, with a copy to the Appellant, that said relief has been provided. After verifying that the relief has been provided, the Commission will notify HRD that the Appellant’s name should no longer appear at the top of future certifications.

CIVIL SERVICE COMMISSION

/s/ Shawn C. Dooley

Commissioner 

By a vote of the Civil Service Commission (Bowman, Chair; Dooley, Markey, McConney, and Stein – Commissioners) on March 5, 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: 

Gary G. Pelletier, Esq. (for Appellant) 

Omar Bennani, Esq. (for Respondent)  

Stephanie Andino (HRD) 

Regina Caggiano (HRD)

[1]The Commission sent the parties a copy of the recording. If there is a judicial appeal of this decision, the plaintiff in the judicial appeal would be obligated to use the recording to supply the court with a written transcript of the hearing to the extent that they wish to challenge the decision as unsupported by the substantial evidence, arbitrary and capricious, or an abuse of discretion. 

[2] Exhibit 8 is the Appellant’s application with the Department. This was requested at the hearing by the Commissioner and was submitted following the hearing.

[3] The Appellant began working for the Boston Public Health Commission after he was bypassed by the BPD.