On December 8, 2025, the Appellant, Jarrod A. Gero (Appellant), a police sergeant employed by the Boston Police Department (BPD) who sat for the promotional examination for police lieutenant, filed an appeal with the Civil Service Commission (Commission) arguing that he was entitled to two additional education and experience (E&E) points.
On January 20, 2026, I held a remote pre-hearing conference which was attended by the Appellant, co-counsel for the BPD, and counsel for HRD. I subsequently issued a Procedural Order and received additional requested information from the Appellant, the BPD, and the state’s Human Resources Division (HRD). I have deemed the submissions as cross motions for summary decision.
Facts / Chronology of Events
- The BPD entered into a delegation agreement with HRD to administer promotional examinations, including for sergeant and lieutenant.
- The BPD contracted with a vendor by the name of Morris and McDaniel (M&M) to conduct and score the examination.
- The examinations consisted of various components including: education and experience (E&E).
- The Appellant sat for the lieutenant promotional examination and timely completed the E&E component.
- As part of the E&E component, the Appellant, a BPD police sergeant, claimed time for time worked as: a) police officer; b) permanent sergeant; and c) acting lieutenant.
- For any day in which the candidate claims credit for acting lieutenant time, M&M does not permit the candidate to also claim credit for permanent sergeant time. This is consistent with how HRD treats acting time claimed on statewide examinations administered by HRD.
- Using the above formula (i.e. – subtracting any permanent sergeant time on days in which the candidate is claiming acting lieutenant time), the Appellant was eligible for a total of 66 E&E points.
- If this subtraction did not occur for those days in which the Appellant worked both as a permanent sergeant and an acting lieutenant (i.e. – 2, 8-hour shifts, one as a permanent sergeant and one as an acting lieutenant), the Appellant would likely be eligible for 2 additional E&E points. This would likely raise his total score by one point and improve his standing on the eligible list for BPD lieutenant.
- The Appellant filed a timely appeal with the BPD and his appeal was denied. He then filed a timely appeal with the Commission.
Parties’ Arguments
The Appellant argues that there is “no factual basis for subtracting eight months from his Sergeant service.” Specifically, in his pre-hearing memo, the Appellant stated: “The Department’s formula … creates an artificial continuous block that never existed. Duty and payroll records confirm: For 134 of the 162 days, the Appellant worked both Sergeant and temporary Lieutenant shifts. Only 28 days were served exclusively as a temporary Lieutenant. Those 28 days—approximately one month—represent the only period that should be deducted from his Sergeant time, leaving 2 years and 7 months of legitimate Sergeant service. Had the Department’s interpretation been accurate, the Appellant would have been paid as a full time Lieutenant for eight consecutive months, which he was not.”
The BPD argues that subtracting acting lieutenant time from permanent sergeant time prevents double-counting and that acting lieutenant overtime shifts worked on the same days should be no exception, arguing that, under this interpretation, sergeants working double shifts (as a sergeant) for three years would result in the illogical outcome of entitling the candidate to six years of experience.
Relevant Civil Service Law
Section 22 of Chapter 31 states in relevant part that:
Except as otherwise provided by sections sixteen and seventeen, an applicant may request the administrator to conduct one or more of the following reviews relating to an examination: (1) a review of the marking of the applicant's answers to essay and multiple choice questions; (2) a review of the marking of the applicant's training and experience; (3) a review of a finding by the administrator that the applicant did not meet the entrance requirements for the examination; provided, however, that the administrator may deny such request in the case of a competitive examination for original appointment if, at the time such request is made, the administrator is currently accepting applications for a subsequent examination of the same type for the same position.
Such request for review of the marking of the applicant's answers to essay questions, of the marking of the applicant's training and experience, or of a finding that the applicant did not meet the entrance requirements for appointment to the position shall be filed with the administrator no later than seventeen days after the date of mailing by the administrator of the notice to the applicant of his mark on the examination or his failure to meet the entrance requirements for appointment to the position.
…
An applicant may request the administrator to conduct a review of whether an examination taken by such applicant was a fair test of the applicant's fitness actually to perform the primary or dominant duties of the position for which the examination was held, provided that such request shall be filed with the administrator no later than seven days after the date of such examination.
Section 24 of Chapter 31 states in relevant part that:
An applicant may appeal to the commission from a decision of the administrator made pursuant to section twenty-three relative to (a) the marking of the applicant's answers to essay questions or training and experience sheet; (b) a finding that the applicant did not meet the entrance requirements for appointment to the position; or (c) a finding that the examination taken by such applicant was a fair test of the applicant's fitness to actually perform the primary or dominant duties of the position for which the examination was held. Such appeal shall be filed no later than seventeen days after the date of mailing of the decision of the administrator. The commission shall determine the form of the petition for appeal, provided that the petition shall include a brief statement of the allegations presented to the administrator for review. After acceptance of such an appeal, the commission shall conduct a hearing and, shall forthwith render a decision, and send a copy of such decision to the applicant and the administrator.
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”).
Analysis
The Appellant has no reasonable expectation of showing that M&M’s decision to only give credit for time served as an acting lieutenant on days when the Appellant worked one shift as a permanent sergeant and an additional overtime shift as an acting lieutenant was arbitrary or capricious. HRD’s 2025 Statewide Police Lieutenant E&E Scoring Guide for HRD-administered examinations does not specifically address the issue of “double-counting”. However, in Tabb v. HRD (2025), an appeal related to fire promotional examinations, the Commission did conclude that HRD did not err by subtracting acting lieutenant time from firefighter experience during the same time period. HRD, as part of its response to the Commission in this appeal, states that M&M’s calculation in the instant appeal was consistent with HRD’s longstanding practice.
In short, both parties have presented the Commission with two, valid, well-reasoned arguments regarding whether the Appellant should be given credit for both permanent sergeant time and acting lieutenant time on days in which he worked an overtime acting lieutenant shift before or after his permanent sergeant shift. It is not the Commission’s role, however, to choose between these two equally valid arguments. Rather, the Commission must determine whether the BPD’s decision here was arbitrary or capricious (i.e. – lacking any rational basis). E.g., Earley v. Boston Police Dep’t & Human Resources Div., 33 MCSR 344 (2020). Based on a careful review of the entire record, the Appellant has no reasonable expectation of showing that.
Conclusion
For all the above reasons, the Appellants appeal docketed under Docket Number B2-25-278 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:
Jarrod A. Gerro (Appellant)
Joseph McClellan, Esq. (for BPD)
Sheila Gallagher, Esq. (for HRD)
