Bypass appeals
A "bypass" occurs when a civil service "appointing authority" (i.e. - a civil service city or town or state agency) appoints or promotes a candidate not ranked highest on what is called a civil service "certification". For example, a candidate, after taking and passing a civil service examination administered by the state's Human Resources Division (HRD) for police officer or firefighter, may have their name placed on an "eligible list" of candidates for police officer or firefighter in a city or town covered by the civil service law. When that civil service city or towns seeks to appoint police officers or firefighters, HRD will use that eligible list to send the city or town a "certification" of names in rank order based on various factors such as examination score, residency or veterans' preference. If the city or town makes appointments out of rank order from that certification (i.e. - they skip over a higher ranked candidate to appoint a lower ranked candidate), then a bypass has occurred.
When an appointing authority bypasses a candidate for original appointment or promotion, they must provide the bypassed candidate with written reasons for the bypass, which may include negative reasons associated with the bypassed candidate, positive reasons associated with the selected candidate(s), or both. In that same letter, the appointing authority must notify the bypassed candidate of their right to file an appeal with the Civil Service Commission (Commission).
After receiving the written reasons for bypass, the bypassed candidate then has 60 calendar days to file an appeal and filing fee with the Commission at: Online Appeal Filing.
In bypass appeals, the Commission’s role is to determine whether the appointing authority has shown, by a preponderance of the evidence (it is more likely than not), that it had “reasonable justification” for the bypass after 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. "Reasonable justification" means that the appointing authority’s actions were based on adequate reasons supported by credible evidence, when weighed by an unprejudiced mind, guided by common sense and by correct rules of law.
If the Commission finds that the appointing authority did not have reasonable justification to bypass a candidate for original appointment or promotion, the Commission may order relief, including, but not limited to, placing the name of the candidate at the top of the next certification for appointment or promotion to ensure that they are reconsidered for appointment or promotion. In certain cases, the Commission may order additional relief as warranted.
Other helpful information pertaining to bypass appeals:
- Not all appointments and promotions to civil service positions are subject to the civil service law and rules pertaining to bypasses. The law only applies to "official service" positions for which a civil service eligible list exists and to most "labor service" positions. Since no eligible lists exist for the vast majority of non-public safety civil service positions in Massachusetts, official service bypasses typically only apply to civil service public safety positions such as police, fire, corrections, etc.
- State Police appointments and promotions are not subject to review by the Commission.
- Generally, bypass appeals should not be filed with the Commission until the bypassed candidate has received the written reasons for bypass from the Appointing Authority. However, if a candidate becomes aware that they have been bypassed for appointment or promotion, but the Appointing Authority has not provided the candidate with written reasons, the bypassed candidate may file an appeal with the Commission prior to receiving the written reasons.
- Selection from a group of tied candidates with the same rank on the certification does not constitute a bypass.
- The filing fee for an original appointment bypass is $25. The filing fee for a promotional bypass is $75.
Prior Commission bypass decisions can be viewed at: Civil Service Decisions | Mass.gov
Reclassification Appeals
Any state employee or manager who believes that they are misclassified may file a request for reclassification with their appointing authority. If that request is denied, they may appeal the decision to the state's Human Resources Division (HRD). If HRD denies the appeal, the state employee or manager may file an appeal with the Civil Service Commission (Commission). The Commission is responsible for conducting a de novo (from the beginning or anew) review to determine if a reclassification is warranted. Unlike other appeals filed with the Commission, the burden of proof in reclassification appeals falls on the state employee or manager filing the reclassification appeal. The appealing state employee or manager must show, by a preponderance of the evidence (it is more likely than not), that they are misclassified.
The key question in reclassification appeals is whether the state employee or manager spends most of their time performing the discrete duties of the higher classification. It is not about how well the state employee or manager performs their job duties. To succeed, the state employee or manager must show that they spend more than half of their work time performing the duties that uniquely define the higher-level job. This means that they must spend more than 50% of their normal work time performing the higher-level duties. They could perform all of the duties that define the higher-level job, but if that comprises less than 50% of their time, the appeal may be unsuccessful. Further, those duties must be performed on an ongoing basis, not temporarily or occasionally.
Helpful documentation includes official job descriptions, duty statements, organizational charts, time logs, supervisor emails, and testimony confirming that these tasks are part of the employee’s normal workload. The Commission places strong emphasis on continuity and consistency.
Other helpful information pertaining to reclassification appeals:
- The law allowing the Commission to hear reclassification appeals pertains only to state employees or managers, not city and town employees.
- All state employees and managers may file a reclassification appeal with the Commission, regardless of whether the position is covered by the civil service law.
- The law does not allow the Commission to hear appeals related solely to whether the state employee or manager is being properly compensated.
- The Commission generally cannot hear a reclassification appeal prior to the state employee or manager receiving an adverse determination by HRD. Thus, it is important for appealing state employees or managers not to skip a step in the process.
- Reclassification appeals must be filed with the Commission no later than 30 calendar days after the state employee or manager receives the adverse determination by HRD.
- The law that gives the Commission authority to hear reclassification appeals can be found at: General Law - Part I, Title III, Chapter 30, Section 49
- Prior Commission decisions related to reclassification appeals may be found at: Civil Service Decisions | Mass.gov
Discipline Appeals
A "permanent, tenured" civil service employee who has been terminated, demoted, suspended, or, in limited cases, "involuntary transferred", by a civil service appointing authority, may contest that action by filing an appeal with the Civil Service Commission (Commission) within ten business days of receiving notification by the appointing authority.
In general, a permanent, tenured civil service employee cannot be terminated, demoted or suspended for more than five days by a civil service appointing authority without first being provided with an opportunity to be heard at a local hearing conducted by the appointing authority. For suspensions of five days or less, no prior hearing is required at the local level, but the suspended employee has the right to request a local hearing within 48 hours after receiving notice of the suspension of five days or less.
There are two types of discipline appeals that can be filed with the Commission, which can be filed separately or at the same time.
The first type of discipline appeal that can be filed with the Commission is referred to as a Section 42 "procedural appeal" with Section 42 referring to the applicable section of the civil service law. A Section 42 procedural appeal can be filed with the Commission when a permanent, tenured civil service employee believes that the civil service appointing authority did not follow the proper procedures when carrying out the discipline. This can include not providing the employee with proper notice of hearing and appeal rights; not providing the employee with a local hearing, if required or requested; and/or not issuing a decision in a timely manner. In addition to showing that the appointing authority did not follow proper procedures, the appealing employee must also show that the appointing authority's failure to follow the proper procedures caused "prejudice" to the appealing employee.
The second type of discipline appeal that can be filed with the Commission is referred to as a Section 43 "just cause appeal" with Section 43 referring to the applicable section of the civil service law. A Section 43 just cause appeal can be filed with the Commission when a permanent, tenured civil service employee believes that there was no just cause for the civil service appointing authority to impose the discipline and/or that the level of discipline was too severe.
The Commission determines justification for discipline by inquiring whether the civil service appointing authority, has shown, by a preponderance of the evidence (it is more likely than not) that the employee engaged in misconduct which adversely affects the public interest by impairing the efficiency of public service. After making its own findings of fact, the Commission must pass judgment on the penalty imposed by the appointing authority. In so doing, the Commission must uphold the appointing authority’s action if the Commission finds that 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.
Whether filing a Section 42 or 43 appeal, or both, the appealing employee should use the discipline appeal form on the Commission's website at: Online Appeal Filing. Employees filing a Section 42 appeal should answer "yes" to the question which asks whether the employee is contesting whether the appointing authority followed the proper procedures in carrying out the discipline.
Other helpful information pertaining to discipline appeals:
- The law related to the procedures that a civil service appointing authority must follow when imposing discipline on a permanent, tenured civil service employee can be found at: General Law - Part I, Title IV, Chapter 31, Section 41.
- The law related to filing a Section 42 procedural appeal with the Commission can be found at: General Law - Part I, Title IV, Chapter 31, Section 42.
- The law related to filing a Section 43 just cause appeal with the Commission can be found at: General Law - Part I, Title IV, Chapter 31, Section 43.
- Not all persons employed in a civil service position can file a discipline appeal with the Commission. Rather, only those civil service employees who are "permanent" (i.e. - were appointed from a certification) and "tenured" (served a probationary period applicable to that position) may file an appeal with the Commission. Since no eligible lists or certifications exist for the vast majority of non-public safety civil service positions in Massachusetts, the Commission's jurisdiction regarding discipline appeals is typically limited to police, fire, correction officer and other public safety positions in addition to certain labor service positions.
- Generally, an employee who was suspended for five days or less and failed to request a local appointing authority hearing within 48 hours may not then file an appeal with the Commission.
- The legislature has also granted certain civil service discipline appeal rights to other non-civil service employees such as some housing authority and redevelopment authority employees and uniformed members of the State Police.
- The filing fee when filing a discipline appeal with the Civil Service Commission is $50.
- Prior Commission discipline decisions can be viewed at: Civil Service Decisions | Mass.gov.
Examination Appeals
Civil service examination applicants may file an appeal with the Civil Service Commission contesting an exam-related determination by the state's Human Resources Division (HRD) related to: essay questions; education / experience; and/or whether the examination was a "fair test".
Non-Bypass Equity Appeals
Individuals may file an appeal with the Civil Service Commission to contest an action or inaction by the state's Human Resources Division (HRD) that do not involve a bypass. These are considered "non-bypass equity appeals" and often include requests for retroactive civil service seniority dates and/or other relief not related to a bypass.
Performance Evaluation Appeals
Civil service employees contesting a performance evaluation may file an appeal with the Civil Service Commission only if: a) you have not filed a grievance regarding the same issue; and b) you have first filed an appeal with your Appointing Authority and been denied.
Layoff / Bumping/ Reinstatement Rights Appeals
Permanent, tenured civil service employees seeking to contest a layoff or challenge whether they have been provided with proper civil service "bumping rights", (local) "reinstatement rights" or (statewide) re-employment rights may file an appeal with the Civil Service Commission (Commission) by completing a layoff appeal form. These appeals are distinguishable from "discipline" appeals and are typically related to a civil service appointing authority laying off employee(s) due to a lack of funds and/or abolishing positions as part of a reorganization.
The Supreme Judicial Court has ruled that the Commission's proper role in applying the "just cause" standard in matters involving the abolition of a position for reasons of economics and efficiency are limited, and indeed more "narrow" than the scope of review to be applied in disciplinary actions. See School Comm. of Salem v. Civil Service Comm'n, 348 Mass. 696, 699 (1965). See also Shaw v. Board of Selectmen of Marshfield, 36 Mass.App.Ct. 924, 925 (1994) ("terminations of these sorts are not subject to the statutory procedures customarily provided for cases where an appointing authority intends to terminate an employee for what amounts to job performance"). It is well-settled that lack of money constitutes "just cause" for the elimination of a position. Debnam v. Belmont, 388 Mass. 632, 634-36 (1983). In Debnam, the SJC noted that: "a municipality may abolish a civil service position when, in the judgment of appropriate municipal officials, the position is no longer needed or economical."Id . at 635-36 (citing, et. al., Commissioners of Civil Service v. Municipal Court of the City of Boston, 369 Mass.84, 88 (1975). In so deciding, the Court noted it is well-established in civil service law that, the abolition of an unnecessary position made in good faith plainly is the duty of an executive or administrative officer. One holding such a position, though efficient in the performance of his duties, may be removed simply because the position is no longer necessary, provided the removal is made in good faith, and the recital of that reason is not made the cover for some other unjustifiable motive. Gardner v. Lowell, 221 Mass. 150, 154 (1915) (citing Garvey v. Lowell, 199 Mass. 47, 49. 1908)).
The layoff of employees is not justified if the proffered reason for their dismissal was pretextual and their discharge was the product of improper motivations. City of Cambridge Housing Authority v. Civil Service Comm'n, 7 Mass.App.Ct. 586, 589 (1979); see also Raymond v. Civil Service Commission and Athol Fire Department, Memorandum of Decision and Order in Suffolk Superior Court Civil Action 06-3871-C (12/9/08).
Other helpful information related to Layoff / Bumping Rights / Reinstatement Appeals:
- The civil service law related to layoffs, bumping and (local) reinstatement rights can be found at: General Law - Part I, Title IV, Chapter 31, Section 39
- The civil service law related to (statewide) re-employment rights can be found at: General Law - Part I, Title IV, Chapter 31, Section 40
Requests for Investigation
Section 2(a) of Chapter 31 grants the Civil Service Commission (Commission) broad discretion upon receipt of an alleged violation of the civil service law’s provisions to decide whether and to what extent an investigation might be appropriate. Further, Section 72 of Chapter 31 provides for the Commission to “investigate all or part of the official and labor services, the work, duties and compensation of the persons employed in such services, the number of persons employed in such services and the titles, ratings and methods of promotion in such services.” The Commission exercises its discretion to investigate only “sparingly,” typically only when there is clear and convincing evidence of systemic violations of Chapter 31 or an entrenched political or personal bias that can be rectified through the Commission’s affirmative remedial intervention.
A person or persons seeking to request that the Commission initiate an investigation may file a petition and $75 filing fee at: Online Appeal Filing. After the petition is filed, the Commission may opt to conduct a show cause conference where the burden is on the Petitioner to show cause why the Commission should initiate an investigation.
Other helpful information pertinent to requests for investigations:
- The applicable civil service laws related to investigations can be found at: General Law - Part I, Title IV, Chapter 31, Section 2, General Law - Part I, Title IV, Chapter 31, Section 72 and General Law - Part I, Title IV, Chapter 31, Section 73.
- Prior Commission responses to requests for investigations can be viewed at: Civil Service Decisions | Mass.gov