Civil Service: Frequently Asked Questions
ABOUT THE CIVIL SERVICE COMMISSION
The Civil Service Commission is a quasi-judicial administrative body that hears and determines appeals regarding the merit system in public employment.
The Commission has the power and duty to: conduct investigations, hear and decide appeals by persons aggrieved by the action or inaction of the personnel administrator, certain questions regarding examinations, performance evaluations, disciplinary appeals, and by-pass appeals for original appointments and promotional appointments.
The Civil Service Commission has jurisdiction over correction officers employed by the Massachusetts Department of Correction, MBTA Transit Police Officers, and firefighters & police officers employed by civil service communities.
HOW CAN I GET A HEARING?
Many appeals are filed directly with the Civil Service Commission following an action by the appointing authority (employer). In some cases, it is necessary to first file your request for action with the administrator at the Human Resources Division (HRD) or send a copy of your appeal to HRD when filing with the Commission. Following an action or inaction of an appointing authority or HRD you must be given notice of your right to appeal and the time in which such appeal must be filed. The Civil Service Commission is responsible for scheduling and conducting the hearing, and issuing a decision.
I AM ON A CIVIL SERVICE ELIGIBLE OR PROMOTIONAL LIST WHICH IS ABOUT TO EXPIRE, WHAT CAN I DO TO MAINTAIN MY CANDIDACY?
"The system the Legislature created, in which eligibility lists expire and are replaced by new lists, involves the risk that positions might become available immediately after the expiration of an old list or immediately before the establishment of a new list. The overall pattern of the statute does not justify expectations that certain positions will become available during the period of a single list." Callanan v. Personnel Administrator for the Commonwealth, 400 Mass 597, 511 N.E. 2d 525 (1987). Generally, the only thing that you can do is take the next examination. However, where there is evidence of a manipulation of the hiring process or actions taken which are inconsistent with the basic merit principles of the civil service system, legal action and intervention might be appropriate. Contact Attorney Simoneau for more information.
WHAT IS A BYPASS?
A civil service bypass occurs when a person whose name appears lower on a civil service list selected over a person whose name appears higher on the list.
WHAT PROCEDURES MUST BE FOLLOWED IN BYPASS CASES?
When an appointing authority (employer) bypasses a candidate, the appointing authority must supply the Human Resources Division (HRD) with written reasons for the bypass. Within 15 days of receiving the bypass reasons, HRD must review them and inform the appointing authority of approval or disapproval of the reasons. If HRD determines that the reasons are insufficient, it will give the appointing authority an opportunity to explain, clarify or justify them. HRD must approve the reasons before the lower ranking candidate can be appointed.
When HRD approves the bypass reasons, it will notify the bypassed candidate and provide the candidate with a copy of the reasons. The candidate will then have 60 days to appeal the bypass to the Civil Service Commission. Note: it is absolutely critical to file your bypass appeal within the 60 day period. Also, within 3 days of filing, the bypassed candidate must send a copy of the appeal to both the Personnel Administrator (Human Resources Division) and the Appointing Authority.
Your bypass appeal must include the appropriate filing fee and the Civil Service Commission will return any appeal that does not include the proper filing fee.
WHAT ARE THE STANDARDS IN A BYPASS CASE?
Cities and Towns (Appointing Authorities) are afforded discretion when choosing individuals from a certified list of eligible candidates on a civil service list. When ruling on a bypass appeal, 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." Watertown v. Arria, 16 Mass. App. Ct. 331, 334 (1983). See Commissioners of Civil Serv. v. Municipal Ct. of Boston, 369 Mass. 84, 86 (1975) and Leominster v. Stratton, 58 Mass. App. Ct. 726, 727-728 (2003). However, personnel decisions that are marked by political influences or objectives unrelated to merit standards or neutrally applied public policy represent appropriate occasions for the Civil Service Commission to act. City of Cambridge, 43 Mass. App. Ct. at 304.
HOW MUCH TIME DO I HAVE TO FILE AN APPEAL?
Civil Service Aappeals must be filed with the Commission within a certain amount of time in order to be heard. A bypass appeal must be filed with the Commission within sixty (60) days of receipt of the written reasons for bypass from the Human Resources Division. A disciplinary appeal must be filed within ten (10) days of receipt of a written copy of the appointing authority’s decision. It is absolutely critical to comply with these time standards.
WHEN ARE DOCUMENTS CONSIDERED FILED WITH THE CIVIL SERVICE COMMISSION?
Submissions shall be deemed filed on the date on which the Commission receives them or on the official postmark date such document was mailed, properly addressed to the Civil Service Commission with postage prepaid by first class mail. No document will be considered filed when transmitted by fax machine or other electronic means unless the Commissioner to whom a matter is assigned expressly authorizes the transmission.
WHAT ARE MY RIGHTS AT A CIVIL SERVICE HEARING?
You have the following rights in connection with your hearing:
- To present evidence on any relevant issue;
- To be represented by counsel at your expense;
- To subpoena witness and documentary evidence in compliance with the Standard Rules of Adjudicatory Procedure, and G.L. 31;
- Such other rights as are conferred by law and/or Civil Service Commission Rules
WHO IS INVOLVED IN THE HEARING?
The Chairman of the Civil Service Commission designates a commissioner to hear a case. The Chairman may also refer a case to the Division of Administrative Law Appeals (DALA) for a hearing. There are at least two parties in an administrative hearing. One party is a state agency or other governmental unit and the other party is an employee with rights under the civil service law.
You are entitled to be represented by an attorney at the hearing.
WHAT CAN I BRING TO MY HEARING?
You may bring any document or witness in support of your case. Please do not bring weapons, food or children to your hearing. Cases are expected to be prepared in advance of any hearing, and detailed pleadings are to be filed at the hearing.
WHEN AND WHERE WILL THE HEARING BE CONDUCTED?
Hearings are scheduled at the earliest possible time, taking into account CSC’s caseload and the availability of a commissioner and a hearing room. Hearings are held at the CSC office or, in some cases at the Division of Administrative Law Appeals (DALA).
WHAT IF I CAN’T BE THERE ON THE SCHEDULED HEARING DAY?
No continuance will be granted except for extraordinary circumstances. A written request for a continuance must be filed stating the reasons for the request. A copy must be served on the opposing party.
WHAT IF I DON’T ATTEND THE HEARING OR FAIL TO PARTICIPATE IN THE
If a party fails to attend a hearing after having been given written notice, the Commission may proceed with the hearing in the absence of the party. Unless you are excused for good cause, the Commission may dismiss your case if you are more than 15 minutes late. If an emergency arises on your hearing date and you will be late for the hearing, telephone the Commission and explain the problem. You must, however, have permission from the Commission for a continuance.
CAN I CALL THE COMMISSION TO DISCUSS THE CASE?
The Commission must remain an impartial adjudicative body. Therefore, no person is allowed to discuss the merits of a case with the Commission without the participation of all other parties to the case.
WHAT HAPPENS AT A CIVIL SERVICE HEARING?
The Civil Service Hearing is a formal adjudicatory process. When the hearing begins, each party may present an opening statement, which tells the commissioner what the party intends to prove. Each party can then offer evidence to prove its case. Evidence can be sworn testimony taken under oath at the hearing or it can be certain kinds of documents. To be admissible, evidence must meet certain legal requirements. For example, evidence must relate to the issues to be decided. Testimony must be based on personal knowledge, not on hearsay. Affidavits, written statements and correspondence usually are hearsay unless the author of the statement is present for the hearing and actually testifies.
CAN THE COMMISSION ISSUE SUBPOENAS?
Yes. The issuing of a subpoena is governed by the Standard Rules of Adjudicatory Procedure and G.L. c. 31 § 72. The Commission may issue, modify or vacate subpoenas as justice may require.
WHAT HAPPENS AFTER THE HEARING?
After civil service hearings, the parties usually have an opportunity to submit post hearing briefs to aid the Commission in deciding the case. A post hearing brief is a detailed legal pleading showing why the Commissions should rule in your favor. The brief must be based on applicable statutes, regulations, and precedent, as applied to the facts of your case.
WHEN WILL THE COMMISSION DECIDE THE CASE?
After the parties have presented the evidence to the Commissioner, the hearing record is closed. The Commissioner will issue a written decision based on the evidence introduced and the laws and regulation, which apply to the case.
DO I HAVE A RIGHT TO APPEAL THE CIVIL SERVICE COMMISSION’S DECISION?
Yes. A motion for reconsideration may be filed by either Party within ten days of the receipt of a Commission order or decision. A motion for reconsideration shall be deemed a motion for rehearing in accordance with G.L. c. 30A § 14(1) for the purpose of tolling the time for appeal.
Any party aggrieved by a fmal decision or order of the Commission may initiate proceedings for judicial review pursuant to G.L. c. 30A § 14 in the Superior Court within thirty (30) days after receipt of such order or decision. Commencement of such proceeding shall not, unless specffically ordered by the court, operate as a stay of the commission’s order or decision.
The Law office of Brian E. Simoneau represents litigants at all stages of civil service proceedings. Attorney Simoneau and his associates handle appeals before the Human Resources Division, the Civil Service Commission, and Superior Court. Given the aforementioned strict filing requirements, candidates who have been bypassed for appointment or promotion, or are otherwise in need of legal intervention, are urged to contact Attorney Simoneau as soon as possible.