HRD’s Delegation To Local Appointing Authorities To Issue And Receive Bypass Letters Deemed Permissible, And Flawed Selection Process Not Fatal To Promotion Bypass Decision Ultimately Based On The Merits

In two promotion bypass cases decided on September 24, the Supreme Judicial Court (SJC) upheld the streamlined way that bypass letters are issued and made it clear that an employer’s selection process can be flawed if the ultimate decision is based on merit. See Malloch v. Town of Hanover, 2015 WL 5599156 and Sherman v. Town of Randolph, 2015 WL 5599144. The Appellants in Malloch and Sherman, were both bypassed for promotion to police sergeant. First, in Malloch, the Court approved the 2009 decision of the Commonwealth’s Human Resource Division (HRD) to delegate its administrative function to receive bypass letters under G.L. c. 31, § 27, to local appointing authorities. But the Sherman decision was even better news for civil service employers as the Court ruled that even serious flaws in the local selection process—in this instance, the way interview performance was scored—is not enough to reverse a bypass that is ultimately justified on the merits.

In Sherman, the Town bypassed the Appellant in favor of appointing three other patrol officers to sergeant. The interview panel consisted of Randolph Police Department (“RPD”) officers—the outgoing Police Chief, a Sergeant who would take over as Chief, a Lieutenant and a Patrol Officer. The Appellant had the “worst” interview, but the interview scoring system left much to be desired. Interviews were not recorded. There was no complete and contemporaneous record of how panel members scored interview performance and there was no objective criteria for determining a right or wrong answer or even whether one answer was better than another. As part of the process, the Chief and his successor also spoke to two RPD supervisors of the Appellant, who criticized the Appellant for not following through on cases, including being untimely in completing reports and pursuing criminal charges. The Chief concluded, based on the panel’s interview scores, the candidates’ past performance, and his own “personal and informal list of

[ten] to [fifteen] factors” having to do with “community involvement and professionalism,” that the Appellant should be bypassed. Upon receiving this recommendation, and learning there was a bypass involved, the Town Manager reviewed the Appellant’s file and spoke with supervisors. He concluded that Sherman was not ready to be a Sergeant. He advised the Appellant he was being bypassed based on his interview, a review of his personnel file and a discussion with his immediate supervisor. The bypass letter included the following: “Specifically, the committee found that some of your answers were vague. You did not demonstrate a clear understanding of leadership qualities such a leading by example and command presence. Your supervisor noted that you had difficulty following through on cases and that you needed supervision.”

The Commission found that the interview process in Sherman was flawed because it was too subjective and that the evaluation of job performance was “possibly flawed,” noting that the Department did not do annual performance evaluations. Nonetheless, the Commission found that there were sufficient reasons to bypass the Appellant because of the independent judgment of the Department’s senior commanders that the Appellant needed to improve critical aspects of his job performance that were essential to being a supervisor and their view that the other applicants were more ready to be sergeants. Critical to the Commission’s decision was the lack of evidence that the judgments of the supervisors were based on bias or some other unlawful predisposition against the Appellant. The Commission noted that the Appellant had not even alleged that the bypass decision was politically motivated.

The Court wrote that “procedural flaws conducive to subjective or arbitrary decision making could be a ‘red flag’ signaling that a bypass decision resulting from flawed procedures was motivated by political considerations, favoritism or bias.” However, it noted that the Commission had considered the risk that such improper motivations could have affected the bypass decision and found no evidence to support it. The Court determined that there was substantial evidence to support the Commission’s conclusion, particularly since the bypass was not based solely on interview performance. The Court wrote, “[A] promotional decision may be reasonably justified on the merits, even where the appointing authority uses flawed procedures for selecting candidates…. Where the appointing authority had a reasonable justification on the merits for deciding to bypass a candidate, and the flaws in the selection process are not so severe that it is impossible to evaluate the merits from the record.“ In short, the Town’s bypass decision was upheld because, notwithstanding flaws in the selection process, the Town proved reasonable justification for its determination that the Appellant was not ready to assume the duties of a sergeant.

In Malloch and Sherman, the Court upheld the HRD’s delegation to cities and towns of the issuance of bypass and selection letters. The Appellants cited language in M.G.L. c. 31, section 27 that states that a promotion involving a bypass does not become effective until an appointing authority’s written statement of reasons for the bypass “has been received by [HRD]”. The Appellants argued that “received” meant reviewed and approved. Reversing a Superior Court decision, the Court ruled that the delegation was both permissible and practicable. It noted express statutory language that allowed delegation of HRD’s administrative functions “so far as practicable” to cities and towns. The Court pointed out that the plain meaning of “received” did not require HRD to review and approve the reasons. The Court further noted that the civil service statute expressly gave the Civil Service Commission the authority to review and approve reasons for a bypass while not clearly providing the same authority to HRD. For more background on this decision, see our previous blog post on the Malloch case.