Malloch v. Town of Hanover , 472 Mass. 783 ( 2015 )

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SJC-11713
KRISTIN MALLOCH vs. TOWN OF HANOVER & others.1
Suffolk. January 5, 2015. - September 24, 2015.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.
Civil Service, Decision of Civil Service Commission, Eligibility
list, Judicial review, Police, Promotion. Police,
Promotional examination. Administrative Law, Agency's
interpretation of statute, Decision, Findings, Judicial
review, Agency's authority, Substantial evidence.
Practice, Civil, Review respecting civil service.
Civil action commenced in the Superior Court Department on
March 28, 2013.
The case was heard by Paul D. Wilson, J., on a motion for
judgment on the pleadings.
The Supreme Judicial Court granted an application for
direct appellate review.
Frank J. McGee for the plaintiff.
Bryan F. Bertram, Assistant Attorney General, for the
personnel administrator of the human resources division of the
Commonwealth.
1
Civil Service Commission and the personnel administrator
of the human resources division of the Commonwealth.
2
Galen Gilbert, for Carla Sullivan, amicus curiae, submitted
a brief.
DUFFLY, J. The town of Hanover (town) had two open
positions for sergeants in its police department. Although the
plaintiff, Kristin Malloch, had scored highest on the civil
service examination for promotion to a police sergeant position,
the town decided to bypass Malloch and promote the candidates
who had scored second and third highest on the sergeants'
examination. Malloch appealed the town's decision to the Civil
Service Commission (commission), pursuant to G. L. c. 31,
§ 2 (b), arguing that, where an appointing authority promotes a
candidate other than the candidate ranked highest on the
certification list; the promotion will not become effective
until the appointing authority's written statement of reasons
for the bypass "has been received by the administrator," G. L.
c. 31, § 27;, that "received" in this context means
substantially reviewed and approved by the administrator; and
that the administrator2 may not, in accordance with G. L. c. 31,
§ 5 (l), delegate that function to the town's appointing
authority. Malloch argued also that, even if the delegation
were permissible, her bypass was not supported by evidence of a
2
The administrator is the personnel administrator of the
human resources division (HRD) of the Commonwealth, within the
Executive Office for Administration and Finance. G. L. c. 31,
§ 1. In this context, the terms administrator and HRD are
largely interchangeable.
3
reasonable justification for the bypass. The commission denied
her appeal, and Malloch sought review in the Superior Court
pursuant to G. L. c. 30A, § 14.
Agreeing with Malloch that the statutory requirement that
the written statement of bypass reasons must be "received by"
the administrator means "reviewed and approved by" the
administrator, a Superior Court judge concluded that it was not
"practicable," see G. L. c. 31, § 5 (l), for the administrator
to delegate that function. The judge allowed Malloch's motion
for judgment on the pleadings, ordered the town to submit its
statement of bypass reasons to the human resources division
(HRD), and remanded the matter to HRD and the commission,
instructing HRD to decide, after having conducted a "substantive
review," whether the bypass reasons should be approved. The
administrator and the town, the defendants here,3 filed an appeal
in the Appeals Court, and we allowed their petition for direct
appellate review.
We conclude that the administrator may delegate its
administrative function to receive statements of reasons
supporting bypass promotions, and that it was "practicable," see
3
The Chair of the Civil Service Commission, the chief human
resources officer of HRD, and the town's manager, were named as
individual parties, in their professional capacities, in the
Superior Court proceedings. The matter proceeded on appeal
under the names of the organizations.
4
G. L. c. 31, § 5 (l), to do so here. Because the judge remanded
the matter to HRD to make such a determination without
conducting his own review of whether the commission's
determination was supported by substantial evidence, we vacate
the judgment and remand the case to the Superior Court.4
1. Background. a. Bypass of Malloch. We briefly recite
the facts found by the commission regarding Malloch's bypass,
reserving the remaining facts for our subsequent discussion.
At the time of the decision to bypass Malloch, she had
served as a police officer in the town for eight years. She was
one of two female officers in the town. In October, 2011,
Malloch took HRD's police sergeant promotional examination and
received a score of eighty-six. In April, 2012, the town
certified two vacant police sergeant positions. Malloch's name
appeared first on the certification list provided to the town by
HRD, ahead of three other officers. One of those officers
subsequently withdrew his name from consideration. Malloch
initially was interviewed by a panel of three senior police
officers from the town and from neighboring municipalities; the
panel ranked her last among the three candidates. She then was
interviewed by the town manager and the chief of police, who
also ranked her last. Based largely on these interviews, the
4
We acknowledge the amicus brief submitted by Carla
Sullivan.
5
town manager, who is the town's appointing authority, chose to
bypass Malloch and promote the two other officers.
b. HRD's delegation policy. Effective September 1, 2009,
HRD informed municipalities that it had delegated, pursuant to
G. L. c. 31, § 5 (l), certain administrative functions to
appointing authorities. In a memorandum issued in August, 2009,
HRD wrote,
"Each municipality will be responsible for . . .
making appointments and promotions from the eligible list
and providing bypass and selection reasons to the
applicants in accordance with civil service law and rules.
After August 31, 2009, HRD will no longer review and
approve appointments and promotions. Appeals will be made
directly to the [commission]."
The memorandum further explained that HRD "will provide
technical assistance as needed to assist the municipalities in
making appointments and promotions from the eligible list." HRD
sent "a technical certification manual to each city and town,"
conducted training sessions to explain the type of analysis
required, and provided a nonexclusive list of approved reasons
for appointing authorities to consider when determining if a
bypass promotion is reasonable. The manual states that reasons
which are not specifically enumerated in that list "may be
determined unacceptable." The manual notes also that the
administrator retains the authority to audit appointing
authorities to ensure compliance with civil service law.
2. Statutory framework. General Laws c. 31 (civil service
6
statute) governs civil service law in the Commonwealth and
details the responsibilities and authority of the administrator,
the commission,5 and the appointing authority.6
The civil service statute was first enacted in 1884. See
St. 1884, c. 320. It created a three-member civil service
commission to establish rules for the selection of civil service
employees. See St. 1884, c. 320, §§ 1-2. In 1939, the
Massachusetts Special Commission Established to Study the Civil
Service Laws, Rules and Regulations, with a View to Revision
Thereof filed a report recommending that the commission no
longer administer the civil service rules. See 1939 House Doc.
No. 1722. Instead, it recommended, the "[c]ommission should be
relieved of all technical and administrative matters. The only
instances in which the [c]ommission should function are in its
participation in the adoption of rules, and hearing and deciding
all appeals." Id. The Legislature adopted this report and
created a separate agency, the HRD, to handle technical and
administrative matters such as administering examinations and
creating certified appointment lists. See St. 1939, c. 238,
§ 30. See also Note, The Massachusetts Civil Service Law: Is
5
The "[c]ommission" is defined as "the civil service
commission of the [C]ommonwealth." G. L. c. 31, § 1.
6
The appointing authority is "any person, board or
commission with power to appoint or employ personnel in civil
service positions." G. L. c. 31, § 1.
7
It Necessary to Destroy the Current System in Order to Save it?,
40 New Eng. L. Rev. 1103, 1106-1107 (2006).
The two separate entities have clear and distinct roles.
The commission has the adjudicative duty to "hear and decide
appeals by a person aggrieved by any decision, action, or
failure to act by the administrator." G. L. c. 31, § 2 (b). It
also may hear appeals by persons aggrieved by a decision,
action, or failure to act by the appointing authority. G. L.
c. 31, § 2 (c). By contrast, the administrator's duties, as
detailed in G. L. c. 31, § 5, are not adjudicative, but include,
among other things, the duty to administer civil service law and
rules, establish classification plans, conduct examinations, and
maintain records. In creating the two separate agencies with
separate roles, the Legislature indicated its intent that the
commission adjudicate appeals and safeguard individual rights,
while the administrator completes tasks necessary to the
administration of the civil service system.
To promote efficiency, the administrator has the power
"[t]o delegate the administrative functions of the civil service
system, so far as practicable, to the various state agencies and
cities and towns of the [C]ommonwealth." G. L. c. 31, § 5 (l).
Where an appointing authority identifies an open civil service
position, the administrator has the duty to certify to the
appointing authority eligible candidates for promotion or
8
appointment. G. L. c. 31, § 25. The eligible candidates are
listed in order of their civil service examination scores, with
the inclusion of veterans' preferences. G. L. c. 31, § 26. An
appointing authority may choose to promote a person other than
the highest ranked candidate on the certification list. See
Brackett v. Civil Serv. Comm'n, 447 Mass. 233, 253 (2006).
Whenever an appointing authority chooses to bypass a higher-
ranked candidate, it immediately must file a written statement
of its reasons for appointing a candidate with a lower score.
G. L. c. 31, § 27. Such an appointment will not be effective
until the written statement has been "received by" the
administrator.7
7
General Laws c. 31, § 27, provides:
"Except as provided otherwise by [G. L. c. 31, § 15,]
if the administrator certifies from an eligible list the
names of three persons who are qualified for and willing to
accept appointment, the appointing authority, pursuant to
the civil service law and rules, may appoint only from
among such persons. If such eligible list contains the
names of fewer than three such persons, the appointing
authority may appoint from among those persons or may
request authorization to make a provisional appointment
pursuant to [§§ 12, 13, and 14].
"If an appointing authority makes an original or
promotional appointment from a certification of any
qualified person other than the qualified person whose name
appears highest, and the person whose name is highest is
willing to accept such appointment, the appointing
authority shall immediately file with the administrator a
written statement of his reasons for appointing the person
whose name was not highest. Such an appointment of a
person whose name was not highest shall be effective only
9
3. Discussion. The question before us is whether the
administrator permissibly delegated its function under G. L.
c. 31, § 27, to appointing authorities.
We review questions of statutory interpretation de novo.
Sheehan v. Weaver, 467 Mass. 734, 737 (2014). "Our primary duty
in interpreting a statute is 'to effectuate the intent of the
Legislature in enacting it.'" Water Dep't of Fairhaven v.
Department of Envtl. Protection, 455 Mass. 740, 744 (2010),
quoting International Org. of Masters v. Woods Hole, Martha's
Vineyard & Nantucket S.S. Auth., 392 Mass. 811, 813 (1984). We
begin our analysis with the statutory language. "Ordinarily,
where the language of a statute is plain and unambiguous, it is
conclusive as to legislative intent." Thurdin v. SEI Boston,
LLC, 452 Mass. 436, 444 (2008). Accordingly, where the
statutory language is clear, we must "give effect to the plain
and ordinary meaning of the language" (citation omitted),
Morales v. Morales, 464 Mass. 507, 511 (2013), "in light of the
aim of the Legislature," unless to do so would produce an
"absurd" or "illogical" result. Sullivan v. Brookline, 435
Mass. 353, 360 (2001).
a. HRD's authority to delegate. Pursuant to G. L. c. 31,
when such statement of reasons has been received by the
administrator. The administrator shall make such statement
available for public inspection at the office of the
department."
10
§ 5 (l), the administrator has the power "[t]o delegate the
administrative functions of the civil service system, so far as
practicable, to the various state agencies and cities and towns
of the [C]ommonwealth." The plain language of G. L. c. 31,
§ 5 (l) thus affords the administrator broad authority to
delegate its administrative functions, with one limitation: any
such delegation must be "practicable." "Practicable" commonly
is defined as "[c]apable of being effected, done, or put into
practice; feasible." See American Heritage Dictionary 1421 (3d
ed. 1992). Thus, in order to determine whether HRD's delegation
was permissible, we assess whether the delegation was feasible.
b. Receipt of bypass statement. In reaching his
conclusion that HRD's delegation of receipt of bypass reasons
was impermissible, the Superior Court judge interpreted the
statutory requirement that the statement of such reasons must
have "been received" by the administrator, G. L. c. 31, § 27, as
also requiring the administrator to conduct a substantive review
of the appointing authority's statement of reasons for the
bypass, and to approve those reasons, in order for an
appointment or promotion to become effective. The judge
determined that it was not practicable for an appointing
authority to conduct a review of its own reasons for a bypass.
On appeal, Malloch contends similarly that HRD's delegation
was not practicable, because G. L. c. 31, § 27, requires the
11
administrator to receive and approve the appointing authority's
reasons for a bypass promotion, and it is not feasible for an
appointing authority to approve its own reasons for its decision
to bypass a higher-ranked candidate. Because we conclude that
the statutory language means precisely what it says -- that the
administrator must have "received" the statement of bypass
reasons before an appointment becomes effective -- we do not
agree that HRD's delegation to municipalities, as appointing
authorities, was not "practicable."
In ordinary usage, "receive" means "to take into one's
possession (something offered or delivered)"; "to have
(something) bestowed [or] conferred"; "to have delivered or
brought to one"; and "to get or be informed of." Webster's New
Universal Unabridged Dictionary 1610 (1996). The statutory
language thus indicates that the Legislature did not intend to
require the administrator to approve a list of bypass reasons.
To the contrary, other definitions of "receive" include "to
accept from another"; "to hold, bear, or contain"; and "to
accept as authoritative, valid, true, or approved," id.,
suggesting that the administrator is to accept an appointing
authority's reasons, as stated, rather than to approve them.
This reading of the administrator's duty to accept and hold the
statement of reasons is supported by subsequent language in the
same paragraph of the statute. General Laws c. 31, § 27,
12
provides also that an appointing authority must "immediately
file" its written statement of reasons for a bypass with the
administrator, and that the administrator must make such
statements available for public inspection.
We read G. L. c. 31, § 27, to require only receipt of
bypass reasons by the administrator, and not approval thereof.
To conclude otherwise in essence would require that we "read
into [the] statute a provision which the Legislature did not see
fit to put there, [and to] add words that the Legislature had an
option to, but chose not to include." See Massachusetts
Insurers Insolvency Fund v. Smith, 458 Mass. 561, 567 (2010),
citing General Elec. Co. v. Department of Envtl. Protection, 429
Mass. 798, 803 (1999). The Legislature's choice is clear when
we "read the statute as a whole." Care & Protection of Jamison,
467 Mass. 269, 276 (2014). In other parts of the civil service
statute, where the Legislature intended the administrator to
approve or authorize the actions of the appointing authority, it
stated so explicitly. See Commonwealth v. Williamson, 462 Mass.
676, 682 (2012) ("Where the Legislature used different language
in different paragraphs of the same statute, it intended
different meanings").
For instance, the Legislature gave the administrator the
power and duty to "approve or disapprove specifications and
qualifications submitted by an appointing authority . . . for
13
any civil service position."8 G. L. c. 31, § 5 (c). The
Legislature provided the administrator with similar approval
authority for provisional promotions and appointments. Under
G. L. c. 31, § 15, which governs provisional promotions, "[a]n
appointing authority may, with the approval of the administrator
. . . make a provisional promotion of a civil service employee
in one title to the next higher title in the same departmental
unit." See Kelleher v. Personnel Adm'r of the Dep't of
Personnel Admin., 421 Mass. 382, 385-386 (1995) (construing
level of scrutiny that should be used by administrator in
approving provisional appointments). Similarly, under G. L.
c. 31, § 12, which governs provisional appointments, "[a]n
appointing authority may make a provisional appointment to a
position in the official service with the authorization of the
administrator." See Kelleher v. Personnel Adm'r of the Dep't of
Personnel Admin., supra at 386.
Moreover, it is the role of the commission, rather than of
the administrator, to adjudicate bypass appeals in civil service
8
Under G. L. c. 31, § 5 (c), after identifying the
qualifications and abilities necessary to perform the job, the
"appointing authority may request . . . that the Personnel
Administrator approve certain qualifications for a specific
position." The appointing authority then may rely on those
qualifications, in addition to the entrance requirements
established by the administrator for that position, in making
appointment decisions. See Charton & Groll, A Civil Service
Action: Hiring, Promotion, and Discipline at the Civil Service
Commission (1999).
14
appointments, in part by reviewing statements of reasons for a
bypass and determining whether there is a "reasonable
justification, 'sufficiently supported by credible evidence,'"
for the bypass. See Police Dep't of Boston v. Kavaleski, 463
Mass. 680, 688 (2012) (Kavaleski), quoting Brackett v. Civil
Serv. Comm'n, 447 Mass. 233, 241 (2006). We interpret separate
sections of statutes as a whole, to produce internal
consistency, Roberts v. Enterprise Rent-A-Car Co. of Boston, 438
Mass. 187, 194 (2002), citing Acting Supt. of Bournewood Hosp.
v. Baker, 431 Mass. 101, 104 (2000), and to give a "rational and
workable effect." Roberts v. Enterprise Rent-A-Car Co. of
Boston, supra at 192, citing School Comm. of Gloucester v.
Gloucester, 324 Mass. 209, 212 (1949).
The legislative history in enacting G. L. c. 31, § 27,
further supports our reading. General Laws c. 31, § 27,
originally was codified by St. 1945, c. 704, § 4, as G. L.
c. 31, § 15 (c).9 Before the law was codified in 1945, the
Report of the Special Commission Studying Civil Service Laws,
Rules and Regulations (Jan. 1943), 1943 House Doc. No. 1333, at
5, recommended that "when the appointing authority names some
one other than the person who is number one on the civil service
9
Subsequently, the provision was recodified by St. 1978,
c. 393, § 11, and became G. L. c. 31, § 27. It was most
recently amended by St. 1985, c. 527, § 16. None of the changes
since 1945 made material modifications to this section.
15
list, the appointing official shall give the Director of Civil
Service[10] his reasons for passing over the person or persons at
the head of the list. These reasons shall be in writing . . .
[and are] to be available for examination by the person or
persons passed over." Another legislative report, Report of the
Special Recess Commission Studying Civil Service Laws, Rules and
Regulations (Jan. 1945), 1945 House Doc. No. 1675, at 6,
similarly proposed that appointing authorities "be required to
give reasons in writing for passing over persons at the head of
civil service lists." The Legislature adopted these
recommendations when it enacted St. 1945, c. 704, § 4. Thus,
the purpose behind the administrator's receipt of bypass reasons
was not to require the administrator's review, but rather to
make those reasons known and available in writing for bypassed
candidates to examine in deciding whether to pursue an appeal.
See 1943 House Doc. No. 1333, at 5.
In sum, we see no support for Malloch's contention that the
administrator is required to conduct an independent review of a
written statement of reasons where the Legislature did not
plainly state its intention that the administrator do so, and
explicitly awarded such adjudicative duties to the commission.
10
The personnel administrator previously was referred to as
the Director of Civil Service. See St. 1974, c. 835, § 1
(striking out "director of civil service" and replacing with
"the personnel administrator").
16
See Staveley v. Lowell, 71 Mass. App. Ct. 400, 407 (2008) ("the
administrator's powers of delegation must be viewed in the
context of the Legislature's decision to charge the commission
with responsibility for smooth and consistent operation of [the
civil service] system").
c. Delegation of functions under G. L. c. 31, § 27.
Nothing in the language of G. L. c. 31, § 27, explicitly
prohibits delegation of functions by the administrator, nor does
G. L. c. 31, § 5 (l), contain language prohibiting such
delegation. See Doe v. Superintendent of Schs. of Worcester,
421 Mass. 117, 128 (1995) ("If the Legislature intentionally
omits language from a statute, no court can supply it").
Conceding that the statutory language does not prohibit
delegation of the administrator's authority under G. L. c. 31,
§ 27, Malloch relies on language in MacHenry v. Civil Serv.
Comm'n, 40 Mass. App. Ct. 632, 635 (1996) (MacHenry), in support
of her argument that the administrator may not delegate its
function to "receive" statements of bypass reasons. Malloch
argues that MacHenry holds that G. L. c. 31, § 27, requires the
administrator to review and approve statements of reasons for a
bypass. We do not agree.
In MacHenry, the issue before the Appeals Court was whether
the statutory scheme authorized the administrator to undertake
to conduct a review of a statement of bypass reasons, or whether
17
an appointment became effective "merely upon receipt by [the
administrator] of the statement of reasons." Id. at 634. The
court noted several earlier decisions of this court and the
Appeals Court where the administrator's role had "not [been]
confined to mere 'receipt' but [had been] seen [in dicta] to
involve acceptance or approval of the statement of reasons," and
concluded that "the Legislature's presumptive knowledge of those
decisions" indicated that this interpretation was correct. Id.
at 635. The court did not address whether G. L. c. 31, § 27,
required the administrator to approve statements of bypass
reasons, but suggested that it was reasonable to conclude the
statute authorized the administrator to approve or affirm such
statements.11 MacHenry, supra at 635. The court based its
11
The plaintiff in MacHenry v. Civil Serv. Comm'n, 40 Mass.
App. Ct. 632, 635 (1996) (MacHenry) had been promoted to the
position of police lieutenant after a board of selectmen chose
to bypass two higher-scoring individuals on the certification
list. Id. at 632-633. The administrator rejected their written
statements of reasons for the bypass because the selectmen had
relied on the plaintiff's educational record, which already had
been considered in determining his civil service score, and
requested that the selectmen provide additional, more detailed
reasons for the bypass. Id. at 633. Instead, they chose to
promote the second-ranked candidate on the certification list,
and filed detailed reasons with the administrator explaining
their decision for having done so. Id. The administrator
accepted those reasons and the plaintiff, who had assumed the
duties of a lieutenant, was returned to his position as
sergeant.
The plaintiff appealed to the commission, arguing that his
promotion had become effective upon the administrator's receipt
of the statement of bypass reasons, rather than being dependent
18
conclusion, in large part, on language in Bielawski v. Personnel
Adm'r of the Div. of Personnel Admin., 422 Mass. 459, 466 (1996)
(Bielawski). Like MacHenry, Bielawski did not hold that G. L.
c. 31, § 27, required the administrator's review,12 nor did the
other cases cited in MacHenry, supra. See Goldblatt v.
Corporation Counsel of Boston, 360 Mass. 660, 662 (1971); Flynn
v. Civil Serv. Comm'n., 15 Mass. App. Ct. 206, 207 (1983).
None of these cases concluded or relied upon a
determination that G. L. c. 31, § 27, requires the personnel
administrator to review substantively an appointing authority's
statement of reasons for a bypass, and we make explicit today
upon its approval of those reasons. The commission concluded
that the plaintiff's appointment had never become effective,
because the administrator had not approved the bypass reasons,
even though the commission stated that the rejected reasons
would have been sufficient to support the bypass. The Appeals
Court concluded that, while not required to do so, the
commission had authority to review, and not merely to accept, a
hiring authority's reasons, and therefore there was "no
substantial error of law . . . adversely affecting material
rights," as required in a petition for certiorari, G. L. c. 249,
§ 4, the procedural posture before the court. MacHenry, supra
at 635-636.
12
In Bielawski v. Personnel Adm'r of the Div. of Personnel
Admin., 422 Mass. 459, 466 (1996), we concluded that a bypassed
candidate did not have a property interest in a civil service
promotion. We noted, however, that even if the plaintiff had
had such a property interest, the requirements of due process
would have been satisfied by the "procedural scheme requiring
approval by the personnel administrator, allowing an appeal to
the commission, and providing for limited judicial review." Id.We did not decide the issue, but made this statement concerning
rights that might have been protected by the "procedural scheme
requiring approval by the personnel administrator" under a
hypothetical scenario.
19
that the statute contains no such requirement.
We agree with the Appeals Court's conclusion in MacHenry,
supra, that the administrator is charged with evaluating the
qualifications of applicants for civil service positions
according to "basic merit principles," see G. L. c. 31, § 1
(defining term), and must administer, enforce, and comply with
civil service law, pursuant to G. L. c. 31. To ensure that
appointments and promotions are made only from a properly
certified eligibility list, for instance, the administrator has
implemented a rule that no appointment or promotion will be
deemed effective until the appointing authority has "notified
the administrator in writing that such person has been so
appointed or promoted, or that the appointing authority has
notified the administrator of its intent to appoint or promote
such person, if the appointment or promotion must be delayed due
to the scheduling of any training required by statute, or
municipal ordinance or by-law, or departmental rule." Personnel
Administration Rules par. 08(3) (effective May 1, 2010). If at
any point, before or after it issues the certification, the
administrator finds that the certification (based on an
examination conducted by the administrator) was made in error,
or a candidate was placed on the eligible list through mistake
or fraud, the administrator may revoke the appointment. Id.
The administrator may, in accordance with his or her duty,
20
facially examine a written statement of bypass reasons to
determine whether the candidate chosen satisfies the
requirements for the position (as established by the
administrator). Indeed, in MacHenry, the personnel
administrator did just that, and found the statement of reasons
for a bypass deficient because education, cited as a reason,
already had been included in determining the candidates' civil
service examination scores, which the administrator assigns.
See G. L. c. 31, § 5 (e) (giving personnel administrator purview
over civil service examinations). See also Charton & Groll, A
Civil Service Action: Hiring, Promotion, and Discipline at the
Civil Service Commission (1999); Personnel Administration Rules
par. 08(5), supra. The administrator is not, however, obligated
to assume an adjudicatory role by substantively reviewing and
approving an appointing authority's decision to bypass a
candidate.
We therefore conclude that the administrator permissibly
could delegate its administrative functions under G. L. c. 31,
§ 27. Cf. Stavely v. Lowell, 71 Mass. App. Ct. 400. 404-405
(2008) (determining that administrator may, pursuant to G. L. c.
31, § 5 [l], delegate its responsibility to create and
administer process that produces civil service eligibility
lists).
Malloch makes no additional arguments that delegation to
21
the appointing authorities was impracticable, and we discern no
such bar. According to the record, the administrator trained
appointing authorities, provided each authority with a manual
detailing acceptable and unacceptable reasons for a bypass, and
retained the authority to audit appointing authorities to ensure
compliance with basic merit principles. These efforts make it
practicable for appointing authorities to create statements of
bypass reasons and send them to bypassed candidates,
safeguarding basic merit principles, and allowing aggrieved
candidates to obtain review by the commission.
d. Application to Malloch's bypass. Having concluded that
the administrator's delegation of receipt of the statement of
bypass reasons was proper, we turn to a consideration of the
commission's decision affirming Malloch's bypass. "We may set
aside or modify an agency decision if we determine 'that the
substantial rights of any party may have been prejudiced'
because the agency decision is in violation of constitutional
provisions; in excess of statutory authority or jurisdiction of
the agency; based on an error of law; made on unlawful
procedure; unsupported by substantial evidence; unwarranted by
the facts found by the court on the record as submitted or as
amplified; or arbitrary or capricious, an abuse of discretion,
or otherwise not in accordance with law." Rivas v. Chelsea
Housing Auth., 464 Mass. 329, 334 (2013), quoting G. L. c. 30A,
22
§ 14 (7) and citing Attorney Gen. v. Commissioner of Ins., 450
Mass. 311, 318 (2008).
When a bypassed candidate for a civil service position
appeals to the commission, "the commission determines 'on the
basis of the evidence before it, whether the appointing
authority [has] sustained its burden of proving, by a
preponderance of the evidence, that there was reasonable
justification' for the decision to bypass the candidate."
Kavaleski, supra at 688, quoting Brackett v. Civil Serv. Comm'n,
447 Mass. 233, 241 (2006). "[T]he 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. 182, 188
(2010), because "[i]n the task of selecting public employees of
skill and integrity, appointing authorities are invested with
broad discretion." Cambridge v. Civil Serv. Comm'n, 43 Mass.
App. Ct. 300, 304-305 (1997). "Reasonable justification . . .
means '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.'" Kavaleski,
supra, quoting Brackett v. Civil Serv. Comm'n, supra. A
reviewing court is "bound to accept the findings of fact of the
commission's hearing officer, if supported by substantial
evidence," Beverly v. Civil Serv. Comm'n, supra, quoting
23
Leominster v. Stratton, 58 Mass. App. Ct. 726, 728 (2003), and
to give due weight to the experience and knowledge of the
commission in reviewing its decisions. Kavaleski, supra at 689.
A reviewing court does not substitute its own view of the
evidence, but considers whether the commission's decision is
supported by the record and is otherwise not arbitrary,
capricious, or an error of law. See id., and cases cited.
i. Conduct of the interviews. The town's chief of police,
Walter L. Sweeney, Jr., assembled an interview panel consisting
of Hanover police Lieutenant Gregory Nihan, Marshfield police
Captain Michael J. McDonough, and Rockland police Lieutenant
Nicholas Zeoli.13 In addition to Malloch, the two other
candidates were Officer Thomas Burke, who ranked second on the
certification list, and Officer David Williams, ranked third.
The panel asked each of the three candidates the same ten
interview questions, which the commission deemed "appropriate,
job-related questions gauged to assess a candidate's ability to
perform the duties of a police sergeant."
The panel interviewed the candidates in the order in which
they appeared on the certification list. The panelists took
13
Noting that the panel had been exclusively male, the
chairman of the commission inquired of the town manager whether
he had considered gender an issue, and whether adding a female
interviewer would have been preferable. The town manager
replied "No. I think. . . we've progressed as a society
significantly enough as it relates to those issues that it
didn't occur to me."
24
notes and rated each candidate on a score sheet using a scale of
1 to 5 in each of four categories: communication skills, poise-
presentation, appearance, and response to questions. After the
interviews, the panel ranked Burke first, Williams second, and
Malloch third, with average interview scores of 5, 4.6, and 3.5,
respectively. The panelists compiled their notes into written
statements; they delivered their score sheets and statements to
Zeoli, who summarized their recommendations and submitted his
written summary to the chief of police and the town manager.
As to Malloch's score, panel members commented that she was
"nervous"; lacked "command presence"; did not identify herself
as a "go-to person" on her shift; and, of particular concern,
did not offer a tactical plan in response to a question on a
hypothetical shooting, responding merely, we "go in." Citing
Malloch's response to a question on her "leadership style," the
panel expressed concerns that Malloch's answer that she "tends
to ask a lot of questions of officers" indicated a lack of
decision-making ability or knowledge about her job.
The panel noted also that Malloch's answer to the question
on how to improve the operational efficiency of the department
"did not appropriately address the question." The panel's
report stated that Malloch responded that she would improve
efficiency by "mak[ing] sure the officers went out on the
25
road."14 One of the other two candidates suggested a mentoring
program for officers who had passed a "break-in period," and
another suggested a revamped field training program for new
officers.
In contrast to the positive assessment of Richard's honesty
in not giving a response that they "wanted to hear" concerning
an atypical answer to another question, none of the interviewers
made any comment on candor or forthrightness in Malloch's
response. Indeed, one of the panel members commented that
Williams's answer on the efficiency question was "more
adequate," because he "talked a lot about officers being on
time, being accountable, being held accountable, things like
that."
Before the panel delivered its report, Nihan advised
Sweeney verbally of the panel's rankings, which he described as
"clear cut." Sweeney then summarized this discussion to the
town manager, Troy Clarkson, before they conducted their
14
Before the commission, Malloch elaborated that her
"answer was that in our department there are some officers
who tend to stay in the station for extended periods of
time and my way to increase operational efficiency at the
department is to make sure those officers leave the station
and go to events such as the high school football games and
basketball games and perhaps a "Dick's" [store] opening or
something like that, but to not stay at the station and
watch TV or whatever it is that they're doing for four or
five hours an evening. That's not efficient use of the
department's time."
26
interview of the candidates and before the panel's report had
been received; he explained that the panel had considered Burke
"far and above the other two people" and as "an outstanding
candidate of the three," that "Williams had ranked number two,"
and that Malloch "had ranked number three."
Sweeney testified to the commission that he was "not
surprised" by the panel's ranking. He said Burke "seems to be
someone that gets out in front of things and people will tend to
follow him," and that he had seen "other officers around the
station from time to time" asking Williams questions and that he
thought Williams had "given good sound advice." As to Malloch,
his general impression was "that she does a good job. She
handles her calls in an efficient manner. I think she gives a
very good effort every time that she comes to work, but she is
not someone that I see as taking a leadership or taking the lead
on things[,] more of a person that needs to be reassured
sometimes that she's doing the right thing and exhibits a desire
to get a collective opinion on things versus just leading the
charge."
The chief of police and the town manager then conducted a
second round interview with each of the candidates. The
interviews lasted between thirty to forty-five minutes.
Clarkson asked each candidate two questions: (1) "What is the
last book you read?" (Clarkson testified that he asked the
27
candidate's "favorite book")15 and (2) "explain the difference
between management and leadership?" With regard to the first
question, the town manager was attempting to gauge how each
candidate would respond to an "out of the box" question. In
posing the second question, Clarkson wanted to know if the
candidate understood the difference between the administrative
and operational duties associated with being a manager as
opposed to having the leadership skills to inspire, motivate,
and lead others.
Malloch did not offer a "complete response," to the second
question, and did not return to the question later in the
interview. By contrast, Burke's and Williams's answers
convinced the town manager that they understood the difference
between management and leadership. Clarkson decided that Burke
and Williams were the top two candidates, and Malloch was not
ready to serve in a leadership position; Sweeney agreed.
ii. Bypass promotion and commission's review. After
15
Troy Clarkson, the town manager, testified at the hearing
before the commission that Malloch responded that "Watership
Down" was her favorite book, and he asked nothing further about
her response; he did not remember what Thomas Burke responded;
and David Williams responded that he "does not read books for
entertainment, but when he has spare time he reads the
department policy manual." Clarkson categorized both Malloch's
and Burke's responses as "somewhat generic," and stated that he
was "looking for the physical and body language response" more
than a specific answer. Clarkson considered Williams's answer
to display a "willingness to be honest . . . and not try to
think of something that we wanted to hear," and testified that
he was struck by that honesty.
28
reviewing the written summary from the interview panel, his own
recollection of the candidates' second interviews, and the
police chief's recommendation, Clarkson opted to bypass Malloch,
and to appoint Burke and Williams. Clarkson noted, "Officer
Burke and Officer Williams were far better suited to hold a
position of rank and authority in a police department in a
paramilitary organization." Clarkson wrote Malloch a bypass
letter containing his reasons for the bypass, with instructions
on how she could pursue an appeal to the commission.
While expressing some concern about the categories used for
ranking the candidates, the "rehearsed and exaggerated" nature
of some of the testimony, such as "comments about the
nervousness of [Malloch] . . . as compared to the nervousness
of one of the male candidates," and the "somewhat uniform nature
of the testimony from the [t]own's sequestered witnesses," the
commission found that the town had reasonable justification, by
a preponderance of the evidence, to bypass Malloch.
iii. Reasons for remand. During argument before us, as
she did before the commission and in the Superior Court, Malloch
argued that her bypass was based, at least in part, on her
gender. "The fundamental purpose of the civil service system is
to guard against political considerations, favoritism, and bias
in governmental hiring and promotion." Massachusetts Ass'n of
Minority Law Enforcement Officers v. Abban, 434 Mass. 256, 260
29
(2001), citing Cambridge v. Civil Serv. Comm'n, 43 Mass. App.
Ct. 300, 304 (1997). The commission may, and indeed should,
closely scrutinize appointments and promotions "[w]hen there
are, in connection with personnel decisions, overtones of
political control or objectives unrelated to merit standards or
neutrally applied public policy." Cambridge v. Civil Serv.
Comm'n, supra.
Significantly, although it ultimately affirmed Malloch's
bypass, the commission noted that there were a number of factors
in this case supporting a concern that gender bias might have
played a role in the bypass determination, which would be a
violation of basic merit principles.16 We share the commission's
stated concerns. Where there are overtones of gender bias, any
proffered justification for a bypass must be weighed carefully
to ensure decision making in accordance with basic merit
16
In the commission's written decision, the chair of the
commission stated, "[T]here are certain factors that were of
concern to me in this regard. The [t]own employs only two (2)
female police officers and no female has ever served as a
superior officer. The [t]own assembled two all-male review
interview panels who rated Officer Malloch below her two (2)
male colleagues for reasons partly related to 'poise-
presentation' and lack of 'command presence.' The members of
the review panels met jointly prior to their [c]ommission
testimony, resulting in parts of their testimony (i.e. --
comments about the nervousness of Officer Malloch during her
testimony) sounding rehearsed and exaggerated as compared to the
nervousness of one of the male candidates. Finally the [p]olice
[c]hief's dismissive testimony about Ms. Malloch's recent
reading choice of a novel as a 'book about animals' -- and the
[t]own [m]anager's praise for a male candidate's candor that he
didn't read books -- only reinforced concerns I had. . . ."
30
principles. See Massachusetts Ass'n of Minority Law Enforcement
Officers v. Abban, supra at 264.
Because the Superior Court judge, having concluded that
delegation was impermissible, had ordered the matter remanded to
HRD for a "substantive review," he did not conduct a substantive
review, pursuant to G. L. c. 30A, § 14, of the commission's
decision, and had no opportunity to consider whether the
commission's determination that Malloch's gender was not a
factor in her bypass was supported by substantial evidence and
not an abuse of discretion or an error of law. Moreover, while
the parties contest whether the bypass decision was based on
impermissible reasons, the focus of their arguments before us
was whether the administrator erred in delegating its duty under
G. L. c. 31, § 27, and should have conducted its own substantive
review of the town's asserted reasons for the bypass, precisely
to consider whether the bypass was based on merit principles and
was made "upon adequate reasons sufficiently supported by
credible evidence, when weighed by an unprejudiced mind, guided
by common sense and by correct rules of law." See Massachusetts
Ass'n of Minority Law Enforcement Officers v. Abban, supra at
260 quoting Selectmen of Wakefield v. Judge of First Dist. Court
of E. Middlesex, 262 Mass. 477, 482 (1928). Thus, the parties'
briefs do not address in detail the substance of the asserted
errors by the commission.
31
4. Conclusion. Accordingly, we vacate the judge's order
entering judgment on the pleadings and remanding the case to the
administrator. The matter is remanded to the Superior Court for
a review of the commission's decision on the merits of Malloch's
bypass, pursuant to G. L. c. 30A, § 14.
So ordered.