What is Civil Service? It is MGL CH 31 & 32

Civil Service is a government agency designed to provide fairness in the public sector, in entry level hiring, promotions (including bypasses in rank), demotions (layoffs) and discipline (which includes suspensions and termination), but not letters of reprimand. Letters of reprimand have to go to arbitration. Employees on probation, who have less than one year from the date of graduation from the Police Academy can be fired without cause, and have little or no Civil Service protection.

Civil Service has hearings in Boston to settle the above disputes, with neutral and detached quasi-judicial hearing officers, who provide written decisions which include findings of fact, which become case law in Civil Service, and those cases provide your attorney the opportunity cite to prior Civil Service cases to support your case ( https://www.mass.gov/orgs/civil-service-commission ). The hearings are under oath, and they are recorded to reduce perjury. Civil service provides for subpoena power. To keep from having frivolous appeals Civil Service can increase the original punishment initiated by the agency. Civil Service decisions can be appealed by the Municipality to a Superior Court Judge who can overturn a decision. As a matter of practicality Municipalities generally live with Civil Service decisions because the costs (attorney fees) can become astronomical. Civil Service in the past has been extremely pro employee. ( https://www.mass.gov/service-details/learn-about-the-civil-service-commission-appeals- process ).

Without even reading your contract, I am willing to bet there is a preamble, or a section, which includes the language “MGL Chapter 31 & 32”. The intent of that language is to incorporate by reference those two laws, which provides Civil Service protection in your contract. If there is a future change to either of those two laws which provides a benefit, you automatically receive that benefit, without having to negotiate through collective bargaining.

If Patrolmen are laid off due to budget constraints, those employees are placed on a Civil Service laid off list. Every Municipal and Transit Civil Service Patrolman’s list is frozen until those employees get hired. Those employees are allowed three chances to come back to their department in a five-year period to get their job back. If they say no the third time then they can’t return. What happens if you get laid off in a non-Civil Service Department and the Chief doesn’t like you? Every two years Reading PD officers have to be sworn in. What happens if the Chief decides your not getting sworn in? Your e-board will try to negotiate protection and the Town will tell them you are trying to negotiate Civil Service back into your contract.

Once you lose Civil Service, non-Civil Service employees cannot transfer to another Civil Service agency. Once you lose Civil Service, a grandfathered employee who is promoted to a new rank, will become a non-Civil Service employee.

Why would a Municipality offer to remove you from Civil Service?

The short answer is because they can fire you much easier, and can promote whoever they want. You stand on the same ground as a DPW worker. So many employees win at Civil Service in discipline cases, just on errors lone by the Municipality, in rigid notification rights required by Civil Service. Municipalities are not adept at negotiating thru the Civil Service discipline process because they don’t do it enough. Very small towns lose personnel to bigger departments because there is more opportunity to make money that is why they are non-Civil Service. Towns make a fortune running entry level tests at $150 a pop. Leave Civil Service and you are stuck.

Civil Service versus Arbitration in Discipline Cases

This is probably the biggest difference. In a non-Civil Service agency, the Chief can write you a three-day suspension on the back of a napkin and your only recourse is arbitration. Arbitrators are chosen from a list provided by the American Arbitration Association (AAA). If an arbitrator has a reputation of being pro employee he won’t get picked by the Municipality because they have a right of rejection, and the result is they won’t get work. Arbitrators are generally pro management.

In arbitration hearings you can subpoena witnesses. Your lawyer can write one, but if the person does not show up there is little recourse, the show goes on. Your MassCop/IBPO attorney is not going down to the local District Court to petition a judge to compel compliance and find your witness to be in contempt. Most witnesses are police officers from your department, and they can be ordered to appear by the Chief so you can get around this issue. Civil Service has subpoena power ( https://www.mass.gov/service-details/request-a-subpoena-for-a-civil-service-commission-hearing ).

You have to understand how discipline is being investigated today. Chief’s will contract out a retired Chief who owns a company like retired Tewksbury PD Chief Al Donovan ( http://www.apdmanagement.com/ ). He will come in and write a novel filled with hearsay, and your Chief will present this report at arbitration. The Arbitrator will give it “weight” because there are no rules of evidence at arbitration hearings. At Civil Service, if that witness is not present, his testimony does not come in because it is hearsay. Al Donovan’s report which will include civilian witness statements, of witnesses who are not present to testify, and will include a conclusory opinion on the outcome of the case, will not be allowed into evidence. That is one of the reasons why employees win at Civil Service. https://www.americanbar.org/groups/dispute_resolution/resources/DisputeResolutionProcesses/arbitr ation/

Arbitration hearings occur in the Chief’s backyard, in his comfort zone, at the Town Hall or at the police station. The Chief (Maybe not your current one but maybe the next) can stretch the truth at your expense and hurt you. An arbitration hearing may or may not be recorded. Civil Service hearings are up on the 5th floor at One Ashburton Place in Boston, in a court room no different from your local district court. The Chief is kept honest because he is nervous, and out of his comfort zone, doesn’t know where to park his car. My Chief and the Town manager were deemed not to be credible in a Civil Service by- pass decision. It was overturned by a Superior Court judge. Hence, the reason there was a push by our Town Manager to remove us (Reading PD) from Civil Service. Our Fire Department remains in Civil Service. They simply don’t have the number of personnel problems that police departments have.

Civil Service has to be activated by the employee. The Union can not do it for him. For example, if you receive a five-day suspension you can appeal to Civil Service or to Arbitration. Once you go to Civil Service, you can not get a second bite at the apple and go to arbitration. If you go to arbitration you will generally have a hearing in front of the Chief. If you lose you then go to the Town Manager. If you lose you then can go to arbitration. Sounds great but wait!!! The Union can stand in your shoes, and deny you arbitration on a vote. The Union has subrogation rights and can accept the discipline imposed from the Chief. Your only alternative is to go to a monthly meeting at MassCop or IBPO, and make an appeal to the body to overturn the Union’s vote. A Rowley PD officer did that twice because his Union did not back him. The first time was a three-day suspension and MassCop gave him arbitration. A witness later recanted his testimony and the charges were dropped before arbitration. Chief Al Donovan wrote a book including an allegation he was not forthcoming. The second instance was a letter of reprimand for untruthfulness, and MassCop denied him arbitration because it would have created precedent to allow unfettered arbitrations for letters of reprimand because it was cost prohibitive. His co-workers were afraid of retaliation by the Chief so they voted against him for arbitration. In a non-civil Service Department, the Chief will attempt to gain influence over the board members to control the union. If your Union is gutless, and a lot of unions are, you will have a big problem if you leave Civil Service. The Chief can go after you one man at a time.

The Chief’s best weapon to derail your career in a non-Civil Service Department

The Chief in a non-Civil Service Department will use the written reprimand as a weapon in progressive discipline versus a suspension, because they know that the process favors them. MassCop/IBPO will likely grant arbitration on a suspension, and overturn a union’s veto not to arbitrate, but not on a letter of reprimand. If the Chief can control the Union vote to deny arbitration on a letter of reprimand, MassCop/IBPO will not overturn that veto because it would create precedent to arbitrate letters of reprimand. They would instantly have a flood of hundreds of requests for arbitration, and they can’t afford it. Now the Chief can push through marginal or bogus letters of discipline because the Chief knows he has the backing of the Municipality, and because the process ends there. Your union denied you arbitration. Here is MASSCOP's response to the legal question, can an individual take a grievance to step 4 arbitration?

“As a general rule, the union is the party that holds the right of arbitration not the individual. The reason being is that an arbitration decision is binding on the union, therefore the union has to be a party. Also, Step 4 of the grievance procedure actually states that the board or the union can bring a matter to arbitration. Basically, if the individual files and works the grievance through the town level, if the union does not feel the grievance has merit and chooses not to support the grievance, the member can exercise his/her rights under the Masscop Constitution. But if Masscop does not support the grievance, there would be no further right of the individual to file for arbitration. “

You will now have a letter of reprimand on the Mayor’s/Town Manager’s stationary upholding the discipline which will sit in your personnel folder for forever and a day, which future administrations will give full credence to. Then a Chief can create a foundation of past discipline, which can include charges of “untruthfulness” and “conduct unbecoming”, which can “marginalize your credibility”, and can be used to later bootstrap more discipline. This is exactly what is happening to the Rowley PD officer.

A Civil Service Chief can do the same thing but remember, when future discipline results in a suspension, you have Civil Service. You don’t have to deal with control over the union exerted by the Chief in denying you arbitration. Civil Service Hearing officers are fully aware of how police departments function because that is all they hear day in day out. That is how Civil Service works for you. Civil Service keeps the Chief and the Municipality playing fair. Police Officers do occasionally commit acts warranting discipline, up to and including termination. Civil Service is not going to protect those employees. Civil Service will only ensure fairness in the process where discipline was imposed. Civil Service will uphold legitimate discipline.

The practical reality of working with non-Civil Service employees

Even if you are grandfathered under Civil Service, you will be working with new guys that don’t have your protection. They work under a different set of rules. They will not function under the existing culture the way it has always been. They will have to survive, and that means playing ball with the Chief. Eventually they will outnumber you. If Civil Service is so useless, doesn’t work, then why aren’t all departments getting rid of it for more money? Do you really think you are on the cutting edge?

(https://www.newburyportnews.com/news/local_news/rowley-police-officer-sues-chief-two- others/article_06dc10ca-568c-560c-b37e-90a405ea5c33.html ).

That Officer had to front a massive amount of money to file a lawsuit. A Chief in a non-Civil Service department WILL become the all-powerful. Civil Service is the 500-pound gorilla in the room that keeps Chief’s and the Municipality from brutalizing you. I will make an analogy; you have heard the term of art peace thru strength? America keeps the world safe because it has nukes. It doesn’t have to use them. Take them away and we live in a different world. Take Civil Service away and in a few short years you will work in a much different Department. Just because no one has activated Civil Service doesn’t mean it’s not working. It works because it is there. You may have a great Chief now. But what happens in five or ten years when he retires, and the department goes outside and gets a New Hampshire Chief. Things can, and will be much different. Look at the poor guy in Rowley. Reach out to him and ask him what he thinks about working in a non-Civil Service department.

Promotions Non-Civil Service you may have a test, that takes you to the next phase. In essence the test is pass/fail. Retired Chief Al Donovan will proctor the exam. Then he will use retired Chief’s for the oral board from his sister company (below). You study and get a 94 and the guy with the 78 stands on the same ground as you.

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You don’t think Chief’s that use his service don’t have a prior private conversation about each candidate before the assessment center? My point is this, you have no recourse except for what you write into your contract. You all can see what the promotional process will be like and the lengths some employees will go to be promoted. Guys stop reading promotional books and it ends up dummying down the department. Bars and stripes get handed to the people who play ball. That in itself will change the department and destroy moral. Civil Service is not perfect but it offers some protection for you.

What the town will do to you after you get all that money and you left Civil Service Do you honestly believe the town is not going to find a loophole to take the money back that they are dangling in front of you? Here is how it works. You get the raises and it looks great for a year or so, but the town has a plan they are not telling you about. You make some extra cash life is great. The Town has already figured out their budget and they know the loopholes. Go look at the town’s budget for the next year after you sign. See if they added money proportional to the police budget from the previous year to fund all those raises. If the money is not there, you’re never going to see it.

Health Insurance is generally negotiated separate from collective bargaining. There is a special committee one cop, one fireman, one DPW worker etc. In a nutshell the town sets the rates. A couple years go by and the split goes from 80/20 to 75/25. They pay you up front and then take it out behind your back in another way and blame the federal government or the affordable care act. But it is to remote in time for you to connect it to you giving up Civil Service.

Those massive OT rates. They do a manpower study on the department. They decide to add five or six new cops and one or two sergeants. Your OT dries up. Yes, you make good money when you work OT, but there aren’t as many OT shifts. Your details dry up too because there is a larger pool of officers. Guys won’t bang in sick because they are going to be the next Sergeant or Lieutenant. That is exactly what happened to us (Not the health insurance but that is coming).

Pay raises…. over the next ten years they will knock off a percentage here and there until you are right back where you were had you stayed in civil service.

The only people who will make out are specialists with built in OT, the Chief, and the Town!! Not the hardworking street cop!

There is a mechanism under the law where a Municipality can leave Civil Service without your consent. No Municipality I know of has ever done it. We live in a heavy Democratic state that is pro union. If you fought against it, I think you would win hands down. Join up with the Fire Department, because they could be next. People are fair and will support you.

Contract Negotiation – Pay to send your e-board to the best negotiation training in the country. It is an art!!!!!! I would declare impasse on a contract “in this economy,” and take the Municipality to the State Labor Relations Board (SLRB). You have nothing to lose. I know there is no binding arbitration, but if you win, city council or town meeting, will vote on whether to give you the pay raise. They will!! You won move on…Most people support what we do. Don’t take zeros. Ask yourself this, they have no money but if you give up Civil Service, they will give you an 8 or 10 percent raise? It does not make any sense. It’s a scam, they are hosing you!!!!!

My personal opinion I have been a police officer for 37 years, a sergeant for 30 years. I am a member of the Massachusetts Bar. Studying for a Civil Service police promotional exam is as difficult as preparing to take the Bar Exam. That is the god’s honest truth. Civil Service police promotional exams are like the nursing boards. If you don’t pass, you don’t touch the patient. If you don’t pass the Civil Service open competitive police promotional exams you have no business being in charge of police officers. I was the past Union President for IBPO Local #433 when my union voted to go non civil service. I resigned as Union president on the spot. It has proven to be the worst decision I have seen in my career. The patrol vote was 14-13. Sergeants and Lieutenants, I was the lone vote against. It has destroyed my department for all the above reasons. Ironically my Chief, who was a Sergeant Detective and voted to leave Civil Service, resigned June 28th, 2019, after he was suspended. He had no protection because he was a non-Civil Service Chief. Last week we fired a probationary patrolman that was hired (non-Civil Service) as a favor that was borderline special needs. He should never have even gotten to the interview phase. When you leave Civil Service, cops become afraid to work the street. A third officer (Civil Service) resigned in lieu of termination a year ago because he wrote citations out, and never stopped the car. He just turned in the citations. He was the last Civil Service hire on my department. They had other eligible candidates to hire including the past Captain of the High School hockey team. They hired this guy on purpose to show we had poor a candidate pool under Civil-Service, and to help sell non-Civil Service. He voted to leave Civil Service too! I am telling you that you will regret doing it!!!!! When you leave Civil Service, you deserve everything you get from then on!

Sgt. Mark J. O’Brien

Reading PD

C-978.771.5448

Call me if you have any questions