MA Association of minority Law officers v. Abban & others

• Decision Date: 12 March 2001
• Docket Number: SJC-08396
• Citation: 748 N.E.2d 455,434 Mass. 256
• Parties: (Mass. 2001) MASSACHUSETTS ASSOCIATION OF MINORITY LAW ENFORCEMENT OFFICERS vs. GERALD T. ABBAN & others. <A HREF="#fr1-1" name="fn1-1">1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

748 N.E.2d 455 (Mass. 2001)

MASSACHUSETTS ASSOCIATION OF MINORITY LAW ENFORCEMENT OFFICERS vs. GERALD T. ABBAN & others.¹

SJC-08396

Massachusetts Supreme Court

March 12, 2001.

May 29, 2001.

County: Suffolk

Present: Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ.

Summary:

Civil Service, Decision of Civil Service Commission, Judicial review, Police, Promotion, Testing, Eligibility list, Failure to raise issue before commission. Practice, Civil, Review respecting civil service. Police, Promotional examination. Constitutional Law, Equal protection of laws. Administrative Law, Agency's interpretation of statute, Evidence.

Civil action commenced in the Superior Court Department on January 15, 1999.

The case was heard by John M. Xifaras, J.

The Supreme Judicial Court granted an application for direct appellate review.

Rheba Rutkowski for the plaintiff.

John M. Becker (Alan H. Shapiro with him) for Robert Burns & others.

Christopher J. Muse for Gerald T. Abban & others.

James F. Lamond was present but did not argue.

CORDY, J.

The Massachusetts Association of Minority Law Enforcement Officers (MAMLEO) appeals from a ruling of a judge in the Superior Court upholding a decision of the Civil Service Commission (commission) that the police department of Boston (police department) improperly promoted certain minority police officers to the ranks of sergeant and lieutenant, over nonminority defendants with higher test scores. MAMLEO, a plaintiff intervener in the Superior Court proceeding and not a party to the original proceedings before the commission, argues that the judge erred as a matter of law in upholding the commission's decision, and abused his discretion in denying MAMLEO's motion to supplement the administrative record.² The police department did not appeal from the Superior Court judge's decision. We granted MAMLEO's application for direct appellate review, and now affirm the judgment of the Superior Court.

Background. On January 30 and October 2, 1996, the police department made promotions to the ranks of sergeant and lieutenant from certified lists ranking each candidate based on his or her score on a September 12, 1992, civil service promotional examination. The examination had been developed by the State Department of Personnel Administration, now the human resources division (division), in compliance with a 1991 amendment to a Federal consent decree entered in Massachusetts Ass'n of Afro-American Police, Inc. vs. Boston Police Dep't, No. 78-529-McN (D. Mass. 1980). See note 5, infra. For most of the promotions, the police department selected the highest scoring candidates in rank order.³ However, the police department departed from strict rank order in promoting six minority officers to sergeant and two minority officers to lieutenant, over various nonminority officers with higher civil service examination scores, a process known as "bypass." Bielawski v. Personnel Adm'r of the Div. of Personnel Admin., 422 Mass. 459, 460 (1996). See G. L. c. 31, § 27. The examination scores of the minority officers who were promoted were no more than two points lower than those of the nonminority officers who were bypassed.

As required by Massachusetts civil service law, the police department provided reasons for these bypasses to the State personnel administrator. See id. The reasons given were: (1) "to ensure compliance with current EEOC [United States Equal Employment Opportunity Commission] guidelines,"⁴ (2) "as a result of the [c]onsent [d]ecree between the [police department] and [MAMLEO],"⁵ and (3) that the "promotion of a limited number of black officers to sergeant and lieutenant was constitutionally permissible" under the strict scrutiny standard applied to equal protection claims.⁶ The personnel administrator approved the bypasses.⁷

The bypassed officers appealed to the commission pursuant to G. L. c. 31, § 2 (b),⁸ and the police department responded with a motion to dismiss. While the motion was pending before the commission, the United States Court of Appeals for the First Circuit issued its decision in Boston Police Superior Officers Fed'n v. Boston, 147 F.3d 13 (1st Cir. 1998) (Superior Officers), see note 10, infra, ruling that the consent decree relied on by the police department applied only to promotions to the rank of sergeant, not to promotions to lieutenant, and had expired in April, 1995. Id. at 17. The commission invited the parties to submit additional argument addressing the impact, if any, of that ruling on the cases pending before it. The police department and the bypassed officers each submitted supplemental legal memoranda arguing that the Superior Officers decision supported their respective positions. These memoranda were added to the record before the commission, which was not otherwise augmented by the parties.

Administrative action. The fundamental purpose of the civil service system is to guard against political considerations, favoritism, and bias in governmental hiring and promotion. Cambridge v. Civil Serv. Comm'n, 43 Mass. App. Ct. 300, 304 (1997), and cases cited. The commission is charged with ensuring that the system operates on "[b]asic merit principles," as defined in G. L. c. 31, § 1,⁹ absent properly documented and supported bases for departing from such principles in particular cases. In the context of carrying out these responsibilities, and after holding hearings on September 11, 1997, and September 2, 1998, the commission ruled that the bypasses proposed by the police department were improper.

In reaching its decision, the commission applied the standard of review required by the governing statute, G. L. c. 31, § 2 (b): "to find whether, on the basis of the evidence before it, the appointing authority has sustained its burden of proving [by a preponderance of the evidence] that there was reasonable justification for the action taken by [it]" (i.e., promoting on considerations other than merit). Cambridge v. Civil Serv. Comm'n, supra at 303, citing Mayor of Revere v. Civil Serv. Comm'n, 31 Mass. App. Ct. 315, 320 n.10, 321 n.11, 322 n.12 (1991). In this context, 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." Selectmen of Wakefield v. Judge of First Dist. Court of E. Middlesex, 262 Mass. 477, 482 (1928).

Applying this standard to the police department's enumerated reasons for departing from rank order promotions, the commission found them and the police department's reliance on the Superior Officers case unpersuasive.¹⁰ In addressing two of the three reasons the police department had given for making the bypasses, the commission noted that the Superior Officers decision had made it clear that the consent decree had expired in April, 1995, prior to the 1996 promotions at issue here, see id. at 17, and that the EEOC guidelines were not enforceable in this context in the absence of the consent decree. See note 4, supra. Therefore, neither the decree nor the EEOC guidelines provided a reasonable justification for bypasses that came after the decree's expiration.¹¹

That left only the police department's constitutional argument to support the bypass promotions, i.e., that those promotions would survive a constitutional challenge under the equal protection clause. The commission found this constitutional argument to be misplaced, because its inquiry in a bypass appeal is very different from that required for an equal protection claim. In deciding bypass appeals, the commission must determine whether the appointing authority has complied with the requirements of Massachusetts civil service law for selecting lower scoring candidates over higher scoring candidates, and not whether those promotions might pass constitutional muster if challenged in some other forum on equal protection grounds. The commission concluded that the police department had failed to justify the challenged promotions as required by State law: "Upon expiration of the consent decree, the bypasses, based purely on race," a factor listed in G. L. c. 31, § 1 (e), as incompatible with basic merit principles, "no longer comport" with such principles.¹²

As a remedy, the commission ordered the division to place the bypassed officers at the top of the list of candidates for promotion, reviving a candidate's eligibility if necessary, so that the police department would have to consider each officer when it next made promotions to the rank of sergeant or lieutenant.¹³

Superior Court ruling. The police department sought review of the commission's decision in the Superior Court pursuant to G. L. c. 30A, § 14, and G. L. c. 31, § 44,¹⁴ arguing that it properly considered race in the 1996 promotions. The police department reasoned that race-based bypasses were not inconsistent with established merit principles in this particular case, because the bypasses were being used to remedy the police department's past racial discrimination.

MAMLEO was allowed to intervene in the Superior Court action, and filed a motion seeking to supplement the administrative record with extensive evidentiary materials that were not before the commission. Those materials had been part of the underlying record used by the police department and MAMLEO to support their argument in Superior Officers, supra at 23-24,¹⁵ that the promotion in that case was a "sufficiently narrow remedy" to address past racial discrimination by the police department. The materials included expert witness affidavits purportedly demonstrating that the 1992 examination did not validly distinguish among officers scoring within three points of each other, that such officers must therefore be considered functionally equivalent for promotion purposes, and that their functionally equivalent test scores should be "banded" together for the purpose of making promotion decisions. MAMLEO's motion to...