Malloch v. Town of Hanover

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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.