(dissenting). I respectfully dissent from the court’s opinion because, in my view, both the Civil Service Commission (commission) and the Superior Court judge erred in declining to consider available and relevant evidence. Specifically, MAMLEO’s motion to supplement the record with evidence pertaining to the 1992 examination and the “functional equivalence” of those candidates falling within a three-point band should have been granted. Without the benefit of that proffered evidence, both tribunals perceived an inconsistency between the Boston police department’s (department’s) hiring practices and governing civil service protocol where, in reality, no such inconsistency existed.
Questions abound regarding the handling and resolution of these proceedings. First, as the court noted, the police department opted not to pursue an appeal, ante at 257, which I find remarkable in a case that may well have had a major impact on affirmative action appointments throughout the State. Second, no apparent logical reason supports the police department’s decision to withhold the banding evidence — evidence that might very well have tipped the balance in its favor before the *269commission.1 Last, and similarly puzzling, is the judge’s treatment of Boston Police Superior Officers Fed’n v. Boston, 147 F.3d 13 (1st Cir. 1998) (Superior Officers).2 In affirming the commission’s ruling, the Superior Court approved of its incorporation and reference to that decision. In my opinion, however, the commission’s selective reading of the Federal court’s opinion — borrowing certain conclusions and overlooking others — is suspect.
For instance, the Superior Court order recognizes, “[t]he Commission properly relied on [Superior Officers, supra at 17] to find that ‘[o]nce the consent decree expired, the reasonable justification for strictly race based promotions, also ended.’ ” Seeing how both the commission and the Superior Court gave careful consideration to the Federal court’s opinion, I am hard pressed to understand how they could overlook the “unanswered evidence that the one-point difference between [the minority candidate’s] score and that of the [nonminority officers] was, as a matter of testing accuracy, negligible.” And that, “[according to the [human resources division’s] expert testimony, ‘candidates who scored within a three-point band should be considered functionally equivalent . . . and equally qualified to successfully perform the job as any other person in that score band.’ ” Id. at 24. Given that the police department, itself, “concludes] that it had not yet succeeded in remedying the effects of its history of discrimination,” id. at 21, one can only speculate as to why this crucial evidence was not presented to the commission. Whatever the underlying rationale may be, it is clear that the Superior Court’s refusal to consider MAMLEO’s supplemented materials compounded this error.
*270Having been left out of the proceedings before the commission, MAMLEO petitioned the Superior Court to supplement the record with the pertinent documents associated with the Superior Officers litigation. Foremost among these materials is a 1994 letter from the personnel administrator expressing the “view that all applicants within any three-point score band are functionally equivalent with respect to the quality or knowledge being measured and, therefore, equally qualified to successfully perform the job as any other person in that score band.” As discussed below, evidence that the promoted candidates were “functionally equivalent” to the bypassed candidates markedly shifts the posture of this case.
Beyond the confines of the Superior Officers case, the record contained additional references to the 1992 examination and the gouging of candidates’ scores. For instance, the brief submitted by the police department to the commission addressed the “negligible” difference between the minority candidates’ scores and the bypassed candidates’ scores. After quoting the “unanswered evidence” language from Superior Officers, supra at 24, the police department argued: “Here, the grade span is at most two points, which it submits falls within the ‘functionally equivalent’ band described by the [human resources division]. . . . The evidence before the Commission thus makes abundantly clear that the black officers who were promoted shared virtually identical qualifications with the white [candidates].” See A. Celia, Administrative Law and Practice § 1562, at 124 (1986) (statutory scheme “recognizes that there may indeed be circumstances where additional or new evidence may be useful in the just and equitable resolution of the problem before the court”). Because the Superior Court judge knew that material, “unanswered evidence”3 existed, failing either to (1) grant MAMLEO’s motion to supplement the record; or (2) remand the matter to the commission for additional findings, see G. L. c. 30A, § 14 (4), (6) & (7); Northeast Metro. Regional *271Vocational Sch. Comm. v. Massachusetts Comm’n Against Discrimination, 35 Mass. App. Ct. 813, 814 (1994), constituted, in my opinion, an abuse of discretion. See Douglas Envtl. Assocs., Inc. v. Department of Envtl. Protection, 429 Mass. 71, 75 (1999).
In these circumstances, restricting the scope of the record essentially guaranteed the outcome. The “banding” evidence bears directly on the crux of the case, i.e., “whether, on the basis of the evidence before it, the appointing authority has sustained its burden of proving that there was reasonable justification for the action taken by the appointing authority.” Cambridge v. Civil Service Comm’n, 43 Mass. App. Ct. 300, 303 (1997). See G. L. c. 31, § 2 (b). In assessing the reasonableness of the police commissioner’s justification, it is important to recognize that any differential in examination score was of minimal significance. As the submitted information suggests, compliance with EEOC regulations need not contradict governing civil service law. Where, as here, a hiring authority promotes one “functionally equivalent” candidate over another, a conclusion that “basic merit principles,” G. L. c. 31, § 1, have been violated is dubious in light of its reliance on a knowingly incomplete record.
By neglecting to consider this pertinent information, both the commission and the Superior Court have placed their imprimatur on an employment practice that will frustrate the Boston police department’s admirable attempts to eradicate the vestiges of long-standing discrimination. See Superior Officers, supra at 25 (decision motivated by department’s “history of past discrimination, and statistics indicating that affirmative action was appropriate to avoid potentially actionable disparate impact in this situation”). Because a decision of great magnitude — one with implications in both the civil service context as well as antidiscrimination law — was rendered, in my view, without regard to critical evidence, I must dissent.
As the court notes, MAMLEO could “not account” for this omission either. Ante at 267. However, given that MAMLEO was not a party, it would be particularly difficult for it to explain the police department’s “tactical” decisions.
As the court mentions, the United States Court of Appeals for the First Circuit upheld the promotion of a minority candidate whose “performance on the 1992 [examination] was not only passing, but only one point shy of that of the [non-minority] candidates bypassed for his promotion.” Boston Police Superior Officers Fed’n v. Boston, 147 F.3d 13, 24 (1st Cir. 1998) (Superior Officers). In reaching its conclusion, the Federal court weighed heavily the police department’s well-documented “history of racial discrimination” and its “halting and, at times, quite modest progress in remedying [that] earlier discrimination.” Id. at 22, 23.
This is not to say that the evidence would have gone uncontested in the present litigation. Nor do I insinuate that the findings in Superior Officers, supra at 13, 14, are binding on these proceedings. Rather, these findings are significant to the extent that they provide notice to both the commission and the Superior Court that reliable evidence existed vis-á-vis the imprecision of the examination-scoring system.