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Finklea v. Massachusetts Civil Service Commission

Superior Court of Massachusetts, Suffolk

February 9, 2018


          File Date: February 13, 2018


          Elizabeth M. Fahey, Justice of the Superior Court

         The plaintiff filed this action seeking judicial review of the Civil Service Commission’s ("the Commission") final decision to uphold the Boston Police Department’s ("the Department") decision to bypass the plaintiff for appointment to the position of full-time police officer. The plaintiff moved for judgment on the pleadings, arguing that the Commission’s final decision was arbitrary and capricious, not supported by substantial evidence, and based on an error of law. The Department (hereinafter "the defendant") cross moved for judgment on the pleadings. The defendant seeks affirmation of the Commission’s decision insofar as it concludes that the defendant was reasonably justified in its decision to bypass the plaintiff based on his driving history but seeks reversal of the portion of the decision wherein the Commission concluded it was not reasonably justified in bypassing the plaintiff based on his Continuance Without a Finding ("CWOF") on a felony charge. For the following reasons, the Plaintiff’s Motion for Judgment on the Pleadings is ALLOWED in part as to the Commission’s decision finding the CWOF was not a reasonable justification for the bypass, and the defendant’s Cross Motion for Judgment on the Pleadings is DENIED. The matter is REMANDED to the Commission for further explanation as to the driving history as the sole justification for the bypass.


         The following facts are drawn from the administrative record.[2] The plaintiff is an African-American man who is married with an infant child and resides in Hyde Park. At the time of the hearing in 2015, the plaintiff was thirty-two years old and in his last semester at Wentworth Institute of Technology ("Wentworth Institute"). He expected to graduate in August 2015 with a degree in project management. He was also working as a manager for T-Mobile and as a personal banker at a bank. He testified at the hearing that he recently accepted a project management position at a medical supply company.

         Prior to 2010, the plaintiff drove an old Honda Civic that required frequent repairs. The plaintiff was unable to afford many of the necessary repairs to obtain his inspection sticker. The plaintiff received a promotion while working at Best Buy, and he was able to replace the Honda with a 2008 Acura TSX, which was in much better condition and required fewer repairs than the Honda Civic.[3] The promotion also enabled him to pay his student loans.

         In June 2013, the plaintiff passed the examination for Police Officer. The defendant requested the Human Resources Division ("HRD") to send Certification 01903 ("the Certification") on June 26, 2014, and the defendant would select the first thirty-five candidates to fill the position of Police Officer. The plaintiff’s name was ranked 44th on the Certification. The plaintiff signed the Certification to indicate his continued interest in the position. Thereafter, he participated in an orientation meeting. In the meeting, the candidates were informed of the application process and provided with an employment application.

         On July 23, 2014 the plaintiff submitted his completed application, in which he provided detailed information about his background (education, residence, references, employment history, and driving and criminal records). Where the application asked if the applicant had been "convicted" of a felony, the plaintiff wrote that he had not. The plaintiff had a CWOF for a felony charge of receiving stolen property, a tire, with a value of more than $250.

         Detective Richard E. Henshaw ("Detective Henshaw") has been a Recruit Investigator for four years. Sergeant Detective Jose Lozano ("Sergeant Lozano") has been the head of the Recruit Investigations Unit since March 2014, and he supervises Recruit Investigators.

         Recruit Investigators first examine an applicant’s criminal record because it may exclude the candidate from further consideration. If the candidate has a felony on his or her record, the Recruit Investigator talks to the candidate and may encourage withdrawal of the candidate’s application. The defendant provides a document entitled "Exclusions and Timeframe Guidelines" ("the Exclusion Guidelines") to the Recruit Investigators, which provides guidelines for consideration of an applicant’s background. The Exclusion Guidelines list "felony conviction ... ("CWOF") to a felony (see Supervisor for confirmation) ... [and] any National Safety Council ("NSC") Class (bad driver class attended) within 5 years. NSC Class taken 3 surchargeable events in 2 years ..."[4] The Exclusion Guidelines also set forth, in relevant part:

This list is not exhaustive and is intended to provide a broad, general guideline. Moreover each scenario is taken on a case-by-case basis and may have extenuating circumstances which will need to be evaluated. Any of the above could exclude a person from the job. If they don’t withdraw, there is likelihood they may be bypassed.

         After receiving the plaintiff’s completed application, Detective Henshaw contacted the plaintiff about his CWOF. They did not then discuss the plaintiff’s driving record. On another occasion, Detective Henshaw requested certain tax documents from the plaintiff, which he provided. Near the end of the investigation process, Detective Henshaw conducted a thirty to forty-five-minute home visit with the plaintiff and his wife. During the visit, the plaintiff was not asked about his driving or criminal record.

         After conducting background investigations, Detective Renshaw drafts a Privileged and Confidential Memorandum ("PCM") with his findings for each candidate. Sergeant Lozano then reviews the completed folder for each candidate, checks for grammatical errors, and determines if the PCM is consistent with what the candidates stated. Next, the PCM is given to the roundtable for consideration. The roundtable discusses the PCM and determines whether to bypass or proceed with the applicant.

         On September 18, 2014, Detective Henshaw issued a PCM to then-Director of Human Resources Devin Taylor ("Taylor") and Sergeant Lozano, which described Detective Henshaw’s background investigation of the plaintiff. The PCM provided that Detective Henshaw spoke with the plaintiff’s supervisors at his full-time position at a bank, at Best Buy, and at the Boston Public Works Department, where the plaintiff was a co-op student for six months. All of his supervisors provided positive feedback about him. The plaintiff also provided recommendations from three neighbors, who gave him positive recommendations. The plaintiff’s credit rating is "excellent." In 2012, the Chelsea Police Department issued a license to carry a firearm to the plaintiff.

         Although the plaintiff’s driving history revealed no at-fault car accidents, it listed several driving-related infractions. Detective Henshaw testified at the hearing that the plaintiff:

[H]as attended 2 NSC courses in 2003 and 2007. The plaintiff’s driving record included seat belt violations, failure to keep in right lane, failure to display number plate, improper equipment (exhaust), not having an inspection sticker, and defaults and license suspensions for failure to pay fines for the underlying infractions. Prior to 2010, he was found responsible for speeding in: (1) March 2003 in West Roxbury; (2) July 2002 in Dorchester; (3) January 2002 in West Roxbury; and (4) October 2001 in Walpole.[5] On approximately half of all the infractions, the plaintiff was found responsible. Since 2010, the [plaintiff] has had only 1 infraction, on 04/04/2013, for speeding in Framingham.

         The plaintiff’s criminal history indicated that in 2001, the plaintiff was approximately eighteen years old when he was charged with a felony for knowingly receiving stolen property-a tire-from a friend. The matter was disposed of as "Guilty Plea or Admission to Sufficient Facts accepted after colloquy and 278 § 29D warning." His sentence was noted as "Sufficient facts found but continued without guilty finding until" six months. On September 11, 2002, the charge was dismissed. The plaintiff testified that he disputed the charges, but he followed his Counsel’s advice to accept the CWOF. He stated that his counsel informed him that upon paying the ordered restitution, the charge would have no further ramifications, and the case would be closed. The plaintiff also testified that he did not realize the charge was a felony. The plaintiff was unaware that he could seek to expunge or seal his record. His criminal record also indicated that in 2003, 2005, and 2007, he was criminally charged for operating a vehicle on a suspended or revoked license, but the charges were dismissed once he paid the fines.[6] In 2002 and 2003, the plaintiff defaulted for nonpayment of fees and warrants were issued for his arrest.

         Shortly after Detective Henshaw submitted his PCM on the plaintiff, a roundtable convened to discuss the plaintiff’s application. The roundtable included Deputy Superintendent Jeffrey Walcott, Sergeant Lozano, Taylor, Ian McKenzie, who is a representative of the Medical Unit, and Detective Henshaw. The roundtable voted to bypass the plaintiff. Detective Henshaw presented his findings to the roundtable but did not participate in the bypass decision. The Police Commissioner is the appointed authority for decisions to bypass. There was no evidence that the Police Commissioner approved the roundtable’s bypass decision. Five candidates who ranked below the plaintiff were hired.[7]

         On February 26, 2015, Taylor sent the plaintiff a letter to notify him of the reasons for bypassing him. The letter stated, in relevant part:

The Department has concerns about your motor vehicle and criminal histories. Your motor vehicle history contains several infractions, most significantly that you were required to attend a National Safety Class in 2003 and 2007, and continued to accumulate motor vehicle infractions after these courses. Several of the infractions ... are criminal infractions. In 2002, you took a CWOF plea to a charge of Knowingly Receiving Stolen Property, as the result of law enforcement finding a stolen tire on your motor vehicle. As you know, in addition to upholding the ...

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