No easy patronage cure

Some say Civil Service is the way to rid government of patronage hiring. But is the cure worse than the disease?

the massachusetts trial Court’s policies and procedures manual says all hiring is to be based strictly on merit. No practice or appearance of nepotism or favoritism is allowed. Yet for almost a decade the state’s Probation Department did just the opposite. The hiring process was rigged top to bottom to employ job candidates recommended by high-ranking politicians.

Now Beacon Hill lawmakers, including many who landed jobs for friends at Probation, say they are trying to find a way to remove politics from the hiring process. Some want to ban politicians from making any job recommendations. Others say recommendations should be allowed, but only introduced at the tail-end of the hiring process. One probation task force has called for having an outside group select the pool of job candidates. Another task force says hiring should be based on exam scores.

House Speaker Robert DeLeo, who recommended his godson and others for jobs at Probation, said back in December that he planned to file legislation placing Probation and its 2,000 employees under the state’s Civil Service system. The speaker said 30 other states do it that way.

Civil Service would seem to be the Holy Grail of anti-patronage policy. It uses tests to rank job candidates and a fairly rigid process of checks and balances to make sure any favoritism or nepotism is excluded from the hiring process. But aside from some favorable comments from union officials, the response to DeLeo’s proposal was uniformly negative.

“Cut the shit about Civil Service, as if Civil Service is a reform of anything,” says former attorney general Scott Harshbarger, who was appointed by the Sup­reme Judicial Court to head a task force reviewing hiring procedures at Probation.

Bedford Police Chief James Hicks, who heads a Civil Service committee within the state chiefs of police association, also warns against putting Pro­bation in Civil Service. “If you think probation is a broken system, then you’re adding it to an even more broken system by bringing it in to Civil Service,” he says.

What the critics of Civil Service are worried about is not the system’s ability to root out patronage, nepotism, and favorit­ism. By most accounts, it does a good job of that. Their concern is with the excess baggage that accompanies it (see “Rank Injustice,” CW, Spring ’04). Hiring under Civil Service is not always based on merit because a number of groups, particularly veterans, move to the head of the job queue as long as they get a passing grade of 70 on the test. The system is also ravaged by budget cuts, subject to legislative tinkering, and often stalemated with endless and counterproductive litigation. Civil Service is a cure that some say is worse than the patronage disease it was meant to eradicate.

DeLeo got the message. He put off filing his legislation and began quietly backing away from Civil Service. In March, he switched gears and joined forces with Gov. Deval Patrick and others in pushing for a heavily modified version of Civil Service at Probation, while leaving intact the old Civil Service system that currently covers some 24,000 employees in state government and thousands more in municipalities.

David Sullivan, the general counsel in the governor’s office of administration and finance, says Patrick wants to take an incremental approach on hiring practices, piloting new policies at Probation and, if those are successful, pushing for changes elsewhere down the line. “This is, frankly, a political calculation,” he says. “We want to get something passed. Honestly, it’s very difficult to change the system.”

Spoils system

Patronage has been a problem in the United States since George Washington assumed the presidency. Politicians naturally want to surround themselves with employees who share the same philosophy. They also want to reward with jobs those who helped them gain office. By the mid-1800s, those two tendencies had morphed into a spoils system that turned the federal government into a patronage dumping ground. A series of Republican presidents campaigned against patronage with limited success, until one disgruntled job seeker shot and killed President James Garfield in 1881.

“That cruel shot,” wrote historians Charles and Mary Beard, in The Rise of American Civilization, “rang through­out the land, driving into the heads of the most hardened political henchmen the idea that there was something disgraceful in reducing the chief executive of the United States to the level of a petty job broker.”

Congress responded by establishing the federal Civil Service system in 1883 and a year later many states, including Massa­chu­setts, followed suit. In Massachu­setts, Civil Service introduced merit-based tests to create lists of the best candidates for jobs and promotions. It also allowed em­ployees who felt they were unfairly bypassed, disciplined, or dismissed to appeal their cases to the Civil Service Commission.

The system in Massachusetts helped curb patronage, but at an un­sustainable cost in terms of money and red tape. As recently as the early 1980s, the state’s Human Resources Division had 500 people administering Civil Service. To­day the office has just seven em­ployees. The Civil Service system used to cover most of state and municipal government, but today covers primarily public safety employees—some 24,000 workers at parole, corrections, and the environmental police at the state level, and police officers and firefighters in 160 cities and towns.

Adding in Probation and its 2,000 employees would represent the first significant expansion of Civil Service in some time and require the development of a new series of tests for various positions at the agency. Paul Dietl, the state’s chief human resources officer, says developing tests to assess the skills of job applicants is a complicated process. It’s critical, he says, that the test measure accurately an applicant’s suitability for the job. “It’s important you do the right science so if you get sued, you have the science on your side,” he says.

Veterans dominate

The test is the centerpiece of Civil Service. It is designed to gauge in an objective manner the applicant’s understanding of the job’s duties and his or her likelihood for success. The higher the score, presumably, the better the job candidate. But that’s not always the case in Massa­chu­setts.

Several groups are given ab­so­lute preference in hiring under the state system. Absolute preference means that as long as a person in one of the special groups receives a passing score of 70, he or she is moved to the top of the hiring list and competes based on score with others in their group. That means someone can score 100 on the test and still not make it near the top of the list because he or she is not a member of one of the absolute-preference groups. Top preference is given to Massachu­setts– based sons and daughters of police or fire officials killed or injured in the line of duty, and Massachusetts-based disabled and able-bodied veterans.

Records indicate veterans tend to dominate hiring lists, particularly in Boston. The most recent police test was given in 2009. The 150 top-ranked applicants on Boston’s list were all from one of the absolute-preference groups, primarily veterans. Boston Police Com­missioner Ed Davis says he has the utmost respect for veterans, particularly combat veterans. But he thinks they should be given extra points on their test scores instead of absolute preference. He says Boston, which is trying to implement community policing, needs police officers with a variety of skills and backgrounds.

“We don’t need a more militarized police department,” he says. “It needs to be balanced. No one wants an army.”

There are ways around the preferences. The Boston Police Department hired 55 people from the list over the last two years, so they all should have come from one of the absolute-preference groups. But the department hired, in fact, only 13 of those job candidates. The 42 other hires went to people outside the preference groups under an exception granted when an agency needs em­ployees with specific skills. In Boston’s case, 27 of the jobs went to women needed for rape crisis prevention and transport of female prisoners. Eight jobs went to job candidates who speak Cape Verdean and seven went to Haitian Creole speakers.

The Legislature also sometimes meddles with Civil Service lists. A review of Civil Service bills approved over the last decade found dozens of instances where applicants who exceeded age requirements for a position were granted reprieves through special legislation.

In 2009, the Legislature took the unusual step of moving six individuals by name to the top of the Civil Service hiring list for firefighter in Fall River. Lists typically last two years and then expire. The six hopefuls had risen to the top of one list, but didn’t get hired before the list expired, which meant they would have to take the test again and work their way up again. The individuals accused the city of deliberately delaying job offers to avoid hiring them. One of them alleged the hiring delay was retaliation against him because he previously had a relationship with the mayor’s chief of staff, who later married then-Mayor Ed Lambert.

Whatever the cause of the delay, Fall River officials, including the mayor, took up the cause of the firefighter candidates, winning passage of state legislation to move them automatically to the top of the next hiring list. Patrick vetoed the measure, noting in his veto message that the Civil Service exam was created to “avoid patronage and special treatment of the nature authorized in this bill.” The Legislature brushed aside his concerns and overrode his veto. Rep. David Sullivan of Fall River, who sponsored the legislation, said it was a matter of fairness. “What happened to these individuals shouldn’t have happened,” he says.

Boston vs. Commission

Davis, the Boston police commissioner, is engaged in a fierce legal battle with the five-member Civil Service Commission, which he claims is biased against him and other managers who are trying to weed out job applicants who shouldn’t be carrying guns.

Since January 2008, 35 people have filed appeals with the Civil Service Commission alleging they were improperly bypassed for jobs by the Boston Police Department. The commission ruled against the department in 19 of the cases, or 54 percent of the time.

Davis isn’t backing down. He appealed 17 of the 19 negative commission decisions to Superior Court. His track record so far is nine wins and two losses, with six cases still pending. Davis says the results speak for themselves. “It’s so clear that the process is swayed in favor of the candidate,” he says.

Nearly every disputed case hinges on the legal issue of whether the commission went beyond its mandate to decide whether the police department had “reasonable justification” for bypassing a job candidate.

In one appeal filed by  Juan Rodrigues, who at the time was working for the Providence Police Department, the commission ruled 3-2 that the reasons the Boston Police Department gave for bypassing him—disciplinary issues while in the military and while working for Federal Express—were invalid. On appeal, Superior Court Judge Linda E. Giles ruled that the commission improperly substituted its judgment for that of the Boston Police De­part­ment. “When an individual, such as Rodrigues, has displayed poor impulse control or been cited for prior misconduct, it is for the appointing authority, not the commission, to decide whether to take on the risk inherent in hiring that individual,” Giles wrote.

Davis singles out one commissioner in particular for bias. He says Commissioner Daniel Henderson, an attorney and former probation officer, has demonstrated “personal animus” toward the police department and to many of its staff.

In the 35 Boston Police Department cases that came before the commission, Henderson voted against the department 25 times, or 71 percent of the time. He voted against the department in all 19 decisions it lost as well as six of the 16 cases it won. In those six cases, Henderson was often the lone holdout. And in nine of the 10 cases where Henderson supported the department, they were unanimous decisions.

Henderson, who declined comment, writes decisions that are thoughtful and well written, but it’s clear he is skeptical of many of the reasons given by the Boston Police Department for bypassing job candidates. He is particularly skeptical about the department’s psychological testing.

For example, David Chaves of West Roxbury was by­passed­ by the department because he “appeared paralyzed by his anxiety” and presented “as a rigid, moralistic man who has difficulty acknowledging any limitations,” according to the department’s psychological analysis. But Henderson, who wrote the commission’s 3-2 decision overturning the police department’s bypass, spent 57 pages undercutting that assessment. “The preponderance of the credible evidence shows simply that the appellant did not live up to the subjective expectations of the clinical interviewer,” he wrote.

Henderson isn’t the only one on the commission who has raised concerns about the Boston Police Department’s psychological testing.

Shawn Roberts of Boston was bypassed for a patrolman’s job because he was perceived as vulnerable to “extreme anxiety, with attendant distortion of his thinking and behavior.” Commissioner Paul Stein made clear in writing the 5-0 decision in Roberts’s favor that he thought the diagnosis was unfounded. “The facts of this case leave little doubt that Mr. Roberts is a ‘solidly’ normal candidate for the position of Boston Police Officer and the commission is skeptical that any fair and objective psychiatric medical evaluation reasonably could come to the opposite conclusion,” he wrote.

Stein’s decision was appealed to Superior Court, and Judge Christine M. Roach sided with the commission. “The clinicians’ interview conclusions are not supported by substantial, reliable, psychiatric evidence,” she wrote.

While Davis alleges the commission is biased against his department, commission records indicate hiring authorities win most bypass cases overall. Since the beginning of 2008, the commission has ruled against the hiring authority only 26 percent of the time, far less than the 54 percent rate in Boston. The rest of the appeals were either denied (48 percent) or mutual agreements were approved (26 percent).

Davis says his success rate on appeals demonstrates that the Civil Service Com­mis­sion repeatedly oversteps its authority. He says police departments in other major cities, such as Los Angeles, New York, and Miami, operate their own hiring systems without a Civil Service commission constantly looking over their shoulder. He says Boston should be allowed to do the same. “We should be at a point where we can do this ourselves,” he says.

Romney and Patrick

Former Republican Gov. Mitt Romney and Democratic Gov. Patrick couldn’t be more different politically, but their views are not that far apart on Civil Service. Rom­ney, for example, appointed a chairman of the Civil Service Commission who was openly critical of rules such as the absolute veteran preference, which he said promoted mediocrity among public safety workers. Patrick and his appointees haven’t been outspoken about Civil Service, but they’ve quietly pushed for some of the same changes.

Both governors have had problems with Daniel Hend­erson, the commissioner viewed as too close to labor. Henderson served as a commissioner under Romney from 2002 to 2006. When he applied for reappointment, Romney turned him down and replaced him with Christopher Bowman, a member of his administration.

 Henderson applied for a new opening on the commission in 2007 when Patrick came into office. Patrick not only appointed him but named him chairman. But two weeks later the governor changed his mind and asked Hend­­erson to resign. Henderson refused, so Patrick bumped him out of the chairman’s slot, cut his pay, and named Bowman chairman.

Patrick administration officials wouldn’t discuss what happened, but it’s a fair bet negative reports flowed in about Henderson after his appointment. Patrick didn’t just give up. He tried to force Henderson off the commission again last year by filing a government reorganization bill that would have effectively eliminated Henderson’s salary. Public sector unions protested the backdoor move, and the House and Senate rejected Patrick’s bill. The governor resubmitted a new version of the bill, this time without any Civil Service changes.

Like Romney, Patrick has steadily cut funding for Civil Service. The commission’s budget is currently $450,000, down 11.5 percent from fiscal 2008 and 23 percent from fiscal 2001. The commission has a total of seven employees —five commissioners, a legal counsel, and an administrative assistant. Of the five commissioners, three receive salaries ranging from $77,000 to $96,000, while the other two work only a couple days a month. One of the part-timers receives no salary and the other receives an $8,300 annual stipend.

John Taylor, who served as a commissioner from 2003 until 2010, said the budget cuts are a major reason why it takes so long to move cases through the commission. “That’s the biggest problem,” he says. “If they fund the Civil Service Com­mission, it can do the job.”

Bowman, the commission’s chairman, says even with the budget cutbacks the agency has made significant progress in reducing the backlog of cases. By bringing in outsiders to hear some cases, Bowman says the number of appeals pending at the agency has dropped from 884 when Patrick came in to office to 186 at the end of January this year. He says 90 percent of cases are now disposed of within 12 months.

In 2009, Patrick’s Human Resources Division proposed giving police chiefs more hiring flexibility by allowing them to choose any job candidate within a range or band of scores instead of only the candidates with the top scores. Public sector union officials protested, and administration officials withdrew their proposal.

The governor’s bid to merge probation with parole probably best reflects his current attitude toward Civil Service. Parole workers are already under Civil Service, but Patrick proposed a new system for hiring at Probation. Like Civil Service, job applicants would be ranked by their scores on a test and hires would be made based on the rankings. But, unlike Civil Service, veterans would only receive two extra points on the test instead of an absolute preference in hiring. There would also be no appeals to the Civil Service Commission.

With reform of Civil Service elusive on Beacon Hill, many cities and towns are taking action on their own. Many mayors have pushed through home rule legislation exempting their hiring of police and fire chiefs from Civil Service. Wellesley last year went even further, winning passage of legislation removing it from Civil Service for all new police hires.

Terrence Cunningham, the Wellesley police chief, says the police union agreed to the change in return for a two-year contract extension and continuation of advanced-education benefits under the Quinn Bill.

Under Civil Service, Cunningham said that if he needed to hire three new officers, he would notify state officials and be sent the names of seven job candidates at the top of the current police list. He would have to choose the top-ranked candidates or bypass them and run the risk of being challenged before the Civil Service Commission. His biggest beefs with Civil Service were that the absolute preferences yielded a narrow applicant pool dominated by veterans and many of the questions on the test were not relevant to Wellesley.

Cunningham conducted his first non-Civil Service hiring late last year. Wellesley conducted its own exam, which asked questions about the town’s bylaws and the police department’s operating procedures. Scores were tabulated and ranked, with veterans given extra points but not absolute preference. “I had 400 people take it,” Cunningham said, noting job candidates came from all across the country. “As long as they passed it, I could take anyone I want.” 'Civil service may not be perfect, but it's the only mechanism to level the playing field.'The Wellesley system offers managers hiring flexibility, but its weakness is that it is potentially subject to the sort of political manipulation that Civil Service systems were created to stop. By contrast, the Civil Service system is cumbersome and time-consuming, and, with its preference set-asides, is not strictly merit-based, but it’s effective in eliminating patronage. Many examples of the system’s success in blocking patronage hires are contained in the commission’s case files.

Last year, for example, the commission ruled in favor of a candidate for a police lieutenant’s job in Quincy who alleged bias by then-Mayor William Phelan and former Police Chief Robert Crow­ley. Three of the mayor’s relatives were also applying for the job. In 2006, the commission intervened when the Med­ford Fire Department bypassed a candidate serving in the armed forces to hire the fire chief’s son and the sons of two other firefighters. And in 2009 the commission blocked the city of Methuen from skipping over one group of candidates for police jobs to reach a second group that included the police chief’s niece, her fiance, a police captain’s nephew, the relative of a school committee member, and the nephew of a city councilor.

The system works. A test is a test,” says Hugh Cameron, president of the Massachusetts Coalition of Police, a statewide union representing some 3,500 police officers across the state.

In many ways, the fight over Civil Service is part of the much larger struggle taking place between states and municipalities and their unionized work forces. State and local managers say Civil Service is no longer based on merit and doesn’t offer them enough hiring flexibility, while union leaders defend Civil Service as a system that brings transparency, credibility, and fairness to government hiring.

Ed Kelly, president of the Professional Firefighters of Massachusetts, backs the overall concept of Civil Service and the absolute preference for veterans. Kelly, a veteran himself, says a typical Boston kid hanging out on the street corner can go into the military, serve his country, and come out with a chance at a middle class life. “That is a path to the American Dream,” Kelly says. “I know. I was that kid.”

He says he won’t let politicians take that dream away without a fight. “Civil Service may not be perfect,” he says, “but it’s the only mechanism to level the playing field and take politics out of hiring and promotions.”