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Voices: Perspective

Civil service hiring rules promote mediocrity among public safety workers

BY: John OLeary
Issue: Spring 2004
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Rank injustice

Civil Service hiring rules penalize the best and the brightest

By John O'Leary
Spring 2004

There is a public safety crisis in Massachusetts, a crisis of our own making. The quality of our workforce is not what it should be, and it's our own fault. At a time when public safety depends more than ever on a professional, educated workforce, the Commonwealth operates under a set of archaic rules that promote mediocrity among our police, fire, and corrections workers.

On a recent Civil Service exam for the Boston Police Department, 492 applicants scored 95 percent or above. Only one of these 492 top scorers landed in the first 75 positions on the hiring list. Civil Service laws prevent the state's largest city, and all other municipalities, from putting the best possible cops on the street.

Instead of hiring the best and the brightest, we hire according to a pecking order of "preferences" set by the Legislature. Instead of requiring education, we discourage applicants from getting a college degree. And instead of hiring on merit, we hire on the basis of nepotism, favoritism, and political influence.

To understand the crisis facing Massachusetts today, you have to understand the central organizing principle of the public safety workforce: the Civil Service system.

In the latter half of the 19th century, American government was dominated by patronage. New York's Tammany Hall and other political machines routinely fired public workers and replaced them with their supporters, however inept. There was widespread sentiment for reform.

The situation reached a tragic climax in 1881, when President James Garfield was shot dead by Charles Guiteau, who had worked in a small way for Garfield's election and felt he was owed a job for his efforts. ("What do you think of me for Consul-General at Paris?" he wrote the new president.) On July 2, Guiteau shot Garfield in Washington's Union Station. With a bullet lodged in his back, Garfield suffered for several weeks and finally died on September 19.

The nation was outraged. Guiteau came to represent the evils of patronage, and Garfield's assassination galvanized popular disgust at the spoils system. In short order, the federal government created a federal Civil Service based on merit testing. In 1884, Massachusetts (and most other states) followed suit by passing Civil Service statutes.

Civil Service governs two aspects of government employment. First, it is a merit-testing system that determines how individuals are hired and promoted. Second, it is a form of protection for employees against arbitrary dismissal or discipline. In theory, the two together should eliminate political patronage in the classical sense--newly elected officeholders removing government workers and replacing them with their own supporters. Unfortunately, in Civil Service today, protection remains, but merit is long gone.

In theory, Civil Service covers most state and local public employees--from janitors to accountants, from payroll clerks to database programmers. In practice, the state has abandoned Civil Service testing for most jobs except those in public safety. Approximately 30,000 positions in the executive branch of state government are Civil Service jobs, but for most job titles, the state's Human Resources Division hasn't given exams for years. Instead, 14,000 employees have been hired (or promoted) into these positions as "provisionals," without benefit of exams. By law, an individual is supposed to work for no more than one year under a provisional appointment, so more than one-fourth of the state's workforce is working "illegally." The same is true at the local level, though because data is not centralized, no one knows precisely how many provisional workers there are in municipal government.

We promote mediocrity among public safety workers.

As far as most government agencies are concerned, testing is gone--and for good reason. Testing for such a wide range of jobs is incredibly complex and costly. There would need to be separate tests for psychologists, budget analysts, and Web designers, to name just a few. It's not too much to say that the Civil Service test-based hiring system has been abandoned because it has become unworkable and too costly to administer.

The same is not true in public safety agencies, where the Civil Service hiring process is alive and well, exams included. Roughly 75 percent of police and fire personnel are members of Civil Service, as is virtually everyone employed in corrections--about 28,000 public safety employees in all. The largest exception is the State Police, which conducts its own hiring and promotional exams, although troopers retain certain appeal rights to the Civil Service Commission. Just three job categories--police officer, firefighter, and corrections officer--cover virtually all the functions of the public safety workforce, and tests for these categories are given regularly. The problem is, performance on these tests counts for almost nothing in landing these Civil Service jobs.

Toothless test scores

Civil Service is predicated on the Merit Principle, described in the Civil Service law as the "selecting and advancing of employees on the basis of their relative ability, knowledge and skills, including an open consideration of qualified applicants for initial appointing." This is a noble principle. Like most noble principles, it is largely ignored.

The idea is simple. The state gives a Civil Service exam, then state and municipal agencies are allowed to hire from among a limited number of top scorers. But this simple idea has been butchered by decades of legislative tinkering. Today, applicants for public safety jobs still take Civil Service exams, but candidates are not selected from among the top scorers. In most cases, cities are prohibited from even considering those at the head of the class.

Take Boston, which in 2000 sought to hire 25 new firefighters. The good news is that 29 candidates scored 100 percent or better on the test. (Extra points given for education and experience make it possible to score above 100 percent.) The bad news is that none of these 29 top scorers made it into the top 200 on the hiring list.

In fact, none of the 100-percenters--including the smart but unfortunate fellow who landed at No. 1,837 on the hiring list--had any chance of getting a job. According to the "2n + 1" rule, when hiring for 25 positions, Boston is allowed to consider only the top 51 interested candidates on the Civil Service hiring list. But the top of the most recent hiring list was loaded with candidates who earned mediocre scores. The list of 51 candidates eligible for hiring included only six of the top 200 scorers; 11 of the 51 had been outscored by 2,000 or more fellow applicants. The individual in the No. 22 spot on the hiring list had a score of 72, just two points above passing--and below 3,383 of the 3,429 candidates who passed the test. So much for the Merit Principle.

Hiring for police positions is similarly weak on merit, as determined by the Civil Service exam. On the 1997 exam for the Boston Police Department, 492 applicants scored 95 or above. Only one of these 492 high scorers landed in the first 75 positions on the hiring list.

By the way, when municipalities choose among the potential candidates offered up by the Civil Service list, they have no idea how the candidates scored. The city or town doing the hiring is told only the candidate's rank on the hiring list, not the test score. (In 1999, Secretary of State Bill Galvin's office ruled that a candidate's test scores are exempt from public records disclosure laws.) A town is required to present sufficient reasons if it doesn't hire the top names from this hiring list, but it cannot consider what could be the soundest reason of all: a low test score.

Preferential treatment

If test scores don't determine rank on the hiring list, what does? The answer is "preferences." Certain "absolute preferences," determined by law and court order, allow some applicants with at least a passing grade of 70 to move ahead of everyone else. In fact, there are so many folks being ushered to the front of the line it actually requires an order of preferences to sort them all out. Here is a typical list of absolute preferences used to create a Civil Service hiring list in a Massachusetts city or town:

  • minority applicants (in consent decree communities only)
  • resident children of police officers or firefighters killed in the line of duty
  • non-resident children of police officers or firefighters killed in the line of duty
  • resident disabled veterans
  • resident children of police officers or firefighters injured in the line of duty
  • non-resident children of police officers or firefighters injured in the line of duty
  • resident veterans
  • resident widows or widowed mothers of veterans killed in the line of duty or dead from service-connected disabilities incurred in wartime service
  • resident non-veterans
  • non-resident disabled veterans
  • non-resident veterans
  • non-resident widows or widowed mothers of veterans killed in the line of duty or dead from service- connected disabilities incurred in wartime service
  • non-resident non-veterans

Preferential treatment for minorities has excited the most public controversy, with white candidates for police or firefighter jobs complaining (or filing suit) when they lose out to lower-scoring minority applicants. But when it comes to undermining merit, racial preference would have limited impact were it not for the other forms of preference that apply at the same time.

Minority preferences are in force only in those communities where courts have issued a consent decree. Fifteen communities, representing 25 percent of the state's population, are under such consent decrees for hiring police officers. Cambridge, for example, requires the first and each subsequent fourth candidate on the hiring list to be a designated minority candidate. In Boston, minority applicants are placed in the first position, third position, fifth position, etc., under a similar court consent decree.

These communities generally produce lots of high-scoring minority candidates. But these are not the ones who get the spots reserved for minorities. Because of other absolute preferences granted by statute, lower-scoring minority candidates are often the beneficiaries of these set-asides. For example, in 2003 there were 296 candidates who passed the Civil Service test and wanted to become Springfield police officers. Here are the top three candidates on the Civil Service hiring list and their test results:

Hiring List
Rank

Exam
Score

Test Score
Rank

1
87%
172
2
74%
284
3
82%
241

Once again, the top candidates came from the middle of the barrel, if not the bottom. The first and third candidates were, by consent decree, minority candidates. But many minority candidates with higher scores were pushed lower on the list to make room for these two, who were veterans. Candidate No. 2, a non-minority, was a disabled veteran who nabbed the top spot on the hiring list not reserved for a minority candidate, despite a very low passing score.

Moving down the list, we see some minority candidates who outscored the non-minority candidates immediately above them on the hiring list.

Hiring List
Rank

Exam
Score

Candidate's Race

4
95%
Non-minority
5
96%
Minority
6
92%
Non-minority
7
94%
Minority
8
89%
Non-minority
9
92%
Minority
10
86%
Non-minority
11
91%
Minority

This chart may surprise those who see the racial preference as the root of all that ails Civil Service. Of far greater consequence is the system of absolute preferences baked into the Civil Service statute by the Legislature. In Springfield, 29 of the police candidates were eligible for absolute veterans' preferences, and another 99 rated absolute residents' preferences. As a result, Springfield's top two scorers--both of whom scored 99 percent--were way down at Nos. 146 (non-resident, non-minority veteran) and 167 (non-resident, non-minority, non-veteran) on the hiring list. The bottom line is that for new hires, Civil Service is a bizarre mechanism that sorts primarily on criteria other than test score.

Three ways in

Competitive exams are supposed to guard the door to the Civil Service system, ensuring that the most meritorious candidates are hired for public service. But there are at least three legal ways to get around this gatekeeper. Let's consider each in turn.

The VIP Entrance: Statutory Absolute Preferences. As noted above, the Legislature has granted absolute preference to several groups, including the children of firefighters and police officers killed or disabled in the line of duty. Without question, these children deserve consideration of some sort for their family's sacrifice. But this institutionalized nepotism--favoring certain candidates based on who their parents are--flies in the face of the Merit Principle.

The absolute preference for veterans, while politically popular, likewise fails the merit test. It originally applied only to those who saw "wartime service." Since 1990, this is no longer the case. Now anyone can earn a preference by peeling potatoes in Fort Benning, Ga., for as few as 90 days. Why? Because the Legislature never declared an end to the Persian Gulf War. Wartime service is no longer necessary to receive an absolute veterans' preference; you can serve on the home front and still go to the front of the line.

The veterans' preference also has a troubling unintended consequence: disadvantaging candidates who have gone to college rather than joined the service. A 25-year-old with, say, an engineering degree from MIT, a master's degree in criminal justice from Harvard, an Olympic gold medal in pistol shooting, and a perfect score on the Civil Service exam does not stand a chance against a 19-year-old with a barely passing score who has spent two years in the Navy. The small educational points added to the exam score are irrelevant in the face of absolute preference, and anyone seeking a public safety job in Massachusetts would be well advised to forego college and join the service instead.

Other states don't allow military service to trump all other qualifications. Illinois, for example, gives the same five points of preference for a bachelor's degree and for an associate's degree in criminal justice or law as it does for military service. In California, veterans get no preference points; to become a Beverly Hills cop, you'll need an associate's degree. In Massachusetts, the Civil Service promotional exams work tolerably well because they do not grant these absolute preferences.

The Side Door: Cadet Programs. In several communities, there is a side door that allows favored individuals to obtain Civil Service jobs without competing on the exam at all. Five Massachusetts communities, including Boston and Springfield, have "police cadet" programs. Boston, for example, can name one-third of its new hires not from the Civil Service hiring list but straight out of the cadet program. Established by the Legislature, these cadet programs are a way for communities to bypass the competitive testing process--and to indulge in nepotism and patronage reminiscent of the 1880s. Once hired, these cadets are given the same Civil Service status and protections as those who were hired through the competitive exam list.

The Hidden Passageway: Special Favor Legislation. It sounds incredible, but it's true. You can get a law passed just for you that will create a hidden passageway to the front of the hiring line. For example, Chapter 102 of the Acts of 2003, sponsored by Rep. John Rogers of Norwood (chairman of the House Ways and Means Committee and a favorite of House Speaker Tom Finneran), states that "Jennifer Gover, the daughter of Thomas J. Gover, a deceased firefighter in the town of Norwood, shall have her name certified for original appointment for fire services in the town of Norwood before all other persons on the Civil Service eligibility list." Individuals whose scores would have put them ahead of Gover have been pushed back from the door.

The Hidden Passageway cannot be found anywhere in the Massachusetts General Laws. It's opened up by a special act of the Legislature. While the least common way to get past the merit gatekeeper (there may be a only a handful of these special laws passed in any given year), this alternative route to a police, fire, or prison job is worth mentioning because it goes to the heart of the culture of public service in Massachusetts. Far from being based on merit, it is all about politics, whether it be favoritism for a particular individual or favoritism for a powerful lobby, such as the veterans.

Resurrecting merit

The Civil Service system is broken. How can we fix it? Three simple changes would have an enormous impact.

Eliminate Civil Service for non-public-safety personnel covered by collective bargaining agreements. This change would have two important effects. First, it would acknowledge the reality that Civil Service tests are no longer given in non-public-safety positions. "Provisional" hires and promotions would no longer be necessary. Three states--Florida, Georgia, and Texas--have already eliminated Civil Service in this manner with positive results. Second, this change would free up the Civil Service Commission to focus on cases involving public safety professionals. In the 1880s, dismissed employees had no protection against the arbitrary actions of managers. Today, union contracts covering most public employees make Civil Service protections redundant. We can't afford to maintain a belt-and-suspenders approach to protecting a group of employees that is already afforded ample protection.

Replace absolute preferences with preference points. The system of absolute preferences makes a mockery of the Merit Principle that is supposed to underlie Civil Service. At the same time, there is nothing wrong with giving some preference to those who have served their country, or who have lost a family member in public service. The compromise solution is to add up to 10 points to an applicant's test score based on a range of worthy attributes. For example, a veteran might get two points, a disabled veteran four points, and the son or daughter of a slain police officer eight points. That would give certain applicants a leg up but ensure that merit would still matter: It would be impossible even for those given a preference to earn a spot on the hiring list without a competitive exam score. This idea has already been implemented by the State Police, which gives applicants with military service two extra points on their test scores. As a result, the Commonwealth's elite law-enforcement group almost never hires anyone who has scored less than 95 percent on the entrance exam.

This reform would provide opportunity for those who have sacrificed for their country, but also improve the quality of our public safety workforce. Even in communities with consent decrees requiring racial preferences, this points-based preference approach would foster a strong link between test scores and placement on the hiring list.

Eliminate noncompetitive cadet programs and special favor legislation. The Civil Service system must apply to everyone equally. Special programs and special laws that favor the well-connected undermine the integrity of public service.

The old Civil Service system made tremendous sense in the 1880s. Then again, so did the Conestoga wagon. We need to acknowledge today's realities and reshape our public sector workforce, particularly the public safety workforce, to accommodate this modern environment.

In the main hearing room of the Civil Service Commission, there hangs on the wall a picture of the assassination of James Garfield, as if to say, "By golly, we are not going to let this sort of thing happen ever again." What is happening within Civil Service today, however, is a tragedy of a different sort. Until the Legislature takes the steps necessary to change our outdated system, we will be handcuffed in our ability to build a public safety workforce of the best and the brightest. The Commonwealth deserves no less.

John O'Leary is chairman of the Massachusetts Civil Service Commission.

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