Bill H.2292

HOUSE DOCKET, NO. 590 FILED ON: 1/11/2019

HOUSE . . . . . . . . . . . . . . . No. 2292

By Mr. Holmes of Boston, a petition (accompanied by bill, House, No. 2292) of Russell E. Holmes, Bud L. Williams and Chynah Tyler for legislation to further regulate civil service exams. Public Service.

[SIMILAR MATTER FILED IN PREVIOUS SESSION
SEE HOUSE, NO. 3521 OF 2017-2018.]

The Commonwealth of Massachusetts

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In the One Hundred and Ninety-First General Court
(2019-2020)

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An Act to reform civil service exams.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. The General Court hereby makes the following findings:

(1) Decades of litigation regarding adverse impact of government hiring policies for peace officers has helped to reduce barriers to diversity and provided a guide for efforts of government agencies to reflect the diversity of the communities they serve.

(2) Expert review from protracted litigation has shown written cognitive examinations for public safety positions to be unreliable indicators to distinguish eligible job candidates – by as much as an 8 point difference between candidates.

(2) The civil service examination laws and processes for law enforcement officer appointment and promotion need reform:

(a) To ensure that the state and local public safety organizational culture is guided by community policing, procedural justice and cultural inclusivity;

(b) To engage stakeholders, both from within and outside law enforcement agencies to play a role in creating a workforce that reflects the diversity of the community; and

(c) To reinforce that the commonwealth is willing to re-evaluate employment criteria, standards, reduce adverse impacts of top down scoring, including: using pass/fail written cognitive exams in conjunction with other experiential or non-cognitive examinations; using banding of test scores to ameliorate adverse impacts of such scoring; creating benchmarks to ensure that they are tailored to the skills needed to perform job functions; using biodata or life experience in testing and consequently attract, select and retain the most qualified and desirable sworn officers.

SECTION 2. Chapter 7 of the General Laws is hereby amended by adding the following section:-

Section 63. (a) The executive office for administration and finance shall include an office of diversity and equal opportunity, hereinafter referred to as ODEO, which shall be headed by a director who shall be selected by and serve at the pleasure of the governor. The director shall have the authority to:

(i) Establish guidelines for agency affirmative action and diversity plans for all state agencies;

(ii) Review all such plans and either approve, return for amendment, or reject them;

(iii) Establish periodic reporting requirements for agencies concerning the implementation of their plans and all actions taken to ensure compliance with this section and applicable state and federal laws;

(iv) Provide assistance to agencies in achieving compliance with their plans and with applicable federal and state laws;

(v) Monitor and assess the status of agency compliance and investigate instances of non-compliance; and

(vi) Where appropriate, determine and impose remedial courses of action, including the potential imposition of a freeze on all personnel requisitions and appointment forms submitted by any non-compliant agency to the chief human resources officer.

(b) Each head of a state agency shall appoint a diversity director. Each agency shall appoint a diversity officer. Diversity directors and officers shall have a direct reporting relationship to their secretary or agency head. The directors and officers shall also report to the director of ODEO; provided however that the director of the office of affirmative action for the department of state police shall report to the secretary of public safety pursuant to section 23 of chapter 23C. Diversity directors and officers shall coordinate their agency's compliance with the requirements of this section and applicable federal and state laws.

(c)All state agencies shall develop and implement affirmative action and diversity plans to identify and eliminate discriminatory barriers in the workplace; remedy the effects of past discriminatory practices; identify, recruit, hire, develop, promote, and retain employees who are members of under-represented groups; and ensure diversity and equal opportunity in all facets, terms, and conditions of state employment. Such plans shall set forth specific goals and timetables for achievement, shall comply with all applicable state and federal laws, and shall be updated, at a minimum, every 2 years.

(d) Through the diversity directors and officers, and in compliance with the reporting guidelines and requirements established by ODEO, all state agencies shall submit periodic reports to the director of ODEO concerning the status and implementation of their affirmative action and diversity plans.

(e) Pursuant to guidelines established by ODEO, all agency heads, managers, supervisors and employees shall attend mandatory annual diversity training. For future hires, such training shall be part of the standardized orientation provided to new employees.

(f) ODEO shall promulgate guidelines establishing a complaint resolution process for individuals who allege noncompliance by state agencies with applicable federal and state laws prohibiting discrimination. In instances where this process does not resolve the complaint, the director of ODEO may refer to the Massachusetts commission against discrimination or any information concerning conduct that the director believes may constitute a violation of the law.

(g) The Massachusetts commission against discrimination shall initiate investigations and, where necessary; file complaints against those agencies and persons whom it has reason to believe are in violation of the laws of the commonwealth or the United States.

(h) In performing their responsibilities under this section, ODEO and the Massachusetts commission against discrimination shall have the full cooperation of all state agencies, including compliance with all requests for information.

(i) The diversity and equal opportunity advisory council, hereinafter the “advisory council”, is hereby established to advise the ODEO concerning policies, practices, and specific actions that the commonwealth should implement to ensure that the objectives of this section are accomplished.

The advisory council shall consist of 15 persons, including a chair, each of whom shall be appointed by the governor. All members shall serve without compensation at the pleasure of the governor in a solely advisory capacity. The advisory council's work shall include, but need not be limited to, making written recommendations to ODEO concerning actions, policies, and practices that the commonwealth should implement to ensure that the objectives of this section are accomplished.

The advisory council shall meet at such times and places as determined by the chair and shall submit an initial report containing its written recommendations to the governor no later than 60 days following the appointment of the council's 15 members. Thereafter, the advisory council shall meet at least semi-annually and submit supplemental reports to the governor no less than once per year.

(j) Nothing in this section shall be construed to preclude or otherwise limit the continuation or implementation of any lawful affirmative action programs or other programs that support the objectives of this section.

SECTION 3. Chapter 22 of the General Laws is hereby amended by adding the following section:-

Section 23. (a) There shall be within the department of public safety, a peace officer exam review advisory board, hereinafter referred to as the exam advisory board, for the recruitment, examination, appointment, promotion and retention of state and municipal police officers. The exam advisory board shall make recommendations and implement in conjunction with the human resources division and the division of state police the creation and administration of strategies for proactive recruitment, examination, hiring, and retention of peace officers throughout the commonwealth. The exam advisory board shall consist of 15 members: 1 of whom shall be a designee of the governor, 1 of whom shall be a designee of the municipal police training committee; 1 of whom shall be a designee of the Boston branch of the National Association for the Advancement of Colored People, 1 of whom shall be a designee of the Massachusetts Association of Minority Law Enforcement Officers, Inc; 1 of whom shall be Massachusetts Association of Women in Law Enforcement; 1 of whom shall be an expert in the area of applied industrial and organizational psychology to be designated by the governor; 1 of whom shall be a designee from the Massachusetts Police Association; 1 of whom shall be a designee of the Massachusetts Minority State Police Association; 1 of whom shall be a designee of the Benevolent Asian Jade Society of New England; 1 of whom shall be a designee of the Massachusetts Latino Police Officers Association; 1 of whom shall be a designee of the Gay Officers Action League; 1 of whom shall be a designee of the State Police Association of Massachusetts; 1 of whom shall be a designee of One Blue of the State Police; 1 of whom shall be a designee of the Massachusetts Chief of Police Association; and 1 of whom shall be a designee of the Boston Police Union.

(b) The exam advisory board shall review all current examinations for appointment and promotion of peace officers in the commonwealth. Upon completing such review, the exam advisory board shall review and implement in conjunction with the human resources division and the division of state police best practices to determine the knowledge, skills, abilities and personal characteristics for the examination, appointment, promotion and retention of state and municipal police officers throughout the commonwealth. These shall include:

(i) The development of appointment and promotional examination announcements and recruitment strategies that promote and celebrate diversity within the police departments throughout the commonwealth;

(ii) Creation of a job analysis and validity report, which identifies important work behaviors required for successful job performance as a peace officer and their relative importance;

(iii) The establishment and funding of permanent assessment centers and the creation of validation materials, which support assessment centers and performance based activities;

(iv) Transparent promotion policies for all officers to apply for sergeant or lieutenant positions if they meet minimum requirements of service and education levels;

(v) Pairing adverse background check information with additional context from the applicant for appointment;

(vi) The creation of formal mentoring programs, internships and explorer groups;

(vii) Cash incentives for referrals of prospective applicants and stipend for English classes to improve language skills, including retention incentive payments for bilingual officers;

(viii) Involvement with community groups, members and stakeholders with hiring and promotion of officers; and

(ix) Recommending and implementing a reduced and standardized fee for all examinations.

SECTION 4. Section 10 of chapter 22C of the General Laws, as appearing in the 2014 Official Edition, is hereby amended by inserting after the word “thereof”, in line 7, the following words:- ; provided, however, that all such appointments or vacancies in said department shall be posted in accordance with section 65A of said chapter 31.

SECTION 5. The second paragraph of said section 10 of said chapter 22C, as so appearing, is hereby amended by striking out the first sentence and inserting in place thereof the following sentence:- No person shall be eligible to take an examination for original appointment to the position as an officer of the state police if he or she will not have reached his or her twenty-first birthday on or before the date of such examination.

SECTION 6. The third paragraph of said section 10 of said chapter 22C, as so appearing, is hereby amended by adding the following 2 sentences:- No person shall be enlisted for the first time as an officer of the state police unless such person is a citizen the commonwealth at the time of filing application for competitive examination for initial enlistment. Any person who receives an appointment for initial enlistment to the state police shall have been a resident of the commonwealth for 5 years prior to such appointment.

SECTION 7. Section 11 of said chapter 22C, as so appearing, is hereby amended by inserting after the word “list”, in line 15, the following words:- ; provided, further that candidates who score within an 8 point band, starting from the highest observed score from aggregate testing used for original appointment shall be considered by the colonel functionally equivalent for appointment for initial enlistment and equally qualified to successfully perform the job as any other candidate in that score band. The colonel may appoint any candidate of the highest available 8 point band and may not appoint from the next highest 8 point band until the pool from the highest available band is depleted.

SECTION 8. The first paragraph of section 23 of said chapter 22C, as so appearing, is hereby amended by inserting after the first sentence the following sentence:- The office shall consist of no less than 2 persons: 1 affirmative action officer and 1 attorney, both of whom shall be versed in state and federal law regarding nondiscrimination, equal opportunity, affirmative action and human resource management and neither of whom shall be a sworn member of the state police.

SECTION 9. Said section 23 of said chapter 22C, as so appearing, is hereby further amended by inserting after the word “department”, in line 7, the following words:- including but not limited to recruitment, promotion and retention.

SECTION 10. Said section 23 of said chapter 22C, as so appearing, is hereby further amended by striking out the word “may”, in line 9, and inserting in place thereof the following word:- shall.

SECTION 11. Section 24 of said chapter 22C, as so appearing, is hereby amended by inserting after the word “colonel”, in line 13, the following words:- ; provided, however, that reinstatement for uniformed members shall be subject to the affirmative action plan as provided for in section 23.

SECTION 12. Section 26 of said chapter 22C, as so appearing, is hereby amended by inserting after the word “promotion”, in lines 28 and 29, the following words:- ; provided, however that members who score within an 8 point band starting from the highest observed score from aggregate testing used for promotion shall be considered by the colonel functionally equivalent for promotion and equally qualified to successfully perform the job as any other member in that score band. The colonel may appoint any member of the highest available 8 point band and may not appoint from the next highest 8 point band until the pool from the highest available band is depleted.

SECTION 13. The fifth paragraph of said section 26 of said chapter 22C, as so appearing, is hereby amended by striking out the last sentence.

SECTION 14. Section 27 of said chapter 22C, as so appearing, is hereby amended by striking out, in line 3, the words “major or captain” and inserting in place thereof the words:- lieutenant or above.

SECTION 15. Said section 27 of said chapter 22C, as so appearing, is hereby further amended by striking out, in line 5, the word “captain” and inserting in place thereof the words:- lieutenant or above.

SECTION 16. Said section 27 of said chapter 22C, as so appearing, is hereby further amended by adding the following paragraph:-

Any vacancy that occurs in this section shall be posted in accordance with section 65A of said chapter 31.

SECTION 17. Section 5 of chapter 31 of the General Laws, as appearing in the 2014 Official Edition, is hereby amended by inserting after the word “commonwealth”, in line 55, the following words:- ; provided, however that for original appointment or promotion of a police officer, MBTA officer or state police officer, the administrator shall not delegate the duties of a competitive examination for original appointment or promotion of a police officer. Notwithstanding sections 59 or 65 of this chapter, or any other law to the contrary, the commissioner, in conjunction with the peace officer exam review board established in section 23 of chapter 22, shall oversee the design, validation and administration of all such examinations.

SECTION 18. Section 58 of said chapter 31, as so appearing, is hereby amended by striking out the third paragraph and inserting in place thereof the following paragraph:-

An applicant for examination for original appointment to the police force or fire force of a city or town shall be a citizen of the commonwealth at the time of filing application for such examination and any person who receives an appointment to the police force or fire force of a city or town shall have been a resident of the commonwealth for 5 years prior to such appointment; provided, however that this requirement shall not apply if such person is a resident in such city or town at the time of filing an application and is or was serving in active military duty. The administrator, when certifying names to the appointing authority for the police force or the fire force of said city or town, shall place the name of the person who has so resided or is or was in active military duty ahead of the name of the person who has not so resided.

SECTION 19. Section 59 of said chapter 31, as so appearing, is hereby amended by inserting after the word “list”, in line 52, the following words:- ; provided, however that candidates for original appointments for a regular police force who score within a 8 point band starting from the highest observed score from aggregate testing used for original appointment shall be considered by the appointing authority functionally equivalent for promotion and equally qualified to successfully perform the job as any other candidate in that score band. The appointing authority may appoint any candidate of the highest available 8 point band and may not appoint from the next highest 8 point band until the pool from the highest available band is depleted.

SECTION 20. Said section 59 of said chapter 31, as so appearing, is hereby further amended by inserting after the word “rules”, in line 57, the following words:- ; provided, however that members of a regular police force who score within a 8 point band starting from the highest observed score from aggregate testing used for promotion shall be considered by the appointing authority functionally equivalent for promotion and equally qualified to successfully perform the job as any other member in that score band. The appointing authority may appoint any member of the highest available 8 point band and may not appoint from the next highest 8 point band until the pool from the highest available band is depleted.

SECTION 21. The second paragraph of section 64 of said chapter 31, as so appearing, is hereby amended by striking out the first sentence and inserting in place thereof the following sentence:- No person shall be eligible to take an examination for original appointment to the position of police officer in the Massachusetts bay transportation authority police force if he or she will not have reached his or her twenty-first birthday on or before the date of such examination.

SECTION 22. Section 64 of said chapter 31, as so appearing, is hereby further amended by adding the following paragraph:-

No person shall be eligible for appointment as a police officer in the Massachusetts bay transportation authority police force unless such person is a citizen the commonwealth at the time of filing application for such examination for original appointment. Any person who receives an appointment to said police force shall have been a resident of the commonwealth for 5 years prior to such appointment.

SECTION 23. Section 65 of said chapter 31, as so appearing, is hereby amended by inserting after the word “examination”, in line 3, the following words:- ; provided, however that candidates for original appointments for such police force who score within a 8 point band starting from the highest observed score from aggregate testing used for original appointment shall be considered by the appointing authority functionally equivalent for promotion and equally qualified to successfully perform the job as any other candidate in that score band. The appointing authority may appoint any candidate of the highest available 8 point band and may not appoint from the next highest 8 point band until the pool from the highest available band is depleted; and provided, further, that all hiring’s, promotional appointments or vacancies in the police force shall be posted in accordance with section 65A of said chapter 31.

SECTION 24. Said section 65 of said chapter 31, as so appearing, is hereby further amended by inserting after the word “rules”, in line 31, the following words:- ; provided, however that members of a regular police force who score within a 8 point band starting from the highest observed score from aggregate testing used for promotion shall be considered by the appointing authority functionally equivalent for promotion and equally qualified to successfully perform the job as any other member in that score band. The appointing authority may appoint any member of the highest available 8 point band and may not appoint from the next highest 8 point band until the pool from the highest available band is depleted.

SECTION 25. Said chapter 31, as so appearing, is hereby amended by inserting after section 65 the following section:-

Section 65A. Whenever a vacancy, job opening or promotion, or anticipated job opening or promotion occurs for the original position of police officer or promotional appointment to any position in any municipal police force, the Massachusetts bay transportation authority or the department of state police, the appointing authority shall, in addition to any other requirement of law or regulation for the posting of job opening notices, post a notice, which notice states that a job opening or promotional appointment opening has occurred and describes the duties to be performed by a person employed in that position. Such notice shall be provided to the department forthwith and the department shall immediately post the notice on a designated webpage accessible to the general public.

SECTION 26. Section 3 of chapter 31A of the General Laws, as appearing in the 2014 Official Edition, is hereby amended by inserting after the word “thirty-one”, in line 12, the following words:- ; provided, however, that all hiring’s, promotions or vacancies in any public safety position shall be posted in accordance with section 65A of said chapter 31.

SECTION 27. Chapter 147 of the General Laws is hereby amended by striking out section 21A and inserting in place thereof the following section:-

Section 21A. (a) Notwithstanding any general or special law to the contrary, the person or officer authorized to appoint police officers, hereinafter referred to as the appointing authority, in a city or town, for the Massachusetts bay transportation authority police department or for the department of the state police may appoint as a police cadet, for a period of full time "on the job" training, any citizen resident in the commonwealth who is not less than 18 nor more than 25 years of age who meets the physical qualifications required of applicants for appointment to such police force, and who is determined by the appointing authority to be of good moral character.

(b) Such appointment shall not be subject to the civil service law or rules; nor shall a police cadet be entitled to any benefits of such law or rules. Such appointments may be terminated by the appointing authority at any time, and shall be terminated whenever a cadet fails to maintain a passing grade in any course of study the appointing authority determines the cadet should undertake, and when the cadet reaches the age of 25. A police cadet shall receive such compensation and such leave with pay as the appointing authority shall determine.

(c) A police cadet shall maintain and file records, operate office machines, answer telephones, receive complaints, enter and index official documents, prepare routine reports, prepare and tabulate facts and figures for statistical purposes, and have similar duties of an administrative rather than an enforcement type. The cadet shall not carry arms, nor shall the cadet have the power of arrest other than that of an ordinary citizen. The cadet shall be considered an employee of the appointing authority for the purposes of workers compensation. A police cadet shall not be subject to or entitled to the benefits of any retirement or pension law nor shall any deduction be made from the cadet’s compensation for the purpose thereof; but a police cadet who during the period of the cadet’s "on the job" training passes a competitive examination for appointment to such police force, and is appointed a permanent full-time police officer shall have his or her police cadet service considered as "creditable service" for the purposes of retirement, provided the cadet and the appointing authority pay into the annuity savings of any such retirement plan such amount as the retirement board determines equal to that which would have been paid had the cadet been a member of said retirement system during the period of his or her training as a police cadet.

(d) Notwithstanding chapter 31, any person who has completed not less than 2 years of service as a police cadet under the provisions of this section may, subject to the program established by the appointing authority and approved by the personnel administrator of the state division of personnel administration and the Massachusetts criminal justice training committee, be appointed to fill a vacancy in a position in the lowest grade in such police force without certification from an eligible list prepared under chapter 31; provided, however, that such person either is on a police entrance eligible list prepared under said chapter or passes a qualifying examination to be given by said personnel administrator. Such program shall include provisions for recruitment of applicants for appointment as police cadets and for appointment from an eligible list prepared after a competitive examination. Appointments from such a list may, at the discretion of the appointing authority, be made on a selective basis.

(e) Not more than 12 or 33 1/3 per cent, whichever is greater, of the total number of appointments to such police force in any calendar year, shall be made under the provisions of this section. The appointing authority shall report in writing forthwith to the personnel administrator in said division of the personnel administration any appointment made under this section.

SECTION 28. This act shall apply to all current examinations used for original appointment, original enlistment or promotion for any police officer position subject to any general or special law or the provisions of this act.

SECTION 29. Sections 7, 12, 19, 20, 23 and 24 are hereby repealed.

SECTION 30. Section 29 shall take effect upon the implementation of the exam review advisory board’s recommendation for examination for original appointment, initial enlistment or promotion of any peace officer in the commonwealth governed by this act.

Name:	District/Address:	Date Added:
Russell E. Holmes	6th Suffolk	1/11/2019
Bud L. Williams	11th Hampden	1/23/2019
Chynah Tyler	7th Suffolk	2/1/2019