HOUSE DOCKET, NO. 4044        FILED ON: 1/20/2023

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 2539

The Commonwealth of Massachusetts

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PRESENTED BY:

Kenneth I. Gordon and Michael D. Brady

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To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:

The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act relative to the civil service law.

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PETITION OF:

HOUSE DOCKET, NO. 4044        FILED ON: 1/20/2023

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 2539

The Commonwealth of Massachusetts

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In the One Hundred and Ninety-Third General Court
(2023-2024)

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An Act relative to the civil service law.

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.  Section 1 of chapter 31 is hereby amended by inserting at the beginning of subsection (e) of the third paragraph, in the definition of “basic merit principles”, the phrase “notwithstanding potential remedies provided by any other laws that prohibit discrimination in employment,”; and in said subsection striking the word “handicap” and inserting in place thereof the following:- “military status, disability, sexual orientation, gender identity” before the words “or religion”. 

SECTION 2.  Section 2 of chapter 31 is hereby amended by inserting, after subsection (f), the following section:-

(f)(1) To award reasonable attorneys’ fees and costs to an appellant who prevails in an appeal brought under this chapter, upon an express finding of either bad faith on the part of the appointing authority or an egregious or willfully repeated violation of this chapter, unless special circumstances would render such an award in full unjust;

SECTION 3.  Section 2 of chapter 31 is hereby amended by inserting, after subsection (f), the following:-

(f)(2) To take such action and enter such orders as in the considered judgment of the commission will effectuate the purposes of this chapter, including, but not limited to, orders to vacate appointments, or to appoint, reinstate, or promote appellants, with or without retroactive compensation;

SECTION 4.  Section 2 of chapter 31 is hereby amended by inserting, after subsection (g), the following:-

(h) To close all or a portion of a hearing or proceeding conducted pursuant to this chapter, and to make such orders deemed necessary to protect the privacy of a person’s health or other acutely sensitive or confidential information.

SECTION 5.  Section 2(b) of chapter 31 is hereby amended by striking out the third paragraph and inserting in place thereof the following paragraph:-

The appeal shall be accompanied by such form as the commission may prescribe containing a statement of the allegations which form the basis of the aggrieved person’s appeal with specific reference to the provisions of this chapter or the rules of the administrator or basic merit principles which have been violated, together with an explanation of how the person has been harmed.

SECTION 6.  Section 2(b) of chapter 31 is hereby amended by striking the fourth paragraph and inserting in place thereof the following paragraph:-

Hearings on any appeal pending before the commission may be held before any member thereof, who shall report his or her findings of fact and recommendations to the commission for its action. Alternatively, the chair of the commission may appoint as hearing officer any other disinterested person who is experienced in adjudication or well-versed in the provisions of this chapter; provided that, upon the conclusion of any such hearing, and consistent with the provisions governing tentative decisions set forth in the Standard Adjudicatory Rules of Practice and Procedure, the assigned hearing officer shall report his or her findings of fact and recommendations to the commission for its action.

SECTION 7.  Section 2(c) of chapter 31 is hereby amended by inserting after the words “section 8 of chapter 31A” the following:- or in accordance with the provisions of this chapter.  

SECTION 8. Section 16 of chapter 31 is hereby amended by inserting, after the first sentence of the first paragraph, the following:-

Promotional and entry examinations shall be conducted annually. Municipalities with a population of greater than 100,000 residents may select to opt out of an annual examination, but must participate in entry and promotional examinations no less than once every two years.

SECTION 9. Section 16 of chapter 31 is hereby amended by inserting, at the end of the second paragraph, the following:-

Any applicant for examination for original appointment may be eligible to sit for the civil service examination no earlier than 12 months prior to turning the minimum age necessary to hold the particular civil service position that is the subject of the examination.

SECTION 10. Section 25 of chapter 31 is hereby amended by striking the words “last examination taken” in the second paragraph and inserting in place thereof the following:- highest examination score achieved.  

SECTION 11.  Section 27 of chapter 31 is hereby amended by inserting a new first sentence in the first paragraph:-

If the administrator or an appointing authority delegated by the administrator, applying the “3n+1” formula set out in the rules of the administrator, certifies from an eligible list the names of persons who are qualified, and willing to accept, an original appointment, the appointing authority, pursuant to the civil service law and rules, may appoint only from among such persons; provided, however, for each such person, if any, who is bypassed or withdraws from the application process, the appointing authority may appoint from among a group that includes the next highest-ranked person on the certification; and provided further, that the Administrator or an appointing authority delegated by the Administrator, shall not include the name of any person who has been so bypassed on any future certification from the same original appointment eligible list unless directed to do so by the Commission.

SECTION 12.  Section 27 of chapter 31 is hereby amended by striking out the second paragraph and inserting in place thereof the following:-

If an appointing authority makes an original or promotional appointment from a certification of any qualified person other than the qualified person whose name appears highest, and the person whose name ranks highest on the certification is willing to accept such appointment, the appointing authority shall immediately provide to the person who ranked highest a written statement of the reasons for appointing the person whose name was not highest and such appointment shall be effective only when such statement of reasons has been provided.  This written statement shall notify the bypassed individual of his or her right to appeal to the Commission, should the reasons proffered not be deemed sound and sufficient, within sixty (60) days of issuance of the statement of reasons.  In response to a public records request, the appointing authority shall make a copy of such statement available for inspection.

SECTION 13. Section 42 of chapter 31 is hereby amended by striking out the penultimate sentence of the first paragraph and inserting in place thereof the following:-

If the commission finds that the appointing authority has failed to follow said requirements and that the rights of said person have been prejudiced thereby, the commission may order the appointing authority to restore said person to his employment immediately with or without loss of compensation or other rights and may issue such other orders as the commission may deem appropriate to restore and protect the rights provided to such person under this chapter.

SECTION 14.  Section 43 of chapter 31 is hereby amended by striking out the first two sentences in the first paragraph and inserting in place thereof the following:-

If a person aggrieved by a decision of an appointing authority made pursuant to section forty-one shall, within ten days after receiving written notice of such decision, appeal in writing to the commission, he shall be given a preliminary hearing before a member of the commission or some other disinterested person designated by the chair of the commission. Said preliminary hearing shall occur within sixty (60) days after docketing the appeal and, if required, a full evidentiary hearing shall commence within one hundred eighty (180 days) after docketing the appeal, unless the parties otherwise agree or unless a commission member determines, as a matter of discretion, that a continuance is necessary.

SECTION 15.  Section 43 of chapter 31 is hereby amended by striking out the first sentence of the second paragraph and inserting in place thereof the following:-

If the commission by a preponderance of the evidence determines that there was just cause for an action taken against such person it shall affirm the action of the appointing authority and deny the appeal; otherwise, it shall reverse said action and allow the appeal, in whole or in part, and the person concerned may be returned to his position with or without loss of compensation or other benefits and subject to such other orders as the commission may deem appropriate to restore and protect the rights provided to such person under this chapter; provided, further, if the preponderance of the evidence establishes that said action was based upon harmful error in the application of the appointing authority’s procedure, an error of law, or upon any factor or conduct on the part of the employee not reasonably related to the fitness of the employee to perform in his position, the commission shall allow the appeal, in whole or in part, and the person concerned may be returned to his position with or without loss of compensation or other benefits and subject to such other orders as the commission may deem appropriate to restore and protect the rights provided to such person under this chapter.

SECTION 16.  Section 45 of chapter 31 is hereby amended by striking the first paragraph and inserting in place thereof the following:-

Each aggrieved individual who has prevailed in any appeal brought under this chapter shall be reimbursed by the local appointing authority or, if aggrieved by action or inaction of a state official, by the comptroller of the Commonwealth, the following expenditures: (1) the filing fee paid to the Commission; (2) an amount not to exceed $1,500 for attorney’s fees actually incurred in conjunction with each of the following: (a) an appointing authority hearing; (b) a hearing before the Commission; and (c) an action for judicial review pursuant to section 44; and (3) an amount not to exceed $500 for summons to witnesses and any other expenses actually incurred in such successful appeal.

In addition to the amounts stated above, the Commission may award such additional reasonable attorneys’ fees and costs to an appellant who prevails in an appeal brought under this chapter, upon an express finding of either bad faith on the part of the appointing authority or an egregious or willfully repeated violation of this chapter, unless special circumstances would render such additional award unjust.

SECTION 17. Section 58 of Chapter 31 of the General Laws is hereby amended by inserting at the end thereof the following:-

For the purposes of this section only, and pursuant to such rules as the administrator elects to promulgate, “resident” of any specific municipality may include residents of any other nearby city or town whose official borders lie within fifteen miles of said specific municipality.

SECTION 18.  Section 72 of chapter 31 is hereby amended by inserting, in the third sentence of the second paragraph, after the words “recommend to”, the following words “or order”, and is hereby further amended by inserting the words “or orders” at the end of said sentence.

SECTION 19.  Section 72 of chapter 31 is hereby amended by inserting in the first sentence of the third paragraph, after the words “summon witnesses,” the words "demand to inspect documents,” before the phrase “administer oaths”.

SECTION 20.  Section 73 of chapter 31 is hereby amended by inserting in the first sentence of the first paragraph, the words “the commission or” before the word “administrator” where it first appears.

SECTION 21.  Section 77 of chapter 31 is hereby amended by inserting the words “commission or” before the word “administrator"

SECTION 22.  Section 1 of chapter 31 is hereby amended by striking out the word “handicap” as it appears in the fourth and twenty-second paragraphs and inserting in place thereof the following:- disability

SECTION 23.  Section 5 of chapter 31 is hereby amended by striking out the word “handicapped” as it appears in the seventh and eighth paragraphs and inserting in place thereof the following:- persons with disabilities

SECTION 24.  Section 47A of chapter 31 is hereby amended by striking out the word “handicapped” in the fourth paragraph and inserting in place thereof the following:- disabled

SECTION 25.  Section 48 of chapter 31 is hereby amended by striking out the word “selectmen” in the fifth paragraph and inserting in place thereof the following:- select boards; and in said section by striking out the word “men” in the twentieth paragraph and inserting in place thereof the following:- persons

SECTION 26.  Section 53 of chapter 31 is hereby amended by striking out the phrase “board of selectmen” in the second sentence of subsection (b) and inserting in place thereof the following:- select board

SECTION 27.  Section 60A of chapter 31 is hereby amended by striking out the word “selectmen” in subsection (a) and inserting in place thereof the following:- select board

SECTION 28.  Section 63 of chapter 31 is hereby amended by striking out the word “handicapping” in the final paragraph and in place thereof the following:- disabling

SECTION 29.  Section 74 of chapter 31 is hereby amended by striking out the word “alderman” in the third paragraph and inserting the phrase “board of alders”; and in said section by striking out the word “councilman” in the second paragraph and inserting the phrase “city council”; and in said section by striking out the word “aldermen” in the fourth paragraph and inserting the phrase “board of alders”; and further by striking out the word “selectmen” in the fourth paragraph and inserting the phrase “select board.”

SECTION 30.  Section 75 of chapter 31 is hereby amended by striking out the word “aldermen” and inserting the word “alders”; and further by striking out the word “selectmen” and inserting the words “select board.”

SECTION 31.  Section 4I of chapter 7 is hereby amended by striking out the word “chairman” as it appears and inserting the word “chair”; and in said section by striking out the word “selectman” and inserting the word “selectperson"; and further by replacing the words “his” and “him” with the phrases “his or her” and “him or her,” respectively. 

SECTION 32.  Section 2 of chapter 31 is hereby amended by striking out the word “chairman” in the sixth paragraph and inserting in place thereof the word “chair.”

SECTION 33.  Section 41A of chapter 31 is hereby amended by striking out the word “chairman” in the first sentence and inserting in place thereof the word “chair.”