MASSACHUSETTS ASSOCIATION OF MINORITY LAW ENFORCEMENT OFFICERS vs. GERALD T. ABBAN & others. [Note 1]

CORDY, J. The Massachusetts Association of Minority Law Enforcement Officers (MAMLEO) appeals from a ruling of a judge in the Superior Court upholding a decision of the Civil Service Commission (commission) that the police department of Boston (police department) improperly promoted certain minority police officers to the ranks of sergeant and lieutenant over nonminority defendants with higher test scores. MAMLEO, a plaintiff intervener in the Superior Court proceeding and not a party to the original proceedings before the commission, argues that the judge erred as a matter of law in upholding the commission's decision, and abused his discretion in denying MAMLEO's motion to supplement the administrative record. [Note 2] The police department did not appeal from the Superior Court judge's decision. We granted MAMLEO's application for direct appellate review, and now affirm the judgment of the Superior Court.

Background. On January 30 and October 2, 1996, the po lice department made promotions to the ranks of sergeant and lieutenant from certified lists ranking each candidate based on his or her score on a September 12, 1992, civil service promotional examination. The examination had been developed by the State Department of Personnel Administration, now the human resources division (division), in compliance with a 1991 amendment to a Federal consent decree entered in Massachusetts Ass'n of Afro-American Police, Inc. vs. Boston Police Dep't, No. 78-529-McN (D. Mass. 1980). See note 5, infra. For most of the promotions, the police department selected the highest scoring candidates in rank order. [Note 3] However, the police department departed from strict rank order in promoting six minority

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officers to sergeant and two minority officers to lieutenant, Over various nonminority officers with higher civil service examination scores, a process known as "bypass." Bielawski v. Personnel Adm'r of the Div. of Personnel Admin., 422 Mass. 459, 460 (1996). See G. L. c. 31, s. 27. The examination scores of the minority officers who were promoted were no more than two points lower than those of the nonminority officers who were bypassed.

As required by Massachusetts civil service law, the Police department provided reasons for these bypasses to the State personnel administrator. See id. The reasons given were: (1) "to ensure compliance with current EEOC [United States Equal Employment Opportunity Commission] guidelines," [Note 4] (2) "as a result of the [c]onsent [d]ecree between the [police department] and [MAMLEO]," [Note 5] and (3) that the "promotion of a limited number of black officers to sergeant and lieutenant was constitutionally permissible" under the strict scrutiny standard

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applied to equal protection claims. [Note 6] The personnel administrator approved the bypasses. [Note 7]

The bypassed officers appealed to the commission pursuant to G. L. c. 31, s. 2 (b), [Note 8] and the police department responded with a motion to dismiss. While the motion was pending before the commission, the United States Court of Appeals for the First Circuit issued its decision in Boston Police Superior Officers Fed in v. Boston, 147 F.3d 13 (1st Cir. 1998) (Superior Officers), see note 10, infra, ruling that the consent decree relied on by the police department applied only to promotions to the rank of sergeant, not to promotions to lieutenant, and had expired in April, 1995. Id. at 17. The commission invited the parties to submit additional argument addressing the impact, if any, of that ruling on the cases pending before it. The police department and the bypassed officers each submitted supplemental legal memoranda arguing that the Superior Officers decision supported their respective positions. These memoranda were added to the record before the commission, which was not otherwise augmented by the parties.

Administrative action. The fundamental purpose of the civil service system is to guard against political considerations, favoritism, and bias in governmental hiring and promotion. Cambridge v. Civil Serv. Comm'n, 43 Mass. App. Ct. 300, 304 (1997), and cases cited. The commission is charged with ensuring that the system operates on "[b]asic merit principles," as defined in G. L. c. 31, s. 1, [Note 9] absent properly documented and supported bases for departing from such principles in particular

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cases. In the context of carrying out these responsibilities, and after holding hearings on September 11, 1997, and September 2, 1998, the commission ruled that the bypasses proposed by the police department were improper.

In reaching its decision, the commission applied the standard of review required by the governing statute, G. L. c. 31, s. 2 (b): "to find whether, on the basis of the evidence before it, the appointing authority has sustained its burden of proving [by a preponderance of the evidence] that there was reasonable justification for the action taken by [it]" (i.e., promoting on considerations other than merit). Cambridge v. Civil Serv. Comm'n, supra at 303, citing Mayor of Revere v. Civil Serv. Comm'n, 31 Mass. App. Ct. 315, 320 n.10, 321 n.11, 322 n.12 (1991). In this context, reasonable justification means "done upon adequate reasons sufficiently supported by credible evidence, when weighed by an unprejudiced mind, guided by common sense and by correct rules of law." Selectmen of Wakefield v. Judge of First Dist. Court of E. Middlesex, 262 Mass. 477, 482 (1928).

Applying this standard to the police department's enumerated reasons for departing from rank order promotions, the commission found them and the police department's reliance on the Superior Officers case unpersuasive. [Note 10] In addressing two of the three reasons the police department had given for making the bypasses, the commission noted that the Superior Officers decision had made it clear that the consent decree had expired in April, 1995, prior to the 1996 promotions at issue here, see Superior Officers, supra at 17, and that the EEOC guidelines were not enforceable in this context in the absence of the consent decree. See note 4, supra. Therefore, neither the decree

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nor the EEOC guidelines provided a reasonable justification for bypasses that came after the decree's expiration. [Note 11]

That left only the police department's constitutional argument to support the bypass promotions, i.e., that those promotions would survive a constitutional challenge under the equal protection clause. The commission found this constitutional argument to be misplaced, because its inquiry in a bypass appeal is very different from that required for an equal protection claim. In deciding bypass appeals, the commission must determine whether the appointing authority has complied with the requirements of Massachusetts civil service law for selecting lower scoring candidates over higher scoring candidates, and not whether those promotions might pass constitutional muster if challenged in some other forum on equal protection grounds, The commission concluded that the police department had failed to justify the challenged promotions as required by State law: "Upon expiration of the consent decree, the bypasses, based purely on race," a factor listed in G. L. c. 31, s. 1 (e), as incompatible with basic merit principles, "no longer comport" with such principles. [Note 12]

As a remedy, the commission ordered the division to place the bypassed officers at the top of the list of candidates for promotion, reviving a candidate's eligibility if necessary, so that

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the police department would have to consider each officer when it next made promotions to the rank of sergeant or lieutenant. [Note 13]

Superior Court ruling. The police department sought review of the commission's decision in the Superior Court pursuant to G. L. c. 30A, s. 14, and G. L. c. 31, s. 44, [Note 14] arguing that it properly considered race in the 1996 promotions. The police department reasoned that race-based bypasses were not inconsistent with established merit principles in this particular case, because the bypasses were being used to remedy the police department's past racial discrimination.

MAMLEO was allowed to intervene in the Superior Court action, and filed a motion seeking to supplement the administrative record with extensive evidentiary materials that were not before the commission. Those materials had been part of the underlying record used by the police department and MAMLEO to support their argument in Superior Officers, supra at 23-24, [Note 15] that the promotion in that case was a "sufficiently narrow remedy" to address past racial discrimination by the police department. The materials included expert witness affidavits purportedly demonstrating that the 1992 examination did not validly distinguish among officers scoring within three points of each other, that such officers must therefore be considered functionally equivalent for promotion purposes, and that their functionally equivalent test scores should be "banded" together for the purpose of making promotion decisions. MAMLEO's motion to supplement the record was denied. The judge's review of the commission's decision was therefore based solely on the record that had been before the commission.

"In reviewing [the commission's] action under G. L. c. 30A, s. 14 (7), it was not open to the Superior Court judge to

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substitute his judgment for that of the commission." Thomas v. Civil Serv. Comm'n, 48 Mass. App. Ct. 446, 451 (2000). Instead, the judge was required by s. 14 (7) to "give due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it." Iodice v. Architectural Access Bd., 424 Mass. 370, 375-376 (1997); School Comm. of Brockton v. Civil Serv. Comm'n, 43 Mass. App. Ct. 486, 490 (1997). Here, the judge affirmed the decision of the commission:

"This Court is satisfied that the administrative record fails to support plaintiffs' contention that the [c]ommission committed an error of law. Nor is the argument that the [c]ommission's ruling is arbitrary, capricious, or an abuse of discretion supported by the record. Rather . . . the record indicates that the [c]ommission acted lawfully and within its discretion by finding the [police department's] bypasses lacked a sound and sufficient reason and clashed with basic merit principles."

The judge's evaluation of the commission's ruling is a sound one, "setting forth his reasoning . . . in a full and clear discussion," Iodice v. Architectural Access Bd., supra at 371, and we employ it as the basis for our own brief analysis of the commission's ruling.

Like the Superior Court, we review the commission's decision under G. L. c. 31, s. 44, "to determine if it violates any of the standards set forth in G. L. c. 30A, s. 14 (7), [Note 16] and cases construing those standards." Plymouth v. Civil Serv. Comm'n, 426 Mass. 1, 5 (1997). The plaintiff bore the burden of demonstrating the invalidity of the commission's ruling, Coggin v. Massachusetts Parole Bd., 42 Mass. App. Ct. 584, 587 (1997). Merisme v. Board of Appeals on Motor Vehicle Liab. Policies & Bonds, 27 Mass. App. Ct. 470, 474 (1989). This is a heavy

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burden, for we also give due weight to the commission's expertise, as required by s. 14 (7). See Iodice v. Architectural Access Bd., supra at 375-376; Protective Life Ins. Co. v. Sullivan, 425 Mass. 615, 618 (1997) ("In general, we grant substantial deference to an interpretation of a statute [e.g., the civil service statutes] by the administrative agency charged with its administration"); Boston Police Superior Officers Fed'n v, Labor Relations Commn, 410 Mass. 890, 892 (1991) (considerable deference generally accorded agency decision, unless agency commits error of law).

The commission properly placed the burden on the police department to establish a reasonable justification for the bypasses, see Cambridge v. Civil Serv. Comm'n, 43 Mass. App, Ct. 300, 303 (1997), and properly weighed those justifications against the fundamental purpose of the civil service system, id. at 304, to ensure decision-making in accordance with basic merit principles. G. L. c. 31, s. 1 (e). See note 9, supra. In rejecting the three reasons given by the police department for the challenged race-based bypasses - the consent decree (that had expired), the EEOC guidelines (that were Do longer enforceable after the consent decree expired), and a constitutional rationale (that was inapposite) - the commission acted well within its discretion. In the circumstances of this case, the reasons proffered by the police department simply failed to justify the 1996 promotions at issue. The commission, and the Superior Court judge on review, correctly concluded that without the consent decree's mandate, race, a consideration specifically identified by the Legislature in G. L. c. 31, s. 1 (e), [Note 17] as inconsistent with basic merit principles, cannot be used to justify a bypass. While civil service law allows consideration of race in promotion decisions as part of an approved affirmative action plan (see note 12, supra), there was no such plan here and therefore the police department improperly based these promotions on race.

We have examined the entire administrative record, see Mayor

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of Revere v. Civil Serv. Comm'n, 31 Mass. App. Ct. 315 322 (1991) ("we must inquire whether there is substantial evidence in the record before the commission to support the commissions decision"), and taken into account whatever in the record would fairly detract from the supporting evidence's weight. Cobble v. Commissioner of the Dep't of Social Servs., 430 Mass. 385, 390 (1999). We conclude that the commission's ruling is grounded in substantial evidence found in the administrative record. Its conclusion that the challenged bypasses are unjustified, and inconsistent with basic merit principles, is neither arbitrary, capricious, an abuse of discretion, nor a legal error.

Denial of MAMLEO's motion to supplement the administrative record. Each of MAMLEO's contentions in this appeal relies on MAMLEO's assertion that the 1992 promotional examination was invalid for use in a strict rank order promotion system. [Note 18] There was, however, nothing in the record of the proceeding before the commission that supported this contention. Therefore, MAMLEO moved to supplement the administrative record with evidence it contended would demonstrate that a more valid scoring system for the 1992 promotional examination, which treated candidates who scored within a three-point band as functionally equivalent (banding), would have eliminated any bypass challenges. [Note 19] (As noted above, no minority candidate who was promoted in 1996 based on that examination scored more than two points less than a nonminority candidate who was bypassed.) We therefore need only assess the validity of the judge's denial of that motion, as this issue decides MAMLEO's appeal.

A motion for leave to present supplemental evidence pursuant

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to G. L. c. 30A, s. 14 (6), is addressed to the sound discretion of the judge. Northeast Metro. Regional Vocational Sch. Dist. Sch. Comm. v. Massachusetts Comm'n Against Discrimination, 35 Mass. App. Ct. 813, 817 (1994). In assessing whether a judge has abused his discretion, "we do not simply substitute our judgment for that of the judge, rather, we ask whether the decision in question 'rest[s] on whimsy, caprice, or arbitrary or idiosyncratic notions.'" Boulter-Hedley v. Boulter, 429 Mass, 808, 811 (1999), quoting Bucchiere v. New England Tel. & Tel. Co., 396 Mass. 639, 642 (1986). See Long v. George, 296 Mass. 574, 578-579 (1937), quoting Davis v. Boston Elevated Ry., 235 Mass. 482, 497, 502 (1920) (abuse of discretion defined as view or action "that no conscientious judge, acting intelligently, could honestly have taken").

Section 14 (6) provides:

"If application is made to the court for leave to present additional evidence, and it is shown to the satisfaction of the court that the additional evidence is material to the issues in the case, and that there was good reason for failure to present it in the proceeding before the agency, the court may order that the additional evidence be taken before the agency upon such conditions as the court deems proper. The agency may modify its findings and decision by reason of such additional evidence and shall file with the reviewing court, to become part of the record, the additional evidence, together with any modified or new findings or decision" (emphasis added).

MAMLEO argues that the additional evidence proffered is material to the issues presented in this case, see note 18, supra, but fails, under the plain terms of the statute, to show good reason for failure to present the evidence in the proceeding before the commission. MAMLEO explains that it was not a party to the proceedings before the commission, and thus cannot account for "why the underlying record [concerning promotional test validation and banding] was not presented along with the Superior Officers decision." MAMLEO protests, however, that "the proper interpretation of c. 31 should not turn on a purported requirement that MAMLEO intervene in every agency proceeding involving the [police department]." The plain language of

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the statute imposes no such requirement. The police department has not provided a "good reason" for its "failure" to present the banding evidence to the commission, and MAMLEO "cannot account" for the police department's failure to present such evidence, so the statutory requirements for supplementing the administrative record are simply not met.

To permit MAMLEO to supplement the record in the circumstances of this case would be, in essence, permitting it to retry its claim on another theory. This is not a proper use of s. 14 (6). See Fanion v. Director of the Div. of Employment Sec., 391 Mass. 848, 850-851 (1984). MAMLEO claims that it would have presented its defense of the bypass promotions before the commission differently from the method the police department chose, but both the plain language of s. 14 (6) and out interpretation of s. 14 (6) in the Fanion case prevent MAMLEO from retrying the present case using a theory (banding) and evidence that could have been presented during the original proceeding. The judge did not abuse his discretion in denying MAMLEO's motion. [Note 20]

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Conclusion. Because the other arguments raised by MAMLEO rely in significant part on assertions based on materials excluded by the denial of MAMLEO's motion to supplement the administrative record, we need not consider them there. [Note 21]

The judgment of the Superior Court is affirmed.

So ordered.

IRELAND, J. (dissenting). I respectfully dissent from the court's opinion because, in my view, both the Civil Service Commission (commission) and the Superior Court judge erred in declining to consider available and relevant evidence. Specifically, MAMLEO's motion to supplement the record with evidence pertaining to the 1992 examination and the "functional equivalence" of those candidates falling within a three-point band should have been granted. Without the benefit of that proffered evidence, both tribunals perceived an inconsistency between the Boston police department's (department's) hiring practices and governing civil service protocol where, in reality, no such inconsistency existed.

Questions abound regarding the handling and resolution of these proceedings. First, as the court noted, the police department opted not to pursue an appeal, ante at 257, which I find remarkable in a case that may well have had a major impact on affirmative action appointments throughout the State. Second, no apparent logical reason supports the police department's decision to withhold the banding evidence - evidence that might very well have tipped the balance in its favor before the

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commission. [Note Dissent-1] Last, and similarly puzzling, is the judge's treatment of Boston Police Superior Officers Fed'n v. Boston, 147 F.3d 13 (1st Cir. 1998) (Superior Officers). [Note Dissent-2] In affirming the commission's ruling, the Superior Court approved of its incorporation and reference to that decision. In my opinion, however, the commission's selective reading of the Federal court's opinion - borrowing certain conclusions and overlooking others - is suspect.

For instance, the Superior Court order recognizes, "[t]he Commission properly relied on [Superior Officers, supra at 17] to find that '[o]nce the consent decree expired, the reasonable justification for strictly race based promotions, also ended.' " Seeing how both the commission and the Superior Court gave careful consideration to the Federal court's opinion, I am hard pressed to understand how they could overlook the "unanswered evidence that the one-point difference between [the minority candidate's] score and that of the [nonminority officers] was, as a matter of testing accuracy, negligible." And that, "[a]ccording to the [human resources division's] expert testimony, 'candidates who scored within a three-point band should be considered functionally equivalent . . . and equally qualified to successfully perform the job as any other person in that score band.' " Id. at 24. Given that the police department, itself, "conclu[des] that it had not yet succeeded in remedying the effects of its history of discrimination," id. at 21, one can only speculate as to why this crucial evidence was not presented to the commission. Whatever the underlying rationale may be, it is clear that the Superior Court's refusal to consider MAMLEO's supplemented materials compounded this error.

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Having been left out of the proceedings before the commission, MAMLEO petitioned the Superior Court to supplement the record with the pertinent documents associated with the Superior Officers litigation. Foremost among these materials is a 1994 letter from the personnel administrator expressing the "view that all applicants within any three-point score band are functionally equivalent with respect to the quality or knowledge being measured and, therefore, equally qualified to successfully perform the job as any other person in that score band." As discussed below, evidence that the promoted candidates were "functionally equivalent" to the bypassed candidates markedly shifts the posture of this case.

Beyond the confines of the Superior Officers case, the record contained additional references to the 1992 examination and the gauging of candidates' scores. For instance, the brief submitted by the police department to the commission addressed the "negligible" difference between the minority candidates' scores and the bypassed candidates' scores. After quoting the 14 unanswered evidence" language from Superior Officers, supra at 24, the police department argued: "Here, the grade span is at most two points, which it submits falls within the 'functionally equivalent' band described by the [human resources division]. . . . The evidence before the Commission thus makes abundantly clear that the black officers who were promoted shared virtually identical qualifications with the white [candidates]." See A. Cella, Administrative Law and Practice s. 1562, at 124 (1986) (statutory scheme "recognizes that there may indeed be circumstances where additional or new evidence may be useful in the just and equitable resolution of the problem before the court"). Because the Superior Court judge knew that material, "unanswered evidence" [Note Dissent-3] existed, failing either to (1) grant MAMLEO's motion to supplement the record; or (2) remand the matter to the commission for additional findings, see G. L. c. 30A, s. 14 (4), (6) & (7); Northeast Metro. Regional

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Vocational Sch. Comm. v. Massachusetts Comm'n Against Discrimination, 35 Mass. App. Ct. 813, 814 (1994), constituted, in my opinion, an abuse of discretion. See Douglas Envtl. Assocs.,Inc. v. Department of Envtl. Protection, 429 Mass. 71, 75 (1999).

In these circumstances, restricting the scope of the record essentially guaranteed the outcome. The "banding" evidence bears directly on the crux of the case, i.e., "whether, on the basis of the evidence before it, the appointing authority has sustained its burden of proving that there was reasonable justification for the action taken by the appointing authority." Cambridge v. Civil Service Comm'n, 43 Mass. App. Ct. 300, 303 (1997). See G. L. c. 31, s. 2 (b). In assessing the reasonableness of the police commissioner's justification, it is important to recognize that any differential in examination score was of minimal significance. As the submitted information suggests, compliance with EEOC regulations need not contradict governing civil service law. Where, as here, a hiring authority promotes one "functionally equivalent" candidate over another, a conclusion that "basic merit principles," G. L. c. 31, s. 1, have been violated is dubious in light of its reliance on a knowingly incomplete record.

By neglecting to consider this pertinent information, both the commission and the Superior Court have placed their imprimatur on an employment practice that will frustrate the Boston police department's admirable attempts to eradicate the vestiges of long-standing discrimination. See Superior Officers, supra at 25 (decision motivated by department's "history of past discrimination, and statistics indicating that affirmative action was appropriate to avoid potentially actionable disparate impact in this situation"). Because a decision of great magnitude - one with implications in both the civil service context as well as antidiscrimination law - was rendered, in my view, without regard to critical evidence, I must dissent.