The Commission's decision

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Decision mailed: 8! 4/o¥

. Civil Service Commissio
COMMONWEALTH OF MASSACHUSETTS

CIVIL SERVICE COMMISSION

SUFFOLK, SS.

THOMAS E. MOSES,

Appellant
v.
TOWN OF WINTHROP,
Respondent

Appellant’s Attorney:

Respondent’s Attorney:

Commissioner:

DECISION

One Ashburton Place - Room 503
Boston, MA 02108
(617) 727-2293

CASE NO: G2-08-88

Leah M. Barrault, Esq.

Pyle, Rome, Lichten, Ehrenberg &
Liss-Riordan, P.C.

18 Tremont Street, Suite 500

Boston, MA 02108

Howard L. Greenspan, Esq.
200 Broadway, Suite 304
Lynnfield, MA 01940

Paul M. Stein

The Appellant, Fire Lieutenant Thomas E. Moses, brought this appeal, pursuant to

G.L.c.31, §2(b), from the action of the Massachusetts Human Resources Division (HRD)

which approved a decision of the Town of Winthrop (Winthrop), as Appointing

Authority, to bypass him for promotion to temporary Captain in the Winthrop Fire

Department in favor of a candidate of lower rank. At a full hearing on June 23, 2008, the

Respondent presented evidence through two witnesses. The Appellant. called three

witnesses and he testified on his own behalf. Witnesses were sequestered, save for the

Appellant and Respondent’s representative, Richard White. Sixteen (16) exhibits and a

Stipulation were received in evidence. The hearing was recorded on three audiocassettes.

FINDINGS OF FACT
With appropriate weight to the Stipulation and Exhibits (TX1-5X14), the testimony of
Chief Paul Flanagan, Winthrop Fire Department; Richard J. White, Winthrop Town
Manager; Fire Lieutenant Thomas C. Moses; Deputy Chief Gregory J. Menard, Town of
Revere Fire Department; Firefighter William A. Carabine, Jr., Winthrop Fire Department;
and Firefighter Jaffrey A. Perrotti, Jr, Winthrop Fire Department; and inferences
reasonably drawn from evidence as I find credible, I make the findings of fact set forth
below.
Procedural History
1. Fire Chief Joseph “Larry” Powers retired from the Winthrop Fire Department
effective at the end of March 2008. Following Chief Powers’s announced.
retirement, then Captain (now Chief) Paul Flanagan was appointed Acting Fire |

Chief, pending completion of the process necessary for appointment of a new

permanent Fire Chief. (Flanagan, White)

2. Anticipating that one of Winthrop’s existing Fire Captains would be elevated to
the position of Acting Fire Chief, Winthrop Town Manager Richard White
requisitioned, and HRD supplied, on or about March 18, 2008, Certification No.
280216, which comprised the list of candidates eligible for appointment to the
position of temporary Fire Captain, to fill the vacancy that would be created upon
the appointment of an Acting Chief. (Flanagan, White; JX1)

3. Certification No. 280216 contained only two names: the Appellant (Lt. Moses)
and Firefighter William “Scott” Wiley. Lt. Moses was ranked number one with a
score of 92; Firefighter Wiley was ranked number two with a score of 81. Both

candidates stated their willingness to accept the appointment. (JX1)

4, On April 8, 2008, Acting Chief Flanagan recommended Firefighter Wiley over Lt.
Moses for appointment to the position of temporary Fire Captain. The Town
Manager accepted Chief Flanagan’s recommendation. (Flanagan, White; JX2,
JX3, JX4) |

5. Acting Chief Flanagan stated these reasons to appoint Firefighter Wiley (JX4):

abana
6-27-08

TOWN OF WINTHROP ; ;
FIRE DEPARTMENT
Paul Flanagan Acting Chief of Departinent
Phone: (617)846-3474

MEMORANDUM
TO: Mr. Richard White

FROM: Acting Chief Flanagan

; Acting Captains Position

DATE: April &, 2008

After careful consideration of both candidates currently eligible for {fe position of Acting Captain, it is my recommendation
fo appoint firetighter William "Scott" Wiley. Firefighter Wiley has been a member of the Winthrop Fire Department for 17
years. During this time he has consistentiy demonstratec sound judgment, good decision making skills and competence in
routine and emergency situations, These trails have deen recognized by his peers and supervisors and have earned him
thelr respect.

Having been his Captain, ! have found him to be self-motivated and prepared for his duties. His mechenicat ability and the

knowledge of the department's equipment have been a great asset to the Winthrop Fire Department, When he has served
as an out-of-grade officer, he has demonstrated his teadership capabilifles and has shown that he can positively Influence

the motivation and productivity of his subordinates.

Ata time when the Winthrop Fire Department is faced with unprecedented number of inexperienced firefighters, | find it
imperative lo have a command staff thal is confident and decisive in their decision making. Scott Wiley possess all of the
elements necessary to be a successful fire officer.

6. On April 11, 2008, Acting Chief Flanagan issued a departmental memo
announcing that Firefighter Wiley had been promoted to the rank of Acting
Captain and would take command of Group 3 beginning on April 16, 2008. (JX8)

7. On April 16, 2008, Lt. Moses filed this bypass appeal with the Commission.

8. On April 18, 2008, Winthrop Town Manager White submitted Acting Chief

Flanagan’s Memo along with the following additional statement of reasons to

HRD for his selection of Firefighter Wiley over Lt. Moses (JX5):

UND b)4¢l0e

TOWN OF WINTHROP
ICE OF THE TOWN MANAGER

Metcalf Square, Winthrop, MA 02:82 Telephone: 617-846-1077 Fax: 617-846-5458

Richard J. White
Town Manager

Friday, April 18, 2008 |

Commonwealth of Massachusetts
Department of Human Resources
Qne Ashburton Place’

Boston, MA 02108

‘Attn: Luz M. Henriguet, Civil Service
: t
To whom jt may conéein:
‘explain the rational for the appointment of” William “Scott” Wiley
Captain in the Winthrop Fire Department. Mr. Wiley’s
performance.as 4 fire ighter during his 17 years service to the Town of Winthrop has
been exemplary. He self-motivated, productive and dedicated employee. He has
consistently demonstraied reniarkable Jeadership qualities throughout his career and in
his various capacitics, working out of grade have been a motivator for his subordinates.
His unique technical ‘abilities combined with sound practical judgment has made, hizn an
jnformal and formal Jedder in the department. Mr. Wiley bas consistently demonstrated '
sound practical knowledge on the scene in an emergency and as a result is seen asa
leader by his peers in the department. Mr. Wiley bas been the primary assigned mentor
and teacher in the training of new employees during the lust severul years; specifically
because of hi extraoidinary technical abilities and his capneity to transfer that knowledge
ina practical and extemporancous way on the scene in an ermergency-

‘This Jetter is written t
to the position-of Acti

performance was poor, incomplete and misleading. Mr.
introspective with me during his interview regarding
lack of judgment in his performance ss a
‘Lieutenant, dedpite béing questioned be Acting Chicf Flanagan regarding a number of
lapses in jud jgment during « separate interview. It took a considerable amount of time

jn addition, Mr. Moses! inierview
Moses was lesé than reficctive and
past instances where be bad exhibited a

and effort on my part to get

Mr. Moses to Jook at his past misjudgments and consider that

he had not managed

fire scenes or emergency scenes

according 10 appropriate protocol

and thal his Jack of judgment and unwillingness to follow emergency procedures could

lingness to Jearn from his errors

have endangered the lives of his co-workers. His unwill
end provide evidence that he had grown professionally from his negative experiences
convinces me that Mr. Moses is not ready for promotion to a command position. Even tn
the interview, Mr. Moses showed evidence of poor judgment. ‘

:
Mr. Wiley is the right candidate at the right time to Jead a group and be part of the Fire
Chief's command stefdtring & time when Winthrop has an unusnally large number of
inexperienced firefighters. Lis sound judgment, leadership skills and respect within the
éepartment make him, the right candidate. :

7]
/ Sincere Ys

9. On May 6, 2008, HRD approved the reasons stated to bypass Lt. Moses. (JX13)

10. No party objects to the procedure followed above (as opposed to the substantive
reasons given) for approval of the bypass of Lt. Moses and appointment of
Firefighter Wiley, or Lt. Moses’s appeal of the bypass in advance of that
approval. Any such procedural or timing irregularities are now deemed cured and
waived. (JX14)

The Winthrop Fire Department

11. Town Manager Richard J. White is the Appointing Authority for the Winthrop
Fire Department. (White; JX 3)

12. The Winthrop Fire Department operates from a Headquarters (Center Station) on
Pauline Street and one substation on Shirley Street (B Station). There are four
work Groups (Groups 1 through 4), each commanded by a Fire Captain stationed
at Headquarters; There is also one administrative Captain. (Flanagan)

13. Prior to the elevation of Chief Flanagan, the last opening for the position of
Captain in the Winthrop Fire Department occurred in August 1996, with the
appointment of Charles Flanagan, brother of Chief Flanagan, as Captain of Group
1. The next expected opening for Captain will be in 2012, with the retirement of
the administrative Captain. (Moses; JX6(a))

14. The Winthrop Fire Department has experienced an unusually large number of
new hires in the past eight years. Two Captains - Charles Flanagan and Richard
Schwartz — are the assigned training officers. All personnel contribute to training

the recruits on-the-job. (Flanagan, White, Perrotti)

Lieutenant Thomas C. Moses

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Lt. Moses is 52 years old and joined the Winthrop Fire Department in November
1985, giving him 22 years of seniority as of the date of Certification 280216. He
received his promotion to Lieutenant in August 1996, filling the position in Group
1 vacated by Charles Flanagan, who had been promoted to Group | Captain. Lt.
Moses was ranked first (out of two) candidates on the certification for that
promotion. (Moses; TX6(a), X6(b))

Lt. Moses was transferred to Group 3, effective September 2001, replacing Lt.
Flynn in that position. According to Lt. Moses, the transfer was initiated at then-
Captain (now Chief) Flanagan’s request. (Moses)

Since 2001, Lt. Moses has been the senior officer in command of the Shirley
Street Station, reporting to the off-site Group 3 Captain (Paul Flanagan) at
Headquarters. In his capacity as the Shirley Street lieutenant, Lt. Moses
supervises an engine company and a ladder company. He interacted with Captain
Flanagan on visits to Headquarters and would see Captain Flanagan on about 10
to 20 percent of the fire service calls to which the Shirley Street apparatus was
dispatched. Prior to serving as lieutenant in the administration of Chief Powers,
Lt. Moses served as a firefighter under the administration of Chief David
Higginbotham and prior Chief Flanagan (father of Captain Charles and current
Chief Flanagan). (Flanagan, Moses, Carabine, Perrotti; X6(a), X9)

It is customary in the Winthrop Fire Department for a lieutenant to be assigned to
serve as “out-of-grade” Acting Captain and Lt. Moses was so assigned to cover at

least 150 different shifts. He has received numerous citations for excellence.

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Numerous letters from grateful citizens appear in his-file. In 1990, in connection
with the response to the Grandview Avenue fire, for which the entire Department
was commended, Lt. (then Firefighter) Moses was personally singled out by Chief
Higginbothem with an individual written Commendation of Valor. (Moses; JX11)
Lt. Moses holds a B.A. degree in General Studies from Salem State College, with
a concentration in Marine Science, and has earned 85 credits toward a Fire
Science bachelor’s degree. He has received numerous certificates for satisfactory
completion of courses in fire management. He has been ranked Number | on the
Fire Captain’s Civil Service List since April 2003. His raw score on the 2005 Fire
Captain’s exam was 91, to which 1 point was added resulting in a final score of
92. (Moses; JX10, JX11)

Two Winthrop firefighters, Firefighter William Carabine and Firefighter Jaffrey
Perrotti, who have known Lt. Moses for many years and worked under his
command, testified about him in very specific terms, which will be addressed in
detail below. I found their testimony quite candid and particularly useful to
provide a glimpse into the realities of a firefighter’s life, both at fire scenes and in
the stationhouse. (Carabine, Perrotti)

Lt. Moses has never been formally reprimanded or disciplined. Until recently, it
had not been the policy of the Town of Winthrop to conduct performance reviews.
However, for a few years after his promotion, Lt. Moses took it upon himself to
informally ask Captain Flanagan, from time to time: “How am I doing?” He was
told: “Fine. If there is a problem, you will know” or words to that effect.

(Flanagan, Moses, White)

Firefighter (Acting Captain) William “Scott” Wiley

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Acting Captain Wiley is 46 years old and joined the Winthrop Fire Department in
February 1991, giving him 17 years of seniority as of the date of Certification
280216, five years less than Lt. Moses. He has been assigned. to Headquarters,
and was part of work Group 3 in 2001 when Chief Flanagan took command of
that group. As Chief Flanagan’s successor in command of Group 3, Acting
Captain Wiley is now Lt. Moses’s supervising officer. (Flanagan; JX 6(c), 8, 9)
Acting Captain Wiley has also received certificates for his satisfactory completion
of numerous fire management courses. Many commendations for excellence, and
numerous letters from grateful citizens also appear in his file. The evidence does
not indicate his level of formal education, but his 2005 Fire Captain Examination
results indicate an examination score of 76.99, increased 4 points to a final score
of 81, (IX8)

According to his file, from January 21, 2007 to March 5S, 2007, then Firefighter
Wiley was temporarily re-assigned from Group 3 to Group 2 in the position of
Acting Lieutenant. No testimony was provided to explain the circumstances or
relevance of this appointment. (JX8)

Acting Captain Wiley did not testify and no witness testified as to Firefighter
Wiley’s disciplinary history. There is no record of any such discipline in his file
and the Commission will infer that Firefighter Wiley has never been disciplined.
Firefighter Wiley and then-Captain Flanagan worked on off-duty construction
jobs, one as a licensed electrician and one as a licensed plumber, and, in this

capacity, they were present on the same work site, although for different

' employers, on five or six jobs. The evidence did not establish that either one has

been a source of referral business to the other but the evidence of the off-duty
relationship does invite some heighted scrutiny of Chief Flanagan’s preference for

Firefighter Wiley. (Flanagan)

The Selection Process

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Mr. White became Winthrop Town Manager in April 2006. His experience in
municipal government includes service as Assistant Town Manager in Winchester
(1980-1984), Town Administrator in Bedford (1984-1986) and Town Manager in
Lexington (1986-2004). Mr. White has no prior personal knowledge of the work
history or performance of either Firefighter Wiley or Lt. Moses. (White)

In April 2008, Mr. White appointed then Captain (now Chief) Paul Flanagan to
the position of Acting Chief for the Winthrop Fire Department. Mr. White
appointed Paul Flanagan to the position of permanent Fire Chief, effective June
23, 2008. (Flanagan, White)

Chief Flanagan has more than two decades of service with the Winthrop Fire
Department, including 23 years as a Captain, and, as noted above, both Firefighter
Wiley and Lt. Moses have served under his command. (Flanagan, Moses)

The elevation of Chief Flanagan and the resulting opening for Captain were the
first such appointments that had arisen in Mr. White’s tenure as Winthrop Town
Manager. Using his prior experience, Town Manager White planned three sources
of input to evaluate candidates for Acting Captain: (1) the Acting Chief; (2) a
panel of the candidates’ peers, i.e., Lieutenants and Captains; and (3) his own

input. However, Mr. White discovered that due to “details” with which he was

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unfamiliar, “there was a situation” so that peers “felt uncomfortable” providing
input. Thus, Mr. White adapted the procedure and the sole evaluators were
reduced to Chief Flanagan and Town Manager White. (White)

Mr. White designed a two-step interview format in which: (1) each candidate was
interviewed by Acting Chief Flanagan in the presence of Winthrop’s Information
Secretary, and (2) a second interview followed about thirty minutes later with Mr.
White, at which Acting Chief Flanagan and the Information Secretary were also
present. (White, Flanagan, Moses)

Chief Flanagan prepared the questions below to be posed to each candidate. Four
of the questions were identical. A fifth question was tailored to what he believed

to be each candidate’s “weakness”. (Flanagan; JX7).

het Flanagan's
Ch "4 Jx 7

~ or}
( Gaplains Interview Questions) ( ie

1) Whai do you see as the primary day to day responsibilities as a Captain?

.} In your opinion, what are three necessary qualities a captain must possess while
on the fire ground?

3.) What have you done to gain the respect of your peers? And what will you
continue to do going forth?

4.) What is one unique skill/characieristic thal you believe you bring to the
department at large?

5h Tommy- Over the years you have consistently shown a lack of Judgment in terms
of emergency response, what do you think is necessary from you to overcome
these allegations?

Scoti- With never having served in a command capacity, what makes you believe
thal you have the ability to step into the role of a shift commander?

The Interview with Chief Flanagan

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Lt. Moses’s interview with Acting Chief Flanagan lasted approximately 10
minutes. Acting Chief Flanagan asked Lt. Moses the five prepared questions
essentially verbatim. (Flanagan, Moses) .

No evidence was produced as to the responses given by either Lt. Moses or
Firefighter Wiley to any of the four “standard” questions, or Chief Flanagan’s
assessment of their responses. (Flanagan)

In posing Question 5, Chief Flanagan gave Lt. Moses no “particulars” or
examples of the poor judgment he had in mind. Lt. Moses’s response to Question
5 was, in substance, that he believed he made “good decisions” and not that he
had “consistently shown a lack of judgment” in emergency response situations.
He also said something to the effect that: “Like all of us, experience is the best
teacher.” Chief Flanagan did not follow up. (Flanagan, Moses)

After his interview with Chief Flanagan, Lt Moses was “very confident.”
(Flanagan, Moses)

Chief Flanagan’s fifth question to Firefighter Wiley asked about lack of
supervisory experience. Firefighter Wiley’s response was, in substance, that he
believed that by working at Headquarters, as opposed to a substation, he gained

more experience in learning how command decisions were made. (Flanagan)

The Interview with Town Manager White

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Town Manager White had no set questions of the two candidates, preferring a

more “free flowing” interview approach. Lt. Moses estimated the length of his

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interview by Mr. White, Chief Flanagan and the Information Secretary to have
lasted approximately 15 to 20 minutes. (White, Moses)

Prior to the interview, Mr. White had been told that retiring Chief Powers and
Chief Flanagan had issues with Lt. Moses’s “on scene response” in an emergency.
Initially, Mr. White testified he was not told “anything in particular”, but he later
testified that, at some time prior to the interview, he did recall having learned
some details from both Chief Powers and Chief Flanagan about one of the
specific incidents they had in mind. (Whité)

Mr. White was permitted to use notes that he had prepared during the hearing
before the Commission — while listening to the testimony of Chief Flanagan — in
aid of his testimony. There was no evidence that Mr. White’s notes were prepared
in advance or for the benefit of counsel, or that that they were made with
reference to notes made contemporaneously with the interview itself. The
evidence was that no such contemporaneous notes were created. (White)

Mr. White testified that he followed his customary interview procedure with both
Firefighter Wiley and Lt. Moses. He described this procedure to involve an
introductory phase to establish a perspective of a candidate’s career — what
motivates him — followed up by questions that seek to learn about a candidate’s
special contributions, and, finally, questions on “growth issues”. The three
specific factors that Mr. White said he looked for as the Appointing Authority: (1)
credibility within the ranks; (2) support of the persons they work with day to day;

and (3) being aware of who they are, i.e., their strengths and weaknesses. (White)

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Mr. White testified that he did not know either candidate’s score on the Captain’s
exam at the time he interviewed them. He did later learn, prior to making the
appointing decision, that there was an 11 point difference in the two scores. He
assumed that substantially the entire differential was due to 10 points having been
added to Lt. Moses’s score for command experience. (That assumption was
mistaken.) Thus, in Mr. White’s mind, the raw scores were “not compelling either
way” and he chose the “more qualified” candidate based on his assessment of
intangible qualities not measured by examination, specifically, “judgment and
ability to grow.” (White; Moses)

In his interview with Firefighter Wiley, Mr. White said he expressed “concerns”
about Firefighter Wiley’s lack of supervisory experience and asked the candidate
to address that issue. According to Mr. White, Firefighter Wiley acknowledged
his lack of formal experience as a lieutenant, but suggested that he had been given
other leadership opportunities by Chief Powers and Captain Flanagan, particularly
in the training of new recruits and had taken command during an incident. When

asked what he would do to “fill in the gaps” if he were appointed, Firefighter

. Wiley said he would seek out in-service training opportunities and make it a point

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to meet regularly with other captains to share experiences. No mention was made
of Firefighter Wiley’s six week duty assignment as an acting Lieutenant. When
asked for specific examples of Firefighter Wiley’s leadership in an emergency
situation, Mr. White could not recall any. (White)

The testimony of Mr. White and, to some extent, Chief Flanagan, concerning Mr.

White’s interview with Lt. Moses, departs in significant and material ways from

the testimony of Lt. Moses. The witnesses do agree that the interview began
cordially. Mr. White characterized Lt. Moses’s answers to the initial questions as
“fairly succinct” and “direct and to the point”. The witnesses also agree that the
questioning quickly turned to Mr. White’s “growth” issues and that most of the
interview was devoted to that subject. In order to make the appropriate findings as
to this disputed part of the interview, it is necessary, first, to examine the evidence
of the underlying incidents that came up at that time. (Flanagan, White, Moses)

The Oil Burner Fire

45. The Shirley Street substation, under Lt. Moses’s command, was dispatched to
respond to a box alarm fire at 600 Shirley Street, a 32 room hotel. Chief Flanagan
erroneously placed this incident to have occurred in early 2007. I find that the
incident occurred more than three years prior (2003 or 2004), based on the
credible and undisputed testimony that Firefighter Daniels was the driver of the
apparatus that responded to the call with Lt. Moses, and Firefighter Daniels had
retired at least that long ago. (Flanagan, Moses)

46. No incident report or other documentation concerning the fire was produced.
Based on the testimony of the witnesses, I find it reasonable to infer that a fire had
ignited in the boiler located in the basement of the hotel; that, at the time Lt.
Moses responded, flames were shooting up the chimney flue, and that black
smoke could be seen coming from the scene. Captain Flanagan saw the smoke as
he headed to the hotel. The fire had not involved any other part of the structure of
the building at that point. Lt. Moses was told by the building maintenance

operator that he had the fire under control and he reported this over the Fire

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Department radio. When Captain Flanagan arrived on scene, he proceeded with
Lt. Moses to the basement and they both saw that the fire had not been
extinguished. It required CO2 equipment to put it out. Captain Flanagan told Lt.
Moses: “Tommy, you always have to check” and never take a building
supetintendent’s word. Lt. Moses immediately acknowledged at the scene that he
had “screwed up.” There was no disciplinary action of any kind taken as a result
of this incident. The incident never came up again between Lt. Moses and Captain
Flanagan, until the interview with Mr. White. (Flanagan, Moses)

In the three or four years since the date of that incident, Lt. Moses had responded.
to “many” other boiler fire calls. He never made the same mistake. He has always
“looked for himself’, sonietimes with the assistance of a subordinate under his

command who is licensed in HVAC equipment service and repair. (Moses)

The Motor Vehicle Accident

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On a late afternoon or early evening in September/October 2007, the Shirley
Street substation responded to the scene of a serious motor vehicle accident near
the intersection of Shirley and Tewksbury Street in Winthrop, with Lt.-Moses in
command. Several police cruisers were on the scene when the fire apparatus
arrived. Lt. Moses positioned the engine in which he was riding across the street
from the accident approximately 30 feet, according to him and Firefighter
Carabine, who followed Lt. Moses in the ladder truck. (Captain Flanagan recalled
the engine was 150 feet from the accident, but I find the preponderance of the
evidence fails to persuade me that Captain Flanagan’s recollection was correct on

that point.) Lt. Moses directed the ladder truck in position across from the engine

about 25 feet from the accident, which was “as close as they could to the scene”
and leave room for the ambulance that was en route. (Moses, Carabine, Flanagan)

49. Lt. Moses ordered a dry line (fire hose) run from the engine, which is standard
procedure, although he had observed that the fire risk was low at the scene. He
‘made his immediate priority the extrication and care of injured occupants, which
he personally attended to along with others. As a result of his efforts, the
unconscious occupant was extricated from the damaged vehicle, “boarded” (as a
precaution for spinal injury), transferred to an ambulance and removed from the
scene and taken to the hospital safely. The ladder truck was equipped with “Jaws
of Life”, but that equipment was not needed. (Moses, Carabine)

50. At some point during the emergency, Captain (now Chief) Flanagan arrived on
scene and took command. He ordered the engine and ladder track moved up
closer to the scene of the accident. The move enabled the fire apparatus lighting to
assist the police accident reconstruction team that arrived on scene as darkness
fell. There was no interchange about this repositioning at the time. Lt. Moses did
not question the order as he would never “second guess” his Captain. Firefighter
Carabine confirmed that there was never anything critical stated about Lt.
Moses’s performance that day. No documentation of the incident was introduced.
(Moses, Carabine, Flanagan)

The Revere Fire

51. At the end of October 2007, Lt. Moses commanded a mutual aid response to a
“second alarm” nighttime fire in the City of Revere. The Deputy Fire Chief in

Revere is Greg Menard, Lt. Moses’ first cousin. Deputy Chief Menard testified

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before the Commission and was a very credible witness who spoke highly of Lt.
Moses. | do not rely on his testimony about Lt. Moses’s general character due to
the family relationship, but I do find his specific testimony about the October
2007 fire, some of which could be viewed as personally self-deprecating to
himself, clear and fully credible and supported by the testimony of Winthrop
Firefighter Jaffrey Perrotti, who was also on the scene of that fire. (Menard,
Perrotti)

Deputy Chief Menard and Firefighter Perrotti described how Lt. Moses’s ladder
truck had executed an order made by the Revere Fire Chief to position a ladder to
a certain second-floor window, which happened to be about 12 inches from an
exterior electrical line. (The line was “grandfathered”; code now requires electric
lines to be at least three feet from a window.) A warning was heard from an
unidentified source: “Watch the electrical line.” After the ladder was positioned,
Deputy Chief Menard noticed that there was another window on the back of the
building that allowed an even better opportunity to get a line to the second floor
and he ordered the Winthrop ladder repositioned to take advantage of this
opportunity. The Revere Fire Chief “wasn’t too happy” about moving the ladder,
but Deputy Chief Menard elected to follow his own judgment, believing he had a
more complete knowledge of the entire fire scene. (Menard, Perrotti)

Firefighter Perrotti testified about his personal observations of Lt. Moses during
the Revere fire. He saw Lt. Moses give the nozzle to one of the recruits - Sunday
Reth — and guide him up to the second floor of the building, with his hand on the

recruit’s shoulder, instructing him all the way on the details of the proper

technique. Firefighter Perrotti was so impressed with Lt. Moses’s mentoring and
leadership that he went to Chief Powers to tell him what he had observed. Chief
Powers's only question to Firefighter Perrotti was about the ladder and the
electrical line and “what went wrong”. Firefighter Perrotti said he “squelched the

rumor’. (Perrotti)

Interview of Lt. Moses on Issues of Judgment

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When Mr. White’s interview of Lt. Moses moved to the questions of past
judgment, Mr. White turned to Acting Chief Flanagan to lay out the specific
examples, and the 600 Shirley Street boiler fire and the Shirley/Tewksbury motor
vehicle accident were mentioned. This is the first time in the interview process
that Lt. Moses had heard any specifics about the questions of his past judgment
calls. Based on the credible testimony from both Chief Flanagan and Lt. Moses, I
do not credit the Mr. White’s inconsistent opinion to the contrary. (White, Moses,
Flanagan)

As to the 600 Shirley Street fire in 2003/2004, I credit testimony that he had
immediately accepted responsibility for his error of judgment concerning that
incident and that he told Mr. White that he had learned from this mistake and did
not take another person’s word again without checking it out himself. (Moses,
Flanagan)

As to the motor vehicle accident, I credit Lt. Moses’s testimony that he
confidently defended his actions in that situation to Mr. White, telling him, as he
also told the Commission, that he believed he had used good judgment in

managing that scene and, in particular, that the apparatus had been positioned

57.

58.

59.

60.

appropriately to allow access by the ambulance to the injured party, which was
the priority at that time. (Moses, Carabine)

Lt. Moses presented at the hearing as a generally articulate witness, with a
confident demeanor, who answered most questions responsively and stood up
well on cross-examination. I find nothing in Lt. Moses’s testimony or any of the
other evidence that leads me to infer that he would have performed any differently
in a fair and objective interview with Mr. White and/or Chief Flanagan.

Chief Flanagan and Mr. White gave unconvincing or evasive responses to a
number of questions posed to them. Both demonstrated a faulty recollection of
material facts, for example: Captain Flanagan’s mistake about the date of the
Shirley Street fire and certain particulars about the motor vehicle accident, Mr.
White’s mistake about the reason behind Lt. Moses’s significantly higher test
score, and Mr. White’s mistaken impression that confronting Lt. Moses with
specific instances of misjudgment was no surprise to Lt. Moses because Captain
Flanagan had already covered the subject in depth in his initial interview with Lt.
Moses. (Moses, Flanagan, White)

Prior to the interviews, Lt. Moses told Captain Flanagan the “word on the street”
was that he would not be chosen. (Moses, Flanagan)

Lt. Moses, concluded from the tenor of the questions and comments that Mr.
White’s opinion was not favorable. His impressions were confirmed when, on
April 10, 2008, Chief Flanagan called him to Headquarters and informed him that
Firefighter Wiley would be appointed Acting Captain. Lt. Moses testified that

Chief Flanagan stated: “The fix is in, they jumped you.” (Moses)

CONCLUSION
In a bypass appeal, the Commission must consider whether, based on a
preponderance of the evidence before it, the Appointing Authority sustained its burden of

proving there was “reasonable justification” for the bypass. E..g., City of Cambridge v.

Civil Service Commission, 43 Mass.App.Ct. 300, 303-305, 682 N.E.2d 923, rev.den., 428
Mass. 1102, 687 N.E.2d 642 (1997) (Commission may not substitute its judgment for a
“valid” exercise of appointing authority discretion, but the Civil Service Law “gives the
Commission some scope to evaluate the legal basis of the appointing authority’s action,
even if based on a rational ground.”). See Massachusetts Ass’n of Minority Law
Enforcement Officers v. Abban, 434 Mass 256, 264-65, 748 N.E.2d 455, 461-62 (2001)
(“The [Civil Service] commission properly placed the burden on the police department to
establish a reasonable justification for the bypasses [citation] and properly weighed those
justifications against the fundamental purpose of the civil service system [citation] to
insure decision-making in accordance with basic merit principles . . . . the commission

acted well within its discretion.”); MacHenry v. Civil Service Comm’n 40 Mass.App.Ct.

632, 635, 666 N.E.2d 1029, 1031 (1995), rev.den., 423 Mass. 1106, 670 N.E.2d 996
(1996) (noting that personnel administrator [then, DPA, now HRD] (and. Commission
oversight thereof) in bypass cases is to “review, and not merely formally to receive
bypass reasons” and evaluate them “in accordance with basic merit principles”); Mayor

of Revere v. Civil Service Comm’n, 31 Mass.App.Ct. 315, 321n.11, 577 N.E.2d 325

(1991) (“presumptive good faith and honesty that attaches to discretionary acts of public
officials . . . must yield to the statutory command that the mayor produce ‘sound and

sufficient’ reasons to justify his action”). See also, Bielawksi v. Personnel Admin’r, 422

Mass. 459, 466, 663 N.E.2d 821, 827 (1996) (rejecting due process challenge to bypass,

stating that the statutory scheme for approval by HRD and appeal to the Commission
“sufficient to satisfy due process”)

It is well settled that reasonable justification requires that the Appointing Authority’s
actions be based on “sound and sufficient” reasons supported by credible evidence, when
weighed by an unprejudiced mind guided by common sense and correct rules of law.

See Commissioners of Civil Service v. Municipal Ct., 359 Mass. 211, 214, 268 N.E.2d

346, 348 (1971), citing Selectmen of Wakefield v. Judge of First Dist. Ct, 262 Mass.

477, 482, 451 N.E.2d 443, 430 (1928). All candidates must be adequately and fairly
considered. The Commission has been clear that it will not uphold the bypass of an
Appellant where it finds that “the reasons offered by the appointing authority were
untrue, apply equally to the higher ranking, bypassed candidate, are incapable of
substantiation, or are a pretext for other impermissible reasons.” Borelli v. MBTA, 1
MCSR 6 (1988).

A “preponderance of the evidence test requires the Commission to determine whether,
on the basis of the evidence before it, the Appointing Authority has established that the
reasons assigned for the bypass of an Appellant were more probably than not sound and

sufficient.” Mayor of Revere v. Civil Service Commission, 31 Mass. App. Ct. 315, 321,

577 N.E.2d 325, 329 (1991).

The greater amount of credible evidence must in the mind of the judge be to the effect that such
action ‘was justified,’ in order that he may make the necessary finding. if the court is unable to

inclines to the view that such action was not justified, then the decision under review must be
reversed, The review must be conducted with the underlying principle in mind that an executive
action, presumably taken in the public interest, is being re-examined. The present statute is
different in phrase and in meaning and effect from [other laws] where the court was and is
required on review to affirm the decision of the removing officer or board, ‘unless it shall appear
that it was made without proper cause or in bad faith.’

Selectmen of Wakefield v. Judge of First Dist. Ct., 262 Mass. 477, 482, 160 N.E. 427,

430 (1928) (emphasis added) The Commission must take account of all credible evidence

in the entire administrative record, including whatever would fairly detract from the
weight of any particular supporting evidence. See, e.g., Massachusetts Ass’n of Minority
Law Enforcement Officers v. Abban, 434 Mass 256, 264-65, 748 N.E.2d 455, 462 (2001)

Applying these applicable standards in the circumstances of the present case, the
Commission concludes that the Town of Winthrop’s bypass of Lt. Moses for appointment
to the position of Acting Fire Captain did not comport with basic merit principles
resulting in harm to his employment status through no fault of his own.

First by any reasonable measure, Lt. Moses appears more qualified than Firefighter
Wiley for promotion to Acting Fire Captain. While a candidate’s ranking on a civil
service list does not create any cognizable “vested right” or “property interest” to a
position, Callanan v. Personnel Admin’r, 400 Mass. 597, 601, 511 N.E.2d 525, 528
(1987); Burns v. Sullivan, 619 F.2d 99 (1980), the Commission notes that the unusually
large exam point spread in this case between Lt. Moses and Firefighter Wiley (92 vs. 81)
is a particularly “significant difference between candidates in any civil service
examination” that must carry due weight in any appointment decision, and certainly
ought not to have been summarily discounted as the Appointing Authority has done in

this case. Compare Sabourin v. Town of Natick, 18 MCSR 79, 82 (2005) (seven point

differential “significant”; by-pass appeal allowed) with Radford v. Andover Police Dep’t,

17 MCSR 93 (2004) (1 point differential considered; bypass appeal denied) and Sullivan

v. North Andover Fire Dep’t, 7 MCSR 175 (1994) (5 point difference in scores not

“gignificant”) See also Bradley v. City of Lynn, 443 F.Supp.2d 145, 173-74

(D.Mass.2006) and cases cited (experts consider from three to eight points on exam

“statistically significant” for purposes of establishing Title VII discrimination) A bypass

decision, as here, that fails to fairly and appropriately consider such a significant
difference in exam scores between two candidates is not justified., In addition, while both
candidates appear to possess equivalent, distinguished training and performance records,
Lt. Moses has served with distinction in the Winthrop Fire Department longer than
Firefighter Wiley (22 years vs. 17 years) and has nine more years of continuous
command experience in a higher rank than Firefighter Wiley.

Second, in addition to the misunderstanding significant difference in the candidates’
civil service test scores, Winthrop’s bypass decision was grounded on other assumed
facts that are not correct. Contrary to the statements in Captain Flanagan’s recommended
reasons (JX5), Firefighter Wiley has not been the “primary assigned mentor and teacher
in the training of new employees during the last several year. Captains Schwartz and
Charles Flanagan have been assigned that duty. In fact, the only direct evidence
presented to the Commission on either candidate’s training skill was Firefighter Perrotti’s
impressive description of Lt. Moses’s on-scene mentoring of a recruit.

Similarly, the evidence fails to establish the assertion in the statement of reasons
provided to HRD, that Lt. Moses had a record of multiple “instances, where he had

exhibited a lack of judgment . . . despite being questioned by Acting Chief Flanagan

regarding a number of lapses in judgment during a separate interview” in which he “had

not managed fire scenes or emergency scenes according to appropriate protocol and that

his lack of judgment and unwillingness to follow emergency procedures could have
endangered the lives of his co-workers.” (IX5) (emphasis added)
Only two questionable incidents were advanced to support these statements. Both

percipient witnesses (Chief Flanagan and Lt. Moses) agree that Lt. Moses was not

“questioned” about either of these instances in his “separate interview” as Mr. White
stated. Moreover, the credible evidence simply falls short of establishing that Lt. Moses
showed any lapse of judgment or in any way endangered his co-workers lives in the way
he responded to the 2006 motor vehicle accident.

Thus, at most, there is but one questionable call made by Lt. Moses in his 22 year fire
service career, twelve of which he has served as Lieutenant, which related to his undue
reliance on a building technician’s word that he had the fire in question under control. To
be sure, Winthrop proved that this one error of judgment did occur. Chief Flanagan
confirmed that Lt. Moses admitted his error immediately, the fire was extinguished
without endangering any person or property, and Lt. Moses has since appeared to have
responded appropriately to other boiler fires. Chief Flanagan’s recollection of the incident
placed it much closer in time to the present than it was. Accordingly, the bypass of Lt.
Moses cannot be sustained solely in reliance on this one error, in the face of the
inaccuracy about it and in combination with the other factual errors and unproved
allegations about Lt. Moses’s alleged poor judgment, upon which Winthrop erroneously
relied and used to procure HRD’s approval of the bypass.

Third, posing disparate interview questions to each candidate and, especially, Mr.
White’s “free flowing” interview format, are risky choices. While some degree of
subjectivity is inherent (and permissible) in any interview procedure, care is needed to
preserve the “level playing field” and “protect candidates from arbitrary action and undue
subjectivity on the part of the interviewers”, which is the lynch-pin to the basic merit

principle of the Civil Service Law. E.g., Flynn _v. Civil Service Comm’n, 15

Mass.App.Ct. 206, 208, 444 N.E.2d 407, 409, rev.den., 388 Mass. 1105, 448 N.E.2d 766
(1983). Winthrop’s process, here, failed to meet this standard.

Fourth, the Commission concludes that Winthrop failed to justify by a preponderance
of the evidence the Appointing Authority’s statement of reasons to HRD concerning Lt.
Moses’ interview performance. The Commission is troubled by Winthrop’s failure to
preserve any type of record whatsoever of the interviews in this case. When confronted
with a bypass decision that is heavily weighted on the performance of the candidates at
the interview, in the absence of any record of the interview, the Commission’s
conclusions about what took place, necessarily, will turn on the evidence and credibility
assessment of the witnesses presented to the Commission at the formal hearing. Thus, an
appointing authority that makes no record of the interviews it uses in the promotional
appointment process to distinguish between otherwise qualified candidates, may do so at

its peril. See, e.g., Dillion v. Brookline Police Dep’t, 20 MCSR 273 (2007) (evidence of .

appellant’s alleged misconduct disbelieved); Smith y. City of Lynn, 18 MCSR 74 (2005)

(insufficient evidence to permit reasonable person to believe appellant showed poor

judgment or denied responsibility for prior misconduct); Sihpol v. Beverly Fire Dep’t, 12

MCSR 72, 75 (1999) (Commission found interview assessment invalid based on

observation of appellant as witness); Hamilton v. Boston Police Dep’t, 11 MCSR 16

(1998) (insufficient investigation into alleged misconduct the subject of military court
martial against appellant; preponderance of evidence did not éstablish underlying

misconduct). cf. Brown v. Town of Duxbury, 19 MSCR 407 (2006) (Commission’s

impression of appellant as witness same as interview panel); Wooster v. Division of

Employment & Training, 16 MCSR 43 (2003) (appellant’s performance consistent with

interview assessment); Barber _v. Department of Mental Health, 6 MCSR 132 (1993)
(concerns expressed about appellant’s communication skills corroborated by performance
before Commission). Here, the Commission concludes that Lt. Moses simply presented
more credible evidence at the Commission hearing that he did not act in a “less than
reflective and introspective” manner or give a “poor, incomplete or misleading”
performance at his interview than Winthrop adduced evidence to the contrary.

The best evidence of what takes place in the interview is a verbatim record,
preferably, videotaped, but at least tape recorded and available for stenographic

transcription. See, e.g., Belanger v. Town of Ludlow, 20 MCSR 285, 287 (2007)

(interviews recorded on DVD); Frost v. Town of Amesbury, 7 MCSR 137, 138 (1994)

(transcripts). In addition to avoiding the risk noted above, that the Commission may be
asked to rely on faded memories and conflicting or hearsay appraisals, such a record,
especially when accompanied by a complete and contemporaneous record of the
interviewers’ evaluations and scoring, could save hearing time and, in some cases,
substitute for further duplicative testimony from interview panel members at the
Commission hearing. That, in turn, could improve the chances of recruiting quality
members to serve on interview panels.

There remains one final wrinkle to this appeal germane to relief that requires
attention. The Commission has come to learn that Winthrop has initiated the process to
fill Acting Captain Wiley’s position on a permanent basis and HRD has issued a
certification for that promotional appointment, returnable on or before August 8, 2008.
The only two names on the new certification are Lt. Moses (#1) and Acting Captain

Wiley (#2). Lt. Moses filed an Emergency Motion to require, among other things, that

Winthrop cease and desist from making a permanent appointment until after this Decision
issued. The Commission has not acted on that motion, or chosen to vacate the temporary
promotion and revive any prior certification, because it believes that the relief ordered by
this Decision is the preferred means to protect the rights of the Appellant in these
circumstances with minimum disruption to other affected parties. However, in view of
the pending permanent promotional appointment in which Winthrop presumably will be
required to evaluate the same two candidates involved in this appeal, and given the
credibility assessments previously made by Town Manager White and Chief Flanagan, as
well as the Commission’s above-referenced conclusions regarding the flaws in the
selection process, the most appropriate relief regarding this appeal is to ensure that the
selection process for the permanent position does not repeat the missteps that occurred in
making the temporary appointment.

The relief provided in this appeal does not mean to urge or require such a procedure
in every case. The Commission acknowledges that appointing authorities must have
discretion in designing and implementing interview programs and there is no “one size
fits all” format.' The Commission intervenes here as a matter of relief, in its discretion,
because of the unique circumstances presented here, i.e., the significant difference in the
candidate’s civil service scores, seniority and rank, and the facts that the exact same few

players are involved both in this appeal and in the pending permanent appointment to the

' The Commission’s Decisions have commented on a wide range of interview plans, some of
which have been commended and some more problematic, and may be a useful starting point for
any appointing authority which is considering such a plan. Some examples of the former: Sellon
v. Mansfield Police Dep’t, 21 MCSR 99 (2008); Brown v. Town of Duxbury, 19 MCSR 407
(2006); Boardman v. Beverly Fire Dep’t, 11 MCSR 179 (1998). Examples of the latter: Mainini
v. Town of Whitman, 20 MCSR 647, 651 (2007); Horvath v. Pembroke, 18 MSCR 212 (2005);
Fairbanks v. Town of Oxford, 18 MCSR 167 (2005); Saborin v.Town of Natick, 18 MCSR 79
(2005); Sihpol v. Beverly Fire Dep’t, 12 MCSR 72 (1999); Bannish v. Westfield Fire Dep’t, 11
MCSR 157 (1998); Roberts v. Lynn Fire Dep’t, 10 MCSR 133 (1997).

same position, in a relatively small Department, arising within a matter of months of each

other. cf, Staveley_v. City of Lowell, 71 Mass.App.Ct. 400, 406, 882 N.E.2d 362, 367

(2008) (“In the remedial category, the commission’s powers are broad and its expertise
particularly helpful.”) See also, Memorandum of Decision and Order, Boston Police
Dep’t v. Cawley, Suffolk Sup.Ct., Docket SUCV2006-5331C (July 2, 2008), affirming,

Cawley v. Boston Police Dep’t, 20 MCSR 389 (2006) (upholding order that future

psychiatric evaluations of appellant be conducted by persons other than persons who

initially evaluated her); McGunagle v. North Attleborough Police Dep’t, 13 MCSR 1

(1999) (noting, but not exercising, authority to vacate appointment made through a

flawed interview process); Rydzak v. Westfield G.& E. Light Dep’t, 6 MSCR 234 (1993)

(ordered redesign of selection process).
For the reasons stated herein, Lieutenant Moses’ appeal is hereby allowed, as follows:

RELIEF TO BE GRANTED TO THE APPELLANT

Pursuant to the powers of relief inherent in Chapter 310 of the Acts of 1993, the
Commission orders the following relief:

(1) The same-statement of reasons provided by the Town of Winthrop, as Appointing
Authority, to bypass Lieutenant Thomas C. Moses for promotion to temporary Captain in
the Winthrop Fire Department in favor of Firefighter William “Scott” Wiley shall not be
used in the selection process for the appointment of a permanent Fire Captain under the
current pending or any future certification unless they are justified after conducting an

‘ acceptable selection process described below;
(2) Winthrop may proceed with the current pending certification for appointment of a

permanent Fire Captain subject to these conditions: (a) a digital video recording shall be

made and preserved of any and all interviews of candidates; (b) Winthrop shall include as
part of any interview process, not less than four persons as interviewers in addition to or
other than the Town Manager and Fire Chief Flanagan; (c) all candidates shall be
interviewed on the basis of specific questions, identical in substance and tone; and (d)
each interviewer shall provide an independent, written numerical and narrative evaluation
of the candidate’s performance, which shall be prepared without consultation with any
other interviewer; .

(3) the Commission does not vacate the appointment of temporary Fire Captain made
by Winthrop on or about April 11, 2008, or revive any prior certification, but will reserve
decision on those issues until the appointment of a candidate to the pending permanent
position;

(4) the Commission will retain jurisdiction of this matter as may be appropriate in aid

or clarification of the relief herein.

Ciwl Service_C

Paul M. Stein
Commissioner

By vote of the Civil Service Commission (Bowman, Chairman; Henderson, Stein and
Marquis; Taylor [absent]) on August 4, 2008.

A True ry Attest:

Lh ewe

Commisstoner

Either party may file a motion for reconsideration within ten days of the receipt of a Commission order or
decision. Under the pertinent provisions of the Code of Mass. Regulations, 801 CMR 1.01(7)(), the
motion must identify a clerical or mechanical error in the decision or a significant factor the Agency.or the
Presiding Officer may have overlooked in deciding the case. A motion for reconsideration shall be
deemed a motion for rehearing in accordance with G.L. c. 30A, § 14(1) for the purpose of tolling the time
for appeal.

* 29

Under the provisions of G.L c. 31, § 44, any party aggrieved by a final decision or order of thé Commission
may initiate proceedings for judicial review under G.L. c. 30A, § 14 in the superior court within thirty (30)
days after receipt of such order or decision. Commencement of such proceeding shall not, unless
specifically ordered by the court, operate as a stay of the Commission’s order or decision.

Notice to: Leah M. Barrault, Esq. (Appellant) (By Facsimile & First Class Mail)

Howard L. Greenspan, Esq.. (Respondent) (By Facsimile & First Class Mail)
Martha O’ Conner, Esq. (HRD) (By Facsimile & Interoffice Mail)