The Commission's decision

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COMMONWEALTH OF MASSACHUSETTS 
SUFFOLK, ss. CIVIL SERVICE COMMISSION 
One Ashburton Place: Room 503 
Boston, MA 02108 
FERRUCCIO ROMEO, 
Appellant 
v . B2-19-082 
HUMAN RESOURCES DIVISION, 
Respondent 
Appearance for Appellant: Pro Se 
Ferruccio Romeo 
Appearance for Respondent: Mark Detwiler, Esq. 
Human Resources Division 
100 Cambridge Street: Ste. 600 
Boston, MA 02114 
Commissioner: Christopher C. Bowman 
DECISION 
On April 3, 2019, the Appellant, Ferruccio Romeo (Mr. Romeo), pursuant to G.L. c. 31, § 24,
filed this appeal with the Civil Service Commission (Commission) regarding a promotional
examination for Police Sergeant. I held a pre-hearing conference on June 30, 2019 at the offices
of the Commission and I held a full hearing at the same location on August 13, 2019. 1 The
hearing was digitally recorded. 2 
1 The Standard Adjudicatory Rules of Practice and Procedure, 801 CMR §§ 1.00 (formal rules) apply to
adjudications before the Commission with Chapter 31 or any Commission rules taking precedence. 
2 If there is a judicial appeal of this decision, the plaintiff in the judicial appeal would be obligated to supply the
court with a transcript of this hearing to the extent that he/she wishes to challenge the decision as unsupported by
substantial evidence, arbitrary or capricious, or an abuse of discretion. In such cases, this CD should be used by the
plaintiff in the judicial appeal to transcribe the recording into a written transcript. 
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FINDINGS OF FACT: 
Fifteen (15) exhibits (Respondent Exhibits 1-13 and Appellant Exhibits 1-2) were entered into
evidence at the hearing. Based on those exhibits, the stipulated facts, the testimony of: 
Called by Human Resources Division (HRD): 
 Brianna Ward, Director of Test Development (HRD); 
Called by the Appellant: 
 Ferruccio Romeo, Appellant; 
and taking administrative notice of all matters filed in the case and pertinent statutes, regulations,
policies, and reasonable inferences from the credible evidence, I make the following findings of
fact: 
1. On April 3, 2019, Mr. Romeo, a police officer in the Town of Winthrop (Town)’s Police
Department, WPD, filed an appeal with the Commission. 
2. Mr. Romeo’s appeal stated: “On October 25, 2018, I participated in a make-up Sole
Assessment Center Examination for Promotion to Sergeant in the Winthrop Police
Department. On November 14, 2018, I received notice from Ryan Strategies Group, LLC
that I had passed the examination. On November 30, 2018, I filed a timely request for review
pursuant to M.G.L. c. 31, s. 22 with HRD via email at civilservice@state.ma.us . On April 1,
2019, Police Chief Terence M. Delehenty issued a department wide email which states ‘At
the request of HRD I am posting electronically the Sergeant’s Promotional List that is
attached to this email.’ To date, I have not received a response from HRD regarding my
Request for Review which was evidently never completed.” 
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3. On April 30, 2019, I held a pre-hearing conference at the offices of the Commission which
was attended by Mr. Romeo, counsel for HRD, counsel for the Town and the Town’s Police
Chief. 
4. At the pre-hearing conference, HRD stated that an administrative oversight was the reason
for the delay in processing Mr. Romeo’s appeal. The appeal was reviewed and denied the
day prior to the pre-hearing. 
5. The parties agreed to the following, unless otherwise noted: 
A. Mr. Romeo took the make-up promotional examination for sergeant in Winthrop on
October 25, 2018. 
B. The examination was an assessment center examination, which was delegated to
Winthrop by HRD, with the exception of hearing appeals. 
C. Only “in-title” experience was allowed for all candidates (i.e. – permanent,
temporary, provisional or “acting” time as sergeant), as opposed to the traditional
education and experience that is granted in written examinations administered by
HRD. 
D. On November 14, 2018, Mr. Romeo received a score of 78, resulting in a rank of
third on an eligible list that was updated on 4/1/18. 
E. Mr. Romeo filed the following appeals with HRD on 11/30/18: E/E appeal; Essay
Question review; Fair Test; Multiple Choice. 
F. As referenced above, HRD denied these appeals on 4/29/19. 
6. The Commission does not have jurisdiction over appeals related to the scoring of multiple
choice questions on a civil service examination. See G.L. c. 31, ss.22-24 and Hickey v. Civ.
Serv. Comm'n & Human Resources Div., 60 Mass.App.Ct. 1104, 799 (2003) (Unpublished 
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Decision), upholding a Superior Court Decision in which the Superior Court affirmed a
Commission decision dismissing a multiple choice-related appeal based on a lack of
jurisdiction. 
7. In regard to the “in-title” appeal, HRD denied the appeal because it referenced “officer in
charge” time. At the pre-hearing conference, the Police Chief indicated that, in Winthrop,
“officer in charge” is the same as Acting Sergeant. Based on this information, I asked HRD
to determine whether, if given credit for in-title experience for these officer in charge hours,
Mr. Romeo’s score and/or rank on the eligible list would change. 
8. In regard to the essay question appeal, HRD conducted the same review it conducted in 
Wilbanks v. HRD, 30 MCSR 316 (2017) , in which HRD’s review was upheld. 
9. For all of the above reasons, I ordered HRD, via a May 2, 2019 Procedural Order, to
determine whether, if given credit for in-title experience for these officer in charge hours,
Mr. Romeo’s score and/or rank on the eligible list would change. 
10. On May 6, 2019, HRD informed the Commission, with a copy to Mr. Romeo, that, if given
credit for his 387 hours of time as “officer in charge”, it would not change his overall score
and/or rank on the eligible list. 
11. On May 15, 2019, Mr. Romeo notified the Commission that he wished to proceed with his
appeal and, per my request, submitted a More Definite Statement. 
12. After receiving clarifying information from Mr. Romeo and reviewing Mr. Romeo’s initial
appeal to HRD, I issued a ruling on June 20, 2019 that the sole remaining issue upon which
the Commission had jurisdiction was the marking of Mr. Romeo’s written essay. 
13. On August 13, 2019, I held a full hearing regarding the marking of Mr. Romeo’s written
essay. Breanna Ward, HRD’s Director of Test Development, testified for HRD. 
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14. Ms. Ward conducted a review of the marking of Mr. Romeo’s essay question. 
15. Ms. Ward contacted Ryan Associates, the vendor that conducted the assessment center, to
better understand the essay question and how it was graded by Ryan Associates. 
16. Ms. Ward learned that four (4) reviewers graded Mr. Romeo’s essay question and gave him
the following scores: 85, 86, 86 and 86. 
17. Ms. Ward inquired about any written guidelines that reviewers used in regard to grading
essays. She was told there were no written guidelines. 
18. Ms. Ward was provided, verbally, with the qualities that distinguish an essay receiving a
grade in the “70s” and an essay receiving a grade in the “90s”. 
19. Ms. Ward asked for but did not receive a copy of the essays completed by the exam
applicants. 
20. Ms. Ward was told that, in order for an essay to receive a grade in the “90s”, the reviewers
would be looking for the applicant to provide a high level goal, timeframes, next steps and a
conclusion in their response. 
21. Ms. Ward reviewed the essay of Mr. Romeo. She found that Mr. Romeo’s essay did not
meet all of the above-referenced criteria and that the reviewers’ scores in the mid-80s were
appropriate. 
22. I left the record open for Ryan Associates, via the Town, to submit the essays for all
applicants who took the promotional examination in order for me to conduct an in camera
review of them. I received the essays on August 23, 2019. 
23. Only one (1) applicant scored higher than Mr. Romeo on the essay, receiving an average
score of 90. That essay appeared to be slightly better than the essay completed by Mr.
Romeo, who received an average score of 85.75. Specifically, the higher-scored essay 
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included a coherent introductory paragraph and quantifiable benchmarks to measure success,
both of which were not included in Mr. Romeo’s essay. 
Legal Standard 
In Wilbanks, the Commission stated: 
The standard of review to be applied upon appeal from HRD’s review of the markings of an
essay question under the current version of Chapter 31, Sections 22 through 24, has not been
definitively determined. Case law decided under prior versions of the civil service law holds that
“the marking of an examination answer is a finding of fact” as to which the Director of Civil
Service (a predecessor to HRD) is given “broad discretionary powers” to exercise “judgment as
to . . .proper grading of . . . examinations” and that, on appeal the Commission is “vested with
similar” fact-finding powers, which findings of fact should not be disturbed unless “clearly
shown to be arbitrary or devoid of logic and reason.” See Ferguson v. Civil Service Comm’n,
344 Mass. 484, 487-88 (1962)(upheld Commission’s overturning Civil Service Director’s
decision to decline to increase the marking of an applicant’s answer to an essay question
“through mistake”, finding that applicant “in his answer . . . stated the crucial fact that a
sentence to state prison could not be imposed” and “should receive full credit for his answer”);
Barry v. Civil Service Comm’rs, 323 Mass 431 (1948) (upheld Commission’s decision to
increase marks on certain answers by one applicant, finding that “the applicant submitted
authority to substantiate the correctness of the answers”, and declined to increase the marks of
another applicant, rejecting his contention that different standards were used in the marking of
the examination papers of the two applicants) 
Civil service law then provided, as to examination appeals, that “no decision of the director
[of civil service] relating to an examination mark shall be reversed and no such mark changed 
unless the commission finds that it was through error, fraud, mistake or in bad faith, and in each
case of reversal of such decision or change in marking the specific reasons therefor shall be
stated . . . . St. 1945, c. 725, §1 ( emphasis added ). In 1971, the Attorney General noted this prior
version of the examination review and appeal requirement in a 1971 opinion, citing Moore v.
Civil Service Comm’n, 333 Mass. 430, 434 (1956): 
“One of the subjects with which the special commissions and the Legislature were especially
concerned was that relating to examinations. It is apparent . . . that the making up and grading of
examinations were to be primarily administrative functions to be performed by the director and
that the appellate jurisdiction of the commission related to examination marks was to be more
restricted than it was in other matters .” Op.Atty.Gen., Nov. 19, 1971, citing 333 Mass. at 434
( emphasis added ). 
Shortly thereafter, the legislature completely rewrote the examination review statutes,
restricting review by the Director of Civil Service to requests that the “computation of [an
applicant’s] general average mark be checked for error” and completely eliminating all right of
appeal to the Commission. St.1973, c.320,§§1 thorough 5. 
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Then, in 1974, the legislature enacted a major administrative restructuring of the civil service
system. The division of civil service was severed from the Commission, abolished and replaced
by the division of personnel administration (DPA), headed by a Personnel Administrator (the
“administrator”) reporting to and appointed by the secretary of Administration and Finance. All
technical, executive and administrative functions of the division of civil service were transferred
to DPA and the administrator was substituted for the position of director of civil service in all
respects set forth in Chapter 31. The Commission became an independent quasi-judicial agency
that retained its investigatory and appellate authority, including rule-making approval, over the
actions of the administrator (and otherwise) as provided by Chapter 31, but no longer exercised
indirect supervision and control over the functions transferred to DPA. St. 1974, c.835. 
A year later, the legislature restored the authority it had removed in 1973, enacting statutory
language closer to the present version of Sections 22 through 24 that, among other things,
restored authority to the Personnel Administrator (the successor to the Director of Civil Service)
to review the marking of essay questions and restored the Commission’s authority to hear
examination appeals from such “findings of the administrator relative to grading of answers to
essay questions”. St. 1975, c. 358, §§3, 4. 
In Lincoln v. Personnel Administrator, 432 Mass. 208 (2000), the Supreme Judicial Court
addressed the question whether, under the restructured (current) civil service statutes, the
plaintiffs (who challenged alleged changes in the way the scores on their 1996 firefighter
examination had been determined) could appeal for a “hearing” directly to the Commission from
the marking of his/her examination, or whether they were first required to seek a “review” of
their scores by the Personnel Administrator of DPA (now HRD). The plaintiffs had argued, and
the Superior Court had agreed, that, since the Personnel Administrator designed, administered
and scored the examination in the first instance, to provide an “additional review after the
examination” was futile, as it “would make him the judge of his own challenged unfairness,
something that . . . the Legislature wound not have intended without much more explicit
language.’ ” Id., 432 Mass. at 210. The SJC disagreed, and upheld the Commission’s dismissal
of the petitions for failure to exhaust administrative remedies by first seeking the Personnel
Administrator’s review, specifically rejecting the argument that such review was a futility. 
“Nor is this an instance in which exhaustion is excused as futile. . . . It is true that the statute does
require the personnel administrator to review his own action in response to a petition from an
applicant. However, as the personnel administrator designs, administers, and scores the
examinations, he possesses expertise in regard to the grading and weighing of the examination.
As the statute is designated, the initial review by the personnel administrator allows him to apply
that expertise, determining whether there has been a mistake, or an issue has been overlooked,
that can be easily corrected before an eligibility list is certified. Therefore, the personnel
administrator is the most familiar with the examination and is best able to respond to applicants
who have raised questions regarding the grading of the examination. . . .”Id., 432 Mass. at 212-
13. 
Finally, the Commission must be mindful of the reality that, in distinct contrast to the role that
the Personnel Administrator historically played (noted in Lincoln) as the authority who “designs,
administers and scores” all civil service examinations, more recently, as in the case of the 2014
BPD Captain’s examination, HRD plays a peripheral role in many examinations, delegating the 
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authority to design, administer and score the examinations to a private consultant selected by the
municipality or state agency who requests the examination. Moreover, civil service examinations
are now generally limited to public safety positions and are no longer given for most civil service
titles. 
Thus, while HRD remains, in theory, the technical expert in matters of civil service
examinations, the institutional scope of that expertise, in fact, is not what it once was. 
Mr. Wilbanks correctly cites Boston Police Sup. Officers Fed’n v. Civil Service Comm’n, 35
Mass.App.Ct. 688 (1993) for the proposition that the Commission “hearing” is intended to be a
more formal proceeding than the “review” conducted by HRD, and that “the Legislature intended
the commission acting in its quasi-judicial capacity, and not the administrator, to be the fact-
finder relative to the fairness of the examination.” This opinion, however, must be read in light
of the issue that was presented to the court, namely, a “fair test” appeal that challenged the
fairness of the examination component that purportedly tested supervisory skills and the
administrator’s impartiality in designing that component. These principles that govern a fair test
appeal certainly bear notice, but the scope of an appeal from the marking of specific examination
questions, focuses mostly on the answers given, rather than the fairness of the questions posed,
so the analogy of the “fair test” line of cases is not precisely apt. 
I have carefully considered the relevant legislative history and case law described above, as
well as the history of the examination process as it has evolved over time. I conclude that
G.L.c.31,§24 does not mandate that the Commission conduct a “de novo” hearing to supersede
HRD’s “review” of the grading of an essay question. In particular, I do not agree with Lt.
Wilbanks’ contention that on appeal from HRD’s review of the marks of a single candidate’s
answers to an examination question, the Commission’s “fact-finding” authority should go so far
as require the Commission to put on “assessors’ hats” and fix and establish ourselves, ab initio,
the most “accurate” scores for Lt. Wilbanks’ In-Basket Test responses. As a general rule, I do
not find that would be appropriate or consistent with the Commission’s appellate role. Lt.
Wilbanks’ has a point that the difference in “expertise” at HRD and at the Commission in the
particular circumstances of this case may seem, to some, more theoretical than real, especially in
a case such at presented here, when HRD did not design or administer the test in question.
However, the statutory distinction in the powers and duties of each body must take primacy over
any such perceived shortcomings of the individual incumbent officials from time to time. 
Thus, it suffices that, in an appeal from the review of marking of an examination question, the
Commission hew to its traditional quasi-judicial appellate oversight of other HRD “actions or
inactions”, namely, to ensure that HRD’s decision is based on the type of “impartial and
reasonably through” review that has been required of the Commission when it reviews other
HRD “actions or inactions” under G.L.c.31, Section 2(b), and to ensure that HRD’s conclusions
are neither “arbitrary” nor “devoid of logic”, but, rather, supported by a preponderance of
credible evidence. 
… 
This standard affords sufficient discretion to HRD to perform its duty to conduct the required
first-level review, subject to appropriate evidentiary scrutiny by the Commission consistent with
the Commission’s well-defined core responsibilities, as developed in related case law, to serve as 
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an appellate check on HRD’s compliance with all civil service law and rules, generally. See,
G.L.c.31, §2(b) & §5(a). See generally, Police Dep’t of Boston v. Kavaleski, 463 Mass. 680,
688-89 (2012) citing Massachusetts Ass’n of Minority Law Enforcement Officers v. Abban , 434
Mass. 256, 259 (2001); Brackett v. Civil Service Comm'n, 447 Mass. 233, 241 (2006 ) and cases
cited; Beverly v. Civil Service Comm'n, 78 Mass.App.Ct. 182, 187 (2010) ; Leominster v.
Stratton, 58 Mass.App.Ct. 726, 727-28 (2003). See also Mayor of Revere v. Civil Service
Comm’n, 31 Mass.App.Ct. 315, 321 (1991); Selectmen of Wakefield v. Judge of First Dist. Ct.,
262 Mass. 477, 482 (1928).” 
I have applied the same standard here. 
Based on my review, I have concluded that HRD’s review was reasonably thorough and
impartial and its decision to effectively affirm the grade that Ryan Associates assigned to Mr.
Romeo’s essay was neither arbitrary or devoid of logic. Rather, according to HRD’s review, Mr.
Romeo’s essay did not contain all of the elements required to justify a higher score in the “90s”
as opposed to his given score in the “80s.” 
While HRD’s review would have been more thorough had it obtained the actual essays of the
other applicants, my in camera review of those essays only confirms that HRD’s conclusion here
was logical and supported by a preponderance of the evidence. 
In short, only one applicant scored higher than Mr. Romeo on the essay. Based on my review,
the higher score was justified, as it contained elements that Mr. Romeo’s essay did not: a
coherent introductory paragraph and measurable benchmarks. 
Conclusion 
For these reasons, Mr. Romeo’s appeal under Docket No. B2-19-082 is hereby denied. 
Civil Service Commission 
/s/ Christopher Bowman 
Christopher C. Bowman 
Chairman 
By a vote of the Civil Service Commission (Bowman, Chairman; Camuso, Ittleman, Stein and
Tivnan, Commissioners) on September 12, 2019. 
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Either party may file a motion for reconsideration within ten days of the receipt of this Commission order or
decision. Under the pertinent provisions of the Code of Mass. Regulations, 801 CMR 1.01(7)(l), the motion must
identify a clerical or mechanical error in this order or decision or a significant factor the Agency or the Presiding
Officer may have overlooked in deciding the case. A motion for reconsideration does not toll the statutorily
prescribed thirty-day time limit for seeking judicial review of this Commission order or decision. 
Under the provisions of G.L c. 31, § 44, any party aggrieved by this Commission order or decision may initiate
proceedings for judicial review under G.L. c. 30A, § 14 in the superior court within thirty (30) days after receipt of
this order or decision. Commencement of such proceeding shall not, unless specifically ordered by the court, operate
as a stay of this Commission order or decision. After initiating proceedings for judicial review in Superior Court,
the plaintiff, or his / her attorney, is required to serve a copy of the summons and complaint upon the Boston office
of the Attorney General of the Commonwealth, with a copy to the Civil Service Commission, in the time and in the
manner prescribed by Mass. R. Civ. P. 4(d). 
Notice: 
Ferruccio Romeo (Appellant) 
Mark Detwiler, Esq. (for Respondent) 
Melinda Willis, Esq. (HRD)