In a recent decision from the Civil Service Commission, RJA Attorney Andy Gambaccini successfully represented a New Bedford police officer in a case of first impression that now has set the legal standard regarding the effect of an employee’s reinstatement as concerns an existing civil service promotional list.
After a civil service promotional examination process in 2021, this New Bedford police officer was placed on an eligible list for promotion to the rank of sergeant. Later, but during the lifespan of the list, the officer resigned his position in favor of another employment opportunity. Realizing that the grass was not greener, within a few months the officer wished to return to New Bedford and, as part of his inquiry into the possibility, noted that he remained on the eligible list for promotion as published by the Human Resources Division.
The City of New Bedford agreed to return the officer to employment and, as the Department was processing his reinstatement paperwork with the Human Resources Division, the Human Resources Division noted that no resignation paperwork previously was submitted by the City. The result was a sequence in which the officer’s backdated resignation paperwork was processed contemporaneously with his reinstatement paperwork. The Human Resources Division also took the position that the officer’s resignation meant that he was to be removed from the existing promotional list, despite the fact that the officer at that point was being reinstated to employment. According to the Human Resources Division, a resignation not only separates the employee from service but removes the individual from any existing promotional list and, further, a reinstatement to employment does not reinstate the employee to a still-existing promotional list. Rather, the Human Resources Division said, the officer would need to go through a future promotional process in order to be placed on a future list and be eligible for promotion at that point.
Through RJA, the officer appealed the Human Resources Division’s failure to reinstate him to the list to the Civil Service Commission. Following briefing, the Commission issued a decision in favor of the officer in August, 2023.
In its decision, the Commission noted that “[t]his issue of resignation and reinstatement, and how that affects one’s previous position on a still-active list for promotion, is one of first impression for the Commission. It does not appear to be addressed by any provision in the civil service law or rules.” Despite the lack of precedent, the Commission concluded that the record and a collection of persuasive authorities revealed that the Human Resources Division’s failure to reinstate the officer to the list was arbitrary and capricious. More particularly, the Commission noted that the rule articulated by the Human Resources Division, namely, that reinstatement to employment did not include reinstatement to a still-active promotional list, was not approved by the Commission, nor was it published or applied previously in a manner that would have made this purported “rule” known. Finally, the Commission noted that the Human Resources Division had not demonstrated that such a rule—refusing to return a reinstated employee to an existing promotional list—would serve to advance an underlying purpose of the civil service system: to promote worthy candidates based upon merit, which includes performance in a civil service
promotional examination process. RJA’s principal argument in the appeal was that a reinstatement is intended to restore the status quo ante and the reinstated employee is to be restored to as-near a position as previously occupied, which includes restoration to a promotional list that the employee previously was placed. Agreeing, the Commission ordered that the Human Resources Division return the officer to the promotional list forthwith and, with upcoming vacancies, the officer is expected soon to receive his well-earned promotion.
