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SJC-11711

            SCOTT SHERMAN   vs.   TOWN OF RANDOLPH & others.1



         Suffolk.     January 5, 2015. - September 24, 2015.

 Present:     Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
                              Hines, JJ.


Civil Service, Decision of Civil Service Commission, Eligibility
     list, Findings by commission, Judicial review, Police,
     Promotion. Police, Promotional examination.
     Administrative Law, Decision, Findings, Judicial review.
     Practice, Civil, Review respecting civil service.



     Civil action commenced in the Superior Court Department on
May 18, 2012.

     The case was heard by Heidi E. Brieger, J., on a motion for
judgment on the pleadings, and a motion for reconsideration was
considered by her.

     The Supreme Judicial Court granted an application for
direct appellate review.


     Frank J. McGee for the plaintiff.
     Bryan F. Bertram, Assistant Attorney General, for the
personnel administrator of the human resources division of the
Commonwealth.

     1
       Civil Service Commission (commission) and the personnel
administrator of the human resources division of the
Commonwealth (administrator).
                                                                     2


     John Foskett for town of Randolph.


     DUFFLY, J.   The town of Randolph (town) decided to bypass

the plaintiff, Scott Sherman, and appoint three candidates with

lower scores on the police sergeant's examination to its three

open police sergeant positions.    Sherman appealed, and, after an

evidentiary hearing, a Division of Administrative Law Appeals

(DALA) magistrate recommended that Sherman's appeal be

dismissed.    The Civil Service Commission (commission) adopted

the magistrate's findings and recommendation, and dismissed the

appeal, concluding that there was "independent and reasonable

justification" to bypass Sherman, although noting serious flaws

in the town's interview process.    Sherman sought review of the

commission's decision in the Superior Court.    A Superior Court

judge denied Sherman's motion for judgment on the pleadings and

his motion for reconsideration, and judgment entered for the

commission.   Sherman appealed, and we allowed his petition for

direct appellate review.

     Sherman argues that his bypass was impermissible because

the personnel administrator of the Commonwealth (administrator)2

improperly delegated to the appointing authority its duty under

     2
       The administrator is the personnel administrator of the
human resources division (HRD) of the Commonwealth, within the
Executive Office for Administration and Finance. See G. L.
c. 31, § 1. In this context, the terms administrator and HRD
are largely interchangeable.
                                                                     3


G. L. c. 31, § 27, to "receive" statements of reasons for

bypasses.    He argues also that the town's decision to bypass him

in favor of candidates with lower scores on the civil service

examination was not supported by a reasonable justification

because the commission determined that the town's interview

process was "fatally flawed."    In Malloch v. Hanover, 472

Mass.       (2015), we determined that the administrator

permissibly may delegate to an appointing authority its duty

under G. L. c. 31, § 27, in light of the broad authority to

delegate provided by G. L. c. 31, § 5 (l).    Sherman's contention

that the administrator could not delegate its authority to the

town thus is unavailing.    We address Sherman's alternative

argument that the town's bypass was not supported by reasonable

justification.    We agree that the town's procedure for selecting

candidates was seriously flawed.    With this in mind, we have

conducted an extensive review of the record to determine whether

the flawed procedure indicated that the town's bypass was

motivated by reasons incompatible with "basic merit principles."

See G. L. c. 31, § 1 (defining term).    We conclude that, in this

case, the record did not support the concern that the flawed

procedure reflected a departure from basic merit principles, and

that there is substantial evidence to support a reasonable

justification for the town's bypass.    Therefore, we affirm the
                                                                         4


Superior Court's denial of Sherman's motion for judgment on the

pleadings.

    Background.   1.     Civil service statute.   Police officer

positions within the Commonwealth are subject to civil service

law, both for initial appointments and for promotions.     See

G. L. c. 31, § 58.   See generally Note, The Massachusetts Civil

Service Law:   Is It Necessary to Destroy the Current System in

Order to Save It?, 40 New Eng. L. Rev. 1103, 1106 (2006).

Applicants for a civil service position must take an objective

examination developed by the human resources division (HRD),

specifically designed for that particular type of position.        See

G. L. c. 31, § 16.   The goal of the examination requirement is

to ensure that employees are appointed or promoted on the basis

of their abilities, knowledge, and skills -- in other words, on

the basis of merit -- and are not selected arbitrarily or for

improper reasons, such as political or personal connections.

See G. L. c. 31, § 1.

    To achieve this goal, when an appointing authority notifies

HRD of an open position, HRD certifies a list of eligible

candidates for the position, and ranks the names on the list in

order of the scores the candidates received on the relevant HRD

examination, with the inclusion of veterans' preferences.      See

G. L. c. 31, §§ 25-26.    Candidates at the top of the list,

however, may be bypassed if the appointing authority chooses a
                                                                        5


candidate lower on the eligibility list based on reasonable

justification.       See G. L. c. 31, § 27.   If an appointing

authority bypasses a higher-ranked candidate, it must submit to

the administrator a written statement of the reasons for the

bypass, and the appointment "shall be effective only when such

statement of reasons has been received by the administrator."

Id.    The administrator, however, may permissibly delegate to an

appointing authority its duty to receive the appointing

authority's statement of reasons.      See Malloch, 472 Mass. at      .

Candidates may challenge an appointing authority's decision to

bypass them by appeal to the commission.       See G. L. c. 31, § 2

(c).

       2.   Facts.   The commission adopted all of the DALA

magistrate's findings of fact.      We recite the facts as found by

the magistrate, supplemented with facts that have a substantial

basis in the record and are consistent with the magistrate's

findings.     We reserve some facts for later discussion of

specific issues.

       In June, 2010, the town decided to appoint three permanent,

full-time police sergeants and to promote them from within the

Randolph police department (department).       HRD had certified nine

candidates for the position of police sergeant in April, 2010,

based on a previously administered promotional examination.

Four of those candidates are relevant here:       Sherman, who was
                                                                       6


ranked highest on the eligibility list, and the three candidates

who ultimately bypassed him, whom we shall call Walter Burton,

Blair Lewis, and Martin Duval.3    The candidates had the following

certification scores:    Sherman (91), Burton (90), Lewis (82),

and Duval (81).    On June 17, 2010, the town notified the nine

candidates of their certification, asking them to indicate

whether they would accept a promotion.    Sherman, Burton, Lewis,

and Duval agreed to accept, and each was informed that he would

be interviewed on June 25, 2010.

     The department's outgoing chief of police, Paul Porter,

established an interview panel to evaluate the candidates.       The

panel consisted of Porter, Sergeant William Pace (Porter's

successor, who became chief of police when Porter retired on

July 2, 2010 one week after the interview), Lieutenant John

Hamelburg, and Officer Jeff Chaplin.     The panel interviewed the

nine candidates on June 25, 2010, each for approximately thirty

minutes.    Each candidate was allowed a brief opening statement

and a closing statement.    The panel asked each candidate the

same eight questions.4    The panelists were directed to score


     3
       Scott C. Sherman was a "police officer/school resource
officer" assigned to the detective division of the Randolph
police department (department); the officers whom we call Walter
Burton and Blair Lewis were patrol officers, and an officer whom
we call Martin Duval was a safety officer.
     4
         The eight questions were the following:
                                                                   7


candidates "on the totality of their interview performance," on

a scale of zero to five, with five being the highest.   Each

panelist was allotted fifteen points and, as the magistrate

found, was supposed to assign a five to the top candidate,

a four to the second-ranked candidate, and so forth, with the

fifth-ranked candidate being assigned a one, and the four


     "1. What personality traits and work ethic would you model
for your subordinates? Which trait/ethics are most important
and why?

     "2. You are the newly appointed sergeant of the Any Town
Department. The chief would like to see an effort to increase
courtesy and civility in an attempt to reduce citizen complaints
and increase satisfaction with the police department. How would
you as sergeant further this objective?

     "3. If you witnessed an officer using excessive force how
would you handle it?

     "4. Tell me about a situation where you displayed an
ability to lead.

     "5. How would you apply the community policing model and
philosophy to Randolph, taking into account the demographics of
the town and the concepts of multicultural law enforcement and
the 2004 Northeastern report regarding the Randolph Police bias-
based policing, traffic stop data collection[?] As a set, how
would you address these issues?

     "6. Do you envision yourself as a leader or supervisor[?]
Elaborate.

     "7. Integrity is doing the right thing when no one else is
watching. How would you handle an officer's transgression that
could be dealt with at your level?

     "8. There is a saying which goes, if you tell the truth,
it becomes part of your past; if you lie, then it becomes part
of your future. How would you handle an officer that lies to
you?"
                                                                    8


bottom-ranked candidates to receive zeroes.5   After all the

candidates had been interviewed, the panelists voted by a show

of hands for each candidate.   Because the panel's scores were

not written down, the magistrate reconstructed the scores based

on testimony at the hearing.   The final scores were:   Lewis

(19), Burton (14), Duval (13), and Sherman (4).6

     Following the interviews, both Porter and Pace spoke with

Lieutenant Detective Arthur Sullivan, the commanding officer of

the detectives (who supervised Sherman's supervisors), and

learned that Sherman "had difficulty following through on cases"

and "needed supervision."   Sherman's supervisor on the day

shift, Detective Sergeant David Avery, told Sullivan that

Sherman had had "some issues with timely reports being done,

timely charges being taken out on individuals and/or arrests

being produced in a timely manner."   While Sherman had addressed

those issues, he had ongoing issues with incomplete "log items."

Sherman's supervisor on the night shift, Detective Sergeant

Anthony Marag, reported that Sherman had difficulty following


     5
       This was the scoring method as described by the
magistrate. There was conflicting testimony about the scoring
system actually used, with the former Chief, Paul Porter,
providing several conflicting descriptions of how the candidates
were scored.
     6
       One of the other five certified candidates received a
final score higher than Sherman's but below Duval's; the other
four candidates scored lower than Sherman.
                                                                  9


through on cases,7   and, three or four times, had had to be

reminded about "taking those extra steps in an investigation."8

     Porter, with input from Pace, concluded that Burton, Lewis,

and Duval should be promoted, basing this conclusion on the

panel's interview scores; the candidates' conformance to

Porter's "personal and informal list of [ten] to [fifteen]

factors" concerning "community involvement and professionalism";9

and the candidates' past job performance "as reported by

commanding officers or supervisors."10   Porter discussed this


     7
       Lieutenant Detective Arthur Sullivan explained that the
follow up "could be anything from an arrest report to an
investigative report . . . where they're not completed."
     8
       Detective Sergeant David Avery specifically testified that
Sherman had been responsible for a case that had "time lapsed,"
and that Sherman had ongoing difficulties with "incomplete log
items" in his roll call logs. Detective Sergeant Anthony Marag
testified that he had had to speak to Sherman three or four
times about additional steps that needed to be taken in an
investigation, and that, although Sherman improved immediately
afterwards, the improvement was not sustained. Porter was
familiar with one week where Sherman was "in the office . . .
almost every day . . . getting caught up on a multitude of
reports."
     9
        The factors included "leadership by example, which
[Porter] considered the most important factor . . .; civil
service examination score; departmental seniority; experience;
ranks and positions held; arrest and citation statistics;
education; military background; 'discipline issues' (which [the
magistrate understood] to mean the applicant's record of
discipline); 'sick leave'; command presence; community policing
philosophy; dedication to and involvement in the community; and
dedication and loyalty to the police department."
     10
         Porter testified that he used the interview panel's
scores only as a general indication of who the panel members
thought were the top five candidates, and that he himself
                                                                      10


recommendation with the town manager, David Murphy, who was the

appointing authority under the town charter.    Murphy "wanted to

dig a little bit deeper," because such a promotion would involve

a bypass of Sherman.   He reviewed Sherman's personnel file, but

"nothing there made a strong impression on him" -- which, the

magistrate found, was "possibly because the police department

does not conduct annual performance reviews."    Porter suggested

that Murphy speak with Sullivan, and Murphy did so.   Based on

this conversation, Murphy testified, "I think the feedback I got

on . . . Sherman was that he's a good police officer, will be a

good sergeant, but not yet."

    On July 6, 2010, Pace wrote a letter to Murphy,

recommending that Sherman not be promoted to sergeant.   He wrote

that several of Sherman's answers during the interview "were

vague," and that in some areas Sherman "did not have a clear

understanding of basic leadership qualities . . . such as

leading by example and command presence."   Pace also wrote that

Sherman's supervisors had reported that Sherman had "difficulty

in following through on cases and . . . needs supervision."      On

the same day, Pace wrote three very similar letters to Murphy

recommending that Burton, Lewis, and Duval be promoted; all



independently had ranked the candidates according to his own
criteria, "pick[ing] who [he] thought were . . . the top three"
candidates.
                                                                11


three letters stated that the reason for the promotion

recommendation was the candidate's "interview and his overall

work ethic and his solid command presence."   The letters

provided specific positive comments on the candidate's

background and interview performance; cited the candidate's

length of service in the department; and, in two instances,

described the candidate's prior military service.11

     On July 7, 2010, Murphy wrote to Sherman informing him that

he had been bypassed, and explaining the reasons for the bypass.

The letter stated:

          "The reasons for your nonselection include the
     totality of the review process including the
     interview, review of your personnel files, and
     discussion with your immediate supervisor.
     Specifically the committee found that some of your
     answers were vague. You did not demonstrate a clear
     understanding of leadership qualities such as leading
     by example and command presence. Your supervisor
     noted that you had difficulty following through on
     cases and that you needed supervision."


     11
       Regarding the interviews, Pace wrote that Burton
"demonstrated an excellent understanding . . . of the use of
progressive discipline in the supervision of police personnel
and . . . exhibited a truly unique understanding of the use of
mentoring and counseling in the role of police sergeant," and
that he "was able to cite specific examples of how he has led
during times when a police supervisor was not immediately
available." Lewis displayed "excellent knowledge surrounding
use of force issues and the role of the police sergeant as
trainer on a continuing and daily basis," and "impressed the
panel with some innovative and creative ideas" about community
policing. Duval "truly understood the need for the police to be
compassionate and work with the community," and could "cite
specific examples of leading by example."
                                                                    12


Murphy testified that he had based his decision primarily on

Porter's recommendation and discussions with Porter, as well as

his conversations with Sullivan and Pace.12

     3.   Prior proceedings.   Sherman appealed the bypass, and,

following an evidentiary hearing, the DALA magistrate

recommended that Sherman's appeal be dismissed, because,

notwithstanding that the interview process had been flawed, and

the evaluation of Sherman's job performance was "possibly

flawed," the town had a reasonable justification for the bypass.

The magistrate stated that the town's interview process "was not

exactly a model to be followed," noting that the interviews were

not recorded; that there was no "complete and contemporaneous

record of the interviewees' evaluations and scoring"; and that

the candidates' answers were not objectively determined to be

right or wrong, or relatively better or worse compared to each

other.    The magistrate also noted the town's lack of an annual,

written process of evaluating job performance as not "a model to

be followed," but concluded that the town had demonstrated, by a

preponderance of the evidence, that there were "sufficient

reasons to justify [a] bypass" despite an "overly subjective"

interview process   The magistrate observed that Sherman had "at

     12
       Murphy also testified that he would not have considered a
negative opinion from an interview panel as a justifiable reason
for a bypass of the highest-ranked candidate on the
certification list.
                                                                   13


no time introduced any evidence, or even suggested, that the

[t]own's decision to bypass him for promotion was politically

motivated."

     The commission adopted the magistrate's findings and

recommendation, again noting that the interview process had been

flawed.   The commission stated, "[W]e believe that the interview

process was flawed and does not satisfy the standard we expect

should be required to assure a properly reviewable 'level

playing field' which 'protect[s] 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

[c]ivil [s]ervice [l]aw" (citation omitted).    Nonetheless, the

commission concluded that the "independent judgment of the

[department's] senior commanders, including the former and

current [p]olice [c]hief about [Sherman's] need to improve

certain aspects of his job performance that would seem essential

to the duties at a supervisory level, as well as the strong

positive opinions about the ability of the selected candidates,

provides sufficient independent and reasonable justification to

bypass [Sherman] at this time."13   The commission stated that


     13
       The decision also stated that the   commission expected
that Sherman would improve his skills to   correct his "management
deficiencies," and commented that it had   "every reason to
believe" Sherman would obtain "promotion   to a management
position in the future."
                                                                     14


"[n]o substantial evidence appears to have been presented that

these judgments were formed out of bias or other unlawful

predisposition against [Sherman]."

    After Sherman sought judicial review of the commission's

decision, a Superior Court judge denied his motion for judgment

on the pleadings and his motion for reconsideration, "find[ing]

credible and substantial evidence in the administrative record

to support the . . . commission's decision.

    Discussion.   1.   Standard of review.    Judicial review of a

final decision of the commission is governed by G. L. c. 30A,

§ 14.   See Police Dep't of Boston v. Kavaleski, 463 Mass. 680,

689 (2012) (Kavaleski).   "We may set aside or modify the

commission's decision if we conclude that 'the substantial

rights of any party may have been prejudiced' by a decision that

is based on an error of law, unsupported by substantial

evidence, or otherwise not in accordance with the law."     Id.    We

generally defer "to the [commission] on questions of fact and

reasonable inferences drawn therefrom" (citation omitted).        Id.

at 689.

    It is the role of the commission to determine, "'on the

basis of the evidence before it, whether the appointing

authority [has] sustained its burden of proving, by a

preponderance of the evidence, that there was reasonable

justification' for the decision to bypass the candidate."     Id.
                                                                   15


at 688, quoting Brackett v. Civil Serv. Comm'n, 447 Mass. 233,

241 (2006).   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.'" Kavaleski, supra, quoting Brackett v.

Civil Serv. Comm'n, supra.    "[T]he commission owes substantial

deference to the appointing authority's exercise of judgment in

determining whether there was 'reasonable justification,'" and

"deference is especially appropriate with respect to the hiring

of police officers."   Beverly v. Civil Serv. Comm'n, 78 Mass.

App. Ct. 182, 188 (2010).    Nonetheless, in determining whether

an appointing authority's decision to bypass is justified, the

commission's "primary concern is to ensure that the [appointing

authority's] action comports with '[b]asic merit principles,' as

defined in G. L. c. 31, § 1."14   Kavaleski, 463 Mass. at 688.


     14
       General Laws c. 31, § 1, defines "[b]asic merit
principles" as follows:

     "(a) recruiting, selecting and advancing of employees on
     the basis of their relative ability, knowledge and skills
     including open consideration of qualified applicants for
     initial appointment; (b) providing of equitable and
     adequate compensation for all employees; (c) providing of
     training and development for employees, as needed, to
     assure the advancement and high quality performance of such
     employees; (d) retaining of employees on the basis of
     adequacy of their performance, correcting inadequate
     performance, and separating employees whose inadequate
     performance cannot be corrected; (e) assuring fair
     treatment of all applicants and employees in all aspects of
     personnel administration without regard to political
                                                                    16


"[T]he commission must focus on the fundamental purposes of the

civil service system -- to guard against political

considerations, favoritism, and bias in governmental employment

decisions, including, of course, promotions, and to protect

efficient public employees from political control."     Cambridge

v. Civil Serv. Comm'n, 43 Mass. App. Ct. 300, 304 (1997).     The

commission must "properly place[] the burden on the [appointing

authority] to establish a reasonable justification for the

bypass[] . . . and properly weigh[] those justifications against

the fundamental purpose of the civil service system . . . to

ensure decision-making in accordance with basic merit

principles" (citation omitted).   Massachusetts Ass'n of Minority

Law Enforcement Officers v. Abban, 434 Mass. 256, 264 (2001).

    2.   Reasonable justification.   Relying on the commission's

comments regarding the town's "flawed" interview process,

Sherman contends that there was no reasonable justification for

the town's decision to bypass him.   Specifically, Sherman argues

that the bypass was not reasonably justified because it was

substantially based on a "totally subjective" interview process



    affiliation, race, color, age, national origin, sex,
    marital status, handicap, or religion and with proper
    regard for privacy, basic rights outlined in this chapter
    and constitutional rights as citizens, and; (f) assuring
    that all employees are protected against coercion for
    political purposes, and are protected from arbitrary and
    capricious actions."
                                                                   17


that was "not authorized by the [administrator]" and "amounted

to an attempt to circumvent the results of the [c]ivil [s]ervice

examination ."   While we agree that the town's interview process

was flawed, we do not agree that, as a result, the bypass was

not reasonably justified.

     An appointing authority may conduct oral interviews of

candidates who have been certified to it from the eligible

appointment list.   See Flynn v. Civil Serv. Comm'n, 15 Mass.

App. Ct. 206, 208 (1983).   While such interviews inevitably have

a subjective component, they should be "structured in an attempt

to protect candidates from arbitrary action and undue

subjectivity on the part of the interviews."   Id.   We agree with

the commission that the interviews conducted by the town failed

to live up to that standard.   The interviewers did not agree in

advance on criteria for scoring the candidates' interview

performance, but, rather, scored the candidates on the

"totality" of their performance.   The record also reflects a

number of other irregularities in the town's procedure.15


     15
       For instance, there apparently was confusion among the
panel members about how to score candidates. Among other
things, Officer Jeff Chaplin had been unaware that he was
supposed to score the candidates numerically, and instead gave
them letter grades. The panel's final scores for the candidates
were not available at the hearing and had to be reconstructed,
to the extent possible, from testimony, because some of the
panelists' scores had never been written down. The
reconstructed scores contained a few arithmetic errors. Some
members of the panel did not take notes on Sherman's
                                                                    18


    We recognize that procedural flaws conducive to subjective

or arbitrary decision making could be a "red flag" signaling

that a bypass decision resulting from the flawed procedures was

motivated by political considerations, favoritism, or bias.    See

Riffelmacher v. Board of Police Comm'rs of Springfield, 27 Mass.

App. Ct. 159, 164-165 (1989), quoting Rowe v. General Motors

Corp., 457 F.2d 348, 358-359 (5th Cir. 1972) ("open-ended and

uncontrolled" interview procedure is "ready mechanism for

discrimination").   Here, the commission considered this risk and

found no evidence to support it.    Nor does Sherman suggest that

his bypass was based on an unlawful motive.

    Nevertheless, because a flawed selection procedure raises

the possibility of unlawful decision-making by the appointing

authority, any decision arising from a flawed procedure warrants

careful scrutiny by a reviewing court.   We therefore have

examined the entire administrative record to determine whether

there is evidence that the town's bypass was motivated by an

improper reason.    See Massachusetts Ass'n of Minority Law

Enforcement Officers v. Abban, 434 Mass. at 264-265 (examining

"the entire administrative record . . . and tak[ing] into

account whatever in the record would fairly detract from the


performance, although they did so for other candidates. And, in
many cases, neither the panel members' written notes nor their
testimony at the hearing provided substantive reasons why they
awarded a given score to a particular candidate.
                                                                  19


supporting evidence's weight" [citation omitted]).   Although the

record includes evidence that gives us pause,16 we are satisfied

that the commission's conclusion that Sherman's bypass was not

motivated by an improper reason was supported by substantial

evidence.17

     A promotional decision may be reasonably justified on the

merits, even where the appointing authority uses flawed

procedures for selecting candidates, in the following limited

circumstance:   where the appointing authority had a reasonable

justification on the merits for deciding to bypass a candidate,

and the flaws in the selection process are not so severe that it

is impossible to evaluate the merits from the record.     In such a

case, the candidate's bypass appeal should be denied despite the

     16
       We note, for example, Porter's relatively unconstrained
postinterview ranking of the candidates, which formed the basis
of his recommendations to Murphy. We note also that the record
does not indicate whether the job performance of the other
candidates was subjected to the same scrutiny as Sherman's.
     17
       We recognize that a flawed interview process could serve
to mask the presence of implicit gender and racial bias in the
decision-making process. See, e.g., Morris vs. Braintree Police
Dep't, Civil Serv. Comm'n, No. G1-13-173 (Dec. 11, 2014)
(commission allowed candidate's bypass appeal in part because
police department "took few . . . steps to insure that the
interview process was reasonably structured and capable of
meaningful objective review," and candidate was bypassed
"because of [only] slightly better interviews" by other
candidates; bypassed candidate "had a well-documented record as
a successful law enforcement professional"; and there were other
"red flags," including differences between bypassed candidate's
age and race and those of selected candidates). No such claim
was made here.
                                                                   20


presence of procedural flaws, because the appointing authority

comported with "the fundamental purpose of the civil service

system, . . . to ensure decision-making in accordance with basic

merit principles."    Id.

    Here, the town's decision to bypass Sherman is supported in

part by the over-all low score the interview panel awarded

Sherman relative to the promoted candidates.   It is supported

also by Pace's post-interview letters to Murphy, articulating

reasons why the candidates' interview performances warranted the

bypass.   This would be a much closer case, however, if the

candidates' interview performances were the only justification

offered for the bypass decision.   Aside from the interviews,

there is, as the commission noted, reasonable justification for

the bypass based on the evaluation of Sherman's past job

performance by his superiors.   The magistrate found that

Sherman's supervisors had raised concerns that he had difficulty

in following through on case investigations and needed

supervision -- concerns that were communicated to Porter and

Murphy by Sullivan.   Part of the job of a police sergeant is to

ensure that those under his or her command follow through on the

work needed to complete police investigations, and Sherman's

failure to do so with his own cases is certainly reasonable
                                                                 21


justification to bypass him for promotion to that position.18

     The bypass therefore was properly affirmed by the

commission because, despite the flawed selection process, the

town was reasonably justified in deciding that Sherman was not

yet ready to assume the duties of a police sergeant -- a

decision to which the commission appropriately showed deference.

See Flynn v. Civil Serv. Comm'n, 15 Mass. App. Ct. 206, 208-211

(1983) (upholding bypasses against challenges to interview and

scoring procedures used in selection process because there was


     18
       The evidence that Sherman's job performance supported a
reasonable justification for his bypass was somewhat limited, in
part because the department did not conduct annual, written
performance reviews under the performance evaluation system
established by the administrator pursuant to G. L. c. 31, § 6A.

     An appointing authority may use any information it has
obtained through an independent, impartial, and reasonably
thorough review as the basis of its decision to bypass a
candidate. See Beverly v. Civil Serv. Comm'n, 78 Mass. App. Ct.
182, 189 (2010). The appointing authority may rely upon
credible anecdotal evidence of job performance concerns to form
the basis of a reasonable justification for bypass, so long as
its decision satisfies basic merit principles. The decision may
not be arbitrary, based upon political or personal connections,
or applied unequally to other candidates. The closer that an
appointing authority's procedures hew to those set out in G. L.
c. 31, § 6A, the more confident we will be that the evaluation
of job performance was fair and not arbitrary.

     Here, the town's evaluation of Sherman's job performance
was based largely on informal conversations with Sullivan, who
had difficulty identifying at the hearing particular instances
of poor performance. Testimony by Sherman's direct supervisors,
however, did identify specific instances supporting the
magistrate's finding that at least one of the supervisors had
specific incidents to support his assessment of Sherman.
                                                               22


"no evidence to show that the appointing authority was motivated

by anything other than merit or that its actions were . . .

designed to conceal improper reasons").19

                                   Judgment affirmed.




     19
       Sherman also argues that Murphy's bypass letter cited the
three selected candidates' training, length of experience, and
military service as reasons for their selection, and that --
because these three factors are already considered by HRD in
determining a particular candidate's final certification score -
- none of them is a valid reason for a bypass, and that offering
them as reasons for a bypass is impermissible "double credit."
At least on the facts of this case, we disagree. Although
credits are provided by statute to certified candidates for
"training and experience," G. L. c. 31, § 22, and the names of
veterans are placed "ahead of the names of all other persons" on
the certification list, G. L. c. 31, § 28, it does not follow
that an appointing authority may not consider factors relating
to a candidate's experience, training, or military service in
deciding to bypass a candidate. As Porter explained during his
testimony, for instance, where a veteran has been given a
preference on the certification list simply by virtue of being a
veteran, it is not "double credit" to consider what he or she
"did in the military," and "what sort of leadership qualities"
he or she has.
