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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 biasbased 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.