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UPDATE ON PROMOTIONAL EXAMS
In a decision dated October 27, 2022, the Suffolk County Superior Court issued a ruling in Spencer Tatum, et. al. v. Comm. Of Mass., et. al., C.A. 0984CV00576 (a link to this decision is available on the Mass FOP website).
The case involved a challenge by a class of plaintiffs starting in 2009, many of whom are FOP members, alleging the State (through its Human Resources Division), administered promotional examinations for the rank of police sergeant which were discriminatory against Black and Hispanic officers.
After a bench trial in the summer of 2022, Suffolk Superior Court Justice Douglas Wilkins issued a scathing finding against the Commonwealth, stating in part:
“The evidence is very clear. It defeats any justification for HRD’s heavy reliance upon biased exams to identify the best candidates for promotion to sergeant. Moreover, HRD knew of clearly superior assessment methods, but continued to use the same, unnecessarily discriminatory format anyway. The massive amount of evidence proving the known and unjustified disparate impact of HRD’s format leaves no doubt in this court’s mind that the Commonwealth has interfered with the plaintiffs’ rights to consideration for promotion to police sergeant without bias due to race or national origin.”
As a result, the Court has moved to “phase II” of the proceeding, to determine how to remedy the wrongs identified by the plaintiffs in this case.
HRD has ceased scoring exams, and has cancelled further new promotional exams, pending the resolution of this matter.
The decision to cancel upcoming exams has already been challenged by members of a fire union; though they were unsuccessful in their attempt to enjoin cancellation of an upcoming scheduled exam.
The result:
- HRD will be issuing guidance to municipalities in the upcoming weeks and months regarding promotional examination formats;
- Our new MA FOP Director of Governmental Affairs, Frank Frederickson, will be monitoring potential legislative initiatives, and consulting with all affected police unions to discuss issues of mutual concern;
- Processes for promotion remain a mandatory subject of bargaining; if your city/town seeks to modify the current system, be aware of your union’s right to bargain changes to the system.
- HRD represented to the Court that it anticipates offering a new format promotional exam, utilizing an assessment format, in or around March, 2023.
HRD’s continued use of a flawed system not only negatively impacted careers of current and retired police officers, it resulted in countless hours of preparation (and lost work opportunities) for promotional exams which will never be scored or conducted at all.
We will keep you apprised of developments, and expect that there will be significant permanent impacts of this decision on all police promotions in Massachusetts. Though the Commonwealth maintains the right to appeal, in light of the very strong and detailed methodology used by the Court, an appeal is unlikely.
If you have specific questions regarding this matter, do not hesitate to contact us. If we cannot provide the information you need, you will be referred to MA FOP General Counsel Scott Dunlap.
Fraternally,
Todd Bramwell, President
Massachusetts Fraternal Order of Police
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