The Somerville City Council reviewed and discussed the recent ruling that a candidate for a public service job was wrongly denied at their latest regular meeting.

By Jim Clark

An Order was put forward by Ward 7 Councilor Judy Pineda Neufeld at the latest meeting of the Somerville City Council on Thursday, August 25, that the City Solicitor update the City Council on the August 11 Civil Service Commission decision on the Matthew Fairchild v. City of Somerville matter, and its impact on the city’s confirmations process.

On May 5, 2021, Fairchild took action against the City Council’s decision to deny him confirmation for appointment as a Reserve Police Officer in the Somerville Police Department, ostensibly based on unsubstantiated claims about the candidate’s alleged untruthfulness. The Commonwealth of Massachusetts Civil Service Commission subsequently ruled in Fairchild’s favor and issued its ruling on August 11, 2022.

In the ruling, the Commission stated that the decision to bypass Fairchild was based on a flawed review process that was not consistent with basic merit principles. As a result of this improper conduct, Fairchild’s civil service rights were abridged, denied and prejudiced causing actual harm to his employment status.

The ruling also pointed out that that it was the mayor, not the City Council, whose action on March 3, 2021, formally nullified Fairchild’s conditional offer of appointment and forced the police department to process the appointment of two lower ranked candidates, which served as the basis for Fairchild’s appeal.

According to the Commission, the city’s Confirmation of Appointments and Personnel Matters Committee conclusion that Fairchild was untruthful in his response to hypothetical questions it asked him about a drug bust scenario and his alleged criminal record are both unsubstantiated by the evidence and fall woefully short of having been based on a properly vetted, reasonably thorough review of the relevant facts.

In addition, the ruling criticized the refusal to confirm an innocent candidate for political reasons unrelated to that candidate’s fitness for appointment, and that the Confirmation Committee should take care in exercising its oversight role to confirm appointments under the Somerville municipal charter, and not stray into the type of “arbitrary and capricious” behavior or carry “overtones of political control or objectives unrelated to merit standards” prohibited by basic merit principles as well as basic rules of common decency.

Also, the Commission found that the authority of the Confirmation Committee to inquire into “non-medical issues” in its role as confirming the appointment of a qualified candidate who had received a bona-fide conditional offer also calls for a careful balance of the oversight duty of the Committee under the Somerville municipal charter with the statutory duties imposed by law.

The Commission subsequently ordered that the Massachusetts Human Resources Division and/or the City of Somerville place the name of Matthew Fairchild at the top of all current and future certifications for appointment to reserve and/or permanent, full-time police officer with the Somerville Police Department so that he is first in line for appointment to the next available vacancy in a position as a permanent, full-time SPD Police Officer until he is so appointed or bypassed.

In addition, Fairchild is not to be bypassed for appointment to the position of a reserve and/or permanent full-time SPD Police Officer for any of the reasons found insufficient in the Commission’s decision or based on any other facts that were known or reasonably should have been known at the time of his bypass in February 2021.

Also, if Fairchild is bypassed for appointment as a permanent, full-time SPD Police Officer, no future appointment of any other person to that position shall become effective until such time as Somerville has provided Fairchild with sound and sufficient reasons for the bypass, that he has the opportunity to file an appeal with the Commission, and the Commission has issued a final decision related to the bypass.

Finally, Fairchild is to be given a retroactive civil service seniority date that is the same civil service seniority date he would have received had his appointment to the position of an SPD Reserve Police Officer been confirmed in February 2021 as the top ranked candidate on Certification.

The Confirmation of Appointments and Personnel Matters Committee consists of Ward 7 Councilor Judy Pineda Neufeld (Chair), Councilor At-Large Kristen Strezo (Vice Chair), Councilor At-Large Charlotte Kelly, Ward 4 Councilor Jesse Clingan, and Councilor At-Large Jake Wilson.

At last week’s City Council meeting, councilors took the opportunity to express their views on the Commission’s ruling.

Councilor Pineda Neufeld spoke about the effects of the decision on how the Confirmation of Appointments and Personnel Matters Committee conducts its business. “I know you all received the recent decision in the Fairchild case. It’s important reading, I would encourage you to read through it,” Pineda Neufeld said. “As I was going through it as the Chair of the Confirmations Committee, there are some real key critical pieces in here that impact our process and the way in which we interview and confirm candidates.”

Pineda Neufeld specifically cited the Commission’s view concerning political influences in the confirmations process. “That feels like it has a major impact on our committee and how we move forward,” she said. “I submitted this order so that we have a conversation with our legal team and City Solicitor and their office about how it impacts our committee, what we need to glean from this in terms of learning moving forward.”

Attorney Tim Zessin, who represented the city in this matter, addressed the Council. He said that this was a difficult case and that the Commission had issues with the manner in which the Confirmation of Appointments and Personnel Matters Committee conducted its interview and confirmation process, as well as the role the Council has in the process.

“Obviously, I imagine the Council is disappointed,” Zessin began. “I think this was a difficult case, and clearly the Commission and [Commissioner] Mr. Stein had issues with the way Council and the Confirmations Committee conducted their review as part of the nomination and confirmation process. I think there are some takeaways from this decision. I still believe there is a role for the Council and the Confirmations Committee to play in the appointments process.”

Zessin said that as he drilled down on the decision, the Commission did not go so far as to say the Council is a rubber stamp. “I think there is some limitations, but there still is a role in the nomination process.” 

Ward 2 Councilor J.T. Scott said that he was not disappointed with the outcome of the decision. “I was thoroughly impressed with Mr. Fairchild during the interview process,” said Scott. “One of my big takeaways from this is the Commissioner strongly cautioned the city to carefully protect, obviously, personal medical history as a matter of high importance. Prior to making a conditional job offer an employer should have evaluated all relevant non-medical information.”

Scott asked Zessin if he felt that having the confirmation process happen before evaluating any medical evaluation would be a more prudent course of action in the future. Zessin agreed that conducting interviews prior to the candidates having their physical exams might alleviate some of the problems, however he stated that would be a policy decision.

Ward 6 Councilor Lance Davis expressed his pleasure with the outcome of the decision and noted that the Committee did not have access to the transcript/video between the candidate and the Police Department. He went on to say that the Confirmation of Appointments and Personnel Matters Committee has, for years, requested additional information about candidates, only to be denied by the Administration.

Councilor At-Large and Confirmations Committee member Kristen Strezo, after citing critical language in the Commission’s ruling, flatly stated that it is an embarrassment to the City of Somerville.

City Council President and Ward 1 Councilor McLaughlin commented that most people try to do the right thing, but sometimes mistakes are made. “Lots of times people, and I’m including myself, I’ve acknowledged in the past my zeal ended up negatively impacting individuals because I felt that I was right at the time. And I think that happens often in society,” McLaughlin said. “And I look at this and I’m really just taken back by – I read this whole report and I didn’t hear once this report state that the Administration, that the City of Somerville did something wrong. But they repeatedly admonished the City Council and the Confirmation of Appointments Committee.”

McLaughlin continued, “And I know I’m not a lawyer and I’m not a judge either, and I’ve read some legal reviews and I’ve rarely seen a judge speak so candidly describing the City Council’s conduct as ‘improper conduct, lacking merit, patently absurd, flow from arbitrary and capricious decision, from the City Council, unsubstantiated by evidence and fall woefully short of being based on a properly vetted, reasonably thorough review of relevant facts.’ And to one of my colleague’s points that we should have gotten this information beforehand, this Commissioner says the question shouldn’t have even been asked and is problematic that it was even asked to begin with.”

“So, to say that the behavior of the Council is defensible because we didn’t receive a piece of information, that falls woefully short of any logic in my mind,” said McLaughlin. “I was one of the main people who tried to make the Confirmation of Appointments Committee a relevant committee, that was a rubber stamp for many years, and I feel now that it has swung in the other direction, where guilt is presumed before innocence, and people are arbitrarily, capriciously dismissed and have their names disparaged, have potential job employment ruined.”

McLaughlin expressed his opinion that the Council should never have rejected Fairchild’s appointment to begin with. “It’s troublesome to me that rather than say, ‘I apologize to Mr. Fairchild for putting you through this. For not only denying you a job in the City of Somerville but for potentially denying you employment in future aspects. Publicly calling you a liar.’ If you can’t make a logical decision because you were denied information, maybe don’t call someone a liar. And maybe don’t say on the record, ‘The two who did not lie, thank you. The Committee is doing its best to surround you with honest associates.’ And then proceed to vote against every candidate, regardless of their merit.”

“So, I think this is very black and white,” McLaughlin continued. “Again, I’m not a lawyer, but I felt like this case specifically said this City Council can only judge candidates based on merit. And what I see from the judge’s opinion is that it was a flawed, capricious and arbitrary decision, politically motivated. These are the judge’s words, the Commissioner’s words, not mine. But I agree with this person’s opinion that judging from the fact that there was a 3 to 2 vote on every single person that appeared before the Committee that day – and one of them was rejected by everyone – but two others were rejected for a stated reason of politics, which this Commissioner goes out of the way to say that this is problematic and a red flag.”

McLaughlin continued, “So, I really want to give everyone the benefit of the doubt, but I am saying this now as the Council President, and as somebody who is really disturbed by the way occasionally zeal and the feeling of being right might get in the way of hurting individuals. And I think this is what happened, I think people have their views and their values, and they’re trying to live by their values, but I just encourage people around this Council to maybe think about the consequences of your actions and the individual in front of you, who is not here for the revolution, they’re not here for anything besides to work in the City of Somerville, feed their families, and they did not sign up to be publicly humiliated.”

“I’m taken back by the lack of remorse,” McLaughlin said in conclusion. “This man deserves an apology and if people aren’t willing to apologize, I will apologize on my behalf, because I can’t speak for anyone else but myself.”

The Order was approved and sent to the Confirmation of Appointments and Personnel Matters Committee for discussion follow-up.

A video of this City Council meeting is available for viewing at: https://somervillema.legistar.com/Calendar.aspx

You can download the full text of the Civil Service Commission ruling at: http://thesomervilletimes.com/downloads/fairchild_court_order.pdf