By William C. Shelton

(The opinions and views expressed in the commentaries of The Somerville News belong solely to the authors of those commentaries and do not reflect the views or opinions of The Somerville News, its staff or publishers.)

In this space last week, Mayor Joseph Curtatone wrote a column entitled “Setting the record straight,” defending his administration’s failure to consider for appointment to its reserve firefighter force candidates Sean O’Brien and Jason Bonner, who were in first and fourth positions on the civil service list. His explanation is a compilation of misleading and sometimes false statements.

The matter became public at an October 14 Board of Aldermen meeting when Alderman Bill White submitted an order directing the city’s current and former personnel directors and its fire chief to explain why they had not informed the Board’s Confirmation of Appointments Committee that the head of the certification unit in the state’s Human Resources Division (HRD) had directed the city to place these two candidates at the top of the list of candidates the committee was then considering.

The best way to evaluate the mayor’s defense is to compare it with available hard evidence. Referenced documents may be found online at TheSomervilleNews.com

Background

In March 2008 Mayor Curtatone asked and received approval from the Board of Alderman to create a reserve fire force. Rather than being hired directly from the civil service list to be permanent full-time firefighters, candidates would be appointed to the reserve force, from which the mayor could subsequently appoint them as permanent full-time firefighters. Such an appointment process had never before been used in Somerville.

The rationale offered by the mayor was that by appointing candidates to the reserve force, the city could take time to do rigorous background checks and could appoint permanent, full-time firefighters as soon as there was a need and the fire academy had open training slots.

But 18 of the 24 candidates who have been appointed to the reserve force since its creation have been made permanent within days after their reserve force appointments. And two of those were subsequently terminated for reasons that a routine background check should have discovered.

Aldermen were told that 43 other Massachusetts municipalities use a reserve fire force. In fact 43 of 351 Massachusetts municipalities have accepted the statutes authorizing the establishment of the reserve fire force system. However, only a fraction of these communities actually uses the reserve force system. I can find none that uses it as its sole method for making permanent firefighter appointments.

Excluding two leading candidates

Lifelong Somerville resident Sean O’Brien returned in August 2009 from serving two tours of combat duty as a U.S. Marine in Iraq. He took the civil service firefighter entrance exam on September 11, 2009. He passed the HRD physical test on September 15. Based on his exam score, he was placed 4^th on the civil service list on October 15. Based on his status as a disabled veteran, he was moved to first position on November 15. Jason Bonner, also a veteran, moved to fourth position.

The mayor justifies his administration’s ignoring these changes by saying. “If conditional offers of employment have been made [to lower-ranked candidates] prior to the expiration of the list, the City has a legal obligation to honor the offer so long as the conditions are met.”

This is misleading in two ways. First, the two excluded candidates’ positions on the eligible list were established well before each one of the offers was made. One candidate who was subsequently hired did not receive his offer until November 23, over five weeks after O’Brien was number four on the list and eight days after he was number one. Personnel Director Jessie Baker has acknowledged that she had access to these daily eligibility updates.

Manipulation of the eligibility list

Second, is the mayor’s reference to “the expiration of the list.” When the city wants to make civil service hires, it requests HRD to send the civil service eligibility list for those positions. HRD puts these names on a “certification” in the order of their exam score and sends this document to the city.

Based upon the number of positions that the city initially tells HRD that it wants to fill, HRD specifies how many signatures the city must obtain from eligible candidates who want the job, based on the “2n + 1” rule. That is, the number of candidates whose signatures appear on the list must always be two times the number of available positions, plus one. [PAR.09]

“Always,” because this rule applies not just to how many positions the city initially tells HRD  it wants to fill, but how many it actually does fill. This is critical to understanding how the two candidates’ civil service rights were violated.

In April 2009 the city requested a certification to hire nine positions. HRD issued it on May 6. It would expire on July 29 unless the city hired nine candidates or HRD granted a written extension. [Certifications are not posted on the documents web page in order to protect the privacy of those named in them.]

On July 27, 2009, the city requested an extension. [Extension request 7/27/09] Two days later and without explanation, the city informed Henriquez that it wished to take no further action on that certification.  [Buckley letter 7/29/09]

Nineteen days later Mayor Curtatone requisitioned a new certification for precisely the same purpose as the first—to hire nine reserve firefighters.  [Certification request 8/17/09] Henriquez issued this second certification on September 9, 2009.

There was one significant difference between the two certifications. Two candidates who had failed to sign the first certification did so on the second. The candidate who has relatives that are city employees and campaign contributors was subsequently hired. He could not have been hired without the city killing the first certification and then making an identical request.

Violation of 2n+1 rule

HRD issued the second certification on September 9, 2009. Only 24 candidates appeared and signed it. But at least as early as November 23, 2009, the city intended to appoint 12 reserve firefighters instead of 9, thereby requiring 25 signatures. We know of this intention because of a letter that Mayor Curtatone sent to Luz Henriquez dated February 24, 2010, seeking her approval of 12 hires that were made unlawfully that evening, as I will explain in the next section. [Curtatone letter 12/24/10]

In that letter he offered the excuse that “conditional offers of employment” had been made to 12 candidates. The twelfth offer was made—to the politically connected candidate—on November 23, 2009. So at least as early as that date the city was obligated to ask HRD for additional candidates, or violate the 2n+1 rule. But if it had done so, Sean O’Brien and Jason Bonner would have bumped two politically connected candidates off the list.

In January O’Brien wrote a letter to the mayor explaining that he was #1 on the civil service list and asking for a meeting. He received no response.

Unlawful appointment of reserve firefighters

On February 24, 2010 the Aldermen’s Confirmation of Appointments Committee was scheduled to approve the 12 reserve firefighter candidates appointed by the mayor. But for reasons just explained, the certification that they were on had expired on December 2, 2009. The city had not requested an extension of that certification until December 24. It renewed its request on February 8. [Extension requests 12/24/09, 2/4/10]

That day it submitted another extension request. Henriquez responded by e-mail at 5:35 p.m., directing the city to place O’Brien and Bonner in at the first and fourth positions for consideration for appointment. [Henriquez letter 2/24/10]

Cover up

Staff did not reveal this directive to the appointments committee. O’Brien subsequently appealed to the Civil Service Commission and submitted a freedom of information request to the city for all documents related to the case. Though he was required to pay $871 for copying, this directive was not among them. His representative Andrew Puglia discovered it in the state HRD file, for which he paid nothing.

Mayor Curtatone states that between 5:35 p.m. and the 7:00 p.m. start of the February 24 Confirmation of Appointments Committee meeting, “City officials immediately got in touch with HRD to explain that conditional offers had already been made to those on the September 2009 list prior to the expiration of that list…. [Luz Henriquez] instructed the City to disregard the earlier email, as the conditional offers of employment established a binding obligation and no other candidates could legally interfere with those hires.” I have already explained how citing these offers was misleading, both to Henriquez and to those investigating this affair.

Appearing before the aldermen two weeks ago, Fire Chief Keller assured them that this conference call had taken place and that he was a participant. When Alderman White asked where it took place, he stated that he couldn’t remember whether it was in the mayor’s office or Janice Delory’s.

After Bill White raised this matter last month, administration officials asked Luz Henriquez for a letter confirming their version of events. In her October 27 letter she recalls speaking to city officials by phone. However she states that she did not approve the extension until the following day. [Letter Henriquez 10/27/10] And she never rescinded her directive.

O’Brien’s appeal

The city’s labor attorney, Robert Collins, did not mention the purported conference call or after-the-fact Henriquez letter during Sean O’Brien’s appeal. He did not offer it as a defense in his filings or at a status conference on July 6, 2010, or at the prehearing conference on September 14, 2010.

During that prehearing conference, Civil Service Commission Chairman Christopher Bowman cited Henriquez’s February 24 directive in deciding that the case need go no further, since the city had failed to add the names required to meet the 25-name requirement. He ordered that O’Brien be placed number one on the eligibility list and given retroactive seniority. He stated that he would reopen the case if O’Brien were bypassed.

Mayor Curtatone says that “After hearing the complaint, Civil Service upheld all of the City’s hires from the September list…” Commissioner Bowman did no such thing, despite his finding that the hires were improper. The CSC has never vacated improper hires such as these, because doing so would punish the persons appointed, who are innocent, rather than the city, who is not.

The mayor states, “I want to stress that, had the City improperly hired one person instead of another, Civil Service could have overturned the hire.” This is both misleading and false. Since the city had intentionally avoided adding O’Brien and Bonner to the certification list, they were technically not bypassed. So the strongest action that Bowman could take under the law was to do what he did.

None of this evidence would have come to light without the extraordinary tenacity, analytical skill, and generosity of Mr. O’Brien’s representative Andrew Puglia. One has to wonder how many similar injustices never surface because their victims lack such resources.

Mayor Curtatone says that, “the recently hired firefighters deserve the courtesy of doing their jobs without becoming political footballs.” On this point we agree.

Documents