COMMONWEALTH OF MASSACHUSETTS
CIVIL SERVICE COMMISSION
One Ashburton Place: Room 503
Boston, MA 02108
(617) 979-1900
KENNETH ELLIS,
Appellant
v. E-22-134
CITY OF BROCKTON,
Respondent
Appearance for Appellant: Pro Se
Kenneth Ellis
Appearance for Respondent: Brett M. Sabbag, Esq.
Norris, Murray & Peloquin, LLC
315 Norwood Park South
Norwood, MA 02062
Commissioner: Christopher C. Bowman
SUMMARY OF ORDER
The Commission issued interim orders to ensure a fair, impartial promotional process for police
lieutenant in the City of Brockton’s Police Department.
ORDER
Procedural Background
On October 3, 2022, the Appellant, Kenneth Ellis (Appellant), a sergeant in the City of
Brockton (City)’s Police Department, filed a non-bypass equity appeal with the Civil Service
Commission (Commission) under G.L. c. 31, § 2(b), contesting his non-selection for promotional
appointment to police lieutenant.
On November 1, 2022, I held a remote pre-hearing conference which was attended by the
Appellant and counsel for the City. As part of the pre-hearing conference, the parties stipulated
to the following:
A. On September 19, 2020, the Appellant took the promotional examination for police
lieutenant and received a score of 88.
B. On December 15, 2020, the state’s Human Resources Division (HRD) established an
eligible list for Brockton Police Lieutenant.
C. At the time of the most recent vacancy for police lieutenant, three candidates, including
the Appellant, were tied for first on the eligible list.
D. All three candidates notified the City that they were willing to accept the promotional
appointment if promoted.
E. One of the candidates tied with the Appellant on the eligible list was a police sergeant
who is the spouse of the Brockton Police Chief.
F. The City’s Mayor is the Appointing Authority for promotional appointments in the
Brockton Police Department.
G. The City’s Mayor promoted the spouse of the City’s Police Chief.
H. Since all three eligible candidates were tied, the Appellant’s non-selection did not
constitute a bypass.
As part of his pre-hearing memorandum and during the pre-hearing conference, the
Appellant argued that the Police Chief failed to take the necessary steps to recuse herself from
the promotional process and “stayed involved in the promotional process to influence the
promotion of her husband.” The Appellant cited specific alleged examples to support his
argument.
Counsel for the City argued that: a) there was no appealable bypass; b) the Police Chief,
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prior to this promotional process, had already filed the necessary disclosure forms and had
previously recused herself from participating in any matter involving her husband’s employment
(i.e. – including discipline, promotions, etc.); and c) the City took appropriate steps to ensure that
the Police Chief recused herself from this promotional process, including assigning the City’s
Human Resources Director to make a recommendation regarding this promotional appointment;
and d) a pending disciplinary investigation regarding the Appellant was appropriately relied
upon, in part, in breaking the three-way tie.
After carefully considering the parties’ arguments, and for all of the reasons discussed at the
pre-hearing conference, I issued a Procedural Order on November 1, 2022 that: a) deemed the
Appellant’s appeal to also be a request for the Commission to initiate an investigation under G.L.
c. 31, § 2(a); and b) provided the City with 30 days to file a reply stating why the Commission
should not initiate an investigation. As part of its response, I ordered that the City address each
of the allegations made by the Appellant as part of his pre-hearing memo and during the pre-
hearing conference and include an affidavit from the City’s Police Chief stating what role, if any,
she played in any part of the promotional process that resulted in the promotion at issue in this
appeal. The was given 10 days thereafter to file a response to the City’s opposition.
City’s Responses
On November 28, 2022, the City requested that the Commission convene a status conference,
which was subsequently held on December 6, 2022. As part of its request for a status
conference, the City wrote in part:
Upon further review of the issues raised and without conceding any
violations of Chapter 31, the City proposes to enlist an entity outside
the City of Brockton to repeat the selection process for the Police
Lieutenant vacancy at issue in this appeal to ensure the process is
fully transparent and consistent with basic merit principles.
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Following its review of each of the candidates, the entity will
recommend a candidate to the City’s Appointing Authority.
On December 6, 2022, I convened a status conference that was attended by the Appellant
and counsel for the City at which time the City discussed the proposal referenced above. At the
conclusion of the status conference, I asked the City to provide some additional details regarding
its proposal including whether the promotional appointment already made would first be
rescinded and what steps would be taken to ensure that the outside entity was truly independent
and capable of making a fair, impartial decision regarding this promotional appointment.
On December 30, 2022, the City provided the Commission with a status update, writing
in part that:
On December 11, 2022, the Brockton Police Supervisor’s Union
sent a demand to the City to bargain over the alternative selection
process, as proposed by the City in this matter. The City was
obligated to meet with the union to address the issue prior to moving
forward with its plan, which contributed to the delay in the process.
The City is in the process of converting the selected candidate and
incumbent Lieutenant to a provisional appointment. Give that the
City had filled the Sergeant vacancy created by the promotion, it
would be an undue burden on the City to entirely rescind the
promotion as there are no open Sergeant positions. Additionally, the
City continues to explore options in terms of an appropriate outside
entity, consistent with the criteria recommended by the
Commission, to conduct the process and recommend a candidate to
the Mayor.
Appellant Objections
On February 6, 2023, the Appellant sent an email to the Commission stating that the City
has not implemented the above-referenced course of action, including notification from an
outside entity regarding a selection process or any notification regarding the conversion of the
promotional appointment from permanent to provisional. Further, the Appellant objected to the
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City’s decision not to rescind the promotion outright and stated that, since the City’s December
30th communication to the Commission, a sergeant vacancy has arisen due to a retirement in the
Department.
Interim Commission Orders
More than three months has transpired since the Commission held a pre-hearing
conference in this matter at which time I offered the City a candid assessment of the potential
issues related to this promotional process. It is time for the City to act with more urgency.
The City has ten days to provide the Commission with a detailed plan to ensure a fair,
expedited, impartial review, including detailed benchmarks and information regarding how the
City will provide ironclad assurances that the Police Chief will play no role, directly or
indirectly, in this de novo review of the candidates. Further, the City’s plan needs to ensure that
the previously selected candidate has no advantage in the new process as a result of his prior
selection. For example, there should be no reference to and/or credit for the time the selected
candidate has served in the position of Police Lieutenant and any assessment of the candidates’
experience and performance should only include the time period preceding this most recent
promotional appointment. To ensure clarity, the burden is on the City to right this ship,
implement a review process that is above reproach, and to do so without further delay.
SO ORDERED.
Civil Service Commission
/s/ Christopher Bowman
Christopher C. Bowman
Chair
By a vote of the Civil Service Commission (Bowman, Chair; Dooley, McConney, Stein and
Tivnan, Commissioners) on February 23, 2023.
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Notice to:
Kenneth Ellis (Appellant)
Brett Sabbag, Esq. (for Respondent)
