‘Stale’ CWOF not grounds to bypass police candidate

Lawyers Weekly

Old charge not disqualifying ‘conviction,’ says judge

By: Eric T. Berkman March 1, 2018

A continuance without a finding that a man received on criminal charges as a teenager did not justify the Boston Police Department bypassing his application to become a police officer more than a decade later, a judge has found.

Plaintiff Keon Finklea faced a felony charge in 2001 for receiving a stolen tire from a friend. A judge issued a CWOF, and the charges ultimately were dropped.

The Civil Service Commission found that the CWOF was not a “conviction” that would disqualify him from serving as a police officer, that it was stale, and that Finklea was not given an opportunity to explain it. Thus, the commission found, the bypass was unjustified.

Superior Court Judge Elizabeth M. Fahey affirmed, finding no statutory definition in Massachusetts under which a CWOF would be considered a conviction. She also noted the Civil Service Commission’s determination that using a criminal record “as old and stale as the plaintiff’s … was problematic.”

Accordingly, Fahey decided that the commission did not exceed its authority or otherwise commit an error of law.

The 16-page decision is Finklea v. Massachusetts Civil Service Commission, et al., Lawyers Weekly No. 12-008-18. The full text of the ruling can be ordered here.

Potential for bias

Counsel for the plaintiff, David S. Godkin of Boston, said the ruling sends a message to the BPD and other public safety departments that they need to be careful in their hiring decisions and that any bypass needs to be “absolutely justified.”

“The judicial review process isn’t going to let decisions stand that don’t have a substantial basis,” he said.

Godkin said the decision also shows that cases like Finklea are worthwhile for lawyers to pursue.

“When you have a qualified candidate like this who has gone through the civil service process and is bypassed, this shows that we have judges on the Superior Court who will take a close look at the facts and the law and respond,” he said. “They won’t be a rubber stamp.”

Sophia L. Hall of the Lawyers’ Committee for Civil Rights and Economic Justice also represented the plaintiff. She said the case is part of a broader effort to hold public safety agencies in Boston accountable in ensuring they represent the diversity of the community.

Finklea, who is black, did not explicitly allege race bias in the case. Still, Hall said, the BPD’s use of a candidate’s past contact with the criminal justice system, such as the stale CWOF, as an automatic disqualifier disproportionately affects minorities, who are more likely to have such contact.

That is why the decision is so crucial, she said.

“It provides guidance for the BPD to understand the proper use of criminal records in their hiring process,” she said. “Just as importantly, it provides information to the community of color in Boston who may not understand what factors can and cannot bar them from pursuing careers in public safety fields.”

Needham attorney Timothy M. Burke, who represents employees in public-sector employment disputes, said the decision is helpful not only in addressing racial disparities in hiring but the risk of cronyism as well.

For example, Burke said, he is currently representing a certified EMT with a master’s degree and outstanding recommendations who was bypassed for a spot with a public safety agency based solely on a 20-year-old CWOF on an operating-under-the-influence charge.

“It’s the only thing that’s ever happened to him, and the department focused on this one singular issue to disqualify him,” Burke said. “The candidate chosen instead was someone who had, in our opinion, a comparable history, if not worse, but had connections politically. That’s precisely what the Civil Service Commission is designed to eliminate.”

Peter M. Geraghty of the BPD’s Office of the Legal Advisor argued the case for the department but could not be reached for comment. But Michael Maccaro of Quincy, who represents cities and towns in labor and employment disputes, said the case highlights just how nuanced the legal considerations in making a bypass decision can be.

“Cities and towns need to consider all the facts whenever they’re making a decision like this, and one factor they need to look at is the timing of the events they’re relying on,” he said. “When I read the case and saw that the CWOF was 16 years old, I could have predicted this result, especially since there’s a trend in the law of providing individuals almost with second chances for past transgressions. If the CWOF had been a year before he applied, however, it may have been a different scenario.”

Framingham municipal lawyer Christopher J. Petrini said the case shows that a bypass decision will be upheld as long as there has been a thorough review process supported by written guidelines; the decision does not reflect subjective or irrelevant criteria; and the incidents resulting in the bypass are close in time.

“It behooves municipalities and hiring agencies to periodically review and vet their bypass guidelines and processes to ensure that they reflect the required criteria of objectivity, reasonableness and relevance,” he added. “If they don’t update and monitor their processes, the [Civil Service Commission] or a court eventually will.”

“When you have a qualified candidate like this who has gone through the civil service process and is bypassed, this shows that we have judges who will take a close look at the facts and the law and respond. They won’t be a rubber stamp.”

— David S. Godkin, Boston

Consequential CWOF

Finklea, a married man with an infant child, passed the exam to become a police officer in June 2013.

He was a college student at the time, working toward a degree in project management. He was also working as a manager for a cellphone company and at a bank. He had previously worked as a sales manager at Best Buy and received a promotion before he was laid off for economic reasons.

In July 2014, Finklea submitted his completed police officer application to the BPD. The application provided detailed information about his background, including driving and criminal records. Where the application asked if he had ever been “convicted” of a felony, the plaintiff — who had a CWOF for a felony charge of receiving a stolen tire worth more than $250 — wrote that he had not.

During the application process, recruit investigator Richard Henshaw spoke to Finklea’s supervisors at the bank, Best Buy and the Boston Public Works Department, where he had spent six months as a co-op student. All the supervisors apparently provided positive feedback, as did his neighbors.

Meanwhile, the plaintiff’s driving history revealed no at-fault car accidents, though it did list several driving infractions, equipment and sticker violations, and suspensions for failure to pay fines.

Regarding the felony charge, Finklea apparently disputed the facts but accepted the CWOF on the advice of his attorney, who allegedly told him that the charge would have no future impact and the case would be closed.

Finklea apparently never had the opportunity to explain the charge before the BPD bypassed his application in favor of lower-ranked candidates. In February 2015, he was notified by letter that he was bypassed because of his motor vehicle and criminal histories.

The plaintiff appealed to the Civil Service Commission, which upheld the bypass based on his vehicle history but not based on the CWOF. He then sought review in Superior Court.

Unjustified bypass

Fahey upheld the commission’s finding regarding the CWOF. In doing so, she noted the lack of any statutory definition in Massachusetts that would consider a CWOF a “conviction.”

In crediting the commission’s finding that using a stale criminal record to reject a job applicant without a thorough review was “problematic,” the judge also noted that while Henshaw asked the plaintiff about the CWOF, he never spoke with him about it in any detail and Finklea was neither evasive nor disingenuous about it.

Regarding Finklea’s vehicle history, Fahey noted that the commission found it to be “lengthy and troublesome.” Still, she said, the commission provided no analysis of infractions, which she described as being as “stale” as the CWOF. And she pointed to the absence of violations for running red lights or for at-fault accidents.

“In light of the Commission’s finding that the CWOF was not a reasonable justification to bypass the plaintiff and the decision’s brief discussion regarding the driving history, this court remands the matter back to the Commission for further explanation of whether and how the plaintiff’s driving record alone can support the bypass,” Fahey concluded.

Finklea v. Massachusetts Civil Service Commission, et al.

THE ISSUE: Did a continuance without a finding that a man received on criminal charges as a teenager justify the Boston Police Department bypassing his application to become a police officer more than a decade later?

DECISION: No (Superior Court)

LAWYERS: David S. Godkin of Birnbaum & Godkin, Boston; Sophia L. Hall and Oren Sellstrom, of the Lawyers’ Committee for Civil Rights and Economic Justice, Boston (plaintiff)

Peter M. Geraghty of the Boston Police Department’s Office of the Legal Advisor, Roxbury Crossing (defense)