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HOUSE No. 1000

Cbt ~monbJtaltb of _assatbusttts

SECOND INTERIM REPORT

of the

SPECIAL COMMISSION

Relative to

THE CIVIL SERVICE LA W AND VARIOUS OTHER

MERIT SYSTEMS OF THE COMMONWEALTH

AND ITS POLITICAL SUBDIVISIONS

(under Chapter 10 of the Resolves of 1979and revived and continued by

Chapter 3 of the Resolves of 1980)

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December 3, 1980.

v

2 HOUSE - No. 1000

In the Year One Thousand Nine Hundred and Eighty-One.

. [January

RESOLVE PROVIDING FOR AN INVESTIGATION AND STUDY BY A SPECIAL

COMMISSION RELATIVE TO THE CIVIL SERVICE LAW AND VARIOUS

OTHER MERIT SYSTEMS OF THE COMMONWEALTH AND ITS POLITICAL

SUBDIVISIONS.

Resolved, That a special commission, to consist of three members ofthe senate, the chairman of which shall be the senate chairman of theJoint Committee on Public Service, eight members of the house ofrepresentatives, the first named member of whom shall be the housechairman of the Joint Committee on Public Service, the personneladministrator or his designee, and nine persons to be appointed by thegovernor, one of whom shall be a member of the civil service commis­sion, one of whom shall be a member of Council 93 American Federa­tion of State, County and Municipal Employees, AFL-CIO, one ofwhom shall be a member of Local 509 Service Employees InternationalUnion, one of whom shall be a member of the Professional Firefightersof Massachusetts, one of whom shall be a member of the InternationalBrotherhood of Police Officers NAGE, one of whom shall be amember of the Massachusetts Taxpayers Foundation, one of whomshall be a member of the Massachusetts League of Women Voters andtwo of whom shall be representatives of the Massachusetts MunicipalAssociation, is hereby established for the purpose of making an investi­gation and study of chapter thirty-one of the General Laws and thevarious merit systems of the commonwealth and its political subdivi­sions, various civil service laws and merit systems of various otherstates and the federal government, with a view towards establishing amerit and performance based system for the commonwealth and itspolitical subdivisions and "to review any other such matters as saidcommission determines appropriate.

Approved July 23, 1979.

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198U HOUSE - No. 1000

SPECIAL COMMISSION ON CIVIL SERVICE '.,

ROOM 40, STATE HOUSE

BOSTON, MASSACHUSETTS 02133

3

To the Honorable Senate and House of Representatives:

LADIES AND GENTLEMEN: - In conformity with the provi­sions of Chapter 10 of the Resolves of 1979, as amended by Chapter 3of the Resolves of 1980, the Special Commission on Civil Servicesubmits herewith its interim report relative to such changes in the lawsas may be described to improve the civil service system of the Com­monwealth and its political' subdivisions.

The Special Commission, during the course of its investigation andstudy, conducted seven regional public hearings and listened to numer­:ous witnesses testify about the Commonwealth's civil service law. Acommon theme enunciated throughout the public hearings, investiga­tions and study was the lack of 'responsiveness, accountability andflexibility in our present civil service system. The Special Commissionhas prepared a package of legislative recommendations which willaddress a number of problems confronting our civil service system andare filed with this report for consideration in the 1981 LegislativeseSSiOn.

Respectfully submitted,

COMMISSION MEMBERSHIP

Sen. SAMUEL ROTONDI, ChairmanRep. NICHOLAS J. BUGLIONE, ChairmanSen. SHARON M. POLLARD, Vice ChairmanRep. THOMAS R. LUSSIER, Vice Chairman

Rep. DAVID B. COHENRep. DENNIS J. DUFFINRep. JOHN H. FITZPATRICKRep. BARNEY FRANKRep. HADEN G. GREENHALGHRep. ANDREW S. NATSIOSRep. THOMASP. WHITET. DUSTIN ALWARDJOSEPH L. DELOREY

THEODORE DIMAUROJOSEPH M. DUFFYPATRICIA G. FACEYJOHN W. HANSONRICHARD T. LEARYDA VID MARCHANDSUSANNE TOMPKINSPETER P. WRIGHT

4 HOUSE .;... No~ 1000 [January

AN ACT PROVIDING FOR CERTAIN IMPROVEMENTS OF THE PERSONNEL

ADMINISTRATION IN THE COMMONWEALTH AND ITS POLITICAL SUB­

DIVISIONS.

1 Whereas, The deferred operation of this act would tend to2 defeat its purpose which is, in part, to increase the efficiency and3 effectiveness of personnel management and to improve the civil4 service system within the commonwealth, it is hereby declared to5 be an emergency law, necessary for the immediate preservation of6 the public safety and convenience.

Be it enacted by the Senate and House ofRepresentatives in GeneralCourt assembled, and by the authority of the same, as follows:

1 SECTION I. The first paragraph of section 4A of chapter 7 of2 the General Law~, as most recently amended by section 2 of3 chapter 579 of the acts of 1980, is hereby further amend~d by4 striking out the first sentence and inserting in place thereof the5 following sentence: .-6 The executive office for administration and' finance shall in­7 elude: a purchasing agent's division, in fharge of a purchasing8 agent, who shall have the rank of a deputy commissioner and shall9 be appointed by the governor for a term coterminous with that of

10 the governor, and shall receive a salary of thirty-five thousand andII fifty-three dollars; a comptroller's division, in charge of a comp­.12 tro~ler, who shall have the rank of deputy commissioner and ,shall13 be appointed by the governor for a term coterminous with th~t of14 the governor; a division of employee relations, headed by a deputy15 commissioner for employee relations; a fiscal affairs division,16 headed by a deputy commissioner for central services; a depart­17 ment of revenue, headed by the commissioner of revenue; and a18 department of personnel administration, in charge of a personnel19 administrator, who shall have the rank of commissioner.

y1981] HOUSE - No. 1000 5

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I SECTION 2. The third paragraph of section 4H of said chapter2 7, as appearing in section 3 of chapter 1229 of the acts of 1973, is3 hereby amended by adding the following two sentences: - The4 chief hearing officer shall assign two hearing officers to the civil5 service commission appointed under section four. Said officer shall6 serve under the direction, supervision and control of the commis­7 sion and shall be utilized to expedite appeals to the commission.

I SECTION 3. Said chapter 7 is hereby further amended by strik­2 ing out section 41, as most recently amended by section 33 of3 chapter 234 of the acts of 1977, and inserting in place thereof the4 following section: - '5 Section 41. There shall be within the executive office for admin­6 istration and finance, but not under it~ supervision or control, a7 commission to be known as the civil service commission, consisting8 of five members, one of whom because of vocation, employment,9 occupation or affiliation, can be classified as a bona fide represent-

10 ative of labor.II Upon the expiration of the term of office of a commissioner of12 the civil service commission, his successor shall be appointed by the13 governor for five years; provided, however, that if such successor is14 not appointed within sixty days of the expiration of the term of15 office of a commissioner, the said commissioner shall be deemed to16 be reappointed to a full term. Not more than three of such members17 of said commission shall be members of the same political party,18 and, of the members .of said commission who are enrolled as19 members of a political party on the voting list used at the primaries,20 not more than a majority of such members shall be of the same21 political party. The governor shall, from time to time, designate22 one of the members as chairman. The chairman shall receive a23 salary of twenty-eight thousand dollars and each member shall24 receive a salary of twenty-five thousand dollars. Each member of25 the commission shall be a person of ability and experience in26 personnel management and shall devote his entire time during27 ordinary business hours to the duties of his office.28 Meetings of the commission shall be held at such time and29 location as it may determine and the commission shall meet upon30 the request of the persollIlel administrator. The commission shall

6 HOUSE - No. 1000 [January

31 in its rules of practice and procedure provide for the conduct of32 hearings throughout the commonwealth where it would best serve33 the interested parties.34 Said commission or any member thereof, or the personnel ad­35 ministrator, may require in connection with the activities author­36 ized by law any official or employee of the department of person­37 riel administration to give full information and to provide all38 papers and records relating to any official act performed by him.

1 SECTION 4. Section 4J of said chapter 7, (,is appearing in2 section 8 of chapter 835 of the acts of 1974, is hereby amended by3 striking out the first three sentences and inserting in place thereof4 the following nine sentences:-5 There shall be within the department of personnel administra­6 tion a division of management services, a division of information7 services, and a division of technical services. Each division shall be8 headed by a deputy commissioner. There shall be within each9 division of the department of personnel administration no more

10 than three bureaus. Each bureau shall be headed by a bureauII director. Each deputy commissioner and each bureau director shallJ2 be appointed by the personnel administrator with the approval of13 the secretary of administration and finance, and may be removed14 in like manner. Each deputy commissioner and each bureau direc­J5 tor shall be a person of ability and experience and shall devote his16 entire time to the duties of his office; provided that the deputy17 commissioners and bureau directors shall not be subject to section18 nine A of chapter thirty or chapter thirty-one. The personnel19 administrator shall appoint, with the approval of the secretary of20 administration and finance, a deputy personnel administrator who21 shall have the rank of first deputy commissioner. The deputy22 personnel administrator shall be a person of ability and experience23 and shall devote his entire time to the duties of his office and shall24 not be subject to the provisions of said section nine A of said25 chapter thirty or said chapter thirty-one. The deputy administrator26 shall exercise such authority and discharge such duties as the27 personnel administrator may from time to time delegate to him;28 and in the absence or incapacity of the personnel administrator or29 in the event of a vacancy in the position of personnel administrator,30 the said deputy personnel administrator shall act as the personnel

1981] HOUSE - No. 1000 7

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administrator until the absence or incapacity shall have terminatedor vacancy shall have been filled.

SECTION 5. Section 4K of said chapter 7, as so appearing, ishereby amended by striking out the sixth sentence and inserting inplace thereof the following sentence: - The personnel administra­tor shall consult with the board on the promulgation of rules andregulations and on the administration of the merit system estab­lished under chapter thirty-one and chapter thirty-one A insofar asthey relate to the cities and towns of the commonwealth.

SECTION 6. Section 6F of said chapter 7, inserted by section Iof chapter 500 of the acts of 1974, is hereby amended by strikingout the first sentence and inserting in place thereof the followingsentence: - There shall be a coordinator of flexible hours employ­ment within the department of personnel administration who shallwork on the development, implementation and oversight of plansfor the utilization, within all executive agencies, of persons whochoose to be employed for a reduced number of hours per week andfor the recruitment of such persons for civil service and non-civilservice employment.

SECTION 7. Section 28 of said chapter 7, as most recentlyamended by section 10 of chapter 835 of the acts of 1974, is herebyfurther amended by striking out the fifth paragraph and insertingin place thereof the following two paragraphs: -

All rules, amendments thereto, and determinations made inaccordance with this section shall be open to public inspection inthe files of the department, and copies thereof shall be available toofficers and employees of the commonwealth upon request.

Said administrator may enter into agreements with the federalgovernment and other public agencies, departments, boards, com­missions, divisions, bureaus, authorities or other instrumentalitiesof the commonwealth for the conduct of training for state manage­rial personnel.

SECTION 8. Section 30 of said chapter 7, as most recentlyamended by section 14 of said chapter 835, is hereby further

STATEMENT OF POLICY

SECTION 10. Chapter 31 of the General Laws, as most recent­ly amended by chapter 268 of the acts of 1979, is hereby furtheramended by inserting before section one contained therein thefollowing:

amended by striking out the first sentence and inserting in placethereof the following sentence: - The department of personneladministration shall collect at least once in every fiscal year suchinformation relative to certain officials and employees of the com­monwealth as shall be furnished to it under section thirty-eight ofchapter thirty, which shall cover the fiscal year preceding.

SECTION 9. Section 29A of chapter 29 ofthe General Laws, asmost recently amended by section 30 of said chapter 835, is herebyfurther amended by striking out the third sentence and inserting inplace thereof the following sentence: -

Such rules and regulations shall be open to public inspection inthe department of personnel administration, and copies thereofshall be available to any person upon request.

[JanuaryHOUSE - No. 1000

JVhereas, The numerous governmental activities performed bystate and local government are critical to the public health, welfareand safety of the citizens of the commonwealth and such activitiesare financed by state and local funds, a legitimate state interestexists in developing a high calibre of dedicated public servant instate and local government.

Therefore, The quality of public service in all levels of govern­ment, subject to the provisions of this chapter, shall be in accord­ance and consistent with the following basic merit principles:

I.) by recruiting, selecting and advancing employees on the basisof their relative ability, knowledge and skills including open con­sideration of qualified applicants for initial appointment;

2.) by providing equitable and adequate compensation for allemployees;

3:') by providing training and development for employees, asneeded, to assure the advancement and high quality performanceof such employees;

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1981] HOUSE - No. 1000 9

23 4.) by retaining employees on the basis of adequacy of their24 performance, correcting inadequate performance, and separating25 employees whose inadequate performance cannot be corrected;26 5.) by assuring fair treatment of all applicants and employees in27 all aspects of personnel administration without regard to political28 affiliation, race, color, age, national origin, sex, sexual preference,29 or religious creed and with proper regard for privacy, basic rights30 outlined in this chapter and constitutional rights as citizens, and;31 6.) by assuring that all employees are protected against coercion32 for political purposes, and are protected from arbitrary and capri­33 cious actions.

I SECTION 11. Chapter 31 of the General Laws is hereby2 amended by striking out section I, as amended by section I of3 chapter 77 of the acts of 1979, and inserting in place thereof the4 following section: -5 Section 1. In this chapter, the following words and phrases shall6 have the following meanings, unless the context requires other­7 WIse:8 "Administrator", the personnel administrator of the department9 of personnel administration.

10 "Appointing authority", any person, board or commission withII power to appoint or employ personnel in civil service positions.12 "Career executive service positions", those managerial and con­13 fidential positions so designated in accordance with the provisions14 of section forty-eight A.15 . "Certification", the designation to an appointing authority by16 the administrator, pursuant to the civil service law and rules, of the17 names of persons from an eligible list or register who qualify for18 appointment to civil service positions.19 "Civil service appointment", an original appointment or a pro­20 motional appointment made pursuant to the provisions of the civil21 service lawand rules.22 "Civil service employee", a person holding a civil service ap-23 pointment.24 "Civil service law", this chapter.25 "Civil service law and rules", this chapter and the rules promul-26 gated pursuant to this chapter.

10 HOUSE - No. 1000 [January 1~

27 "Civil service position", an office or position, appointment to28 which is subject' to the requirements of the civil service law and29 rules.30 "Commission", the civil service commission of the common-31 wealth.32 "Department", the department of personnel administration.33 "Departmental unit", a board, commission, department, or any34 division, institutional component, or other component of a depart­35 ment established by law, ordinance, or bylaw.36 "Disabled veteran", any veteran, as defined in this section, who

'37 (I) has a continuing service-incurred disability of not less than ten38 percent based on wartime service for which he is receiving or39 entitled to receive compensation from the veterans administration40 or, provided that such disability is a permanent physical disability,41 for which he has been retired from any branch of the armed forces42 and is receiving or is entitled to receive a retirement allowance, or43 (2) has a continuing service-incurred disability based on wartime44 service for which he is receiving or is entitled to receive a statutory45 award from the veterans administration.46 "Discharge", the permanent, involuntary separation of a person47 from his civil service employment by his appointing authority.48 .. Eligible list", a list established by the administrator, pursuant to49 the civil service law and rules, of persons who have passed an50 examination; or a re-employment list established pursuant to sec­51 tion forty; or a list of intermittent or reserve fire or police officers as52 authorized under the provisions of section sixty; or any other list53 established pursuant to the civil service rules from which certifica­54 tions are made to appointing authorities to fill positions in the55 official service.56 "Entrance requirements", the prerequisites which an applicant57 must satisfy to be eligible to take an examination.58 "Entry level", a position having a title which is the lowest in a59 series of titles in a municipal or in the state classification plan,60 whether or not higher titles in same job series exist in the same61 department.62 "Essay question", a question in an examination requiring an63 applicant to compose a written response of one or more sentences64 or requiring other than a limited response or short answer.

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6S .. Executive office", an office established pursuant to chapter six66 A or chapter seven.67 ..Labor service", the composite of all civil service positions68 whose duties are such that a suitable selection for such positions69 may be made based upon registration pursuant to section twenty­70 eight, rather than by competitive examination.71 "Layoff', a temporary discontinuance ofemployment for lack of72 work or lack of money.73 "Mentally retarded person", a person certified as being mentally74 retarded by the Massachusetts rehabilitation commission.75 "Official service", tht; composite of all civil service positions not76 in the labor service.77 "Original appointment", an appointment pursuant to section six78 or section twenty-eight.79 "Performance evaluation", an evaluation of an employee's per­80 formance in accordance with the standards outlined in section six81 A to six C, inclusive.82 "Permanent employee", a person who is employed in a civil83 service position (I) following an original appointment, subject to84 the serving of a probationary period as required by law, but85 otherwise without restriction as to the duration of his employment;86 or (2) following a promotional appointment, without restriction as87 to the duration of his employment.88 "Promotional appointment", an appointment pursuant to sec­89 tion seven or in the labor service, pursuant to the civil service rules,90 of a person employed in one title to a higher title in the same or a91 different series, or to another title which is not higher but where92 substantially dissimilar requirements prevent a transfer pursuant93 to section thirty-five.94 "Register", a list established by the administrator pursuant to95 the civil service law and rules, from which certifications are made96 to appointing authorities to fill civil service positions in the labor97 serVice.98 "Reinstatement", the restoration of an employee to a position99 pursuant to the civil service law and rules.

100 "Requisition", a request by an appointing authority to the ad­101 ministrator to certify names of persons for appointment to civil102 service positions.

12 HOUSE - No. 1000 [January

103 "Resignation", a permanent voluntary separation from service.104 "Roster", a list of permanent employees in a departmental unit,105 arranged according to seniority, and of employees appointed pur­106 suant to temporary or provisional appointments.107 "Rules", the rules promulgated by the personnel administratorI08 pursuant to civil service law.109 "Seasonal position", a position requiring the services of an110 incumbent, on either a full-time or less than full-time basis, begin­III ning no earlier than May first and ending no later than September112 thirtieth or beginning no earlier than November first and ending noI13 later than April first in any twelve-month period; provided, that114 the following position shall not be deemed to be seasonal: (I) a115 position in the police force or fire force of a city or town, (2) a116 position in the detective force of the state department of public117 safety, in the capitol police force, or in the police force of the118 metropolitan district commission, and (3) a permanent position for119 which funds have been appropriated or are available on a perma­120 nent basis. Notwithstanding any provision of this chapter to the121 contrary, a position of a police officer in a police department122 within the counties of Barnstable, Bristol, Dukes, Essex, Middle­123 sex, Nantucket, Plymouth and Suffolk employed on either a full­124 time or less than full-time basis, beginning not earlier than May first125 and ending no later than September thirteenth shall be deemed to126 be a seasonal position and shall be exempt from the provisions of127 this chapter.128 "Series", a vertical grouping of related titles so that they form a129 career ladder.130 "Suspension", a temporary, involuntary separation of a person131 from his civil service employment by,the appointing authority.132 "Temporary employee", a person who is employed in a civil133 service position, after a civil service appointment, for a specified134 period of time or for the duration of a temporary vacancy.135 "Tenured employee", a civil service employee who is employed136 following (I) an original appointment to a position on a permanent137 basis and the actual performance of the duties of such position for138 the probationary period required by law or (2) a promotional139 appointment on a permanent basis.

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"Title", a descriptive name applied to a position or to a group ofpositions having similar duties and the same general level of re­sponsibility.

"Veteran", any person who:(I) comes within the definition of a veteran appearing in the

forty-third clause of section seven of chapter four; or,(2) come$ within such definition except that instead of having

performed "wartime service" as defined therein, he has beenawarded the congressional medal of honor or one of the followingcampaign badges: Second Nicaraguan Campaign, Yangtze Serv­ice, Navy Occupation Service, Army of Occupation or Medal forHumane Action; or, '

(3) is a person eligible to receive the congressional medal ofhonor or one of the campaign badges enumerated in clause (2) ofthis paragraph and who presents proof of such eligibility which issatisfactory to the administrator.

"Vietnam veteran", shall mean (1) any person, who performedactive service in the armed forces ofat least ninety days, at least oneday of which was during the period commencing August fifth,nineteen hundred and sixty-four and ending on May seventh,nineteen hundred and seventy-five, both dates inclusive, or (2) anyperson who served at least one hundred and eighty days of activeservice in the armed forces of the United States during the periodbetween February first, nineteen hundred and fifty-five and Au­gust fourth, nineteen hundred and sixty-four, except that any suchperson who served in said armed forces during said period and wasawarded a service-connected disability or a Purple Heart, or whodied in said service under conditions other than dishonorable, shall

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be deemed to be a veteran notwithstanding his failure to completeone hundred and eighty days of active service.

"Active service in the armedforces", shall not include active dutyfor training in the army national guard or air national guard oractive duty for training as a reservist in the armed forces of theUnited States.

I SECTION 12. Said chapter 3 I is hereby further amended by2 striking out section 2, as appearing in section I I of chapter 393 of3 the acts of 1978, and inserting in place thereof the following4 section:-

14 HQUSE - No.tOOO [January

5 Section 2. In addition to its other powers and duties, the com-6 mission shall have the following powers and duties:7 ' (a) To conduct investigations at its discretion or upon the writ­8 ten request of the governor, the executive council,the general court9 or either of its branches, the administrator, an aggrieved person, or

10 by ten persons registered to vote in the commonwealth.II (b) To hear and decide appeals by a person aggrieved by any12 decision, action, or failure to act by the administrator, except as13 limited by the provisions of section twenty-four relating to the14 grading of examinations; provided that no decision or action of the15 administrator shall be reversed or modified nor shall any action be16 ordered in the case of a failure of the administrator toact, except by17 an affirmative vote of at least three members of the commission,18 and in each such case the commission shall state in the minutes of19 its proceedings the specific reasons for its decision.20 No person shall be deemed to be aggrieved under the provisions21 of this section unless such person has made specific allegations in22 writing that a decision, action, or failure to act on the part of the23 administration was in violation of this chapter, the rules or basic24 merit principles promulgated thereunder and said allegations must25 show that such person's rights were abridged, denied, or prejudiced26 in such a manner as to cause actual harm to the person's employ­27 ment status.28 Any person appealing a decision, action or failure to act of the29 administrator shall file a copy of the allegations which form the30 basis of the aggrieved person's appeal with the administrator with­31 in three days of the filing of such allegations with the commission32 and provided further such person shall not have standing before33 the commission until such filing takes place. Said allegations shall34 clearly state the basis of the aggrieved person's appeal, and make35 specific references- to the provisions of this chapter or the rules of36 the department or basic merit principles promulgated thereunder37 which are alleged to have been violated, together with an explana­3g tion of how the person has been harmed.39 Hearings on any appeal before the commission may be held40 before less than a majority of its members, or the chairman may41 assign one or more members to hold such hearings and to report his42 or their findings of fact and recommendations to the commission43 for its action.

y1981] HOUSE - No. 1000 IS

44 The standard for review of the decision of the administrator shall45 be in appeals of any decision of the administrator applying stand­46 ards established by law or rule to a fact situation, no decision shall47 be reversed by the commission except upon a finding that the48 administrator's decision was not based upon a preponderance of49 evidence in the record.50 (c) In accordance with the procedures set forth in paragraph (h),51 except that all references therein to the administrator shall be taken52 to mean the local appointing authority or his designated represent­53 ative to hear and decide appeals by persons aggrieved by decisions,54 actions, or failure to act by local appointing authorities in accord­55 ance with the provisions of section nine of chapter thirty-one A.56 (d) To conduct hearings regarding municipal audits conducted57 by the administrator in accordance with provisions of chapter58 thirty-one A.59 (e) To hear and decide appeals concerning performance evalua-60 tions, as provided by this chapter and chapter thirty-one A.6 I (f) To review rules and changes in rules proposed by the admin­62 istrator. In the event the commission determines that any proposed63 rule of the administrator violates the basic merit principles out­64 lined in this chapter, it may within fifteen days of receipt of such65 proposed rule change, by a three-fifths vote, disapprove such66 proposed rule.67 (g) To recommend any proposed rule changes to the adminis­68 trator it feels would be consistent with basic merit principles out­69 lined in this chapter and would be in the public interest.70 (h) To adopt such rules of procedure as necessary for the con-71 ,duct of its proceedings.

I SECTION 13. Said chapter 3 I is hereby further amended by2 striking out section- 3, as so appearing, and inserting in place3 thereof the following section: -4 Section 3. Subject to the provisions of paragraph (f) of section5 two, the administrator shall make and amend rules which shall6 regulate the recruitment, selection, training and employment of7 persons for civil service positions. Such rules shall include provi­8 sions for the following:9 (a) Establishment of civil service series and titles, provided that

16 HOUSE - No. 1000 [January 1

10 for employment in the service of the commonwealth such seriesII and titles shall be consistent with those established pursuant to12 section forty-five of chapter thirty.13 (b) Placement of civil service positions in the official or labor14 service.15 (c) Open competitive and other examination to test the practical16 fitnes~ of applicants.17 (d) Selection of persons for positions and employment in ac­18 cordance with the results of examination, or in the order of appli­19 cation, or otherwise.20 (e) Promotional appointments, on the basis of merit as deter­21 mined by examination, performance evaluation, seniority of serv­22 ice or any combination of factors which fairly test the applicant's23 ability to perform the duties of the position as determined by the24 administrator.25 (I) Preferences to veterans in original and promotional appoint­26 ments.27 (g) Subject to prior preference to disabled veterans, preference28 to blind persons in the employment by any state department,board29 or commission of typists to take dictation solely from dictating30 machines.31 (h) Transfers within and between departmental units.32 (0 Delegation of the administration of functions of the civil33 service system, so far as practicable, to the various state agencies34 and cities and towns of the commonwealth, subject to the approval35 of the appropriate municipal executive and legislative bodies.36 (j) In the development of examination procedures shall consult37 with representatives of labor and professionals in the field to38 increase emphasis upon aptitudes relevant to performing the posi­39 tion to be tested.40 (k) The establishment and directionof a career executive service41 program.42 (I) The development of recruitment program, and43 (m) The oversight responsibility for development of training44 programs in the various state agencies of the commonwealth.

I SECTION 14. Said chapter 31 is hereby further amended by2 striking out section 4, as so appearing, and inserting in place3 thereof the following section:-

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4 Section 4. A new rule of the administrator and any amendment5 to an existing rule shall not be effective until after a public hearing6 relative to such change has been held by the administrator at least7 thirty days prior to such proposed rule change and until such8 change has been reviewed by the commission. Failure of the com­9 mission to reject by majority vote of all members such change

10 within fifteen days of submission by the administrator shall au­II thorize the administrator to issue such change. Not earlier than12 thirty nor later than fifteen days before such hearing the adminis­13 trator shall send notice thereof to each member of the general14 court, to the mayor or city manager of each city and the selectmen15 of each town to which such rule or change relates, and shall also16 publish such notice in one or more newspapers. Notices of the17 hearing shall also be sent, within the same period, to the clerks of18 the several cities and towns who shall post them in the city or town19 halls and other conspicuous places. There shall be posted not less20 than three copies of such notice in every town and not less than one2I per ward in each city. Such notices shall contain information as to22 where copies of the proposed rule or change in rule may be ob­23. tained. After the hearing provided for by this paragraph, the24 administrator may issue such new rule or such change in an exist­25 ing rule.26 The administrator, after the expiration of the review period27 without rejection, shall forthwith print such change and send a28 copy to the mayor of each city, the selectmen of each town, and to29 state appointing authorities to which such change relates, and to30 each member of the general court, and shall publish such new rule31 or change in rule in one or more newspapers. Such publication32 shall specify the effective date of such new rule or change in rule,33 which shall be not less than thirty days subsequent to the date of34 such publication.35 If a change is required because of an act of the general court, the36 administrator may issue such change without holding a public37 hearing; provided,: however, that the provisions of this section38 relative to the publishing of changes shall apply to such change.

1 SECTION 15. Section 5 of said chapter 31, as so appearing, is2 hereby amended by striking out paragraph (I) and inserting in

18 HOUSE - No. 1000 [January

3 place thereof the following seven paragraphs:-4 (I) To delegate the administrative functions of the civil service5 system, so far as practicable, to the various state agencies and cities6 and towns of the commonwealth.7 (m) To act as a coordinator and technical assistant in the devel­8 opment and training programs to the various state agencies and9 cities and towns of the commonwealth.

10 (n) To establish a schedule of fees to be collected for applicantsI I taking non-promotional civil service examinations, and to provide12 for the waiver of such fees in appropriate instances.13 (0) To develop in conjunction with representatives of labor the14 procedures and criteria for the implementation of a performance15 evaluation system.16 (p ) To establish and act as coordinator of a career executive17 service program for the employees of the commonwealth.18 (q) To establish with the department a bureau which shall pro­19 vide technical assistance to state agencies and cities and towns of20 the commonwealth. Such bureau shall also develop an audit capac­21 ity to monitor compliance with civil service law and rules by state22 agencies and cities and towns of the commonwealth.23 (r) To provide training programs and technical expertise on the24 substantive and procedural issues involved in disciplinary actions25 involving the various state agencies.

I SECTION 16. Said chapter 31 is hereby further amended by2 inserting after section 6 the following three sections: -3 Section 6A. The administrator shall, subject to the provisions4 of paragraph (0) of section five, establish a program for the imple­5 mentation of a performance evaluation 'system for all civil service6 employees. The evaluation system shall, to the maximum extent7 possible, evaluate on the basis of objective criteria, the job perfor­8 mance .of each such employee, and the results of such evaluations9 may be utilized by the department or the appointing authority in

10 future personnel determinations.I I The administrator shall supervise the general implementation of12 the performance evaluation systems and in conjunction with repre­13 sentatives of labor determine their form, method and general14 criteria. Upon the establishment of the general format and criteria

1981] HOUSE - No. 1000 19

15 for such evaluation system, such format and criteria shall be adopt­16 ed as rules by the administrator in accordance with the provisions17 of section four.18 Such evaluation system shall include, but not be limited to, the19 following general provisions:20 (1) An employee serving in a civil service position may be evalu­21 ated no more than twice each year by the employee's immediate22 supervIsor.23 (2) All performance evaluations shall be in writing and shall be24 maintained as part of the employee's records by his appointing25 authority until such employee leaves civil service employment or as26 otherwise prescribed by the administrator.27 (3) Prior to each evaluation period, the immediate supervisor28 shall discuss with the employee the general performance dimen­29 sions and the procedures to be utilized in evaluating the employee's30 performance. The supervisor shall inform the civil service em­31 ployee that such evaluation may be utilized by the department or32 the appointing authority in future personnel determinations.33 (4) After such evaluation has been conducted, the immediate34 supervisor shall confer wiht the employee concerning the evalua­35 tion. Upon the completion of the employee's review of such evalua­36 tion, the employee shall sign the evaluation indicating whether he37 agrees or disagrees with the evaluation. If the employee so desires,38 he or, with the employee's consent, his collective bargaining agent,39 may be provided a copy of such evaluation.40 (5) Within ten days, excluding Saturdays and Sundays, of com­41 pletion of such evaluation, an employee, except an employee serv­42 ing during his probationary period, may request a review or appeal43 of the evaluation. Such appeal of the evaluation may be conducted44 under the terms of the grievance procedure outlined in the em­45 ployee's respective collective bargaining agreement or through the46 procedure outlined in section six C.47 Section 6B. The weight given to performance evaluation in pro­48 motional decisions for civil service positions shall be determined by49 the administrator in conjunction with representatives of collective50 bargaining units containing the titles to be tested.51 Following such determination but no later than fifteen days52 prior to the distribution of the examination notice, the administra-

20 HOUSE - No. 1000 [January

53 tor shall notify the participating collective bargaining representa­54 tives, in writing, of his determination as to the appropriate weight to55 be given to performance appraisals in the making of the promo­56 tional decision involved. This written notification shall include57 specific justification for the determination made and for the rejec­58 tion of alternate proposals, if any.59 The participating collective bargaining representatives shall60 have fifteen days in which to review the determination, to request61 review of proposed revisions, to request further consultation or to62 seek any combination of the foregoing. The administrator shall63 grant all such requests and promptly provide a written explanation64 of his further determination if requested by any such collective65 bargaining representative.66 The provisions of this section shall not apply to any employee67 who is excluded from collective bargaining in accordance with the68 provisions of section one of chapter one hundred and fifty E.69 Section 6C. A civil service employee, who receives an evaluation70 with which he disagrees, may appeal the results of such evaluation71 through the grievance procedure contained in the employee's re­72 spective collective bargaining agreement or throught the procedure73 outlined in paragraphs (a) to (c), inclusive. Upon the employee's74 selection of an option in appealing the said evaluation outlined in75 this section, it shall be the sole and exclusive remedy of such76 employee and shall supersede any provisions of applicable law.77 (a) Within ten days after the employee has reviewed the original78 evaluation, he may appeal the evaluation to a neutral party selected79 by the appointing authority to review the evaluation.80 (b) Within ten days of receipt of a decision on employee's appeal81 outlined in paragraph (a), the emplbyee or the employer may82 appeal an evaluation to a three-member panel developed by the83 appointing authority, in conjunction with representatives oflabor.84 (c) Within ten days receipt of a decision on an appeal provided85 for in paragraph (b) the employer or the employee may further86 appeal the evaluation to the civil service commission. The commis­87 sion,shall, within twenty-one days after the close of such hearing or88 the evaluation, render a written decision and send notice thereof to89 all parties concerned.

y 1981] HOUSE - No. 1000 21

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90 Saturdays, Sundays, and legal holidays shall not be counted in91 the computation of any period of time specified in this section.

I SECTION 17. Said chapter 31 is hereby further amended by2 striking out section 16, as appearing in section II of chapter 393 of3 the acts of 1978, and inserting in place thereof the following4 section:-5 Section 16. Examinations shall be conducted under the direc­6 tion of the administrator, who shall determine their form, method7 and subject matter. Examinations shall fairly test the knowledge,8 skills and abilities which can be practically and reliably measured9 and which are actually required to perform the primary or domi-

10 nant duties of the position for which the examination is held. TheI I administrator shall, in development of examinatIOns, consult with12 representatives of labor and professionals in the field to increase13 emphasis upon aptitudes relevant to performing the positions to be14 tested.15 The administrator shall, subject to the provisions of section)6 twenty-six, where applicable, examine, qualify, and rank appli­17 cants for original or promotional appointments solely on the basis)8 of training, experience, education or other criteria· considered19 appropriate by the administrator (a) for a scientific or professional20 position for which education at or above the master's degree level2) is required by statute or under authority thereof; (b) when the22 major duty ofa position is such that applicants are required to have23 successfully completed a course in emergency medical care pursu­24 ant to the provisions of chapter one hundred and eleven C; (c) when25 the major duty ofa position is such that applicants are required to26 possess a certificate, registration or license issued after examina­27 tion by a state board of registration or examiners or by a profes­28 sional association specified by the administrator. A person who29 has taken a civil service examination pursuant to this paragraph30 shall not have recourse to the review procedures set forth in section31 twenty-two.

) SECTION )8. Section 20 of said chapter 31, as so appearing, is2 hereby amended by inserting after the first sentence the following

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22 HOUSE - No. 1000 [January

3 sentence: - Each such application for a nonpromotional examina­4 tion shall include a fee not exceeding ten dollars, which may be5 waived by the administrator, subject to the rules adopted pursuant6 to section four.

I SECTION 19. Said chapter 31 is hereby further amended by2 striking out section 24, as so appearing, and inserting in place3 thereof the following section: -4 Section 24. An applicant may appeal to the commission from a5 decision of the administrator made pursuant to section twenty­6 three relative to (a) the marking of the applicant's answers to essay7 questions; or (b) a finding that the applicant did not meet the8 entrance requirements for the examination. Such appeal shall be­9 filed no later than seventeen days after the date of mailing of the

10 decision of the administrator. The commission shall determine theII form of the petition for appeal, provided that the petition shall12 include a brief statement of the allegations presented to the admin­13 istrator for review. After acceptance of such an appeal, the com­14 mission shall conduct a hearing and, within thirty days, render a15 decision, and send a copy of such decision to the applicant and the16 administrator.17 The commission shall refuse to accept any petition for appeal18 unless the request for r~View, which was the basis for such petition,19 was filed in the required time and form and unless a decision on20 such request for review has been rendered by the administrator. In2 J deciding an appeal pursuant to this section, the commission shall22 not allow credit for training or experience unless such training or23 experience was fully stated in the training and experience sheet24 filed by the applicant at the time of the examination.

I SECTION 20. Said chapter 31 is hereby further amended by2 striking out section 26, as most recently amended by chapter 554 of3 the acts of 1979, and inserting in place thereof the following4 section:-5 - Section 26. The administrator shall, in establishing the names6 of applicants who have qualified in a civil service examination for7 original appointment in the official service, increase the grade8 received in such examination of:

1981] HOUSE - No. 1000 23

9 (1) a disabled veteran, as defined in section one, and who has a10 service connected disability of ten per cent or more, ten points;II (2) the spouse or single parent of a veteran who was killed in12 action or died from a service connected disability, incurred in13 wartime service, upon presenting proof from official sources of14 such facts, satisfactorily to the administrator and proof that eachIS spouse or parent has not remarried, ten points;16 (3) a veteran, as defined in section one, five points.17 The administrator may require the disabled veteran to present a18 certificate of a physician, approved by the administrator, that his19 disability is not such as to incapacitate him from the performance20 of the duties of the position for which he is eligible. The cost of a21 physical examination of such veteran for the purpose of obtaining22 such certificate shall be borne by the commonwealth.23 A person who has received a congressional medal of honor may24 apply to the administrator for appointment to or employment in a25 civil service position without examination. In such application he26 shall state under penalties of perjury the facts required by the rules.27 Age, loss of limb or other disability which does not, in fact,28 incapacitate shall not disqualify him for appointment or employ­29 ment under this section. Appointing officers may requisition for30 the names of any such person and appoint or employ any of them.31 A person who has received a distinguished service cross or navy32 cross may, upon the recommendation of the administrator and33 with the approval of the commission, be appointed under the same34 conditions provided in this paragraph for a person who has re­35 ceived a medal of honor.36 An appointing authority shall appoint a veteran in making a37 provisional appointment under section twelve, unless such ap­38 pointing authority shall have obtained from the administrator a list'39 of all veterans who, within the twelve months next preceding, have40 filed applications for the kind of work called for by such provision­41 al appointment, shall have mailed a notice of the position vacancy42 to each of such veterans and shall have determined that none of43 such veterans is qualified for or is willing to accept the appoint­44 ment.45 Notwithstanding any other provision of this chapter or any46 other law to the contrary, a son or daughter of a firefighter or

24 HOUSE - No. 1000 [January

47 police officer who passes the required written and physical exami­48 nation for entrance to the fire or police service shall, if such49 firefighter or police officer was killed or died of injuries in the50 performance of his duty as provided in section one hundred of51 chapter thirty-two, have his or her name placed in the first position52 on the eligible list for appointment to such fire or police service, but53 not both such lsits.

I SECTION 21. Section 27 of said chapter 31, as so appearing, is2 hereby amended by adding the following paragraph: -3 It shall be the right of all citizens to work on an equal basis in4 public employment, and it shall be an unl~wfulpractice, because of5 sexual preference of any individual, to refuse to hire or employ or6 to bar or discharge from employment such individual in compensa­7 tion or in terms, conditions or privileges of employment, unless on8 a bona fide occupational qualification.

I SECTION 22. Section 34 of said chapter 31, as so appearing, is2 hereby amended by inserting after the first paragraph the following3 paragraph:-4 During such employee's probationary period, the employee may5 be subject to a performance evaluation during the employee's first6 two months of service and a second such evaluation may be con­7 ducted at least one month prior to employee's sixth month anniver­8 sary date of service. The appointing authority may extend the9 probationary period for a period of two months if the second

10 evaluation of the probationary employee is unsatisfactory. SuchII evaluation may be utilized by the appointing authority, but in no12 instance shall the appointing authority be required to consider the13 results of such evaluation in a determination of granting such14 employee permanent or tenured status. Nothing contained herein15 shall require an appointing authority to evaluate a probationary16 employee and in no such instance shall such evaluation grant such17 probationary employee any greater rights than those contained in18 this section.

-I"

SECTION 23. Section 39 of said chapter 31, as so appearing, ishereby amended by striking out the last sentence.

.ry 1981] HOUSE - No. 1000 25

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1 SECTION 24. Section 42 of said chapter 31, as amended by2 chapter 196 of the acts of 1979, is hereby further amended by3 inserting after the first sentence the following sentence: - In the4 event the commission determines that such matter has been pre­5 viously resolved or litigated with respect to such employee, in6 accordance with the provision of section eight of chapter one7 hundred and fifty E, or is presently being resolved in accordance8 with such section, the commission shall forthwith dismiss such9 complaint.

I SECTION 25. Said chapter 31 is hereby further amended by2 striking out section 43, as appearing in section 11 of chapter 393 of3 the acts of 1978, and inserting in place thereof the following4 section:-5 Section 43. If a person aggrieved by a decision ofan appointing6 authority made pursuant to section forty-one shall, within ten days7 after receiving written notice of such decision, so request in writing8 to the commission, he shall be given a hearing before a member of9 the commission or some disinterested person designated by the

10 chairman of the commission. Said hearing shall be commenced in11 not less than three nor more than ten days after the filing of such12 request and shall be completed within thirty days after such filing13 unless, in either case, both parties shall otherwise agree in a writing14 filed with the commission, or unless the member or hearing officer15 determines, in his discretion, that a continuance is necessary or16 advisable. In any disciplinary action or discharge where the sub­17 stance of such action is based on a performance evaluation con­18 ducted in accordance with the provisions specified in sections six A19 to six C, inclusive, and which has been previously determined20 pursuant to section six C, the substantive matter involved in the21 evaluation shall not be open to redetermination by the commis­22 sion. Upon completion of the hearing, the member or hearing23 officer shall file forthwith a report of his findings with the commis­24 sion. Within thirty days after the filing of such report, the commis­25 sion shall render a written decision and send notice thereof to all26 parties concerned.27 If the commission determined that there was by a preponderance2~ of evidence just cause for an action taken against such employee it

26 HOUSE - No. 1000 [January

29 shall affirm the action of the appointing authority, otherwise it30 shall reverse such action and the person concerned shall be re­31 turned to his position without loss ofcompensation or other rights;32 provided, however, in any disciplinary action, discharge, appeal of33 a performance evaluation or proceeding relative to the abolition of34 a position, if the employee establishes by a preponderance of35 evidence that the said action was based upon harmful error in the36 application of the appointing authority's procedure; an error of37 law or upon any factor or conduct on the part of the employee not38 reasonably related to the fitness of the employee to perform in his39 postion the said abolition, disciplinary action or discharge or40 evaluation shall not be sustained and the person shall be returned41 to. his position without loss of compensation or other rights and in42 the case of an appeal from a performance evaluation, the matter43 shall be remanded to the appointing authority for action not44 inconsistent with the findings of the commission. The commission45 may also modify any penalty imposed by the appointing authority.46 Any hearing pursuant to this section shall be public if either47 party so requests in writing. The person who requested the hearing48 shall be allowed to answer, personally or by counsel, any of the49 charges which have been made against him.50 The decision of the commission made pursuant to this section51 shall be subject to judicial review as provided in section forty-four.52 Saturdays, Sundays and legal holidays shall not be counted in53 the computation of any period of time specified in this section.

I SECTION 26. Thethirdparagraphofsection480fsaidchapter2 31, as most recently amended by chapter 536 of the acts of 1980, is3 hereby further amended by striking out the fourteenth clause.

I SECTION 27. Said chapter 31 is hereby further amended by2 inserting after section 48 the following section: -3 Section 48A. (I) The administrator shall establish a career4 management service program for state service. In pursuance of5 such responsibility as to the career management service, and fol­6 lowing consultation with the Secretaries of the several executive7 offices and at least one public hearing, the administrator (a) shall

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8 establish and, from time to time, thereafter, amend procedures reg­9 ulating the designation, classification or reclassification of posi­

10 tions as career management service positions; (b) shall establishII and, from time to time thereafter, amend procedures regulating the12 recruitment, selection and placement of persons in career manage­13 ment service; (c) shall establish and, from time to time thereafter,14 amend policies, procedures and regulations related to the compen­15 sation and working conditions of persons employed in career man­16 agementservice positions.17 (2) The administrator may at the request of the secretary desig­18 nate positions subject to chapter thirty-one within each secretariat19 and its agencies as career management service positions; provided20 that no more than six percent of the total authorized positions in21 any secretariat shall be so designated. Upon request of the secre­22 tary of an executive office, positions exempt from this chapter on23 June thirty, nineteen hundred and eighty and which meet the24 standards set forth in clause (b) of paragraph (3) may be included in25 the career management service; provided that incumbents may26 retain rights as set forth in paragraph (4).27 (3) The administrator shall designate a position as a career28 management position if: (a) upon review of the job description29 submitted by the appointing authority in accordance with regula­30 tions promulgated by the administrator, the administrator con­31 cludes that the position meets the requirements of clause (b) the32 position is not required to be filled through appointment by the33 governor with the consent of the council, and is one in which an34 employee: (i) directs the work of an organization unit; (iz) is held35 accountable for the success of one or more specific programs or36 projects; or (iii) monitors progress toward organizational goals37 and periodically evaluates and makes appropriate adjustments to38 such goals; or (iv) supervises the work of employees other than39 personal assistants; or (v) otherwise exercises important policy­40 making, policy-determining, or other management functions.41 (4) Notwithstanding the provisions of paragraph (3), no position42 shall become part of the career management service: (a) if on June43 thirty, nineteen hundred eighty it was occupied by an employee44 who (i) has acquired rights in that position pursuant to section45 forty-one, or (ii) has rights in that position under section nine-A of46 chapter thirty, unless:

28 HOUSE - No. 1000 [January

46 (A) The incumbent requests that the position be transferred to47 the career management service and the representative ofthe collec­48 tive bargaining unit of the commonwealth of which the incumbent49 is a member supports the request of the incumbent, or50 (B) The labor relations commission determines or has deter­51 mined that the position is managerial or confidential within section52 one of chapter one hundred fifty- E, in which case the position shall53 be made a part of the career management service when a vacancy54 arises in said position.55 (b) unless, in the case of a vacant position, a position held by a56 provisional who has not acquired any rights in that position under57 section forty-one, or by a probationary employee on June thirty,58 nineteen hundred eighty, (i) the incumbent, ifthere is one, requests59 that the position be transferred to the career management service60 and the representative of the collective bargaining unit of the61 commonwealth of which the incumbent is a member supports the62 request of the incumbent, or (ii) the labor relations commission63 determines or has determined that the position is managerial or64 confidential within section one of chapter one hundred fifty-E.65 No more than thirty percent of the career management service66 positions in any secretariat shall be filled by original appointments,67 provided that the administrator may approve additional original68 appointments upon the written request of the appointing authori..69 ty.70 (5) The administrator shall annually file with the budget director71 and the house and senate committee on ways and means a listing of72 all positions designated as career management service positions.73 This filing process shall be considered part of the budget process as74 provided in section six of chapter tw'enty-nine.75 (6) The designated positions shall be included in the schedule of76 offices and positions approved by the joint committee on ways and77 means.78 (7) Selection of persons to fill positions in the career manage­79 ment service shall not be subject to any other provision of this80 chapter, section nine of chapter thirty, chapter one hundred fifty-E81 or any other laws pertaining to appointing authorities for said82 positions. All working conditions of said employees shall be deter­83 mined by the administrator.

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'y 1981] HOUSE - No. 1000 29

:0 84 (8) Persons appointed to career management service positions

~- 85 shall be appointed followingan unwritten examination, the subjectlt 86 matter of which shall be established by the administrator, in con-

87 junction with the secretary and the appointing authority and whichr- 88 shall test for: (a) demonstrated management experience, or; (b)

In 89 successful participation in a management development program11 90 approved by the Personnel Administrator, or; (c) potential for:y 91 successful performance as a career manager.

92 (9) In selecting persons to fill such positions the appointinga 93 authority shall choose from among the applicants certified by the~r 94 administrator. ,

y, 95 ' (10) Following original appointment to the career managementts 96 service, a careerappointee shall serve a probationary period of one;e 97 year. During the probationary period the career employee may notIe 98 be involuntarily removed within ninety days after appointment for

Ie 99 reasons other than misconduct, neglect of duty or malfeasance;,n 100 provided that within ninety days after appointment the career

>r 101 appointee may voluntarily return to a civil service position held102 immediately before appointment without loss of seniority or other

;e 103 rights.

s, 104 Following the initial ninety days after appointment but before

11 105 the end of the probationary period, a career management service

1- 106 employe,e removed for reasons other than misconduct, neglect of107 duty or malfeasance shall be entitled to be certified for appoint-

>r 108 ment to a civil service position similar to the position held pre-)f 109 viously from a reemployment list ahead of any open competitive

s. 110 list.lS III (11) Each agency shall, in accordance with standards estab-

112 lished by the administrator, develop a performance appraisal sys-

>f 113 tem for career management service employees based upon critical

d 114 elements of the position and designed to: (a) permit the accurate115 evaluation of performance; (b) provide for systematic appraisal of

~- 116 performance; (c) encourage excellence in performance; (d) provideIS 117 a basis for making eligibility determinations for retention in theE 118 career management service, and for any personnel action includingd 119 promotion, and compensation according to the salary scheduler- 120 established by the administrator subject to governor's approval.

30 HOUSE - No. 1000 [January

121 The administrator shall approve the performance appraisal sys­122 tern of the appointing authority for members of the career manage­123 ment service if he is satisfied that the system meets his standards124 and provid~s for evaluation of performance including but not125 limited to the following areas: (a) improvement in efficiency, pro­126 duction, and quality of work or service; (b) cost efficiency; (c)127 timeliness of performance; (d) other independent indications of the128 performance quality of employees for whom the career manager is129 responsible; and (e) meeting affirmative action goals and require­130 ments for equal employment opportunities. A care~r manager may131 not appeal any appraisal and rating under any performance ap­132 praisal under this section.133 (12) Each performance appraisal system developed by the ap­134 pointing authority approved by the personnel administrator shall135 provide for annual and other summary ratings of levels of perfor­136 mance as follows: (a) one or more fully successful levels; (b) a137 minimally satisfactory level; (c) an unsatisfactory level.138 Any career manager receiving an unsatisfactory rating may be139 reassigned or transferred with the career management service;140 provided that any such manager who has received two unsatisfac­141 tory ratings in five consecutive years shall be removed and pro­142 vided further than any career manager who twice receives in any143 period of three consecutive years less than fully successful ratings144 shall be removed from the career management service program.

I SECTION 28. Said chapter 31 is hereby further amended by2 inserting after section 58 the following section: -3 Section 58A. Notwithstanding the provision of section fifty­4 eight, a person classified as a Vietnam'veteran, as defined in section5 one, shall be eligible to become an applicant for an examination for6 original appointment to the position of fire fighter or to the posi­7 tion of police officer in a city or town if such applicant has not8 reached his thirty-fifth birthday on or before the final date for the9 filing of applications for such examination, as stated in the exami-

10 nation notice.

I SECTION 29. Said chapter 31 is hereby amended by striking2 out section 69, as appearing in section 11 of chapter 393 of the acts

'Y 1981] HOUSE - No. 1000 31

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3 of 1978, and inserting in place thereof the following section: ­4 Section 69. Every appointing authority shall file, within seven5 days after the receipt of a written request from the administrator, a6 report containing the names of all persons who have been appoint­7 ed or employed by such authority, and have received payor8 rendered bills for services or labor performed during the calendar9 month immediately preceding the date of submission of such re-

10 quest. Such report shall be filed with the administrator and withI I the state auditor, in the case of the state, and with the auditor or12 officer responsible for auditing the accounts of such appointing13 authority, in the case of a city or town.14 Such report shall be'in a form prescribed by the administrator,15 shall be made under penalties of perjury and shall contain the16 following information: (1) the full name of the person appointed or17 employed or who rendered a bill for services or labor; (2) a brief18· description of the nature of the position of such person and of the19 services or labor which such person has actually performed during20 such month; (3) for a state position, the title of the position of such2I person as stated in the payrolls of the appointing authority and for22 a position in a city or town, either the title of the position authorized23 by the department, or the title authorized by the appointing au­24 thority; (4) the regular salary or wage of the position; (5) the date of25 employment; and (6) all payments of any kind made to the appoin­26 tee during said month. Such appointing authority shall not be27 required to file more than one such report in any month. The28 reported filed with the state auditor, and with the administrator29 shall be open to public inspection.30 The supreme judicial court, by mandamus or other appropriate3I remedy in law or equity, may compel any such appointing author­32 ity to comply with this section upon suit or petition of administra­

33 tor.34 Any appointing authority who willfully refuses to comply with35 this section shall be punished by a fine of not less than twenty-five36 nor more than one hundred dollars.

1 SECTION 30. The General Laws are hereby amended by in-2 serting after chapter 31 the following chapter: -

32

34

HOUSE - No. 1000

CHAPTER 31A.MUNICIPAL PERSONNEL SYSTEMS.

[January

5 Section 1. Any city or town subject to civil service law as pro­6 vided in chapter thirty-one, or by special law, may exercise the7 option of establishing a decentralized personnel system and may8 become exempt from the provisions of chapter thirty-one or spe­9 ciaI law, provided that such city ortown complies with the condi-

lOtions provided herein.II Section 2. In this chapter, the following words and phrases shall12 have the following meaning, unless the context requires otherwise:13 "Administrator", the personnel administrator ofthe department14 of personnel administration15 "Local Appointing Authority", any person, board, or commis­16 sion with the power to appoint or employ personnel in municipal17 service positions.18 "Civil service law and rules", chapter thirty-one and the rules19 promulgated pursuant to that chapter.20 "Civil service position", an office or position, appointment to21 which is subject to the requirements of chapter thirty-one.22 "Commission", the civil service commission of the common-23 wealth.24 "Department", the department of personnel administration.25 "Local merit appeals board", a three member board established26 under section eight to act on appeals involving violations of basic27 merit principles.28 "Municipality", a city or town in the commonwealth.29 "Municipal employee", any person compensated by a munici-30 pality for personal services performed for the municipality.31 "Municipal personnel office''", the office established under sec­32 tion seven, charged by local ordinance with administering the33 municipal personnel system.34 "Personnel director", the administrator of a municipal person-35 nel system.36 Section 3. Any municipality exercising the local option con­37 tained in Section one shall, upon the recommendation o(the chief38 executive officer or by a majority vote of the executive officers ofa39 city or town and upon the majority vote of those voting on the

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40 referendum question in such city or town, in accordance with the41 procedures outlined in this section, rescind the application of42 chapter thirty-one and all attendant civil service rules, with the43 following exceptions:44 (a) all testing for municipal public safety positions shall be45 administered by the department of personnel administration in46 accordance with the provisions of chapter thirty-one; and,47 (b) employees serving in positions subject to the provisions of48 chapter thirty-one on the effective date of this act, and their succes­49 sors, may appeal disciplinary actions, decisions that the examina­50 tion fairly tested the knowledge, skills and abilities required to51 perform the primary or dominant duties of the position for which52 the examination was held and the results of performance evalua­53 tions to the civil service commission pursuant to section nine. The54 said commission shall hear such appeals in accordance with the55 provisions of chapter thirty-one.56 At least ninety days prior to the vote rescinding the provisions of57 chapter thirty-one, a city or town shall submit a copy ofa proposed58 ordinance or bylaw to the administrator who shall approve, disap­~9' prove or propose amendments to said ordinance or bylaw on the60 basis of completeness, consistency and conformity in concept with61 accepted merit principles. The administator's substantive review62 shall be limited to areas presently subject to civil service law, the63 general provisions of section six and conformity of the ordinance64 or bylaw with basic merit principles outlined in this chapter. The65 administrator shall, within forty-five days, either approve the pro­66 posed ordinance or bylaw, propose amendments to the ordinance67 or bylaw, or disapprove such ordinance or bylaw if it is not68 consistent with the general provisions of this chapter.69 In the event the administrator does not approve the proposed70 ordinance or byl,aw at least thirty days prior to proposed vote of the71 rescis$ion, the provisions of chapter thirty-one shall remain in72 effect and such vote of the rescission shall be postponed until the73 next regular city or town election.74 Following adoption, the ordinance or bylaw shall be submitted75 for review to the administrator only in those instances where the76 said ordinance or bylaw shall have been amended by the local77 legislative body. The criteria for review of any amendment shall be

34 HOUSE - No. 1000 [JanuaryJ

78 the same as those for initial approval of this ordinance or bylaw;79 and, if the administrator shall fail to act within thirty days of the80 receipt of the adopted ordinance or bylaw, it shall be considered81 approved.82 The administrator shall provide necessary technical assistance to83 cities and towns choosing to make the transition to a local system.84 The question on the rescission of chapter thirty-one and attend~nt

85 civil service rules and the acceptance of this chapter shall be printed86 on the official ballot to be used at a regular municipal election, in87 substantially the following form:"88 QUESTION:89 Shall the city or town of rescind the applicability90 of chapter 31 of the General Laws and accept the applicability of91 chapter 31 A of the General Laws?92 If a majority of such voters voting therein vote in the affirmative,93 the provisions of chapter thirty-one shall have been rescinded and94 the provisions of this chapter shall take effect, but not otherwise.95 Section 4. Local personnel systems developed pursuant to this96 chapter shall be consistent with accepted merit principles and each97 municipality shall include in its personnel ordinance or bylaw a98 statement of said principles. Accepted m~rit principles shall in­99 clude, but shall not be limited to:

100 (a) the recruiting, selecting and advancing employees on the10 I' basis of their relative ability, knowledge and skills including open102 consideration of qualified applicants for initial appointment;103 (b) providing equitable and adequate compensation for all em-104 ployees;105 (c) providing training and development for employees, as106 needed, to assure the advancement and high quality performance107 of such employees;108 (d) retaining employees on the basis ofadequacy of their perfor­109 mance, correcting inadequate performance, and separating em­110 ployees whose inadequate performance cannot be corrected;III (e) assuring fair treatment of all applicants and employees in all112 aspects of personnel administration without regard to political113 affiliation, race, color, age, national origin, sex, sexual preference,114 or religious creed and with proper regard for privacy, basic rights115 outlined in this chapter and constitutional rights as citizens, and;

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116 (f) assuring that all employees are protected against coercion117 for political purposes, and are protected from arbitrary and capri­118 cious actions.119 Section 5. Each municipality exercising the local option under120 this chapter shall, upon the recommendation of the chief executive121 officer or by a majority vote of the executive officers and after122 conducting a public hearing, adopt a personnel ordinance or bylaw123 in accordance with the provisions of section four. Said adopted124 ordinance shall then be subject to enactment in the municipality in125 conjunction with the vote on rescission pursuant to section three.126 Each such personnel ordinance or bylaw shall provide for, but127 not be limited to the following:128 (a) A statement of accepted merit principles pursuant to section129 four;130 (b) The appointment of a professional personnel director, pur-131 suant to section three;132 (c) The specification of those officials and employees who shall133 be covered by the ordinance or bylaw and those who shall be134 exempt from all or any part of its provisions. All positions covered135 by civil service at the time of the rescission exempting department136 heads shall also be covered by said ordinance or bylaw. A munici­137 pality may exempt from the coverage of said ordinance or bylaw:138 school department employees, popularly elected officials,139 members of boards and commissions, department heads, the chief140 executive, and up to three confidential or key policy positions in141 the office of the chief executive.142 (d) Provisions establishing the structure and governing the op-143 eration of the personnel system, including but not limited to:144 (1) Recruitment of candidates for appointment to positions,145 including the planning and carrying out of efforts in a manner that146 assures open competition, with special emphasis on attracting147 candidates from groups that are substantially underrepresented in148 the workforce.149 (2) Selection of candidates for appointment to positions, in­150 eluding appropriate ranking by job-related criteria that emphasize151 to the maximum extent possible validity, reliability, and objectiv­152 ity.

36 HOUSE - No. 1000 [January

153 (3) Selection of employees on a temporary or provisional basis,154 only when necessary to meet immediate service demands.155 (4) Promotion of employees to higher-level positions, including156 systematic methods that provide: (a) improved opportunities for157 upward mobility through training, education, and career-develop­158 ment assignments; and (b) open competition among qualified ap­159 plicants.160 (5) Probationary appointment of new employees and proba-161 tionary promotion of current employees.162 (6) Classification of all positions, including the establishment of163 position classes, description of the essential character of the duties164 and responsibilities of each position, and a statement of the min­165 imum qualifications for entrance to each position class.166 (7) Compensation on an equitable basis, including the establish­167 ment and maintenance of a compensation plan and a program of168 fringe benefits.169 (8) Training and development, including programs for all em­170 ployees that increase proficiency in their current positions and171 prepare them for higher-level positions.172 (9) Performance evaluation, whenever the development and173 maintenance of such a system is deemed practical by the municipal­174 ity; provided, however, that in the establishment of such program,175 it shall be developed in conjunction with representatives of labor.176 (10) Disciplinary actions and appeals, including procedures reg­177 ulating the suspension, demotion, and separation of employees,178 with the right to appeal any such action through an impartial179 process.180 (II) Reduction-in force, seniority shall be the sole criteria in181 determining the order of lay-offs.182 (12) Standards of Conduct, including prohibitions against pol­183 itical interference in the personnel system and an assurance of the184 right of employees to pursue legitimate involvement in the political185 system.186 (13) Centralized personnel record-keeping, establishing such a187 system in the office of the personnel director.188 (14) Amendment of the ordinance or bylaw and procedures for189 promulgating administrative regulations, which shall interpret and190 give effect to the ordinance or bylaw.

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191 Section 6. Within one hundred and eighty days following the192 enactment of local ordinance or bylaw, the municipality shall193 appoint a professional personnel director specially qualified for the194 position by reason of previous education, training, and experience.

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Said personnel director may be a professional city manager,town manager, executive secretary, or a local official with equiva­lent responsibility; or a person appointed by that official; or aperson appointed by a group of municipalities to serve as a person­nel director on a consortium or regional basis. The personneldirector shall have full authority to administer the local personnelsystem on a centralized basis and shall have direct access to thechief executive of the' municipality. The duties of the personneldirector shall be prescribed by ordinance or bylaw.

Section 7(a) Any municipality which creates a decontrolledpersonnel system will be required to establish a local merit appealsboard. The board shall be an established board with one memberappointed by the local governing body (mayor-selectmen; in acouncillor-manager form appointments will be made by the man­ager with the approval of the council) to represent management,one member elected by the employees within the community, and athird member who shall be elected by the other two members of theboard. The neutral member shall be an impartial chairman whoshall have expertise in personnel administration and labor rela­tions. The members of the board shall serve for three year termsand shall be reimbursed by the municipality for the necessaryexpenses incurred in the performance of their official duties; pro­vided, however, that the chairman may be further compensated forservices provided to the board. The primary role of the board shallbe as an oversight body and appellate board on merit principleIssues.

(a) The authority of the board shall include but shall not belimited to:

(I) hearing appeals in cases of suspensions, demotions or dis­missals;

(2) hearing appeals in cases of layoffs and transfers, from onedepartment to another, only if the employee can show bad faith onthe part of the municipal employer;

(3) hearing appeals on selections, promotions, and any other

38 HOUSE - No. 1000 [January

.229 personnel actions as the municipality may provide for in the per-230 sonnel ordinance or bylaw; provided, however, no punishment231 duty shall be imposed on any police officer or fire fighter subject to232 the provisions of this chapter unless said police officer or fire233 fighter assents thereto.234 (4) Advising the personnel director, upon his request of the235 director, on any personnel matters.236 (c) Employees subject to a local merit system established pursu­237 ant to this chapter may be suspended, demoted, or dismissed for238 just cause. If, by a preponderance of the evide~ce, the board239 determines that there was just cause for an action taken against such240 employee it shall affirm the action of the appointing authority,241 'otherwise it shall reverse such action and the employee shall be242 returned to his position without loss of compensation or other243 rights; provided, however, in any disciplinary action, discharge,244 appeal of a performance evaluation or proceeding relative to the245 abolition of a position, if the employee establishes by a preponder­246 ance of the evidence that the said action was based upon harmful247 error in the application of the appointing authority's procedure or248 upon an error of law or upon any factor or conduct on the part of249 the employee not reasonably related to the fitness of the employee250 to perform in his position the said abolition, disciplinary action or251 discharge or evaluation shall not be sustained and the person shall252 be returned to his position without loss of compensation or other253 rights and in the case of an appeal from a performance evaluation,254 the matter shall be remanded to the appointing authority for action255 not inconsistent with the findings of the Board. The Board may256 also modify any penalty imposed by the appointing authority.257 Except in the case of an employee s'ubject to the provisions of258 section nine, the decision of the board shall be final and binding on259 parties, subject to judicial review.260 (d) The organization, operating procedures, staffing, compen­261 sation, and removal procedures of the board shall be determined262 by the municipality in its personnel ordinance or bylaw.263 Section 8. Appointing authorities and employees serving in po­264 sitions subject to the provisions of chapter thirty-one on the effec­265 tive date of this act and their successors, shall have the right to266 appeal a decision of the board in the following instances:

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267 (a) a disciplinary act.268 (b) a finding that the examination fairly tested the knowledge,269 skills and abilities required to perform the primary or dominant270 duties of the position for which the examination was held.271 (c) the results of a performance evaluation.272 An employee covered by a collective bargaining agreement may273 continue to exercise any grievance arbitration in said agreement274 and upon the election of such option by the employee, it shall be the275 exclusive remedy for resolving such matters. In any disciplinary276 action or discharge where the substance of such action was based277 on a performance eva\uation the validity of which has been pre­278 viously determined, the substantative matters involved in the eva­279 luation shall not be open to redetermination by the commission.280 Section 9. (a) The department of personnel administration281 shall conduct semi-annual performance audits ofthe merit systems282 of each municipality exercising the local option under this chapter283 during the first year, and annually thereafter.284 (b) Special audits may also be requested by a three-fifths vote of285 the local legislative body or forty employees or twenty per cent of286 the total number of employees whichever is greater by twenty per287 cent but not less than forty of the employees subject to the local288 merit system. No such special audit shall be undertaken until the289 department has conducted a preliminary informal hearing with the290 parties concerned, and the administrator has determined, based291 upon the evidence of substantial noncompliance with the munici­292 pal personnel ordinance or bylaw.293 (c) The results of any audit, whether regular or special, shall be294 reported to the local appointing authority specifying any deficien­295 cies that may have been found and the suggested corrective action296 and a summary of said deficiencies and corrective actions shall be297 published in a weekly or daily newspaper of general circulation in298 the city or town. A copy of the report by the administrator shall be299 available for public inspection.300(d) Any municipality audited pursuant to this section shall have301 the right to appeal the results of such audit to the civil service302 commission, which may uphold, alter, or disqualify the results of303 said report, subject to judicial review.304 (e) If a municipality fails to correct any deficiencies specified in

40 HOUSE - No. 1000 (January

305 an audit report, the personnel administrator may take such action306 as may be necessary to insure compliance, including but not limited307 to, voiding past personnel actions, seeking a court order to insure308 compliance, or assuming temporary or permanent supervision of309 the local merit system with the municipality bearing the full cost of310 such supervision.311 Section 10. Nothing herein shall interfere with the right of certi­312 fied employee organizations to bargain with the municipality over313 subjects permitted by chapter one hundred and fifty E; provided,314 however, that the authority ofany municipal agency or its agents to315 determine selection procedures at both the entry and promotional316 levels, to conduct and grade merit examinations, to rate candidates317 based on job-related criteria and establish eligible lists, to make318 initial appointments or promotions to positions covered by local319 personnel ordinances or by-laws or any other section of chapter320 thirty-one which is not subject to bargaining under paragraph Cd)321 of section seven of chapter one hundred and fifty E, prior to the322 effective date of this chapter, shall not be subject to collective323 bargaining.324 Section 11. Revocation of the acceptance of this chapter by a325 city or town shall be in the same manner as its acceptance. Upon326 revocation, said city or town shall be subject to the provisions of327 chapter thirty-one of the General Laws to the same extent as it was328 immediately prior to its acceptance of this chapter.

I SECTION 31. Notwithstanding the provisions of section twen­2 ty-six of chapter thirty-one of the General Laws, except in the case3 of a son or daughter of a police officer or firefighter killed or who4 died as a result of injuries received in'the line of duty, the names of5 applicants who have qualified in an examination for original ap­6 pointment to any position in the official service shall be placed on7 the eligible list in the following order.8 ( I) disabled Vietnam veterans, in the order of their respective9 standings;

10 (2) Vietnam veterans, in the order of their respective standings;II (3) spouse or single parent of Vietnam veterans who were killed12 in action or died from a service connected disability incurred in13 wartime service, in the order of their respective standings;

1981] HOUSE - No. 1000 41

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14 (4) all others, in the order of their respective standings.15 Upon receipt of a requisition, names shall be certified from such16 lists according to the methods of certification prescribed by the17 rules.18 The spouse or single parent of a Vietnam veteran who was killed19 in action or died from a service connected disability incurred in20 wartime service, upon presenting proof from official sources of21 such facts, satisfactory to the administrator, and proof that such22 spouse or parent has not remarried, shall be entitled to the prefer­23 ence provided for in this section.24 The administrator may require any disabled Vietnam veteran to25 present a certificate of a physician, approved by the administrator,26 that his disability is not such as to incapacitate him from the27 performance of the duties of the position for which he is eligible.28 The cost of a physical examination of such Vietnam veteran for the29 purpose of obtaining such certificate shall be borne by the com­30 monwealth.31 A person who has received a congressional medal of honor may32 apply to the administrator for appointment to or employment in a33 civil service position without examination. In such application he34 shall state under penalties of perjury the facts required by the rules.35 Age, loss of limb or other disability which does not, in fact,36 incapacitate shall not disqualify him for appointment or employ­37 ment under this section. Appointing officers may make requisition38 for the names of any or all such persons and appoint or employ any39 of them. A person who has received a distinguished service cross or40 navy cross may, upon the recommendation of the administrator41 and with the approval of the commission, be appointed under the42 same conditions provided in this paragraph for a person who has43 received a medal of honor.44 Vietnam veterans as defiKed in this section will be in accordance45 with the definition contained in section one of chapter thirty-one of46 the General Laws.

I SECTION 32. The personnel administrator shall not later than2 January first, nineteen eighty-one, establish a career management3 service program in accordance with the provisions of section twen­4 ty-seven of this act. The career management service program will

42 HOUSE - No. 1000 [January

5 begin operating in the department of personnel administration, the6 environmental affairs secretariat and the agencies of this secretar­7 iat and the department of public health. The administrator shall8 be charged with the general supervision and oversight of the career9 managem"ent service program. At least once every six months the

10 administrator shall file a written report with the special commis­11 sion on civil service established under chapter ten of the Resolves12 of nineteen seventy-nine and extended by chapter three of nineteen13 eighty on the progress of this program and shall make recommen­14 dations for improvements, expansion or discontinuance of such15 program.

I SECTION 33. Notwithstanding any special or general law to2 the contrary, the personnel administrator shall within sixty days of3 the effective date of this act, establish an examination procedure4 for the certification of provisional employees, as defined in section5 one of chapter thirty-one of the General Laws, to permanent6 positions within the official service of the commonwealth and cities7 and towns of the commonwealth.8 The administrator shall determine the form, method and subject9 matter for such examination procedure forthe certification of such

10 provisional employees. Upon completion of the examination pro­II cess, the administrator shall certify any employee who served in a12 civil service position as a provisional employee for a period of at13 least six months immediately prior to June one, nineteen hundred14 and eighty, or any employee who has previously passed a civil15 service examination and is now serving provisonally without inter­16 ruption of service, and who passes $uch examination, for a civil17 service appointment to such position; the appointing authority18 shall appoint from said certification prior to the appointment for19 any other source; provided, however, nothing contained in this20 section shall grant permanent status to any provisional employee21 who has taken an examination conducted in accordance with22 section sixteen of chapter thirty-one of the General Laws, prior to23 June first, nineteen hundred eighty for which a list is presently24 established or in the process of being established.25 Within ninety days of the effective date of this act, the personnel26 administrator shall request that all state appointing authorities

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27 submit a list of temporary positions within their jurisdiction to the28 department and an explanation as to why these positions should29 not be considered permanent. The administrator shall within nine­30 ty days of receipt of such information, file with the chairman of the31 joint committee on ways and means, recommendations as to32 whether such temporary positions ought to either be abolished or33 be made permanent positions.34 The provisions of this section shall not apply to positions in the35 police and fire service.

I SECTION 34. (I) The personnel administrator shall by Janu­2 ary one, nineteen hundred eighty·-one establish an executive service3 program. As of January one, nineteen hundred eighty-one the4 program will begin operating in the division of personnel adminis­5 tration, the environmental affairs secretariat and the agencies of6 the secretariat, and the department of public health.7 (2) The administrator shall designate positions within each sec­8 retariat and its agencies as executive service positions. The total9 number of positions within each secretariat and its agencies desig-

10 nated as executive service positions shall not exceed two per cent ofII all authorized appointive offices and positions within the secretar­12 iat and its agencies.13 (3) All positions and offices exempt from the provisions of14 chapter thirty, chapter thirty-one and chapter one hundred and15 fifty-E shall be eligible for designation as executive service posi­16 tions.17 (4) The administrator shall designate additional positions as18 executive service positions if:19 (0) the administrator receives from the secretary a written re­20 quest for such a designation including the position's job title and21 position number.22 (b) in a case where the position being designated is filled by an23 incumbent on a permanent basis, the administrator receives from24 that incumbent a request that the position be designated as an25 executive service position.26 (c) the representative of the collective bargaining unit of the27 commonwealth of which the incumbent is a member supports the28 request of the incumbent or the labor relations commission deter-

44 HOUSE - No. 1000 [January

29 mines that the position's characteristics would require inclusion of30 the position on the basis of the definition for managerial or confi­31 dential employees within section one of chapter one hundred fifty­32 E of the General Laws.33 (d) the positions being designated are: responsible for the deter­34 mination and public advocacy of substantive program policy, the35 provision of legal counsel, maintaining a direct confidential work­36 ing relationship with a management service employee, or other37 exempt official, or participates to a substantial degree in formulat­38 ing or determining policy.39 (5) Selection of persons to fill such positions shall not be subject40 to chapter thirty of the General Laws, section nine A of chapter41 thirty-one of the General Laws, chapter one hundred and fifty-E of42 the General Laws or any other laws pertaining to appointing43 authorities for said positions.44 (6) Persons filling said positions shall serve in said positions at45 the pleasure of the appointing authority.46 (7) Such employees shall not be classified in accordance with47 section forty-five, chapter thirty. Such employee shall be paid in48 accordance with the salary sched ule established by the administra­49 tor following consultation with the participating secretary and50 approved by the governor. The appointing authority shall deter­5 I mine the salary of each such employee within said schedule.52 (8) All other working conditions of said employees shall be53 determined by the administrator.54 (9) Once a position has been designated an executive service55 position, it shall be subject to secretarial appointment.56 (10) In selecting persons to fill such positions the appointing57 authority shall utilize a process which examines the merit of each58 qualified applicant. The choice of selection process shall be the59 responsibility of the appointing authority and shall be subject to60 the approval of the administrator.

I SECTION 35. Section 3 of this act shall take effect on January2 one, nineteen hundred and eighty-one. The incumbent commis­3 sioner on the effective date of the said section shall continue to4 serve in such position, until the expiratidn1of the term of office for5 which the commissioner has been appointed.

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I SECTION 36. Resolved, That the Special Commission on Civil2 Service as created by chapter lOaf the resolves of nineteen hundred3 and seventy-nine, and most recently revived and continued under4 the provisions of chapter 3 of the resolves of nineteen hundred and5. eighty, is hereby further revived and continued until December6 thirty-first, nineteen hundred and eighty-three.

I SECTION 37. Notwithstanding any special or general law to2 the contrary, if there is a conflict between the provisons of this act3 and a collective bargaining agreement in existence on the effective4 date of this act, reach,ed by the respective employer and exclusive5 representative the subjects of which are within the scope of bar­6 gaining contained in section six of chapter one hundred fifty-E of7 the General Laws, the collective bargaining agreement shall pre­8 vail.

I SECTION 38. No provision of this act shall affect any of the2 following;3 (1) any application, requisition, or examination announcement4 or poster made prior to the effective date of this act;5 (2) the validity of any eligible list or the certification of names6 from any eligible ~ist in existence on or before the effective date of7 this act;8 (3) the establishment of any eligible list based upon an examina­9 tion held on or before the effective date ofthis act and any appoint-

10 ment or promotion based thereon;II (4) any appeal, hearing or other proceeding or matter pending12 on or before the effective date of this act;.13 (5) any rule in force on the effective date of this act;14 (6) the holding or marking of any examination announced or15 posted on or before the effective date of this act;16 (7) any action taken pursuant to chapter thirty-one of the Gen­17 eral Laws as in force immediately prior to the effective date of this18 act.

I SECTION 39. The provisions of section twenty-eight and sec­2 tion thirty-one of this act shall become inoperative on or after3 December thirty-first, nineteen hundred and eighty-five.

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