State told to rehire three tax examiners

The Civil Service Commission has ordered the state to rehire and pay back wages to three tax examiners laid off in 2002, saying the Department of Revenue cut their jobs while promoting two-dozen others with less seniority, an alleged violation of Massachusetts law.

The ruling is a potentially serious setback to Governor Mitt Romney's campaign to curb civil service rules in state government and could require the state to conduct hundreds of tests for state jobs, labor leaders said yesterday.

The five-member commission, in a strongly worded and unanimous July 21 decision obtained yesterday by the Globe, said the case arose because governors and their administrations for the past two decades have systematically refused to offer civil service exams as required by law, undercutting a system based on ''basic merit principles" and opening the system to political patronage.

In many cases, governors and their agencies have hired so-called provisional employees who do not have to take civil service exams.

''The excessive use of provisional employees renders the entire system susceptible to political and personal influences," the commission ruled.

The state ''had the right to lay off employees but the wrong employees were chosen for layoff," the commission said.

The commission also ruled that the promotion of the less-senior Department of Revenue employees were now ''null and void" because of the violations.

The layoffs occurred in 2002, during a fiscal crisis under the administration of Acting Governor Jane Swift. Romney, arguing that civil service regulations are largely redundant with job protections and rules set out by unions in collective bargaining agreements, has effectively ended giving exams in all career areas except those in public safety. But while defenders of the civil service system agree that it needs overhauling, union officials say Romney has gone much further than his predecessors in attempting to water down the system.

Tim Connolly, a spokesman for the Department of Revenue, said the agency has already begun the process of appealing the civil service ruling, asking Attorney General Thomas F. Reilly to take its case to Suffolk Superior Court.

Meanwhile, the agency has also asked the Civil Service Commission to stay its decision and reconsider the ruling.

''Obviously, our lawyers disagree with the commission's interpretation of the law," Connolly said.

In its motion requesting a stay, the department said the commission's ruling could potentially wreak havoc on the agency, especially because the voided promotions would require ''a restructuring of the Department's Tax Payer Service Division . . . to ensure compliance."

''There exist economic and structural ramifications of the commission's decision such that a stay pending the Department's motion is warranted," wrote agency lawyer Michael C. Rutherford.

Established in the late 1800s, the civil service system was intended to minimize the ability of governors and legislatures to tap friends and allies for positions at the expense of the army of apolitical professionals who staff government office jobs.

In recent decades, however, critics have decried the system as archaic, as strangling the ability of state managers to effectively run their agencies, because they say it entails a cumbersome array of rules that ultimately prizes seniority over talent.

The new ruling, if upheld on appeal, would probably mean a drastic reversal of Romney's policies because the administration would face potential legal challenges if managers ignored seniority in promoting or laying off personnel. Roughly 2,000 job categories would require a new battery of exams, state human resources chief Ruth N. Bramson said earlier this year.

The ruling was hailed yesterday by leaders of the National Association of Government Employees, which represents about 13,000 state workers and has locked horns with the Romney administration since his first weeks in office.

''This means people have to play by the rules," said James G. Farley, national executive vice president of the association. ''It should have a wide-ranging effect to restoring merit in the hiring and promotion of people in state employment."

The case could provide a windfall to Mark D. Trachtenberg, one of the three employees the commission ruled should be put back on the Revenue Department's payroll.

A 15-year veteran of the agency with a master's of business administration from Boston University, Trachtenberg said yesterday that he was forced to go on unemployment, take a series of jobs, and borrow tens of thousands of dollars from his mother to make ends meet since he was let go in September 2002. Because he was making $47,000 a year when he was laid off, Trachtenberg will receive nearly $150,000 if the commission's ruling stands.

''I did not set out to be a hero or save civil service," Trachtenberg said yesterday. ''I just want my assignment."

Laws that outline civil service rules specify that workers applying for a job in the system must take an examination. The same goes for state employees seeking a promotion or a new position in the system.

The tests are intended to demonstrate the qualifications of applicants for specific jobs, and, as a result, workers taking the tests to enter a job as tax examiners typically must show aptitude in tax codes and laws.

Romney's and other recent administrations have effectively sidestepped the tests by not offering them for the vast majority of positions, and then by hiring so-called provisional employees who are technically supposed to be temporary until they take the exams.

Provisional employees are only supposed to stay for up to 12 months, but thousands of such state workers have been on the payroll for years.

In its ruling, the commission found that such tactics do not absolve the state from its responsibilities to adhere to the law.

Calling the situation the ''plight of the provisional," the commission wrote that the government's refusal to offer tests means the state is ''violating basic merit principles, [and] it also has the consequential effect of preventing an employee from moving up the career ladder into permanent positions."

It remained unclear last night if the attorney general's office will seek the appeal that the Department of Revenue has asked for.

A spokesman for Reilly, a Democrat who has received $1,500 in contributions from NAGE since Dec. 31, said the office received the request to appeal the commission's ruling only yesterday and is reviewing the matter.