Officer Michael Cutillo at Thursday's hearing.
Lawyers for two Malden Police officers who missed promotions despite top scores on a civil service exam pleaded their case before the chairman of a state employment commission on Thursday in Boston, urging him to declare the men eligible for two sergeant vacancies in the department.
"This is indeed a tale of two eligibility lists," said state Representative Christopher Fallon, lead attorney for Michael Cutillo and John Kelley, the two officers. Fallon is also chief counsel to the Malden Police union.
Cutillo and Kelley finished first and second, respectively, in a civil service exam in late 2006 that all officers must take to be eligible for promotion. According to state regulations, the test scores are valid for two years, meaning Cutillo and Kelley's results would have expired last March.
But a sergeant position opened in January, which according to department precedent should have gone to Cutillo, the top scorer. Malden Police Commissioner Anthony Spadafora - who has the final say on promotions but must make them from the eligibility list - alleged in an affidavit that Chief Kenneth Coye blocked the promotion because of a personal dislike for Cutillo, who handled a car accident investigation involving Coye's daughter about 13 years ago.
Coye denied that charge in testimony before Civil Service Commission chairman Christopher Bowman on Thursday.
"Obviously [Cutillo] didn't get promoted, so [he] would need some reason to vilify me," Coye said, adding that he felt Kelley had better qualifications to serve as a sergeant.
But that's all moot, Coye insisted, since Spadafora has final authority on promotions. Spadafora - who missed Thursday's hearing because of a medical procedure - said in his affidavit that he couldn't promote Cutillo, since Coye destroyed the eligibility list after the slot opened.
"I threw it away," Coye said on Thursday, because Mayor Richard Howard told department heads in a February memo to hold off on promotions because of budget concerns.
Howard confirmed that in his testimony on Thursday, adding that he rescinded the memo in early April, when new funding sources materialized. By then a second sergeant position had opened, and while Cutillo and Kelley's scores had technically expired, the state didn't release a new eligibility list from a 2008 test until mid-May.
Fallon and his team pounced on the time lapse Thursday, arguing that according to state statute, an expired eligibility list remains valid until state officials release a new one, meaning that in April - when Howard gave the OK for promotions and the city applied for certifications from the state - Cutillo and Kelley should have filled the vacancies.
Howard appeared convinced of that during a break in Thursday's hearing. Asked if he felt Cutillo and Kelley should be eligible for the sergeant posts, he said, "Absolutely."
Kelley took the test in 2008 and scored high enough to remain eligible for the vacancies, while Cutillo did not take that test. He told Bowman on Thursday that it would have burdened his family.
Four other officers - Margaret MacDonald, Steven Noble, Frank Spinale, and Evan Tuxbury - also scored high enough in 2008 to be considered for the promotions. Cutillo and Kelley are asking the state to either reactivate the old list or put them ahead of the four officers on the new one.
Those four officers have hired their own attorney, Alan Shapiro of Sandulli Grace, PC in Boston, to make sure that doesn't happen. Shapiro regularly interjected on Thursday, arguing that the new list is the one of record. His clients attended the hearing but declined comment, as did Cutillo and Kelley.
Lawyers for Cutillo and Kelley, as well as the city - represented by City Solicitor Kathryn Fallon, Christopher' Fallon's niece - have 30 days to file briefs on the matter, at which time Bowman could decide to call more witnesses. If he declines, a decision would come within 60 days of receiving the briefs.
Officer John Kelley during a break at Thursday's hearing.