Johnson v. Solara, LLC

Police Department of Boston vs. Jill Kavaleski. Suffolk. February 7, 2012. November 6, 2012. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Police, Hiring. Public Employment, Police, Psychiatric examination. Civil Service, Police, Decision of Civil Service Commission, Findings by commission. Administrative Law, Evidence, Findings, Hearing. Discussion of the standard of review applicable to a decision of the Civil Service Commission regarding a public employer’s decision to bypass a candidate for hiring. [688-689] In a proceeding before the Civil Service Commission (commission) challenging the decision of a police department (department) to bypass a candidate for employment as a police officer based on the candidate’s interviews with psychiatrists, the commission erred in considering expert testimony from a different commission proceeding, where the commission did not alert the department that it would be looking to the testimony in that other proceeding and considering it as evidence in the present case, thus depriving the department of an opportunity to contest and respond to that evidence; however, the department was not prejudiced by the commission’s reliance on the testimony from the other proceeding, where there was other substantial and reliable evidence in the record, independent of the testimony from the other proceeding, to support the commission’s decision in the present case. [689-695] Civil action commenced in the Superior Court Department on November 23, 2009. The case was heard by Frank M. Gaziano, J., on motions for judgment on the pleadings. The Supreme Judicial Court granted an application for direct appellate review. Michael S. Rabieh for the defendant. Nicole I. Taub for the plaintiff. Duffly, J. Since 2005, Jill Kavaleski has sought employment as a police officer with the Boston police department (department). The department has, on three occasions, extended conditional offers of appointment to Kavaleski, each of which was contingent upon her successful completion of a psychological screening process. On each occasion, department psychiatrists found Kavaleski psychologically unqualified for the job, and the department “bypassed” her for appointment as a police officer. See G. L. c. 31, § 27. This case arises from the third such bypass, which Kavaleski appealed to the Civil Service Commission (commission). See G. L. c. 31, § 2 (b). After an evidentiary hearing, the commission concluded that the department had failed to meet its burden of establishing a reasonable justification for bypassing Kavaleski, and ordered that her name be restored to the department’s list of individuals certified for appointment. The department filed an appeal in the Superior Court, see G. L. c. 31, § 44, arguing that, in reaching its decision, the commission had erroneously relied on expert testimony from an unrelated proceeding. A Superior Court judge ruled that the commission had erred and vacated the commission’s order. We granted Kavaleski’s application for direct appellate review. We agree that the commission erred in the manner in which it considered expert testimony from another proceeding. Because the commission’s decision was supported by substantial evidence independent of this extraneous evidence, however, we conclude that the error did not prejudice the department. Accordingly, we reverse the Superior Court judge’s order. Background. Kavaleski is a lifelong resident of Boston. She has received two graduate degrees from a local university, and has for many years been employed by the city of Boston’s veterans’ services department. She has never been diagnosed as having, and has never received treatment for, any psychiatric or psychological disorder or condition. In 2002, Kavaleski applied to be a police officer in New York. She passed that State’s civil service examination, a background investigation, and psychological screening, and was offered a position with the New York City police department. She declined that offer. In 2005, she applied for a position as a police officer with the department. As is required of all applicants, Kavaleski completed the department’s lengthy application packet, which requires extensive disclosures about many aspects of an applicant’s life. She also submitted the required letters of reference, cooperated with a background investigation, and took a civil service examination administered by the Commonwealth’s human resources division (HRD). Kavaleski passed the examination, and according to the commission, her references were “of the highest order.” The commission summarized Kavaleski’s references as describing “a dedicated and passionate person committed to public or community service, who exercises responsibility, good judgment and common sense in the completion of her tasks.” In 2006, Kavaleski twice received a conditional offer of appointment from the department, but on each occasion was “bypassed” after being deemed psychologically unqualified by department psychiatrists. In early 2007, the department extended a third conditional offer of appointment to Kavaleski. The sole condition of the third offer was, again, that Kavaleski successfully complete the department’s psychological screening process. The department’s psychological screening process has three “phases.” In “Phase I,” candidates for employment must take two standardized tests: the Minnesota Multiphasic Personality Inventory-2 (MMPI-2) and the Personality Assessment Inventory (PAI). In “Phase II,” candidates meet with one of the department’s psychiatrists for a thirty-minute clinical interview (first-level interview). Before the interview, the psychiatrist reviews the candidate’s MMPI-2 and PAI test results as well as material from the department’s background investigation, the candidate’s medical history, and information provided by the candidate in a biographical questionnaire. During the interview, the psychiatrist conducts a “mental status examination,” explores any areas of concern raised by the testing and biographical data, and evaluates possible areas of “psychological vulnerability as it pertains to the essential functions of the police officer position. ” If this process raises no “suitability issues,” the psychiatrist will report to the department in writing that the candidate is psychologically suitable for appointment as a police officer. If the psychiatrist identifies areas requiring further inquiry, he or she will prepare a written report outlining the specific concerns and refer the candidate to “Phase IH” of the screening process, a “second opinion psychiatric interview” (second-level interview). A different psychiatrist conducts the second-level interview. The second psychiatrist reviews the report from the first-level interview, as well as the test results and background material reviewed initially by the first psychiatrist. The second psychiatrist then conducts an “in-depth clinical interview” and makes a final written recommendation to the department regarding any “psychological/behavioral issues that would interfere with the applicant’s performance of the essential job functions” of being a police officer. The entire screening process operates in accordance with rules promulgated by HRD. Those rules define the medical standards that a municipal police officer in the Commonwealth must meet, and sort disqualifying medical or psychiatric conditions into two categories. A “Category A” condition is one “that would preclude an individual from performing the essential job functions of a municipal police officer or present a significant risk to the safety and health of that individual or others.” A “Category B” condition is one that, “based on its severity or degree, may or may not preclude an individual from performing the essential job functions of a municipal police officer, or present a significant risk to the safety and health of that individual or others.” As noted, at the time of her appeal, Kavaleski had undergone the department’s psychological screening process three times, and had completed the MMPI-2 and PAI during each round of screening. Both tests were scored automatically, using Kavales-ki’s responses to create a computer-generated report of her psychological “profile.” According to the MMPI-2 reports from Kavaleski’s first two rounds of testing, she produced “invalid” profiles because her responses were “too defensive to permit an adequate assessment of her psychological adjustment.” In both rounds of screening, the first and second psychiatrists who evaluated Kavaleski after reviewing these “invalid” profiles reported that Kavaleski was defensive, guarded, or “interpersonally stiff.” The psychiatrists also took note of Kavaleski’s appearance, describing her as thin, with hair that was “messy” or “unkempt.” In the third round of testing, Kavaleski’s responses produced a “valid” MMPI-2 profile. The computer-generated profile indicated that Kavaleski had “[ijndorsed” certain test questions, known as “critical items,” in the areas of acute anxiety, somatic symptoms, anxiety and tension, and deviant beliefs. A similar computer-generated report based on Kavaleski’s responses to the PAI noted that Kavaleski presented a “[l]ow risk” in the “[pjsychological rating risk factor” category, and that she had indorsed critical items relating to drug problems, anxiety, persecution, and aggressive attitude. Dr. Marcia Scott, who had interviewed Kavaleski in a previous round of screening, conducted Kavaleski’s first-level interview on March 20, 2007. Scott reported that Kavaleski was “less guarded” than she had been in previous interviews, and was “able to respond appropriately to relevant personal questions.” Scott also made various observations about Kavaleski’s weight and appearance, noting Kavaleski’s “almost cache[c]tic body” and “messy” hair. Scott concluded her report by stating that Kavaleski “is a steady controlled person but has very limited self-awareness, little understanding of her motivations or emotional limitations and inflexible approaches to both internal and external stresses.” Scott stated that Kavaleski’s “capacity to evaluate situations and make effective judgments” would impair her ability to work as a police officer, and referred Kavaleski for a second-level interview with Dr. Julia M. Reade. Reade, who conducted each of Kavaleski’s three second-level interviews, met with Kavaleski approximately three months later, on June 30, 2007. She described Kavaleski as “thin, but not unhealthy looking,” and again noted that “her hair was messy.” Reade stated that she had reviewed materials from Kavaleski’s two previous rounds of psychological screening, and included in her report the critical items that Kavaleski had indorsed during the latest round of MMPI-2 and PAI testing. Reade described Kavaleski’s demeanor during the interview as “impassive” and concluded her report as follows: “In summary, despite her continued effort to be more open and flexible, Ms. Kavaleski continues to present as a psychologically inflexible, interpersonally stiff woman whose extreme defensiveness limits her capacity to reflect on her own decision-making, responses, actions or impact on others. Her concrete cognitive style is equally limiting and is likely related to what appears to be a charactero-logic rigidity. These limitations would interfere with Ms. Kavaleski’s ability to manage the duties of a Boston [p]olice officer.” Based on Reade’s report, the department notified HRD that it intended to bypass Kavaleski because she had failed to meet the psychological criteria for employment as a police officer. HRD accepted the department’s stated reasons, and on August 31, 2007, Kavaleski appealed to the commission pursuant to G. L. c. 31, § 2(b). A hearing was held before the commission on April 3, 2008, at which Kavaleski represented herself. The commission accepted numerous exhibits in evidence and heard testimony from Reade and Kavaleski. By a divided vote, the commission ruled that the department had not met its burden of establishing a reasonable justification for bypassing Kavaleski. The commission noted that a disqualifying psychiatric condition has not “been found to exist in [Kavaleski], nor has the [department] specifically asserted any such condition.” The commission ordered the department to place Kavaleski’s name “at the top of the eligibility list for original appointment to the position of [pjolice [o]fficer ... so that she shall receive at least one opportunity for consideration from the next certification for appointment as a [department] police officer.” The commission also ordered that, should the department choose to require Kavaleski to submit to further psychological screening, it must use psychiatrists other than those who had previously been involved in screening or evaluating her. In reaching its decision, the commission quoted several written findings of fact that it had made in deciding the case of Roberts vs. Boston Police Dep’t, Civil Serv. Comm’n, No. G1-06-321 (Sept. 25, 2008) (Roberts). Like the present case, Roberts involved a psychological bypass by the department based on the candidate’s interviews with Scott and Reade. The candidate in that case had called psychologists Dr. Mark S. Schaeffer and Dr. James C. Beck to testify as expert witnesses, and the Roberts commission quoted extensively from their testimony in its written decision. Schaeffer testified in Roberts that interpreting MMPI-2 and PAI results “fall[s] within the professional discipline of psychology, as opposed to medicine and psychiatry.” In discussing the psychiatrists’ evaluations of Kavaleski in the present case, the commission quoted Schaeffer’s testimony from Roberts as well as the Roberts commission’s finding in that case that “all the expert witnesses who testified in [Roberts] agree that a qualified psychologist is the recommended professional with the necessary expertise to which a psychiatrist generally defers when it comes to the subject of psychological testing” (emphasis in original). The commission then noted that none of the psychiatrists involved in interviewing Kavaleski had consulted a specially-trained psychologist to interpret her test results. Based in part on these findings, the commission determined that Reade’s conclusions about Kavaleski’s psychological fitness for employment as a police officer were not credible. The department filed an appeal in the Superior Court, pursuant to G. L. c. 31, § 44, arguing that the commission had improperly relied on Roberts. Concluding that the commission had erroneously relied on testimony introduced in the Roberts case in reaching its decision in the present case, a Superior Court judge allowed the department’s motion for judgment on the pleadings and vacated the commission’s decision. Standard of review. When a candidate for appointment appeals from a bypass, the commission’s role is not to determine whether that candidate should have been bypassed. Rather, the commission determines, “on the basis of the evidence before it, whether the appointing authority [has] sustained its burden of proving, by a preponderance of the evidence, that there was reasonable justification” for the decision to bypass the candidate. Brackett v. Civil Serv. Comm’n, 447 Mass. 233, 241 (2006), citing G. L. c. 31, § 2 (b). “Reasonable justification in this context means ‘done upon adequate reasons sufficiently supported by credible evidence, when weighed by an unprejudiced mind, guided by common sense and by correct rules of law.’ ” Brackett v. Civil Serv. Comm’n, supra, quoting Selectmen of Wakefield v. Judge of First Dist. Court of E. Middlesex, 262 Mass. 477, 482 (1928). In determining whether the department has shown a reasonable justification for a bypass, the commission’s primary concern is to ensure that the department’s action comports with “[b]asic merit principles,” as defined in G. L. c. 31, § 1. See Massachusetts Ass’n of Minority Law Enforcement Officers v. Abban, 434 Mass. 256, 259 (2001). The commission “finds the facts afresh” in conducting this inquiry and is not limited to the evidence that was before the department. Beverly v. Civil Serv. Comm’n, 78 Mass. App. Ct. 182, 187 (2010). Pursuant to G. L. c. 31, § 44, we review the commission’s decision to determine whether it was in conformity with the standards set forth in G. L. c. 30A, § 14 (7). See Massachusetts Ass’n of Minority Law Enforcement Officers v. Abban, supra at 263. We may set aside or modify the commission’s decision if we conclude that “the substantial rights of any party may have been prejudiced” by a decision that is based on an error of law, unsupported by substantial evidence, or otherwise not in accordance with the law. G. L. c. 30A, § 14 (7). Because it is the department that appealed from the commission’s decision, the department bears the burden of establishing that the decision is invalid. Brackett v. Civil Service Comm’n, supra at 242. That is a “heavy burden,” Massachusetts Ass’n of Minority Law Enforcement Officers v. Abban, supra at 263-264, since we give “due weight to the experience, technical competence, and specialized knowledge” of the commission in deciding these matters. G. L. c. 30A, § 14 (7). “This standard of review is highly deferential to the agency on questions of fact and reasonable inferences drawn therefrom.” Brackett v. Civil Service Comm’n, supra, quoting Flint v. Commissioner of Pub. Welfare, 412 Mass. 416, 420 (1992). Discussion. The department advances two related arguments to support its claim that the commission’s decision should be reversed. As stated, it contends that the commission erred as a matter of law in relying on testimony from Roberts to attack Reade’s credibility. As a corollary, the department maintains that there was no properly admitted expert evidence to contradict Reade’s testimony and that, therefore, the commission erred in substituting its own assessment of Kavaleski’s psychological fitness for employment as a police officer. We agree that the commission should not have considered the expert testimony that was introduced in Roberts, but not for the reasons advanced by the department. In addition, we conclude that the commission was entitled to discredit Reade’s testimony without hearing testimony from an opposing expert. General Laws c. 30A, which governs proceedings before the commission, sets forth the extent to which an agency may rely on, and take notice of, materials other than those supplied by the parties. General Laws c. 30A, § 11 (4), provides, in relevant part: “All evidence, including any records, investigation reports, and documents in the possession of the agency of which it desires to avail itself as evidence in making a decision, shall be offered and made a part of the record in the proceeding, and no other factual information or evidence shall be considered . . . .” A related provision, G. L. c. 30A, § 11 (5), authorizes agencies to “take notice of any fact which may be judicially noticed by the courts,” as well as any “general, technical or scientific facts within their specialized knowledge.” However, “[pjarties shall be notified of the material so noticed, and they shall be afforded an opportunity to contest the facts so noticed.” Id. See Assessors of Boston v. Ogden Suffolk Downs, Inc., 398 Mass. 604, 605-606 (1986). The critical component of these statutory provisions is that parties be afforded notice of and an opportunity to respond to the evidence on which an agency relies in rendering a decision. See, e.g., Doe, Sex Offender Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass. 764, 782 (2008) (agency erred in relying on psychiatric manual where petitioner not notified or afforded opportunity to refute that evidence); New York Cent. R.R. v. Department of Pub. Works, 354 Mass. 332, 336 (1968) (facts not properly before department where petitioner did not have opportunity to conte

Massachusetts Association of Minority Law Enforcement Officers vs. Gerald T. Abban & others. Suffolk. March 12, 2001. May 29, 2001. Present: Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ. Civil Service, Decision of Civil Service Commission, Judicial review, Police, Promotion, Testing, Eligibility list, Failure to raise issue before commission. Practice, Civil, Review respecting civil service. Police, Promotional examination. Constitutional Law, Equal protection of laws. Administrative Law, Agency’s interpretation of statute, Evidence. A judge in the Superior Court did not err in upholding a decision of the Civil Service Commission that a city’s police department improperly promoted certain minority police officers over nonminority police officers with higher test scores, a process known as “bypass,” where the department did not sustain its burden of proving that there was a reasonable justification for the bypasses, as required by G. L. c. 31, § 2 (b); absent such justification, the bypasses, based purely on race, were not consistent with “basic merit principles,” as defined in G. L. c. 31, § 1 (e). [262-265] Ireland, J., dissenting. In an action brought to review a decision of the Civil Service Commission, the trial judge properly denied a motion to supplement the administrative record, brought under G. L. c. 30A, § 14 (6), by an intervener who was not a party to the original proceedings, where the intervener did not, under the plain terms of the statute, show good reason for the failure to present the evidence in question in the proceedings before the commission. [265-267] Ireland, J., dissenting. Civil action commenced in the Superior Court Department on January 15, 1999. The case was heard by John M. Xifaras, J. The Supreme Judicial Court granted an application for direct appellate review. Rheba Rutkowski for the plaintiff. John M. Becker (Alan H. Shapiro with him) for Robert Bums & others. Christopher J. Muse for Gerald T. Abban & others. James F. Lamond was present but did not argue. Briefs were filed in the present appeal on behalf of the following police officers: Gerald T. Abban, James MacDonald, John McLean, Raymond R. Mosher, John T. Pels, and Richard M. Keefe (Abban brief); Robert Bums, Harry Byrne, Jr., Brendan Flynn, Bernard Greene, Brian Latson, Michael Locke, Richard MacDonald, Kelly O’Connell, Michael O’Connor, Norberto Perez, Thomas Settipani, Thomas Shone, Eugene Valliere, Herbert White, and Michael Wosny (Bums brief); Keith Carlson, James Kelly, Thomas Matheson, and John Rice (Carlson brief). Cordy, J. The Massachusetts Association of Minority Law Enforcement Officers (MAMLEO) appeals from a ruling of a judge in the Superior Court upholding a decision of the Civil Service Commission (commission) that the police department of Boston (police department) improperly promoted certain minority police officers to the ranks of sergeant and lieutenant over nonminority defendants with higher test scores. MAMLEO, a plaintiff intervener in the Superior Court proceeding and not a party to the original proceedings before the commission, argues that the judge erred as a matter of law in upholding the commission’s decision, and abused his discretion in denying MAM-LEO’s motion to supplement the administrative record. The police department did not appeal from the Superior Court judge’s decision. We granted MAMLEO’s application for direct appellate review, and now affirm the judgment of the Superior Court. Background. On January 30 and October 2, 1996, the police department made promotions to the ranks of sergeant and lieutenant from certified lists ranking each candidate based on his or her score on a September 12, 1992, civil service promotional examination. The examination had been developed by the State Department of Personnel Administration, now the human resources division (division), in compliance with a 1991 amendment to a Federal consent decree entered in Massachusetts Ass’n of Afro-American Police, Inc. vs. Boston Police Dep’t, No. 78-529-McN (D. Mass. 1980). See note 5, infra. For most of the promotions, the police department selected the highest scoring candidates in rank order. However, the police department departed from strict rank order in promoting six minority officers to sergeant and two minority officers to lieutenant, over various nonminority officers with higher civil service examination scores, a process known as “bypass.” Bielawski v. Personnel Adm’r of the Div. of Personnel Admin., 422 Mass. 459, 460 (1996). See G. L. c. 31, § 27. The examination scores of the minority officers who were promoted were no more than two points lower than those of the nonminority officers who were bypassed. As required by Massachusetts civil service law, the police department provided reasons for these bypasses to the State personnel administrator. See id. The reasons given were: (1) ”to ensure compliance with current EEOC [United States Equal Employment Opportunity Commission] guidelines,”* * (2) “as a result of the [c]onsent [d]ecree between the [police department] and [MAMLEO],” and (3) that the “promotion of a limited number of black officers to sergeant and lieutenant was constitutionally permissible” under the strict scrutiny standard applied to equal protection claims.* *** The personnel administrator approved the bypasses. The bypassed officers appealed to the commission pursuant to G. L. c. 31, § 2 (b), and the police department responded with a motion to dismiss. While the motion was pending before the commission, the United States Court of Appeals for the First Circuit issued its decision in Boston Police Superior Officers Fed’n v. Boston, 147 F.3d 13 (1st Cir. 1998) (Superior Officers), see note 10, infra, ruling that the consent decree relied on by the police department applied only to promotions to the rank of sergeant, not to promotions to lieutenant, and had expired in April, 1995. Id. at 17. The commission invited the parties to submit additional argument addressing the impact, if any, of that ruling on the cases pending before it. The police department and the bypassed officers each submitted supplemental legal memoranda arguing that the Superior Officers decision supported their respective positions. These memoranda were added to the record before the commission, which was not otherwise augmented by the parties. Administrative action. The fundamental purpose of the civil service system is to guard against political considerations, favoritism, and bias in governmental hiring and promotion. Cambridge v. Civil Serv. Comm’n, 43 Mass. App. Ct. 300, 304 (1997), and cases cited. The commission is charged with ensuring that the system operates on “[b]asic merit principles,” as defined in G. L. c. 31, § 1, absent properly documented and supported bases for departing from such principles in particular cases. In the context of carrying out these responsibilities, and after holding hearings on September 11, 1997, and September 2, 1998, the commission ruled that the bypasses proposed by the police department were improper. In reaching its decision, the commission applied the standard of review required by the governing statute, G. L. c. 31, § 2 (b): “to find whether, on the basis of the evidence before it, the appointing authority has sustained its burden of proving [by a preponderance of the evidence] that there was reasonable justification for the action taken by [it]” (i.e., promoting on considerations other than merit). Cambridge v. Civil Serv. Comm’n, supra at 303, citing Mayor of Revere v. Civil Serv. Comm’n, 31 Mass. App. Ct. 315, 320 n.10, 321 n.11, 322 n.12 (1991). In this context, reasonable justification means “done upon adequate reasons sufficiently supported by credible evidence, when weighed by an unprejudiced mind, guided by common sense and by correct rules of law.” Selectmen of Wakefield v. Judge of First Dist. Court of E. Middlesex, 262 Mass. 477, 482 (1928). Applying this standard to the police department’s enumerated reasons for departing from rank order promotions, the commission found them and the police department’s reliance on the Superior Officers case unpersuasive. In addressing two of the three reasons the police department had given for making the bypasses, the commission noted that the Superior Officers decision had made it clear that the consent decree had expired in April, 1995, prior to the 1996 promotions at issue here, see Superior Officers, supra at 17, and that the EEOC guidelines were not enforceable in this context in the absence of the consent decree. See note 4, supra. Therefore, neither the decree nor the EEOC guidelines provided a reasonable justification for bypasses that came after the decree’s expiration. That left only the police department’s constitutional argument to support the bypass promotions, i.e., that those promotions would survive a constitutional challenge under the equal protection clause. The commission found this constitutional argument to be misplaced, because its inquiry in a bypass appeal is very different from that required for an equal protection claim. In deciding bypass appeals, the commission must determine whether the appointing authority has complied with the requirements of Massachusetts civil service law for selecting lower scoring candidates over higher scoring candidates, and not whether those promotions might pass constitutional muster if challenged in some other forum on equal protection grounds. The commission concluded that the police department had failed to justify the challenged promotions as required by State law: “Upon expiration of the consent decree, the bypasses, based purely on race,” a factor listed in G. L. c. 31, § 1 (e), as incompatible with basic merit principles, “no longer comport” with such principles. As a remedy, the commission ordered the division to place the bypassed officers at the top of the list of candidates for promotion, reviving a candidate’s eligibility if necessary, so that the police department would have to consider each officer when it next made promotions to the rank of sergeant or lieutenant. Superior Court ruling. The police department sought review of the commission’s decision in the Superior Court pursuant to G. L. c. 30A, § 14, and G. L. c. 31, § 44, arguing that it properly considered race in the 1996 promotions. The police department reasoned that race-based bypasses were not inconsistent with established merit principles in this particular case, because the bypasses were being used to remedy the police department’s past racial discrimination. MAMLEO was allowed to intervene in the Superior Court action, and filed a motion seeking to supplement the administrative record with extensive evidentiary materials that were not before the commission. Those materials had been part of the underlying record used by the police department and MAMLEO to support their argument in Superior Officers, supra at 23-24, that the promotion in that case was a “sufficiently narrow remedy” to address past racial discrimination by the police department. The materials included expert witness affidavits purportedly demonstrating that the 1992 examination did not validly distinguish among officers scoring within three points of each other, that such officers must therefore be considered functionally equivalent for promotion purposes, and that their functionally equivalent test scores should be “banded” together for the purpose of making promotion decisions. MAMLEO’s motion to supplement the record was denied. The judge’s review of the commission’s decision was therefore based solely on the record that had been before the commission. “In reviewing [the commission’s] action under G. L. c. 30A, § 14 (7), it was not open to the Superior Court judge to substitute his judgment for that of the commission.” Thomas v. Civil Serv. Comm’n, 48 Mass. App. Ct. 446, 451 (2000). Instead, the judge was required by § 14 (7) to “give due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it.” Iodice v. Architectural Access Bd., 424 Mass. 370, 375-376 (1997); School Comm. of Brockton v. Civil Serv. Comm’n, 43 Mass. App. Ct. 486, 490 (1997). Here, the judge affirmed the decision of the commission: “This Court is satisfied that the administrative record fails to support plaintiffs’ contention that the [cjommission committed an error of law. Nor is the argument that the [cjommission’s ruling is arbitrary, capricious, or an abuse of discretion supported by the record. Rather ... the record indicates that the [cjommission acted lawfully and within its discretion by finding the [police department’s] bypasses lacked a sound and sufficient reason and clashed with basic merit principles.” The judge’s evaluation of the commission’s ruling is a sound one, “setting forth his reasoning . . . in a full and clear discussion,” Iodice v. Architectural Access Bd., supra at 371, and we employ it as the basis for our own brief analysis of the commission’s ruling. Like the Superior Court, we review the commission’s decision under G. L. c. 31, § 44, “to determine if it violates any of the standards set forth in G. L. c. 30A, § 14 (7),[] and cases construing those standards.” Plymouth v. Civil Serv. Comm’n, 426 Mass. 1, 5 (1997). The plaintiff bore the burden of demonstrating the invalidity of the commission’s ruling. Coggin v. Massachusetts Parole Bd., 42 Mass. App. Ct. 584, 587 (1997). Merisme v. Board of Appeals on Motor Vehicle Liab. Policies & Bonds, 27 Mass. App. Ct. 470, 474 (1989). This is a heavy burden, for we also give due weight to the commission’s expertise, as required by § 14 (7). See Iodice v. Architectural Access Bd., supra at 375-376; Protective Life Ins. Co. v. Sullivan, 425 Mass. 615, 618 (1997) (“In general, we grant substantial deference to an interpretation of a statute [e.g., the civil service statutes] by the administrative agency charged with its administration”); Boston Police Superior Officers Fed’n v. Labor Relations Comm’n, 410 Mass. 890, 892 (1991) (considerable deference generally accorded agency decision, unless agency commits error of law). The commission properly placed the burden on the police department to establish a reasonable justification for the bypasses, see Cambridge v. Civil Serv. Comm’n, 43 Mass. App. Ct. 300, 303 (1997), and properly weighed those justifications against the fundamental purpose of the civil service system, id. at 304, to ensure decision-making in accordance with basic merit principles. G. L. c. 31, § 1 (e). See note 9, supra. In rejecting the three reasons given by the police department for the challenged race-based bypasses — the consent decree (that had expired), the EEOC guidelines (that were no longer enforceable after the consent decree expired), and a constitutional rationale (that was inapposite) ■— the commission acted well within its discretion. In the circumstances of this case, the reasons proffered by the police department simply failed to justify the 1996 promotions at issue. The commission, and the Superior Court judge on review, correctly concluded that without the consent decree’s mandate, race, a consideration specifically identified by the Legislature in G. L. c. 31, § 1 (e), as inconsistent with basic merit principles, cannot be used to justify a bypass. While civil service law allows consideration of race in promotion decisions as part of an approved affirmative action plan (see note 12, supra), there was no such plan here and therefore the police department improperly based these promotions on race. We have examined the entire administrative record, see Mayor of Revere v. Civil Serv. Comm’n, 31 Mass. App. Ct. 315 322 (1991) (“we must inquire whether there is substantial evidence in the record before the commission to support the commission’s decision”), and taken into account whatever in the record would fairly detract from the supporting evidence’s weight. Cobble v. Commissioner of the Dep’t of Social Servs., 430 Mass. 385, 390 (1999). We conclude that the commission’s ruling is grounded in substantial evidence found in the administrative record. Its conclusion that the challenged bypasses are unjustified, and inconsistent with basic merit principles, is neither arbitrary, capricious, an abuse of discretion, nor a legal error. Denial of MAMLEO’s motion to supplement the administrative record. Each of MAMLEO’s contentions in this appeal relies on MAMLEO’s assertion that the 1992 promotional examination was invalid for use in a strict rank order promotion system. There was, however, nothing in the record of the proceeding before the commission that supported this contention. Therefore, MAMLEO moved to supplement the administrative record with evidence it contended would demonstrate that a more valid scoring system for the 1992 promotional examination, which treated candidates who scored within a three-point band as functionally equivalent (banding), would have eliminated any bypass challenges. (As noted above, no minority candidate who was promoted in 1996 based on that examination scored more than two points less than a nonminority candidate who was bypassed.) We therefore need only assess the validity of the judge’s denial of that motion, as this issue decides MAMLEO’s appeal. A motion for leave to present supplemental evidence pursuant to G. L. c. 30A, § 14 (6), is addressed to the sound discretion of the judge. Northeast Metro. Regional Vocational Sch. Dist. Sch. Comm. v. Massachusetts Comm’n Against Discrimination, 35 Mass. App. Ct. 813, 817 (1994). In assessing whether a judge has abused his discretion, “we do not simply substitute our judgment for that of the judge, rather, we ask whether the decision in question ‘rest[s] on whimsy, caprice, or arbitrary or idiosyncratic notions.’ ” Boulter-Hedley v. Boulter, 429 Mass. 808, 811 (1999), quoting Bucchiere v. New England Tel. & Tel. Co., 396 Mass. 639, 642 (1986). See Long v. George, 296 Mass. 574, 578-579 (1937), quoting Davis v. Boston Elevated Ry., 235 Mass. 482, 497, 502 (1920) (abuse of discretion defined as view or action “that no conscientious judge, acting intelligently, could honestly have taken”). Section 14 (6) provides: “If application is made to the court for leave to present additional evidence, and it is shown to the satisfaction of the court that the additional evidence is material to the issues in the case, and that there was good reason for failure to present it in the proceeding before the agency, the court may order that the additional evidence be taken before the agency upon such conditions as the court deems proper. The agency may modify its findings and decision by reason of such additional evidence and shall file with the reviewing court, to become part of the record, the additional evidence, together with any modified or new findings or decision” (emphasis added). MAMLEO argues that the additional evidence proffered is material to the issues presented in this case, see note 18, supra, but fails, under the plain terms of the statute, to show good reason for failure to present the evidence in the proceeding before the commission. MAMLEO explains that it was not a party to the proceedings before the commission, and thus cannot account for “why the underlying record [concerning promotional test validation and banding] was not presented along with the Superior Officers decision.” MAMLEO protests, however, that “the proper interpretation of c. 31 should not turn on a purported requirement that MAMLEO intervene in every agency proceeding involving the [police department].” The plain language of the statute imposes no such requirement. The police department has not provided a “good reason” for its “failure” to present the banding evidence to the commission, and MAMLEO “cannot account” for the police department’s failure to present such evidence, so the statutory requirements for supplementing the admin

Martin B. Kraft vs. Police Commissioner of Boston. Suffolk. November 1, 1993. March 10, 1994. Present: Liacos, C.J., Nolan, Lynch, O’Connor, & Greaney, JJ. Police, Assignment of duties, Authority of police chief, Firearms. Public Employment, Police. Contempt. Practice, Civil, Contempt, Appeal. In a contempt proceeding brought by a discharged police officer who had been reinstated pursuant to court order to his former position, the judge correctly concluded' that the police commissioner had acted in good faith in the exercise of his managerial discretion in requiring the officer to demonstrate his fitness to carry a service revolver and that the commissioner was not thereby in contempt of the previous reinstatement order. [239-241] A litigant who failed to assert any right to submit live testimony at a hearing on a complaint for contempt waived any such rights. [241] In a civil action, a party was not entitled to raise an issue for the first time on a second appeal, where he could have, but did not, raise the issue the previous time the matter was appealed. [242] Civil action commenced in the Superior Court Department on October 31, 1988. After review by this court, 410 Mass. 155 (1991), further proceedings were had before John C. Cratsley, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Harold• L. Lichten for the plaintiff. Susan M. Prosnitz, Special Assistant Corporation Counsel, for the defendant. O’Connor, J. The plaintiff, Martin B. Kraft, was appointed a Boston police officer in 1983 and served with an unblemished record for several years. In 1988 the defendant police commissioner terminated Kraft’s employment after discovering that, in completing application forms for the police officer position, Kraft had failed to disclose that he had been hospitalized for mental illness. At the time of his discharge, Kraft was a detective in the drug control unit. Kraft brought an action in the Superior Court challenging his discharge, and a judge determined that the commissioner’s action had been unlawful. After that determination was made, the judge conducted a hearing on damages incurred through January 16, 1990. The parties agreed that from that date forward Kraft would be placed on administrative leave with a rate of pay of a detective with the same rank and title he had held before his employment was terminated. After the completion of the hearings, the judge ordered the defendant to “reinstate [the] plaintiff ... to his former position as a detective assigned to the Drug Control Unit, without loss of benefits or seniority.” A few weeks later the judge amended the order to require the defendant to “reinstate [Kraft] to the position, by rank, title, and salary, of detective [not necessarily assigned to the drug unit] without loss of benefits or seniority.” The judge also awarded Kraft damages for “lost wages, benefits, overtime and paid detail during this period and damages for emotional distress” “up to and including January 16, 1990,” and attorney’s fees and costs. The judge stayed Kraft’s reinstatement to active duty, pending appeal. On May 15, 1991, this court affirmed the judgment. Kraft v. Police Comm’r of Boston, 410 Mass. 155 (1991) (Kraft I). The plaintiff appeals and the defendant cross appeals from an order that the judge issued on January 29, 1992, approximately eight months after this court’s decision. Kraft I. We transferred the case to this court on our own initiative. The January 29 order was in response to the plaintiff’s “Petition for Contempt: and/or Motion to Clarify and Enforce Judgment.” The facts relevant to the plaintiff’s petition, taken from the judge’s written findings, are as follows: “On June 13, 1991 [the] plaintiff returned to active duty. After a week of training at the Boston Police Academy, [the] plaintiff was assigned to the Identification Unit of the Department with the same rate of pay he was earning while on administrative leave. At this time [the] plaintiff was denied recertification for use of a department service revolver, despite [the] plaintiffs request for recertification. [The] [p]laintiff was informed that in order to be recertified for use of a handgun, he would have to take a psychological test and undergo an examination by the police department psychologist. After consulting with his attorney, the plaintiff complied with these requests. “On August 16, 1991 [the] plaintiff was provided a copy of the police department psychologist’s report. The report recommended that [the] plaintiff not be reinstated to the position of police detective and that he not be certified for use of a firearm. On August 19, 1991 counsel for [the] plaintiff was informed by counsel for the defendant that the plaintiff would not be recertified for use of a service revolver and that he would remain in his present assignment in the Identification Unit. The Identification Unit does not offer any opportunity for overtime work and, without a service revolver, [the] plaintiff has been unable to obtain other available overtime and paid detail work.” The judge did not hear testimony in connection with the plaintiffs petition. However, he was provided with numerous materials including an aEdavit of the plaintiffs counsel, an aEdavit of the plaintiff with the police department psychologist’s report and other exhibits attached, and the reports and curriculum vitae of a psychologist and a psychiatrist of the plaintiffs choosing. In his aEdavit, the plaintiff disputed several factual assertions bearing on his medical history as described in the department psychologist’s report. Also, in response to an assertion in the department psychologist’s report, he disputed that he had “ever tr[led] to ‘beat the test’ on any test given to [him] by a licensed psychologist or psychiatrist.” Repetition here of the contents of the psychologists’ and psychiatrist’s reports is unnecessary. It is enough to say that the department psychologist expressed an opinion that, in light of the plaintiffs being “unwilling or unable to be truthful when the truth may cast a negative light on him” and the plaintiffs mental health and substance abuse history, the plaintiff “is ... an unacceptable risk.” The department psychologist declined to recommend Kraft for reinstatement to the position of police detective, and he advised that Kraft “should certainly not have his firearm returned to him, nor should he be given a permit to carry a firearm at this time.” The psychologist chosen by the plaintiff, on the other hand, was highly critical of the department psychologist’s report, and concluded that Kraft “has made a remarkable recovery from the impediments of an early childhood and young adulthood” and “is capable of performing his job as Detective with the Boston Police Department,” including the carrying of a weapon. The psychiatrist’s report, too, was favorable to the plaintiff. The psychiatrist concluded that “Mr. Kraft is fit to be a police officer and it is safe for him to carry a gun.” By his “Petition for Contempt: and/or Motion to Clarify and Enforce Judgment,” the plaintiff seeks a judgment that, by refusing to recertify him to use a service revolver and by limiting him to “non-detective” services in the identification unit, thereby depriving him of an opportunity for overtime work and paid details, the defendant police commissioner violated the order of the Superior Court judge, affirmed in Kraft I, supra, that the plaintiff be reinstated to the position of detective. The plaintiff seeks an adjudication of contempt or, as an alternative if such an adjudication should be denied, a new order more clearly requiring the commissioner to re-certify him to carry a service revolver and to receive assignments customarily given to detectives. Only in that way, the plaintiff contends, will he be “made whole” following the unlawful termination of his employment as the judge’s prior order contemplated. Following oral argument on the petition and the submission of briefs by counsel, the judge awarded Kraft $38,668.73 in damages for the period from January 17, 1990, to August 19, 1991, the period the plaintiff was on administrative leave, plus interest, and ordered that the plaintiff’s petition be dismissed. Kraft appeals from the dismissal of his petition. The police commissioner cross appeals from the award of damages. In his memorandum of decision explaining his reason for dismissing the petition, the judge focused on “the well-recognized authority of the Boston Police Commissioner to determine the fitness of an officer to perform his duties including the fitness of an officer to carry a firearm. Nolan v. Police Comm’r of Boston, 383 Mass. 625, 630 (1981). See St. 1962, c. 322, § 1 (14); G. L. c. 41, § 98; Boston v. Boston Police Patrolmen’s (Ass’n), Inc., 8 Mass. App. Ct. 220, 225-227 (1979) (a ‘compendium of legislation’ regulating who shall carry a firearm and under what conditions ‘demonstrates a clear policy statement by’ the Legislature that ‘the carrying of firearms is to be controlled by specified officials’).” In addition, the judge noted that “it is also clear that a police commissioner may require an officer returning to active duty to undergo a psychiatric examination before reissuance of a firearm. Nolan, supra at 626 and 629 n.4; Boston, supra at 227.” The judge continued as follows: The “[pjlaintiff has suggested that the defendant’s requirement that he undergo a further psychiatric examination was undertaken in retaliation for his success in bringing his discrimination claim [Kraft I]. [The] [pjlaintiff has failed, however, to make a prima facie showing of retaliation. Radvilas v. Stop & Shop, Inc., 18 Mass. App. Ct. 431, 439-440 (1984). Absent a showing that the defendant has ‘abused his managerial powers,’ this Court has no authority to interfere with the defendant’s administrative prerogative to decide who shall carry a firearm. Boston, supra at 227.” “To constitute civil contempt there must be a clear and undoubted disobedience of a clear and unequivocal command.” United Factory Outlet, Inc. v. Jay’s Stores, Inc., 361 Mass. 35, 36 (1972). Commonwealth v. One 1987 Ford Econoline Van, 413 Mass. 407, 411 (1992). In this case, the police commissioner was commanded to “reinstate [Kraft] to the position ... of detective,” that is, to restore Kraft to the position from which he had been unlawfully removed. The commissioner was not commanded, however, to put Kraft in a better, more protected, position than he had been in before he was discharged. As the cases and statutes on which the judge relied establish, until his employment was terminated Kraft’s right to carry a service revolver, and therefore to perform police functions requiring possession of such a weapon, was subject to the police commissioner’s determination that he was fit to do so, and. that discretionary decision could properly have been aided by mandated psychiatric or psychological testing. On reinstatement, Kraft’s rights were subject to the same managerial prerogatives of the police commissioner. Thus, in the absence of a showing that, in requiring the psychological testing and in refusing recertification, the commissioner was engaged in pretext or device motivated by hostility toward the plaintiff rather than by a desire to fulfil his managerial responsibilities, see Mayor of Somerville v. Caliguri, 8 Mass. App. Ct. 335, 339 (1979), there was no inconsistency between the order of reinstatement and the commissioner’s conduct, and contempt was not established. It is apparent from the judge’s memorandum that he was satisfied that the materials submitted to him did not constitute a “prima facie showing” that the police commissioner’s insistence on psychological testing and his decision to deny recertification to the plaintiff had been motivated by concerns other than public safety. Stated another way, it is apparent that the judge concluded that, without assessing credibility but rather viewing the evidence contained in the affidavits and experts’ reports in their light most favorable to the plaintiff, it could not fairly be inferred that the police commissioner’s conduct was other than a good faith exercise of managerial discretion. The issue before the judge was not whether the plaintiff was fit to carry a service revolver. That decision was for the police commissioner to make. The issue before the judge was only whether the commissioner’s decision was made in a good faith effort to fulfil his statutory managerial function. If it was, there was no contempt of the Superior Court order. If it was not, contempt was established. We think the judge was correct in determining that no prima facie showing of pretext or device had been made. If the submitted materials are accepted in their light most favorable to the plaintiff, it has not been shown that, in requiring psychological testing or in relying on the department psychologist’s report despite the challenges to it, the police commissioner was not concerned with public safety but instead was motivated by a desire to retaliate or by other unlawful considerations. The plaintiff argues on appeal that the judge committed prejudicial error by not taking live testimony. We disagree. No contention was made below, nor is it made here, that, had the judge permitted live testimony, the plaintiff could have produced evidence in addition to the materials submitted to the judge that would have warranted a finding that the commissioner’s conduct was unlawfully motivated. Indeed, after submitting the materials to which we have referred, the parties engaged in oral arguments and submitted briefs without any suggestion that live testimony would be appropriate. The plaintiff waived any right he may have had to an evidentiary hearing involving live testimony. Milano v. Hingham Sportswear Co., 366 Mass. 376, 379 (1974) (“A defendant in a contempt proceeding may, of course, waive his right to an evidentiary trial. .'. . Such a waiver may result, in effect, from a failure to assert rights in the trial court in a manner which permits effective appellate review” [citations omitted]). We are satisfied that the judge’s order, affirmed in Kraft I, was a clear and unequivocal command, thus obviating the need for a “clarification” as sought by the plaintiff in lieu of, or in addition to, an adjudication of contempt. We also are satisfied, however, that the plaintiff has failed to show a “clear and undoubted disobedience” of that command. United Factory Outlet, Inc. v. Jay’s Stores, Inc., supra. No contempt has been proven. Thus, the judge’s order dismissing the plaintiff’s petition was correct. We turn very briefly to the police commissioner’s cross appeal. The commissioner challenges the award of compensation for the period Kraft was on administrative leave, that is, from January 17, 1990, to August 19,' 1991, when, as the judge concluded, the commissioner “lawfully removed [Kraft] from his street assignment.” The commissioner- argues that damages for that period should not have included compensation for loss of overtime or detail pay since such an award requires undue speculation. The commissioner had the opportunity to raise that question in his initial appeal (Kraft I) but did not do so and therefore waived a right of review at this stage of the proceedings. Judgment affirmed. In a reply brief to the Superior Court dated December 6, 1991, Kraft complained that the police commissioner had made factual assertions in his brief that were unsupported by the submitted materials. He stated, “All of these allegations are false, or at the very least disputed by [the] plaintiff. No affidavit or other evidence has been submitted by the defendant to support these spurious allegations. If such factual assertions are relevant they must be resolved after evidentiary hearing.” It is apparent from the judge’s memorandum of decision that he did not rely on the referenced factual assertions but instead considered whether the submitted material made a prima facie showing of retaliation or any other form of contempt.

Boston Police Superior Officers Federation vs. Labor Relations Commission. Suffolk. May 9, 1991. - August 13, 1991. Present: Liacos. C.J. Wilkins. Abrams. Nolan, O’Connor. & Greaney, JJ. Labor Relations Commission. Labor, Judicial review. The Labor Relations Commission erred as matter of law in dismissing a prohibited practice charge as time-barred under 456 Code Mass. Regs. § 15.03 (1986), where the alleged prohibited practice was of a continuing nature and occurred within the six-month limitation period for filing the charge. [892-894] Appeal from a decision of the Labor Relations Commission. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Alan J. McDonald for the plaintiff. Jean Strauten Driscoll for the defendant. Wilkins, J. The Boston Police Superior Officers Federation (federation) has appealed, pursuant to G. L. c. 150E, § 11 (1990 ed.), from a prehearing dismissal by the Labor Relations Commission (commission) of a charge alleging that the Boston police department (department) engaged in prohibited practices. See G. L. c. 150E, § 10(a) (1), (3) and (5) (1990 ed.). In this appeal, which we transferred here from the Appeals Court, the federation challenges the commission’s determination that the charge was time-barred by its rule, contained in 456 Code Mass. Regs. § 15.03 (1986), limiting the commission from entertaining a charge based on a prohibited practice occurring more than six months prior to the filing of the charge, except for good cause shown. The facts on which the commission based its decision are not in dispute. In January, 1988, Sergeant William Broder-ick, then a vice president of the federation, sought permission from the department to practice law during his off-duty hours. Prior to this request, the department had promptly granted such permission to several police officers, in accordance with a rule permitting employees to engage in off-duty employment subject to certain limitations and to approval by the police commissioner. In March, 1988, the department told Broderick that the off-duty employment policy was under review and that no action would be taken on his application pending this review. In December, 1988, a department attorney testified in another matter that Broderick’s request would be held until review of the policy was completed. In November, 1989, having heard nothing further, Broderick sent a letter to the police commissioner, stating in effect that he would assume that the department had approved his request unless it notified him in writing and provided the basis for denial. On December 16, 1989, Broderick received a letter from the department stating that his request had “not been approved” and that it, along with the off-duty practice rule, were “under review.” On January 17, 1990, the federation filed the charge with the commission, alleging that since December 1, 1989, the department had denied “Broderick permission to practice law on off duty time in retaliation for his exercise of protected concerted activities, and to discourage him in the exercise of union activity.” On May 21, 1990, after conducting an investigation, the commission dismissed the charge on the ground that there was no probable cause to believe that the charge was filed within six months of the date when Broderick should have known that the department was unlawfully failing to respond to his request. See City of Pittsfield, 4 M.L.C. 1905, 1908 (1978) (six-month period does not begin to run until complainant knew or should have known of the alleged violation). The commission also concluded that there was no probable cause to believe that the alleged violation was' of such a continuing nature that the six-month rule of limitations could be avoided. We conclude that, as a matter of law, the reasons the commission advanced for its dismissal of the complaint lack merit. The commission’s prehearing dismissal was a “final order” reviewable under G. L. c. 150E, § 11. Quincy City Hosp. v. Labor Relations Comm’n, 400 Mass. 745, 747 (1987). In conducting this review, we are governed “insofar as applicable” by the provisions of G. L. c. 30A, § 14 (1990 ed.). G. L. c. 150E, § 11 (1990 ed.). We may not disturb the commission’s decision unless “the substantial rights of any party have been prejudiced” for one of the reasons set forth in G. L. c. 30A, § 14 (7). We generally accord considerable deference to the commission’s disposition of a charge. See Quincy City Hosp. v. Labor Relations Comm’n, supra at 748; Brookline v. Commissioner of the Dep’t of Envtl. Quality Eng’g, 398 Mass. 404, 411 (1986). No such deference is appropriate, however, when the commission commits an error of law. See G. L. c. 30A, § 14 (7) (c) (agency decision “[bjased upon an error of law”). The federation alleged that since December 1, 1989, the department had engaged in a prohibited practice by denying Broderick permission to practice law on his off-duty time in retaliation for his exercise of protected union activities. The commission did not decline to issue a complaint against the department based on its assessment of the substance of the claim, but rather it decided that the federation came to the commission too late. In so ruling, the commission committed an error of law. Even if the department may have wrongfully denied Brod-erick his rights from some time early in 1988 and even if Broderick should reasonably have known of that denial sometime in 1988 (a doubtful point on this record which we shall assume in favor of the commission), the fact remains that, on the federation’s allegations, the department continued to deny Broderick his rights to a time within six months of the filing of the charge. The commission could not properly dismiss the charge simply because § 15.03 speaks of a prohibited practice that occurred more than six months before the filing of the charge. Although certain prohibited practices may have occurred more than six months before the federation filed its charge, an alleged prohibited practice occurred more recently. The department’s response of December, 1989, to Broderick’s request was within six months of the filing of the charge. The department’s failure to act at that time was an alleged independent wrong, making the bar of § 15.03 inapplicable to the charge in this case. See Chesapeake & Potomac Tel. Co. v. National Labor Relations Bd., 687 F.2d 633, 638 (2d Cir. 1982). Broderick was entitled to an answer from the department within a reasonable time. As to his future right to practice law part-time, he remained entitled to an answer even more than six months after a reasonable time had passed. If in December, 1989, the department failed to act in unlawful retaliation against Broderick, it would be unfair to deny Brod-erick any chance of agency relief simply because he should have known that the department had committed the same wrong, as to his earlier right to practice, more than six months earlier. There is no warrant for denying Broderick prospective relief simply because he could have complained sooner. The commission’s interpretation of its regulation encourages the filing of possibly premature charges and certainly encourages the filing of unnecessary charges. More importantly, the commission’s interpretation of its regulation unlawfully rejected a charge based on a wrong allegedly committed within six months of the filing of the charge. The order of the Labor Relations Commission dismissing the charge is vacated, and the matter is remanded to the commission for further consideration whether the matter should proceed to complaint. Another portion of the commission’s decision has not been challenged on appeal and stands unaffected by this opinion. So ordered. Section 15.03 of 456 Code Mass. Regs, provides: “Except for good cause shown, no charge shall be entertained by the Commission based upon any prohibited practice occurring more than six months prior to the filing of a charge with the Commission.” Section 15.03 is not expressed precisely in the form of a statute of limitations, that would become important in a proceeding only if pleaded by one charged with the violation of certain rights. It is phrased somewhat in the nature of a jurisdictional test. The federation does not argue that the department may not invoke § 15.03 on its own motion. We do not consider reasons in support of the commission’s decision that are advanced for the first time in its brief filed in this appeal. We need not reach the question whether the department’s conduct was a continuing wrong, a position the commission rejected without explanation. See Lynn Teachers Union, Local 1037 v. Massachusetts Comm’n Against Discrimination, 406 Mass. 515, 522-523 (1990) (continuing violation in employment discrimination); Mack v. Great Atl. & Pac. Tea Co., Inc., 871 F.2d 179, 183 (1st Cir. 1989) (same).