Fairhaven Police Chief Hiring Called ‘Erroneous,’ ‘Unlawful’ in Civil Service Committee Decision

FAIRHAVEN (WBSM) — A decision by the Massachusetts Civil Service Commission has put Fairhaven’s appointment of its next police chief in even more doubt, as the commission has ruled the town must follow civil service procedures to fill the position.

A bypass appeal filed by Fairhaven Police Sgt. Matthew Botelho, a 20-year veteran of the department who also sought the chief’s job, was dismissed nisi today by Civil Service Commissioner Paul M. Stein – but only on the technicality that Botelho’s appeal has come too early in the process before the official hiring of Sgt. Daniel Dorgan to replace outgoing chief Michael Myers, who intends to retire on August 10, 2024.

“Thus, at the time the Appellant filed this appeal, and at present, no vacancy has existed in the position of FPD Police Chief, and no promotion of any candidate has been made to succeed the incumbent Police Chief,” Stein wrote. “Accordingly, as a matter of law, as a bypass appeal, the Appellant’s appeal is premature and subject to dismissal at this time.”

Dismissed nisi (Latin for “unless”) means that Botelho can file his appeal again should he not be selected as the next chief – but it’s not the ruling on the appeal that will further complicate the the town’s chief search, but rather what the commission determined while reviewing that appeal.

READ MORE: Fairhaven Civil Service Error Complicates Police Chief Hiring

As previously reported, Sgt. Dorgan was selected by Town Administrator Angela Lopes Ellison last year, after Town Meeting voters had opted in May to remove the town’s police and fire positions from civil service.

This was the procedure to remove those positions from civil service, as Town Meeting voters had previously opted into the system back in 1954.

However, no one seemed to be aware of the fact that the chief’s position had actually entered civil service by way of ballot vote in 1938 – meaning it would need to be removed from civil service in the same manner, and the Town Meeting vote did not affect the position.

In his written decision, Commissioner Stein states that the Town of Fairhaven “agrees that, so long as the position of FPD Police Chief continues to remain in civil service, any vacancy in that position must be filled from the current FPD Police Chief eligible list in accordance with civil service law and rules.”

“Fairhaven has begun to take the actions they believe are necessary to lawfully remove the position of Police Chief from the civil service system (as well rectify, if necessary, the process to remove all other police and fire service personnel from the civil service system),” Stein wrote.

Stein also noted that “at this time, the precise process that Fairhaven must follow to remove the Police Chief from the civil service system remains unclear.”

“At a minimum, the process will require an affirmative town vote on properly framed ballot question(s) at the biannual town election on November 5, 2024,” Stein wrote. “It may also require other steps, including approval of a special act of the General Court, either before or after the vote.”

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In January 2023 – months before the May 2023 Town Meeting vote to remove police and fire personnel from civil service – the Fairhaven Town Administrator, Ellison, “entered into a Delegation Agreement with the Massachusetts Human Resources Division (HRD) for a Sole Assessment Center, to be used as the sole basis for scoring and ranking candidates for an eligible list for FPD Police Chief.”

As part of that Delegation Agreement, a panel of seven current or retired Massachusetts police chiefs conducted an assessment center examination on June 10, 2023, with six candidates participating. Of those six, Botelho received the highest overall score (89.20) as well the highest score in four of five of the individual exercises.

Because of his performance in the assessment, Botelho’s name was placed at the top of the eligible list issued by the HRD on August 1, 2023. Dorgan tied for third on the eligible list, and Stein’s decision made mention of Dorgan being “the subject of discipline in 2020” when he was determined to have shown up for work intoxicated.

“After the Police Chief eligible list was issued, on or about August 22, 2023, the Fairhaven Town Administrator decided to make an independent assessment of the six candidates who had completed the assessment center by conducting an (unrecorded) interview with each candidate at which the Fairhaven HR Director was also present,” Stein wrote.

Stein said Ellison then informed Dorgan he was the selection on or about September 13, 2023, and then informed the Select Board of that decision on September 18. Botelho was told on September 15 that he was not getting the job, without being given “reasonable justification” for being passed over.

“The parties also agree that the September 2023 selection process that was intended to pick the next FPD Police Chief did not conform to civil service law and rules in that it ignored the requirement that, in order to select a candidate to be the next FPD Police Chief other than the Appellant, whose name appeared first on the active civil service eligible list, Fairhaven was obligated to provide written notice to the Appellant explaining to him specific reasons that establish a ‘reasonable justification’ to bypass him in favor of the selection of another candidate and afford the Appellant a timely opportunity for de novo review of the decision by the Commission,” Stein wrote.

“The prior process also was problematic in that it appeared to rely almost exclusively on subjective interview performance or other undisclosed personal preferences over the more objective assessment center examination performance of the candidates,” Stein wrote.

READ MORE: The Complete Civil Service Commission Decision on Sgt. Matthew Botelho's Appeal

The commission ruled that if Chief Myers retires before Fairhaven has completed the process of legally removing the position from civil service, that “Fairhaven must comply with all civil service law and rules in place in order to fill that vacancy.”

In addition, it ruled Fairhaven cannot appoint someone on an “emergency” or “temporary” basis if the town is still in the process of removing the position from civil service, and his replacement “must be selected through a permanent promotion from the current FPD eligible list.”

“Should Fairhaven decide to fill the position on an acting, emergency, or temporary basis, or on a permanent basis with any person other than the Appellant, and the Appellant disputes that action, the Appellant will be allowed to move to reopen this appeal immediately for an expedited adjudication of the dispute, including, without limitation, such equitable relief as may be necessary to protect the Appellant’s civil service rights,” Stein wrote.

The commission also seeks a "roadmap" for how Fairhaven will fill the chief's position.

"In the interest of ensuring that the rights of tenured civil service personnel are protected to the full extent provided by civil service law and that their rights are not infringed by further erroneous and unlawful actions or delay, a roadmap for the future process required to fill the expected vacancy...will facilitate that objective," Stein wrote.

“Should the Appellant not be selected as the next FPD Police Chief and/or allege that Fairhaven is not in good faith compliance with the requirements of this Decision at any time on or before August 10, 2024, the Commission will consider a Motion to Revoke this Order of Dismissal Nisi and reopen the appeal for such expedited proceedings or investigation as may be necessary and appropriate,” Stein concluded.