State panel overrules fire chief

Civil service vacates ’07 decision on captain

By Connie Paige
Globe Correspondent / September 17, 2009

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Belmont’s fire chief passed over two candidates for a coveted captain’s post two years ago, instead choosing a third lieutenant on the force who had earned a lower score on a civil service examination.

The decision by Fire Chief David L. Frizzell surfaced in a recent ruling by the state Civil Service Commission, which vacated the appointment of Kenneth G. Gardiner Jr. as captain, and ordered Frizzell to restart the hiring process for the post.

A lawyer representing one of the bypassed candidates, Lieutenant Stephen J. Wilcinski, who had appealed Frizzell’s choice, called it “exceedingly rare’’ for the commission to overturn an appointment by a local chief.

“I think that speaks volumes to the strength of Mr. Wilcinski’s case,’’ Brian E. Simoneau said in an interview on behalf of his client.

The town is asking for reconsideration of the commission’s finding, to ensure that all three candidates remain on a civil service list for promotions.

Frizzell declined to comment on the commission’s decision or the town’s motion for reconsideration, saying they involve confidential personnel matters and pending litigation.

The town’s lawyer on the case, Darren R. Klein, said municipal officials are “considering their options’’ but declined further comment.

Gardiner said he had no comment.

The third candidate, Lieutenant Daniel P. Scannell, had scored the highest of the three on the exam, with 91 points out of 100, but did not appeal the chief’s decision.

“I was disappointed I was not selected, but I could accept they would bypass me for Steve,’’ Scannell said of colleague Wilcinski, who has 13 years of seniority over him with the department. But, Scannell continued, he “was surprised’’ that Gardiner landed the job after receiving the lowest score.

Still, Scannell said, he believes Frizzell cares about the members of his force and tries to ensure their safety. “He is a good guy,’’ Scannell said.

The state commission voted 3-2 on Aug. 20 to re quire the town to vacate Gardiner’s appointment.

According to the decision, while Frizzell believed he held “wide subjective discretion’’ in the appointment, the commissioners found he “violated basic merit principles’’ by ignoring test scores, discounting day-to-day performance, and failing to consider experience and knowledge of firefighting techniques or procedures. The decision says Frizzell “was or should have been aware’’ of the potential harm to department morale when he bypassed the top scorers, and his decision “sent a clear message, either consciously or unconsciously,’’ that exam scores and seniority are secondary to a “subjective evaluation of the competing candidates.’’

In a dissenting opinion, the Civil Service Commission’s chairman, Christopher Bowman, wrote that it is not within the panel’s authority “to substitute its judgment about a valid exercise of discretion’’ by a local supervisor.

Under civil service rules, a supervisor must choose the candidate with the highest score on a state promotional examination, or provide a letter explaining the reasons for the bypass. The Belmont case reflects a clash between a supervisor using wide discretion to make an appointment and the commission, which enforces the system’s regulations.

The case dates to September 2007, when Frizzell appointed Gardiner to one of the Fire Department’s five captain slots.

According to the decision written by commission member Daniel M. Henderson, Wilcinski had been on the force since 1986, while Gardiner had joined it in 1997, and Scannell in 1999.

The decision says that on the civil service exam, Wilcinski scored 84, besting Gardiner’s score of 76. While Wilcinski had logged about 700 hours working as shift commander, sometimes serving as the highest ranking fire official on duty, Gardiner had only 78 hours in the position, the decision says. It also paraphrases Frizzell as describing Wilcinski as “a good firefighter, a good company officer, and a good lieutenant.’’

The decision goes on to describe Frizzell’s decision process, based on the commission’s hearings in the case:

The screening of the candidates included an oral interview, written statements, and a presentation regarding the use of seatbelts. Frizzell rated the candidates in five areas: leadership; attention to detail; ability to communicate; ability to follow verbal and written directions; and ability to properly interpret written documents. Frizzell rated Gardiner higher than the others on all five counts.

During the process, Frizzell did not review the candidates’ past work performance, evaluations, or input from supervisors or subordinates. He also did not question the candidates as to their knowledge about firefighting tactics and procedures, which are key responsibilities for a captain. However, Belmont Fire Captain Wayne Haley, who had worked with Wilcinski for 10 years and also testified before the commission, characterized Wilcinski’s performance at fire scenes as outstanding.

In testimony before the commission, Frizzell mentioned that in rating the candidates, he considered Wilcinski’s use of sick leave. According to the decision, however, Frizzell did not include that concern in the required letter stating the reasons for bypassing him.

Frizzell told the commission that Gardiner had exhibited leadership in his post as president of the firefighters union. However, Frizzell also said that leadership of the union did not involve the same duties as the job of captain, which calls for commanding firefighters and equipment at fire scenes and imposing discipline.

Frizzell testified that Gardiner had more specialized training than Wilcinski, but that Wilcinski had completed a higher level of certification as fire inspector, which qualifies him to enforce the fire safety code.

Frizzell also praised Gardiner’s PowerPoint presentation on seatbelts, while saying Wilcinski “submitted a bunch of documents that he had gotten off the Web.’’ Further testimony indicated that Wilcinski had been instructed to design his presentation as if he were giving it to his group as shift commander, and that the PowerPoint computer program was never used by the department in that situation.

Connie Paige can be reached at