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«THE COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. CIVIL SERVICE COMMISSION One Ashburton Place, Room 503 Boston, MA 02108 (617) 727 – 2293 BRENDAN ...»

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THE COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, ss. CIVIL SERVICE COMMISSION

One Ashburton Place, Room 503

Boston, MA 02108

(617) 727 – 2293

BRENDAN MURPHY,

Appellant

v. CASE NO: G1-10-348

BOSTON POLICE DEPARTMENT,

Respondent

Appearance for Appellant: Michael Rabieh, Esq.,

Lichten & Liss-Riordan, P.C.

100 Cambridge Street – 20th Floor Boston, MA 02114 Appearance for Respondent: Amanda Wall, Esq.

Boston Police Dep’t – Office of Legal Advisor One Schroeder Plaza Boston, MA 02120-2014 Commissioner: Paul M. Stein DECISION The Appellant, Brendan Murphy, appealed to the Civil Service Commission (Commission), pursuant to G.L.c.31, §2(b), from a decision by the Boston Police Department (BPD), as delegated authority of the Personnel Administrator of the Massachusetts Human Resources Division (HRD), to bypass Mr. Murphy for original appointment to the position of Boston Police Officer based on the results of a pre-employment psychological screening. A full hearing was held on August 3 and 5, 2011 at the offices of the Commission and was digitally recorded.

Fifteen (15) exhibits were entered into evidence at the hearing and three (3) additional exhibits (P.H.17A-17D, 18 & 19 were marked after the hearing). BPD called one witness and Mr.

Murphy called two witnesses and testified on his own behalf. The witnesses were not sequestered. Both parties subsequently submitted proposed decisions.

FINDINGS OF FACT

Based upon the Exhibits; testimony of the Appellant, U.S. Army Captain Matthew Christopher, Dr. Ronn Johnson, Ph.D. and Dr. Mark Schaeffer, Ph.D., and inferences reasonably drawn from that evidence as I find credible, I make the findings of fact set forth below.

1. The Appellant, Brendan Murphy was born and raised in Dorchester, Massachusetts. He struggled in elementary school and, eventually, was diagnosed with Attention Deficit/Hyperactivity Disorder (ADHD).1 He was treated with therapy to learn reading and memory skills and was on a regimen of Ritalin and, later, Adderall, which remitted his symptoms.

He was an average student with no history of disciplinary issues. After receiving approval from his doctor, he discontinued taking Adderall to improve his sleeping and in anticipation of joining the military, without noticeable effects on his academic performance or return of symptoms of ADHD. The Commission takes administrative notice that sleep disturbance is a common side effect of taking Adderall. (Exh. P.H.19; Testimony of Appellant: Dr. Johnson & Dr. Schaefer;

Administrative Notice [sideeffectbasd.com/Adderall-side-effects (visited 8/14/2013); webnd.com/ drugs/drug-32556-Amphetamine (visited 8/14/2013))

2. While in high school, Mr. Murphy spoke to a U.S. Marine Corps recruiter and decided he would enlist after graduation. He aspired to become a police officer and believed that military service would prepare him for that career. His mother objected to his enlistment, however, and, in order to follow her wishes, he agreed to go to college first, and enrolled in Norwich University, a military-style college in Northfield, Vermont. (Exhs. 1, 8, 14,P.H.19 Testimony of Appellant, Dr. Johnson & Dr. Schaefer) According to the Diagnostic and Statistical Manuel of Mental Disorders (DSM-IV), ADHD includes three subtypes, a Predominantly Inattentive type, a Predominantly Hyperactive-Impulsive Type and a Combined Type.

Although which of these sub-types applied to Mr. Murphy was not stated explicitly, There is no evidence as to which of these sub-types applied to Mr. Murphy. (Exhs. 7,8,14,15,P.H.17B & P.H.19 Testimony of Appellant, Dr.

Johnson & Dr. Schaefer)

3. Mr. Murphy liked his college military classes but otherwise did poorly, frequently partying and skipping classes. He was drinking beer with his rugby team and about 100 other underage students one night when the police arrived and everyone fled. Mr. Murphy obeyed the police order to stop and submitted to a breathalyzer test which showed no intoxication. He was charged with being a minor in possession of a malt beverage, paid a $100 fine, and performed community service. He left Norwich University after three semesters and enlisted in the Army.

(Exhs. 14, Testimony of Appellant).

4. Mr. Murphy returned to Dorchester where he hung out with friends awaiting his call to military service. He served on active duty with the U.S. Army for five years beginning in August 2003. He was offered the choice of assignment as a military police officer or a medic, and he chose the latter. He went through a 16 week training that included both rigorous academic and hands-on medical practice. He completed the training successfully and served two tours in Iraq as a combat medic, one in charge of a forward aid station and a second tour as a combat medic embedded with an infantry unit. He was required to participate in direct combat missions, assist wounded soldiers while under fire and perform emergency treatment of lifethreatening injuries. He also conducted medical clinics for both soldiers and Iraqi civilians. He carried a rifle and a sidearm. (Exhs. 1 & 2: Testimony of Appellant & Capt. Christopher) Mr. Murphy’s work as a combat medic required concentration, a lot of precision, 5.





attention to detail and good memory skills. For example, he was required to keep careful track of the medical supplies needed to be kept in stock, which included prescription drugs and narcotics.

As an infantry combat medic, Mr. Murphy had to remember the medical history of all forty soldiers in his unit, since their lives depended on knowing what allergies they each may have had should they need emergency medical treatment on the battlefield. He was promoted four times while on active duty, and achieved the rank of Sergeant/Health Care Specialist (E-5) which is a feat rarely achieved by an army medic. He was envied by his infantry colleagues because he qualified with the M-16 and M-4 rifles at the level of “expert” which demonstrates aboveaverage degree of proficiency after considerable practice. He was Honorably Discharged in November 2008. (Exhs. 1 & 2: Testimony of Appellant & Capt. Christopher) Soldiers are not allowed alcohol while “in theatre” (except for two beers on Super Bowl 6.

Sunday), which is a strictly enforced rule. Mr. Murphy had no difficulty complying with this rule and he abstained from drinking while stationed in Iraq. Upon his return, he did drink frequently for a while, which is not uncommon for soldiers returning from a combat theatre. His frequency of drinking decreased over time and he stopped drinking entirely when he began to prepare for admission to the police academy. He last consumed five or more beers in 2009 on St. Patrick’s Day. (Exh 8;Testimony of Appellant, Capt. Christopher & Dr. Johnson) Mr. Murphy admits to having hangovers on occasion, but he never engaged in “Binge 7.

Drinking” in which he tried to consume a large number of drinks in a short period of time with the intent of getting high. Save for the one incident in college, he has never been involved in any motor vehicle accident, driving offense, fight or disciplinary matter in which alcohol was involved. (Exhs. 1, 2; Testimony of Appellant & Dr. Schaefer)

8. Following his discharge from active duty, Mr. Murphy continued his military service and joined a unit of the Army National Guard where he is a battalion sergeant, responsible for the unit’s paperwork and training of the soldiers in his unit in combat medical care. He was selected to organize and led an honor guard to perform a military funeral for a fallen solder, which required 9 hours of intense training to learn the complex logistics for such a ceremony, which he pulled off successfully. (Exh. 1; Testimony of Appellant & US Army Capt. Christopher) Mr. Murphy’s National Guard commanding officer, Capt. Matthew Christopher, testified 9.

at the Commission hearing about Mr. Murphy’s job performance. Based on his observations of Mr. Murphy while under his direct supervision, which included a period of time prior to the date he was bypassed, he quickly found him a dependable soldier whom he regarded as very responsible and diligent. He observed no indications that Mr. Murphy has a problem with drugs, alcohol, stress, inattentiveness or attention to detail. (Testimony of Capt. Christopher)

10. Mr. Murphy has returned to college and has been studying for a degree in criminal justice while working full-time in his family’s funeral home business. His academic performance has been satisfactory. (Exhs 1, 2 & 14; Testimony of Appellant & Dr. Schaefer)

11. Mr. Murphy participates in community volunteer activities, including the Savin Hill Civic Association and the Savin Hill Baseball League. (Testimony of Appellant)

12. I saw no sign of inattentiveness, forgetfulness or hypersensitivity in Mr. Murphy’s appearance at the Commission hearing. To the contrary, he was a particularly candid, selfassured witness with a keen memory for events, be they as far back as his childhood recollections or as recent as his interviews with the BPD detective and psychological screeners.

(Testimony of Appellant) The Appellant’s Applications for Appointment to the BPD

13. In April 2009, Mr. Murphy studied for and took the civil service examination for entry level police officer. He achieved a score of 99 (out of a possible 100). (Testimony of Appellant)

14. In April 2010, Mr. Murphy’s name appeared on HRD Certification No. 290999 issued to BPD. He completed the standard BPD Student Officer Application, which included the required neighborhood and character letters of reference, including a reference from his future mother-inlaw, all of which were uniformly positive. (Exh. 1 & P.H.18)

15. Mr. Murphy’s application was scrutinized by a thorough background investigation conducted by BPD Detective Kenneth Westhaver of the BPD’s Recruit Investigations Unit (RIU). Detective Westhaver’s report noted the uniformly positive information about Mr.

Murphy’s military record and his references. His academic record was noted, as was his driving history, and his sealed record for a charge of a minor in possession of alcohol while he was at Norwich University. The later incident was fully explained to Det. Westhaver by Mr. Murphy during his background interview. Det. Westaver’s report noted nothing problematic about anything in Mr. Murphy’s record. (Exh. 2; Testimony of Appellant)

16. Following submission and review of the RIU investigation report, the BPD extended Mr.

Murphy a conditional offer of employment, subject to completing a medical/psychological examination and a physical ability test. (Undisputed Fact)

17. The BPD conducts the psychological screening of police officer candidates pursuant to the terms of HRD’s Medical and Physical Fitness Standards Tests for Municipal Public Safety Personnel, which are described in HRD’s Physician’s Guide – Initial-Hire Medical Standards (HRD Medical Standards). (Exh.9)

18. The HRD Medical Standards state:

“Each municipal police department shall establish and implement a pre-placement medical evaluation process for candidates. During medical evaluation, the physician shall evaluate each individual to ascertain the presence of any medical conditions listed in these standards, or any medical conditions not listed which would prevent the individual from performing the essential job functions without posing significant risk. It is our intent to encourage the use of professional judgment regarding medical conditions that are not specifically listed. A candidate shall not be certified as meeting the medical requirements of these standards if the physician determines that the candidate has any Category A medical condition specified in these standards. Furthermore, a candidate shall not be certified as meeting the medical requirements of these standards if the physician determines that the candidate has a Category B medical condition that is of sufficient severity to prevent the candidate from performing the essential functions of a police officer without posing a significant risk to the safety and health of him/herself or others.” (Exh. 9, p. 5) (emphasis added)

19. Category A and Category B “Psychiatric” medical conditions are defined as follows:

Category A medical conditions shall include: a. disorders of behavior, b. anxiety disorders, c. disorders of thought, d. disorders of mood, e. disorders of personality.

Category B medical conditions shall include: a. a history of any psychiatric condition, behavior disorder, or substance abuse problem not covered in Category A. Such history shall be evaluated based on that individual’s history, current status, prognosis, and ability to respond to the stressors of the job, b. any other psychiatric condition that results in an individual not being about to perform as a police officer.

(Exh. 9, p.16)

20. The purpose of a psychological evaluation is to identify job-related dysfunctions that “rule out” a candidate from serving as a police officer. A current diagnosis of a mental disorder as defined by the Diagnostic and Statistical Manual of Mental Disorders (DSM) published by the American Psychiatric Association is sufficient to qualify as a Category A medical condition. A Category B psychiatric condition is manifest by substance abuse or any other job-related patterns of behavior or cognitive dysfunction that are present and justify a clinical judgment that a candidate’s current impairment will interfere with his or her ability to perform the essential functions of the job of a police office. (Testimony of Dr. Johnson & Dr. Schaefer)

21. In or about July 2004, BPD submitted, and HRD approved, the BPD’s Proposed Psychological Screening Plan, which provided for a three-phase testing and interview process.

Phase I – Administration of two written, computer scored psychological tests – the Minnesota Multiphasic-Personality Inventory – 2 (MMPI-2), and Personality Assessment Inventory (PIA). In addition, candidates are required to complete a biographical history questionnaire.

Phase II – A thirty (30) minute interview performed by the BPD’s staff psychiatrist.

Phase III – If the Phase II interview raised any suitability issues, a second “in-depth clinical interview” by a Board Certified Psychiatrist, who generates a comprehensive report. The BPD staff psychiatrist will review this report and concurrence will be recorded.

(Exh.10)



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