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HARVARD — Harvard Police Chief Edward Denmark’s decision to promote one of his patrolmen to sergeant, over another similarly qualified sergeant, was based on flawed reasoning and a biased review panel, according to an arbiter’s decision made against the police department on March 8.

In 2008, Patrolman William Castro was passed over for promotion to the rank of sergeant by Denmark and the selectmen. The promotion went to then-patrolman James Babu instead. Following Denmark’s decision, Castro, 52 of Shirley, and the police union appealed, claiming the selection process was flawed and did not consider Castro’s seniority. Following a monthlong process, a professional arbiter ruled that Castro was correct.

“We’re shocked at the arbiter’s decision,” Denmark said about the decision “The union’s attorney did a good job presenting the case. When we left, I was confident the town prevailed.”

Despite the chief’s reaction, Castro himself was not surprised by the decision.

“After being a police officer for 30 years and a practicing attorney for 13, one of the things that I know happened is that, in the end, fairness prevails and right will win in the end,” he said. “In this case, I believed from Day One that I was right. In my 30 years of police work, I have never filed a grievance. I have never gone against any chief or spoken against any supervisor. This is the first time.

“And I knew that the chief’s process for the selection of the sergeant position was one-sided,” Castro said, “I knew that once I started investigating and finding out happened and I wanted to find out why.

Castro noted that he scored a 71.701 on his evaluation, while Babu scored 71.823.

“How does one-tenth of one point separate two candidates? It’s statistically insignificant,” he said. “I knew that when the chief told me that experience wasn’t included, seniority wasn’t included, I knew that something was wrong.”

Arbiter Parker Denaco agreed with Castro and his union’s attorney, Alan Shapiro, that Sgt. James Babu of Lancaster was improperly selected for the sergeant’s position over Castro. Denaco would call the process “fatally flawed.”

Left to be resolved is how the town will honor the binding decision. The town could give Castro the difference in pay, replace Babu with Castro as the town’s second sergeant or simply promote Castro to sergeant. At this point, Denaco said the town isn’t planning an appeal to Worcester Superior Court.

The arbiter found solid footing for a grievance. Denaco decided the town broke with the criteria mutually agreed to in the contract between the town and Local 202 of the Massachusetts Coalition of Police. Denaco said the contract called for consideration of seniority and past experience, criteria that was either ignored, bypassed or violated.

Denaco praised Denmark for his “assessment-center” approach to screen candidates via a panel of judges.

“The chief, in particular, is to be commended for his efforts to this end,” he said. However, Denaco found the union never agreed to a waiver allowing Denmark to disregard “seniority, qualifications, past experience and skills and requirements” in favor of the strict approach that Denmark used.

In a June 2007 with his patrolmen, Denmark lobbied for the assessment-center promotion approach, which involves the use of a panel of impartial assessors to decide who receives a promotion, which was received favorably. Denaco said, however, it wasn’t an official union meeting nor was a seniority-exception to the contract reduced to writing.

“All this stems from ambiguity in contract language,” said Denmark. “They interpret it one way, I interpret it another. Of course, if it wasn’t in writing, it didn’t happen. Live and learn.”

The arbiter dug into the substance of the grievance, outlining two procedural town missteps.

The first “fatal flaw,” as Denaco called it, is that Denmark claimed experience beyond five years isn’t a good indicator of supervisory ability. Denaco held differently, stating Castro’s 15-month edge over Babu was improperly disregarded. When the time to make a decision came, Denmark erred by deciding to make a “new, non-contractual determination that ‘experience beyond five years’ was immaterial.”

Seniority was ignored, minimized or otherwise circumvented, Denaco wrote.

“If you apply that in the strictest sense for me, then I peaked in 1985,” said Castro. “Since 1985, I received my undergraduate degree, I received my law degree. I was acting chief. In the chief’s analysis, that carries absolutely no weight.”

“The arbiter was very clear when he ruled that management was seeking to discard or immobilize the seniority qualifications, past experience and skills and requirements of the position. Does that make up for the one-tenth of one percent difference that the chief says exists between myself and Babu?” Castro asked.

Regarding the five-year limitation, “This is something the chief did not tell anybody about. I had no idea until long after the chief’s decision had been made that this limitation or restriction was part of the process,” Castro said.

The second flaw was Denmark’s selection of Sgt. John Coates to serve as a policing skills expert. Denaco could not validate that reasoning and noted Denmark told the selectmen at the outset of the process that no one with ties to the town or the department would be used to judge candidates.

Further, Denmark conceded in testimony that the International Task Force on Assessment Center Guidelines, a recognized screening tool, advises “a participant’s current supervisor should not be involved in the assessment of a direct subordinate when the resulting data will be used for selection or promotion purposes.”

Denaco praised Denmark, saying the chief, “conveyed the characteristics of a dedicated, articulate, skilled and intelligent police professional. His testimony was credible and sincere. He gave the appearance of believing what he was saying, had reasons for what he was doing … and was committed to making it work.”

However, “it was perhaps his passion for the assessment center and his commitment for making it work that tipped that mechanism over the brink,” Denaco wrote.

“Using Coates as an assessor should have risen to the level of ‘problematic at best,'” wrote Denaco, who explained that the union testified there was a long standing hostility between Coates and Castro, which they believed the chief was aware of. While Denmark may have believed Coates would fairly grade Castro at the outset, Denaco said that’s not what happened.

“Whether (he gave the Castro) good ratings or not, Coates simply should not have been an assessor under the circumstances known both before and confirmed after he was involved in that process,” Denaco said.

In 2006, Castro sought Denmark’s assurance Coates would not be involved in the screening process. The request prompted Denmark to ask Coates if he could be objective in judging Castro’s abilities. Denaco noted Coates responded he had no animosity towards the Castro and would be fair in the process. As a result, Denmark included Coates as a professional police screening panelist.

However during an interview last week, Denmark told the Harvard Hillside there was no evidence of any friction between Castro and Coates. “There was an allegation made after the fact by Bill alleging that there was some problem,” he said. “In the years I’d been there, I never saw any mistreatment of Bill by the sergeant at any time. Had I seen it, I wouldn’t have included him.”

“John is a very fair and impartial and competent sergeant and so I thought it was only fair that he be included in the process,” Denmark said, adding Coates was the most familiar with sergeants’ job functions. “Since Coates wasn’t his supervisor, I didn’t see a problem using him.” Denmark said that Coates, then a night supervisor, was not then serving as Castro’s day-shift supervisor.

“The chief was well aware of the friction between Coates and I and there was documentation on it,” Castro said. “That’s why I specifically asked that Coates not sit in judgment of me.”

“It came as a shock to me that ultimately he was included,” Castro said, adding he didn’t find out about it until after the process was complete.

But Denaco said the grades Coates assigned to the finalists revealed more of the history. He noted Coates ranked Babu at 4.9 overall, which was in line with the grades he received from other panelists. In addition to Coates’ grade, Babu received scores of 4.73, 5.3 and 5.2 from the other panelists.

In contrast, Coates ranked Castro at 3.07 overall. Castro received 4.22, 5.0 and 4.76 from the other panelists.

Coates scores weren’t “wrong,” Denaco said but, as the union argued, “If Coates was in the same ballpark as the others when evaluating Babu, he wasn’t even in the same league when assessing (Castro).”

As a supervisor, Coates should not have been an assessor before the fact, and upon review of the scores, should have been factored out of the process after ranking Castro, the arbiter concluded.

“This is the first of well over 12-15 promotional processes I’ve been involved in and this is the first one that’s ever been challenged,” said Denmark

Denaco said the missteps were contract violations. However, the parties agreed to put the remedy portion of the arbitration on hold. Denaco would control over the case for a 60-day period so the two sides could meet and come to an agreement on Castro’s future.

“In the environment of a workforce this small, all the employees/unit members/patrol officers must be able to work together,” Denaco said. The opinion isn’t about Castro, Denaco stressed, explaining his decision is based on a flawed promotion process.

The selectmen meet again June 22. It was not immediately clear if the selectmen will take up the issue at that time, and if so, whether it will be in open or executive session. Denmark said the town could appeal to Superior Court but decided not to. “I don’t think the door’s closed yet” on which approach to take to resolve the matter, he said.

“I can tell you that only two sergeant positions were budgeted for so, there would not be money in the budget for a third sergeant this year. I’m not sure whether or not the arbiter even has the authority to order another promotion when one doesn’t exist,” said Denmark. “I believe it’s beyond the arbiter’s authority to order another position (be created).”

Denmark did say the town would benefit from a third sergeant.

“That goes without saying,” he said. “However an equally good argument can be made, because, of our small complement of officers, we’d almost be 50-percent supervisors, 50-percent workers.”

“While it would be great to have supervisory coverage 24/7, (on) days, I’m in charge,” Denmark said.

“I want the selectmen to do the right thing,” Castro said. “You know, mistakes were made but the bottom line is it cost me the promotion and it’s unfair that I not be promoted over things I had no control over.”

“I studied hard, I relieved the stop score the objective written test and I’ve been a loyal employee for 30 years with an unblemished record,” said Castro.

“I have to tell you — in my 20 years, one of the toughest things I had to do was call Bill and tell him he didn’t get the promotion,” Denmark said.