Police Promotions in the Municipal Fire and Police Civil Service

1. Police Promotions in the Municipal Fire and Police Civil Service • House Study Resolution 149 • Labor and Industrial Relations Committee October 9, 2012

2. Promotions Under Existing Law: • Applicants must pass a civil service exam administered by the Office of State Examiner in order to be placed on the eligibility list. • The promotion must be offered to the person on the eligibility list with the greatest total departmental seniority. • Probational appointees must pass a working test period of 6 to 12 months.

3. The Promotional Examination • Tests are developed under a content-validity strategy for a one-time use in a specific city. Criterion validity would not be possible for most promotional exams. • While individual grades are returned to the jurisdictions, MFPCS law specifies that the test be used on a pass/fail basis - anyone scoring 75% or higher is placed on an eligibility list.

4. We already have a validated test score from the State Examiner -

5. Why can’t we just add that score to years of seniority?

6. Problems With Ranking vs. Pass/Fail • A different process is used to develop a test that will be used for ranking purposes. • You must be able to provide documentation that those who score better on the test are better performers on the job. Custom tests for individual departments for a one-time use would not allow for the needed criterion study. • The cost is much higher than the budget we have available.

7. How can State Civil Service and State Police Civil Service get by with using tests for ranking?

8. They use Contracts with Professional Consultants • They develop a significantly smaller number of tests per year. • They take much longer than 3 months to complete their studies. • Because of the scope of their work, they are able to develop criterion-related validity data to support ranking of test scores.

9. While State Civil Service and State Police Civil Service develop about 1-2 new tests per year, the Office of State Examiner had a 5-year average of 206 new tests per year.

10. $3,770 $33,334

11. If the OSE used the same vendors for 100 police promotional exams: 100 X $33,334 = $3,333,400

12. Impact on Current Budget in Millions: Total Budget of 5.2 M + $3.3 M $1.9 M

13. Source of Funding • For the last 20 years, funding for the Office of State Examiner has been from the MFPCS Operating Fund which is derived from a tax on the gross direct insurance premiums in the state. • Additional funds would have to come from State General Fund.

14. 141 Jurisdictions 52 Jurisdictions 20 Employees 19 Employees

15. If we do not use the State Examiner test other than from a pass/fail standpoint - what else is available?

16. Two ideas involving multiple hurdles: Whichever alternative is considered should be optional for local jurisdictions, and based upon the local governing authority passing an ordinance indicating its intent --similar to the new Deputy Police Chief option.

17. Both alternatives still involve passing the civil service test to create a list of eligibles.

18. First Alternative: • Create an optional procedure to allow selection from among the highest 3 in terms of seniority. • Provide for an appeal to the local civil service board, if senior eligible(s) are passed over, for the opportunity to review the procedures used in making the selection.

19. Second Alternative: • Create an optional procedure where the local governing authority may develop it’s own battery of selection criteria to evaluate those who pass the civil service exam. • Combine with seniority. The decision would need to be made whether to force appointment of the top applicant, or to provide a choice in selection.

20. What tests might the appointing authority include?

21. Any Combination of: Psychological Exam Physical Agility Test Structured Interview Evaluation of Past Disciplinary Actions Training and Experience Rating Assessment Center PLUS SENIORITY

22. What other changes to the law are necessary? • MFPCS law currently allows any examination administered by the State Examiner to be reviewed by the local civil service board up to 6 months following receipt of grades. If the board finds that it was unfair, it may order a regrading or an entirely new exam. • Any procedures used by the appointing authority that effect promotions should also be subject to the same criteria.

23. Local Departments Electing to Use the Proposed Alternative Promotional Methods: • Are responsible for additional costs. • Are responsible for necessary record-keeping. • Are responsible for validation of their procedures.

24. The Uniform Guidelines on Employee Selection Procedures, the standard used by the courts in evaluating any selection procedure you might develop or purchase, says that anything used as part of the selection process must be validated in accordance with the Guidelines if it has adverse impact.

25. The privilege of choice comes with: The probable involvement of the U.S. Justice Department if there is increased adverse impact on minorities. Almost certain potential for litigation. Consultant expense for assistance in developing job-related procedures that meet the professional standards in the Uniform Guidelines on Employee Selection Procedures.

26. At the same time that many of our cities signed the Partial Consent Decree with the U.S. Justice Department in settlement of U.S. vs. the City of Alexandria, et al. (beginning in 1977), cities in other states were also subject to Consent Decrees concerning their police and fire departments.

27. For the last 30 years, most of the other areas have had the Justice Department involved in their promotional process.

28. In the MFPCS in Louisiana, the agreements with the Justice Department pertained to initial hiring, not promotions, because the promotional process was basically color blind. If you were the highest in departmental seniority, you were guaranteed an opportunity to prove that you could do the job.

29. Louisiana State Police • In 1995, it was determined in a settlement with the U.S. Justice Department that the test was not job-related and had a disparate impact on African Americans who were otherwise qualified. $1M fund was established to compensate applicants harmed by the testing procedure.

30. How have the courts viewed similar promotional procedures outside of Louisiana?

31. Chicago, IL • Promotional procedures were challenged in 1976, 1977, and 1994. In 1994, the Court ruled that the test was valid, but had disparate impact on minorities and women. The city was penalized because they had another valid procedure with less adverse impact that could have been used.

32. State of New Jersey • In 2010, it was determined in Federal Court that the state’s use of a pass/fail test for ranking and promoting municipal candidates had a disparate impact on African-Americans and Hispanics. The state was ordered to pay $1M into a settlement fund to fund back pay for municipal officers harmed.

33. Boston, MA • In 2012, the Police Sergeant and Police Lieutenant exams were determined to be unfair to minorities. It was determined that minorities have difficulty getting into the top five scores due to the test. The city has agreed to develop a new promotional process at a cost of $2.2 million.

34. Impact of HB 1137 • HB 1137 proposed to allow promotions to be made based on the top 5 scores. • We analyzed 5 years’ worth of test results to evaluate the impact on minorities. • In many cases, 80 to 100% of qualified minorities would have been excluded from promotional consideration. Some who would have been excluded have actually been promoted and passed their working test periods.

35. If you move from a procedure with less adverse impact to one with greater adverse impact, • The courts and Federal government want to see the business necessity for the change. As previously mentioned, Chicago was admonished for not using a validated test with less adverse impact since it had one readily available.

36. Consider this fact: In 2011-12, a total of 167 police promotions were made in police departments in this system.

37. Statewide, 100% of the 167 were confirmed in their working test periods. How can we justify moving to a procedure with greater adverse impact if none of those promoted were found to be unacceptable?

38. Training for Alternative Procedures • If a provision is made for an alternate procedure, and if a local governing authority elects to go with an alternative promotional procedure, the OSE would like for there to be a very short (1 hour?), one time, no cost, mandatory training to provide information on professional standards, needed records, and test options. • We could make this training available on our website or in person in our office.

39. Local option is important -- many departments will elect to stay with the current promotional procedure due to the increased costs, liability and minority impact.