NOPD Lieutenant Promotions Civil Service decision

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Civil Service Department
City of New Orleans

POLICE LIERTENANY PROMOTIONAL APPEALS
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DEPARTMENT OF POLICE

LINTRODUCTION:

‘The Chil Service Cepartmant racewved and pracessad the Felice Lieutenant prometional
appeals of three Polke Sergvanls (“Appellats") aratesting the Police Superintendent's
{'Appoincing Autheriy") drial ef thelr promotion pursuant tn Cin Sepuce Commission ule

Vt Section 6.2, which pravides

Ht any qualtied cancidate or amployee, whose name appears on 3
verified appoinement or promotional lst, believes that his appalntment,
fllagstion oF prometion has been Improperly deniad, he may aratest toe
denial of such by presenting such fais ar dacuments asthe Direczor [of
Personnel] may prescrive, The Director [of Personnel, cr any person
designatee by hin, may hold! speclal hearings to datermine ee facts of
such case and the Director [of Personnel] shall make his decision on the
basis ofthe writzen stesements, avd fortes prosanted Ey the empioree
land on the farts brougat ott Inthe heating, The emplavee shal! nave the
Tight to appeal ta the Commission if ¢issatlsflee with the action of the
Director af Personnel.

Pursuant to Ci Service Rule Vs Section 6.5, specia! hearing was held an March 14

2016, May £2, 2016 and on April 27, 2017 during which remerous wlthesses were called and
documents introzucud. Upen completion of the hearing, the parties were directed to submit

pestchearrg memoranda arteulating their positions.

‘The Appellants contend thal hey were impropesty Senleo arumotinn on the basis that
the promational process was not msvit-basad, competitne, objective, consistent or felt. They
contend that 11 rankings on the chil service examination and lergth of sence should have
been considered, They futher contesd that Paragraph 303 of the Consert Necree ald rot
authorize the NOPD ¢o anitcrolly sot promotianat polfyt it requlred the NOPD to work with
Chil Serve to develog and implement a system They aio argue that the factrs contained in
the Consent Decree were not tested ane! shey were nol aware of how they were belng assessed
based on those factors.

‘The AapoincIng Authorty cantands tat he complied with Cuil Service Rules, the 2010
Consent Decree and the NOPD Policy 1008 which requives thet the NOPD cons.der the eight
factors in Paragraph 308 of the Consent Decree prior to recommending 3 candidate for

vomolin. In addition, the Appointing Authority contends that the Appellants filed to identity

any Improper denial of prametion that would suggust thatthe peametional sleulions were not
merit-based, According tb the Appsintirg Authorky, the Appellants argunrents are primarily
based unos the fact thal the Police Superintercert selected candidates for promotion who

scored lower thant

ppctlant on the Potice Lieutenant promutional examination.
“The Chil Service Department has reviewed che hearing offier’s report along with the

employee appeal forms, the Cv Srvive Commission's Rules, the Laulsira Seate Constitution,

hearing transcripts, hearing ertiblts, ond the attorney's post hearing ries. Below isa report

and final devermination inthis matter.
UL PROCEDURAL IISTORY AND FACTS:
A. The Civil Service Department estublished a competitive, ranked eligible ist
for Police Lieutenant as a result of a valill examinatinn im accordance wlth
Civil Service Commission Rules, the Uniform Guidelines oa Employee Selection
Procedures and the Louisiana State Constitution:

In nbservance of Cv Service Commision Rule VI the Unitorm Guidelines an Employee
Selection Procedures and the Loubiana Stale Caneution, the Cl Service Department rzented
a merit hased, competitive Polise Leutonant’s examination based on # Job analysis ofthe rank
of Paice Lieutenant,

According tothe Chil Ser.ce Contnisson’s Rules, “the purpose of Rule VI is to ensure
the effient screening and asresement of applicant fr prometion andl appintment unde: a
geval syslum based on merit, efficiency, “mess, and length at service 2s ascerlaned by
examination which, s far as practica, shall be competitive."

Further, Ancle X Section 7 of the Couisana State Cansttution requ tes thet,

“Pesmanen: aapatntments ana promotions in the classed sala und city service shall be made

nly ater certiicatlon by the appropriate department of cil survice under 3 general system

based upon merit,

eieney, finess, and lergtn of se-vce, a4 escartainad by examination

thica, sa far 8s practical, shall be competitive

The Uniform Guidelines on Cmployee Select'er Procedures (‘the Unilum Guidelines"

apply lo federal, private, and public employars subject zo Tele VU ct the Chil Rights Act af 1964,
Anwording lo Ue Equel Employre: Opportunity Commission (*FFOC") the purpose of the

ifort Guidelines is ta “aid 2s the ach

vement of vur nation's goal ef equal emplaymant

opporturity without giscrimination nn the grounds of rave, colar, sex, rel gion or nacional
orln, Federal ogenvias have adopted the Uniform Guidelines to provide @ uniform st of

Frincipes sovern’rg use of employee selection procedures whick is consistent with agellcable
legal standares and walldation scandards generally accepted by the psychalogical profession and
‘whics the Government vill apply inthe discharge ofits responsi iis." Employars wo fo low
‘he Uniform Guidelines are more likely to provide a strong defense agzinst claims cf unlawful
discem ration

In cider lo eraale a valid exervnatior for Police Leutsant, 2 tralned Faychornetrisian
‘with over 30 years of expuriance in zest development and validation performed a jab anclyss,
‘which consisted ef» sevis of surveys erd interviews of subject matter experts ("SME"). At the
requesc of the Civil Se-vice Deporlinent, he Puke Administration previded a pool af twenty
right SME (8 Commanders and 20 Police Lieutenants), which reavesented a cross-section of the
shits and of the assignments of Lcutorants; wera representative ot the racial make-up of the
cassifcations vepresentec; and were cependable and wellirusted, In fact, Superintendent
Har‘san himself served a5 3 cubject matter exper far :his examination prior to. Ais
appointment to Superintendent at Police.

The job analyse produced 14 areas of knowledge, sls and abilities ("KSA") that made
up the Job of Polite Lieutenant, The examination content wes thon devised by the
Psychometrcian to measure those KSAS identified during the job analysis, the exem consisted
of two parts: an In-basker exercise and w scencrio-based job simula:ian, in adwanew af the
‘exam, all candidates were provided withthe ISAs to be matured in anch sect‘: othe exarn,
heir w'ghts toward the final sccre, and a definition of each KSA. Cantidace orientat or

7 fats ve 220c-govfpaliey/docs/ganda_cladly, procedures html)
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sessions were required for all c2rddates prior ta the exzminatinr. These orlantatlon sessions

pravideo information on what canliates could expect z0 s2e on the job sirauation anda study
bude
‘Assessnrs were brought in from otFer polce Jursdleivns ta scare the ,cb simulation

using rating seales developed by the Psychon

cian with SIE input, Additonal, rier to
‘aking their ratings the assessors received a handbook and on-site training 00 reas Including
Lg job unahysis, KSAs and task list, techniques In EehaMioral servation, and how to avold
‘making cornman rating errors

Follawing the administation and scoring of the exam, a comaatiive, ranked elgoe lit

1s ¢sLablished by Cit Service. The results ofthe exam In

1d thet 65 ot the BI cardidates
who took the exam pussed and were ranked on the lst, However, anly 54 out ot the 65

randidates met al of the educational requirements ta be aromoted) the 21 otter candidates

cnuld be promoted upon submissian af educational credentials, Candidates were provided
with their individual exam results, Thoy were also given ar epportvrity to attere an optional

indiv‘eval feedback sessinn curing which thay received a breakdown of

Ir performance on

each al Lv KSAs measured by the exam,

1B. The Civil Service Department certified a competitive, ranked list of
eligibles for Police Lieutenant in accordance with Civil Service Commission
Rules:

‘On January 29, 2015, tre Chil Service Department prov dad a competitive, ranked ist of

eligible candidates {*txe lst”) ta the Police Superintendent in auuurdance with Cill Service
Comission Rules, Cerlificat’ons af tre ranced lst of eigibles were Issue un 7/23/15, 10/5/15,

1/25/16, 5/6/16, 3/19/17 and 4/6/28.

In August cf 2014, vertgin provisions of the Civil Service Commussion Rules were amended

as part of the

real Place to Worl” rules. Cuil Service Commlsslon fuly VI, 3.1 as amended

Under “Great Place Work" sates:

Upan request from the appointing authericy to fll a pasitiox ather than by
demotion, wvansfer, or relnstateren:, the Depatlment shall proside to the
aaaainting authority the names ofall ozndiates certified by the Depactmnent to
meet the ‘ninimum qualifications, to have passed the examination, if any, and
mul any selective certification requirerrents requested by the. appninting
auchority and approved by the Personnel Director, The umber af names to be
certified shall nat be less than three. The Personnel Direc-or may authar'ze an
appo'nling aulhariey em conduct evaminetions and may astablish policies fa~
appointing aulhurity acieinistered examinations. Such examinations snall be
Job related and dasigned to assess apglicavts based 0” mer, efi ency, fitness,

and length vf serview

Givi Service Comrmsslen Rule VI,3.5 (a) asa amanded Lrcer the "Great Place lu Work” rule

ranges states:

The elighles certiied shall bw the highest rancing elgibles wilng te accept
employment, rankea! inthe following order:

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Prior ta the “Great Place to Work" Rule amend!

All the eligibles on the aporoatlate preferred “eemplayment list fans
All ather eligibles,

jets, Chil Serve Carmmissin Rule Vi, 3.2 used

"Rule of Three

Upon a request from an appointing authority Lo ill a pestion other than by demotion,
transfer, or reinstatement, the vlfactar shal. cartfy to the appointing authorlty the
names of three eliaftes “or sich pasitloa of the class ofthe vacant postion, and If mare
than one vacancy ist be filled, the name of une aldLional eligble For each ad tlosal
wacanty. In cases of demotion, transfer or reinstatement, the Director shall approve or
dlisapprove the name of the person cubrillad by the anpinting uthorty

The former “Rule of Three" rues mandated that acl sevice pasion be Tlled by one
of the throe individuals with tke highest scoves on the ekamlnation. In racic, the “Rule of
Three” was ollen cambined with the use of banding, Bands (scare groups! were established
hosed on the psychometric a-appities of the exam score distribution oF on Joo analysis
informat or. all scars fling within 9 given bard wore considurec tied (former Chl Servlee
Crtnission Rule V, Section 5.1), This gave aoooirting authorities more alscretion by Incraesing

the number of candidates thac could be considered for p“omotion,

Apna‘nting authorities were always able la consida” oter Factors In addition to exam
score such as seniority, oVlor work cepurience, araiare, education, Job perfarmance, and
alslptine when determining or selecting who to prumote fram a Civil Service lis of eligibles.

However, the “Rule 3f Three" in cavahination with banding restiicted the appointing authority

to selecting from the -op perfermers or the Chil Service exarninatiun before reaching down on

‘he ist of eligibles to selact Lower performers on the examination.

G. Impact of the "Great Place to Work Initiative”

Curreatly, under the "Grcal Place to Work," "the Civil Servce Department is requlted to
resent # competitive list in order of exatninalien score upan an snpointlog authority’: request
The Chil Service Department met thal requirement by providing a competitive lst, based on a

‘thorough job analysis and examinctlon process, However, the new "Greal Placa ta Work" Ci

Service Commission Rules dr nat provide guldance regarding the selection of candidates from

FiNew Chill 5e"vce Commission Rule VI, 35 {6 241/1
‘2 list, Thus, he only restrictions aa the section process would vave tobe gleaned from

‘otter provisions of the Clif Service Comanission Rules and from the Louisiana Constitution,

In this case, in an effort te fill 18 vacancies, the Police Superintendent skipped over
higher ranked candidates and reached down ta the bottom of the Is. For example, the Police
Superintendent selected a condicate ranked number 62 cut of 65 cligible candidates an the Ist,
‘The Police Superintendent stated in his Lastimeny that he dic not rely solely on the competitive
‘exam rankiogs 0 make selections for promotion, Superintendent Hartson “efered tn the eight
factors canteined in Paragraph 303 of thz Consent Oecree and, simuilanuousty, inthe NOPD

Polizy 1004. (7 4/27/17 at 15:24-16'5) Those eight “actre ar

1. Effective use of community policing stategles

2. Number of a stained and ur-susalned wormplints;

3, Number of circumstances of uses of force, Including any found! ov of polley and use of
force complaints

4. iscisinaey history

5. Problemsollngskil

6. Interpersonal skis;

7. Education; and

8. Suppart for departmental Integrity measures

When asked if performance on the Cill Service test was consicerad a factor,

Superintendant Harisa1 agreed taat acrformance on she iCivil Service test If known to the
cpmnittes

wt that i's ek a criteria pan which people are ,vogedk {7h 4/27/77 at 16: 19-25,
37-48.) In addition, the Supesinsendent treated the examination as a nan-compettive
examination where everyone who passed the examination was considered as aligible and the
ransings cid not have any value In fact in his test mony, he state! that he vayuested the rests
in “pass and tail” He wes informed that il was 3 competitive exant and Ithud to be rarked but

Uat 12 had specially asted foric in pass oF fall” Tr. 4/27/17 at 20:3-12,)

HLL The process utilized by the Police Department's Promotional
Committee to select candidates from the certlfled Palice Lieutenant list
‘was not in accordance with the Uniform Guidelines on Employee
Sclection Procedures:

AAs pat ofthe prametianal process, the Hev Orleans Felice Superintendent cslatlished
2 promational commutige composed ct ro “ewer thaa thse Deputy Superintendents who were
required to consicer # ght (8) fauters when assessing an candidace’s promotinal elgibilty as
putlined in NOPD 20 cy 1008 on Prumo:ians ere Promotion Committes The Chief of Staff
Datiel Cazenave, wha coovdinated the NUPO's Eromotian process for Lleulenants inthe spring
and early summer of 205, provided testimuny about the process. (Tr 3/14/18 at 75:04) He

testlllad that Deputy Supeddncendents Rennie Mushatt, lay Gincberg, Stephanie Land'y, Robert

Saray and Arlinda Westbronk participated in che promational committees In May threugh <uly
2015, (Fo. 3/24/26 ot 25:20-19; Through hs testimony Mr. Cazenave established hw the
Process woted, For wach candidate, he prepared and provided to the members of the
promotion commtice @ copy af the NOPM Promotional kligibity Farm «NOPD Berit #6

3/14/36, which was deslaned ta show coma ance with the eight (8) facors reculred by the
consent decrse a5 gullined n NOPD aly 1008. He alsa provided copy of the Police
Ucutonant Reglter — PIB Record Summary Matrix [OPO Exhibit #2 4/27/27) watch
summares the candidates discipinary record including the number at DI-l complaints,
whether the complaints wore sane iliaied oF cilia filled, sustained er not sustained,
exonoratedt oF unfounded ane! If there wore any ponding swestigtions. (Fr. 3/4/46 at a5:22-
25, 66:16.) no candidate inte-views or résumé reviews were conducted as part of NOPO's
promotional process.

Aftor considering the list f eight Factors, the pramational cervittee’s process, and
reviewing tesimony regarding the development and use of these Tactrs, t dase net appar
thatthe selection process as described ir NOPD’s Policy on P-omations and the Piamalion
Committee wes established in accordance vith the Lriterm Guidelines on Employment
Selneton Pracedtres. The Urifarm Guidelines provide standart that “apply zo tests and other
section procedures which are used as a basis for macing er-ployment decisions” (Section
1607.2 B.j These employment declslons may Include decisions relative ta hiring, promotion,
demotion, taining, transfers and retention. Accanding to the Guidlines, “all employers are
encouraged to use selection procedures Wich ate valid, especialy thase employers operating
Under merit principle. *(e, Section 1, (6. Selection avocedures, as Uefined by the Uniforra
Guidelines, “clude the full range of assessment techniques, Including ‘itlen exams,
performance tests, raring programs, probationary periods, iterviews, reviews of experiencia
‘9 education, work samples, and physial requirements” ld Section, 6.

‘There fs mo evden so supau'l thal. the Palce Superintendent val dated this selection
process by conducting job analsis :o identity che necessary knowledge, sills or ablties

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