Burke v. Bridgeport

Full title: JOHN BURKE v. CITY OF BRIDGEPORT ET AL

Court: Connecticut Superior Court Judicial District of Fairfield at Bridgeport

Date published: Mar 31, 2008

2008 Ct. Sup. 5152 (Conn. Super. Ct. 2008)

Opinion

No. CV07 402 19 41 S

March 31, 2008

MEMORANDUM OF DECISION

DALE W. RADCLIFFE, JUDGE.

FACTS

The plaintiff, John Burke, is a police officer, employed by the City of Bridgeport. He brings this action against the Civil Service Commission of the City of Bridgeport, and Ralph Jacobs, the Personnel Director of the City of Bridgeport.

As a uniformed police officer, the plaintiff is a member of the Bridgeport Police Union, AFSCME Council #15, Local 1159, the recognized bargaining agent for the Bridgeport Police Department officers. AFSCME Local 1159 has intervened as a defendant in this action.

The plaintiff's complaint involves a civil service examination for the position of police detective, which was administered on September 9, 2006. The plaintiff was eligible to test for the position, and took the examination.

No question has been raised by any of the parties concerning the content of the examination, or the administration of the examination under the direction of Dr. James Outtz, an Industrial and Organization Psychologist engaged by the City of Bridgeport to prepare the examination, grade the results, and administer the two components of the test, a written portion and a crime scene investigation.

The issue presented concerns three different methods of scoring the examination which were used, and three different promotional lists generated by the Bridgeport Civil Service Commission, based upon the scoring methods.

Chapter 211 of the Charter of the City of Bridgeport concerns the civil service system. It reads, in pertinent part:

(a) The personnel director shall, from time to time, as conditions warrant, hold tests for the purpose of establishing employment lists for the various positions in the competitive division of the classified service. Such tests shall be public, competitive and open to all persons who may be lawfully appointed to any position within the class for which such examinations are held with the limitations specified in the rules of the commission as to residence, age, health, habits, moral character and prerequisite qualifications to perform the duties of such position, provided applicants shall be citizens of the United States . . .

All tests shall be practical, and shall consist only of subjects which will fairly determine the capacity of the persons examined to perform the duties of the position to which the appointment or promotion is to be made, and may include tests of physical fitness or of manual skill. No credit shall be allowed for service rendered under a temporary appointment. No question in any test shall relate to religious or political opinions or affiliations. No questions which are misleading or unfair or in the nature of catch questions shall be asked, nor shall the identity of any applicant be disclosed to the examiner or to the one correcting the applicant's test. Such persons shall rank upon the list in the order of their relative excellence as determined by the tests without reference to priority of time of tests. The markings of all tests shall be completed, the resulting employment list and the answers to all questions in competitive written examinations posted as soon as possible thereafter and not later than ninety days from the date of the test. The commission shall cancel such portion of any list as has been in force for more than two years.

Section 211.1 of the Bridgeport City Charter further provides:

. . . it shall be the duty of the civil service commission and the personnel director to take affirmative steps to insure that examinations conducted . . . (1) are non-discriminatory, (2) are based on valid indicators of whether an applicant possesses the skills and abilities required for the job in question; and (3) comply with all state and federal laws and regulations concerning examinations for public employment.

On July 13, 2006, it was announced that an examination would be conducted for the position of police detective. The notice specified that the examination would consist of two parts, a written examination, and a simulated crime scene investigation. The written examination and crime scene investigation consisted of 95% of the examination, while 5% was the component allocated to seniority.

Dr. Outtz, who had been engaged by the City of Bridgeport to prepare, administer and grade examinations in the past, prepared the examination for the position of police detective.

Following the September 9, 2006 examination, Dr. Outtz scored the examinations, allocating 50% to the written portion of the examination, and 50% to the crime scene component of the test. A promotional list, based upon this method of scoring, was promulgated by the civil service commission, and published on December 7, 2006.

John Burke earned a combined score of 90.40 on the examination, and ranked sixth on the December 7, 2006 promotional list.

Dr. Outtz testified at trial, that he scored the examination using the 50/50 weighting formula, because of his mistaken belief that he was required to do so by the City of Bridgeport. He held this belief, notwithstanding the absence of any rule, directive, ordinance or regulation concerning the scoring of the examination.

Having learned that he was not required to use the scoring method allocation of 50% to the written component, and 50% to the crime scene component, Dr. Outtz re-scored the examination. In this re-scoring, he allocated 70% to the written component, and 30% to the crime scene component.

The plaintiff's score, based upon this scoring method was 99.71. When a second promotional list was generated on April 11, 2007, John Burke was ranked first.

After the second promotional list was published, Council 15, Local 1159, the recognized bargaining agent, objected to the scoring method. The union maintained that the use of a "raw scoring" method by the City of Bridgeport on a promotional examination conducted in 2001, required that the same method be utilized to score the 2006 examination. The "raw scoring" method grades each individual question in both the written and crime scene components, and combines the scores, without regard to how many questions were part of the written component, and how many related to the crime scene portion.

The bargaining unit maintained that scoring of the examination utilizing the same formula as the 2001 examination was required pursuant to § 7-747(g) of the Connecticut General Statutes.

That statute reads:

(g) Nothing herein shall diminish the authority and power of any municipal civil service commission . . . established by statute, charter or special act to conduct and grade merit examinations and to rate candidates in the order of their relative excellence from which appointments or promotions may be made to positions in the competitive division of the classified service of the municipal employer served by such civil service commission . . . The conduct and grading of merit examinations, the rating of candidates and the establishment of list from such examinations and the initial appointments from such lists . . . Shall not be subject to collective bargaining, provided once the procedures for the promotional process have been established by the municipality, any changes to the process proposed by the municipality concerning the following issues shall be subject to collective bargaining: (1) the necessary qualifications for taking a promotional examination; (2) the relative weight to be attached to each method of examination; and (3) the use and determination of monitors for written, oral and performance examinations. In no event shall the content of promotional examinations be subject to collective bargaining.

Prompted by the union's objection to the use of the 70/30 method of scoring, the test was again scored, this time utilizing the "raw score" method. A third promotional list was generated by the Bridgeport Civil Service Commission on July 13, 2007, seven (7) months after the initial list was posted, and more than ten (10) months after the examination was conducted. The plaintiff, John Burke, placed nineteenth, utilizing this method of scoring.

At trial, Dr. Outtz stated that the use of the third list, that generated on July 13, 2007, would produce a disparate impact upon African-American candidates who tested for the position, and would therefore violate federal law.

He stated that the 70/30 method of scoring was the preferable method, in his opinion, but that neither the December 7, 2006 list, nor that of April 11, 2007 would produce a disparate impact. Both methods, he stated, would produce a valid list, which could be utilized by the City of Bridgeport.

The City of Bridgeport maintains that only the list of December 7, 2006 was posted within ninety days of the examination, as required by the City Charter. The list of April 11, 2007 and July 13, 2007 were promulgated more than ninety days from the exam date, in violation of the Charter provision.

Furthermore, the City maintains, the list of July 13, 2007, which Dr. Outtz declared has an adverse impact on African-American candidates, is in violation of both federal law, and the provision of the Bridgeport Charter, § 211.1, due to its discriminatory impact.

Both the City and the plaintiff maintain that there was no obligation to negotiate with the collective bargaining agent, at the time the December 7, 2006 list was produced.

USE OF EITHER THE APRIL 11, 2007 OR JULY 13, 2007 LIST WOULD VIOLATE THE PROVISIONS OF THE BRIDGEPORT CITY CHARTER

Council #15 Local 1159 argues that the City of Bridgeport is required to score the 2006 promotional examination for the position of police detective, using the same raw method used five years earlier concerning the 2001 examination.

It points to the following language in § 7-474(g), C.G.S. in support of that contention:

. . . once the procedures for the promotional process have been established by the municipality, any changes . . . concerning the following issues shall be subject to collective bargaining . . . (2) the relative weight to be attached to each method of examination . . .

This argument is not persuasive.

The purpose of § 7-474(b), C.G.S. is to exempt from the collective bargaining process the area of promotional examinations. Therefore, any exception to that exemption must be strictly construed. Broadnax v. New Haven, 284 Conn. 237, 247-48 (2007); Murchison v. Civil Service Commission, 234 Conn. 35, 40 (1995).

In the absence of any directive from the civil service commission, ordinance, rule, regulation or Charter provision addressing the issue, the "promotional process" as defined in § 7-474(g), C.G.S. is the 2006 promotional examination for the position of police detective. Once the examination procedures have been established by the municipality, they cannot be unilaterally altered, if one of the statutory exceptions applies, in the absence of collective bargaining.

However, in establishing the procedures for the 2006 examination, and grading the examination, the City of Bridgeport was not required to utilize the method of grading which had been employed in 2001. To so find would cast in concrete examination procedures, and mandate collective bargaining in a plethora of situations, in contravention of the expressed purpose of § 7-474(g), C.G.S.

The collective bargaining unit seemed to endorse this construction of the statute, since it did not contest the use of the 50/50 scoring method used in generating the December 7, 2006 list. Only after the city and the examiner determined to employ the 70/30 weighting used in the generation of the April 11, 2007 promotional list did the union insist upon the right to bargain concerning the method of scoring the examination for purposes of establishing a valid promotional list.

The City of Bridgeport argues that both the list generated on April 11, 2007, and that of July 13, 2007, were posted more than ninety days from the date of the September 9, 2006 examination, and are therefore in violation of the provisions of Chapter 211 of the Bridgeport City Charter.

Because the integrity of the civil service system must be maintained; Kelly v. New Haven, 275 Conn. 580, 608 (2005); statutory and charter provisions for civil service examinations must be strictly complied with in order to support the validity of the action of a municipal board concerned with promotions under civil service. Walker v. Jankura, 162 Conn. 482, 490 (1972); Ziomek v. Bartimole, 156 Conn. 604, 610 (1968). A civil service statute is mandatory as to every requirement. Broadnax v New Haven, supra, 161.

The Connecticut Supreme Court has cited, with approval, holdings in other jurisdictions which have found that a civil service commission may not re-grade a previously administered examination by assigning different weights to its parts, thus changing the eligible candidates' relative ranking. Breccia v. Waterbury, 192 Conn. 127, 137 (1984).

The promotional lists of April 11, 2007 and July 13, 2007, were both promulgated in violation of the provisions of the Bridgeport City Charter, after a valid promotional list, complying with all charter requirements had been published.

This re-grading and re-scoring, utilizing a different method, would be sufficient to trigger the provisions of § 7-474(g) of the General Statutes, because the re-scoring would constitute a change in the relative weight to be attached to each method of examination, after the procedures for the 2006 promotional examination had been established.

However, since the decision to promulgate a second and third promotional list using a scoring method other than 50/50 was not attempted in accordance with the Charter provision, and there is no right to collectively bargain concerning the initial decision to use the 50/50 method of grading, the City of Bridgeport was not required to negotiate with Local 1159 concerning the weighing of the component parts of the 2006 detective promotional examination.

The July 13, 2007 examination suffers from an additional infirmity.

The credible, believable, and unimpeached testimony of Dr. Outtz establishes that combining the raw scores of the two components of the examination, would result in an adverse impact, due to the number of African-Americans who would be eligible for promotion to the rank of detective.

Utilizing this list, therefore, would place the City of Bridgeport in violation of federal law; Bridgeport Guardians, Inc. v. City of Bridgeport, 735 F.Sup. 1126 (1990); after a list having no adverse impact was promulgated in accordance with the requirements of the Bridgeport City Charter.

Although Dr. Outtz did not believe that the 50/50 scoring criteria constituted the best scoring method available, he testified that use of that formula did not affect the validity of the list generated on December 7, 2006, and did not produce any adverse or discriminatory impact.

MOTION TO DISMISS DENIED

The plaintiff, John Burke, is a police officer employed by the City of Bridgeport. He was eligible to take the promotional examination for the position of detective in September of 2006.

There are nine openings for the position of detective in the Bridgeport Police Department, and the plaintiff placed sixth on the list promulgated on December 7, 2006.

Because the promotional examination did not involve an obligation of the City of Bridgeport to bargain with the collective bargaining unit concerning the list generated on December 7, 2006, Council #15, Local 1159 was not the exclusive representative of the plaintiff, concerning the issues raised in this action.

The City of Bridgeport withdrew its motion to dismiss following trial, and the motion to dismiss of Local 1159 is DENIED.

FINDINGS AND ORDERS

Based upon the testimony and the exhibits introduced at trial, the Court makes the following findings and orders.

IT IS FOUND, that the promotional list for the position of police detective, published on December 7, 2006, was scored using a valid method, 50 percent allocated to the written portion, and 50 percent to the crime scene component.

IT IS FOUND, that the promotional list of December 7, 2006, was published and approved in accordance with the provisions of the Bridgeport City Charter, and that the City of Bridgeport was not required to collectively bargain with Local 1159 concerning the method used in the scoring of the examination.

IT IS FOUND, that the promotional lists of April 11, 2007 and July 13, 2007 were published in violation of the provisions of the Bridgeport City Charter, § 211, and are therefore a nullity.

IT IS FOUND, based upon the unimpeached and highly credible testimony of Dr. James Outtz, that the results of the use of the raw scoring method, as reflected in the promotional list of July 13, 2007, produced an adverse impact concerning African-Americans, and that use of that list for promotional purposes would violate federal law, as well as § 211.1 of the Bridgeport City Charter.

IT IS FOUND, that the promotional list of December 7, 2006 produced no adverse impact.

IT IS THEREFORE ORDERED, that promotions to the position of police detective be made, pursuant to the promotional list of December 7, 2006, and that judgment may enter in favor of the plaintiff John Burke.

Judgment may enter in favor of the defendants on the cross complaint of Local 1159.