Click HERE to read the Memorandum from Alan Shapiro, Esq. of Sandulli Grace re: Civil Service Promotional Exams Update.
FROM: Alan Shapiro RE: Civil Service Promotional Exams Update
DATE: December 27, 2022
I understand that there is still a lot of confusion, understandably, about the situation with the civil service promotional exams. MassCOP would like to clear up any questions you may have about its strategy for addressing the problems created by the Tatum decision.
To briefly summarize, on October 27, 2022, Superior Court Judge Douglas Wilkins issued a decision finding that the standard 80-question statewide multiple choice exam, accounting for 80% of the grade, with the other 20% determined by education and experience (“E&E”) (1) discriminated against minority officers and (2) did not test for the skills and abilities required to be a police sergeant.1 This ruling dealt only with the liability aspect of the case, not with the damages, which the judge will assess in the spring.
This recent decision follows 15 years of litigation, in both federal and state court, between the minority plaintiffs and the Mass. Human Resources Division (HRD), the state agency which develops the tests and produces promotional lists based on the test results and the E&E. It is obvious that HRD, represented by very capable attorneys in the Attorney General’s office, has decided that further appeals would be both fruitless and only expose the Commonwealth to further damages.
1 Under civil service law, “Examinations shall fairly test the knowledge, skills and abilities which can be practically and reliably measured and which are actually required to perform the primary or dominant duties of the position for which the examination is held.” Mass. Gen. Laws Chapter 31, § 16.
HRD therefore did not believe that it could in good faith score and produce lists from the September 2022 civil service promotional examinations, which were based on the same methodology Judge Wilkins found illegal in Tatum.
The decision in Tatum is only Phase I, where Judge Wilkins established HRD’s liability to the plaintiffs, Black and Hispanic candidates for sergeant, whom the court found were disadvantaged by HRD’s exams going back over 15 years.
The judge will conduct phase II of the trial to determine a remedy for these plaintiffs. “The remedy will provide relief to the plaintiff class, which must be commensurate with the deep-seated illegality in the testing format that HRD used, at least for the 2005, 2006, 2007, 2008, 2010, and 2012 exams”. Tatum at 2. The judge has scheduled the damages portion of the case for the coming spring. This will involve compensating the plaintiffs. The judge will not fix the exams; that is left to HRD.
The Tatum decision points out that HRD has known about this testing deficiency for over 15 years. MassCOP and I completely agree that refusing to score the recent exams negates the hard work, time, and money that thousands of police officers spent preparing for them.
Outrage, however, does not solve the problem. Judge Wilkins found HRD liable to the plaintiffs but, the case he is deciding does not vest him with authority to “fix” the exam or compel HRD to score the September police tests. The judge did make various suggestions on how he believes the problems might be remedied, but those are only suggestions, not ordered remedies.2
If we could argue that the recent civil service promotional exams, despite negatively affecting minority candidates (“disparate impact”), were still job-related, there might be grounds to litigate HRD’s refusal to score them. However, the court specifically found that “…HRD’s exams were not reasonably representative of police supervisory duties and were not valid as a device for selecting sergeants.” Tatum at 64. In Ricci v. DeStefano, 557 U.S. 557 (2009), the U.S. Supreme Court ordered New Haven to make promotions from tests that did, statistically, adversely impact nonwhite firefighters. But that Court specifically found that “There is no genuine issue that the examinations were job related…” Id. at 587. In Tatum, the court reached the opposite conclusion.
MassCOP is Working to Develop New Civil Service Promotional Exams
MassCOP has established a solid working relationship with the people at HRD who are actively developing new police promotional examinations that can withstand legal challenge. Moreover, HRD is committed to creating civil service promotional exams for sergeant, lieutenant, and captain that will be composed of multiple-choice questions and administered in one day. Just today, MassCOP and other police groups received an email from HRD’s project manager requesting participation in a working group to discuss the creation of promotional exams3.
2 Nor are all of them legal under current law and regulations. In 2009, HRD attempted to issue scores in bands, but in a case brought by Sandulli Grace, a Superior Court judge enjoined that approach. Unions generally don’t like banding, not because of its effect on diversity, but because it would give police chiefs and selectmen and mayors more leeway to promote those whom they like, rather than those who score higher.
3 In an earlier advisory, in pointing out that the process for developing firefighter exams was further along than the process for police, I mistakenly stated that HRD had already completed a “job analysis” for the fire titles. I was advised that HRD has completed a “task analysis,” which is only one step of the much larger job analysis. But the existence of the task analysis does give HRD a head start on developing new exams for firefighters.
I regret that I cannot advise legal action to compel HRD to score the September exams. If someone has a viable strategy, I would love to hear it. But filing legal actions with virtually no likelihood of success would only hold out false hope to those who have already been victimized.
