Trial for Suits in 2008 Calif. Promotional Exam Underway

Sept. 29, 2013
A jury that must decide whether city officials arbitrarily altered dozens of test scores and shredded documents before firefighters could file a legal challenge.

Sept. 29--The San Francisco Fire Department's promotional exam process is on trial before a jury that must decide whether city officials arbitrarily altered dozens of test scores and shredded documents before firefighters could file a legal challenge.

Questions surrounding Fire Department promotional exams, including tests for lieutenant, battalion chief and assistant chief, have dogged the city since 2008, prompting a string of unresolved lawsuits.

The civil trial that began last week in San Francisco Superior Court is the first of the challenges to go before a jury. It involves an age-discrimination suit brought by 15 firefighters who contend they were denied promotions because they were 40 or older at the time of the 2008 test for lieutenant.

The plaintiffs -- some of whom have since retired -- are seeking promotions, back pay and damages. State and federal law does not require them to prove intentional discrimination -- only that they were part of a group that suffered disproportionately from a promotional exam that was flawed.

The crux of the firefighters' argument is that the test's answer key contained faulty information and that scores were changed by city officials in secret, without consulting the experts who prepared the key and outsiders who graded the exam.

The lieutenant's test was taken by 745 firefighters, fewer than a third of whom passed. It was the first such exam in a decade. Firefighters' attorney Murlene Randle outlined in opening statements Tuesday how the 2008 test had allegedly gone "haywire."

The most experienced firefighters scored lower on average than their less experienced counterparts, she said. Test-taking firefighters 40 and older, she argued, suffered beyond what could normally be explained by statistical variation.

The Fire Department convened a panel of five top-ranking officials to draw up an answer key to the test and determine how the questions should be weighted, Randle said.

New on the job

But even before the test was administered, Randle said, the civilian head of the public safety exam unit, Dave Johnson, secretly changed how the answers were to be weighted. The public safety unit is part of the city's Human Resources Department, which oversees tests for the police, fire and sheriff's departments.

Johnson had been named to the job shortly before the test was given. His predecessor and some members of the committee that developed the answer key, Randle said, have since said that his changes were unprecedented and undermined the exam's integrity.

Randle said that after outside experts had finished scoring the test, Johnson altered many of the results. "Changes were made all over the place," she said.

After Johnson and at least one other official changed the scores for dozens of testtakers, Johnson destroyed the notes that showed how experts had initially scored the test, Randle said.

Johnson, when challenged about the changes during a pretrial sworn deposition, explained that some of the scores appeared to be outside the expected range.

He acknowledged shredding the scoring documents that he had reviewed to make the changes. "I didn't need them anymore," he said, according to Randle.

She said the shredding violated city policy that exam documents be kept for five years.

City calls tests fair

In her opening statements defending the city, Deputy City Attorney Ruth Bond defended the test process as perhaps imperfect but a fair and proper way of evaluating who would make a good lieutenant.

She said that about 60 percent of the test takers were firefighters over 40, and roughly 60 percent of those who passed were in that age group. She said the test was developed and scored in consultation with experts.

"The city ran a fair and objective process," Bond said. "The city followed industry standards and state guidelines."

Bond said Johnson had reviewed all 745 tests in good faith and decided the scores "did not look right."

"He made the scores more reliable -- that's his job," she said.

As for the shredding, she said, the destroyed papers amounted to scoring notes and "scratch paper."

Johnson is expected to testify during the trial. He was on vacation last week and was not available for comment.

Randle said Fire Chief Joanne Hayes-White, who was in court during the opening statements, was ultimately responsible for the alleged failures in the exam process. The fire chief, she said, "may have had good intentions, but after that, it went haywire."

"Scores are critical," Randle told the jury. "If scoring is bad, the exam is bad."

Jaxon Van Derbeken is a San Francisco Chronicle staff writer. E-mail: [email protected]

Copyright 2013 - San Francisco Chronicle

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