Flunk City

Aubrey Johnson nailed the written test. The City of Miami police patrol officer had studied diligently for the sergeant's exam, and when the results of the written portion were posted he knew the cramming had paid off. Out of a testing class of 275, he'd finished second. But there remained the second part of the exam, an oral test, which would count as 60 percent of Johnson's final grade. And on that portion Johnson didn't fare so well: In the final tally, he was dismayed to see, he dropped from number 2 on the list to number 115.

Johnson's colleague Michael Marquez also tumbled in the orals, falling to 116th after having ranked 26th on the written test. As surprised as Marquez was by his plummet, he was more perplexed about the comments from the people who evaluated the oral. His scores showed that he had done poorly in the sections dealing with communications skills and problem recognition.

As it happens, Marquez, a nineteen-year veteran of the force, is Miami's senior hostage negotiator -- in other words, during a crisis situation he's likely to be the lone link between the suspect and the chief of police.

After the final results for the sergeant's exam were posted in April 1995, Marquez, Johnson, and nineteen other aspiring sergeants filed a lawsuit asserting that the grading of the oral test was fundamentally flawed and seeking promotion, back pay, and retroactive seniority. All of the plaintiffs had scored higher than 64 on the written test -- the lowest overall grade received by any officer who was promoted.

"How can someone fall from number 2 to number 115?" Marquez asks. "It makes sense for there to be some changes from written test and overall score, but a drop like this doesn't make sense."

With the filing of the court action, the officers' names were added to another list -- a litany of lawsuits involving the Miami Police Department's promotions testing. Over the past two decades, practically every time the city has conducted a promotions exam, it has been sued. At least seven lawsuits pertaining to promotions of sergeants, lieutenants, and captains are pending in state and federal courts. The lawsuits, police union attorneys argue, have unnecessarily cost the city millions of dollars. In a 1986 suit over a lieutenant's exam, for example, attorneys discovered several flaws in the oral test. After pointing out the problems, the attorneys asked that the oral portion be readministered, a move that would have cost the city about $18,000. City officials declined the request and let the lawsuit go forward. "We ended up settling it, with everybody getting a substantial pay raise and pension enhancements that probably cost the city $2.6 million," recalls Fraternal Order of Police (FOP) attorney Robert Klausner, who handled the case.

Miami has struggled with police promotions since 1977, when a federal judge ordered that the police force more accurately mirror the diverse population of the municipality itself. Prior to the order, no Hispanics or blacks on the force held a rank above officer, and only one woman did. Though the department's racial makeup has since shifted substantially, affirmative action targets remain in place.

Most of the lawsuits center on inconsistent implementation of the promotions lists. The concept of the lists is simple: Promotions are bestowed as positions open up, with the person who scored highest on the test promoted first, followed by the second-highest scorer, then the third-highest, and so on. Troubles start when a Hispanic officer, say, is passed over in favor of a black officer even though the Hispanic scored better on the exam. In a typical case, three sergeants sued the city after fellow sergeants who had scored lower on a lieutenant's exam were promoted ahead of them. They seek back pay and lost seniority and pension benefits from the day they allegedly should have been promoted. The case is pending.

By comparison, Dade County has fielded much less flak. County officials have administered more than 300 employment tests since fiscal year 1990-91, and they have not faced a single lawsuit regarding police promotions during that time. In fact, Assistant County Attorney Lee Kraftchick can only recall one such lawsuit since he began working for the county in 1982. The case, he says, involved black officers who wanted to rise to the rank of lieutenant and who disputed the scoring of the oral portion of their exams. The matter went to court, where the county won.

"I don't think we've had a challenge to a case since then," says Kraftchick, who notes that the county employs an industrial psychologist to ensure that the tests meet legal standards.

The same cannot be said for the test Marquez, Johnson, and their colleagues took in Miami. Their beef is with the orals, and in particular with the method used to grade them. For the test, each candidate sat in a classroom at Miami High School and responded to hypothetical scenarios as a videocamera recorded their answers. Morris & McDaniel, an Arlington, Virginia-based consulting firm that wrote and administered the test from material selected by City of Miami officials, then sent the videos to New Orleans to be graded by police officers there. As they viewed the tapes, the Louisiana evaluators were to check off responses on a benchmark, or answer key. For example, if in the hypothetical situation the officer was supposed to fire his gun but failed to say he would do so, the evaluator was to check a box indicating that the answer was incorrect.

The plaintiffs' attorneys noticed a curious thing about the benchmarks: The tests were evaluated from March 21 through March 25, 1995, but in a faxed memo, a City of Miami human resources department staffer sent "final approved benchmarks" to the consultants on April 7 -- two weeks after the tapes had already been graded. "So they give them the answers they supposedly used after they'd already scored the tests?" Marquez marvels. "The city was manipulating the outcome," he concludes.

The officers have other gripes about the grading. Most promotions tests, including Dade County's, call for no fewer than three (and up to five) people to evaluate each video. But after the Miami test, when the benchmarks were released to the officers, they found that in some cases only two people had evaluated a tape. In addition, all the benchmarks were geared to a five-point scale of performance, while the final grades reflected an entirely different system, a seven-point scale.

The attorneys wanted to interview the New Orleans graders about the apparent discrepancies, but when they asked Morris & McDaniel for a list of officers, the consultants responded that after an "exhaustive search" they could not find the names.

David M. Morris, chief operating officer of Morris & McDaniel, could not be reached for comment for this story. (The company is not named in the lawsuit.)

As far as Michael Marquez is concerned, all these problems could easily have been remedied. The consultants had inserted into their contract with the city a dispute-resolution clause: Every officer was to have been allowed to request a re-evaluation of his or her exam. But when Marquez and his colleagues asked for reassessments, city officials turned a deaf ear.

"That's all we wanted them to do -- to reassess our tapes," says Marquez. "If they would have let us do that, then we would not have had a basis for our lawsuit. But they said no."

Rather than allow the tapes to be reassessed, then-City Manager Cesar Odio simply promoted the first 24 names on the final list. (Angela Bellamy, director of the city's Department of Human Resources, did not respond to a list of written questions from New Times regarding the promotion of police officers.)

By the end of last year, Odio had resigned amid a federal corruption probe and the city was reeling in a fiscal crisis. Marquez and his fellow plaintiffs offered to settle their suit. The officers were willing to give up approximately $200,000 of their claim by retracting their demand for back pay and attorneys' fees. They asked only that they be promoted and receive their seniority. City attorneys, who had previously failed to get the lawsuit thrown out of court, sent the plaintiffs' lawyers a letter in January stating that they were considering the settlement, but only a few days later they filed a petition with the Third District Court of Appeal, requesting that the lower court's decision not to dismiss the lawsuit be vacated.

The city lost again. In retaliation, William Amlong, one of the plaintiffs' attorneys, wrote to Assistant City Attorney Jose Fernandez threatening to "take the leash off my clients as far as their recruiting other police officers to join the group of plaintiffs" -- a move that could cost the city thousands more dollars.

If history is any indication, the city will eventually settle. The plaintiffs will become sergeants and win their back pay and their seniority. "It has mystified me why the city can't give legally valid tests," says Klausner, the FOP attorney. "There are many qualified people out there who can get these tests done.

"It's been good for us economically," he adds, referring to the barrage of lawsuits, most of which he has handled himself (he is not involved in this one). "But it hasn't been good for business. From a labor-relations standpoint, it would be a lot better to resolve these issues intelligently and amicably. All it does to drag it out is give anxiety -- and cost money.

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Robert Andrew Powell