STAMFORD – Officials this week lauded the settlement of a 4-year-old lawsuit between the city and four firefighters that has held up promotions and made a mess of fire department schedules.
A judge put the freeze on all promotions after finding just cause for the suit, which alleged that city officials sidestepped exam scores and promoted candidates for other reasons.
The suit, though settled, leaves a couple of questions in the air.
Do officials want to hire and promote firefighters who earn the highest scores? Or do officials want to round and band the scores to give themselves more freedom of choice?
In announcing the settlement this week, Mayor Caroline Simmons’ office issued a statement saying the safety of citizens and firefighters will be improved because the city now can “provide stable leadership throughout the fire department through permanently filling the many officer positions left open because of this lawsuit.”
But it’s about more than filling vacant positions, said city Rep. Jeff Stella, chairman of the Board of Representatives’ Public Safety Committee. No one’s talking about the scoring problem, Stella said.
“This is about firefighters who were not promoted even though they had higher scores. There’s a flaw in the system. You can get a 55 on a test and get promoted over someone who got a 75,” Stella said. “We’re back to square one. We can get sued for any exam going forward.”
Paul Anderson, president of the Stamford Professional Fire Fighters Association, said the settlement is good news, but things aren’t resolved.
“We’re very pleased the mayor prioritized this, and people can be promoted. It’s been a major problem for the fire department.
But moving forward is an issue,” Anderson said. “We don’t agree with banding. We only agree with promotions based on merit. If we’re not promoting on merit, we’re in trouble.”
The lawsuit stems from a 2017 civil service exam in which two firefighters, Robert Pickering and Brian Whitbread, and two lieutenants, Kevin Dingle and Bruce Wagoner, were not chosen for promotion even though they scored higher than those who were chosen.
Pickering earned a 78, but six candidates who scored lower were promoted to lieutenant and he was not. Whitbread and another candidate scored 77. That candidate made lieutenant but Whitbread did not. Five candidates who scored lower than Whitbread also were promoted.
On the captain exam, the five highest scorers were promoted. The next four highest scorers all got an 83, including Wagoner and Dingle, but they did not make captain and the other two did.
That happened even though the city pays hundreds of thousands of dollars to a well-regarded testing company, Morris & McDaniel, to devise unbiased tests and precisely score candidates to two decimal points.
Despite the expensive Morris & McDaniel contract and meticulous procedures, city officials rounded the scores to whole numbers and created bands of scores from which they selected the candidates they wanted.
The lawsuit alleges that, to give themselves an even wider choice, city officials “improperly considered more candidates than allowed” under classified service rules.
In the settlement, the city admitted no wrongdoing. But in 2019 Judge Barbara Bellis, who issued an injunction that froze all fire department promotions while the case was in court, said the authority of the personnel director to weight the results of tests and rank candidates does not supersede the law, which requires a methodology that is consistent with the city Charter and classified service rules.
Pickering, Whitbread, Dingle and Wagoner were “not fairly considered for promotion,” Bellis ruled.
This week, however, the city and the firefighters decided enough was enough, and reached a deal.
“The case appears to be settled at this point,” said Dan Hunsberger, the firefighters’ attorney. “We asked for an injunction to be lifted, the manner in which the exam will be conducted has been ironed out, and final withdrawal of the case will occur when the promotions are conducted fairly and properly, which we are anticipating.”
In the deal, the city will pay the four firefighters a total of $250,000, and the long-delayed promotions will proceed, most likely next month. Pickering, Whitbread, Dingle, Wagoner and other candidates from the 2017 eligibility list will compete for six lieutenant slots and three for captain.
According to the agreement, seniority dates for the firefighters who are promoted will be retroactive, but they will not get back pay.
Most of the settlement is about how the delayed promotion test will be handled. No scores will be rounded or banded, even though the city two years ago changed the rules to allow that.
Anderson said it’s hard to fathom.
“By changing the civil service rules mid-court case, they legitimized the reason they got sued,” he said.
The settlement names an independent monitor who will attend the meetings of the Fire Commission, which interviews candidates and decides promotions. If the monitor believes there has been a violation, an interview can be suspended and reported to a judge.
The settlement reveals an apparent issue with Fire Chief Trevor Roach, whose duties include advising the Fire Commission on hires and promotions. In the agreement, the four firefighters asked that Deputy Chief Eric Lorenz attend the commission meetings in Roach’s place.
Trust in the system was questioned in March, when a firefighter was promoted to deputy fire marshal even though he scored 19 points lower than the other candidate.
Anderson said the firefighters union has asked its lawyer to look into whether the city’s rule change allowing rounding and banding of scores violates state statutes.
Simmons spokeswoman Lauren Mayer said Thursday in an email that the city’s classified service rules are governed by the city charter, not the state.
Before changing the rules, the city hired an expert to review them, Meyer said. The expert concluded that the human resources director is permitted to round exam scores and consider them in bands, within certain limits.
Rounding and banding enhances fairness, according to Meyer’s email, because “candidates who are equally qualified and capable will not be removed from consideration because of small differences in test scores that do not reflect differences in qualifications or capability to be successful on the job.” Testing does not measure other important factors such as efficiency, character and conduct, the email states.
Since the previous mayoral administration, city officials have said an effort is under way to diversify the fire department. In 2015, the city threw out the written exam, saying it discriminated against minority and female candidates.
If the city now is manipulating exam scores for that reason, it’s insulting, said Stella, who is Hispanic.
“What that says is that, without banding and rounding, minorities can’t be hired,” said Stella, a retired New York Police Department detective. “In the NYPD, they don’t pick someone who got a low score because they are Hispanic. I think what we need in Stamford is a more aggressive approach to recruitment.”