A pending reverse-discrimination suit filed against the city by 20 New Haven firefighters may be creating a public-safety risk for the city at large, according to the plaintiffs’ lawyer.
The “New Haven 20” are contesting the city’s decision to invalidate promotional exams from 2003 because too few minority candidates passed the test — an act that prevented the firefighters who did pass from potentially being promoted to higher ranks in the fire department. Until the suit is settled, which cannot happen until the U.S. Supreme Court decides whether to hear the case, the city will refrain from issuing another exam to permanently promote candidates, meaning that 15 captain and lieutenant positions that have been vacant for almost four years will remain unfilled. New Haven officials say the city’s current method of carefully rotating firefighters through leadership positions on a temporary basis has kept the city safe in the interim.
But Karen Torre LAW ’86, the plaintiffs’ lawyer, said the issue of first-responder safety has been overshadowed by the legal drama, creating “an unconscionable risk to public safety.”
“They have been haphazardly rotating people in and out of these command positions while this litigation has gone on,” she said. “Some of the people they have deliberately chosen to rotate in and out of these positions are people who failed a competency exam.”
Rob Smuts ’01, the city’s chief administrative officer, said the city threw out the results of the 2003 exam because too few minorities would have qualified for promotion, making the city vulnerable to discrimination lawsuits under Title VII of the Civil Rights Act of 1964.
Smuts said the uncertified exams hold no bearing on who is qualified to act as a lieutenant or captain because the city retroactively decided the exam may have contained racial bias. Since 2004, the NHFD must rely on a revolving schedule of overtime to govern who temporarily occupies the openings. He said the requirements to step into an acting position include minimum experience with the NHFD and training qualifications, which ensure that standards are maintained.
“Although that’s not ideal, that’s not a situation I’m very worried about because I think all of these people have the capacity to do that,” Smuts said.
In New Haven and other cities, union negotiations dictate the equitable share of overtime pay, which determines who is available in any given week to step into an acting leadership capacity.
Lee Cooke, assistant chief and fire marshall of the neighboring Milford Fire Department, said such a rotation is standard, if not the preferred, practice.
“If you have a vacancy, you’re going to temporarily fill it,” Cooke said. “Usually, those requirements are nowhere near as stringent as the promotional exams, so you could have someone who is less qualified filling them on a temporary basis.”
Paul Sandella, an acting deputy chief for the NHFD who is not involved in the lawsuit, said that having permanent appointees — even if the temporary ones are qualified — allows for more accountability of leadership.
“The city suffers as this remains undecided,” he said.
Based on the 2003 exam scores, at most two Hispanic, at least eight white and no black firefighters would have qualified for the seven captain openings. The test takers comprised 25 whites, eight Hispanics and eight blacks.
For the lieutenants exam, 11 whites, but no blacks or Hispanics, ranked high enough to be considered for the eight openings. Forty-three whites, 15 Hispanics and 19 blacks took the exam.
Following the Civil Service Commission’s refusal to certify the exam results in March 2004, the plaintiffs — one Hispanic and 19 white firefighters — went before a district court and the U.S. Court of Appeals for the Second Circuit, both of which upheld the city’s decision. Last May, the plaintiffs petitioned to their last resort: the Supreme Court.
The Supreme Court has asked the city to file a brief on or before Sept. 26 in response to Torre’s original petition. The time required to process and review the city’s brief — to which Torre has the right to reply — will most likely delay any developments until November, Smuts said.
Once the case is concluded, Smuts said the process of soliciting companies to create new promotional exams, administering of the tests, and finally awarding promotions will take about four months.