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Civil Service Commission Minutes - 11/17/2006MINUTES OF THE FIREFIGHTERS' AND POLICE OFFICERS' CIVIL SERVICE COMMISSION November 17, 2006 Present: Bob Monaghan, Chairman Dr. Ernest Dover Dr. Floyd Thornton David Wmney, Human Resources Director Colt Price, Personnel Julia Vasquez, First Assistant City Attorney Kinley Hegglund, Senior Asst. City Attorney Dennis Bachman, Chief of Police Linda Merrill, Recording Secretary David Ferguson John Spragins Scott Vaughn Mike Wheat Joseph Puddu Jim Davis Ray Wood Joe Morris Al Vitolo James Duncan 1. Call to Order Commission Members City Staff Wichita Falls Police Department Wichita Falls Fire Department Chairman Monaghan called the meeting to order at 2:00 p.m. 2. Approval of Minutes (May 1, 2006) Commissioner Thornton moved, seconded by Commissioner Dover, that the minutes of the meeting of May 1, 2006, be approved. The motion carried. Minutes of the Civil Service Commission Meeting November 17, 2006 2 3. Consider Grievances Of Promotion Testing Notice And Source Listing Posting For The Fire Lieutenant Examination, By Fire Equipment Operators Joe D. Morris And Danny Mummert, Pursuant To §143.029 Of The TEXAS LOCAL GOVERNMENT CODE And Related Civil Service Commission Rules. Director of Civil Service David Winney stated that this item concerns a source materials posting dated February 21, 2006. This posting included the phrase, "this is a six month notice of source materials." This was a comment used in years past, and he has now discontinued its use. However, that six -month period would have ended on August 21, 2006. He did not catch this, unfortunately, and failed to get a new source listing out in time, in order to timely post for an upcoming test for fire lieutenant, fire captain, and fire equipment operator positions. In an attempt to remedy this situation, Mr. Winney included the source materials on the promotion notice. He did point out that the February 21 listing is actually a carry -over of the same list used in 2005, so the firefighters have had ample notice of these materials. Mr. Winney continued, noting the firefighters assert this was not handled pursuant to civil service. They also noted an error on the notice, as it referenced the civil service rules as revised in January 2005, rather than April 2005. The test has not been conducted. There must be 90 days between the posting of source material, and the date of the test. This has been accomplished, and the test is scheduled for December 11. Chairman Monaghan acknowledged FEO Joe Morris. Mr. Morris noted that if the Civil Service Director had abided by the requirements of Chapter 143 (TEXAS LOCAL GOVERNMENT CODE), this appeal would not have been necessary. He has been employed by the Wichita Falls Fire Department for over 18 years. Danny Mummert, who also filed an appeal over this issue, but who was unable to attend today's meeting, has been with the Department for 31 years. Chapter 143 governs civil service employees throughout their careers, and it affects not only their work, but also their lives outside of work, citing the recent indefinite suspension of police officer Jeremiah Love (for the content of his My Space website). They are tested on this chapter to get out of the academy, and then to earn promotions. If the employees are held to the requirements of this Chapter, so should be the Director of Civil Service. He is not sure whether the Director does not know, or does not understand, the requirements of Chapter 143. Mr. Morris referenced § 143.029, Promotional Examination Notice, subsection (a), noting that this subsection requires a listing of source materials be posted before the 901h day before the date a promotional examination is held. Subsection (b) requires that a notice of the examination be posted before the 30th day before a promotional examination is held; subsection (c) notes that this examination notice may also include a listing of the source materials. Chairman Monaghan noted that there has been an acknowledgment of some errors in posting. However, the source list was posted and the examination scheduled for more than 90 days beyond that posting date. Mr. Morris concurred that an examination notice was posted, but no new source list has been provided. The replacement source list that the Director provided is Minutes of the Civil Service Commission Meeting November 17, 2006 still dated as of February 21, 2006, and includes the "six -month notice" statement. Mr. Winney told him that the date of the source list did not matter, because the examination notice lists the source materials, as well. Mr. Morris disputes this assertion, as there need to be two pieces of paper — there is still no valid source material list posted. Commissioner Dover asked for his suggestion as to a solution. Mr. Morris said a source list needs to be posted, and the examination scheduled for at least 90 days out from the date of that posting. Chairman Monaghan noted that at this point, no one has been harmed - other than someone would have potentially earned a promotion at an earlier date. Chairman Monaghan asked if both the source list and examination notice could be posted at the same time. Attorney Julia Vasquez replied affirmatively. She also noted that Mr. Morris was correct that past practice has been for course material to be posted on a six -month basis. Prior to the recent rules change, promotion exams would be routinely given, and promotion lists created, regardless of whether there was a vacancy or pending vacancy. Now, however, testing only occurs in the event of a vacancy or pending vacancy. There is no requirement in §143.029 that six -month source listings must be posted, Ms. Vasquez continued. Despite the fact it says this is a six -month notice, it does not state the list expires at the end of that six -month period. Chapter 143 is satisfied if the source material posted 90 days before the exam was given, is the same source material from which the questions for the exam are taken. Section 143.029 does not contemplate a beginning or ending date of source validity. Mr. Morris countered that most would interpret that phrase as meaning the list is valid for six months, and then does expire. It has been that way for the past 18 years, as well. Firefighter Ray Wood stated that most Civil Service Directors across the state have eliminated the six -month notification from the source listing. Commissioner Dover recognized that this is a process from a previous Civil Service Director, and not required under the law. It is now up to the Commissioners to determine the appropriate action. He wanted it noted for the record that he is not comfortable coming to a meeting and being handed a voluminous amount of information. Had he received this information in a timely manner from the Director, he could have prepared more informed questions. He never wants this to happen again. Mr. Morris noted that, when he told Mr. Winney of his concerns, Mr. Winney copied the same source listing and sent it to the departments. Mr. Morris noted that while this may be a picky point, a picky point could cost him his job. Firefighter Gregg Oliver observed that if this issue is not resolved prior to the test, it will have to be dealt with afterwards. Ms. Vasquez noted that the Commission is not required to address the issues raised in items 3 and 4 of this agenda, because no one is aggrieved at this point. However, since there are pending tests, the Commission certainly has the option to address them now. In fact, a ruling now could potentially avoid appeals filed after the exam. Minutes of the Civil Service Commission Meeting November 17, 2006 4 Chairman Monaghan stated that he believed there was a requirement that positions be filled within a certain period of time. Ms. Vasquez stated that when a vacancy occurs, there must be an exam and a promotion within 90 days of that vacancy. If that promotion does not occur, the person who is number one on the list is entitled to be paid that rank's salary every day after 90 days that the promotion does not occur. That is the civil service "punishment" to cities for not timely filling vacancies. Commissioner Thornton moved that the Civil Service Director publish a new source list and to set and announce a test date 90 or more days subsequent to the date the new source list is posted, and to ensure that at least 30 days in advance of the examination, formal notice of such examination is posted. Commissioner Dover seconded the motion, which carried. 4. Consider Grievances Of Promotion Testing Notice And Source Listing Posting For The Fire Equipment Operator Examination, By Firefighters Ray Wood, Jr., Derek Lynn Davidson, Michael J. Hurley, Russell D. Sheppard, Greggory Oliver, Christopher Schweiger, Brad Snody, and Al Vitolo, Pursuant To §143.029 Of The TEXAS LOCAL GOVERNMENT CODE And Related Civil Service Commission Rules. Mr. Wood noted a procedural error regarding notification of today's meeting. The Fire Department personnel only had 69 hours notification, as opposed to 72 hours as required by § 143.006. He believes this shortened notification period is why a lot of members with grievances are not in attendance. Ms. Vasquez noted that there are two issues involved: (1) notification to the affected civil service employees, and (2) a legally posted meeting notice. The notice was legally and timely posted to conform to the Open Meetings Act requirements. Mr. Wood stated that the shortened notice to the employees prohibited their abilities to be prepared for today's meeting. Mr. Morris concurred, stating that had he not been on duty when it was posted, and if no one had called him, he would not have known about the meeting until he came to work this morning. Chairman Monaghan asked if he would have known about the meeting had it been posted three hours earlier, as required. Mr. Morris replied they work 24 hours, and are off 48 hours, and he would not have known. He wonders if there is a procedure to allow for personal notification of meetings. Chairman Monaghan noted that this is a learning experience, and the point is well taken. He would have to defer to Ms. Vasquez for any legal ruling on this issue, if someone wishes to pursue it. Mr. Morris noted he wished to withdraw his appeal regarding the notice of meeting that he presented to the Civil Service Director on the 15th. Chairman Monaghan directed that he do so in writing. Chairman Monaghan commented that he would be inclined to proceed in the same manner with the FEO examination as for the previously discussed fire lieutenant examination. He subsequently moved that the Civil Service Director publish a new source list and to set and announce a test date 90 or more days subsequent to the date the new source list is posted, and to ensure that at least 30 days in advance of the examination, formal notice of such examination is posted. Commissioner Dover seconded the motion, which carried. Minutes of the Civil Service Commission Meeting November 17, 2006 5 5. Consider Appeals On Various Questions From The Civil Service Police Sergeant Promotion Examination Administered On November 3, 2006, Pursuant To §143.029 Of The TEXAS LOCAL GOVERNMENT CODE And Related Civil Service Commission Rules. David Ferguson discussed his appeal of Question 25, regarding conduct that constitutes delinquent conduct. He believes the answer to the question was not exactly quoted (not including the phrase, "third or subsequent offense "), and was thus misleading. He asked if the same company prepared the test that prepared last year's exam, to which Ms. Vasquez replied affirmatively. He expressed that last year's test was airtight, but he noticed several typographical errors in this test. Ms. Vasquez did note that there were no appeals last year. Chief Bachman noted that previous tests would ask for the best answer, but since this test does not include that verbiage, he would tend to agree with Mr. Ferguson. Commissioner Dover moved to eliminate the test question, and to regrade the examination on the basis of 99 questions. Commission Thornton seconded the motion, which carried unanimously. Ms. Vasquez noted that the test writer will be notified to eliminate the question. John Spragins then discussed his appeal of Question 89. Chairman Monaghan noted that every person who took the test got this question wrong. Mr. Ferguson appealed this question, as well. The key incorrectly noted that "unfounded" was the correct answer, rather than "evidence sustained." Chairman Monaghan remarked that this is clearly a technical issue, and moved that Question 89 be removed from consideration for purposes of grading the test. The motion carried unanimously. Mike Wheat then discussed his appeals of various questions, noting that the purpose of his appeals is to show that the validity of these questions is problematic for future tests. His concern is to get the best person for the job. Question 45 was taken from Supervision of Police Personnel, and the correct answer is fear of competition. However, in Effective Supervisory Practices, that same topic asserts the answer to be fear of letting go of one's work. The test gives both answers. The first answer he saw that he felt was correct, fear of letting go of one's work, is the one he chose. Both are factual answers about delegation. Is he required, as a test taker, to not only know the correct answer, but also from which book the answer came? Chief Bachman noted that it has been a requirement for quite some time to know both the correct answer, and that answer's source. He cannot say if that is the correct approach, but that has long been part of the test. Mr. Wheat countered the test should be factual, and not memory - based. It does not seem to be a relevant determination of who is a better candidate for a supervisory position. Chief Bachman replied the reason the title of the book is put before the question is to let the test taker know what source is being tested. That being said, he believes the test writer should research the other source materials to ensure that no possible answer Minutes of the Civil Service Commission Meeting November 17, 2006 6 contradicts with the correct one. Mr. Wheat said the test preparer should make sure they do not include valid, correct answers from two sources. The end result is one answer is deemed incorrect, although it is correct according to another source. Mr. Ferguson noted that there is a long list of texts to study in preparation for promotional examinations. Most of those texts cover supervision in some respect. The question at issue was taken verbatim from the source that was referenced before the question. He does not believe there is a valid grievance to this question. Commissioner Dover moved that this question be nullified, and Commissioner Thornton seconded the motion. Mr. Wheat noted he is not asking that it be nullified, as he does not want to harm anyone. He just does not want this to happen again in the future. Chairman Monaghan noted that he feels the question should be sustained, but acknowledged there was a motion on the floor. Commissioner Dover withdrew his motion; Commissioner Thornton withdrew his second. Chairman Monaghan moved that Question 45 be sustained. Commissioner Dover seconded the motion, which unanimously carried. Ms. Vasquez noted that the test writer, when she first began to write examinations for the City, opined there were too many source materials for both police and fire personnel. She recommends creating a test using no more than four to five source materials. The test writer takes no less than 10 questions from any source material, in order to really test a person's knowledge of that source. But the decision to reduce the amount of source material is not that of the test writer, but of the departments. The police department accepted her recommendations, but the fire department has been resistant to reduce the list of source materials. Mr. Wheat expressed his opinion that there are two right answers to Questions 64 and 68. He is not looking for them to be thrown out. He believes the two correct answers to Question 64 are the answer according to the key (C, the victim of a felony) and A, kidnapping. Ms. Vasquez asked if Mr. Wheat were requesting an advisory opinion from the Commission, to which he asked what the remedy should be for two correct answers. Ms. Vasquez noted it is up to Mr. Wheat to tell the Commission what end result he is requesting. He replied that the question should be eliminated. Chairman Monaghan observed that his concern with Question 64 appears to be the same as with Question 45, as the answer is again verbatim from the source material. Mr. Wheat replied that he does not see how exact memorization of a phrase is beneficial. Chairman Monaghan understands Mr. Wheat's concerns; at the same time, however, there is nothing wrong with the question, and the reference material is cited, and the answer to the question is quoted verbatim. Mr. Dover expressed his hope that the solution will be to look at the source material for the next test. Mr. Wheat asked the Civil Service Director if he had information on how many had answered the question correctly. Mr. Winney replied that he did not, except for Question 89, the one answered incorrectly by all who took the test. Minutes of the Civil Service Commission Meeting November 17, 2006 7 Chairman Monaghan moved that Question 64 be sustained. Seconded by Commissioner Dover, the motion carried. Mr. Wheat's appeal of Question 68 was then discussed. Answer A, unable to cope in society, is the correct answer. The chapter of the source material references "these" massacres, but the test omits the word "these." The chapter uses the terms "mass murders" and "massacres" interchangeably. The term "mass murderers" references "serial killers" later in the chapter. He believes A or C could be correct choices. Chief Bachman stated that a mass murderer is not the same as a serial killer. Mr. Wheat states that an entire paragraph speaks of mass murderers or serial killers interchangeably. Chairman Monaghan noted that the language of the answer deemed correct is taken verbatim from the source material, as with the previous two questions. He moved that Question 68 be sustained. Seconded by Commissioner Dover, the motion carried. Mr. Wheat then discussed his appeal of Question 77, regarding multicultural law enforcement. In the chapter in question, it refers to Arab Americans, but later speaks specifically regarding Saudi Arabians. Chairman Monaghan noted that the answer, "There is more of a fear of police than in other countries because the punishment is stricter," is almost verbatim of the statement made in the source material. Commissioner Dover noted that this is a conceptual answer, and not a factual one. The book came out just before 9/11, which changed everything. Chairman Monaghan observed the answer might be wrong based on what has transpired, but not based upon the test reference material. Commissioner Thornton moved to sustain Question 77. Commissioner Dover seconded the motion, which carried unanimously. Mr. Wheat then discussed his appeal of Question 81, regarding hateibias crimes. He believes the question is taken out of its context from the source material, and therefore A, compliant enforcement, is the correct answer. He believes the question is trying to make a generalized question out of a specific statement in the book, and should be eliminated. Commissioner Dover moved to sustain Question 81, seconded by Commissioner Thornton. The motion carried. Mr. Wheat then discussed his appeal of Question 99. He noted this is a factual issue. According to the law, the correct answer is C, $1,000. However, the key shows B, $500, as the correct answer. The General Orders still show $500, but the Legislature changed the amount two years ago to $1,000. That figure has been changed on crash report forms. Chief Bachman asked Mr. Wheat when he realized that the General Order was wrong. He replied that he discovered it after the test; he did not read it right before the test. Chairman Monaghan noted that the Commission is in a difficult box here, based upon its previously rulings on Mr. Wheat's appeals today. Ms. Vasquez noted that General Orders are promulgated by the Chief of Police and change frequently. They are unlike other source Minutes of the Civil Service Commission Meeting November 17, 2006 8 materials, where scholars can disagree on certain answers. Officers are required to follow the law, and not the General Order, if such Order is in conflict with the law. That distinguishes any decision the Commission might wish to make regarding General Orders, as opposed to scholarly texts containing differing opinions. Mr. Wheat said the best option is to eliminate this question. Chief Bachman urged those officers present to report any problems they may find with the General Orders. However, he noted that a test is posted at a certain time, and the law keeps changing. The test takers are required to know the old law when tested. It becomes necessary to separate out one's knowledge. It may not be right, but that is how the tests operate. Mr. Winney noted that all examinees answered with either B or C to this question. Chairman Monaghan moved that the Civil Service Director accept both answers B and C for Question 99. Commissioner Thornton seconded the motion, which unanimously carried. Mr. Wheat then discussed his appeal of Question 97. Chairman Monaghan asked that the Civil Service Director bring more copies of any disputed test to future Commission meetings (the attendees were sharing the one test that was brought by the Director). Question 97 states that class C misdemeanor warrants and traffic warrants issued by the Municipal Court are recorded and kept by the Court with the following information available except: - and B, defendant's description, is keyed as the correct choice. He believes this to be incorrect. That would mean the description of the defendant is not kept with Municipal Court, when, in fact, the warrants are recorded and kept with the Court. As long has he has worked for the City, the description of the defendant has always included the name, date of birth, height, color of hair and eyes. The General Order only says the name of the defendant. The obscure response, Mr. Wheat continues, was the source of the warrant. The only thing kept on the ticket that has anything to do with the source is the judge who issued it. He chose source of the warrant, and that was marked incorrect. He thinks source of the warrant means what agency, which means DPS, TABC, or County. That is open to interpretation. It appears the name and description are left out of the General Order in error. The most correct answer would be B, source of the warrant, or none of the answers are correct. Mr. Wheat asked why he is obligated to answer a question incorrectly, just for the purposes of getting the answer right on the test. Mr. Wheat declared that what is practiced on the job is just as important as the written law. Chief Bachman remarked that officers need to know what is contained in the General Orders. Minutes of the Civil Service Commission Meeting November 17, 2006 9 Ms. Vasquez feels the Commission's option is to throw out the question, if they choose not to sustain it. Option two, to overrule the question, requires that two or more answers are correct, and it seems that none of them are correct in this instance. Chief Bachman noted that those individuals being tested are supposed to know from which source the testing material is derived, and what it says, but agrees it probably could be eliminated as a test question. Commissioner Dover moved that this question be eliminated. Chairman Monaghan seconded the motion, which was unanimously approved. 6. Adjourn The meeting adjourned at 4:11 p.m. Bob Monaghan,