HomeMy WebLinkAbout16 - Promotional Process of the Police DepartmentCITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. I6
January 12, 2010
TO: HONORABLE MAYOR AND COUNCIL MEMBERS
FROM: David R. Hunt, City Attorney
ext. 3131, dhunt @newportbeachca.gov
Terri Cassidy, Human Resources Director
ext. 3300, tcassidy @newportbeachca.gov
SUBJECT: Civil Service Board's Recommendations after Completion of the
Police Management Association's Request of an Investigation into
the Promotional Processes of the Police Department
ISSUE:
Should the City Council accept the recommendations of the Civil Service Board after
completion of the Police Management Association's requested investigation into the
promotional processes of the Police Department?
RECOMMENDATION:
Accept the recommendations of the Civil Service Board as set forth in its resolution
2009 -02 from its December 7, 2009 meeting; and
2. Direct staff to present the recommendations to the Charter Update Commission for
consideration of Civil Service System modernization.
BACKGROUND:
As you know, the Police Management Association ( "PMA ") requested an investigation of
the police promotional processes via correspondence dated December 22, 2008. That
investigation was conducted by the Civil Service Board ( "CSB ") pursuant to the provisions
of the Civil Service Rule 501.4. The investigation was completed and the CSB accepted
the investigation as having been objective, thorough, and complete. The CSB adopted a
resolution at its December 7, 2009 meeting accepting the investigation, adopting the
findings of the investigation, adopting the recommendations from the investigation and
making further recommendations of its own. We have appended a copy of the December
7, 2009 CSB staff report along with its attachments as Attachment "1" to this staff report.
In addition, we append the final executed resolution from the CSB as Attachment "2 ".
Civil Service Board's Recommendations after Completion of the
Police Management Association's Request of an Investigation into the
Promotional Processes of the Police Department
January 12, 2010
Page 2
At this time, it is appropriate for the Council to give direction on whether it wishes to accept
the recommendations of the CSB and give direction on an appropriate work program for
the staff to pursue in addressing the issues.
A great many of the concerns raised in the investigation have been dealt with already in
the effort to address the issues raised in a timely manner. An extensive chronology of the
events is reflected in the attached CSB Staff Report. In brief summary, however, we note:
Former Chief Klein created a committee within the department to address
promotional process issues. That committee issued its recommendations to
Chief Klein in June of 2009 and many of the recommendations have been
put into to effect by Chief Luman with the approval of the CSB in the last
round of promotional testing.
• The Police Legal Advisor position has been eliminated with the agreement of
all involved parties.
• Three City Attorney legal opinions were issued clarifying chief officer
promotional process requirements, addressing the question of validity of the
Continued Employment Agreement, and clarifying the length of time
employment lists can be extended and their effective dates.
When considering what direction you wish to give, we note you have already placed the
issue of modernization of the Civil Service System in the list of issues for the Charter
Update Commission to address. The Commission can make recommendations on any
overall modernization. You may wish to defer any Council action on the CSB's
recommendations until after the Charter Update Commission has addressed the issue of
Civil Service modernization.
A very brief summary of the Board's recommendations and staffs recommended Council
response is set out below:
No.
I Summa :
Recommended Council Response:
1.
If you wish to retain the Continued
No Action Needed at this Time. Address
Employment Agreement ( "CEA "), require
as needed in negotiations with labor
they be reviewed by Office of the City
organizations. Except as might otherwise
Attorney ( "OCA ") and be approved by the
be agreed, staff recommends no renewal of
City Manager; and maintained with all other
the CEA.
personnel files.
2..
Review "Whole Number Scoring."
No Action Needed. Chief Officer has
recommended and the Board approved
abandoning the conce t.
Civil Service Board's Recommendations after Completion of the
Police Management Association's Request of an Investigation into the
Promotional Processes of the Police Department
January 12, 2010
Page 3
3.
Insure timely evaluation and create
No Action Needed. This issue is under
consequences for failure of supervisors to
review by the City Manager and since he is
comply.
the ultimate appointing authority for these
positions, we recommend he take action on
this recommendation reporting back to the
Council as directed.
4.
Review issues re "fitness evaluation" portion
No Action Needed. This process has been
of the Police promotional process.
modified on recommendation of the Chief
Officer and agreement by the Board
addressing all concerns raised.
5.
Revise Civil Service Rules to eliminate any
No Action Needed at this Time. The issue
ambiguities regarding duration and extension
has been addressed by City Attorney
of employment lists.
Opinions and the issue can be considered
after completion of the Charter Update
Commission's review process.
6.
Prohibit appointing authority from sitting on
No Action Needed at this Time. This
review panels either as an evaluator or an
practice has been abandoned, though there
observer.
are no formal rules that have been adopted.
Formal rules can be addressed in the
context of the City Manager's authority as
the ultimate appointing authority and
otherwise be left for resolution in the Civil
Service context until after completion of the
Charter Update Process.
7.
Insure compliance with ordinance provisions
No Action Needed at this Time. The
re Chief Officer recruitment.
process has received clarity from the City
Attorney Opinion and the new City Manager
is committed to conducting an open
recruitment for the next Chief of Police. The
Council can await taking action on this issue
until after the Charter Update Commission
makes its recommendations.
8.
Direct that the Police Department create a
No Action Needed at this Time. We
succession plan.
recommend that this process be engaged in
by the new Chief of Police once hired under
the direction of the City Manager, with
reports to Council as needed in the process.
9.
Develop a career development plan for ranks
No Action Needed at this Time. We
of sergeant, lieutenant, and captain.
recommend that this process be engaged in
by the new Chief of Police once hired under
the direction of the City Manager, with
reports to Council as needed in the process.
10.
Review issues re the Police Legal Advisor
No Action Needed. The position has been
position.
eliminated upon the agreement of all
involved parties.
Civil Service Board's Recommendations after Completion of the
Police Management Association's Request of an Investigation into the
Promotional Processes of the Police Department
January 12, 2010
Page 4
ENVIRONMENTAL REVIEW:
Addressing procedural issues within City government such as this one is not a "project" as
defined in the California Environmental Quality Act ( "CEQA ") implementing guidelines.
PUBLIC NOTICE:
Notice has been given consistent with the Ralph M. Brown Act. No other public notice
is required for this item.
CONCLUSION:
The CSB has made recommendations to the City Council pursuant to the CSR's role in
conducting investigations into the personnel system. We now seek direction from the
Council with respect to the recommendations of the CSB. We look forward to receiving
your direction.
Prepared & Submitted by: Submitted by
0 AkE��Z:�
David R. Hunt,
City Attorney
Terri Cassidy,
Human Resources Director
Attachment 1: December 7, 2009 CSB Staff Report
Attachment 2: Resolution 2009 -02
A08 -00224 CC from DRH 01.12.10 Mtg
ATTACHMENT 1
December 7, 2009 CSB Staff Report
CITY OF NEWPORT BEACH
CIVIL SERVICE BOARD STAFF REPORT
Agenda Item No.
(December 7, 2009)
TO: HONORABLE CHAIR AND MEMBERS OF THE CIVIL SERVICE BOARD
FROM: David R. Hunt, City Attorney
ext. 3131, dhunt @newportbeachca.gov
SUBJECT: Review and Approval of Promotional Investigation Report; Adoption
of Findings and making of Recommendations
MATTER: NBPMA Promotional Process Investigation
Review the police promotional investigation and the executive summary public report
prepared based upon it; adopt proposed resolution accepting the report as objective,
thorough, and complete and making findings and recommendations based upon the
report.
DISCUSSION:
Brief Background
The Newport Beach Police Management Association ( "PMA ") requested via
correspondence dated December 22, 2008 that an investigation of police promotional
process be conducted by the Civil Service Board ("Board "). The Board authorized the
investigation and speed its scope on March 16, 2009 via resolution. A copy of the
resolution is appended as Attachment "1" to this staff report. The Board then
appointed James Blaylock as an independent Investigator to address the issues. Mr.
Blaylock issued a confidential report to the Board through the Office of the City Attorney
on October 5, 2009. The Board has had three closed session meetings considering the
confidential report, its findings and recommendations. The Board has scheduled final
action on the investigation for its December 7, 2009 regular meeting.
2. Intervening Events
Multiple events occurred during the time the investigation was pending. Some were
brought about as a result of the investigation, some were tangentially related to the
investigation, and some had little or no relationship to the investigation whatsoever.
Review and Approval of Promotional Investigation Report; Adoption of Findings and
making of Recommendations
December 7, 2009
Page 2
These events, however, are significant in a review of the investigative report as well as
in making a determination as to what recommendations the Board will adopt The
events of significance that occurred during this approximate eight month period are as
follows:
• On April 3, 2009, the Office of the City Attorney issued a legal opinion
determining that the 2007 Chief of Police Recruitment was conducted in a
manner inconsistent with the City's Civil Service ordinance.
• On April 6, 2009, Chief John Klein announced that as a result of concerns raised
regarding recent promotions within the Police Department and concerns about
the promotional process as a whole, he was "temporarily suspending any future
promotions or additional promotional testing until there is a finding from the Civil
Service investigation."
• On April 27, 2009, the Police Legal Advisor's relationship to the Office of the City
Attorney and designation as the Deputy City Attorney was eliminated pursuant to
an agreement between the parties.'
• On May 4, 2009, the CSB accepted the elimination of the Police Legal Advisor
0 duties from the lieutenant's job description from the Police Department.
• On June 4, 2009, the Office of the City Attorney issued a legal opinion
addressing the question of what length of time employment lists may be
extended under the Civil Service ordinance, concluding lists may be extended
"up to' a full year and any increment within that time frame.
• On June 30, 2009, the internal Police Department committee created by Chief
John Klein in October of 2008 to review police promotional processes presented
Its final report to the Chief of Police. This Committee was composed of
representatives from the PMA, Newport Beach Police Employee's Association
('PEA") and Human Resources. It was called upon to address all issues related
to promotions within the Police Department. The Committee's report was
presented to the CSB in October of 2009 and is part of the basis chosen by Chief
of Police Luman'S 2 request for proceeding forward with the new promotional
process to be utilized by the Police Department.
The process for change was in part initiated independent of the Investigation
since it was a decision I made when I first became City Attorney in light of my charge
from the Council to consolidate all legal services fully within the Office of the City
r Attorney.
2 On July 12, 2009, Robert Luman replaced refiring John Klein as Chief of Police.
Review and Approval of Promotional Investigation Report; Adoption of Findings and
making of Recommendations
December 7, 2009
Page 3
• On September 4, 2009, the Office of the City Attorney issued a legal opinion
clarifying the effective date of employment lists, establishing that the date of
certification by the Civil Service Board is the effective date of the list.
• On October 5, 2009, the confidential report regarding the investigation was
issued to the Office of the City Attorney.
• On October 5, 2009, Chief Luman initially presented a preview his preferred plan
for the ongoing promotional processes within the Police Department to the Board
at its regular meeting.
• On October 26, 2009, the Board held its first dosed session to consider the
confidential report.
• On November 2, 2009, Chief Luman requested authority from the Board to
proceed forward with promotions consistent with the finding of the investigation
that no manipulation was found with respect to the police promotional processes
and the existing employment lists could be utilized for promotion to the two
vacant positions, one lieutenant and one sergeant, which existed in the police
�l department before the original term of the list had expired.
�J • On November 3, 2009, Chief Luman commenced the process for formulating
new employment fists pursuant to the direction of the CSB at its November 2,
2009 meeting, advertising the commencement of promotional processes
consistent with the Board's action.
• On November 21, 2009, Chief Luman announced the promotion of Damon
Psaros to the rank of sergeant and Scott McKnight to the rank of lieutenant within
the Police Department based upon the former employment lists that were
certified by the Board prior to the commencement of the investigation.
• On November 23, 2009, the Board held its second closed session meeting to
consider the report,
• On November 30, 2009, the Board held its third closed session meeting to
consider the report.
3. December 7. 2009 Hearing
A summary public report has been prepared at the Board's direction. The summary
public report Is intended to provide as much transparency as possible under the law
`l with respect to the investigation. The 209 page confidential report contains extensive
confidential information regarding personnel matters and issues which cannot be
Review and Approval of Promotional Investigation Report; Adoption of Findings and
making of Recommendations
December 7, 2009
Page 4
divulged based upon privacy interests. Additionally, there were extensive witness
interviews and an investigation covered under the attorney work product privilege. The
assertion of the privilege is necessary in order to allow witnesses the opportunity to be
completely candid in all of their discussions with the investigator. As such, the witness
interviews, along with the balance of the investigation, are covered by the attorney work
product privilege. Both confidential personnel matters and attorney work product
documents and communications are privileged matters are exempted from disclosure
under the California Public Records Act (Government Code Section 6264(c) and (k)
respectively.)
The hearing scheduled on December 7, 2009 is for receiving comments and testimony
with respect to the report, considering the report and determining whether or not the
Board will accept it as objective, thorough and complete. The summary public report is
appended as Attachment "2" to this staff report.
Should you accept the report as objective, thorough, and complete, you then need to
determine whether you adopt Its findings and its recommendations and whether you
wish to make additional recommendations of your own. While these issues have been
considered in the context of reviewing the report in dosed session, no final action has
f 1 been taken on any of these questions and they are ripe for you to consider at the
December 7, 2009 meeting.
We have prepared a proposed resolution for your consideration. In brief, the resolution
provides that you find the report to be objective, thorough, and complete, that you adopt
its findings as your own, and in addition, you adopt the recommendations of the report
as your own and make additional recommendations. The proposed resolution is
appended as Attachment "3" to this staff report.
It is appropriate for you to: 1) Conduct a hearing on the issues raised in the approved
scope of investigation and addressed in the report; 2) Receive testimony; 3) Close the
public hearing; and 4) Make a decision as to how you wish to proceed.
The Board has multiple alternatives available to it for final deciding these issues:
D The Board can accept the report as objective, thorough, and complete,
and take action regarding findings and recommendations;
The Board can direct further investigation or work be performed within the
scope of the investigation adopted by you on March 16, 2009; or
➢ The Board can reject the report and direct staff to take further action the
Board deems appropriate.
Review and Approval of Promotional Investigation Report; Adoption of Findings and
making of Recommendations
December 7, 2009
Page 5
CONCLUSION:
The investigation was requested at the end of December of 2008. You directed an
investigation be conducted pursuant to the specific scope that you adopted on March
16, 2009. You are now formally presented with the final report based upon that
investigation. We recommend that you accept the report as objective, thorough, and
complete, adopt its findings and recommendations, and make further recommendations
as you deem appropriate. All of these actions can be performed through the approval
and adoption of the resolution presented to you for consideration.
Prepared by:
David R. Hunt
City Attorney
,. Attachment 1: March 16, 2009 Resolution
t Attachment 2: Summary Public Report
Attachment 3: Proposed Resolution
cc: Mayor and City Council (w /Enc.)
Dave Kiff, City Manager (w /Enc.)
Chief Luman, Police Dept (w /Enc.)
Terri Cassidy, Human Resources Director (w /Enc.)
PMA Board
David Syvock, NBPEA President
A08W229 DOWMeg Mig
3�
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ATTACHMENT 1
CSB December 7, 2009 Staff Report
0. March 16, 2009 Resolution
1
RESOLUTION OF THE CIVIL SERVICE BOARD OF THE CITY
OF NEWPORT BEACH DIRECTING AN INVESTIGATION OF
POLICE PROMOTIONAL PROCESSES AS REQUESTED BY
THE NEWPORT BEACH POLICE MANAGEMENT
ASSOCIATION UNDER CIVIL SERVICE BOARD RULE 501A
WHEREAS, the Newport Beach Police Management Association ("PMA") is an
organized and recognized City employees' association:
WHEREAS, Civil SerWm Rule 501A states, In pertinent part, "The Board shall make
any investigation concembV the administration of personnel in the Civil Service and
reports Its findings to the City Cound and City Manager when requested to do so by the
City Council, the City Manager or by an organized City employees' association;'
WHEREAS, the PMA made a request for an investigation of the police promotional
practices via correspondence from their counsel dated December 22, 2008;
WHEREAS, the Civil Service Board ("C SSR) has considered the Issues raised by the
PMA and Its request at its January 5, 2009 rrreeft, briefly heard testimony at Its
February 5, 2009, March 2, 2009 meeting, and at Its March 16, 2009 special meeting;
NOW THEREFORE, the CSB hereby resolves as follows:
±` SECTION 1: An investigation of the issues raised by the PMA that are rwithin the
jurisdiction of the CSB shall be conducted pursuant to the Scope of Investigation
attached hereto as Exhibit 'A" and hereby incorporated by reference. This Investigation
is being conducted by the CSB pursuant to the CSS's authority.
SECTION 2: The Office of the City Afbomey COCA") is directed by the CSB to retain
James R. Blaylock to conduct an Investigation as defined under Section 1. The
Investigator Is appointed to conduct this Investigation through the Orifice of the City
Attorney on behalf of the CSB and pursuant to the CSR's authority. The investigator is
appointed to conduct an inquiry of the issues and determine all facts that are relevant to
answering the questions set out in the scope of kwestigation. The Investigator stmt!. be
retained by, and coordinate his efforts through, the OCA.
SECTION 8: The OCA and Secretary of the Board shall provide the Investigator with all
necessary support and assistance. The Secretary of the Board shall be the primary
point of contact for the Investigator to the CSB. The OCA shall perform the duties and
MIMI the role of legal advisor to the Investigator and shall render all legal opinions that
arise out of the fans that are investigated. The CSB Secretary and OCA shalt keep the
CS8 fully apprised of the progress of the investigation and of all communications from
the investlgator regarding all substantive issues to be addressed.
0 SECTION 4: if the investigator discovers farts during the course of this investigation
that he believes, in his professional judgment, may warrant further investigation but fall
outside of the express scope of this investigation, he shall bring them to the attention of
the OCA and Secretary of the Board. It the facts raise issues within the jurisdiction of
the Board, the OCA and the Secretary of the Board shall present them to the Board and
the Board shall decide whether or not to increase the scope of the investigation. If the
facts raise issues that are not within the jurisdiction of the Board, the OCA shall
determine the appropriate course of action.
Section 5: The investigator shall ultimately report all findings, conchmions, and
recammwWatlons to the Board in writing. The written report shall be submitted to the
Board through the OCA and the-Secretary of Board.
PASSED, APPROVED AND ADOPTED THIS 10 DAY OF MARCH, 201)9
AYES, CIVIL SERVICE BOARD MEMBERS-41X, SO Cdus.�1
NOES, CIVIL SERVICE BOARD MEMBERS
ABSENTCIVIL SERVICE BOARD MEMBERS
CIVIL SERVICE BOARD:
A-X-4 `'
Bert Carson, Chairman
ATTEST:
Secretary of the C4A1 Servloe Board
APPROVED AS TO FORM:
I O w E CITY ATTORNEY
David R. Hunt, City Atfomey
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ATTACHMENT 2
CSB December 7, 2009 Staff Report
Summary Public Report
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i
CITY OF NEWPORT BEACH
SUMMARY OF REPORT TO CIVIL SERVICE BOARD
RE: POSSIBLE MANIPULATION OF POLICE DEPARTMENT
PROMOTIONAL PROCESSES
DECEMBER 7, 2009
Prepared By:
James R. Blaylock
TABLE OF CONTENTS
Page
1. BACKGROUND & METHODOLOGY ...................................... ..............................1
II: SCOPE OF INVESTIGATION ................................................. ..............................2
111. INTERVIEWS CONDUCTED ................................................. ..............................3
IV. CHRONOLOGY ...................................................................... ..............................4
V. FINDINGS OF FACT ............................................................. ..............................4
VI. RECOMMENDATIONS .......................................................... ..............................9
SUMMARY OF REPORT TO CIVIL SERVICE BOARD
RE: POSSIBLE MANIPULATION OF POLICE DEPARTMENT
PROMOTIONAL PROCESSES
BACKGROUND & METHODOLOGY
On December 22, 2008, the Newport Beach Police Management Association ( "NBPMA" or
"PMA "), through its legal counsel, requested that the Civil Service Board ( "Board ") conduct
an investigation regarding the Newport Beach Police Department's promotional processes,
as applied to supervisory ranks, on the grounds the processes failed to comply with Civil
Service Rules & Regulations relative to "faimess and objectivity." On January 28, 2009, the
PMA provided a number of documents to the Board in support of its general allegation. The
Board subsequently reviewed the documents provided by the PMA, worked with the City
Attomey to define the scope of an investigation, and interviewed potential investigators.
On March 16, 2009, the Board passed a resolution authorizing the retention of James
Blaylock to conduct an investigation and to report all findings, conclusions and
recommendations to the Board in writing, through the Office of the City Attorney.
On October 5, 2009, the investigator submitted a confidential report to the Civil Service
Board and City Attorney, consisting of 209 pages of text and 100 exhibits,' including
interview recordings and accompanying transcripts. Much of this material included
information deemed to be confidential personnel records under the Public Safety Officers
Procedural Bill of Rights Act (Govt. Code sections 3300 et. seq.), Penal Code section
832.7, and other provisions of state law.. The Civil Service Board and City Attorney
directed the investigator to prepare a summary report for public dissemination, with the
objective of providing the maximum disclosure of relevant investigative findings regarding
NBPD promotional processes, while protecting the confidential nature of personnel
information contained in the original report. This "Summary of Report to Civil Service
Board" is the result of that directive.
This investigation entailed:
Review of documents submitted to the Board by the NBPMA.
Review of documents submitted to the investigator by the PMA complainants.
Review of documents submitted to the investigator by various witnesses.
Review of applicable Civil Service Board Rules and Regulations.
' The exhibit list and actual exhibits are not included as part of this report, since
many of them contain confidential personnel information.
Page 1 of 10
Review of applicable Municipal Codes.
Review of promotional process test documents from 2005 through 2008.
Review of City Council Policy F -20 as applied to the September 12, 2005,
"Continued Employment Agreement," signed by the City Manager.
Review of documents related to the 2007 recruitment for the position of Chief of
Police.
Review of documents related to the °Rule of Eight" and "Whole Number Scoring"
changes implemented in 2006.
Review of grievances filed by the PMA complainants.
Review of relevant Department emails and memoranda.
Interviews of three PMA complainants and twenty witnesses; review of
corresponding transcripts.
Preparation of confidential investigation report with findings and recommendations.
11. SCOPE OF INVESTIGATION
The scope of this investigation was defined by the Civil Service Board by its Resolution
adopted on March 16, 2009. The Resolution defined the scope of the investigation as
follows:
General Scone:
Do the current police promotional procedures, as used from mid -2005 through 2008,
achieve the purpose of the Civil Service System through providing ... an equitable and
uniform procedure for dealing with personnel matters, to attract to the City service the most
competent persons available, to assure that the appointment and promotion of employees
will be based on merit and fitness, and to provide reasonable security for employees, "or
has the system been managed during this time so as to.-(1) allow individuals to exert
greater discretion than is warranted, thus marginalizing the objectivity necessary for a
process designed to foster fairness and merit, and (2) evidence a disregard for provisions
of the Newport Beach Municipal Code, Civil Service Board Rules and /or Council policy?
Ultimate Questions:
Number 1: Was the City Manager's authority exceeded and Council Policy F -20 violated
by entering into the agreement regarding post - retirement continued or part -time
Page 2 of 10
employment["Continued EmploymentAgreement'Y for NBPMA members in September of
2005, and, if so, what are the consequences of that conclusion, and what, if anything,
should be done to address the issue in the context of the Civil Service System?
Number2: Has the application of the provisions ofthe "Continued Employment Agreement"
affected the promotional process of the Police Department in such a way as to make it
inconsistent with the purpose of the Civil Service System, and if so, what if anything,
should be done to address the issue in the context of the Civil Service System?
Number 3: Are the promotional process changes instituted in March 2006, including but not
limited to numerical rating changes, the "Rule of Eight" and `Whole Number Scoring,"
consistent with the purpose of the Civil Service System, and, ff not, what, if anything,
should be done to address this issue in the context of the Civil Service System?
Number 4: Were the current promotional lists for Captain, Lieutenant, and Sergeant
vacated early in 2006 in a manner consistent with Civil Service Rules, and, if not, what, if
anything, should be done to address this issue in the context of the Civil Service System?
Number 5: Is it appropriate for the appointing authority to sit on oral boards for interviewing
promotional candidates, and, if not, what, if anything, should be done to address this issue
in the context of the Civil Service System?
Number 6. Was the 2007 recruitment for the position of Chief of Police conducted
consistent with the Newport Beach Municipal Code, the Civil Service Board Rules and
purpose, and, ff not, what, if anything, should be done to address this issue in the context
of the Civil Service System?
Number 7: Were the two three month extensions of the Police Captain Promotional
Eligibility lists in 20082 inconsistent with the Newport Beach Municipal Code, the Civil
Service Board Rules or the purpose of the Civil Service System, and, if not, what, if
anything, should be done to address this issue in the context of the Civil Service System?
Ill. INTERVIEWS CONDUCTED
The investigator initially interviewed three PMA members who had flied grievances
regarding alleged improprieties and inequities in the NBPD promotional processes. These
interviews, which were conducted between May 6, 2009 and May 12, 2009 were each
digitally recorded and transcribed. Before questioning commenced, each PMA
member /complainant was read a statement regarding the general scope of investigation,
as set forth above, and each complainant said the statement was an accurate summation
2 This is an incorrect date. The "eligibility lists° in question were extended in calendar
year 2007.
Page 3 of 10
of the concerns raised by the NBPMA.
In addition, the investigator interviewed twenty witnesses between May 12, 2009, and
September 18, 2009. These witnesses included current and former City employees, a
labor consultant to the City, two former Police Chiefs from outside departments and a
former Civil Service Board member who served as raters in promotional processes, and a
local businessman. Sixteen of these interviews were recorded and subsequently
transcribed.
IV. CHRONOLOGY
The investigator prepared a detailed chronology containing the dates of more then eighty
relevant events ranging from 1978 to May 2009, including references to numerous
documentary exhibits.
V. FINDINGS OF FACT
The "Findings of Fact" are the culmination of the comprehensive analysis portion of the
confidential report to the CSB, and address the seven "Ultimate Questions" enumerated in
the "Scope of Investigation" statement and one additional allegation raised by the PMA.
Sub - findings were made by the investigator where relevant to the Ultimate Question raised
and are indicated by an indent and appropriate numbering.
Ultimate Question No. 1:
Was the City Manager's authority exceeded and Council Policy F -20 violated by entering
into the agreement regarding post - retirement continued or part -time employment
[Continued Employment Agreement] for NBPMA members in September of 2005, and, if
so, whatare the consequences of that conclusion, and what, if anything, should be done to
address the issue in the context of the Civil Service System?
Findings on Ultimate Question No. 1:
Although the September 12, 2005 "Agreement Regarding Post - Retirement Continued or
Part-time Employment for NBPMA Members" ( "Continued Employment Agreement" or
"CEA ") is inconsistent with the City Charter and violated Council Policy F -20, there is no
director documentary evidence, and the evidence is insufficient to conclude the agreement
was used as a device to manipulate promotional processes.
1.1 The City Manager's authority was exceeded and Council Policy violated by
execution of the "Agreement Regarding Post - retirement Continued or Part-
time Employment for NBPMA Members" in September 2005.
1.2 The preponderance of the evidence does not indicate PMA members were
Page 4 of 10
intentionally misled regarding the incorporation of the Continued Employment
Agreement into the 2005 -2006 NBPMA MOU.
Ultimate Question No 2:
Has the application of the provisions of the "Continued Employment Agreement" affected
the promotional process of the Police Department in such a way as to make it inconsistent
with the purpose of the Civil Service System, and, if so, what if anything, should be done to
address the issue in the context of the Civil Service System?
Finding on Ultimate Question No. 2:
The preponderance of the evidence establishes that the application of the Continued
Employment-Agreements executed by three (now) former PMA members had no material
effect on downstream promotional opportunities for members of the PMA and there is no
direct evidence any PMA complainant was disadvantaged by application of the CEA.
Ultimate Question No. 3:
Are the promotional process changes instituted in March 2006, including but not limited to
numericalrating changes, the Rule of Eight-and "W hole Number Scoring," consistent with
the purpose of the Civil Service System, and, if not, what, if anything, should be done to
address this issue in the context of the Civil Service System?
Findings on Ultimate Question No. 3:
The preponderance of the evidence does not establish that application of "Whole Number
Scoring" and the "Rule of Eight" was inherently disadvantageous to candidates for
promotion to the ranks of Sergeant, Lieutenant, and Captain. However, there is a
significant portion of the Department that believes these rule changes do not "assure
appointment and promotion of employees will be based on merit and fitness."
3.1 The preponderance of the evidence indicates the 2006 changes to the
promotional process were not implemented for the purpose of manipulating
the outcomes of the promotional testing processes.
3.2 The preponderance of the evidence establishes that application of "Whole
Number Scoring" and the "Rule of Eight" was not inherently disadvantageous
or unfair to some candidates. As approved, the changes to the promotional
process are consistent with the purpose of the Civil Service System;
however, they have been rendered ineffectual by a belief the changes were
applied unfairly.
Page 5 of 10
Ultimate Question No. 4:
Were the current promotional lists for Captain, Lieutenant, and Sergeant vacated early in
2006 in a manner consistent with Civil Service Rules, and if not what, if anything, should
be done to address this issue in the context of the Civil Service System?
Findings on Ultimate Question No. 4:
The preponderance of the evidence establishes that the decision to suspend making
additional promotions from the 2005 Sergeants', Lieutenants', and Captains' promotional
eligibility lists complied with existing Civil Service Rules.
4.1 Civil Service Rules were not violated when the promotional eligibility lists
were "vacated" in early 2006.
Ultimate Question No. 5:
Is it appropriate for the appointing authority to sit on oral boards for interviewing
promotional candidates and , if not, what, if anything, should be done to address this issue
in the context of the Civil Service System?
Findings on Ultimate Question No. 5:
It is not appropriate for the appointing authority to serve as an evaluator in a promotional
process because it opens the process to claims of bias, or the appearance of bias.
There is insufficient evidence to determine whether the appointing authority's presence and
ratings during the 2006 Captains' oral interviews had a material impact on the candidates'
oral scores. However, the preponderance of the evidence indicates it is unlikely his
presence, or his scoring, had any effect on the promotions that were subsequently made
from the resulting eligibility list.
5.1 The participation of the appointing authorities in the oral boards of the 2005
and 2006 Captains' promotional processes was inappropriate.
5.2 The appointing authority's plan to serve as an oral board rater in the 2008
Captains' promotional process was inappropriate; however, his selection of
the Newport Beach Fire Chief as a member of the 2008 Captains'
promotional oral board was not prejudicial to the process.
5.3 The appointing authority should not rate or participate on oral boards
interviewing promotional candidates, because such participation opens the
process to claims of bias, or the appearance of bias.
Page 6 of 10
Ultimate_ Question No. 6
Was the 2007 recruitment for the position of Chief of Police conducted consistent with the
Newport Beach Municipal Code, the Civil Service Board Rules and purpose, and, if not,
what, if anything, should be done to address this issue in the context of the Civil Service
System?
Findinus on Ultimate Question No. 6:
The 2007 Chief of Police selection process was not conducted as an open recruitment as
required by the Newport Beach Municipal Code and Civil Service Rules.
The preponderance of the evidence does not establish that the 2007 Chief of Police
selection process was manipulated.
The preponderance of the evidence establishes the oral interview portion of the 2007 Chief
of Police selection process was conducted in a manner consistent with existing Municipal
Code provisions and CSB Rules, there was no attempt to insert, or actual insertion of, bias
into the process, and the candidates' scores were assigned in a legitimate manner.
6.1 There is insufficient evidence to conclude one particular candidate was
predestined to be selected as Chief of Police, as evidenced by one local
businessman's alleged 2005 comments to Newport Beach police officers.
6.2 The 2007 Police Chief recruitment was not conducted consistent with the
Municipal Code and Civil Service Rules and purpose.
6.3 The oral interview scores assigned to the candidates for Chief of Police wen:
not inconsistent with the former City Manager's insistence that one candidate
was the "clear' choice for Chief of Police.
6.4 There is no evidence anyone improperly profited from creation of the Deputy
Chiefs position, although it appears the position was not formally approved
by the City Council.
Ultimate Question No. 7:
Were the two three month extensions of the Police Captain Promotional Eligibility lists in
20083 inconsistent with the Newport Beach Municipal Code, the Civil Service Board Rules
or the purpose of the Civil Service System, and, ifnot, what, if anything, should be done to
address this issue in the context of the Civil Service System?
3 This is an incorrect date. The "eligibility lists° in question were extended in calendar
year 2007.
Page 7 of 10
Findings on Ultimate Question No. 7:
The preponderance of the evidence establishes the extensions of the 2006 Captains'
promotional list were consistent with the Municipal Code and Civil Service Rules.
7.1 The two three month extensions of the Captains' Promotional List were
consistent with Civil Service Rules, specifically Rule 501.2.3.1.
7.2 The two candidates remaining on the May 2006 Captains' promotional
eligibility list were given adequate notice of the appointing authority's intent to
ask the CSB for another three month extension of the list, and they both
waived the thirty day notice requirement contained in Rule 501.2.3.1.
Additional PMA Allegation:
Did the relationship between Newport Beach Police Department and the Integrated Law
and Justice Agency for Orange County have an impact on Department promotional
processes?
Finding:
The preponderance of the evidence does not support any inappropriate links between the
promotional processes at Newport Beach Police Department and the Integrated Law and
Justice Agency for Orange County.
Findings Regarding the "General Scope of Investigation"
As detailed in the "General Scope of Investigation" statement, the investigatorwas charged
with making a determination as to whether or not individuals were allowed "to exert greater
discretion than is warranted [over the promotional processes within the Newport Beach
Police Department], thus marginalizing the objectivity necessary for a process designed to
foster fairness and merit;" and by so doing, "evidence a disregard" for the provisions of the
Newport Beach Municipal Code, the Civil Service Board Rules, and City Council Policy.
The underlying allegation in the complaint filed by the PMA and PMA complainants is that
there was a plan to "manipulate" the outcomes of the promotional processes as applied to
the supervisory ranks, particularly the rank of Captain, as early as 2005. This allegation is
based on a series of "suspicious" events, such as the execution of the NBPMA Continued
Employment Agreement, the implementation of "Whole Number Scoring," and former
Police Chief Robert McDonell's.participation as an oral board rater in the 2006 Captains'
promotional process.
As detailed in the foregoing analysis of the seven "Ultimate Questions," some of
McDonell's decisions were calculated to give the appointing authority additional control
Page 8 of 10
over the promotional processes. However, the preponderance of the evidence does not
establish that any actions were designed to promote any one individual, such as former
Police Chief John Klein. It is apparent McDoneil thought Klein could one day be a viable
Chiefs candidate, but there is no corroborative evidence indicating this was "the" reason
for his proposed changes to the promotional process. When McDoneil chose to participate
in the 2006 Captains' promotional process, he should have considered the possibility that
unsuccessful candidates might challenge the integrity of that process as well as future
processes.
By the time Klein became Chief, the PMA began to question the propriety of the Chiefs
involvement in the evaluative part of the 2008 Captains' promotional process, as did the
Human Resources Director, Barbara Ramsey. Unfortunately for Klein, his timing was
imperfect and he failed to understand that he did not have enough organizational good will
to do what his predecessor had done. This culminated in the PMA's insistence on a Civil
Service Board investigation.
While the investigator found no direct evidence of a grand design to manipulate the
Promotional processes, there was an apparent disregard for the need to conduct these
processes in a manner consistent with the stated purpose of the Civil Service System, i.e.,
promotional processes (perceived to be) based on equity and merit. Instead, the actions of
some upper management personnel, as set forth in the findings set forth above, resulted in
a perception that the police promotional procedures used from mid -2005 through 2008
were corrupt by design. Therefore, the investigator has concluded that the objectives of the
Civil Service System were, in fact, "marginalized."
VI. RECOMMENDATIONS
1. If there is an interest by the City Council in maintaining the PMA Continued
Employment Agreement, require a thorough review of the individual agreements by
the City Attomey's Office and approval of each agreement by the City Manager.
2. Review the concept of "Whole Number Scoring" to determine it's effectiveness in
future promotional processes and whether or not its continued use is consistent with
the purpose of the Civil Service System. If there is no confidence in the concept, it
should be abandoned.
3. Implement an employee "annual performance review tracking system" designed to
ensure the timely completion of evaluations.
4. Review the "fitness evaluation" phase of the promotional process to ensure each
candidate's annual performance evaluations are an integral part of that process and
receive due consideration from the evaluators. If the "Continued Employment
Agreement" is going to be retained for retired PMA employees, then obtain a
NBPMA endorsement acknowledging the propriety of allowing retired Captains and
Lieutenants working under a CEA to participate as fitness evaluators. If no such
Page 9 of 10
endorsement is obtained, reconsider allowing these practices to continue.
5. Modify the Civil Service Rules relevant to "employment lists" to eliminate any
possible ambiguities related to issues associated with the duration of lists,
suspension of lists,_ vacation of lists, and expiration of lists.
6. Prohibit the appointing authority from participating as an evaluator /rater in any future
promotional processes within the Police Department. Allowing the appointing
authority to evaluate candidates in the preliminary phases of a promotional process
is problematic for the following reasons: It creates an opportunity for individuals to
exercise undue influence over the process; it sets the stage for grievances and
other legal challenges by the candidates based on allegations of bias and
unfairness; and it is inconsistent with the stated purpose of the Civil Service System,
which is to "assure that the appointment and promotion of employees will be based
on merit and fitness..."
7. Ensure the City Manager complies with Civil Service Rules relevant to the selection
of Chief of Police, i.e., recruitments are open and competitive, or consider modifying
the rules by expanding the City Manager's discretion to hold closed, or internal
recruitments, after obtaining City Council approval.
8. Develop a Police Department "succession plan" forthe purpose of projecting future
vacancies and for determining when promotional processes should be conducted.
While there is no way to determine the exact date of any employee's retirement or
termination, identifying projected retirement dates will do much to eliminate the
disruptions created by unplanned vacancies. Consider the concept of "over hiring"
as a means of mitigating the impacts of potential retirements by officers who are
approaching their thirty year anniversary with the Department.
9.. Define a career development plan applicable to the ranks of Sergeant, Lieutenant,
and Captain. Such a plan should be available to anyone who expresses an interest
in promoting to supervisory, mid- management, or upper management positions and
meets, or will meet, the minimum qualifications required to promote to the next rank.
10. Review the responsibilities and potential conflicts of interest involved in the Police
Legal Advisor position, as well as the cross - designation of Deputy City Attorney, to
.determine if it is in the best interests of the City to retain such a position.
END OF REPORT
Page 10 of 10
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0
ATTACHMENT 3
CSB December 7, 2009 Staff Report
Proposed Resolution
w
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t1
Ip;�
l CSB RESOLUTION NO. 2009 -_
RESOLUTION OF THE CIVIL SERVICE BOARD OF THE CITY
OF NEWPORT BEACH ACCEPTING AN INVESTIGATION OF
POLICE PROMOTIONAL PROCESSES AS COMPLETE AND
ADOPTING FINDINGS AND RECOMMENDATIONS
WHEREAS, the Newport Beach Police Management Association ( "PMA ") is an
organized and recognized City employees' association;
WHEREAS, Civil Service Rule 501.4 states, in pertinent part, "The Board shall make
any investigation concerning the administration of personnel in the Civil Service and
reports its findings to the City Council and City Manager when requested to do so by
the City Council, the City Manager or by an organized City employees' association;"
WHEREAS, the PMA made a request for an investigation of the police promotional
processes via correspondence from their counsel dated December 22,2008;
WHEREAS, the Civil Service Board ( "CSB ") has considered the issues raised by the
PMA and its request at its January 5, 2009 meeting, briefly heard testimony at its
February 5, 2009, March 2, 2009 meeting, and at its March 16, 2009 special meeting;
WHEREAS, the CSB considered and interviewed potential investigators and ultimately
(J chose James Blaylock, to conduct the investigation on behalf of the CSB;
WHEREAS, James Blaylock conducted a total of 22 interviews and reviewed over 100
documents and prepared a confidential report including setting out his analysis,
findings, conclusions, and recommendations, all supported by the evidence developed
In the investigation;
WHEREAS, as a result of this investigation instituted by this Board there have been
City Attomey opinions generated that correct errors and resolve ambiguities in the Civil
Service System;
WHEREAS, in the context of this ongoing investigation the Chief of Police brought
recommendations and requests to this Board to modify the promotional processes of
the Police Department eliminating most, if not all, of the concerns raised by the PMA in
the process and this Board approved those changes;
WHEREAS, the CSB was presented with the confidential report prepared by James
Blaylock on October 14, 2009, and considered that report at three extensive closed
session meetings, the first on October 26, 2009,the second on November 23, 2009, and
the third on November 30, 2009;.
-11-
WHEREAS, the CSB, having reviewed, discussed, and taken such action as
0 appropriate with respect to the investigation, desires to accept the investigation,
adopting the findings and recommendations and make further recommendations; and
NOW THEREFORE, the CSB hereby resolves as follows:
SECTION 1: Having reviewed the investigation thoroughly, questioned the investigator,
and come to its own conclusions with respect to the facts developed and the analysis
provided, the CSB hereby accepts the investigation as having been completed
consistent with the scope of the investigation, and as being objective, thorough and
complete.
SECTION 2: The CSB hereby approves and adopts as its own the findings of facts in
the investigation as set forth below:
A. -ULTIMATE QUESTION NO. 1: Was City Manager's authority exceeded and
Council Policy F -20 violated by the entering into of the agreement regarding
post - retirement continued or part-time employment rContinued Employment
Agreement ") for NBPMA members in September of 2005, and, if so, what are the
consequences of that conclusion, and what, if anything, should be done to
address the Issue in the context of the Civil Service System?
➢ Finding as to Ultimate Question No. 1: Although the September 2,
2005 Agreement regarding "Post - Retirement Continued or Part-Time
Employment for NBPMA Members (Continued Employment Agreement ")
is inconsistent with the City Charter and violated Council Policy F -20,
there is no direct or documentary evidence and the evidence is insufficient
to conclude the agreement was intentionally used as a device to
manipulate promotional processes.
1.1 The City Manager's authority was exceeded and Council
Policy violated by execution of the "Agreement Regarding
Post - retlrement Continued or Part-time Employment for
NBPMA Members" in September 2005.
1.2 The preponderance of the evidence does not indicate PMA
members were intentionally misled regarding the
incorporation of the Continued Employment Agreement into
the 2005 -2006 NBPMA MOU.
B. ULTIMATE QUESTION NO. 2: Has the application of the provisions of the
Continued Employment Agreement affected the promotional process of the
Police Department in such a way as to make it inconsistent with the purpose of
the Civil Service System, and, if so, what if anything, should be done to address
-2-
D Finding as to Ultimate Question No. 2: The preponderance of the
evidence establishes that the application of the Continued Employment
Agreements executed by Newman, Hyams and Desmond had no material
effect on downstream promotional opportunities for members of the PMA
and there is no evidence any PMA Complainant was disadvantaged by
application of the CEA.
C. ULTIMATE QUESTION NO. 3: Are the promotional process changes instituted
in March 2006, including but not limited to numerical rating changes, the "Rule of
Eight" and "Whole Number Scoring," consistent with the purpose of the Civil
Service System, and, If not, what, if anything, should be done to address this
issue in the context of the Civil Service System?
Finding as to Ultimate Question No. 3: The preponderance of the
evidence does not establish that application of "Whole Number Scoring"
and the "Rule of Eight" was Inherently disadvantageous to candidates for
promotion to the ranks of Sergeant, Lieutenant and Captain. However,
there is a significant portion of the Department that believes these rule
charges do not "assure appointment and promotion of employees will be
based on merit and fitness."
3.1 The preponderance of the evidence indicates the 2006
0 changes to the promotional process were not implemented
for the purpose of manipulating the outcomes of the
promotional testing processes.
3.2 The preponderance of the evidence establishes that
application of "Whole Number Scoring" and the "Rule of
Eight" was not inherently disadvantageous or unfair to some
candidates. As approved, the changes to the promotional
process are consistent with the purpose of the Civil Service
System; however, they have been rendered ineffectual by a
belief the changes were applied unfairly.
D. ULTIMATE QUESTION NO. 4: Were the current promotional lists for Captain,
Lieutenant, and Sergeant vacated early in 2006 in a manner consistent with Civil
Service Rules, and, If not what, if anything, should be done to address the issue
in the context of the Civil Service System?
➢ Finding as to Ultimate Question No. 4. The preponderance of the
evidence establishes that the decision to suspend making additional
promotions from the 2005 Sergeants', Lieutenants', and Captains'
promotional eligibility lists compiled with existing Civil Service Rules.
-3-
4.1 Civil Service Rules were not violated when the promotional
eligibility lists were 'vacated" in early 2006.
E. ULTIMATE QUESTION NO. 5: Is it appropriate for the appointing authority to sit
on oral boards for interviewing promotional candidates, and, if not, what, if
anything, should be done to address the issue in the context of the Civil Service
System?
Finding as to Ultimate Question No. 5: It is not appropriate for the
appointing authority to serve as an evaluator in a promotional process
because it opens the process to claims of bias, or the appearance of bias.
There is insufficient evidence to determine whether the appointing
authority's presence and ratings during the 2006 Captains' oral interviews
had a material impact on the candidates' oral scores. However, the
preponderance of the evidence indicates it is unlikely his presence, or his
scoring, had any effect on the promotions that were subsequently made
from the resulting eligibility list.
5.1 The participation of 1he appointing authorities in the oral
boards of the 2005 and 2006 Captains' promotional
processes was inappropriate.
5.2 The appointing authority s plan to serve as an oral board
rater in the 2008 Captains' promotional process was
inappropriate; however, his selection of the Newport Beach
Fire Chief as a member of the 2008 Captains' promotional
oral board was not prejudicial to the process.
5.3 The appointing authority should not rate or participate on
oral boards interviewing promotional candidates, because
such participation opens the process to claims of bias, or the
appearance of bias.
F. ULTIMATE QUESTION NO. 6: Was the 2007 recruitment for the position of
Chief of Police conducted consistent with Newport Beach Municipal Code, the
CSB Rules and purpose, and, if not what, if anything, should be done to address
the issue in the context of the Civil Service System?
Finding as to Ultimate Question No. 6: The 2007 Chief of Police
selection process was not conducted as an open recruitment as required
by the Newport Beach Municipal Code and Civil Service Rules.
The preponderance of the evidence does not establish that the 2007
Chief of Police selection process was manipulated.
0
�J
The preponderance of the evidence establishes the oral interview portion
of the 2007 Chief of Police selection process was conducted In a manner
consistent with existing municipal code provisions and CSB rules, there
was no attempt to insert, or actual insertion of, bias into the process, and
the candidates' scores were assigned in a legitimate manner.
6.1 There is insufficient evidence to conclude one particular
candidate was predestined to be selected as Chief of Police,
as evidenced by one local businessman's alleged 2005
comments to Newport Beach police officers.
6.2 The 2007 Police Chief recruitment was not conducted
consistent with the Municipal Code and Civil Service Rules
and purpose.
6.3 The oral interview scores assigned to the candidates for
Chief of Police were not inconsistent with the former City
Manager's insistence that one candidate was the 'clear'
choice for Chief of Police.
6.4 There Is no evidence anyone improperly profited from
creation of the Deputy Chiefs position, although it appears
the position was not formally approved by the City Council.
G. ULTIMATE QUESTION NO. 7: Were the two three month extensions of the
Police Captain Promotional Eligibility lists in 2008 inconsistent with the Newport
Beach Municipal Code, the CSB Rules or the purpose of the Civil Service
System, and, if not, what, if anything, should be done to address the issue in the
context of the Civil Service System?
➢ Finding as to Ultimate Question No. 7: The preponderance of the
evidence establishes the extensions of the 2006 Captains' promotional. list
were consistent with Municipal Code and Civil Services Rules.
7.1 The two three month extensions of the Captains'
Promotional List were consistent with Civil Service Rules,
specifically Rule 501.2.3.1.
7.2 The two candidates remaining on the May 2006 Captains'
promotional eligibility list were given adequate notice of the
appointing authority's intent to ask the CSB for another three
month extension of the list, and they both waived the thirty
day notice requirement contained in Rule 501.2.3.1.
-5-
SECTION 3: Consistent with the facts found and analysis provided by the investigator,
we further find with respect to the general scope of the investigation:
➢ While there has been no direct evidence of a grand design to manipulate
the promotional processes found, there was an apparent disregard for the
need to conduct these processes in a manner consistent with the stated
purpose of the Civil Service system, i.e., promotional processes based on
equity and merit. Instead the actions of the management staff conducting
the processes as set out in the prior findings resulted in a perception that
the police promotional procedures used from mid 2005 through 2008 were
corrupt by design. Therefore, this Board has concluded that the
objectives of the Civil Service System were, in fact, marginalized.
SECTION A: The CSB hereby adopts the recommendations of the report as its own
and makes further recommendations as set forth below:
A. Recommendation No. 1: If there is an interest by the City Council in maintaining
the PMA Continued Employment Agreement, require a thorough review of the
individual agreements by the City Attorney's Office and approval of each
agreement by the City Manager.
The Board further recommends that if the City Council chooses to
maintain a Continued Employment Agreement that it does so in a manner
[ avoiding the isolation of the Police Department through the handling of
such agreements by having Human Resources and the Office of the City
Attorney included in the process.
B. Recommendation No. 2. Review the concept of "Whole Number Scoring" to
determine its effectiveness in future promotional processes and whether or not
Its continued use Is consistent with the purpose of the Civil Service System. If
there is no confidence in the concept, it should be abandoned.
D The Board supports abandoning the use of 'Whole Number Scoring."
C. Recommendation No. 3. Implement an employee "annual performance review
tracking system" designed to ensure the timely completion of evaluations.
➢ The Board further recommends policies be adopted that create
consequences for the failure of supervisodal and management personnel
to prepare personnel evaluations in a timely manner.
D. Recommendation No, 4. Review the "fitness evaluation" phase of the
promotional process to ensure each candidate's annual performance evaluations
are an integral part of that process and receive due consideration from the
} evaluators. If the "Continued Employment Agreement" is going to be retained for
U
retired PMA employees, then obtain a NBPMA endorsement acknowledging the
f propriety of allowing retired Captains and Lieutenants working under a CEA to
participate as fitness evaluators. If no such endorsement is obtained, reconsider
allowing these practices to continue.
The Board further recommends the Chief of Police consider candidates
annual performance evaluations prior to any appointment from a
promotional list.
E. Recommendation No 5 Modify the Civil Service Rules relevant to "employment
lists" to eliminate any possible ambiguities related to issues associated with the
duration of lists, suspension of lists, vacation of lists, and expiration of lists.
The Board further recommends clarifying the policy in a manner such that
it is clear that employment lists can be extended for less than a year,
utilizing language consistent with the Employee Manual indicating that
employment lists may be extended for any increment of time "up to" one
year from its original certification date.
F. Recommendation No. 6. Prohibit the appointing authority from participating as
an evaluator /rater in any future promotional processes within the Police
[)apartment. Allowing the appointing authority to evaluate candidates in the
preliminary phases of a promotional process is problematic for the following
reasons: It creates an opportunity for individuals to exercise undue influence
over the process; it sets the stage for grievances and other legal challenges by
the candidates based on allegations of bias and unfairness; and if is inconsistent
with the stated purpose of the Civil Service System, which is to "assure that the
appointment and promotion of employees will be based on merit and fitness."
D The Board further recommends prohibiting the appointing authority from
participating as an observer in any future promotional process and
potentially limiting the choices as to who sits on an Interview panel as a
rater, restricting who makes the choices, and requiring that Human
Resources approve appointments to interview panels.
G. Recommendation No 7 Ensure the City Manager complies with Civil Services
Rules relevant to the selection of Chief of Police, i.e., recruitments are open and
competitive, or consider modifying the rules by expanding the City Manager's
discretion to hold dosed, or internal recruitments, after obtaining City Council
approval.
j H. Recommendation No 8 Develop a Police Department "succession plan" for the
I purpose of projecting future vacancies and for determining when promotional
processes should be conducted. While there is no way to determine the exact
date of any employee's retirement or termination, Identifying projected retirement
dates will do much to eliminate the disruptions created by unplanned vacancies.
Consider the concept of 'over hiring" as a means of mitigating the Impacts of
potential retirements by officers who are approaching their thirty year anniversary
with the Department
Recommendation No 9. Define a career development plan applicable to the
ranks of Sergeant, Lieutenant, and Captain. Such a plan should be available to
anyone who expresses an interest in promoting to supervisory, mid- management,
or upper management positions and meets, or will meet, the minimum
qualifications required to promote to the next rank.
J. Recommendation No. 10. Review the responsibilities and potential conflicts of
interest involved in the police legal advisor position, as well as the cross -
designation of deputy city attorney, to determine if it is the in the best interests of
the City to retain such a position.
D The Board notes the position of Police Legal Advisor has already been
eliminated from job descriptions and its relationship with the Office of the
City Attorney has been severed. The Board supports and approved that
change.
SECTION 5: The Board further recommends the City Council review the amount and
nature of the Citys resources allocated to the Orange County Integrated Law & Justice
{ Task Force and determine whether the benefit received by the City is sufficient to support
continued allocation of resources at the same level.
i�...l
SECTION 6: The CSB wishes to express its appreciation to the NBPMA and its Board
for bringing these matters forward for review by the CSB. The CSB recognizes these
Issues were of some contention. On the other hand, clear errors were identified and
addressed as a result of the request for investigation by the NBPMA. Those errors in
the implementation of the promotional processes within the Police Department have
been remedied. The CSB recognizes that these issues may not have been fully
addressed had the NBPMA not made the request for investigation. The CSB
appreciates the devotion of the officers who brought this matter forward as employees
of the City of Newport Beach to address concerns they saw in the operations of the
Police Department.
PASSED, APPROVED AND ADOPTED THIS 74 DAY OF DECEMBER, 2009
AYES, CIVIL SERVICE BOARD MEMBERS
1 NOES, CIVIL SERVICE BOARD MEMBERS
ABSENT CIVIL SERVICE BOARD MEMBERS
CIVIL SERVICE BOARD:
Douglas Coulter, Chairman
ATTEST:
Terri Cassidy, Human Resources Director
Secretary of the Civil Service Board
APPROVED AS TO FORM:
±. OFFICE OF THE CITY ATTORNEY
�J
David R. Hunt, City Attorney
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ATTACHMENT 2
Resolution 2009 -02
CSB RESOLUTION NO. 2009 -02
RESOLUTION OF THE CIVIL SERVICE BOARD OF THE CITY
OF NEWPORT BEACH ACCEPTING AN INVESTIGATION OF
POLICE PROMOTIONAL PROCESSES AS COMPLETE AND
ADOPTING FINDINGS AND RECOMMENDATIONS
WHEREAS, the Newport Beach Police Management Association ( "PMA ") is an
organized and recognized City employees' association;
WHEREAS, Civil Service Rule 501.4 states, in pertinent part, "The Board shall make
any investigation concerning the administration of personnel in the Civil Service and
reports its findings to the City Council and City Manager when requested to do so by
the City Council, the City Manager or by an organized City employees' association;"
WHEREAS, the PMA made a request for an investigation of the police promotional
processes via correspondence from their counsel dated December 22, 2008;
WHEREAS, the Civil Service Board ( "CSB ") has considered the issues raised by the
PMA and its request at its January 5, 2009 meeting, briefly heard testimony at its
February 5, 2009, March 2, 2009 meeting, and at its March 16, 2009 special meeting;
WHEREAS, the CSB considered and interviewed potential investigators and ultimately
chose James Blaylock, to conduct the investigation on behalf of the CSB;
WHEREAS, James Blaylock conducted a total of 22 interviews and reviewed over 100
documents and prepared a confidential report including setting out his analysis,
findings, conclusions, and recommendations, all supported by the evidence developed
in the investigation;
WHEREAS, as a result of this investigation instituted by this Board there have been
City Attorney opinions generated that correct errors and resolve ambiguities in the Civil
Service System;
WHEREAS, in the context of this ongoing investigation the Chief of Police brought
recommendations and requests to this Board to modify the promotional processes of
the Police Department eliminating most, if not all, of the concerns raised by the PMA in
the process and this Board approved those changes;
WHEREAS, the CSB was presented with the confidential report prepared by James
Blaylock on October 14, 2009, and considered that report at three extensive closed
session meetings, the first on October 26, 2009,the second on November 23, 2009, and
the third on November 30, 2009;
-1-
WHEREAS, the CSB, having reviewed, discussed, and taken such action as
appropriate with respect to the investigation, desires to accept the investigation,
adopting the findings and recommendations and make further recommendations; and
NOW THEREFORE, the CSB hereby resolves as follows:
SECTION 1: Having reviewed the investigation thoroughly, questioned the investigator,
and come to its own conclusions with respect to the facts developed and the analysis
provided, the CSB hereby accepts the investigation as having been completed
consistent with the scope of the investigation, and as being objective, thorough and
complete.
SECTION 2: The CSB hereby approves and adopts as its own the findings of facts in
the investigation as set forth below:
A. ULTIMATE QUESTION NO. 1: Was City Manager's authority exceeded and
Council Policy F -20 violated by the entering into of the agreement regarding
post- retirement continued or part-time employment C'Continued Employment
Agreement"] for NBPMA members in September of 2005, and, ff so, what are the
consequences of that conclusion, and what, if anything, should be done to
address the issue in the context of the Civil Service System?
Finding as to Ultimate Question No. 1: Although the September 12,
2005 Agreement regarding "Post- Retirement Continued or Part-Time
Employment for NBPMA Members (Continued Employment Agreement")
is inconsistent with the City Charter and violated Council Policy F -20,
there is no direct or documentary evidence and the evidence is insufficient
to conclude the agreement was intentionally used as a device to
manipulate promotional processes.
1.1 The City Manager's authority was exceeded and Council
Policy violated by execution of the "Agreement Regarding
Post - retirement Continued or Part-time Employment for
NBPMA Members" in September 2005.
1.2 The preponderance of the evidence does not indicate PMA
members were intentionally misled regarding the
incorporation of the Continued Employment Agreement into
the 2005 -2006 NBPMA MOU.
B. ULTIMATE QUESTION NO. 2: Has the application of the provisions of the
Continued Employment Agreement affected the promotional process of the
Police Department in such a way as to make it inconsistent with the purpose of
the Civil Service System, and, if so, what if anything, should be done to address
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the issue in the context of the Civil Service System?
➢ Finding as to Ultimate Question No. 2: The preponderance of the
evidence establishes that the application of the Continued Employment
Agreements executed by Newman, Hyams and Desmond had no material
effect on downstream promotional opportunities for members of the PMA
and there is no evidence any PMA Complainant was disadvantaged by
application of the CEA.
C. ULTIMATE QUESTION NO. 3: Are the promotional process changes instituted
in March 2006, including but not limited to numerical rating changes, the "Rule of
Eight" and "Whole Number Scoring," consistent with the purpose of the Civil
Service System, and, if not, what, if anything, should be done to address this
issue in the context of the Civil Service System?
➢ Finding as to Ultimate Question No. 3: The preponderance of the
evidence does not establish that application of "Whole Number Scoring"
and the "Rule of Eight" was inherently disadvantageous to candidates for
promotion to the ranks of Sergeant, Lieutenant and Captain. However,
there is a significant portion of the Department that believes these rule
changes do not "assure appointment and promotion of employees will be
based on merit and fitness."
3.1 The preponderance of the evidence indicates the 2006
changes to the promotional process were not implemented
for the purpose of manipulating the outcomes of the
promotional testing processes.
3.2 The preponderance of the evidence establishes that
application of "Whole Number Scoring" and the "Rule of
Eight" was not inherently disadvantageous or unfair to some
candidates. As approved, the changes to the promotional
process are consistent with the purpose of the Civil Service
System; however, they have been rendered ineffectual by a
belief the changes were applied unfairly.
D. ULTIMATE QUESTION NO. 4: Were the current promotional lists for Captain,
Lieutenant, and Sergeant vacated early in 2006 in a manner consistent with Civil
Service Rules, and, if not, what, if anything, should be done to address the issue
in the context of the Civil Service System?
➢ Finding as to Ultimate Question No. 4: The preponderance of the
evidence establishes that the decision to suspend making additional
promotions from the 2005 Sergeants', Lieutenants', and Captains'
promotional eligibility lists complied with existing Civil Service Rules.
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4.1 Civil Service Rules were not violated when the promotional
eligibility lists were "vacated" in early 2006.
E. ULTIMATE QUESTION NO. 5: Is it appropriate for the appointing authority to sit
on oral boards for interviewing promotional candidates, and, if not, what, if
anything, should be done to address the issue in the context of the Civil Service
System?
➢ Finding as to Ultimate Question No. 5: It is not appropriate for the
appointing authority to serve as an evaluator in a promotional process
because it opens the process to claims of bias, or the appearance of bias.
There is insufficient evidence to determine whether the appointing
authority's presence and ratings during the 2006 Captains' oral interviews
had a material impact on the candidates' oral scores. However, the
preponderance of the evidence indicates it is unlikely his presence, or his
scoring, had any effect on the promotions that were subsequently made
from the resulting eligibility list.
5.1 The participation of the appointing authorities in the oral
boards of the 2005 and 2006 Captains' promotional
processes was inappropriate.
5.2 The appointing authority's plan to serve as an oral board
rater in the 2008 Captains' promotional process was
inappropriate; however, his selection of the Newport Beach
Fire Chief as a member of the 2008 Captains' promotional
oral board was not prejudicial to the process.
5.3 The appointing authority should not rate or participate on
oral boards interviewing promotional candidates, because
such participation opens the process to claims of bias, or the
appearance of bias.
F. ULTIMATE QUESTION NO. 6: Was the 2007 recruitment for the position of
Chief of Police conducted consistent with Newport Beach Municipal Code, the
CSB Rules and purpose, and, if not, what, if anything, should be done to address
the issue in the context of the Civil Service System?
Finding as to Ultimate Question No. 6: The 2007 Chief of Police
selection process was not conducted as an open recruitment as required
by the Newport Beach Municipal Code and Civil Service Rules.
G!
The preponderance of the evidence does not establish that the 2007
Chief of Police selection process was manipulated.
The preponderance of the evidence establishes the oral interview portion
of the 2007 Chief of Police selection process was conducted in a manner
consistent with existing municipal code provisions and CSB rules, there
was no attempt to insert, or actual insertion of, bias into the process, and
the candidates' scores were assigned in a legitimate manner.
6.1 There is insufficient evidence to conclude one particular
candidate was predestined to be selected as Chief of Police,
as evidenced by one local businessman's alleged 2005
comments to Newport Beach police officers.
6.2 The 2007 Police Chief recruitment was not conducted
consistent with the Municipal Code and Civil Service Rules
and purpose.
6.3 The oral interview scores assigned to the candidates for
Chief of Police were not inconsistent with the former City
Manager's insistence that one candidate was the "clear"
choice for Chief of Police.
6.4 There is no evidence anyone improperly profited from
creation of the Deputy Chiefs position, although it appears
the position was not formally approved by the City Council.
G. ULTIMATE QUESTION NO. 7: Were the two three month extensions of the
Police Captain Promotional Eligibility lists in 2008 inconsistent with the Newport
Beach Municipal Code, the CSB Rules or the purpose of the Civil Service
System, and, if not, what, if anything, should be done to address the issue in the
context of the Civil Service System?
➢ Finding as to Ultimate Question No. 7: The preponderance of the
evidence establishes the extensions of the 2006 Captains' promotional list
were consistent with Municipal Code and Civil Services Rules.
7.1 The two three month extensions of the Captains'
Promotional List were consistent with Civil Service Rules,
specifically Rule 501.2.3.1.
7.2 The two candidates remaining on the May 2006 Captains'
promotional eligibility list were given adequate notice of the
appointing authority's intent to ask the CSB for another three
11.2
month extension of the list, and they both waived the thirty
day notice requirement contained in Rule 501.2.3.1.
SECTION 3: Consistent with the facts found and analysis provided by the investigator,
we further find with respect to the general scope of the investigation:
➢ While there has been no direct evidence of a grand design to manipulate
the promotional processes found, there was an apparent disregard for the
need to conduct these processes in a manner consistent with the stated
purpose of the Civil Service system, i.e., promotional processes based on
equity and merit. Instead the actions of the management staff conducting
the processes as set out in the prior findings resulted in a perception that
the police promotional procedures used from mid 2005 through 2008 were
corrupt by design. Therefore, this Board has concluded that the
objectives of the Civil Service System were, in fact, marginalized.
SECTION 4: The CSB hereby adopts the recommendations of the report as its own
and makes further recommendations as set forth below:
A. Recommendation No. 1: If there is an interest by the City Council in maintaining
the PMA Continued Employment Agreement, require a thorough review of the
individual agreements by the City Attorney's Office and approval of each
agreement by the City Manager.
➢ The Board further recommends that if the City Council chooses to
maintain a Continued Employment Agreement that it does so in a manner
avoiding the isolation of the Police Department through the handling of
such agreements by having Human Resources and the Office of the City
Attorney included in the process.
B. Recommendation No. 2. Review the concept of "Whole Number Scoring" to
determine its effectiveness in future promotional processes and whether or not
its continued use is consistent with the purpose of the Civil Service System. If
there is no confidence in the concept, it should be abandoned.
➢ The Board supports abandoning the use of "Whole Number Scoring."
C. Recommendation No. 3. Implement an employee "annual performance review
tracking system" designed to ensure the timely completion of evaluations.
➢ The Board further recommends policies be adopted that create
consequences for the failure of supervisorial and management personnel
to prepare personnel evaluations in a timely manner.
0
D. Recommendation No. 4. Review the "fitness evaluation" phase of the
promotional process to ensure each candidate's annual performance evaluations
are an integral part of that process and receive due consideration from the
evaluators. If the "Continued Employment Agreement" is going to be retained for
retired PMA employees, then obtain a NBPMA endorsement acknowledging the
propriety of allowing retired Captains and lieutenants working under a CEA to
participate as fitness evaluators. If no such endorsement is obtained, reconsider
allowing these practices to continue.
The Board further recommends the Chief of Police consider candidates
annual performance evaluations prior to any appointment from a
promotional list.
E. Recommendation No. 5. Modify the Civil Service Rules relevant to "employment
lists" to eliminate any possible ambiguities related to issues associated with the
duration of lists, suspension of lists, vacation of lists, and expiration of lists.
➢ The Board further recommends clarifying the policy in a manner such that
it is clear that employment lists can be extended for less than a year,
utilizing language consistent with the Employee Manual indicating that
employment lists may be extended for any increment of time "up to" one
year from its original certification date.
F. Recommendation No. 6. Prohibit the appointing authority from participating as
an evaluator /rater in any future promotional processes within the Police
Department. Allowing the appointing authority to evaluate candidates in the
preliminary phases of a promotional process is problematic for the following
reasons: It creates an opportunity for individuals to exercise undue influence
over the process; it sets the stage for grievances and other legal challenges by
the candidates based on allegations of bias and unfaimess; and it is inconsistent
with the stated purpose of the Civil Service System, which is to "assure that the
appointment and promotion of employees will be based on merit and fitness."
➢ The Board further recommends prohibiting the appointing authority from
participating as an observer in any future promotional process and
potentially limiting the choices as to who sits on an interview panel as a
rater, restricting who makes the choices, and requiring that Human
Resources approve appointments to interview panels.
G. Recommendation No. 7 Ensure the City Manager complies with Civil Services
Rules relevant to the selection of Chief of Police, i.e., recruitments are open and
competitive, or consider modifying the rules by expanding the City Manager's
discretion to hold closed, or internal recruitments, after obtaining City Council
approval.
Ire
H. Recommendation No. 8. Develop a Police Department "succession plan" for the
purpose of projecting future vacancies and for determining when promotional
processes should be conducted. While there is no way to determine the exact
date of any employee's retirement or termination, identifying projected retirement
dates will do much to eliminate the disruptions created by unplanned vacancies.
Consider the concept of `over hiring" as a means of mitigating the impacts of
potential retirements by officers who are approaching their thirty year anniversary
with the Department.
Recommendation No. 9. Define a career development plan applicable to the
ranks of Sergeant, Lieutenant, and Captain. Such a plan should be available to
anyone who expresses an interest in promoting to supervisory, mid - management,
or upper management positions and meets, or will meet, the minimum
qualifications required to promote to the next rank.
J. Recommendation No. 10. Review the responsibilities and potential conflicts of
interest involved in the police legal advisor position, as well as the cross -
designation of deputy city attorney, to determine if it is the in the best interests of
the City to retain such a position.
➢ The Board notes the position of Police Legal Advisor has already been
eliminated from job descriptions and its relationship with the Office of the
City Attorney has been severed. The Board supports and approved that
change.
SECTION 5: The Board further recommends the City Council review the amount and
nature of the City's resources allocated to the Orange County Integrated Law & Justice
Task Force and determine whether the benefit received by the City is sufficient to support
continued allocation of resources at the same level.
SECTION 6: The CSB wishes to express its appreciation to the NBPMA and its Board
for bringing these matters forward for review by the CSB. The CSB recognizes these
issues were of some contention. On the other hand, clear errors were identified and
addressed as a result of the request for investigation by the NBPMA. Those errors in
the implementation of the promotional processes within the Police Department have
been remedied. The CSB recognizes that these issues may not have been fully
addressed had the NBPMA not made the request for investigation. The CSB
appreciates the devotion of the officers who brought this matter forward as employees
of the City of Newport Beach to address concerns they saw in the operations of the
Police Department.
PASSED, APPROVED AND ADOPTED THIS 7h DAY OF DECEMBER, 2009
AYES, CIVIL SERVICE BOARD MEMB
19
NOES, CIVIL SERVICE BOARD MEMBERS
ABSENT CIVIL. SERVICE BOARD MEMBERS
CIVIL SERVICE BOARD:
Douglas Coulter, hairman
ATTEST: 1
Terri Cassidy, Human Resources DlWctor
Secretary of the Civil Service Board
APPROVED AS TO FORM:
ITY�ATT�ORNEY
David R. Hunt, City Attorney�' �
(A06 -W2241 - CSB Resolution Approving Report - Final for 1217 Meeting
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