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August 12, 2010
Greg Land, Fulton County Daily Report
A Fulton County judge last week halted scheduled promotions of Atlanta firefighters to the rank of lieutenant, ruling that the 41 positions may be filled only on a temporary basis while a class action asserting possible cheating on an April test moves forward.
On Aug. 4, one day before the promotions were to go into effect, Superior Court Judge Melvin K. Westmoreland signed an injunction halting any permanent promotions at the request of nearly 100 firefighters who have joined the suit. They are demanding an investigation into what they claim was a rigged test in which at least a half-dozen firefighters scored abnormally well on the written portion of the test.
The city had argued that the Fire-Rescue Department would suffer “severe and irreparable harm” if it were forced to delay making the promotions permanent. The city also said an investigation by the city’s Department of Human Resources had provided no evidence of cheating.
Westmoreland’s order said the plaintiffs had demonstrated “that substantial issues exist as to whether the written examination procedure was unlawfully tainted.” He ordered that the appointments be made only on a temporary basis.
According to the complaint filed July 30, the six firefighters who achieved “unusually high scores” were all close to an assistant fire chief who had access to the tests. They also had studied for the test together and were all African American, an “almost unheard-of” statistical anomaly, according to attorney A. Leroy “Lee” Parks, who filed the suit with Parks, Chesin & Walbert partner Larry Chesin.
According to the complaint, the racial mix of the 175 firefighters who sat for the test was split almost evenly between African-American and white candidates.
The test results showed that, with 100 being a perfect score, three candidates scored 98 or higher; three others scored 90 or 91; and three firefighters scored in the low 80s. But the “large majority” of testtakers scored in the 50s and 60s, according to the complaint.
“Suspicions arose when the test results were posted,” said Parks. “The person who scored the highest on the written exam came in dead last on the oral section, and all of the top scorers averaged poorly when it came time to communicate the material verbally.”
He contrasted the test results with those for the captain’s test, administered the same day, in which the highest score was an 83 and the majority of the results were in the 60s.
Parks said that the statistical likelihood of the six “outlier” scores, and the alleged relationship those scorers have with highlevel department officers, provided the basis for his clients’ belief that the test was rigged. Parks added that only a full investigation could prove that the city’s statutes governing the promotion of firefighters was lawful.
The issue is not about race, he said, but about potentially preferential treatment for a few well-connected individuals at the expense of the rest of the department.
A city filing in opposition to the injunction request filed last week said an investigation conducted by the a city Human Resources official failed to uncover any evidence of wrongdoing.
A summary of the investigation by Assistant DHR Commissioner Alfred Elder attached to the brief said he had interviewed 32 firefighters who took the test and that “no physical evidence or eye-witness testimony” could be found to support the accusations. He also said that a review of the study preparation and credentials of the high-scoring test-takers indicated that they were “accustomed to studying, possessed proof of study efforts and were capable of producing positive results on the examination.”
Parks dismissed the investigation as a “whitewash,” pointing out that Elder did not perform any polygraph tests or elicit sworn testimony which, he said, is customary in such cases. Nor, he said, did Elder interview Wilmond Meadows, a deputy chief named in the suit as the likely source for test answers that were obtained by his “long time friend,” Battalion Chief Bernard Coxton and distributed to certain firefighters preparing for the test.
In response to a query concerning the suit’s allegations, acting Atlanta City Attorney Peter J. Andrews sent a statement: “It is not typically city policy to use polygraph tests in these types of investigations and placing subjects under oath is a nonissue.”
According to the complaint, Meadows was one of three assistant deputy chiefs who had been provided the bank of test questions by the private company that administered the test, in order to select the 100 questions ultimately used. Meadows, it says, stored a copy of the test and answers on his laptop computer, and Coxton “was provided access to these test materials.”
Coxton “afforded certain preferred persons having a personal relationship with [him] advance notice of the content of the examination(s), affording them a corrupt and unfair advantage on the written examination,” it says.
Parks said most of the high-scoring firefighters had worked as drivers for Coxton or been assigned to firehouses under his command.
Parks said that he was approached some time ago by firefighters concerned about the test results and had twice written to Interim Fire Chief Joel G. Baker requesting a thorough investigation, to no avail.
“We spent two months asking for an investigation just to get to the bottom of it,” he said. “He just ignored us.”
Parks said his clients “run the gamut. Some were in competition for the positions, some weren’t, some are union people angry about the process, some just have a generic interest in ensuring that suspicious testing is investigated.”
Parks said it was essential to halt the scheduled promotions before they took effect because if they had been granted, the new lieutenants would be afforded civil service protections, “and then you can’t get them out.”
The firefighters who are promoted on a temporary basis will suffer no harm from the injunction, he said.
“Those people are going to have the position, the pay and the benefits while this goes on,” he said. “We don’t know how far this went. … The thing to do is provisionally promote, then makes the decision to re-test if necessary.”
Lt. Jim Daws, president of the Atlanta Professional Firefighter Union, said his organization is not involved in the suit but supports the push for an in-depth investigation.
“Obviously, a lot of our members are going to be affected by this, and if there was any wrongdoing it should be exposed and corrected,” said Daws.
“The Department of Human Resources investigation was wholly inadequate,” said Daws. “In our opinion, it did not serve the purpose of restoring any confidence in the process.”