Graham v MOA #5: A Much Better Overview Of Why This Case Is Important

Graham v MOA - Overview of Why It’s Important

[This is an overview to explain what I see as a major problem.

MOA = Municipality of Anchorage AFD = Anchorage Fire Dept

 My evidence in this post is minimal.  This series of posts will offer detailed evidence.]

1. There was a wrongdoing.  Jeff Graham was intentionally and unfairly denied promotion.   This was proven in court to the satisfaction of the jury.  
2. The problem is structural and individual.
1. The exam process did not follow the MOA Charter requirement that it comply with ‘merit principles’.  Instead the oral exam (particularly) was so subjective that graders could give whatever score they wanted.  The only remaining evidence was the sketchy notes of the graders.  No recordings, audio or video.  This subjective exam was abused to prevent Jeff Graham from promoting.
2. The exam was part of a good-old-boy system that demanded loyalty and punished those who didn't toe the line.
3. The wrong doing was aggravated by the response to Graham’s protest of the exam.  It was not taken seriously, there was no investigation.  Constructive critiques of the exam by two other firefighters were also ignored.
4. In court, evidence was presented (and not refuted by the Municipality) that the head of the training academy said he would never let Jeff Graham promote.

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After Jeff Graham was told he had failed the oral exam, he filed a complaint.  The complaint was never followed up on by AFD beyond a quick rejection.  In addition, two other fire fighters also filed more generalized constructive critiques of the exams that also were ignored. 

The correct response, in 2012,  to Graham’s complaint about the exam would have been to look into the complaint, to look at the exam.  Anyone with professional testing and training knowledge and experience would have recognized the problem with the test immediately.  

Another correct response (given AFD demographics - about 2% female and about 85% white) would have been to seriously examine why the demographics are so different from Anchorage demographics.  They could have, for example, hired objective outside experts to meet with people of color and women in the department to find obstacles to entry and promotion so that more underrepresented groups could get into and promote within the system.  

Instead of investigating and correcting the problem, the department saw Jeff Graham as the problem and the department pulled all its forces together to fight him when he got no response and finally sued the MOA.  Organizations count on their greater resources to keep people like Graham from taking them to court.  But Jeff Graham felt seriously wronged and wanted to correct the injustice he had suffered.  

Why did this happen?

1. People in charge of testing and promotion were not qualified.  There is a state certification program. The test makers only had Level 1 certification and thus were not certified to make a test, only to administer a test created by someone with Level 2 certification.
2. Accountability systems - like the Human Resources Department - did not do their work to insure the exams complied with merit principles.
3. The system has aspects of a good old boys system where if you fit in with the crowd and you stay quiet and loyal, you might get ahead.  This is not unusual, and we are currently seeing nationally the consequences of such systems in the sexual assault scandals.  If people are afraid to speak up, wrongs go on forever.  

Therefore, the highly subjective oral exam allowed the good old boys to select who they wanted to promote and in Graham's case, keep out the ones they didn't want to promote.  And this promotion exam was the only passage way up the ladder from the position of fire fighter.  

Why should you believe what I say here?  Lots of reasons.

1. My expertise.  I have academic training and practical experience in the field. I have a PhD in public administration, with a masters level specialization in personnel management.  I worked as special assistant to the director of Employee Relations at the MOA for two years (1982-84).  I was chair of the University of Alaska Anchorage grievance committee for two years and I was later the campus and statewide grievance rep for my faculty union. I sat on numerous search committees.  I taught public personnel administration for 30 years.  I’ve also published in this field.
2. My access to the case - I served as an expert witness for the plaintiff.  This allowed me to see much of the documentation of the testing and other activities.  I also attended the trial so I was able to hear the evidence offered by the MOA.  
3. The demographics of the Anchorage Fire Department compared to a) the rest of the MOA and b) the population of Anchorage are abysmal.  The AFD - according to the deposition of the Deputy Chief - has about 2% women and about 85% whites.
4. A superior court jury, after a three week trial, found the MOA guilty of bad faith and unfair treatment in Jeff Graham’s case.  They awarded him $660,000.  (The judge later approved additional legal fees.)
5. A fire fighter eyewitness testified at the trial that the head of the engineer promotion and testing academy told him and some others that “As long as I’m in charge of promotion, Jeff Graham will never promote.”  The city did not refute this testimony in court.  
6. The PowerPoint used to prepare fire fighters for the oral peer review covered slides which point out - unintentionally - some of the problems with the test:
1. “Is This A Popularity Contest?”  - they say they talked about this to dispel rumors, but obviously the rumors must have been pervasive enough that they felt the need to officially address them.  Their proof that it wasn’t?  They simply asserted it wasn’t. And blamed sore losers who'd failed the exam for the rumors.
2. Candidates were told to expect ‘skeletons’ to be brought up at the oral exam.  I'd note the MOA has disciplinary procedures with proper investigations for dealing with behavior that violates MOA regulations.  There were no disciplinary issues with Jeff Graham.  The promotion exam is not the proper place to raise unfounded and unproven "skeletons" against people. 
3. Candidates were told to prepare ‘nuggets’ or stories about themselves that would prove their character and that the nuggets could be ‘irrelevant’ to the job of fire fighter.  I'd note again, that the merit principles require that all criteria for selection and promotion be directly job related and predictive of success on the job.  
7. The oral exams were not validated even though the national fire safety instructor training manual the department uses says that high impact exams such as promotion exams should be validated professionally.  
8. Merit principles require tests that predict who will be good at the job, or what is technically known as 'valid.'   A valid test in this case would mean test takers who score higher will be more successful engineers and those who score lower will be less successful.  There are technical ways to validate a test.  Another key factor is reliability - that the conditions of the test - location, time, graders, etc. - don't bias the outcome.  Tests need people with technical training to ensure a test is valid and reliable.    A number of key people, including the test makers, were unable in depositions to explain:
1. merit principles
2. validity
3. reliability
9. Aside from not being validated, the oral exams were so obviously subjective that they allowed graders great leeway.  There are too many serious problems with the exams to address them here.  But I will in other posts.

As I said at the beginning, a wrongdoing happened and was compounded by the fire department uniting to fight Jeff Graham instead of investigating the problem professionally.  They strongly supported the people who caused the problem and fought against the victim of the problem.  The dynamics of this are the same as the dynamics that have kept so many women (and men) from reporting sexual assaults and even rape.  Fear of retribution kept many fire fighters silent about problems, even though they signed statements that required them to report any violations of the integrity of the exams.  

Thus closing this particular case doesn’t solve the problem.  It’s a systemic problem that still exists.  

Remedies

1. The most basic remedy already exists.  In fact the MOA Charter requires it be used. The Charter requires the application of merit principles in all personnel decisions.  Unfortunately, no one in the fire department involved in the case knew anything about merit principles.  Thus, the first recommendation is to train all the top level executives and all the employees involved in personnel actions where decisions are made about employees (selection, promotion, discipline, etc.) in merit principles and how to apply them.   
2. The MOA needs to hire enough professionals skilled in testing, to 
1. review selection and promotion testing in all departments to be sure tests are valid and reliable and there is accountability if they are not 
2. develop new testing procedures in those departments where tests are not valid and reliable, starting with those most out of compliance
3. train relevant people in the departments 
4. have professionals investigate complaints and suggestions about testing procedures
5. establish procedures to record all oral exams
3. Get demographic data for all departments to determine how close the MOA reflects the demographics of the working age population of Anchorage.
1. This should include age, gender, ethnicity, at a minimum, at all levels of each department
2. Departments below a to-be-determined percent of the general population demographics must develop plans for making their departments more welcoming and for developing pools of qualified candidates for future openings - if necessary, this could use the UAA ANSEP model where recruitment goes as far as preparing  high school students to develop the skills needed in key areas.  
4. The merit principles required in the MOA Charter need to be resuscitated by
1. extensive training of employees and the public on what merit principles are and how they work,
2. reviewing how many current executive level positions should actually be civil service positions with civil service protection from arbitrary firing.
5. Departments need to be much more open to their employees’ suggestions and complaints.  If necessary this means publicizing the role of the ombudsman office more and increasing the ombudsman staff skilled in administrative investigation.  Or setting up an investigation team in Human Resources.
1. This includes the legal department, which should be reviewing the meaning of ‘duty to client’ when they are government employees.  Is their duty to the employee in the department who has the authority to call them in?  Is it to the MOA as a whole?  Is it to the public?  What should they do when these duties conflict?  If the legal department had considered the fairness of the system and what happened to Jeff Graham instead of whether they thought they could beat a discrimination case, this never would have happened.  I'd note this case followed closely a discrimination case in the Police Department that the MOA also lost. Department heads who have done wrong or have allowed wrong to be done on their watch, shouldn’t be able to use the MOA attorneys to cover up their mistakes and persecute employees who are the victims of the wrong doing.  
6. It would also be nice to promote Jeff Graham.  He actually passed the test back in 2008, but a day or two later he was told he hadn’t been eligible to take the test.  It’s true he hadn’t been a fire fighter for the required five years, but he had been a mechanic in the fire department for eight years (and the duties greatly overlap with engineer)  and the HR department and Fire Department waived the requirement because of ‘equivalency’ as they did for other fire fighters.  And in 2012 he passed the written and practical tests with high scores.  But a third exam - the subjective oral exam - was added.  If you fail any one of the three exams, you can’t promote.  Graham failed the oral exam by one point after a ‘skeleton’ in the form of a rumor he’d never heard about before was sprung on him in one question.  (Each question had about four minutes to be addressed.) [UPDATE May 21, 2018:  Jeff retook the exams recently and passed.  That puts him on a list of people who will be promoted if engineer positions come open in the next two years.  Read more here.]

Jeff Graham initially filed a racial and age discrimination complaint.  Those are hard to prove.  It was the only legal grounds he was aware of for such a complaint.  He didn't know anything about the merit principles in the Charter.  The MOA claimed there was no racial discrimination, but in the trial, these other issues came out and the jury found the MOA violated its obligation of good faith and fair treatment.  

The beauty of the merit principles is that they protect everyone from discriminatory practices - whites as well as people of color, men as well as women.  They require tests to, as much as possible, discriminate solely on whether someone is likely to be successful on the job.  

My Goal

My goal in these posts is to raise awareness of the problems that this case has raised.  It got almost no media coverage and many of the issues are 'invisible' in that they are very detailed issues of policy and administration.  I hope to be able to make them visible and explain them and their significance in these posts.  

Ultimately I hope the MOA will seriously review the internal structures that increase the likelihood that employees will be treated fairly, like the merit principles in the charter require. Hiring and promoting employees based on their qualifications for the job and not their connections, generally leads to a more effective and efficient government.  So does an administration that takes complaints seriously instead of punishing the complainers.  

This is the overview.  The other posts will fill in the details.  As I post them, I'll add links to them here.  

You can see an index of all my posts about this case here - or at the Graham v. Municipality of Anchorage tab just below the "What Do I Know?" banner on top of the blog.