Personnel Appeals Board Case Concludes

The PAB reached a unanimous decision tonight after two days of deliberations that the Sergeant's Promotional Exam from 2019 which had been appealed by multiple participants was indeed flawed. They will reconvene on Monday August 2nd to decide what the remedy will be (i.e. a new test and/or recommendations to fix the testing process for the future). We won't know what exactly this means until then. Thank you everyone for your patience while this matter worked it's way through the lengthy process and COVID induced delays.

Update to Last Post

 The meeting for tonight was cancelled, it has now been rescheduled to July 26th when a decision should be expected.

Decision Expected In Sergeant Test Appeal

 The Personnel Appeals Board is now scheduled to meet and deliver a decision in the matter of the appeal of the Sergeant's Promotional Exam on July 12th. We're now over two years into this process and are pleased to finally see it come to some sort of resolution. Though it was disappointing to see the Town continue their trend of doing everything in their power to keep this process hidden in the shadows by even excluding the Appellants themselves from the last hearing on June 30th where their attorney delivered their closing statement. I can't think of any legitimate proceeding where a plaintiff or appellant would be excluded from their own hearing where remarks are being given on their behalf. It defies logic.

This entire mess began because of the Town's complete lack of transparency with the stakeholders. Clearly they have learned nothing from it because all they have done throughout the process is double down on that lack of transparency. Until the entire testing and promotional process is reformed and made to be completely impartial, fair, and open, with a clearly defined rubric and rules, it's very likely that these problems will continue because employees and the public will not have faith in it. 

The Union has approached the Town numerous times in the past two years with ideas on how to fix the testing process to ensure it is completely fair. We've even asked to simply have a meeting where we could all sit down to discuss the matter and try to come to a mutually agreeable solution. Yet every single time we've asked, the Town has refused to even have a discussion with us. It's clear that they have no interest whatsoever in fixing this problem. Meanwhile the Town is bleeding tens of thousands of dollars in overtime costs while the Supervisor shortages continue as the appeals process plays out. 

The End Is In Sight - Sergeant's Test Update

 Last night the Personnel Appeals Board held the final hearing with witness testimony in the matter of the Sergeant's test appeal. They scheduled two more hearings, one on June 14th where closing arguments will be given, this hearing will probably still be subject to the gag order and therefore closed to the public. And a final hearing on June 23rd where the panel is expected to issue it's decision. This final hearing should be open to the public if anyone wants to attend. There is also the possibility with the State opening things back up that the final two hearings may be held in person at Town Hall rather than online.

We're coming up on the two year anniversary of the date this test was given and everyone is eager to get this resolved. We can only hope that the PAB will take this opportunity to fix this process and institute reforms in the testing process going forward such as hiring an independent firm to conduct the testing, and/or video recording the interviews to create a clear and indisputable record of the process so these lengthy and arduous hearings can hopefully be avoided in the future. 

Personnel Appeals Board Update

 We were scheduled to resume the PAB hearings virtually last night after nearly a year's delay due to COVID concerns, with another hearing scheduled for tonight. Unfortunately one of the panel members didn't show or wasn't aware of the hearing and it was cancelled. Tonight's hearing was also cancelled due to some miscommunication about scheduling that we thought had been ironed out. It's very disappointing and ridiculous that this process has been unnecessarily dragged out this long while our members have patiently waited. 

Even the Mayor chimed in during the hearing to voice her displeasure with all of the delays. But we'd like to point out that this process could have and should have been wrapped up over a year ago had the Town not insisted on pursuing their gag orders to block the people involved from publicly speaking about what actually happened with the test scores. Or they could've just not done what they did that caused our members to file appeals in the first place. Of course we can't disclose what happened here due to said order, but needless to say people don't usually pursue gag orders to cover up totally legitimate behavior, so read into that what you will.

So this process drags on further, we have new dates scheduled though the end of next month now. Remember this test was initially given back in the Spring of 2019. The Town has been unable to fill these Sergeant vacancies since then, and in fact more vacancies have opened as more Sergeants have since retired. I can't imagine how many tens of thousands of dollars (or more) the Town has spent paying overtime to existing Sergeants to fill in for the vacancies that should have been filled by these candidates over the last 2 years. Nor can I calculate how much income the candidates have lost out on due to the actions of the Town in this matter. Hopefully someone can do that math and find a way to make these members whole.

Personnel Appeals Board Hearings Starting Back Up

 We just got word that the Personnel Appeals Board Hearings regarding the Sergeant's test from 2019 will finally resume next week after being on hold since last March when COVID meeting restrictions were put into place. We have several dates scheduled and hope to have this matter resolved one way or the other by the end of February. It's unfortunate that this process has gotten dragged out so long but it's been due to factors that are out of anyone's control and we're looking forward to getting some much needed resolution.

Who's Next?

Does anyone have a friend at the FBI or SDNY??? Wonder if they'd be interested in our Sergeant's test situation.

On a completely unrelated side note, has anyone heard from former HR Director Santiago Malave since his sudden departure just as the shit was starting to hit the fan? 😆

Flip-flop - Sergeant's Test Debacle Update

We've been busy lately and haven't been able to update promptly so apologies there, but last Monday we finally had a hearing for the Sergeant's Test grievance at the Labor Board. The hearing was held virtually via Zoom, this was our first time having a remote hearing and we have some bugs to iron out for the future hearings but I think we've got a grasp on it. It definitely doesn't work nearly as well as in person hearings though.

As you may remember, back in November of 2019 before we began the hearings the Town challenged the arbitrability of the grievance and the Union won the decision unanimously, you can read about that here. This means the entire 3 member panel, including the Town's advocate, agreed that the matter could legally be arbitrated and a binding decision issued, and we then proceeded to have hearings until the shut down happened.

During the shut down the Town filed a motion to reconsider the arbitrability back in June, the panel did not even respond to their motion at that time as the matter had already been decided in November and we'd already begun hearings. When we commenced the virtual hearing on August 17th, the Town again asked the panel to reconsider the arbitrability based on the same exact argument the panel had rejected back in November and June, but this time with a new twist. This time the Town threatened to appeal the panel's decision to Superior Court regardless of the outcome of the hearing. Faced with the prospect of being dragged into Court and possibly having their decision overturned, the panel quickly called for a private caucus. 15 minutes later they returned and stated that they had now unanimously decided that their previous unanimous decision to grant arbitrability was actually incorrect, and they were now declaring that the matter cannot be arbitrated, even though we had already held hearings, submitted evidence and heard witness testimony. So they effectively dismissed the case without a decision.

We were all left shocked since we believe this situation is unprecedented for a panel to overrule themselves halfway through a case. Either they weren't confident in their decision, or they just didn't want the hassle of being sucked into a Court battle and decided that a little bit of corruption on a promotional exam is acceptable if it means they can skip a Court date. The whole situation is a joke and really shakes our confidence in the integrity of the Labor Board. We've lost cases there before, and we can accept that as long as we're given a well reasoned, thoughtful decision, even if we disagree with it. But this was nothing more a punt plan a simple, they just didn't want to deal with the hassle so they sent us on our way. We hope this doesn't set a precedent for future cases where either side can just threaten to inconvenience the panel so much that they toss the case just to avoid dealing with it.

This isn't a huge setback however, the Labor Board was always just a secondary venue for this case. The primary focus is still assisting the members who have appeals of the test before the Personnel Appeals Board. However we still haven't heard anything about when, or how the PAB hearings will resume. So the process will still remain on hold until those hearings conclude and we get a decision there.

Despite last week's outcome, the Labor Board process did have significant value since it helped us get all of the test documents made available to all of the candidates so they could see what really happened. Getting those documents out there served to strengthen the resolve to get answers and a better process that's less prone to corruption in the future.

We'll update further when we know more.

EHPOA Wins Limited Release of Sergeant's Oral Board Documents in Superior Court

As most of you are aware we have been fighting with the Town over viewing the documents related to the contested Sergeant's test for 7 or 8 months now in multiple venues. The Union has consistently argued that if we were allowed to see the documents and everything appeared legitimate as the Town claims it is, then this issue would go away and we could move forward with promotions. Instead the Town has fought us tooth and nail and spent tens, or even hundreds of thousands of dollars to keep these supposedly benign documents hidden from anyone's view despite past practice of transparency. In the meantime the custodian of the documents suddenly put in for retirement which has further raised suspicion that maybe they're not so benign after all.

One of the venues we've been fighting in is Superior Court where we filed a motion to release the documents for use the Personnel Appeals Board hearings. Last week when the attorneys went before the judge there was no question on his part that the candidates should be allowed to see these documents and use them in their appeals. But he wanted to come up with some sort of protective order over the documents to satisfy the Town's desire to keep them shrouded in secrecy. Yesterday we received the judge's decision on the matter which is as follows;

The Union's attorney, President, Vice President, and the three appealing candidates will be allowed to view all documents related to the test unredacted.

The seven non-appealing candidates will be allowed to view all documents pertaining only to their own individual tests unredacted.

Witnesses and outside experts may view only the content of the documents pertinent to their testimony.

All parties allowed to view the documents will have to sign a confidentiality agreement to not disclose the information contained in the documents to anyone not listed in the above paragraphs. They must also agree to only use this information for the PAB hearings and may not use them for any other hearing without going through this court process again. Additionally once the hearings are over we must return the documents to the Town for destruction, never to be seen again.

The last main point, which was a point of contention between the Union and the Town, is that when these documents are being discussed in the normally public PAB hearings, the hearing will be made private with only those given access to the documents allowed to be in the room. The Union has pushed for these hearings to remain open to the public and members of the Department because we believe the only cure for corruption in Government is transparency, without it nobody can be assured that the process is fair. The Town unfortunately doesn't share this belief and made a big push to close the hearings to the public and the judge ultimately sided with them.

There's been a lot of speculation over the last few months about what these documents will show, fueled by the Town's irrational grabbing at straws to hide them, and now we'll finally have the answer. Whether they reveal corruption or nothing at all really doesn't matter at this point, the damage has been done. The employees here at EHPD have lost all faith in our Town's HR Department to conduct a competent, impartial, and transparent exam and promotional process. Whenever a new HR Director is finally appointed they're going to have a real challenge on their hands to rebuild trust and fix the complete mess Santiago Malave has made of the Department.

We are also still arguing for the release of these documents through an MPP for use during the grievance process since this order only allows us to use them in the PAB hearing. we have a hearing scheduled for that at the labor board later in the month.

The next PAB Hearing is Scheduled for Wednesday January 22nd from 1700-1900. We have a fixed end time due to another group using the room after us. This hearing will still be open to the public as we will not be using the documents at that hearing since we may not have them yet and/or will not have had time to fully review them, so members are still free to come and show their support.

Summary of Jan 8th PAB Hearing

Thanks again to everyone who came and sat in on the hearing last night. Unfortunately it got off to a rocky start with confusion over the start time so we didn't get started until around 1730, and once we did there were a few Administrative motions by board members. Based on the language of the motions and the support from two of the three Board members, it seems to me as though the majority of the Board agrees with the Appellant's position that the Town should be open and transparent with test results to get this rather simple issue cleared up instead of muddying the waters with deception and unnecessary secrecy.

Once we got the hearing started Attorney McEleney began by submitting all the documents he was going to be referring to in his case to the Board as exhibits. The Town's attorney Meredith Diette objected and insisted that the entire 58 page FOI packet the Town gave me months ago including the letters to the examiners and candidates be entered as 58 separate exhibits instead of as one whole document. So we all sat there while all 58 pages were individually numbered and entered. This set the tone for the rest of the hearing with Attorney Diette objecting to almost every document submitted by the appellants after that, including one that was just a chart listing all the candidates and their grades, and relevant emails between the candidates and HR Director Malave.

Both Attorneys then gave their opening statements with Attorney McEleney using his time to simply lay out the facts of the case and reasons for the appeals as we've laid out on here previously. Attorney Diette then gave her statement which continued the Town's theme of "nothing wrong happened but we're not going to prove it you, and you need to stop asking." During her statement however she repeatedly stressed that the one candidate with the perfect score and 28 point gap to second place was female, bringing it up over and over again with a strong verbal emphasis. It was obvious to everyone there that Attorney Diette was trying to make the implication that this appeal was only happening because the appellants had some sort of sexist bias and not because everyone else who took the test either failed or just barely passed with a minimum score. Not only is her implication unfounded and offensive to our members, but it seems pretty stupid to accuse your client's employees of sexism against a coworker while your client is actively being sued by that same coworker for sexism in the workplace. I'm no lawyer but that seems like a pretty bad legal strategy to me. Chief Sansom complains about morale being low among the ranks, why not try telling your lawyer not to make completely unfounded implications of illegal behavior by your employees in a public hearing as a morale booster?

In fact when the first appellant, began his testimony the first thing he did was call out Attorney Diette on her offensive comments to which she had no response. He then went on to detail his extensive preparation for the tests, the test questions and his feelings on them, his discussions with other candidates and employees about his answers and his lack of understanding of his score. He also described how after the scores were released, he was mislead by Human Resources.

The Officer explained that he went to HR and asked Suzan Kyeremateng how he could view his test results to help understand his score and she told him he would have to wait 15 days after the posting to look at them, but he would be able to. A short time later he learned that in order to file a PAB appeal he only had 14 days, so had he taken Suzan's advice he would have missed the window to file an appeal. Either she isn't familiar with the processes of the Department she works in, or she intentionally mislead the Officer to prevent him from filing an appeal. After realizing this he emailed HR Director Malave and asked how he could view his test results, Malave responded that he would have to file an FOI request, but implied that after that he'd be able to see them. Several days after filing the FOI Malave responded that it was denied and refused to show him anything. This whole exchange was captured via email, when a copy of the email was submitted as an exhibit Attorney Diette objected and was able to keep it from being seen by the Board members. Fortunately during a blunder later during cross examination she accidentally opened the door to the email and it was allowed to be submitted to the Board.

This seems like a recurring theme with HR where we never can quite tell if they're simply incompetent, or if they know exactly what they're doing and are just lying. Either way our members should take it as a warning for future interactions with them that you cant believe anything they tell you. You're going to have to look things up for yourself.

We had a scheduled stop time of 2000, and during her cross examination of the first Officer Attorney Diette seemed to be asking a number of repetitive or irrelevant questions while repeatedly looking at the clock. It seemed to me and others watching that she was simply trying to waste time  and run down the clock to prevent Attorney McEleney from calling another witness that day, and she succeeded in running just past 2000. Fortunately for us, the PAB, perhaps noticing Attorney Diette's tactic, allowed McEleney to call one more witness before adjourning.

Attorney McEleney called one of our members who took the Detective's exam in 2018. That member detailed how she questioned her oral board score and requested of Mr. Malave that she be allowed to view her score sheets. Mr. Malave not only allowed her to see the sheets, but he didn't request that she file an FOI or take any other additional steps. It was a completely different exchange to the one Officers had with this test. Of course this exchange was also captured in an email chain which Attorney McEleney tried to give to the Board members but Attorney Diette again objected to it.

The hearing was adjourned after that. The next hearing will be in two weeks on Jan 22nd at 1700, unless they change it to 1730. We expect that the Appellants will proceed with the rest of their witnesses on that date.

PAB Hearing this Wednesday January 8th

The Personnel Appeals Board hearing for this Wednesday is going forward. The plan is to have the appellants and other witnesses on our side testify at this hearing. The hearing will take place at 1700 hours in Town Council Chambers at Town Hall. If you're free and would like to attend to show your support or just learn more about what's going on with the process, the hearing is open to the public and we encourage you to attend.

HR Director Santiago Malave Out? UPDATED

One of our members noticed today that the job of Human Resources Director had been posted a week ago on the Town's website, you can find the posting at this link. Though we haven't seen any confirmation, we can only assume this means current HR Director Santiago Malave, who's at the center of the current Sergeant test scandal, and previously the Fire Department promotional exam scandal, is on his way out.

The timing of his departure is intriguing since we're less than a week a way from a hearing in Superior Court where we will argue for the forced release of the evaluator notes and score sheets from the Sergeant's exam that he's been fighting tooth and nail to keep hidden. Of course he could be leaving for any number of reasons, perhaps he's jumping ship before the documents come out and reveal something he or his subordinates did, or the Mayor could be forcing him out, or maybe he just found a better job elsewhere that'll pay him more than the $105,622 salary East Hartford gives him.

Either way Mr. Malave's potential departure is a great thing for our Union and every other Town Union. Aside from his botching of multiple promotional exams, he has acted as nothing more than a rubber stamp for the Chief's decisions during the grievance process where he's supposed to be a neutral arbiter. During my involvement with the Union since 2014 Mr. Malave has never once sided with our Union in any of his Step 2 grievance decisions, instead agreeing with the Chief every time. We've appealed almost all of his rulings to the Labor Board which has overturned Malave's decisions one hundred percent of the time. That's right, every single decision he's ruled on that we've appealed has been overturned. This includes one ruling where he told me to my face after the hearing that he agreed with the Union's position, but then issued his ruling in favor of the Town because I assume he was afraid to go against the Chief of Police.

Mr. Malave's refusal to grant a fair and impartial hearing has wasted hundreds of hours and tens of thousands of dollars of both taxpayer and Union funds by forcing us to take grievances before the Labor Board that could have easily been resolved at the HR level had he done his job properly. We can only hope that whoever replaces him will do the job correctly and give the Unions a fair hearing when we go before him or her so we're not constantly running over to Wethersfield. It would be a huge plus if they know how to run a promotional exam without getting dragged to Court too.

UPDATE: We're hearing Malave is out mid-January before the decision from Superior Court should come down. The line we're hearing from the Admin/Town Hall is that this departure has been planned for at least a year. Of course this makes no sense at all, if you know a critical Department head is on his way out for a year, why would you wait until one month before his departure to post for his job? Don't you think they'd want ample time for qualified candidates to apply, and be interviewed and vetted before the spot goes vacant rather than doing it at the last minute? File that one under "not buying it."

The Latest on the Sergeant's Test Grievance

Since the last update we posted here we've had a few hearings on this matter but no decisions have been handed down yet. The Town unfortunately hasn't budged on their stance which can be summed up as "we didn't do anything wrong, but we're not going to prove it to you. Please stop asking."

On September 26th we had a hearing at Town Hall regarding the Municipal Prohibited Practice (MPP) complaint we filed regarding the Town's refusal to honor our MERA request for the documents from the test that should be able to easily prove or disprove any claims of wrongdoing. Attorney McEleney presented our case to the State Mediator, I'll try to summarize as best as I can though there are a lot of complex legal issues involved that I'll admit I don't fully understand so I won't get into in great detail.

Our case centers on a provision of the Municipal Employee Relations Act (MERA) which states a Union is entitled to any documents from the municipality that it needs to file and argue a grievance. I filed a MERA request with the initial grievance asking for the scores, scoring criteria, and notes of the evaluators so that we could see the reasoning behind the scores and determine if there was in fact any foul play or tampering. Had we been given these documents and they showed the scores were legitimate, we would've been able to drop the grievance and let the promotional process proceed. In response the Town provided us with the raw numeric scores of the candidates, but refused to show us any of the criteria or notes that would explain why the scores are what they are. The purpose of our complaint is to try and force the Town to provide us with these documents so we can make our case.

The Town's counter argument revolves around a provision of the state Freedom of Information Act (FOI) which includes an exception that states test questions and other proprietary information do not have to be disclosed due to an FOI request. Our response to this point is that we're not requesting the documents under the FOI statute, we're asking for them under MERA which has no such exceptions, therefore the language of the FOI statute is irrelevant to our request. The Town seems to be trying to make the argument that an exception that exists under FOI should also apply under MERA, or trump MERA altogether, though they concede there is no prior case law to support this assertion.

Mediation on the issue was attempted and was unsuccessful so the hearing was brought to a close after both sides were done arguing our points. As of this writing we still have not received a decision or response on the outcome of this hearing.

On October 15th we had our first hearing at the Labor Board in Wethersfield. This was supposed to the beginning of the hearing for the actual grievance but the Town requested to change it to a hearing on the arbitrability of the grievance. What this means is the Town is trying to argue that the matter at hand is not subject to collective bargaining or arbitration and therefore the case should not even be heard. There was a lot of legal speak that went over my head and cases cited as to why they believe this that I won't get into because I'd probably get it wrong.

However they also made the argument that the Personnel Appeals Board was the proper avenue to take an issue with a promotional exam and not the Labor Board. I find this assertion comical for a few reasons, first and foremost is that the Town has also refused to show the individuals who filed Personnel appeals their test results, so they're being sent into these appeals with no idea of what they're appealing because the documents are all being hidden by HR Director Santiago Malave. For comparison, imagine going into a court case to fight charges against you and not being allowed discovery, so you have no idea what the evidence against you is until it's presented in the court room. This is what our Town considers a "fair process."

Secondly the Personnel Board is ultimately a part of the Town Government, does it really seem fair that your only avenue to take up an issue you have against the Town, is with the Town!? As Police Officers we constantly hear how there's a need for outside scrutiny of us because an internal investigation can't be impartial. That's the reason why when we have an Officer involved critical incident that results in a death we have to call in an outside agency to investigate it, to ensure impartiality and credibility. So why does the Town think the rest of the Town Government should be exempt from this kind of scrutiny? Now we're fortunate here in East Hartford that our Personnel Appeals Board has ruled against the Town in the past and have shown they can be impartial and I'm grateful to have them as an option, but I don't think it should be your only option.

Attorney McEleney put on a great case on our behalf and was able to show that our labor contract does include provisions that govern how promotional tests will be handled so the issue is clearly arbitrable. He was also able to argue that while the Personnel Board is another venue to deal this matter, it's not the only one. Briefs on this matter were submitted last week and now we wait for a decision, if the case is determined not arbitrable then the grievance will be dismissed, otherwise we'll schedule a new hearing date to begin presenting the actual case before the Board. Though we may have to wait until the MPP matter is settled first as we'd like to have the documents we requested to help us make our case.

On September 24th the members who filed Personnel Board appeals had their first appearance, though it was more of a formality for the Board to officially accept their appeals and set hearing dates. Attorney McEleney is representing the members in their appeals.

On November 18th at 1700 hours at Town Hall there will be another Personnel Board hearing where Attorney McEleney will argue for the Board to authorize the release of the evaluator's notes and scoring criteria so our members will at least have a fighting chance in their appeals. I know everyone has busy schedules, but if you can make some time in yours it would be great to have as many members come down to the hearing as possible to show your support. I get asked about this issue daily by members who are outraged over what's been going on, if you're pissed off, please come on down and show it. One of the reasons the Union got involved in this matter is because it wasn't just the handful of people who took the test who were upset about what happened, but because the entire Department found it reprehensible, let's show them this issue affects everyone.

Once we have some more hearings or get any decisions I'll update here again.