Amicus Curiae Brief — Ricci v. DeStefano (No. 08-328)

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Nos. 07-1428, 08-328

In The

Supreme Court of the United States

*

FRANK RICCI, ET AL.,

Petitioners,

V.

JOHN DESTEFANO, KAREN DUBOIS-WALTON,

THOMAS UDE, JR., TINA BURGETT, BOISE

KIMBER, MALCOLM WEBER, ZELMA TIRADO,

AND CITY OF NEW HAVEN,

Respondents.

+

On Writs Of Certiorari

To The United States Court Of Appeals

For The Second Circuit

+

AMICUS CURIAE BRIEF OF BRIDGEPORT

FIREFIGHTERS FOR MERIT EMPLOYMENT, INC.

IN SUPPORT OF PETITIONERS

S

STEWART I. EDELSTEIN

COHEN AND WOLF, P.C.

1115 Broad Street

Bridgeport, CT 06604

(203) 368-0211

Attorney for Amicus Curiae

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

b0TH YNTKY one

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TABLE OF CONTENTS

Page

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INTEREST OF AMICUS CURIAE...................... 1

SUMMARY OF ARGUMENT ...........................04. 1

ET ildldittiasiditiipttcmmigitnniniiedcenctessnprenexeineumn 3

I. THE DISTRICT COURT RULING AND

THE SECOND CIRCUIT AFFIRMANCE

DIRECTLY CONFLICT WITH STRONG

PUBLIC POLICY OF THE STATE OF

CONNECTICUT THAT REQUIRES

STRICT COMPLIANCE WITH CIVIL

SERVICE LAWS AND RECOGNIZES

COMPETITIVE EXAMINATIONS AS

THE CORNERSTONE OF A MERIT-

BASED SYSTEM OF GOVERNMENT

TEE ex icnseerperseitecnsennesseninsousnessees 3

Il. THE SECOND CIRCUIT DECISION

HAD AN IMMEDIATE DISCRIMINA-

TORY IMPACT ON THE PROMOTION

OF FIREFIGHTERS IN THE CITY OF

BRIDGEPORT’S FIRE DEPARTMENT.... 11

Ill. THE DISTRICT COURT IMPROPERLY

RELIED ON UNSWORN STATEMENTS

MADE IN NON-ADVERSARIAL PRO-

CEEDINGS TO DETERMINE THAT

RESPONDENTS HAD A GOOD FAITH

DEFENSE UNDER TITLE VII................. 13

ce) daincnsinerenionsisnnnneininnnnesesesrenseesen 16

li

TABLE OF AUTHORITIES

Page

CASES

Broadnax v. New Haven, 270 Conn. 133, 851

I Ea esccigcaesibabertininn g

Cassella v. Civil Service Commission, 202

CO, Ba, Rt Fe CG Pieccccicncevsccesscciccccsccesscceses 7

Chance wv Board of Examiners, 561 F.2d 1079

SSSR A SESE Oe eae ere cnet st ee 4

Kelly v. New Haven, 275 Conn. 580, 881 A.2d

ees 8,9

New Haven Firebird Society v. The Board of

Fire Commissioners of the City of New Ha-

ven, 32 Conn. App. 585, 630 A.2d 131, certif.

denied, 28 Conn. 902, 634 A.2d 295 (1993).............. i)

Resnick v. Civil Service Commission, 156 Conn.

en ccipsiimeuies 5,6

Ricci v. DeStefano, 554 F.Supp.2d 142 (D. Conn.

2006), aff’d, 530 F.3d 87 (2d Cir. 2008), cert.

granted, 129 S. Ct. 894 (2009)................ 3, 13, 14, 15

Ricci v. DeStefano, 530 F.3d 87 (2d Cir. 2008),

cert. granted, 129 S. Ct. 894 (2009).................. 12, 13

Walker v. Jankura, 162 Conn. 482, 294 A.2d

EEN ered ee ee Fe rN — 6, 7

Wells v. United States, 318 U.S. 257 (1943)............... 11

STATUTE

ee Rs Oe NG cccciscnecoccnssnerosevevesosescenensccoronssasoonesed 4

INTEREST OF AMICUS CURIAE

The amicus curiae is Bridgeport Firefighters for

Merit Employment, Inc. (“BFME”). BFME is a non-

profit organization of firefighters dedicated to the

preservation of the merit system in municipal em-

ployment. BFME- has 92 members, about one-third of

Bridgeport, Connecticut's fire department. The Dis-

trict Court ruling and the Second Circuit affirmance

in the present case already have had a direct, pro-

found, and negative effect on the civil service merit

system for promoting firefighters in Bridgeport, and

have the potential to similarly affect municipalities

across the state of Connecticut. Accordingly, BFME

has a keen interest in the outcome of this case.’

¢

SUMMARY OF ARGUMENT

As expressed by several decisions of the Con-

necticut Supreme Court during the last four decades,

' All parties have consented in writing to the filing of this

brief. By letter dated January 28, 2009, counse! for Petitioners

filed a blanket consent with the Clerk of the Court stating that

they consent to the filing of any and all amicus curiae briefs in

the present case. By letters dated February 13, 2009 and

February 23, 2009, counsel for Respondents filed the same

blanket consents with the Clerk of the Court. No counsel for any

party in the present case has authored any part of this brief or

contributed monetarily to its preparation or submission. No

other person or entity, other than the amicus curiae, its mem-

bers or its counsel, have made a monetary contribution to the

preparation or submission of this brief.

2

the state of Connecticut has a strong public policy

requiring strict compliance with civil service laws,

and recognizing the importance of competitive ex-

aminations as part of the government’s civil service

system. By statute, Congress has made explicit its

intent that federal courts adjudicating Title VII cases

respect state law and interests. Therefore, although

the present case was brought pursuant to federai iaw,

the District Court and Second Circuit should not have

ignored the state’s crucial public policy. By doing so,

these decisions pave the way for a dangerous depar-

ture from the merit-based civil service system for

hiring and promoting firefighters and other civil

servants in Connecticut. |

Indeed, this dangerous precedent is no longer a

hypothetical proposition. Several Bridgeport, Con-

necticut firefighters have sued the Bridgeport Civil

Service Commission and its personnel director in

federal court for re-weighting and re-scoring a promo-

tional examination. The Bridgeport personnel direc-

tor’s explicit reliance on the Second Circuit decision

in the present case to take this discriminatory action

exemplifies the undesirable impact this decision

already has had on a neighboring Connecticut city.

The decision in favor of Respondents is particu-

larly disturbing because the District Court relied

heavily on unsworn statements mede in non-

adversarial proceedings before the City of New Haven’s

Civil Service Commission. The Second Circuit inappro-

priately upheld the District Court ruling under these

circumstances, especially where individual rights, the

3

public’s safety, and Connecticut’s civil service system

are at stake.

¢

ARGUMENT

I. THE DISTRICT COURT RULING AND THE

SECOND CIRCUIT AFFIRMANCE DIRECTLY

CONFLICT WITH STRONG PUBLIC POLICY

OF THE STATE OF CONNECTICUT THAT

REQUIRES STRICT COMPLIANCE WITH

CIVIL SERVICE LAWS AND RECOGNIZES

COMPETITIVE EXAMINATIONS AS THE

CORNERSTONE OF A MERIT-BASED SYS-

TEM OF GOVERNMENT EMPLOYMENT.

The Charter of the City of New Haven (the “City

Charter”) sets forth a merit-based civil service system

that mandates a strictly competitive process for the

hiring and promotion of City firefighters. Specifically,

“the ‘Rule of Three’ in the City Charter mandates that

a civil service position be filled from among the three

individuals with the highest scores on [the applicable

competitive examination].” Ricci v. DeStefano, 554

F.Supp.2d 142, 145 (D. Conn. 2006), aff’d, 530 F.3d

87 (2d Cir. 2008), cert. granted, 129 S. Ct. 894 (2009).

As set forth in detail in Petitioners’ brief, during

the process of developing and administering the

promotional examinations for the positions of lieu-

tenant and captain in the New Haven fire depart-

ment, the City complied with all federal guidelines,

adhered to the highest professional standards of

r -

- ~

"

4

testing, and afforded all interested parties with the

assistance and tools necessary to succeed on the

examinations. Nevertheless, Respondents’ decision

not to certify the examinations was upheld simply

because insufficient numbers of minority candidates

obtained scores that would make them eligible for

promotions. Thus, the effect of the District Court

ruling and the Second Circuit affirmance of that

ruling is to nullify civil service examinations in

Connecticut and, thereby, eviscerate merit-based

employment for government employees.

Although Title VII is a federal statute, Congress

still intended for federal courts to respect state law

and interests when adjudicating Title VII cases. See

42 U.S.C. § 2000e-7 (provision of Title VII regarding

its effect on state laws). In fact, the Second Circuit

has acknowledged that a state “mandate that ap-

pointments to civil service positions be based on merit

and fitness, to be ascertained by competitive exami-

nation where ‘practicable’, may not be blinked at or

avoided.” Chance v. Board of Examiners, 561 F.2d

1079, 1090 (2d Cir. 1977) (citation and internal quota-

tion marks omitted). As set forth below, the outcome

in the present case conflicts directly with the strong

public policy of Connecticut. By ignoring this public

policy, the District Court and Second Circuit have

improperly opened the door for the very abuses the

civil service laws were designed to eradicate.

For many years, the Connecticut Supreme Court

has stressed the importance of strict compliance with

5

civil service laws, not only to ensure that municipali-

ties hire and promote the most qualified individuals,

but to stem the inevitable corruption and other ills

that occur whenever these rules are relaxed. In

Resnick v. Civil Service Commission, 156 Conn. 28,

238 A.2d 391 (1968), the Court first articulated this

policy comprehensively:

The purpose of [the civil service] laws is to

ensure the appointment of personnel pos-

sessed of the qualifications which are neces-

sary for a fit and intelligent discharge of

duties pertaining to public office and to free

public employees from the fear of political

and personal prejudicial reprisal.

Id. at 31 (citations omitted).

Strict compliance with the terms of the civil

service law is required where the legislative

intention. is manifest in the light of the pur-

poses of such a statute. ... Good faith of the

parties will not validate an illegal appoint-

ment and will not be sanctioned by the

courts.... It is mandatory that every re-

quirement of the civil service law be fol-

lowed, and proof that substantial compliance

exists is not enough. The doctrine of substan-

tial compliance has no application to the per-

formance of duty by those entrusted with the

administration of the civil service law. It

would open the door to abuses which the law

was designed to suppress.

Id. at 32-33 (citations and internal quotation marks

omitted).

6

The trial court in Resnick had upheld the City of

Bridgeport’s decision not to certify the plaintiff to an

eligible list for legal aides, after he completed a

written and oral examination. Specifically, the trial

court had found that although the city charter prohib-

ited questions in any test relating to religious or

political affiliations, because oral examiners asked

such questions of the plaintiff in a friendly manner

and did not use his answers as criteria for rating his

fitness, the city had substantially complied with the

charter requirements. Jd. at 30. Invoking the above

principles, the Supreme Court rejected the trial

court’s analysis, and declared the examination illegal

and void. Jd. at 33.

Since the Court decided Resnick, it has reaf-

firmed its stringent position several times. Most

significantly, the Court has made clear that munici-

palities cannot circumvent civil service requirements

by manipulating the examination process in any way.

For example, in Walker v. Jankura, 162 Conn. 482,

294 A.2d 536 (1972), the Court held that the City of

Bridgeport could not delay an examination for police

inspector to permit two of the defendants to acquire

the experience necessary to be eligible for the exami-

nation. Jd. at 490-91.

Bridgeport’s city charter provided that an exami-

nation for the position at issue in Walker had to be

held within 120 days of the time the position became

vacant, and civil service regulations required that

candidates have three years experience as a police

captain to be eligible to take the examination of police

7

inspector. The plaintiff and one other candidate had

the required three years’ experience at the end of the

120 day period; the other candidates who sat for the

examination did not have the three years’ experience

until ten days before the examination was actually

administered. Jd. at 485-86. Because the city did not

strictly comply with the civil service law, the Court

upheld the trial court’s finding that the examination

was void and illegal. Jd. at 490-91.

Likewise, in Cassella v. Civil $ervice Commis-

sion, 202 Conn. 28, 519 A.2d 67 (1987), the Court

upheld the decision of the New Britain civil service

commission to demote the plaintiff, a member of the

New Britain fire department, from lieutenant to

private, because his promotional examination had

been “fixed” and, therefore, he had not been promoted

according to the rules of the city charter and the civil

service commission. Jd. at 36-38. In reaching its

decision the Court stated:

It cannot be overemphasized that proper

competitive examinations are the corner-

stone upon which an effective civil service

system is built. Any violation of the law en-

acted for preserving this system, therefore, is

fatal because it weakens the system of com-

petitive selection which is the basis of civil

service legislation.

Id. at 35 (citations and internal quotation marks

omitted).

8

Perhaps most significantly, the Court more

recently held that manipulation of examination

scores by New Haven’s police department violates the

“Rule of Three” in the City Charter and civil service

rules — the same rule that applies in the present case.

In Kelly v. New Haven, 275 Conn. 580, 881 A.2d 978

(2005), the Court specifically addressed whether the

City’s practice of rounding police examination scores

to whole numbers and then placing scores in groups

violated this section of the City Charter and civil

service rules. Jd. at 582-83.

In reaching its decision, the Kelly Court empha-

sized “the importance of maintaining the integrity of

[the City’s] civil service system.” Jd. at 608 (citation

and internal quotation marks omitted). The Court

also noted that “the charter vests broad authority in

the personnel director to prepare, conduct amd score

examinations. ... This authority, however, does not

include the authorization to act in a way that is

unreasonable, arbitrary or illegal.” Jd. at 609-10.

Construing the purpose behind the City Charter, the

Court then found that the City’s discretion did not

allow it to manipulate the examination process by

rounding scores to increase the number of individuals

eligible for promotion:

The civil service board was designed to elimi-

nate as far as practicable the element of par-

tisanship and personal favoritism in making

appointments.... Promotion on the basis of

merit, not nepotism, has been the guiding

rule.... Thus, the defendants’ discretion in

9

making such promotional decisions must be

limited. ... [Nlo one would dispute that this

discretionary power is not validly exercised

in the name of merit selection if, in awarding

a position, the department head is predis-

posed to excluding certain candidates from

the position based upon factors unrelated to

performance capability and compatibility.

[T]he rounding of scores, when applied to a

process under which candidates with tie

scores are treated as one score group war-

ranting equal consideration under the rule of

three, violates the spirit and the letter of the

civil service provisions of the charter.

Id. at 614-16 (citations and internal quotation marks

omitted; emphasis in original). See also Broadnax v.

New Haven, 270 Conn. 133, 160, 851 A.2d 1113 (2004)

(Court held that “underfilling” in New Haven’s fire

department was prohibited because it violated the

City Charter, ordinances and civil service rules); New

Haven Firebird Society v. The Board of Fire Commis-

sioners of the City of New Haven, 32 Conn. App. 585,

591-93, 630 A.2d 131, certif. denied, 228 Conn. 902,

634 A.2d 295 (1993) (Court held that “stockpiling” in

New Haven’s fire department was illegal because it

violated New Haven’s civil service law).

In the present case, the District Court and Sec-

ond Circuit sanctioned a practice that allows a mu-

nicipality to manipulate the competitive examination

process by ignoring its results completely. As set forth

in Kelly, this outcome gives Respondents unreasonable

10

discretion in making promotions in the City’s fire

department — discretion that clearly violates the Rule

of Three in the City Charter. Although merit consid-

erations are important for any government position,

they are even more essential in positions where

public safety is implicated, as well as the safety of

firefighters. In these situations, commanding officers

must make life and death decisions. Consequently,

the Second Circuit has set a dangerous precedent for

the City of New Haven by affirming the District

Court ruling.

Furthermore, the Second Circuit affirmance has

an even more widespread impact, because it sends

the wrong message to municipalities throughout the

state of Connecticut. The message is that municipali-

ties need not strictly comply with civil service laws

anymore, and competitive examinations are no longer

the cornerstone of the civil service system. This will

open the door to the very abuses the civil service laws

were designed to eradicate.

The citizens in Connecticut’s cities are especially

diverse, consisting of a multitude of racial, ethnic,

national and religious groups. The civil service laws

are designed not only to ensure promotion of the

individual best fit for a particular position, but to

deter elected officials from handing out favors to

constituents as “payment” for votes. Now, in the guise

of helping minorities to succeed, municipalities will

be free to discount or even ignore merit and fitness as

criteria for hiring and promotion, and they will also

be free to return to a system where partisanship and

bs

11

personal favoritism rule the day. Such a system

violates the clear public policy of Connecticut and

cannot be countenanced.

Il. THE SECOND CIRCUIT DECISION HAD AN

IMMEDIATE DISCRIMINATORY IMPACT

ON THE PROMOTION OF FIREFIGHTERS

IN THE CITY OF BRIDGEPORT'S FIRE DE-

PARTMENT.

The dangerous precedent set by the Second

Circuit decision is no longer a hypothetical proposi-

tion — it is very real. In the summer of 2008, a num-

ber of Bridgeport, Connecticut firefighters sued the

Bridgeport Civil Service Commission and its person-

nel director, challenging the personnel director’s

decision to re-weight and re-score the examination

given to determine who should be promoted to the

position of lieutenant in the Bridgeport fire depart-

ment. Most significantly, the Bridgeport personnel

director relied heavily on the Second Circuit decision

in the present case to reach the conclusion that he

had no alternative but to tamper with the test re-

sults. See Timothy Bottone, et al. v. City of Bric ,eport,

et al., Civil Action No. 3:08 CV 01320 (JCH) (D.

Conn.)*

* BFME respectfully requests that this Court take judicial

notice of the court file in the Bottone case. See Wells v. United

States, 318 U.S. 257, 260 (1943) (federal courts may take judicial

notice of proceedings in district court cases).

12

In Bottone, the original scoring methodology,

which test takers had notice of prior to sitting for the

examination, weighted the examination 50% for the

written component, 45% for the oral component, and

5% for seniority. After the examination was adminis-

tered and scored, the personnel director claimed that

the results of the examination had a disparate impact

on minority candidates which required immediate

action to correct. The personnel director then changed

the scoring methodology to 25% for the written com-

ponent and 75% for the oral component.

This re-weighting and re-scoring ultimately

provided a revised promotional list that elevated the

scores of minority candidates and adversely affected

the plaintiffs’ opportunities for promotion. As set

forth above, the Bridgeport personnel director took

this action — an action arguably even more egregious

than that taken by Respondents — claiming that he

was required to do so by federal law, specifically,

“adhering to the holding in Ricci v. DeStefano, 530

F.3d 87 (2d Cir. 2008).” See Timothy Bottone, et al. v.

City of Bridgeport, et al., Civil Action No. 3:08 CV

01320 (JCH) (D. Conn.), Defendant City of Bridge-

port’s Objection to Plaintiffs’ Motion to Disqualify

Counsel, dated October 7, 2008, at 3.

The negative repercussions of the Second Circuit

decision have already extended beyond New Haven,

to a neighboring Connecticut city. These negative

repercussions must not spread any further and

continue to marginalize Connecticut’s important

merit-based civil service system. The present case

13

gives this Court the unique opportunity to act deci-

sively, thereby ensuring that those chosen to fill civil

service positions in all of Connecticut’s municipalities

are selected based solely on merit, as mandated by

Connecticut law.

Il. THE DISTRICT COURT IMPROPERLY RE-

LIED ON UNSWORN STATEMENTS MADE

IN NON-ADVERSARIAL PROCEEDINGS TO

DETERMINE THAT RESPONDENTS HAD A

GOOD FAITH DEFENSE UNDER TITLE VII.

Respondents primarily argued before the District

Court that their decision not to certify the examina-

tions was justified because it was based on a good

faith belief that to do so would violate Title VII. Ricci

v. DeStefano, 554 F.Supp.2d at 148 n. 4. The District

Court wholeheartedly agreed, as succinctly expressed

by the Second Circuit in its summary order adopting

the District Court opinion and affirming its judg-

ment: “Because the Board, in refusing to validate the

exams, was simply trying to fulfill its obligations

under Title VII when confronted with test results

that had a disproportionate racial impact, its actions

were protected.” Ricci v. DeStefano, 530 F.3d 87 (2d

Cir. 2008).

The determination that Respondents acted in

good faith was based largely on statements made in

five meetings before the New Haven Civil Service

Board (the “CSB”) between January and March 2004.

Indeed, the District Court cited in detail and relied on

14

what it referred to as testimony provided at these

“hearings” by a number of individuals, including

“expert witnesses.” Ricci v. DeStefano, 554 F.Supp.2d

at 145-150. Nevertheless, the proceedings before the

CSB were not formal adversarial hearings where

witnesses testified under oath, where any rules of

evidence were observed, or where cross-examination

of witnesses was permitted. As a result, the conclu-

sions of both the District Court and the Second Cir-

cuit finding that Respondents had a good faith

defense sufficient to deny Petitioners a trial on their

discrimination claims was based on nothing more

than unsworn, hearsay statements.

For example, the District Court apparently

valued unsworn and inherently unreliable statements

made by minority representatives, to justify Respon-

dents’ actions here. The District Court cited state-

ments made by Donald Day, a representative of the

Northeast Region of the International Association of

Black Professional Firefighters, who argued against

certification, claiming “there was something inher-

ently wrong with this test because minorities did not

score as highly [as they did on previous tests],” and

urging the CSB to speak with the director of the Civil

Service Commission in Bridgeport, Connecticut, “to

find out what Bridgeport is doing different [sic] than

New Haven as they have more diversity in their

firefighter ranks.” Ricci v. DeStefano, 554 F.Supp.2d

at 146 (citation and internal quotation marks omit-

ted). The District Court also cited statements of

Ronald Mackey, the Internal Affairs Officer for the

15

same organization, who proposed that New Haven

“adjust the test as Bridgeport had done, in order to

meet the criteria of having a certain amount of mi-

norities get elevated to the rank of Lieutenant and

Captain.” Jd. at 147 (citation and internal quotation

marks omitted).

Neither Mr. Day nor Mr. Mackey was identified

as an expert with specialized knowledge in the test-

ing field, and in fact, they provided no reasonable

bases for the conclusions that there was something

“inherently wrong” with the test or that it should be

“adjusted.” Their positions in a black firefighter

association indicate that these individuals clearly had

one agenda — to advance what they believed to be in

the best interests of black firefighters. Because their

statements were not made under oath and they were

not subject to the scrutiny of cross-examination, there

was no formal mechanism to challenge the accuracy

of their statements, their competency as “witnesses,”

or to expose any biases these men may have har-

bored.”

* It is ironic that Mr. Day and Mr. Mackey argued so

forcefully in 2004 that New Haven should follow Bridgeport’s

example, strongly implying that Bridgeport was doing things the

right way to promote diversity, but in 2008, the personnel

director for Bridgeport’s Civil Service Commission determined

that the Second Circuit’s holding in the present case required

him to re-weight and re-score a lieutenant’s examination to

elevate the positions of minority candidates.

16

To allow any party to prevail under these circum-

stances is highly problematic. However, the import of

the Second Circuit decision is of even greater concern

when one considers what is at stake in the present

case — individuals’ rights to equal protection under

the law, the public’s safety, and the vitality of Con-

necticut’s entire merit-based civil service system.

+

CONCLUSION

For all of the reasons set forth herein, the judg-

ment of the Second Circuit should be reversed.

Respectfully submitted,

STEWART I. EDELSTEIN

COHEN AND WOLF, P.C.

1115 Broad Street

Bridgeport, Connecticut 06604

(203) 368-0211

Attorney for Amicus Curiae

Bridgeport Firefighters for

Merit Employment, Inc.

February 26, 2009