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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2008

## Text

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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

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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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0221%3A16. Public record. Not legal advice.