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89-2147 � � � WHITE - CtTV CLERK z ///''''''��_!!!///�� ,��z��'��.��-ri PINK - FINANCE � COUACII �-� /��f CANARV - DEPARTMENT GITY OF AINT PAUL File NO• � /� / - BI.UE - MAVOR - . � , C , ncil esolution �5�� Presented By Referre To �-��`-`-�J Committee: Date �`� � 7 � �J Out of Committee By Date An Administrative R solution amending the Civil Service Rules conce ning Examination Procedu�s (Section 6). RESOLVED, that the Civil Servi ce Rules be amended in Section 6., Examination Procedures, so that Su section 6.D, Examination Scoring, shall read as follows: 6.D. All applicants whose e�ae�ege cores are less than 75 pe�een�-eerree� in the examination �e#er�-ee-e �a�e�e; e�-�n-sa�-�es�-e�-eee�se�#er� ja�#ek-#s-pe��-e€-��e-exe.ffi#a�� ea-��-ee and published in the official announcement, shall have fail d #a the examination, and their names shall not be disclosed. ` �o��-- COUNCIL MEMBERS � '� Requested by Department of: Yeas Nays �°-`�� D�mooa >a. 0 OF PE EL LABOR RELATIONS ��s ' � � In Favor Goswitz �. Rettman J! � � - �/ - scheibe� '` Against Sonnen VV'ilson j . r� Form App oved y Attorney Adopted by Council: Date . Certified Passed by Council Secretary BY gy. A►pproved by Mavor: Date _ Approved y Ma or for ission to Council By �' � . Ms� �,��y,�r�� DEPARTMENT/OFFlCE/OOUNdL DATE INITIA D Personnel & Labor Relations 11-13 89 GREEN SHEET NO. 9 71 CONTACT PER30N 8 PHONE INITWJ DATE INff1AUDATE DEPARTNENT DIRECTOR �CITV OOUNpL Dave Kigin 298,4221 � ��, ��,�� MUST BE ON COUNpL A(�ENDA BY(DAT� ROUTNrQ BUDOET OIRECTOR �FIN.8 MOT.�RVICE8 DIR. �MAYOR(OR A8618TMIT) � TOTAL#�OF SIGNATURE PA(iES (CLIP ALL OCATIONS FOR SKiNATUR� ACT10N REOUESTED: f�;OV i 7 1989 Change in Civil Service Rule Section 6 / Subsection 6.D �r° ..e,�. RECOMMENDATIONB:Apprrnre(ly a RejeCt(R) COUNGL I�PORT OPTIONAL _PL.ANNING COMM{8310N _CIVIL SERVICE(�MM18810N ��Y� PNONE NO. _qB COAAMITTEE _ ''�:+ ; i _STAFF _ OOMMENTB:' ' ' . " . —asrRicrcouRr — ��; ,y��;,;?'� t?�=F�CE suPPORrs v�n+icw ca,Na�oe,�crvE� RECEIVED INITIATINO PF�BLEM,188UE,OPPORTUNITY(Who,What.Whsn,Where,Why): NOV2 91�9 See Attached.. �;I I Y CLtKK ADVANTAOES IF APPROVED: See Attached DISADVANTAOES IF APPROVED: See Attached DISADVANTAf�E8 IF NOT APPROVED: See. Attached �ounc�i kesea�cn Center. NOV 271�� TOTAL AMOUNT OF TRANSACTION -� T/REVENUE BUDQETED(CIRCLE ON� YES NO FUNDINO SOURCE CTIVITY NUMBER Flwwan�iNr-oAtiumoN:�exwuN> �� G�� i�� " CITY OF AINT PAUL � 'FFI�•'-��(i.�l�. OFFICE OF T CITY COUNCIL JANICE RETTMAN Members: JOECOLLINS Councilperson Janice Rettman, Q�lativeAssistant Roger Goswitz KATHYZIEMAN Paul a Maccabee Legislative Assistant COMMI E REPORT FINANCE, MANAGEMENT, ND PERSONNEL COMMITTEE MARC 18, 7991 1. Call to order; introduction of ine ers, staff, guests; announcement of si n-u sheet• a roval of minutes of March 4 1991 meetin . Minutes were approved 3-0 2. Polic discussion on ca in the h url rate aid to outside counsel . Motion for suspension of rules to ccept resolution carried 3-0. New Resolution was approved 3-0. he resolution will be placed on a City Council agenda and will be laid ov r at the Council meeting until notification has been received fro Ken Peterson and the Mayor's Office regarding employees and the bargaining units. (see attached) 3. Resolution 90-341 - amending the 1 90 budget by transferring $29,078 from contingency to Community Services or Child Care Initiative Program. Referred from Council 3 6 90 lai over in Committee 6 11 90 Committee recommended withdrawal . Resolution 90-771 - amending the 1 90 budget by adding $109,770.37 to the Financing and Spending Plans to al ow Public Works Sewer Maintenance Division to purchase equipment. ( eferred from Council 5/8/90, laid over in Committee 7 9 90 Corronittee recommended withdrawal . Resolution 89-2147 - amending the ivil Service Rules concerning Examination Procedures. (Referred from Council 12/7/89, laid over in Committe 3 19 90 and 4 16 90 Comnittee reconmended withdrawal . CITY HALL ROOM NO.718 SAIN PAUL, MINNESOTA 55102 612/298-5289 s aa Printed on Rc Wed Paper ' , ��'1v?��% • • � � � ' CITY OF S INT PAUL � �;``t�°•� PERSONNEL OFFICE + ��i�n e RAFAEL A.VISCASILLAS, PERSONNEL DIRECTOR • � 265 City Hall,Saint Paul,Minnesota 55102 +... 612-298-4221 GEORCE LATIMER M11YOR CUTOFF SCORE SOLUTION INITIATING PROBLEM. ISSUE. OPPORTUNITY• A large part of determining legality, va idity, and fairness in a selection process is the determination o the cutoff score. It is the cutoff score which determines whether ca didates pass or fail an examination. To be used effectively, a c toff score should be set at the point at which we can predict who wi 1 be successful or unsuccessful City of Saint Paul employee . In January, 1986 the City Council adopte a resolution stating: All applicants whose average scores re less than 75 percent correct in the examination taken as whole, or in any test or evaluation which is part of the exam nation if so published in the official announcement, shall have fa led in the examination, and their names shall not be disclosed. ?'his resolution in effect states that a a plicant must correctly answer 75$ of all testing material presented or ail. The Uniform Guidelines on Employee Select'on (1978) present the following principle regarding cutoff scor . Where cutoff scores are used, they sh uld normally be set so as to be reasonable and consistent with no al expectations of acceptable proficiency in the workfor e. (Section 5-H) In addition, the United States Civil Servi e Commission recommends the following when establishing cutoff scores. A cutting score should neither be sel cted arbitrarily nor without proper �ustification, nor should a ce ain percentage of correct answers, e.g. , 70$, be selected , beca se such a value has historically been chosen or sounds app opriate. (1977) From a professional and legal standpoint, t e Personnel Office has no �ustification for setting the cutoff score t 75$ for all examinations. The 75$ cutoff score is not based on empiri al nor rationale justifications. A 75� set cutoff point does not assure that candidates who pass are qualified to perform the job a this cutoff score is not based on the job qualifications. , � , � . . . . �-�,a�� ADVANTAGES IF APPROVED: A legally and professionally defensible selection process. DISADVANTAGE IF NOT APPROVED: Continuation of a selection process whi h is contrary to both the Equal Opportunity Employment Commission guide ines and professional standards. Attachments: 1. Letter from Dr. Richard Arvey. 2. Letter from Harry Brull. �. Letter from Dr. Loring W. McAllister 4. Terry Sullivan's professional advice to Council. 5. Copy of EEOC Guidelines (Section 5-H) , - � � � � �� UNIVERSITY OF MINNESOTA ��dustrial Re�ations Center A 11K189 ITIES 537 Management and Economics Building � 19 271 19th Avenue South Minneapolis, Minnesota 55455 Mr. Dave Kigin Personnel Department Room 265 City Hall St. Paul, Minnesota 55102 Dear Mr. Kigin: ]�C�i.i c`t53i�t1 t:�lct'�. i iiiitji'I'� C:�iiuu�i'1't ii :;i� a�r,i�N�:.��.`�ZacSu O� c�r.i.��'1Siy the rule where applicants must chieve a 75� score in order to pass your exams during the sele tion process. This procedure is not unlike traditional civil se ice procedures and has a historical link. However, the state of the art r garding personnel selection, psychometric procedures, and te t development strongly argues that this kind of rule or stand rd is simply inappropriate. Let me comment about several dy functional aspects of this kind of rule: 1. It is simply too rigid. Per onnel departments need more flexibility in order to adjust heir cut scores according with the supply and demand of applic nts. Selection specialists will argue that when there are only few number of job openings and a large number of applicants, hig er cut scores are legitimate and utilitarian. Using a rigid rul (i.e. , requiring that applicants must pass 75 percent of the exa ) for a pass/fail basis reduces the flexibility needed to respo the supply and demand elements of the particular situation. 2 . This standard disregards the eality that tests will differ in terms of their difficulty level. Some tests will be relatively hard, others more easy. The sev nty five percent rule now in effect refers to the percentage f items passed, rather than the proportion of individuals scorin at different levels. Thus, using the current rule can resul in all applicants passing or no applicants passing. If the effor is to provide a method of providing distinctions among app icants in order to make hiring decisions, the current p.ro.cedure diminishes this objective. 3 . This standard implies that t ere is some magical fixed point for each test (in this case, the 75 percent level) which clearly separates those who can do the j b from those unqualified. However, modern test theory make assumptions which are generally (but not always) norm based in t e sense that the cut off scores and decisions made are typically developed using the distribution of applicant test scores, rather than a fixed standard. � � . . � �-�?/�7 r � 4. The use of a fixed rule or tandard for all tests implies that all tests have th same psychometric properties. This clearly is not factual. ests differ in terms of their reliabilities, difficulty leve s, validities, and so forth. I hope this provides some clarification. As you might surmise, I am not terribly fond of this ki d of fixed standard rule and believe that it is not particul rly sound from a technical perspective. Let me know if yo need additional information or comments. Cordially, �� . Richard D. A�y Professor of Industrial Relatio s . , . � � , . ��r°�i�7 .• - PERSONNEL DECISIONS, INC. PERSONNEL DECISIONS, INC. 2000 Plaza VII Tower � 1500 North Central Life Tower 4.5 South Seventh Street 445 Minnesota Street Minneapolis, Minnesota 55402-1608 St. Paul, Minnesota 55101-2131 612/339-0927 612/292-1262 MEMORANDUM TO: St.Paul City Council Members FROM: Harry Brull,Vice President,Pu lic Sector Services RE: Personnel Selection Pass Point ocedures DATE: 5 April 1989 I am writing at the request of the Personnel partment to strongly support the use of flexibility in setting pass points for employee selection d promotion to Ciry positions. I believe there are strong legal,practical,and psychometric ounds for doing so. The current procedure, which culls for a "75 percent" passing score or all procedures,conceivably hampers the personuel selection process and leaves We Ci y open to challenge. To my mind, the most compelling reason ag nst a fiaed(75 percent)pass point for all procedures is the charge of being "arbitrary d capricious." The courts,both state and federal, have consistently ruled against procedures fo which there is no sound rationale other than accepted practice or tradition. Such a fixed p ss point dces not take into account such critical factors as We difficulty of the examination,th type of eaamination proc:edure,or the minimum amouirt of knowledge, skills,or abilities nece ary for successful job performance. The requirement of validity extends beyond the ex ination content itself and includes such critical decisions as pass points. For this reason alon I strongly suggest that the Personnel Department consider each eaamination and se an appropriate pass point based upon a defensible rationale. You also may not be aware that we are current y involved in intensive training of Personnel Depariment members in the science of personn 1 selection. This training includes legal, practical,and psychometric considerations inv ved in the design,administration,aud use of test scores. Additionally, the use of a fixed pass point repr ents a rather archaic decision which was originally formulated to deal with the most pr' itive form of testing; i.e.,written, multiple-choice examinations. It fails to take in o account innovalions in testing methodology which do not lend themselves well to such a pa s point. The City of St. Paul has become a state-and nationwide leader in the use of innov tive testing procedures such as assessment centers,Accomplishment Record Indices,and ot er "state-of-the-art" personnel selection devices. These devices,in particular,require cl se scrutiny regarding the setting of pass points. Finally, the use of a fixed pass point can cause a inistrative night�nares. For example, a relatively easy examinatiou might result in the p ssing of far too many individuals requiring tremendous cost for subsequent procedures. Cuu ersely,a particularly difficult examination may not pass suff'icient numbers to meet hiring r quirements. The fixed pass point also discourages creativity and innavation because it i virtually impossible to predict,for a new examination,the examination's degree of difficul . . , � . ' , ,�� -�5��1 . �,. . �-. r , St. Paul City Cowicil Members S April 1989 Page Two In summary,I urge you to allow judgmen And flexibility on die pazt of pass-point setting. Your Personnel Department is staffed wit highly competent professionals who will undoubtedly serve the City's needs better they are permitted this professional judgment. ff I can be of further assistance in any wa please let me know. HB/hu cc: Rafael Viscasillas,Personnel Director � MARTIN-�McALL�STER � '��`°� �� CONSULT/NG PSYCHOl.OG/STS,/NC. 4428 IDS CEIVTER 11�INNEAPOLIS,MN 55402 ' (612)33&t#61 James F.Mariin,Ed.D. Lorinp,W.McAllister,Ph.D. P.William Kirkpatrick,Ph.D. Jean M.Kummerow,Ph.D. Peter 1..Flint,Ph.D. Dwight Moore,Ph.D. William L.Madsen,Ph.D. Nicki L.Davidson,Ph.D. Penny George,M.A. April 10, 1989 Mr. David Kigin Personnel Office City of St. Paul Room 265, City Hall St. Paul, I�I 55102 Dear Mr. Kigin: In our recent telephone conv rsation you mentioned a civil service rule which applies t graded tests and which requires that the ��pass poin " for all such tests be set at 75� of correct answers on th test. You asked me to respond to this requirement rom the standpoint of its appropriateness in terms of ommonly accepted standards in testing and measurement. I would state, first of all, that the process of establishing specific cuttin scores on tests is a very complicated one and, further that any attempt to apply a single method, approach or le as an overall requirement is inappropriate because suc an approach fails to take into consideration the speci ic tests involved and the populations on which they ar used. Testing and measurement standards requir that there be a rationale or justification for the establ shment of cutting scores which is specif3.c to the particula test used, its purposes and the populations being tested This is because the validity of tests scored in such a ma er is predictably going to be different at different cutti g Bcore points. Furthermore, the practice of using "percentage correct" as a means of establishing cutt ng scores is highly questionable unless the diff culty level of the test items • , � . � . , , . �G�'ai�7 � , 2 has been very precisely dete ined. For example, the application of a "seventy fi e percent correct" criterion to a very difficult test cou d lead to the failure of all who take it, while the same riterion applied to an easier test miqht lead to everyone assing. It iB further very possible that neither of the e outcomes is a valid prediction of potential succ ss on the job under consideration. In addition, this clearly arbitrary approach (regardless of the ood intentions involved) may well produce results which h ve a disparate impact on protected classes and leave e city open to challenges against which it would be ve difficult to defend, precisely because there is n rationale which is specific to the particular test being used. I believe those familiar wit testing and measurement standards would, therefore, trongly advise against the use of this approach, and would nstead recommend that the process of making decisions egarding job applicants based on test results remain flexi le and be specifically related to the tests used and the po ulations being considered. This could well eventuate in the establishment of cutting scores on various tests but hose score points will predictably be different on ifferent tests and would have the advantage of a defensibl rationale and more solid validity which is what the w ole process is about anyway. I hope these comments are us ful. If I can be of further assistance, please do not he itate to contact me. Sincerely yours, . � y/� /�f g4%w`l Loring W. McAlliBter, Ph,D. Consulting Psychologist LWM/dd _,; ��•� �:;. . _; CITY OF SAINT PAUL - ^' � :,, OFFICE OF THE CITY ATTORNEY =. .. �, -e , � • � iiiijiiijii : -- . . -� EDINARD P. STARR. CITY ATTORNEI .. '�•• � : 647 C�t� Hall. S��m Paul. hlinnesota 5510. ; � -- 612•?98-51? c,EC)RC,I I ^I I�tl ft /, 11•�1()k nj—�-�a/'Y'� t�� I�ovember 23, 1987 Council fdember Kiki Sonnen Room 722 City Hall �:��r• Council l�lember Sonnen: 1:t. +_n� Uctober 28 , 1987 City Council meEting there was discussion r.or�cerning the City ' s admi istering and scoring examinations f��r� vacancies in the City o Saint Paul . As a result of this c3i �:russion, you had a spe ific question that you addressed ±.0 011:" office by way of a req est for a legal opinion. Yo�� requested a lega]. opini n or whether it is legal for the City of Saint Paul to arbitr rily set a pass point on an exami- nation after the examination ' s given. I shall discuss a general bo y of law which serves as tr,e basis ior my ansv�er to this quest on and shall then respond directly to th� question. S!-r_tion 12. 01 of the Saint P�ul City Charter establishes a merit system for positions i the City of Saint Paul . It also provides that all personne practices shall be implemented consisten� with the princip e t:ze recruitment, selection and advancement of employees shal be on the basis of their relative knowledge , skills , abilities and competence for the position for vahich they are applying. Section 12.06 of the City Charter requires that Civil Service R les and Amendments shall be estab- lished and that they shall deal with all matters necessary to the administration of the Cit�,� Personnel system on a merit basis . It is these Civil ervice Rules which set forth the manner by which examinations arc� given for : employment within the classified positions of th City of Saint Paul . The method by which applicants are judged on the basis of their relative knowledge, skills, abilities and competence is by competitive examination. his requirement for competitive , . . . ��'a'�7 ' Council Member Kiki Sonnen Page Two ldovember 23, 1987 examination is generally acc pted on a nationwide basis. An examination to be competiti e within the meaning of such a provision , must� be given und r an objective standard of grading and it must conform to meas res or standards which are suffic- iently objective of being capa le of being challenged and reviewed ti,hen necessary, by other exa iners of equal ability and Experi- ence. 15 Am. Jur. 2d Civi Service § 41 . Cowen v. Reavy, 283 Pd.Y. 232, 28 N.E. 2d 39 . State ex rel . Kos v. Adamson, 226 Minn. 177 , 32 N.W. 2d 281 1948) . Generally speaking, the City or the Commission m y exercise a reasonable discretion as to the nature and scope of the examination, as to the grading of the answers, as to the credits allowable for effi.ciency and seniority, making or kee ing a proper record of the exami- nation, and as to the pro edure for reviewing the results. Volur��c� 3 , P�1cQuillan Municipa Corporation, § 12.78C ( 3rd Ed. ) . Gener�,lly , the City ' s discr tion in the matter of preparing and grading examinations wil not be disturbed in the absence of s:-�owing of illegality, bad faith or arbitrary conduct. Smit.h v. Troyan, 520 F.2d 492 (Ct. of Appeals 6th Dist . ) . Therc:fore , the Commission or he City is free to use any L-esting processes that are reasonab e under a competitive bas:is and to c5tablish the manner of gra ing that they think is appropriate. In fact , it has been held t at a city is free to decide that it ��unts its police officers to have more than minimal qtialifi- catior,s , and that it may ther fore properly prepare a promc�tional . er.ar,�i nat i on requi ring succes ful candidates for promot:_on to score abovE the national av rage of such tests. Bricigeport Gu�rd:ans v. Brid e ort Pol ' ce De artment , 431 F.Supp. 931 (.�Dist. Ct . Conn. ) . In fact , t is ruling applied under a ch�llenge of discrimination under Titl VII of the Civil Rights Act of 1964. The various bodies of law, either case law or secondary author- ities , present these general guidelines. If the City o��erates under a merit system, appoint ents must be made on a competitive basis. It is up to the Cit or the Civil Service Commission, depending upon where the auth rity rests, to provide such exami- nations. Generally speaking, they r:ill have an open hand on the types of examinations t at they give and � the manner by which they grade these exa inations. The: only requirement is that the examinations be f an objective nature. The City is. not required to provide a test which sets a threshold which the employees must pass to e able to do the job. Rather, the purpose of the testing pr cess is to compare each applicant by their own ability. If t is is done, the City as a matter of convenience, can determi e how many applicants it wants . . . . . �-�a,�� ' Council Member Kiki Sonnen Page Three ; , November 23, 1987 for each paY`ticular job. The c urts will not disturb the City' s or Commission' s actions unless hey are shown to be unreasonable , arbitrary or capricious. Th above are general guidelines that apply to our testing and sc ring policies. However , in those cases where claims or discrimination or dis- parate impact effect are in olved, these guidelines become more cornplicated. The courts no longer use the "unreasonable, arbitrary and capriciaus rule" but rather will give a "strict scrutiny" to the process that ' s alleged to serve as the basis for the discrimination. A p aintiff may prove discrimination by showing that a facially eutral employment practice has a significant disparate impact on a protected class. Dothard v. Kaarlinson, 433 U.S. 321 , 9 S.Ct. 2720, L.Ed. ( 1'?�7 ) . 'To prove discriminat on the plaintiff must also show that a defendant acted with a discriminatory purpose. General Buildin Contractors Associat ' on v. Penns lvania, 458 U.S. 375 , 102 S.Ct. 3141 , L Ed. (1982) . However, an inferencc of discriminatory pur ose may arise from the historical background or from statistic showing the disparate impact of an employment action. A lin ton Hei hts v. Metro olitan Housin Develo ment Cor oratio , 429 U.S. 252, 97 S.Ct. 555, ' L.Ed. ( 1977 ) . St tistical evidence alone may show discriminatory purpos� if th re is a disparate � impact from a challenged action which i "unexplainable on the -grounds oi.�;er thun race" . Arlin ton Hei hts v. Metro olitan Housin Development Corp. (supra ) . T is statistical evidence may also show discrimination if it is o gross as to compel an inference of discrimination. Hazelwood School District v. United States , 433 U.S. 299, 97 S.Ct. 2736 , L.Ed. (1977) . Further, in evaluating the degi^ee of di parity courts consider the oppor- tunity of the employer to di criminate , that is, whether the challenged action was discr tionary and whether members of the disadvantaged gro��p were identifiable when the action was taken. Castaneda v. Partid , 430 U.S. 482, 97 S.Ct. 1272, L.Ed. 1977 � Obviously, in cases involvin charges of discriminatiori the City may be burdened with dditional duties. These duties would increase with each gr ater degree of� disparate impact. These duties, of course, ma vary widely depending upon the facts in each particular case. If a plaintiff cannot establish a prima facie case of discri ination, then the City would not face a great need to expla'n the validity of their testing or scoring policies. However if the plaintiff could establish a prima facie case of discri ination� either by specific facts . � � � � ��a�� . Council Member Sonnen �, � Page �'our November 23 , 1987 or by statistical evidence , th City is then placed in a position whereby it must explain and validate its testing and scoring procedures. IF the statist 'cal figures showing a disparate impact are great , the City must prove that its actions are valid and related to the vario s positions in question. � With these basic guidelines in ind, we shall address the specific question. You request a leg 1 opinion on whether it is leCtal for the Ci ty of Saint Pau� to arbitrari l-�L set 3- -pas.s. p°;nt on examinat,ion after tt� e.� ion . is givei�_. On its race, using the guidelines set fo th dy the vari�us courts, such action is neutral and acceptabl . The courts , generally speaking, would not overrule such an act ' on and would cor.sider it a proper form of selection for City posi ions. However , if such a process resu] tcd in a disparate impac upon protected class apnlicants for these positions , the co rt would then adopt a "stricL scrutiny" review of any clai s or charges. Such a disparate impact v�ould most likely creat a prima facie case of discrimi- � nation and the City would th n have to prove that its actions were not based upon discrimina ory motives. G�nerally speaking, in such cases it would be 'ncumbent upon the City to prove that their actions were val d and related to the positions in question. If we could no do so, the court may rule that the City was discriminatory by uch actions . One of the things that the ourt would look at would be the City' s ability to discrimina e under the facts. Certainly, there is great argument that the City stands in a very good position to discriminate once it knows how everybody has done on the examination. If the City were to arbitrarily set a pass point after an examinati n is given, and if as a result of this action there was a disparate impact upon protected classes , the City would most likely have t� present a very clear indication that such tion was valid and related to the positions in question. Therefore, as simply as can e stated, such an action by the City cold not be challenged unl ss there was a claim of discrimi= nation. In those cases where such claim is made and a prima facie case of discrimination proven, it would be incumbent upon the City to show the vali 'ty of its actions of establishing an arbitrary pass point after th examination was given. As you can see from the abov paragraphs, the answer to your request for a legal opinion dep nd upon the facts in each partic- ular case. The governmental actions cited as the basis in each request are proper and egal on their face. However, � "�� `� � � CITY OF SAINT PAUI .�`f 1 f f p.�•.:, + L ~• �� '.... _; ,'. OFFICE OF THE CITY ATfORNEI � ' '� 'niuuui ,. �� "��110�� ' EDWARD P. STARR, CITY ATTORNE' _ . , '••' 64'City HaIL Sa�nt Paui. Minneso�a 551C " 612-298-51_ GEORGE LATIMER /f��7 v1A1 OR G� November 23, 1987 Council Member William Wilson Room 718 City Hall Dear Council Member Wilson: At �he October 28 , 1987 City Co ncil meeting there was dis��ussion concerning the City' s adminis ering and scoring exami�zatior.s for vacancies in the City of aint Paul . As a result c�f this ' discussion, you had a specif ' c question that you addressed to o��r office by way of a reques for a legal opinion. You requested a City Attorney opinion discussing the l�:gality of the Council ' s establishment of the 75% or any other :�assing score without a recitation o a reasonable basis for doing so. I shall discuss a general body of law which serves as th�s basis for r,�y answer �o this questio and shall then respond directly to the question. Section 12.01 of the Saint aul City Charter establishes a merit system for positions in he City of Saint Paul . ::t also provides that all personnel prac}tices shall be impl�mented consistent with the principle th� recruitment, selection and advar�cement of employeees shall e on the basis of their relat�ive knowledge, skills , abilities nd competence for the p�sition for which they are applying. ection 12.06 of the City :;harter reqiiires that Civil Service �Rul s and Amendments shall be sstabl- . lished and that they shall eal with all : matters ne�essary to the administration of the ity Personnel system on �: merit basis . It is these Civil Se vice Rules which set for•th the manner by which examination5 are given for employment within the classified positions of the ity of Saint Paul . ,, . ' � � � �-:�l-o?i�f7. ' Council Member Wilson Page Two ' November 23, 1987 � . The method by which applic nts are judged on the basis of their relative knowledge, skill , abilities and competence is by competitive examination. This requirement for competitive examination is generatly ccepted on a nationwide basis. An examination to be compet' tive within the meaning of such a provision, must be given u der an objective standard of grading and it must conform to me sures or standards which are suffic- iently objective of being c able of being challenged and reviewed when necessary, by otlzer e aminers of equal ability and exper- ience. 15 Am. Jur. 2d C vil Service § 41 . Cowen v. Reavy, 283 N.Y. 232, 28 N.E. 2d 90. State ex rel Kos v. Adamson, 226 Minn. 177 , 32 N.in�. 2d 81 (1948) . Generally speaking, the City or the Commission m y exercise a reasonable discretion as to the nature and scope f the examination, as to the grading of the answers , as to t e credits allowable for efficiency and seniority, making or k eping a proper record of the exami- nation, and as to the p ocedure for reviewing the results . Volume 3 , McQuillan M��nici al Corporation, § 12. 78C (3rd Ed. ) . Generally, the City' " dis retion in � the matter of preparing and grading examinatic�ns w 11 not be disturbed in the absence of showing of illegality, bad faith or arbitrary conduct. Smith v. Troyan, 52C+ F.2 492 (Ct. of Appeals 6th Dist. ) . . Therefore , the Commission o the City is free to use any testing processes that are reason ble under a competitive basis and to establish the manner� of g ading that they think is appropriate. In fact, it has been held that a city is free to decide that it wants its police o�ficer to have more than minimal qualifi- cations , and that it may th refore properly prepare a promotional examination requiring succ ssful candidates for promotion to score above the nati��nal verage of such tests. Bridgeport Guardians v. Prid eport P lice De artment , 431 F.Supp. 931 (Dist. Ct. Conn. ) . In fact, this ruling applied under a challenge of discrimination undE�r Ti le VII of the Civil Rights Act of 1964. The various bodies of law, ither case law or secondary author- ities , present these ��enera guidelines. I£ the Cityr operates ' under a merit system, appoin ments must be made on a competitive basis. It is up to the C ' ty or the Civil Service Commission, depending upon where the uthority rests, to pro vide such examinations. Generally sp aking, they will have an open hand on the types of examinati ns that they give and the manner by which they grade these xaminations. The only requirement is that the examinations be of an objective nature. The City is not required to provide test which sets a threshold which .:. �. . ' � - � , . � ' ��a�y� Cour�cil Member Wilson � � Page Three November 23, 1987 � the employees must pass to e able to do t;he job. Rather, the purpose of . the testing pr cess is to com�are each applicant by their own ability. If th' s is done, the City as a matter of convenience , can determin how many applicants it wants for each particular job. The ourts will not disturb the City' s or Commission' s actions unless they are shown to be unreasonable, arbitrary or capricic�us . T e above are ��eneral guidelines that apply to our testing and s oring policies. However, in those cases where claims of discrimination or dis- parate impact effect are i volved, these guidelines become more complicated. The courts no longer use the "unreasonable, arbitrary and capricious rule ' , but rather will give a "strict - scrutiny" to the process that is alleged to serve as the basis for the discrimination. A laintiff may prove discrimination by showing that a facially neutral employrlent practice has a significant disparate impac on a protected class . Dothard • v. Rawlinson, 433 U. S. 321 , 97 S .Ct. 2720 , L.Ed. (1977 ) . To prove discrimina ion the plaintiff must also show that a defendant acted with discriminatory purpose . General Buildin Contractors Associa ion v. Penns lvania, 458 U.S . 375, 102 S.Ct. 3141 , .Ed. (19F32) . However, an inference of discriminatory pu pose may arise i'rcm the historical background or from statisti s showing the disparate impact of an employment action. rlin ton Hei hts v. Metropolitan Housin Develo ment Cor orati n, 429 U. S. 2�i2, 97 S .Ct. 555, L.Ed. (1977 ) . S atistical eviderice alone may show discriminatory purpose if th re is a disp�irate impact from a challenged action which i "unexplainablE� on the grounds other than race" . Arlin ton Hei hts v. Metropolitan Housing Development' Corp. (supra) . T2is statistical evidence may also show discriminat�on if it is o gross as to compel an inference of discrimination. Hazelwood School District v. United States , 433 U.S . 299 , 97 S.Ct. 2736, L.Ed. (1977) . Further, in evaluating the degree of di parity courts consider the oppor- tunity of the employer to di criminate, that; is, whether the challenged action was •discre ionary and wr�ether membzrs of the disadvantaged group were identifiable wh»�n the action was ' taken. Castaneda v. Partida 430 U.S . 48�:, 97 S.Ct. 1272, � L.Ed. (1977) . Obviously, in cases involvin charges of ciiscrimination the City may be burdened with ditional duties. These duties would increase with each gre ter degree of disparate impact. These duties , of course , may vary widely depending upon the facts in each particular case. If a plaintiff cannot establish � " a prima facie case of discrim'nation, then the City would not , i.. � , . /�►/� �j`�1'�/ ��- � Council Member Wilson � Page Four � November 23, 1987 face a grea� need to ex lain the validity of their testing or scoring policies . Howe er, if the plaintiff could establish � a prima f�►cie case of dis rimination, either by specific facts �r by statistical evidence, the City is then placed in a position whereby it must explain a d validate its testing and scoring procedures . If the stat ' stical figures showing a disparate impact arE great, the Ci y must prove that its actions are valid and r•elated to the va ious positions in question. You requested a City Att rney opinion asking whether or not it is leg�31 for the Coun il to establish a 75% or any other passing score without a r citation of a reasonable basis for doing so. On its face, t is action would be legal . The City � may elect to set a passin point at whatever level it chooses as long as such action ffects all applicaants in an equal manner. However , in this case , if the result is such as to show a di:�parate impact u on protected classes , the City may well find itself in a posi ion of having to prove the validity of its actions . Such proo would, of course, involve questions of fact , t>ut more than lik ly would require that the City show that both the testing pr cess and the passing grade process were valid and rationally re ated to the selection process. As you ca� see from the bove paragraphs, the answer to your � request fc>r a legal opini n depends upon the facts in each particular case. The gov rnmental actions cited as the basis in each re�quest are proper and legal on their face. However, if the facts in each partic lar case show signs of discrimination or dispara��e impact, the Ci y would then be compelled to validate their actions and it is p ssible that such actions could then be ruled i:_legal . ' Re ectful:� u itted, P. :3TA � Attorr�ey . ' , � �.l,a��. , . TEF�R SULLIVAN Assistant (;ity Attorney EPS : TS :cg cc : Mayor Council Members Rafael Viscasillas ' ". , ' - /f��-�/C�`� . Counci 1 �9ember Sonnen ��~r Page Five � _ November 23, 1967 if the facts' ��in each particul r case show signs of discrimination or dispara�e impact, the City would then be compelled to validate their actions and it is pos ible that such actions could then be rul d illegal . Re p ctfull itted, vJ P. AR C ' Attorney � '�''� ��.-x�-- T::RRY` SULLIVAI•] Assistant ��ity Attorney F.PS :TS :Cg cc : I�layor Latimer Council ��lembers Rafael Viscasillas