Recently an investigation by the Minneapolis Department of Civil Rights found probable cause that the City Attorney’s screening process for internally promoting attorneys has a disparate impact on minorities and that the Human Resources Department may have “aided and abetted” that practice. The latter relates to the fact that HR largely designed an oral exam that the City Attorney relies on to evaluate attorneys who are seeking advancement.
Assistant City Attorney Julie Delgado-O’Neil filed the two complaints with the Civil Rights Department in 2006. Delgado-O’Neil, an 11-year veteran of the City Attorney’s criminal division who is of Mexican descent, contends that people of color, including herself, have been unfairly passed over for promotions as a result of their ethnicity. The charge is similar to the allegations of five black police officers who are suing the city and Police Chief Timothy Dolan and those of Sgt. Giovanni Veliz, a Latino who is also suing the city, and claims made about the Fire Department in 2006. Delgado-O’Neil notes that only one person of color is employed as a midlevel attorney. Most are entry-level attorneys.
Whether her complaints had any bearing on Mayor R.T. Rybak’s decision last year not to reappoint former City Attorney Jay Heffern to another term remains an open question, though that announcement came within two weeks of the first probable-cause finding in the Delgado-O’Neil case in September 2007. The other determination was released in June of this year. Heffern, who headed the department for 11 years, instituted the oral exam.
Delgado-O’Neil has also claimed that she has been retaliated against and harassed after being denied promotions, but the Civil Rights Department didn’t find probable cause for those charges. Currently the case is moving on to conciliation/mediation. If it can’t be resolved that way, Delgado-O’Neil says she will take the city to federal court. “I never wanted to take this route,” she says. “I hoped for changes, but they didn’t happen [under Heffern]. …I like my job. I’ll see this through to the end. It’s not just about me, but it’s about doing the right thing,” she said, adding, “Many of us minorities in the office are harmed by this.”
Deputy City Attorney Peter Ginder declined to comment on the civil rights findings, which he says is still an open case. Nor would he speak to the office’s much-grumbled-about oral exam. “I’m not going to discuss this matter with you,” said Ginder over the phone, “There is no issue.” In general, he says, the office is “very diverse.” Mayoral spokesman Jeremy Hanson and Human Resources Manager Pam French didn’t return the Minnesota Independent’s phone calls this week. (It should be noted that communications staffer Matthew Laible responded on French’s behalf.)
Additionally, when the Minnesota Independent put in a request on July 11 for MDCR’s determinations, city officials agreed to provide them after they were properly redacted. However, two weeks later, city officials said it was an open matter and therefore no further information could be provided, because of the state’s data practices laws. Some undisclosed insiders, including a civil rights commissioner, disagreed, saying that probable cause findings are to be posted publicly. (The Minnesota Independent obtained the documents through other means.)
Inside the City Attorney’s Office
The City Attorney’s Office employs 57 attorneys between its civil and criminal divisions. Assistant attorneys are ranked attorney I, attorney II or attorney III. Delgado-O’Neil has observed that all attorney II’s and III’s are all white, with the exception of one black male while the first attorney tier has a number of minority attorneys.
Delgado-O’Neil has tried unsuccessfully to move from attorney I to II, a step that would bring a salary nearly $26,000 higher, although, Delgado-O’Neil points out, the workload is nearly identical. The raise from attorney II to III is $6,000. To move up, attorneys take an oral exam that is used to rank candidates and fulfill the city’s “rule-of-three,” a formula that restricts the applicant pool and is currently under review for impeding the Police Department’s attempts to diversify its workforce.
One frequent complaint by attorneys about the oral exams, unearthed through MDCR’s interviews, is that the questions are too subjective. One question is: “How do you evaluate the breadth of your knowledge about you [sic] field?” Some attorneys believe that certain people were given preferential treatment, including special job-enhancing opportunities prior to exam time, which seem to indicate how scores will turn out, says Delgado-O’Neil.
The combined promotion rate for people of color when the oral exam was administered between 2001 and 2005 was 8.3 percent, according to the report. A person of color was promoted once out of 12 times, while Caucasians continued to advance at a much higher rate. Thus, “the City Attorney’s Office engaged in a practice that has a disparate impact on attorneys of color seeking promotion to the Attorney II position,” reads one MDCR investigation summary. “Respondent actively consults with the City Attorney’s Office and essentially plans and designs the interview process for Attorney II applicants. …Respondent assisted the employer — Office of the City Attorney — in the complained discriminatory practice.”
Delgado-O’Neil’s legal counsel, Jill Clark explains: “The idea is that the City Attorney’s Office probably couldn’t have done it itself. HR collaborated with the City Attorney.” She notes: “In any government agency, human resources has to be separate to implement policies and procedures… It has a watchdog function.” In this instance, however, “it set up the promotional system, candidates for ranking, hiring and firing,” she says.
The problem with the oral exam
Some attorneys have challenged the oral exam throughout several grievances in 2001 and 2003; the attorneys urged Heffern to evaluate people based on seniority and performance, arguing that it violated their labor agreement. “Nearly every Attorney I or Attorney II expressed dismay with the promotional process and the changes in the office atmosphere,” according to the report.The city attorney’s counter-argument to attorneys’ gripes is that the oral exam “is necessary to finding and promoting the best candidate and that it provides those involved in the hiring process the best information on which to judge the candidates,” while HR staffers claim that checks and balances are built into the process. But the MDCR investigator states that the city attorney’s defense is “seriously lacking as a justification for a practice that results in a demonstrable disparate impact on a group of employees,” the report states, underscoring the point that the main problem is that it’s unclear how attorneys I and II’s responsibilities differ.
Oral exams do appear among some of the city’s civil service jobs, though they are typically just one step in a more involved process. For example, the Police Department has a written exam plus a variety of exercises through an assessment center and lastly, an oral interview, explains Sgt. Bill Palmer, a police spokesman. Similarly, advancement in the Fire Department depends on experience, along with a written test, interview and possibly a hands-on test, according to city information.
So how does Minneapolis’ system compare with other municipalities? In St. Paul, city attorneys are advanced almost automatically to the next level after a certain number of years and if they’ve proven themselves, according to John Stechmann, president of its attorneys’ union’s collective bargaining association. HR does a job study to assess an employee’s performance. “No one who’s applied for the midlevel attorney position has been denied for as long as I’ve been here,” he says.
Jack Rhodes, chief of staff for the Ramsey County Attorney’s Office, explains that people move through the salary grades at certain points in time, assuming their performance has been good. Similarly, Dakota County attorneys are judged on job performance and seniority, according to County Attorney Jim Backstrom.
The price of discrimination
The Minneapolis City Attorney’s Office business plan emphasizes the need for bilingual staffers and other provisions to help those who have limited English skills, but nowhere does the word “diversity” appear, and the plan doesn’t include targets for minority inclusion inside the office. (Though Minnesota Law and Politics has featured the City Attorney’s Office for its diversity.) Minneapolis’ 1989 affirmative action plan states that goals should be set for minority inclusion in city departments.
Of the nearly $17 million paid out by the city of Minneapolis in legal disputes between 2003 and 2007, a small fraction — a total of $470,994 over the same period, or 2.7 percent — went to discrimination-related settlements.
Michael Friedman, executive director of the Legal Rights Center, says that any single test to measure someone’s performance is suspect. “Trial and negotiation skills, hard work, and preparedness are more important. I have a hard time believing that any test can capture that exclusively,” he says.
Local civil rights attorney Stephen Cooper, the former commissioner of the state’s Department of Human Rights, says that considering a law office’s constitutional and statutory responsibility, “It should have a greater understanding of fair process than other places do. Sometimes organizations that are less learned aren’t as likely to self-correct, but this is a government agency, and we hold it to a higher standard.” Defendants often argue they do things a certain way because they have to but in reality, “It’s arbitrary and they could’ve gotten the outcome a different way.” If seemingly few minorities hold leadership positions, then the promotional scheme has an adverse impact which “should cause immediate alarm,” he says.
David Shulman, a local civil rights attorney, agrees: “The makeup of lawyers should reflect the community it represent.” Further, “You should not have to take an oral exam to get a pay raise and more responsibility. … The practice of law is about learning as you go and promotions should be based on the quality of services. It’s not tested by an exam. It’s tested by the real world, how clients perceive you.”