March 21, 2011 Regular Meeting

0075-11-8

Review of request for approval of proposed personal services contracts. 
(Item No. 7)

PSC#

Department

Amount

Type of Service

Type of Approval

Duration

4086-10/11

Art Commission

$500,000

Fine Art handling services for artworks in the collection of the City and County of San Francisco, including transportation, packing, storing of fine art; de-installation of artworks including those of monumental scale, design and fabrication of pedestals and cases. Scope includes major installations of monumental work at S.F.InternationalAirport and de-installation and transport of 15 ton Zhang Huan Sculpture from CivicCenterPlaza for return to China.

Regular

01/01/13

4087-10/11

Mayor’s Office of Housing

$300,000

The Mayor's Office of Housing (MOH) is seeking to establish a pool of qualified financial advisors to advise the City on all pertinent issues relating to particular financings and ensure that the City's transactions meet all applicable standards of competence and fiscal prudence, while adhering to program requirements and affordable housing objectives. The financial advisors will: provide advisory services for competitive sales, negotiated sales and private placements of various bond types; provide financial advisory services for structuring the City's affordable housing programs; and, provide advisory services for structuring of particularly complex development proposals.

Regular

03/31/14

4088-10/11

Mayor’s Office of Housing

$300,000

Vendor will provide comprehensive laboratory testing and analysis of potential in-home lead hazards from dust swipes, paint chips, and soil samples. Analysis and results of samplings will be reported to MOH. Laboratories must be recognized by the U.S. Environmental Protection Agency as participating in the National Lead Laboratory Accreditation Program (NLLAP).

Regular

11/30/15

4089-10/11

Postpone to meeting of 4/4/11

Municipal Transportation Agency

$100,000

The consultant will assist the agency during upcoming labor negotiations and will communicate with the media on the agency's behalf. Participate in the negotiations as an observer and inform the media and other regulatory entities on the progress of labor negotiations.

Regular

07/31/11

4090-10/11

Withdrawn

Municipal Transportation Agency

$250,000

The real estate advisors or consultants will provide commercial real estate services and any other related

services to produce a financially sound and cost-effective real estate analysis, study, plan, and other work product as requested by the SFMTA. The real estate advisor or consultant will provide qualified personnel for services which may include, but are not limited to, the following: 1) Commercial Retail Space Leasing Market Analysis; 2) Portfolio Analysis, Planning, and Strategy Recommendations; and 3) Other Requested Advisory Services.

Regular

06/30/13

4091-10/11

Police

$750,000

Contractor will provide outpatient mental health services to Police Department members and their families.  These services will entail 8 visits per family member per fiscal year and be available throughout the United States. The professional panel provided by the Contractor will include individuals that have been recruited, selected and trained by the Behavioral Science Unit of the San Francisco Police Department.

Regular

06/30/15

4092-10/11

Postpone to meeting of 4/18/11

Public Utilities Commission

$1,500,000

Licensing fees, software upgrade and technical support service for Distributed Control System (DCS) system for Wastewater Enterprise (WWE).

Regular

06/30/16

4093-10/11

Public Works

$6,700,000

Two contracts will be awarded to furnish construction management support services to City staff to address

specialized expertise and temporary peak workloads for pre-construction and construction phase services for cost estimating, construction scheduling, constructability review, construction administration, construction inspections services, LEED/sustainable building construction management, and existing building forensic investigations for projects of the Earthquake Safety and Emergency Response (ESER) Bond Program, including the Public Safety Building, selected neighborhood fire stations, and selected projects of the Auxiliary Water Supply System.

Regular

01/01/17

4094-10/11

Treasurer/Tax Collector

$100,000

A consultant will be engaged to assist the Treasurer-Tax Collector in implementing a Request for Proposals process for banking services that will result in a contract for bank services for the City and County of San Francisco.

Regular

12/31/12

4024-09/10

Public Utilities Commission

Increase Amount

$275,000

New Amount

$1,200,000

Will provide removal, hauling and legally dispose/ recycle Alum and Ferric Chlorite water treatment residuals (sludge) from the lagoons at the Sunol

Valley Water Treatment Plant (SVWTP). The modification is necessary due to delays experienced by exploring other more efficient contracting methods.  The material must be transported off-site to an approved disposal site, currently located in Nevada. The sludge is typically over 50% solids but there may be conditions that require removal of material with less than 50% solids.  During the removal activity the contractor shall, as deemed necessary by staff, relocate remaining sludge to neighboring lagoons or turn the material to aid in the drying process.

Modi-

fication

04/30/16

4021-07/08

General Services Agency

Increase Amount

$191,587

New Amount

$773,175

This contract is to provide culturally appropriate and multi-lingual community outreach to San Franciscans to inform them of their legal rights as workers. This outreach is performed by community-based nonprofit in order to make it more accessible and effective. Many low wage San Francisco workers, particularly those from minority and immigrant communities, are unaware of their basic rights under San Francisco's labor laws and/or are afraid to complain to a government agency. Primary activities are: community outreach program, employee workshops and trainings, and counseling and referral services. The program will continue to be conducted in as many languages as possible with a particular emphasis on disadvantaged and minority groups.

Modi-

fication

04/21/12

4171-07/08

Public Works

Increase Amount

$3,000,000

New Amount

$7,000,000

General services to assist DPW in administering a Job Order Contracting (JOC) System as provided for in the San Francisco Administrative Code Section 6.62 for use in expediting the design and construction of small and/or urgent projects.  Service provider will prepare specialized Unit Price Books (construction cost catalog) with regional adjustments to costs for

competitive bidding, technical specifications, provide JOC management software training to staff and contractors in the use of job order contracting system.

Modi-

fication

05/21/16

Speakers:

Susan Pontious, Arts Commission spoke on PSC #4086-10/11.

Sgt. Mary Dunnigan, San Francisco Police Department spoke on PSC #4091-10/11.

Jim Buker, Department of Public Works and Joe Brenner, IFPTE Local 21 spoke on PSC #4093-10/11.

Pauline Marx, Treasurer/Tax Collector and Joe Brenner, IFPTE Local 21 spoke on PSC #4094-10/11.

Paul Gambon, Public Utilities Commission spoke on PSC #4024-09/10.

Joan Lubamersky, General Services Agency and Joe Brenner, IFPTE Local 21 spoke on PSC #4021-07/08.

Mark Dorian, Department of Public Works and Joe Brenner, IFPTE Local 21 spoke on PSC #4171-07/08

Action:

(1)      Postpone PSC #4089-10/11 to the meeting of April 4, 2011 due to lack of vote for action.  (Quorum consisted of three Commissioners and concurrence of all three needed for action; Commissioner Seitz Gruell recused, making only two votes available.)  (Vote of 3 to 0)

(2)      Withdraw PSC #4090-10/11 at the request of the Municipal Transportation Agency.  (Vote of 3 to 0)

(3)      Postpone PSC #4092-10/11 to the meeting of April 18, 2011 at the request of the Public Utilities Commission.  (Vote of 3 to 0)

(4)      Adopt the report; Approve request for PSC #4093-10/11 on the condition that one Bureau of Construction Management (BCM) employee be provided by BCM for two months at no cost to the ESER Program during the 2012-13 budget year.  Notify the Office of the Controller and the Office of Contract Administration.  (Vote of 3 to 0)

(5)      Adopt the report; Approve request for PSC #4094-10/11 on the condition that the Treasurer/Tax Collector consult with IFPTE Local 21 in efforts to transfer knowledge and research techniques in so far as possible; Report back to the Commission in six (6) months.  Notify the Office of the Controller and the Office of Contract Administration.  (Vote of 3 to 0)

(6)      Adopt the report; Approve request for PSC #4021-07/08 on the condition that existing vacant OLSE positions be filled and that there are no cuts to OLSE staff, and that this matter be revisited and reviewed in six (6) months.  Notify the Office of the Controller and the Office of Contract Administration. 
(Vote of 3 to 0)

(7)      Adopt the report as verbally amended from Yes to No in 5E; Approve request for PSC #4171-07/08 on the condition that a minimum of eighteen BCM personnel will be trained in the JOC unit price information for future use.  Notify the Office of the Controller and the Office of Contract Administration. 
(Vote of 3 to 0)

(8)      Adopt the report; Approve request for all remaining contracts.  Notify the Office of the Controller and the Office of Contract Administration.  (Vote of 3 to 0)

0058-11-3

Appeal by Sergeant Patrick Tobin of the Executive Officer’s denial to process his request for a hearing of the denial of his “Like Work-Like Pay” compensation as an Acting Lieutenant at the San Francisco Police Department Traffic Company. 
(Item No. 8)

Speakers:

None.

Action:

Postpone to the meeting of April 18, 2011 at the request of Sergeant Patrick Tobin.  (Vote of 3 to 0)

0025-11-1

Briefing and Report by the Department of Human Resources on the Development and Administration of the H-50 Assistant Chief Examination, San Francisco Fire Department.  (Item No. 9)

February 7, 2011:

By consensus the Commission directed the Executive Officer to schedule a Special Meeting and calendar for the Commission to take action on the Adequacy of the H-50 Assistant Chief Examination, San Francisco Fire Department. 

Note:

The Commission also directed that the appeal of Kevin D. Taylor be placed on calendar prior to taking its action on the H-50 Examination.

February 25, 2011:

Postpone to the March 7, 2011 Regular Meeting with the Validation Study available to the Commission prior to the meeting.

March 7, 2011:

Postpone to the meeting of March 21, 2011 at the request of the Department of Human Resources.

Speakers:

Anita Sanchez, Executive Officer
Micki Callahan, Human Resources Director

Dave Johnson, Department of Human Resources

Chief Joanne Hayes-White, San Francisco Fire Department

Matthew McNaughton, H-50 Candidate stated that a threshold showing of a significant statistical disparity is not in itself a strong basis of evidence that the City would be liable, not litigated, but liable under Title 7.  There is no substantial evidence that the test was deficient in any of these respects.  Evidence presented both in testimony, the Commissioners own investigations and presented by the Human Resources Department revealed the detailed steps taken to develop and administer this examination.  The painstaking analysis, information gathering and implementation detail complete compliance with the EEOC Guidelines, the same guidelines that have been used for over twenty years to meet compliance with affirmative action goals.  Be assured that the relevance of this examination is patent and directly applicable to the job of Assistant Chief.  A quote from the Supreme Court case of Ricci is appropriate and states, “Fear of litigation alone cannot justify the City’s reliance on race to the detriment of individuals who passed the examination and qualified for promotions.  Support your Human Resources Department.  The exam is both valid and defensible.

Battalion Chief Kevin Smith, H-50 Candidate & President, Black Firefighters’ Association stated that it is clear that everyone is looking to the Civil Service Commission (CSC) to take some sort of action on the H-50 Promotional Examination.  From what has been presented to you for your consideration in making a decision basically comes down to is who you are going to believe.

On one hand you have a group of experienced African-American Chief officers who are telling you that something is wrong with this test.  Their letters to Mayor Newsom after the first test administered (H-30 Captain) by the San Francisco Fire Department (SFFD) and the Department of Human Resources (DHR) were prophetic.  Every issue raised that warned of serious consequences if not addressed was ignored by Mayor Newsom.  The CSC dismissed them as it being “sour grapes”.  The H-50 Assistant Chief promotional examination has the same bizarre problems and inconsistencies that have plagued every promotional examination given by SFFD and DHR since the end of the Consent Decree.  The African-American Chief officers are not asking that the test be unilaterally thrown out.  They are asking for an independent investigation to show once and for all if these examinations are legitimate.  (Battalion Chief Smith’s full written statement was submitted for the record.)

Phillip Allman, Economist stated that having looked at the statistical outcomes that is the ordering of the list, you have noted in your own minds that there is a statistical adverse impact here.  I was asked as a Mathematician to do a simple mathematical test based on the ordering.  I was given the list of twenty three names in order of scores and told that the top six would be the selected group.  Then I noted all of the top six were Caucasian so from there, I was to do a statistical analysis looking at the probability that six Caucasians out of twelve would have been chosen and none of the five African-Americans or any of the other seven non-Caucasian firemen.  That was my assignment.  This assignment was based on the assumption that there was no racial impact on this selection process.  So on the assumption that there was no racial impact, what was the probability that the top six out of 12 Caucasians would be chosen and none of the other racial groups.  Just mathematically.  If we look at the 23 people on the list, the odds of six of the 12 being Caucasian and the other 11 not being chosen is one in 1000.

Asst. Chief Chris Stevenson, Retired, stated that he does not believe it is good testing policy to take pictures of buildings in San Francisco and use them for testing purposes because it gives an advantage to those people who work in that area.

Battalion Chief Kevin Taylor, H-50 Candidate stated that he does have a legitimate appeal before the Commission in reference to the cheating allegations he made against Chief Arthur Kenney.  He requested that no appointments be made from the List until the allegations of the cheating are fully investigated.

John Kraus, Department of Human Resources responded to a question from Commissioner Seitz Gruwell on whether he agreed with a statement from the Economist on a statistically unlikely outcome by saying:  I think his point was you wouldn’t expect the results, the outcome by chance and that’s probably correct.  However we need to look at the numbers in terms of the sample size.  There was some discussion about the term adverse impact and what that means.  We ran our 4/5s analysis which is the passing rate for the exam component and according to the uniform guidelines if the test meets the 4/5s rule, it has no adverse impact.  I think the point they were trying to make is that the total selection process may have adverse impact and that really relates to the combined effect of all the procedures and processes that lead up to the selection at the end of the day which would be at the end of the life of the list.  You look at the selection ratio so the point being made is where candidates fall on the list and if the list has expired, what is the likelihood of those individuals being reached and appointed?  So we’re talking about two different things having to do with adverse impact.  We’re talking about the examination instrument itself and we’re also talking about the total selection process which can include secondary criteria, the certification rule, the background checks and that plays into the final selection off the list.  I would also like to point out that just because you may have adverse impact that doesn’t render a test invalid.  A test is either valid or invalid.  The uniform guidelines say if you have adverse impact then it’s the user’s burden of proof to demonstrate that the test was valid.  So we have provided the H-50 Validation Report which in large measure serves that purpose.

Battalion Chief Kirk Richardson clarified that the gentleman stated that Harry Brull was the expert and on the counseling portion of the test, he stated that was a valid test, the first test that was put forth and on the recommendation of the Fire Chief’s Association, it was thrown out.  Even though Harry Brull said it was fine, DHR came in and recommended we change it.

Micki Callahan, Human Resources Director clarified that the supervisory portion was not thrown out and would not agree that it was not an entirely job-related exercise and does not undermine confidence in their expert.

Action:

Accept the Validation Report compiled with respect to the H-50 Assistant Chief examination administered in August and October of 2010.  Furthermore, that the Chief of Department be instructed to proceed with permanent civil service appointments to the rank of
H-50 Assistant Chief of Department from the list resulting from that examination which was adopted on January 4, 2011 and that such appointments be made in accordance with Civil Service Commission Rule 314.  (Vote of 3 to 0)

Note:

      Vice President Casper made the following statement as his reason for the motion: In Ricci v. DiStefano (2009)  567 U.S. __ [129 S.Ct. 2658], the New Haven firefighters case, the United States Supreme Court had this to say about promotions in the fire service:
“ . . . firefighters prize their promotions to and within the officer ranks. An agency’s officers command respect within the department and the whole community; and, of course, added responsibilities command increased salary and benefits.” (Id., 129 S.Ct. at p. 2664.)

       Applied to the San Francisco Fire Department and its promotive ranks–indeed, all its ranks, both promotive and entry-level–the Court’s observation becomes an understatement. The San Francisco Fire Department and its men and women occupy a crucial place in a City with a unique confluence of vulnerabilities.

San Francisco’s history of earthquakes and major conflagrations; the variety and density of its construction, ranging from one of the most extensive concentrations of wood-frame dwellings, and certainly the tightest, in California to the second highest concentration of skyscrapers on the Pacific Coast and seventh highest in the nation; the density of its population, second among the 50 largest American cities; its population’s inherent vulnerabilities, with the highest percentage of elderly among the nation’s 25 largest cities; its location astride one major seismic fault and less than 20 miles from another; its peninsular isolation; and in a post-9/11 world, even its iconic beauty–all these factors give the San Francisco Fire Department a singularly important role in the performance of that fundamental duty of local government, the protection of lives and property.

            It may well be no accident, then, that the City’s employee classification plan assigns to the Chief of the Fire Department and the two Deputy Chiefs of Department Job Codes 0140 and 0150, respectively, ahead of all other municipal executives, administrators, and department heads, whether elected or appointed.

            All civil service employees of the City and County are tested for the knowledge, skills, abilities, and other characteristics necessary to perform their assigned tasks. With respect to the uniformed members of the Fire Department, selection processes become critical. Again because of the City’s unique vulnerabilities, as well as because modern urban firefighting and first-response delivery of emergency medical services are multifaceted and highly technical, the consequences of less than rigorous selection processes can be severe. An unsure grasp of one or more components of a required knowledge base, a gap in a presumed skill set, or an inability to make quick but nonetheless considered judgments under pressure can jeopardize the safety of one or many, leading to serious injury, even death, or risk the loss of a family’s home or an entire neighborhood.

            Neighborhood-wide destruction in San Francisco is not just a sepia-toned image pulled down from history’s shelves for dramatic effect, sobering to look at but unlikely to happen again. On the night of October 17, 1989, in the immediate aftermath of the Loma Prieta quake, the possibility that fire could sweep through the MarinaDistrict was very real. Rapid liquefaction of the already unconsolidated, muddy subsoil caused gas mains to rupture. Water mains ruptured at the same time, and the area suddenly lost its low-pressure water supply. Concurrently, more than 15 major fires raged elsewhere in the City. The dedicated high-pressure system, which itself had sustained cracks in the sandy subsoil South of Market, was under strain. If firefighters had pulled back from the Marina, much more than just a half a square block would have been lost to flames. Pulling back certainly was an option. However, fire scene commanders, using their considered judgment, decided to keep their companies in place and battle the flames proactively. A neighborhood was saved.

            The highest civil service rank in the San Francisco Fire Department is that of Assistant Chief of Department, to which the City’s employee classification system assigns the Job Code H-50.  Among the Department’s 1,700-plus Uniformed personnel, there are just seven Assistant Chiefs. An examination for the rank recently was administered in two parts, in August and October 2010. The exam was open to SFFD H-40 Battalion Chiefs who had successfully completed their probationary periods. A tentative eligible list was posted on December 20, 2010, and the list was adopted on January 4, 2011. The Certification Rule applied to the list is that of Statistically Valid Grouping, pursuant to Section 313.3.4 of the Civil Service Commission Rules.  Statistically Valid Grouping is applicable only to Fire Department promotional examinations.  No permanent appointments have yet been made from the List. 

         The Black Firefighters Association (BFA) has raised various concerns and objections to the H-50 selection process.  The BFA’s concerns and objections were raised after the period provided in the Civil Service Commission Rules for appeals from examination processes.  There is as well an open question as to whether our Rules allow for appeals of the substance of Fire Department promotional examinations.  Nonetheless, I requested that this matter be calendared because the criticisms leveled against the examination process appeared substantial.  Secondly, in the past, the BFA has rendered singular service to the SFFD and the people of the City and County of San Francisco, bringing to an end certain cultural attitudes which not only had outlived their time but should not have been allowed to take root in the first place.  Worse than wrong-headed, they were simply wrong. 

         So the BFA’s concerns and objections regarding the H-50 selections process had to be addressed.  And in three meetings of this Commission, they have been.  Having gone over the examination process in some detail, having been walked through the examination’s Fire Scene Simulation Exercise, having studied the Validation Report, and having weighed all these against the concerns raised by the BFA, it is my opinion that the testing process was a valid process.  Not a perfect process but a valid process.  In particular, though I have never taken a Fire Department promotional exam, the Fire Scene Simulation Exercise impressed me as well thought out. 

        The specter of Ricci v. DiStefano hangs over all our deliberations in this matter.  In that case, the U.S. Supreme Court addressed the inherent tension between, on the one hand, Title VII’s original prohibition of intentional discrimination and, on the other, the later articulated and codified prohibition of unintentional discrimination.  In a civil service examination context, unintentional discrimination is manifested in adverse impact.  The Supreme Court held that where a civil service board attempts to cure adverse impact, or unintentional discrimination, by throwing out an eligible list, it backs itself into intentional discrimination—unless it has a valid defense for doing so.  The underlying question before us, then, is: Would this Commission have a valid defense, a legally sufficient excuse, for throwing out the eligible list adopted following the 2010 H-50 exam?  The only guidance Ricci v. DiStefano offers is this: The test must be found to have been neither job-related nor consistent with business necessity.

       Here, based on everything that has come before the Commission, we must say that the test was indeed job-related and consistent with business necessity.  The job analysis created in preparation for the test was not the work of one incumbent H-50 Assistant Chief.  It was an editing process; it was built on far fuller job analysis performed in 2001.  Secondly, while the Performance Counseling component as originally developed was replaced with another, that does not necessarily mean that neither were job-related or that one and not the other was job-related.  With respect to the Fire Scene Simulation Exercise, once one understands that its purpose was to test the candidates’ ability to formulate a fire scene strategy, then one can see the importance attached to the assignment of companies and the order of the companies’ arrival. With the high-rise scene lasing 15 minutes and each of the other scenes 12 minutes, a difference of a minute or two here or there with respect to when the companies arrived on the scene in exercise, as opposed to when they might arrive following an actual dispatch, is de minimis, really.  The purpose of the exercise was to ascertain how the candidate was going to use the units.   

0012-11-6

Appeal by Luann Lee of the Director of Transportation's determination of insufficient evidence to support her claim of race and gender discrimination and harassment.  (Item No. 10)

March 7, 2011:

Postpone to a meeting when Robert Wolfgang is available and submit all relevant material prior to the meeting. 

Speakers:

None.

Action:

Postpone to the meeting of May 2, 2011 at the request of Russell Robinson, Attorney.  (Vote of 3 to 0)