May 16, 2011 Special Meeting
I. The Special Meeting was called to order at 12:40 p.m.
Minutes of Special Meeting
Monday, May 16, 2011
12:30 p.m.
Present: President E. Dennis Normandy
Vice President Donald A. Casper
Commissioner Morgan R. Gorrono
Commissioner Mary Y. Jung
Commissioner Lisa Seitz Gruwell
President E. Dennis Normandy presided.
II. Public Comment on all matters appearing on the Special Meeting Agenda Session.
Joe Moriarty, on behalf of Tom O’Connor, President of Firefighters, Local 798, who ironically is sitting for the second and third phase of the Captain’s exam at this time. He is a former Firefighter for 29 plus years and Vice President of Local 798 for approximately 12 years. It is the position of Local 798 that the Commission give the Department the go ahead to promote Assistant Chiefs from the List that was adopted several months ago. A complaint was filed, Human Resources conducted a complete investigation, 38-page document. The Report found that there is no merit to the claim of improprieties. It’s time to promote the top individuals on that List, they are the cream of the crop, they proved it in a valid civil service exam, they deserve the promotion.
Kevin Smith, President, SF Black Firefighters Association. The Association is attending the meeting to make a statement. They’ve seen the report based on the security breach and found out DHR’s findings; they know what to expect as the outcome of the meeting. They still believe that something went wrong with the Departments investigating themselves on allegations as serious as this and they want to stand by their position that there needs to be an independent investigation. They would have to take another avenue to address their issues.
Anthony Rivera, Member, Board of Directors, SF Firefighters, Local 798. Department promotions are being held up at the ranks of Battalion Chief, Captain and Lieutenant pending the action of this Commission. The investigation has been completed, the List has been adopted, 798 has always advocated for timely promotions.
III. Appeal of Kevin D. Taylor of the Human Resources Director’s Investigation of his Allegations of Tutoring and Assistance and Violation of the
Confidentiality Agreement in the H-50 Assistant Chief Examination, San Francisco Fire Department. (File No. 0399-10-4)
Speakers: Micki Callahan, Human Resources Director. The issue before the Commission is an appeal by Battalion Chief Kevin Taylor of the administration of the H-50 Assistant Fire Chief exam. The appeal is based on alleged Collusion, Cheating and/or Breaching examination security by H-50 examination Subject Matter Experts Assistant Chief Art Kenney and Deputy Chief Patrick Gardner. Just to clarify, those individuals are in the Fire Department not in DHR. The alleged wrong doing occurred outside of DHR if it occurred; therefore it’s not, I think as it has been stated an issue of DHR investigating itself. DHR has undertaken three separate fact finding investigations into Battalion Chief Taylor’s allegations against Assistant Chief Kennedy (sic) and/or Chief Gardner, but has consistently found that the evidence does not support these allegations or that there was any breach in security of the H-50 exam. The first two investigations, including the one referred to, I think in Chief Taylor’s complaint is preliminary, were conducted by Dave Johnson who is the Head of DHR’s Public Safety Examinations Team and John Kraus, our Recruitment and Assessment Services Director. Their findings are incorporated into one report dated December 10, 2010; and that report is in your binders. I think it begins on page 49 of the Attachments.
In addition, after that report was prepared and in fact after the List was adopted, we became aware of additional allegations by referral of the Mayor’s Office. There was also a document included in some of the materials we received from the Commission. So we then conducted an additional investigation and to that I assigned Ted Yamasaki, who is our Managing Deputy Director and Jennifer Johnston, who is our Chief of Policy. Their investigative report is dated April 21, and is included in your materials as an attachment to the staff report. We did provide these documents to Battalion Chief Taylor and to the Black Firefighters’ Association as I would say a party of interest, well in advanced of the meeting. We asked Fire Administration to provide all the witnesses with copies of the report as well. I want to point out or talk a little about why we expanded the scope of the investigation that we did, although the matter before the Commission today is only that of Battalion Chief Taylor’s appeal of Collusion, alleged Cheating in particular, associated with a meeting that was held in June of last year. Because of the additional concerns that were raised, we broadened the scope of the investigation because frankly, whether included in the appeal or not it is of grave concern. These are very serious matters that were alleged, so we did expand the scope of Mr. Yamasaki and Ms. Johnston’s report; therefore, included covering additional allegations first by Incident Support Specialist Al Joe regarding purported breaches in examination security, and a subsequent complaint from Battalion Chief Taylor regarding a phone call he received from Deputy Chief Gardner and that he also asked that we include. We’ve provided the comprehensive investigative fact finding report on all of the matters as requested by the Commission in order to ensure a full review of all of the allegations given the seriousness of the charges, and out of fairness to the complainants, the individuals who have been accused of wrongdoing, the witnesses interviewed, the individuals on the H-50 Eligible List, and all members of the San Francisco Fire Department. So let it not be said that we did not look under every stone in this process. I’ve asked Ms. Johnston and Mr. Yamasaki who are both here to provide the Commission with a brief overview of their investigation and to answer any questions you may have about their findings. Mr. Kraus and Mr. Johnson are also available should you have any questions about their investigative efforts.
Action: Enter for the Record, the statement made my Human Resources Director Callahan. (Vote of 5-0)
Speakers: Jennifer Johnston, Department of Human Resources, provided a general overview of the Investigative Report and Findings.
Dave Johnson, Department of Human Resources, responding to questions from Vice President Casper explained the stages of the
development of the H-50 examination, the timeline of the stages and on the H-50 Confidentiality Agreements.
Battalion Chief Kevin Taylor, SF Fire Department, respond to questions from Vice President Casper regarding the June 2010 Division
Chiefs meeting in Deputy Chief Gardner’s office and his recollection of statements made by the Assistant Chief at that meeting.
Chief Joanne Hayes-White, San Francisco Fire Department, objected to Vice President Casper’s request to put Assistant Chief Art
Kenney under Oath.
Paul Zarefsky, Deputy City Attorney, provided information on putting some speakers under Oath and not others. Vice President Casper
withdrew his request.
Assistant Chief Art Kenney, San Francisco Fire Department, responding to questions from Vice President Casper regarding the June
2010 meeting and whether there was discussion of truck placement and if he had any involvement with taking Fire Scene photos.
Assistant Deputy Chief Frank Cardinale, SF Fire Department, responding to questions from Vice President Casper about the June 2010
meeting of Division Chiefs in Deputy Chief Gardner’s office and the nature of the meeting.
Deputy Chief Patrick Gardner, SF Fire Department, responding to questions from Vice President Casper about serving as a subject
matter expert in the H-50 exam and his role as a subject matter expert.
Action: The Civil Service Commission having considered the fact finding investigative report submitted by the Department of Human Resources
dated April 21, 2011 and having read and considered the various attachments to such report including a prior investigative report
conducted by Mr. John Kraus of the Department of Human Resources and having heard the testimony of various witnesses finds as
follows:
1) Assistant Chief of Department Arthur Kenney did not tutor Battalion Chiefs who intended to take or who in fact took the recent H-50 examination administered in 2010;
2) Assistant Chief of Department Art Kenney did not leak or otherwise disclose any test component to any such Battalion Chief who intended to take or who did in fact take the H-50 examination;
3) Assistant Chief of Department Art Kenney did not suggest to any Battalion Chief who intended to take or who in fact did take the H-50 examination what an answer to a Fire Scene Scenario should be;
4) Chief Kenney did not in any manner or form breach the confidentiality agreement signed by him as a subject matter expert for the examination;
5) Assistant Chief of Department for Operations Patrick Gardner did not disclose any information regarding the Fire Scene Scenario used in the H-50 examination to any Battalion Chief who intended to take or did in fact take the H-50 Assistant Chief of Department examination;
6) Further Deputy Chief Gardner did not in any manner or form breach the confidentiality agreement which he signed as a subject matter expert for the H-50 examination; and finally,
7) That the Commission adopts, approves and adopts the fact finding investigative report submitted by the Department of Human Resources dated April 21, 2011 and denies the appeal of Battalion Chief Kevin Taylor. (Vote of 5 to 0).
Note: Commissioner Casper stated the reasons for his motion: The standard of proof in any administrative proceeding in any quasi- judicial administrative proceeding is that of preponderance of the evidence. Preponderance of the evidence does not have to do with quantity it has to do with quality. Preponderance of the evidence is that evidence which when compared with evidence opposing it, has more convincing force and greater probability of truth. Such evidence may include direct evidence or may include circumstantial evidence. Direct evidence is evidence that directly proves a fact without an inference or presumption and which in itself if true conclusively establishes that fact. I read there from Section 410 of the California Evidence Code with apologies to my colleagues, but it’s an efficient way of getting the point across. Circumstantial evidence is distinguished from direct evidence in that it is testimony not based on actual personal knowledge of observation of the facts and controversy but of other facts from which deductions are drawn allowing showing indirectly the facts sought to be proven. Circumstantial evidence is gleaned by a process of deduction and inference and Section 600 in the Evidence Code, an inference is defined as a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established. Here in this proceeding we have been presented with no direct evidence that Chief Kenney or Chief Gardner in any manner or form violated their obligations as subject matter experts for the H-50 exam. We have been presented with circumstantial evidence as a question or comment posed by Chief Kenney during a meeting in Deputy Chief Gardner’s office on June 15, 2010. The evidence presented to us regarding that statement or question is not itself uncontradicted. However, even if we accept that evidence as true, can an inference be made that Chief Kenney in fact tutored Battalion Chiefs in his division in violation of his confidentiality agreement as a subject matter expert. Yes, an inference can be drawn but simply because such an inference can be drawn, it need not. There is no requirement that it be drawn because an inference must itself be shown to be more probably true than not true. Here, the entire weight of the evidence are used against such an inference, taking all the evidence together including Chief Kenney’s lack of knowledge of the actual Fire Scene stimuli in June of 201. Taking all that evidence together, the inference that Chief Kenney violated the confidentiality agreement cannot stand.
IV. Adjournment
1:49 p.m.
