Pennsylvania Retaliation Case
While it cannot compare to Wal-Mart, the Borough of Duyea, Pennsylvania v. Guarnieri ( No. 09–1476 , 6/20/2011) was another closely-watched case for its implications for public employees. Police Chief Guarnieri had a running battle with the borough council in which he was fired, filed a union grievance, and was then reinstated (after suspension) by an arbitrator. After further unpleasantries and another partial win through arbitration, he sued under 42 U.S.C. §1983 (Civil Rights Act of 1871, deprivation of rights under color of law); later, having been denied payment for overtime, he added retaliation for what he alleged was violation of his rights covered by the First Amendment of the U.S. Constitution, specifically the ―right “to petition the Government for a redress of grievance” in bringing his original charge.
The trial judge instructed the jury that Guarnieri’s grievances and suit were constitutionally protected activity.
This was the interpretation of the law in the Third Circuit, but not elsewhere. The jury awarded punitive and compensatory damages as well as attorney’s fees. On appeal, the Third Circuit threw out the punitive damages but left standing the rest of the award. The council appealed again on a central issue: Was the chief’s action as an employee constitutionally protected activity?
The Court said no, more-or-less unanimously on the outcome, but with some disagreement on the legal theory. Justice Kennedy wrote the opinion of the Court. Justice Thomas wrote a separate opinion concurring in the judgment. Justice Scalia wrote an opinion partially concurring and partially dissenting. The majority held that, as with the First Amendment’s Speech Clause, activity is protected only when it involves a matter of public concern. Even when it does, there is a balance between the employee’s rights and the rights of the government as the employer. This does not mean that the Speech and Petition Clauses should be considered as equivalent, or that every petition situation comes down to a speech situation. But allegations of retaliation should not entail a need to consider exceptions to the public concern standard. Public employees can petition for redress via lawsuits. Public employees have protections established by law. “The Petition Clause is not an instrument for public employees to circumvent these legislative enactments when pursuing claims based on ordinary workplace grievance” (slip op. at 11). In contrast, “Outside the public employment context, constitutional protection for petitions does not necessarily turn on whether those petitions relate to a matter of public concern” (slip op. at 13). The distinction rests on whether the government is in the role of sovereign power, or in the role of employer trying to conduct orderly business.
Justice Scalia thought that the matter could be resolved more simply on the principle that constitutional protection does not apply to petitions addressed to the government as the petitioner’s employer. He did not favor conflating petitions with speech, or petitions with lawsuits. He also noted that historically petitions involved private issues, and so took issue with the majority’s emphasis on petitions being used to effect change in government. Justice Thomas agreed with Justice Scalia’s principle. In addition, he noted that the initial suit under § 1983 was not a “petition” to the borough government as employer, but to the federal government as sovereign, for which the borough council allegedly retaliated. If the suit were frivolous and intended to be disruptive to the employer, there were ways to deal with it in the courts, not by retaliation. He would have preferred to have the case remanded to the Third Circuit to sort out this aspect.
Reprinted with permission from the Personnel Testing Council of Metropolitan Washington.
Implementing and Maintaining Succession Planning in Public Safety
This is part three of a three part series on succession planning in public safety departments. Part 1 focused on the organizational review and design of a succession planning process. Part 2 focused on how selection systems play a part in succession planning. Part 3 focuses on implementation and maintenance.
In this series of articles we have been sharing information regarding the design, implementation, and maintenance of succession plans with our focus being on public safety organizations with a particular emphasis on the use of assessment centers to assist in selecting appropriate participants. We have also emphasized the necessity of determining the scope of the program and ensuring that the KSAP’s identified for measurement in the center cover the levels within the organization and provide diagnostic information regarding the strengths and weaknesses of all participants.
Creating and selecting the appropriate exercises for inclusion in the assessment center may require the assistance of a consultant if a sufficient level of expertise is not available within existing staff. Regardless of who does the work, it is critical that job related simulations that closely parallel the work to be performed are used to elicit the widest range of behaviors possible from candidates. Again, this is an area where people are tempted to put candidates on the spot or get tricky or clever and all these temptations need to be avoided. Whoever designs the center needs to include those elements that have been identified as constituting an actual assessment center, these generally include:
- More than one assessment technique is used and at least one is a simulation.
- More than one assessor is used and assessors receive extensive training.
- The decision on who participates and receives training is based on a pooling of information.
- Overall evaluation occurs after completion of the exercises.
- All rating dimensions are created from a thorough analysis of the job
- All techniques used relate back to the dimensions.
Administration of the assessment center along with the selection of candidates for inclusion would generally mark the implementation phase. Although, it should be noted that a good succession plan will most likely move back and forth between the phases since modifications should be made as information is gained. (more…)
The Test Administration Handbook Is Now Free!
We are excited to announce that, as of today, we are making the Test Administration Handbook part of our collection of FREE electronic publications. After three years of service as a valuable paid publication, we’ve decided to make this essential introductory guide to assessment available to all Test Security Agreement signers. You can order it online immediately.
The remaining physical copies of the Test Administration Handbook will be provided for free as an added bonus with all test orders until supplies run out.
The Test Administration Handbook covers many topics of interest any HR professional would benefit from having, but can be specifically beneficial for someone just beginning their career in assessment. Specifically, the goals of this handbook are to:
- Review basic concepts related to employment tests and test development.
- Provide an overview of the legal and professional considerations concerning employment tests.
- Explain the different ways through which employment tests can be procured.
- Describe how evidence of validity can be generalized or transported from one situation to another.
- Review the administrative aspect of the test administration process including gathering materials, securing test materials, communicating with candidates, providing standardized instructions to candidates, proctoring the test administration, and handling test-room irregularities.
- Provide a variety of useful resources including a glossary, references for additional readings, and appendices containing support materials. Support materials include IPMA-HR’s Considerations in Handling Test Accommodations and Considerations in Implementing Selection Procedures.
The Test Administration Handbook joins our catalog of FREE publications including Considerations in Addressing Adverse Impact, Considerations in Handling Item Challenges, Considerations in Implementing Selection Procedures, Considerations in Test Accommodations, as well as the Test Day Administration Guide.
The Public Safety Oral Interview Handbook is still available for purchase at a price of $40.
How Selection Systems Play A Part In Succession Planning
This is part two of a three part series on succession planning in public safety departments. Part 1 focused on the organizational review and design of a succession planning process. Part 2 focuses on how selection systems play a part in succession planning. Part 3 will focus on implementation and maintenance.
As emphasized in Part 1 of this series of articles, it is critical in succession planning, to identify the employee pipeline in terms of its source, entry level and end point. It was also established that while rather generic in general, this series of articles is written with public safety organizations in mind and is intended for their benefit. In my experience I haven’t worked with any public safety departments that give serious consideration to the promotional potential of entry level candidates and yet to be successful, succession planning, needs to recognize that this is where it starts.
Most public safety organizations have rather rigid promotional requirements that typically include a specified time in the grade occupied before being eligible to compete for vacancies in the next level. That is, police officers usually have to spend two to four years as an officer before they are eligible to test for or be considered for sergeant, sergeants typically have to be sergeants for two to four years before they can test for or be considered for lieutenant and so forth on up to the top position. Police departments vary, of course, in their time in grade requirements as well as their selection methodology; however, the requirements cited are typical. Other things, typical or relatively common within public safety organizations is that selections for lower levels are not made with higher levels in mind or with any consideration of candidates outside the organization, both of which are important factors impacting succession planning. (more…)
Review and Design of A Succession Planning Process
This is the first part of a three part series on succession planning in public safety departments. Part 1 focuses on the organizational review and design of a succession planning process. Part 2 will focus on how selection systems play a part in succession planning and Part 3 will focus on implementation and maintenance.
Succession Planning is one of those tools that is talked about a lot and considered fashionable by most, but unfortunately, implemented by very few organizations. That in and of itself suggests that there are challenges in implementing and utilizing an effective succession plan. Essentially, succession planning is a systematic process of identifying the future talent needs of an organization and taking the appropriate and necessary steps to ensure that there is an internal applicant pool available to fill the vacancies created by the loss of talent.
From that simple view of the process, it can be seen that there are a number of critical components to designing, implementing and maintaining a viable succession plan. It is important to recognize too that the implementation portion of the plan includes the critical component of selecting participants. Through many years of experience in designing oral boards for employee selection, I had the opportunity to work with hundreds of subject matter experts that were typically managers and supervisors in the career area or job family for which the test was being designed, typically police and corrections sergeants, lieutenants and captains. It was common for those managers to skip the critical foundational design components of an oral board and jump directly to writing questions. My observations in the succession planning process indicates that a similar phenomenon occurs among managers who are eager to start naming participants for the program or listing positions they don’t believe they can accomplish their missions without rather than focusing on developing the program. In both instances, skipping the basics that form the fundamentals for a successful oral board or a successful succession program leaves the process without a foundation. (more…)
Test Security Agreement Update
It has come to our attention that item II. G. of the Terms and Conditions of our Test Security Agreement was worded in a potentially confusing manner that could lead to misinterpretation. As a result, we have rewritten this section of the agreement in an effort to be more clear and direct. The updated text reads as follows:
No candidate review of entry-level tests is permitted. Agencies required to have review and appeal procedures must follow the instructions for handling candidate reviews and item challenges described in the publication Considerations in Handling Item Challenges, which is available online or upon request. This publication contains detailed steps for handling promotional-level candidate reviews and resolving item challenges in such a way that will help ensure you maintain test security.
As you can see, this section now clearly states that no IPMA-HR entry-level tests can be reviewed by applicants and all challenges to promotional-level tests must be dealt with as discussed in the free publication Considerations in Handling Item Challenges, which can be ordered online from our website by a Test Security Agreement signer.
We thank you for your continued effort to abide by all security measures outlined in the TSA. The updated copy of the document is available on our website, along with several videos dealing with test security. If you prefer, you can also download the PDF directly.
We suggest that you take a moment to read over the updated agreement and submit the new form. This will help ensure you’re up to speed on the updated test security policies and it will help us make sure we have all your contact information up to date. Please note, however, that your existing agreement will not expire with this update, but you are expected to adhere to the current terms of the agreement.
The Test Security Agreement is our first line of defense for keeping our tests secure; it outlines measures and processes that should be used by all customers handling testing materials. It is with a clear understanding and continued effort from both IPMA-HR and customers like you that our testing products remain a reliable scale of future public safety employees.