Barbecue and Good Ol' Boys
A promotions scandal at the Department of Public Safety suggests that the Old Boy Network is alive and well
If you care about state government and state law enforcement -- and in the capital city many of us do -- there's a phrase you should know.
It's not "indigent defense" or "DNA profile" or even the old reliable "law and order," although we hear a lot at the Capitol about all these concepts. The phrase you need to know is a name really -- the "Houston Barbecue Club," or HBBQC for short. HBBQC is the unofficial nickname for the group of senior state police officers who are said to run the Texas Department of Public Safety, both behind the scenes and out in the open.
The HBBQC can also be referred to by another acronym, OBN -- the Old Boys Network.
It seems that Texas Department of Public Safety troopers, whose duties span the state, consider Houston the dark hole of Texas lawlessness, especially drug-trafficking, with I-10 serving as a kind of main artery pumping Mexican contraband to both coasts of the United States. Only those officers who have served in Houston -- or have an in with those who have served there -- get ahead at DPS. That's the accusation that you hear if you talk to some troopers. Recent evidence is that it may be true.
Don't make the mistake of thinking that the members of the Barbecue Club like Houston. The Bayou City seems to be viewed as just a particularly intense, and therefore particularly honorable, duty station, a rough tour of action, similar to Southeast Asia in the late Sixties or Baghdad today -- especially for narcs, who are at the bottom of what is turning out to be the latest cops-gone-wild news out of the state of Texas.
The cheating scandal that is now festering at DPS headquarters in Austin shouldn't really come as a surprise to anyone. That the promotional exam for 11 captain positions was rigged, to allow favored officers to advance, is pretty clear: One of the three original conspirators, a deputy commander of the DPS Narcotics Service, had an attack of conscience and kept a diary of the plot. ("We believed that the only way to accomplish these people being promoted," he said later of the preselected officers, "was to develop a strong mechanism which the board would follow as a guide to see that these individuals were promoted." Thorough, huh?) The subsequent Internal Affairs investigation confirmed the scheme.
The only people who refuse to recognize what happened appear to be DPS leadership (i.e., members of the so-called club) and Gov. Rick Perry, who fielded, and then ignored, complaints from wronged officers.
First, the good news. The Texas DPS is one of the premier law enforcement agencies in the country, and remains one of the most popular institutions in the state. That hasn't changed.
Settling the Scores
Texas troopers are generally regarded as polite (DPS's motto is "courtesy, service, and protection"), honest, and showing a high level of professionalism at the roadside, which is where most people meet them. It is, indeed, that professionalism and the high regard in which DPS is held that put the department in the difficult position it finds itself in today.
At the end of the last decade, as scandal erupted over regional drug task forces across the state (including the apartheid-like enforcement that took place in Tulia), there was the widespread feeling that misconduct "wouldn't have happened if DPS had been there." The state's leadership heard the call and placed the Department of Public Safety in charge of the drug task forces -- more than 700 officers and 100 support personnel -- a move which in turn required a wholesale reorganization of DPS's Narcotic Service and the creation of seven new captains' positions. The seven openings for promotion were posted, along with four captains' jobs from retirements, and a written exam was administered. It was followed on Nov. 27, 2001, by an oral exam, conducted by the commander of the Narcotics Service, his two deputy commanders, and three officers from other services in the department. Basically any lieutenant in DPS was eligible, and a few sergeants, too.
That's when the trouble began.
There were 33 candidates for the 11 positions. After the written exam, the list of front-runners was posted, and after the oral exam, as the officer in charge of DPS human resources sorted the score sheets, "He began to notice what appeared to be a high amount of rater consistency in the scoring," according to an internal affairs investigation. Most of the top candidates from the written exam received the lowest oral scores. The results from the oral board were so extreme that only two of the officers who had been ahead after the written stage were still doing well after orals, the end of the selection process.
The Internal Affairs investigation showed "100% rater agreement between the six board members on each of the top 11 candidates," who were eventually promoted. Testimony later showed that the Narcotics Service commander, Walter "Chap" Eeds, and his two deputies (one of whom was keeping a daily journal) had not only agreed on their 11 preferred candidates before the interview board, but had already decided on duty stations for each of the men. An apparent subsequent attempt to fix the promotion exam for lieutenants (following the captains' board) was cut short because of disquiet among officers over the earlier choice of captains.
The conscience-stricken deputy commander took his fears to the department's leadership. Others approached Gov. Perry's office. The rest is, as they say, history -- and court record.
If you review the selection process, it's hard to directly compare the group of officers who became captains against those who stayed lieutenants. One applicant, a Hispanic woman, was said to have been blackballed because of her alleged sexual orientation, but other officers claim her leadership skills were lacking. On the other hand, one officer among the winners had a laundry list of departmental complaints, including a record of poor supervisory skills and fiscal irregularities -- but he was lucky enough to be a hunting buddy of a high DPS official. In retrospect, the question is not really who got the jobs so much as it is the process that was followed to predetermine the promotion of particular officers.
Does the DPS Look Like Texas?
The cooked exam and its fallout come at a particularly bad time for the department. DPS is in institutional flux. The mainstay of crime detection, fingerprints, is increasingly out of fashion because of growing questions about reliability: Now the agency is being pushed to get criminals' DNA, a difficult and time-consuming process. Because of headlines about incompetence and possible corruption in local forensic labs (especially in Houston), DPS has been placed in charge of inspecting all crime labs in the state, but wasn't given any money to do the job. Traffic law enforcement is in the process of reorganization as well -- much like the reorganization that led to cheating in the narcotics promotions.
Although DPS wins almost every category, every year, in nationwide drug-busting contests (most cash seized, biggest cocaine seizure, biggest marijuana bust), in recent months it's begun to dawn on the department leadership that this success may not be a simple matter of good police work -- rather, it suggests that the state is drowning in contraband. (Nevertheless, seizures are aggressively pushed, not just for contraband, but for cash; the Highway Patrol alone averages more than $1 million per month, a large hunk of which DPS uses for discretionary spending, to buy gangbuster hardware that the good people of Texas won't fund directly.)
The department's increased role in homeland defense, also, is requiring greater sophistication in DPS operations, and this activity threatens to overshadow even the importance of narcotics enforcement. In addition to foreign threats, the Rangers' commander recently warned of increased activity among domestic terrorists, of the Republic of Texas ilk.
With all of this on its plate, the department continues to try to get a handle on racial and gender issues, getting its diversity house in order, which is something the Legislature has faulted in the past. The upper leadership (like the leadership of the Legislature itself) is still predominantly white, male, and of small-town origin. In fact, with the exception of tours of duty there, the average officer in headquarters is as far removed from Houston as he can be.
Despite the increasing urbanization of the state, reflected most dramatically by the growth of Houston, the Department of Public Safety is still mostly run by white men who, whether they eat barbecue or not, have little experience in common with life in Houston or Dallas or San Antonio, or Austin for that matter. The numbers haven't changed much through the years. In 1990, for example, on the DPS director's staff (that is, the core command of the department) there were 26 white males, one black male, one Native American male, and one Hispanic female. In 2003 the count is 35 white males, four Hispanic males, two Native American males, one white female, and two Hispanic females. In rank-and-file commissioned positions, the DPS director, Col. Tommy Davis, says the agency is short both of black men and of women of all races.
Rigged exams, with the apparently explicit approval of senior officers, probably isn't helping to get the department to the level of diversity the Legislature says is needed -- let alone a level that reflects the increasing mix of people that Texas has become.
In its higher levels of management, DPS tends to deal with controversy by retirement.
How to Pick Your Winners
Mike Scott, who was in overall charge of the criminal investigation division, including narcotics, and who was viewed by protesting officers to be unresponsive to their complaints of promotion fraud, left the agency and is now a federal employee, in change of security at Austin Bergstrom International Airport.
"Chap" Eeds, who was commander of the Narcotics Service, is now working as a contract employee for a federal anti-narcotics program. (Mike Dunn, the deputy commander who was implicated in the scandal with Eeds, was named commander.) Eeds says he's thinking of coming back to DPS, although he notes that any new role for him at headquarters is not likely to involve supervision of promotional exams. He says he has done nothing wrong.
"Before each candidate came in, I discussed with the board ... the good things [the candidate's supervisor] had to say, the positive things, the negative things, and whether I had any knowledge along those lines," he explains.
Eeds admits not wanting scores from written exams alone to determine final choices, and he explains the wide disparity in oral scores, first noted by the human resources chief, as necessary to the process: "You have to score your best candidates in the high range, and you have to score the ones that you do not want promoted in the lower range." If that sounds like a curiously predetermined notion of "examination," it is. Out of 500 points possible on the oral exam, each of the six board members gave the winning 11 officers at least 130 more points than any of the unsuccessful candidates. Coincidence? It sounded fishy then, and it still does.
The Internal Affairs investigation found that the exam was rigged, but the IA chief had difficulty pinning down a violation of policy, much less law. That has been the case in federal court as well, where 16 of the wronged officers have gone to seek redress. They've had success in showing the unfairness of the testing process, but a more difficult time proving illegality. The state, meanwhile, has had little success rebutting the facts of cheating but is doing pretty well in court.
"It's cronyism," said the assistant attorney general defending DPS at a preliminary hearing in October before U.S. District Judge Sam Sparks. The state's attorney quickly corrected himself. "It's an allegation [italics added] of cronyism. And it's no surprise that cronyism exists someplace in state government ... [but] it's not a federal constitutional matter."
Judge Sparks seemed to agree. He cited the already heavy workload in the Western District of Texas -- roughly from a line joining Austin, San Antonio, Waco, and Laredo, west to El Paso -- which he described as the busiest judicial region in the country. The judge told the failed candidates' lawyers, "I'm not in the business of critiquing the merit selection of every single promotion of the people in this city in government."
Sparks' fatigue is understandable; he has tried DPS civil cases before. Apparently so have a lot of other judges. Although no statistics were immediately available, an old U.S. Justice Department figure is a good indication of DPS's record on discrimination; the Texas state police are apparently habitual offenders. In 1998, DPS was involved in 29 discrimination cases of various kinds -- including disability, race, and sex discrimination. DPS is a large organization, with almost 7,000 employees, roughly half of whom are commissioned officers, but size alone doesn't explain its repeated trips to court.
Even the cheating scandal can serve as a backhanded compliment to the department, however. Troopers "came forward to meet the challenge," which is a figure of speech the department's leadership likes to use in more media-friendly contexts.
Meeting the Occasion
There were three heroes this time, if you count the Human Resources Capt. Luis Gonzalez, who first noticed irregularities in the exam. The second is Capt. David Outon, the Internal Affairs chief who investigated the test. The IA officer answers directly to the department leadership, "the colonels." Due to a particularity of DPS's structure, if Capt. Outon for any reason does not please the colonels, he leaves Internal Affairs not as a captain in some other service, not as a lieutenant either, nor a sergeant -- but as a Trooper II in the Highway Patrol, his old job. ("It's a long fall," another IAD officer remarked drily.) But even with that sword hanging over his head, in his report on the promotion exam Capt. Outon concluded, "I believe the rater agreement on the top eleven candidates was a result of the discussion of the candidates prior to their appearance." Two of Outon's own men were among those who were cheated by the testing procedure.
But the most eloquent dissent to the Old Boys Network came from Deputy Narcotics Cmdr. Robert Duvall, the officer who showed a conscience, and who first reported the rigged test -- although he appears not to take much pride in his role as whistle-blower. Duvall is particularly poignant when he recounts being called in to see the colonels, the big bosses, and getting the sense that the directors of DPS were so used to appointing people -- so far removed from the exigencies of a promotional exam -- that they didn't understand the full importance of the test to the people who took it.
"My career has been damaged -- there's no way I'll ever promote in DPS. I will probably die in Internal Affairs as a lieutenant," said one of the officers who took the test and then took the department to court. He says he doesn't know if he would have been promoted, but in any case he wanted a fair chance.
The promotion to captain is particularly important to the officers involved, and to the state. DPS supplies many of Texas' small towns and rural counties with police chiefs and sheriffs. But even though a DPS officer is a valuable property -- recognized as quality -- he or she will apparently not really be considered for a police chief's job in Podunk, Texas, until he or she reaches captain's rank.
"I've just been around this long enough to know that, you know, sometimes we don't always promote the right people," Cmdr. Duvall said, explaining why he came forward and showing why he represents the best the state has to offer -- which is what DPS is supposed to be about.
"In a very clearly good and objective fair process, sometimes the right ones don't come up. But for me, the right ones to promote are the ones that go through the system fairly, and if they turn out to be a dud, they are for us to deal with later on."