The Fire Last Time: AFA and City at Impasse

Two years ago, to the tune of an 18-month, $118,000 contract, I/O Solutions was hired to help the city of Austin redevelop the tests it uses to select new members of the Austin Fire Department. The deal was supposed to help put an end to the hiring conflicts that had brought AFD to the attention of the U.S. Equal Employment Opportunity Commission, added to labor strife, and left a lingering feeling of racial bias around the whole mess for a very long time.

But as Austin Firefighters Association President Bob Nicks tells it, the company instead became entangled in the latest round of disputes surrounding AFD's hiring process. Worse, Nicks argues, management actions that date back to a grievance he filed in 2011 over I/O's candidate testing procedures poisoned current negotiations between his union and the city over a new meet-and-confer contract.

At the heart of it all are AFD's entrance exams. For whatever reason, minority candidates appear to, collectively, perform less well on the "cognitive" (written) portion of the tests – both Nicks and city management agree on that much. In order to offset that fact, the city – and indeed, other departments across the country – blend cognitive testing with behavioral testing. I/O's 2011 pitch not only combined the cognitive and behavioral tests, it made the whole thing pass/fail (at 70%). In a May 13, 2011 story ("The Color of Fire"), Josh Rosenblatt reported that the pass/fail nature of the new exam gave Nicks and his union a fair amount of heartburn. Nicks' grievance questioned the validity of the tests – and thanks to the 2009 meet-and-confer agreement, the validity measurement was not a low bar. "After protracted and sometimes testy negotiations, the December 2009 collective bargaining agreement between the city and the Austin Firefighters Association expressly gave [Austin Fire Chief Rhoda Mae] Kerr flexibility to 'design a process intended to have a high degree of validity, a direct job relationship, and to seek highly qualified candidates while minimizing adverse impact,'" Rosenblatt wrote.

However, the independent arbitrator eventually found that the "high validity" standard had not been met. But that wasn't all. In new revelations by Nicks in the wake of last month's complete breakdown of discussions over a new meet-and-confer deal, the union head shared transcripts of the hearings with the Chronicle. Those transcripts – along with language in the arbitrator's ruling and a swapped PowerPoint slide – Nicks argues, illustrate a concerted effort on the part of management to pressure I/O Solutions into changing the test into something that would significantly lower the bar of admission to AFD training.

As part of the vetting process for I/O's testing protocol, the company prepared a PowerPoint presentation. Nicks says that between a presentation he saw on Nov. 18, 2009 and one the next day, I/O switched its recommendation to allow for the pass/fail option. Nicks suggests that Deputy City Manager Michael McDonald pressured I/O into changing the recommendation. He also accuses management of going to great lengths – including the fabrication of a PowerPoint slide – to cover up the pressure Nicks says it put on I/O. Further, Nicks says that I/O "falsified" a validity test it gave to existing AFD firefighters to determine whether the new test would accurately predict new firefighters' abilities.

The union cited its expert, Dr. Winfred Arthur, in noting, "the vendor deceptively validated a test that was not administered. He validated [a portion of the test] as if it were part of the compensatory scheme, when in fact it was to be used as a pass/fail test. As Dr. Arthur testified, that simply was not appropriate and is inconsistent with standard practice in the industry."

In a July 18 email, Nicks explained the current impasse for his membership. "In 2010 the City conspired to violate the intent of the hiring article by making the vendor change their [testing] recommendation," he wrote. "The original recommended test that the vendor was forced to change had been given in around 1,000 different cities. The forced change reduced the validity of the exam to essentially zero. ... Efforts during the arbitration produced evidence that showed this manipulation of the vendor came from the City Manager's office. Also during the arbitration, evidence was doctored by the City to help them in their case, and the vendor became complicit when they falsified the validity certification report."

For his part, McDonald freely admits that he raised the possibility of changing the test to pass/fail. "Everyone in the room agreed that it might help," he says. That included former I/O President Chad Legel, who signed off on the idea that a change to a combined, pass/fail test would be valid under city contractual obligations. McDon­ald would not comment on Nicks' allegations over what transpired during the arbitration of his grievance. "There is still a process at hand," he said. "I don't know what direction the union is going to go." Legel did not respond to requests for comment.

All of this was on the table as Nicks prepared for new meet-and-confer discussions this year. But Nicks says he wasn't ready to wield it as the pressure tool it may well become. Instead, he says, he approached Chief Kerr and, after a month and a half of conversations, he believed they were well on their way to an agreement, and he expected the contracting process to be relatively smooth. Instead, negotiators are at an impasse. Nicks blames McDonald.

McDonald notes that he is, after all, Kerr's boss. "The union doesn't have a role in management," he told the Chronicle. "I'm Chief Kerr's supervisor. I have a right to inquire and ask questions." McDonald notes that, decades ago, when he was still with the Austin Police Department, the APD had a reputation for race relations not unlike the one carried by today's AFD. Now, he argues, "I think that everyone would agree that we have one of the best police departments in the [country]."

As for the negotiations, McDonald argues that the city is simply after flexibility in testing – and a department that, ethnically at least, represents the population it serves.