Managing Your Fire Department Promotional Process

BY DAVE CASEY

Promotional processes are a time for agency and personal change. For the fire department, it means bringing the best people forward into roles of greater responsibility—“new blood,” generally younger, possibly with more training or education, and of course with less experience than those they replace. Most often it involves a significant expenditure of time and funds by the agency. Most candidates have committed considerable time-off duty that could have been spent with family or other pursuits and sometimes expenditures for coaches.

• Succession Planning: Paying It Forward for the Next Generation of Officers
• Rock Your Interview
• Courage Under Fire Leadership: 15 Considerations Before Promoting

Part 1: The Significance of the Issues: Legal, Financial, Organizational

Ask a chief, a union official, or a human resources director about promotional testing, and you will likely often get a negative response about problems they have encountered. Do a Google or other search for “fire department promotional test problem” and you will get roughly 17,400,000 results. Revise that to “fire department promotional test legal challenge” and you will get around 31,600,000 results!

Relevant Examples

1. Process and procedures. A large American fire department had a candidate sue the agency based on the “failure to properly notify candidates of test processes and procedures.” The candidate also claimed the exam was not proctored by adequately trained raters and that it demonstrated racial bias. The plaintiff had previously failed the exam process and, in this case, dropped out of the process when advised he had failed the written examination. The candidate could still have completed the practical exercises without having a chance of passing the process. The candidate claimed that the other candidates who participated gained further information that was beneficial to future testing. The court did not find racial bias, but the candidate was awarded 30-plus years of the pay differential he would have received. Settlement and costs were close to $800,000. Apart from the settlement, the candidate was successful in the next promotional process and was promoted to driver/operator.¹
2. Claims of racial discrimination. A midwestern city fire department had a 10-year delay in conducting promotional exams due claims of racial discrimination (against black individuals for lieutenants and against white individuals for captain).^2,3
3. Litigation and related fees. The delay was due to the litigation and the city’s hesitance to develop a court-ordered promotional test. At one point, the city of almost 200,000 had only two chief fire officers in the department. Twenty-three firefighters received a total of $1.04 million in back pay and interest. This did not include legal fees.³
4. Extended court battles. Our brothers in blue beat our promotional paralysis benchmark with a never-ending court battle. In the southeast, 35 plaintiffs sued their police department and initially got a court ruling that affirmed the test was biased. Fourteen years after the testing, the ruling was overturned, and the court ruled the test was not discriminatory. One question remains: Do the personnel who received damages owe those funds (and legal fees) back to the city?⁴
5. Claims of age discrimination. Fifteen plaintiffs sued their employer over several issues, one being violation of the state’s age discrimination laws with the claim that the process discriminated against the more mature personnel participating. Further, the long-standing promotional process was changed 30 days prior to the exam date from oral to written. One claim was that the younger personnel had an unfair advantage because of their mandatory medical rescue time and the report writing duties that came with that, along with taking written exams with extensive writing assignments during their training. Another argument was that the mandatory medical rescue time actually provided less fireground experience to the candidates. The city also removed seniority points, providing further advantage to the younger personnel. The jury awarded back pay to the time of the exam and $108,000 for emotional distress to each of the 15, for a total of $3.7 million.⁵
6. EEOC battle. In a metro fire department, the Equal Employment Opportunity Commission sued the union local, claiming the union has “advocated for, acquiesced in, and in fact negotiated in favor of a promotional process that has had an adverse impact on black candidates.” The EEOC’s lawsuit against the union was a companion case to the lawsuit filed by the U.S. Department of Justice against the city, which alleged that the city’s promotional practices for various positions in the fire and rescue department violated Title VII of the Civil Rights Act of 1964’s prohibition against race discrimination. The EEOC said the union continued doing so after receiving an EEOC commissioner’s discrimination charge against the union in February 2008. The city agreed that it would develop a new promotional examination for the selection of certain positions in the fire and rescue department. In addition, the city would offer up to 40 settlement promotion positions for qualified black individuals and will establish a $4.9 million settlement fund for eligible promotion candidates.⁶
7. Cheating scandal. Five hundred California firefighters had to retake a promotion exam because of a cheating scandal involving two people, in 2021.⁷
8. Racial disparity. Massachusetts canceled civil service promotional exams for fire departments due to a racial disparity and the fact that the test could not be validated since it relied on “rote memorization,” in 2022.⁸

Content or Process Issues: Written Examinations

Challenges and problems can start from several different sources. They can be structure or validity based, with more activity against written testing in part because it is still much more common than assessment center-type processes.

• Written question structure: This is about problems with the questions themselves. In many cases, they’re inadequately written. Issues may include poor or confusing wording, more than one correct response, no response that’s totally correct, questions from unapproved source materials, or questions that did not reflect the source content properly.
• Written validity: At its most basic, validity means that something “measures what it is supposed to.” The question was legitimate if the source material covered it. But validity can also refer to the applicability of question content from a specified reference. Does it apply to the local department and the job in question? Here’s an example that comes to mind: A department had a question regarding the torque setting on a wrench for maintenance on a power tool. It was in the department’s policies, so it should be fair; but the department didn’t allow personnel to do such maintenance and the stations weren’t equipped for it. As a result, the question became untenableLikewise, content used from textbooks that doesn’t reflect local conditions, staffing, or construction is also problematic. (See “resource materials” later in this article.) The term validity can also refer to adverse impact. (See “disparate impact discrimination” later in this article.)

Content or Process Issues: Assessment Center, Practical Exercises, or Interviews

Challenges can come from any candidate who feels the process was somehow unfair, that scoring may have been unduly subjective or otherwise incorrect. Challenges can also arise from “surprises” that come from unexpected procedures or processes or from inadequate candidate information during the process—or even in the announcements.

• Damage: When a mistake or the perception of a mistake made by the testing firm, the department, human resources, or other involved parties is identified, the result usually involves “damage.” Damage can be in many different forms, and normally several of the two categories below will be involved.
• Grievances: A grievance is a violation of a specific provision of the collective bargaining agreement. It can also be a violation of an established past practice; of federal or state law or standards; of city, county, or state; or local government/agency policies and/or civil service rules.⁹ Grievances are not necessarily substantiated just because a candidate feels something has gone wrong.
• Perception or claims of improprieties: Stories abound of candidates obtaining test questions or intel about their promotional processes. And whether the impropriety is intentional or accidental, it’s problematic. This can include copies of questions or even the actual exam left unsecured, overheard radio traffic during tactical events, candidates sharing information after exercises during a process, and situations where academy instructors observed testing that they would take for their agencies. Improprieties can even include the age-old practice of hiding notes in the restroom and then asking for a “bathroom break” during the test.

Disparate Impact Discrimination (29 CFR 1607)

A procedure having an adverse impact constitutes discrimination unless justified. “Adverse impact and the ‘four-fifths rule.’ A selection rate for any race, sex, or ethnic group which is less than four-fifths (4/5) (or eighty percent) of the rate for the group with the highest rate will generally be regarded by the Federal enforcement agencies as evidence of adverse impact”(1607.4.D). Employers must maintain records of candidates by racial, gender, or ethnic lines so they can check for “disparate impact.” Keep in mind that disparate impact does not need to be intentional.¹⁰ If the four-fifths rule is violated, it is the employer’s responsibility to prove the items in question were “job related for the position in question and consistent with business necessity.” You can find many articles, books, and rulings on this complex topic. Concerns to be aware of include the following:

• Litigation and legal expenses: All the issues mentioned above can incur legal expenses and litigation.
• Delays: Challenges, grievances, and especially issues that go to legal proceedings will cause considerable delays—even promotional paralysis.
• Harm to public opinion: Headlines of multimillion-dollar settlements, court findings against agencies, and even just claims of processes with errors or issues can hurt the reputation of the department and city, county, or district. Community members of an affected class or group in a discrimination suit will most likely change their opinion of the agency and its leadership.
• Harm to morale: There can be many aspects to the idea of harm to morale. Frustration and even anger can come with delays for personnel who studied and were prepared, harsh feelings toward those who filed grievances or legal challenges, and negative feelings toward the testing vendor and fire department administration.
• Damaged trust: Problems with the process, delays, and expenses will damage trust in many ways, including the following:
  • Labor/management: the comfort and expectations of each.
  • Between municipal departments: conflicting opinions and responsibilities.
  • Between the test provider and the candidates: the candidates feeling there was an attempt to “trick them” or otherwise unfairly score them.
  • Between the test provider and fire/municipal administration: conflicts causing a strain on the relationship between the two.
• Labor/management cooperation: Union local leaders can find themselves in the unenviable role of having members with opposing interests and opinions.
• Strained friendships: Helping a friend in another department and winding up in protracted meetings and hearings can put a real damper on friendships. Likewise, being the person in charge of a department’s testing and having friends test can put you in an awkward position, especially in cases of leaked-information claims.

Part 2: Preparation

Promotional testing should be a vital function in every fire department. It needs to reflect the actual job in the community being served and, above all, it needs to be fair. Testing can be an expensive investment, but if it is done wrong, it can become much more expensive.

Purpose of the Test

Consider the question, what do you want to accomplish? The test’s purpose can be to allow candidates to show they are prepared for the job by demonstrating representative skills and abilities, and that they can recall information applicable to the position. The candidates “show what they know” through scored exercises, with those scores forming a ranking of the candidates. 

Many Florida fire departments, for example, now require Fire Officer 1 certification by the state as a prerequisite, so much of the general knowledge (textbook knowledge) has already been determined as a qualifier.

Some agencies are small enough that a hard, fast “pass/fail” may leave them without enough people on their promotional list. Others will have 10 candidates for every position, and it becomes more of a runoff tool.

Preparing—Before the Process

You must consider several factors as you prepare to have a promotional process. Some of what follows may be in your collective bargaining agreement, civil service rules, or policies.

The first factor is deciding whether to select a firm or do the testing internally. If your agency or another unit of your local governance (such as the human resources department) is to do your own testing vs. hiring an external provider, it’s important to weigh certain factors.

• Testing internally will, in many cases, result in a test that most closely resembles how you do things. It can stress what you want it to stress. In most cases, you’ll have plenty of subject matter experts available to provide topics. What you may not have is somebody with a strong background on preparing written test questions or developing a fair grading process for practical exercises.
• If you conduct testing internally, all the responsibility belongs with department and its governing city, district, or county. Security, item validation, and any legal challenges belong to you.
• You’ll always have the concern for the appearance of improprieties of somebody sharing information or a candidate inadvertently accessing information that is left out, overheard, or witnessed.

Considerations for Internal Testing

• Validating the job description or conducting a targeted task analysis: This process is used to help determine what selection processes will demonstrate the desired knowledge, skills, and abilities (KSAs). It also helps to prioritize those KSAs, such as writing or speaking abilities, and specific knowledge, such as tactics and policy. Properly done, they can help verify policy vs. actual practice (about test items), help content validation for resource materials, and help determine your fire department’s practices for scenarios.
• Resource materials: All resource materials need to be readily available and announced well before the process—preferably at least six months before. Textbooks need to be current and relevant to your agency’s area and needs. Chapters and content that are not applicable to your agency need to be excluded from consideration, and that information should be included in the announcement. Too many resources become more of a test of reading and retention than application to the job and can be a target for a legal challenge. It’s also important to avoid asking candidates to remember obscure facts like that torque-wrench example. Keep in mind that you don’t have to use the entire book, and you can limit certain content with an outline. When you select resource materials such as internal policies, consider if the candidates have already been certified (such as state Fire Officer 1) or tested on specific procedures, such as EMS procedures.
• Passing score: This is determined by exercise, written exam, and overall. A 70% score is the norm, but why 70%? Is it OK to do a job 70% right? It’s the standard we are used to from certification testing and, to a lesser degree, education. A set score creates two classes: those who pass and those who fail. Which group sues? If you set a passing score, make it defendable. A consideration can be that no part of the process be pass/fail and possibly even the overall score is not either. The list proceeds top to bottom by score, with due consideration to the “rule of three” or with other CBA or civil service rules in effect.