COUNTY OF VENTURA CIVIL SERVICE COMMISSION BOARD OF REVIEW AND APPEALS Case No.: 16-321-13-02 In the Matter of Appeal of: DECISION AND ORDER KIMBERLY MICHAEL INTRODUCTION This is an appeal resulting from the examination process for promotion to the classi?cation of Senior District Attorney Investigator (?Senior Investigator?) within the Ventura County District Attomey?s Of?ce which occurred in August and September of 2016. The panel for this appeal consisted of the full County of Ventura Civil Service Commission including Alyse M. Lazar, Commission Chair, and Commissioners Donald Becker, Haywood Merricks Patricia S. Parham and James Vandenberg. Staff members present during the hearing were Cheryl Shaw, Commission Assistant, and Law Advisor Grant Burton. The Appellant was represented by attorney Mark R. Pachowicz and the Respondent was represented by Assistant -1- CIVIL SERVICE COMMISSION DECISION AND ORDER KIMBERLY MICHAEL APPEAL County Counsel Mathew A. Smith. The appeal was heard on April 25, 26 and 27 and on June 21 and July 27 of 2017. Exhibits admitted into evidence were Appellant?s Exhibits (pages 134-138), J, K, P, Q, Y7, Y8, Y9, Y10, Y12, Y23, AA and BB, and Respondent?s Exhibits 1, 3, 6, 7, 8, 9, 10, 11,12,13 and 15. ISSUES Two of the four portions of the promotion examination are before the Commission - the oral examination and the practical examination. The Personnel Rules and Regulations for Employees of The County of Ventura do not normally contemplate that an employee has a basis to appeal a practical examination to the CommissiOn. However, the Appellant successfully argued to the Commission on January 26, 2017 that the practical examination administered on September 15, 2016 for the Senior Investigator promotion examination amounted to a second oral examination and, on this basis, the Commission is considering the practical examination as well as the oral examination. Therefore, for both the oral examination and the practical examination the Commission, pursuant to PR Section 524, is tasked with deciding if fraud, favoritism or other non-merit factors were involved and, if so, with ordering an appropriate remedy. FACTUAL BACKGROUND Appellant is a District Attorney Investigator II who applied for promotion to Senior Investigator by participating in a promotional process in August and September of 2016. After a review of her application to determine that she met the minimum quali?cations, the Appellant participated in an examination process that consisted of 4 examinations a promotability review, a written examination, an oral examination and a practical examination. The promotability review and the written examination are not before the Commission. -2- CIVIL SERVICE COMMISSION DECISION AND ORDER KIMBERLY MICHAEL APPEAL p?a Oral Examination The Oral Examination was held on September 8, 2016 using a rating panel of law enforcement professionals not employed by the DA. These Raters were Supervising Investigator Laurie Devine of the Los Angeles County District Attomey?s Of?ce, Deputy Chief Joseph May of the Simi Valley Police Department, and Commander Cheryl Wade of the Ventura County Sheriff?s Department. The makeup of the rating panel was known to the DA at least as early as August 4, 2016. Although, as set forth in the Decision below, the Appellant did not meet her burden of proof with respect to favoritism being involved in the oral examination, previous relationships between Raters and Applicants suggests a potential for favoritism and is not, in the Commission?s view, consistent with best practices. There was testimony that some of the Raters and Applicants were known to each other, that some had previously worked together, that there was recent contact prior to, and even on the day of, the examination between Supervising Investigator Devine and one of the Applicants, and Deputy Chief May learned that one of his co-workers? wives was an Applicant 1-2 weeks prior to the exam but he did not disclose this connection the examination, Judy Coronado, the Human Resources Manager, provided the Raters with the names of the Applicants for the ?rst time and asked them if they knew of any reason they could not evaluate the Applicants fairly. Although May and Devine disclosed that they knew at least one of the Applicants, no detailed information regarding these relationships was inquired about by, or shared with, HR Manager Coronado. -3- CIVIL SERVICE COMMISSION DECISION AND ORDER KIMBERLY MICHAEL APPEAL The Applicants were provided with the Raters? names immediately before the examination and had an opportunity to object to any Rater with which he/she had a relationship that could result in bias against him/her. However, HR Manager Coronado did not inquire of either the Raters or the Applicants about possible favoritism. Even if this issue had been raised by the DA, by notifying the Applicants of the names of the Panelists on the day of the examination, insuf?cient time was provided to Applicants to determine if any Raters would have had a basis for favoritism towards other Applicants. By waiting until the day of the examination to notify Raters of the names of the Applicants, the DA had insufficient time to independently evaluate information regarding any Rater who was likely to exhibit favoritism towards, or bias against, any of the Applicants and, if necessary, to replace such Rater. Indeed, HR Manager Coronado testi?ed that the of?ce has no policy regarding recusal when an Applicant and a Rater have a close personal or professional relationship. Before the examination began, HR Manager Coronado instructed the panel that their scores should be relatively close to each other and if they were as far apart as 6 10 points, they should discuss the reasons for the differential to see if, for instance, one of the Raters missed something that the other Raters did not. All 3 Raters con?rmed that this instruction was given before the examination began. They were also instructed to ?ll out the rating form in pencil, presumably so changes could be made in the scores if they were not within Human Resources prescribed range. To give this instruction before the examination began encourages non-independence among the Raters when what should be encouraged is independent evaluations based on merit. In the Commission?s View, the examination rating process, including the Rating Form used for the oral examination, is problematic in several respects. First, there was no rubric or sample -4- CIVIL SERVICE COMMISSION DECISION AND ORDER KIMBERLY MICHAEL APPEAL answers provided to the Panelists to provide guidance as to what the preparer of the test questions, the of?ce, expected as the correct and complete answers to each question. Second, the answers to each of the test questions were not actually graded. Instead, based on the brief time that the Raters interviewed the Applicants and their answers to the questions, the Raters were to evaluate each applicant on ?vefactors: 1. Broad knowledge of supervision principles; 2. Knowledge of courtroom procedures; 3. Knowledge of the ?mctions and extent of authority of the District Attomey?s Of?ce; 4. Ability to gather, analyze, correlate and evaluate observed facts and evidence; and 5. Ability to work collectively with the prosecutor in the coordination and preparation of dif?cult cases. The instructions on the sheet provided that each Rater was to ?place a check mark in appropriate rating category,? however, some of the Panelist placed checkmarks overlapping 2 categories. The instructions provide ?determine ?nal score and mark in box below,? however, there was no guidance provided as to how to determine the ?nal score based on the checkmarks. Consequently, the same ?nal score of 87 was given to Appellant by one Rater whose checkmarks were all between 85-89 and another Rater who gave two checkmarks between 85-94 and two checkmarks between 85-89. Testimony even established that the Raters unanimously believed that none of the questions provided to them for the examination had any bearing on ?Knowledge of Courtroom Procedures? and therefore, the Applicants were not graded on 20% of the examination. -5- CIVIL SERVICE COMMISSION DECISION AND ORDER KIMBERLY MICHAEL APPEAL Practical Examination The practical examination occurred on September 15, 2016. The three Raters for the practical examination were DA Chief Investigator Mike Baray, Deputy DA Brent Nibecker and DA Deputy Chief Investigator Ken Valentini. Deputy Chief Valentini and the Appellant have an unusually negative history. For instance, in 2012 Deputy Chief Valentini initiated an Internal Affairs investigation against the Appellant that was not sustained. Additionally, Commander Tracy Towner credibly testi?ed that Senior DA Investigator Thomas Mendez had been instructed by Deputy Chief Valentini to fail the Appellant in a 2014 promotion examination when Deputy Chief Valentini was in the role of Acting Chief. Although Senior DA Investigator Mendez denied telling Commander Towner this information, the Commission ?nds that, based on a totality of the evidence and an evaluation of the live testimony of both witnesses, Commander Towner?s testimony was truthful. In sum, it is dif?cult to understand how the DA could believe that the inclusion of Deputy Chief Valentini on a panel that would rate the Appellant would not constitute favoritism. Certainly, his exclusion from the panel would have been consistent with the suggestion that Commander Towner recusing himself from the process at the suggestion of Chief Baray. The practical examination itself is problematic. The Job Bulletin states that the examination will simulate the role of a Senior Investigator. However, the actual examination required the Appellant to give a presentation on the Public Safety Of?cer Procedural Bill of Rights Act (POBR) and answer two follow-up questions related to POBR. While POBR may have some relevance to -6- CIVIL SERVICE COMMISSION DECISION AND ORDER KIMBERLY MICHAEL APPEAL DA Investigators, the Commission does not believe it is central to the role of a Senior Investigator nor the appropriate focus of an entire practical examination. Moreover, as the Commission ruled in January, in no meaningful way was the examination a ?practical examination? as that term is generally understood or is consistent with the Job Bulletin which states: ?District Attorney supervisory/management staff will evaluate the candidate?s knowledge, skills and abilities in simulating the role of a Senior Investigator in a job-related scenario.? (Respondent?s Exhibit 1.) It was instead (1) an oral examination, and (2) on a subject having very little do with the role of a Senior Investigator (POBR is not mentioned in the Senior Investigator job description [Appellant?s Exhibit Transparency of the process and the scoring for the practical examination are also problems for the Commission. Both the Applicants and Raters were informed, Via written ?Applicant Instructions? (Respondent?s Exhibit 9) and ?Rater Instructions? (Respondent?s Exhibit 10) that the Applicants will be rated . . . according to the following areas (rating factors): Oral communications Planning and organization skills Technical knowledge Application of knowledge Critical thinking Leadership Analysis/problem solving skills Time management? These factors, however, did not ?nd themselves onto the Practical Exam Rating Form. Instead, under the column entitled there are these ?ve factors: 1. Broad knowledge of supervision principles 2. Knowledge of modern techniques and practices of criminal investigation -7- CIVIL SERVICE COMMISSION DECISION AND ORDER KIMBERLY MICHAEL APPEAL Ix.) y?A r?t r?-I r?b v?n u?A v?t u?t WNQM-PWNHOCOOQQMAUJNHO 3. Knowledge of the laws of arrest, search and seizure, rules of evidence, admissibility of confessions and witness statements, and warrant and subpoena service. 4. Ability to gather, analyze, correlate and evaluate observed facts and evidence. 5. Ability to interrogate witness and suspects effectively. Testimony explaining the disparity between the rating factors the Applicants were told they would be rated on, and those that they were actually rated on, by both Bureau of Investigation Management and Human Resources Management, was unsatisfactory. At no time prior to or during the examination were the Applicants informed about the actual factors upon which they would be graded. Also, although there are numerical ranges of potential scores that are correlated to a Comment Guide, the scoring ranges are, apparently, only roughly related to the ?nal score given to by the Rater. All this results in a situation where an Applicant cannot review the Rating Form to determine which stated rating factors were scored in which way. As with the Oral Examination, the Raters were instructed by HR Manager Coronado before the examination began about avoiding signi?cant disparities between their scores and, as with the Oral Examination, the forms were to be ?lled out in pencil. Again, this discourages independent, merit-based scoring. For this examination, the Applicants were not informed about the identities of the Raters ahead of the Examination. They instead found out who the Raters were when they walked into the room for the examination and were not provided any reasonable opportunity or method for objecting to a Rater?s participation on the basis of favoritism or bias before the commencement of the Examination. -3- CIVIL SERVICE COMMISSION DECISION AND ORDER KIMBERLY MICHAEL APPEAL DECISION In accordance with Section 501 of the PR, the purpose of examinations is to, ?[t]est the knowledge, skills, abilities, and ?tness of all persons seeking employment or promotions to ascertain the best quali?ed Applicants.? Examinations must be administered in an equitable manner (PRR Section 101) and oral examinations shall not involve fraud, favoritism or other non-merit factors (PRR Section 524). Based on the above facts, the Commission ?nds that the DA failed to follow these mandates as to the oral and practical examinations as follows: A. Oral Examination: 1. Fraud: Not sustained. The Commission ?nds that fraud was not involved in the oral examination. 2. Favoritism: Not sustained. The Commission ?nds that favoritism was not involved in the oral examination. 3. Other Non-Merit Factors: Sustained. The Commission ?nds that non-merit factors were involved in the oral examination. B. Practical Examination: 1. Fraud: Not. sustained. The Commission ?nds that fraud was not involved in the practical examination. 2. Favoritism: Sustained. The Commission ?nds that favoritism was involved in the practical examination. 3. Other Non-Merit Factors: Sustained. The Commission ?nds that non-merit factors were involved in the practical examination. -9- CIVIL SERVICE COMMISSION DECISION AND ORDER KIMBERLY MICHAEL APPEAL 9m Pursuant to PRR Section 523, and based on the above Factual Background and Decision, and on the evidence and testimony submitted, the Commission invalidates the oral and practical examinations conducted by the DA for the August/September, 2016 Senior Investigator promotion process] Alternatively, the Commission directs the Director-Human Resources to invalidate the oral and practical examinations conducted by the DA for the August/ September, 2016 Senior Investigator promotion process. August 9, 2017 . Lazar, Commi sion Chair -10- CIVIL SERVICE COMMISSION DECISION AND ORDER KIMBERLY MICHAEL APPEAL NOTICE REGARDING JUDICIAL REVIEW Please take notice that petitions forjudicial review shall be ?led no later than the 90th day following the date on which the decision becomes ?nal. This tirne period is governed by the provisions of the California Code of Civil Procedure section 1094.6(b) and which speci?cally override the time period found in the Ventura County Ordinance section 1352-23 and Ventura County Personnel Rules and Regulations section 2321. -11- CIVIL SERVICE COMMISSION DECISION AND ORDER KIMBERLY MICHAEL APPEAL PROOF OF SERVICE BY MAIL C.C.P. 1013a STATE OF CALIFORNIA, COUNTY OF VENTURA I declare that I am a resident of the State of California and employed in the County of Ventura, California. I am over the age of 18 years and not a party to the within entitled proceedings. My business address is Ventura County Civil Service Commission Board of Review and Appeals, 800 S. Victoria Avenue, Ventura, California 93009-1500. On August 10, 2017, 1 served the following document(s): Decision and Order with Notice Regarding Judicial Review (Re Appeal of Kimberly Michael, Case No. 16-321-13-02) on the interested parties listed below by placing a true copy thereof enclosed in a sealed envelope and placing that envelope for collection and mailing on the date shown below. I am readily familiar with the County of Ventura?s business practice for collecting and processing correspondence for mailing which is deposited in the ordinary course of business with the United States Postal Service with postage fully prepaid. Matthew Smith Mark Pachowicz Kimberly Michael Asst. County Counsel 771 Daily Drive 800 South Victoria Suite 230 Ventura, CA 93009-1830 Camarillo, CA 93010 i declare under penalty of perjury of the laws of the State of California that the foregoing is true and correct. Execute on August10, 2017 at Ventura California. Cheryl A. Shaw Civil Service Commission Asst. Board of Review and Appeals