Roger Gainey thought he had what it takes to become a supervisor at the San Francisco Juvenile Probation Department.
He certainly met the basic criteria: "May be required to restrain hostile or agitated youth…. Requires ability to work in stressful situations…. Minimum four years of verifiable professional experience as a juvenile probation officer."
Gainey has worked as a probation officer in the department for eight years and received satisfactory performance evaluations from superiors. His big, muscular frame commands attention from people around him, even violent young toughs. But his soft facial features and cool manner seem to convey the thoughtful side necessary to work with directionless teens. "I’ve worked in all of the units," he told the Guardian, "pretty much throughout the whole department."
Most of all, Gainey, an African American, earned the top score on a difficult civil service exam that was offered in March for the first time since Gainey began at the department, beating 24 other applicants gunning for the same promotion.
So why did department managers skip over him and select four other applicants with lower scores on the combined written and oral test?
Alphanso Oliphant, who’s also black, believed he too possessed all of the right qualities to become a supervisor and lead 10 to 12 staffers in this often tense environment. He’s worked as a juvenile probation officer for 21 years and earned the second-highest score.
But he was also passed over for advancement.
Oliphant speaks deliberately, with a soothing voice, his visage distinguished by weary eyes and a slender moustache. He and Gainey wore well-pressed suits and detention center access badges around their necks as we met recently over lunch in West Portal, not far from the department’s central office on Woodside Avenue.
"I’ve had numerous supervisors," Oliphant said. "Not one has ever, ever raised the issue of inability to perform, inability to communicate properly, inability to work with the families. That’s all verifiable."
Gainey’s current assignment involves working with about 40 young people at a Juvenile Probation Departmentaffiliated school known as the Principal Center Collaborative Campus, where many of the students have drug and alcohol problems and require mental health services.
Oliphant is a court officer responsible for presenting the department’s recommendations for cases appearing on the docket each day the top task he can perform under his current job classification.
The department first announced the available supervisory positions in January, and three days’ worth of examinations were taken by applicants this spring. But in the week following the test period, a personnel manager for the department named Samuel Kinghorne made an agreement with a union representative from the Operating Engineers Local 3 (who did not return calls seeking comment) to change a long-standing civil service rule reguutf8g how individuals are promoted.
The cornerstone of the city’s civil service system is its merit component. By requiring that applicants for available positions be given exams, the city can ensure that those with the highest qualifications will get the job. The Civil Service Commission here is one of the oldest in the nation, in fact, first formed in 1900 as a response to the entrenched municipal cronyism rampant in cities around the nation, including San Francisco.
For years top scorers on civil service exams were selected for open positions under what’s known as the rule of three. It required managers to promote from among those who earned the highest scores, which surely would have meant new jobs for Oliphant and Gainey.
The rule of three became official city policy in San Francisco nearly 20 years ago, and the concept has existed at the federal level for decades as a way to prevent patronage and favoritism.
At the time the job openings were announced, however, the Juvenile Probation Department was negotiating with Local 3 over an alternative selection process called the rule of the list, which is permitted under city guidelines only if applicants are notified of the change at the time the job openings are announced. The rule change allowed managers in this case juvenile probation chief William Sifferman to promote from a much larger group of applicants, including those who had earned lower scores on the exam.
But the change was not agreed on until months later, just after the tests were taken, leading Oliphant and Gainey to believe the department tinkered with the promotion process only after it learned who had made it to the top of the list.
"When a black man is in a position to make that touchdown, the goal line moves," Oliphant said. "The goal line moved here."
Department personnel analyst Barry Biderman, who was involved in the negotiated rule change, says it took months to settle because he was simply having trouble getting in touch with the union. "I had left messages with the union a number of times," he said. "The formal letter just took a while to sign."
Sam Kinghorne, who finalized the change with the union, insisted there was "nothing illegal about that" but mostly refused to comment, pointing to union grievances filed by Oliphant and Gainey. "You guys are barking up the wrong tree," Kinghorne said. "I’m not going to give you a spicy story. But remember that it’s up to the appointing officer to [make the selection]."
That’s true. As long as the rule of the list is in place, the department head can pick whomever he wants for the job from among those who passed the test, narrowly or not. The decision maker was Sifferman, but he called it a "personnel matter" and refused to explain why he selected four people for promotions other than Gainey and Oliphant, including one applicant who scored a 937 to Gainey’s 1060.
"I followed the process as it was described in the job announcements and all of the procedures that were outlined there," Sifferman said.
Carl Bellone, a longtime public administration professor at California State University, East Bay, concedes that the rule of the list may "lend itself to more potential for abuse" than the rule of three.
The trick is finding a balance between a century of civil service rules designed to ensure clean government and the reality that top test scorers may not always be the best candidates. "Ironically, a lot of people wanted to go to the rule of the list for affirmative action reasons," Bellone said. "You can go lower on the list to select a woman or African American."
But the rule of the list can also allow managers and politicians to limit promotions to loyalists who will do their bidding, or exclude those who aren’t afraid to openly criticize an agency’s performance.
"It completely and totally … prostitutes the promotional process," said Gary Delagnes, president of San Francisco Police Officers Association, which has long resisted the rule of the list. "If you give an exam any exam and you tell the person that finished number one, ‘We’re not going to give you this promotion, because we don’t think you’re up to the task,’ then what’s the point? You might as well go in alphabetical order."
Regardless of motive, the move by Juvenile Probation Department managers at least looks unseemly, considering Oliphant and Gainey are black (one African American woman was selected; the rest were not black). So each filed a complaint with the federal Equal Employment Opportunity Commission and the San Francisco Civil Service Commission.
The timing of the new selection rule "suggests the change was made solely to give management the ability to exclude certain individuals from promotion and allow other, lower scoring individuals, to [advance]," Gregg Adam, a lawyer for the duo, wrote to civil service officials and the San Francisco Department of Human Resources in August.
The union that agreed to the rule change didn’t even represent Gainey and Oliphant Local 3’s rank and file are supervisors, the title the men were hoping to attain. Officials at the Human Resources Department looked into the matter but insisted in a report called for by Adam that management had done nothing wrong. The Juvenile Probation Department was unaware of the test results before it changed the promotion policy because its outside consulting firm hadn’t graded them yet, the September report concluded. It also said that the rule of three policy allows for a slightly broader pool of eligibility when more than two positions are vacant.
On the other hand, the report does acknowledge that managers began grading the oral portion of the exams right away. And the list of those who were promoted wasn’t unveiled until August, long after the tests were first administered and all of the scores were in. But "there was no evidence" that the rules were changed in an attempt to discriminate against Gainey and Oliphant, according to the report.
Anita Sanchez, executive officer of the Civil Service Commission, recently finished a probe for her department and told us she believes the Juvenile Probation Department management’s claim that they had no idea who had earned top scores on the test before broadening the list of applicants eligible for promotion.
But Gainey and Oliphant say the experience has soured them on the Juvenile Probation Department.
"A lot of the kids were rooting for me at the [Principal Center Collaborative Campus]…. They were all cheering me on," Gainey said. "Then all of a sudden they found out I didn’t get it. The kids were more hurt than I was." *