The City of New Haven has recently embarked on revising its charter, a process that cities undergo after a set period of time has elapsed since the last charter revision process, or after a voter referendum calls for it. A city charter is a city’s constitution and dictates the functions and duties of various elected and appointed officials, city departments, and city boards and commissions. In New Haven, the charter revision process takes place only once every 10 years.

The current charter contains a provision regarding civil service promotions called the "Rule of Three." This provision has been criticized extensively, and was discussed by the U.S. Supreme Court in its 2009 opinion in the case Ricci v. DeStefano. As New Haven’s Charter Revision Commission embarks on revising the city’s charter, it should consider altering the Rule of Three to promote diversity within the ranks of the fire and police department leadership.

The charter provisions concerning civil service examinations have been the subject of litigation in both state and federal court, the most notable case being Ricci. The case concerned the City of New Haven’s decision to throw out 2004 civil service examination results for firefighters seeking promotions to captain and lieutenant. The city invalidated the results on the grounds that they revealed a disparate impact in violation of Title VII, and the city was concerned about being sued by the black firefighters who were not eligible to be promoted on the basis of the exam results.

For example, for the captain examination, 64 percent of white firefighters who took the exam passed, while the percentage of blacks and Hispanics who passed was roughly half, at 38 percent each. Furthermore, the city’s charter included a Rule of Three provision that would, in effect, promote to the position of captain only the top scorers, and none of the black firefighters who passed the examination achieved such top scores.

The mostly white firefighters who were denied promotions because of the invalidation of the exam results sued the city, alleging discrimination in violation of Title VII. These firefighters prevailed, as the Supreme Court concluded that the city’s actions violated Title VII and that the city failed to show a strong basis in evidence that it would have been liable under Title VIII. It was insufficient for the city to throw out test results on the basis of a threshold showing of a significant statistical disparity.

Under the Rule of Three provision, each vacant position for which a civil service examination is administered (such as for the lieutenant and captain positions for the firefighters) would be filled by one of the top three scorers of the civil service examination for the position. Thus, where there are seven vacancies for captain positions, as there were in 2003, the first vacancy can be filled by one of the firefighters who was amongst the top three scorers. Assuming that the first vacancy is filled by the top scorer, the second vacancy can be filled by the second-, third- or fourth-highest scorer, and and so on. Where there are seven vacancies, the top nine scorers would be eligible for promotion. For the position of captain, seven of the top nine scorers were white, and two were Hispanic.

While having a performance-based promotion process eliminates nepotism and cronyism that is often associated with appointments to government positions, studies have shown that examinations that weigh written components of the exam more heavily than other factors have a discriminatory impact on minorities. In the City of Boston, the primary measure for promotions is also written examination, and this has led to complaints among minority officers that the police department lacks diversity in the upper level positions. In a city such as New Haven, where racial relations with public safety officers are often strained, it is important that qualified minorities are not denied the opportunity to assume leadership positions because the civil service examinations statistically favor white police and firefighters.

While written examinations should continue to be considered in promotions for police and firefighter positions, it should not be the most heavily weighed factor. Cities that are addressing this issue have considered incorporating other merit-based measures into the promotion decisions, such as past performance reviews and event simulations, as well as factors that measure leadership qualities and supervisory abilities.

As New Haven considers revising its charter, it should examine its Rule of Three and consider revising it to use alternative, well-defined merit-based measures that would allow it to legally and proactively promote diversity in these important positions of leadership.•