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HomeMy WebLinkAbout4E - MPRS Defendants AGENDA #: PREPARED BY: SUBJECT: DATE: BACKGROUND: DISCUSSION: STAFF AGENDA REPORT 4E r{'f:, FRANK BOYLES, CITY MANAGER^- CONSIDER APPROVAL RESOLUTION 96-09 AUTHORIZING ALLOCATION OF DAMAGES TO M.P.R.S. DEFENDANTS. FEBRUARY 20, 1996 By virtue of our membership in the Minnesota Police Recruitment System, the City of Prior Lake is one of 36 defendants in the Starks and Fields case. The Joint Powers Board has recommended an allocation of costs to each member city, which is reflected in the attached resolution. The purpose of this item is to have the City Council consider adoption of the resolution allocating funds to be paid. At their January 16 meeting the City Council conducted an executive session to discuss the status of the Fields/Starks vs. MPRS. City Attorney Tom Barrett indicated to the Council that three issues remain outstanding, including: 1. Economic issues 2. CSO Program 3. Affirmative Action Program. This memorandum addresses Issue #1 above. The other issues are addressed in a recent memo from Charles Lefevere, Attorney for MPRS (attached). The draft Affirmative Action Plan has not been received as of February 14 and we are still evaluating the POCOP program. Total costs to be split between the 36 cities are estimated to be $1,000,000, including court costs, plaintiff attorney fees and damages. The attached resolution would allocate a formula of 20 per cent of the costs distributed equally between the 36 member cities. AGN0205.DOC 16200 Eagle Creek Ave. S.E., Prior Lake, Minnesota 55372-1714 / Ph. (612) 447-4230 / Fax (612) 447-4245 AN EQUAL OPPORTUNITY EMPLOYER The remaining 80 percent of the costs would be distributed based upon population. Our current estimate is that Prior Lake will be responsible for just over $17,000 using this formula. This is not an insurable claim. ISSUES: We have considered and may ultimately decide to discontinue membership in the MPRS program. Whether we do or not, we will be held responsible for the cost identified above. ALTERNATIVES: 1. Adopt the attached Resolution, 96-09 as part of the Consent Agenda. 2. Remove this item from the Consent Agenda for additional discussion. 3. Request additional information. RECOMMENDATION: Alternative #1. The funding formula proposed appears to be an equitable one and does not unduly penalize the City of Prior Lake. This funding formula has also been agreed to by the Board of Directors consisting of the 36 member cities. To protect the City from future claims of this nature the MPRS needs to examine its contract with their Executive Director. Regardless of the conclusion of this action, we will be evaluating through the Police Department and Assistant City Manager whether it would be appropriate for the City to contract with others for police candidates. ACTION REQUIRED: A motion and second to adopt the Consent Agenda. AGN0205.DOC RESOLUTION 96-09 A RESOLUTION APPROVING ALLOCATION OF DAMAGES AND AUTHORIZING PAYMENT THEREOF WITH RESPECT TO MPRS LAWSUIT MOTION BY: SECOND BY: WHEREAS, The City of Prior Lake (hereinafter referred to as the "City") is a defendant in the cases of Starks v. Minneapolis Police Recruitment System, ~.; Hennepin County District Court File No. EM93-219, and Fields v. Minnesota Police Recruitment System, ~.; District Court File No. EM93-218; and WHEREAS, The Court has concluded in said actions that the defendants violated Minnesota Statutes, Chapter 363, the Minnesota Human Rights Act, in the administration of the Minnesota Police Recruitment System (MPRS) testing process for entry level police officers employment screening and that defendants are obligated to pay certain damages and penalties; and WHEREAS, In its order dated November 6, 1995, the Court determined that the defendant cities are obligated to pay $156,688 in damages for lost wages and emotional distress; and WHEREAS, The Court has also determined that the MPRS,. a joint powers organization of which the City is a member, or was a member at the time the actions were commenced, is obligated to pay each of the two plaintiffs punitive damages in the amount of $8,500; and WHEREAS, The Court has not yet made a determination as to the award of plaintiffs' costs, disbursements, and attorney' fees; and WHEREAS, The Court also determined that the unlawful discrimination by the defendants can reasonably be remedied in part by paying a statutory penalty in the amount of $300,000 to the state of Minnesota, or in lieu of such penalty establishing a reasonable minority race hiring commitment satisfactory to the Court. In the event a hiring commitment is submitted to the Court which is found to be satisfactory, it may be that the payment of a statutory penalty will not be required; and WHEREAS, The MPRS has proposed that the payment of monetary damages to the plaintiffs described above in paragraph 1.3, punitive damages described above in paragraph 1.4 and plaintiffs' costs, disbursements and attorneys' fees be allocated among the parties on the following basis: 20% of such costs would be divided equally among the 36 city defendants. 80% of such damages would be divided pro rata on the basis of the population served by the cities police RES9609.DOC 16200 Eagle Creek Ave. S.E.. Prior Lake. Minnesota 55372-1714 / Ph. (612) 447-4230 / Fax (612) 447-4245 AN EQUAL OPPORTUNITY EMPLOYER departments as of the time the actions were commenced in lanuary of 1993. Such population would be determined on the basis of Metropolitan Council estimates for cities in the metropolitan area. For communities outside of the metropolitan area the population would be determined by the State Demographer's estimates. For communities with service contracts under which police service is provided to other municipalities, the populations of such other municipalities would be included in the computation of population served. WHEREAS, It is in the best interest of the City to reach mutual agreement on the allocation of damages, and WHEREAS, The allocation proposed by the MPRS is found to be fair and reasonable, and consent thereto is in the best interest of the City. NOW THEREFORE, ON THE BASIS OF THE PREMISES, BE IT RESOLVED BY THE CITY COUNCIL OF PRIOR LAKE as follows: 1. The allocation for payment of damages, penalties, costs, disbursements and attorneys' fees described above is hereby approved. 2. The City consents and agrees to payment of its share of such damages, penalties, costs, disbursements and attorneys' fees.in accordance with the alloclation formula described above, and; 3. The City Manager is authorized and directed to make payment for the City's share of final judgment of such expenses in accordance with the agreed upon allocation. 4. This Resolution does not amend previous agreement among the defendant cities for allocation of defense costs and defendants' attorneys fees; and nothing herein shall be deemed to be an agreement as to allocation of any statutory penalties which may be awarded in the future. 5. This Resolution constitutes only an agreement 'between and among all cities which are defendants in the above-referenced actions which consent and agree to the allocation formula described above. Nothing herein shall be deemed an admission of responsibility or a liability in any action for contribution by any city which has not consented to such allocation or a waiver by the City of any rights, claims, demands, or causes of action for contribution by the City against any city which has not agreed to such allocation. Passed and adopted this 20th day of February, 1996. YES NO Andren Greenfield Kedrowski Mader Schenck Andren Greenfield Kedrowski Mader Schenck {Seal} City Manager City of Prior Lake RES9609.DOC POPHAM HAIK MEMORANDUM RE: Frank Boyles Thomas B~ MPRS Litigation 3300 Piper Jaffray Tower 222 South Ninth Street Minneapolis, Minnesota 55402 C/"h1 I. (612) 333-4800 , T IVlGR'S CITY OF p . Of:f:/CE /fj) R/OR LA.KE Ul1 FEB 1 2 1996 ,- l(CfDWIl &J TO: FROM: DATE: February 9, 1996 Frank, I am including a copy of the recent correspondence of Charley LeFevere with this memorandum. 1. I have reviewed the proposed resolution, and I recommend that Prior Lake pass it at its next council meeting. Effectively this resolution will probably foreclose appeal of the judge's order on the issue of damages, but I do not recommend that Prior Lake make such an appeal. 2. The other matter for decision by the Council is the injunctive relief ordered by Judge Solum. A. I include the proposed agreement which Charley LeFevere drafted on the question of the necessary hires for purposes of reaching racial balance in the defendant cities' police forces. The difficulties with this proposal are two. First, the City of Prior Lake continues to be liable to the Plaintiffs if this commitment is not met. This will mean further litigation costs and perhaps further fines and plaintiff attorney's fees. Secondly, I cannot tell what number are actually being proposed by this formula. This suggests that we may get numbers which are unrealistically high, or that we will get to litigate in the future about what the formula means. By way of alternative, you may wish to consider that Prior Lake not commit to this formula, but instead write the Judge a letter, setting out the small size of the force and your current affirmative action commitments, agreeing to be reviewed at the end of a three year period, in order to demonstrate good faith. B. We are still waiting for Mel Harris draft of the proposed affirmative action plan with respect to attracting racial minorities to the City's CSO program. I understand that will be available by February 15th, and I expect we could have the Council review it at it's February 20th meeting. Once I get it, I will analyze it and make a recommendation to you. Please let me know if you would like to discuss this further. cc: Suesan Lea Pace 082/221083822/9/96 KENNEDY & GRAVEN CHARTERED Attorneys at Law Facsimile (612) 337-9310 CORRINE H. THOMSON JAMES J. THOMSON LARRY M. WERTHEIM BONNIE 1.. Wn.KlNS JOE Y. YANG ROBERT A. ALSOP BRUCE M. BAITERSON RONALD H. BATTY STEPHEN J. BUBUL JOHN B. DEAN DANIEL J. GREENSWEIG DA VlD J. KENNEDY CHARLES L. LEFEVERE JOHN M. LEFEVRE, JR. ROBERT J. LlNDALL ROBERT C. LONG JAMES M. STROMMEN 470 Pillsbury Center, Minneapolis, Minnesota 55402 (612) 337-9300 DA VlD L. GRAVEN (1929.1991) WRITER'S DIRECT DIAL (612) 337-9215 OF COUNSEL ROBERT C. CARLSON ROBERT 1.. DAVIDSON WELLINGTON H. LAw CURTIS A. PEARSON T. JAY SALMEN MEMORANDUM TO: City Managers, Administrators, Attorneys and Chiefs of Police of Defendant Cities in Starks & Fields v. MPRS. et al. FROM: () Charles L. LeFevere 0 9~ <:s- DA TE: February 9, 1996 RE: Response to the Order of Judge Solum Relating to Hiring Commitment and Affmnative Action Programs The purpose of this memorandum is to provide you with an update on the obligation of the defendant cities and the MPRS to respond to Order No.4 on page 7 of Judge Solum's order of November 6, 1995 in the Starks & Fields case. Order No. 4 requires the defendants to submit detailed plans or programs for the implementation of Findings No. 14 and 15 on pages 5 and 6 of the order. I. EXTENSION OF TIME At our request, Judge Solum has granted an extension of time to provide the requested information to the court, until March 1, 1996. It was somewhat more difficult than I had expected to convince the court to grant us an extension. Therefore, it would be prudent to regard March 1 as an absolute deadline. Mel Harris tells me that he will have a completed draft of the affrrmative action program to us by February 14, 1996. We will immediately transmit a copy of that draft to the cities for their review, comment and consideration. Given the shortness of time between the completion of Mel' s project and the court's deadline, it is essential that the cities review the document as soon as possible. If any of the cities have not yet provided information to Mel, that information must be provided as soon as possible. CLL100209 MPllO-2 February 9, 1996 Page 2 To date, I have received word from two cities, Mendota Heights and Brooklyn Park, that they will be submitting their own individual affirmative action programs to the court. - II. RESOLUTION ON DAMAGES On December 29, 1995, I forwarded to all of the defendant cities a draft resolution relating to the allocation of damages among the defendant cities. The formula described in the resolution was recommended to the MPRS board by its executive committee. I received a few comments about the form and format of the resolution, and those recommendations have been incorporated in the attached, revised resolution. Therefore, I submit the attached resolution for consideration for adoption by each of the defendant cities. I would appreciate it if you could provide me with a copy of the adopted resolution for your city once the council has decided. If the city council declines to approve the resolution, I would appreciate being notified of that as well. III. POCOP PROGRAM On January 31, 1993, at the invitation of the State Department of Public Safety, representatives of a number of the defendant cities attended a meeting at the Rosemount community center about the Police Officer Career Opportunities Program (POCOP). The State Department of Public Safety and the cities of St. Paul and Minneapolis have entered into a joint powers agreement for the training of police officers. The program which is run under this joint powers agreement is referred to as POCOP. As many of you will recall, until the late '70s, cities hired police officers who were then sent to a police academy for their law enforcement training. The law was then changed to require a two-year community college program of an approved law enforcement curriculum, followed by the POST board examination. POCOP is a return to the older system. The joint powers organization contracts with community colleges to put on what is essentially a police academy for the Department of Public Safety and participating cities. POCOP has extended an invitation to the defendant cities in the Starks & Fields lawsuit to participate in an upcoming POCOP program. This program requires the city to hire candidates as police officers and send them to the academy. The academy is a course of study of between four and five months. The cost to the city would be the tuition which is approximately $3,500 plus whatever salary is paid to the police officer during the academy period. The next POCOP class is scheduled to begin on September 3, 1996 to end during December, with graduation in early January. It will be given at the Rosemount community center. CLL100209 MPllO-2 February 9, 1996 Page 3 The POCOP program has had one class in the past and the participating cities were very successful in recruiting and training minority police officers. The primary advantage of the program is that it accelerates the certification process from two years to four months. Because of this, it greatly expands the pool of potential minority candidates. Cities are currently effectively limited to the pool of applicants who have completed, or are about to complete, the two-year community college program in law enforcement Under the POCOP program, a city can recruit from a substantially larger minority candidate pool. For example, a city might recruit a minority candidate with a BA degree, hire him or her as a police officer and have the candidate qualified and certified in just over four months. We have been advised that the assistance of the State Department of Employee Relations will be available to assist cities in recruiting minority candidates for this program. I understand that the City of Plymouth has already reserved two spots in the upcoming POCOP class. I urge you to seriously consider participating in this program if it is consistent with your police officer hiring needs. I believe that it would be very helpful to be able to represent to the court in our submittal on March 1, 1996 that a number of cities have made a commitment to participate in this program. If you would like further information about the program, I would encourage you to contact Mr. John Edwards at the State Department of Public Safety. Additionally, I understand that grant money is available through the POST board for participation in this program. I would suggest that, if you are interested in the POST board grant program, you contact the POST board directly. cc: Mel Harris Larry Thompson CLL100209 MPllO-2 CITY OF COUNTY OF STATE OF MINNESOTA RESOLUTION NO. RESOLUTION APPROVING ALLOCATION OF DAMAGES AND AUTHORIZING PAYMENT TIiEREOF BE IT RESOLVED by the City Council of the City of as follows: , Minnesota (City) Section 1. Background. 1.1. The City of (hereinafter referred to as the "City") is a defendant in the cases of Starks v. Minneapolis Police Recruitment System, et al.; Hennepin County District Court File No. EM93-219, and Fields v. Minnesota Police Recruitment System, et al.; District Court File No. EM93-218. 1.2. The Court has concluded in said actions that the defendants violated Minnesota Statutes, Chapter 363, the Minnesota Human Rights Act, in the administration of the Minnesota Police Recruitment System (MPRS) testing process for entry level police officers employment screening and that defendants are obligated to pay certain damages and penalties. 1.3. In its order dated November 6, 1995, the Court determined that the defendant cities are obligated to pay $156,688 in damages for lost wages and emotional distress. 1.4. The Court has also determined that the MPRS, a joint powers organization of which the City is a member, or was a member at the time the actions were commenced, is obligated to pay each of the two plaintiffs punitive damages in the amount of $8,500. 1.5. The Court has not yet made a determination as to the award of plaintiffs' costs, disbursements, and attorneys' fees. 1.6. The Court also determined that the unlawful discrimination by the defendants can reasonably be remedied in part by paying a statutory penalty in the amount of $300,000 to the state of Minnesota, or in lieu of such penalty establishing a reasonable minority race hiring commitment satisfactory to the Court In the event a hiring commitment is submitted to the Court which is found to be satisfactory, it may be that the payment of a statutory penalty will not be required. 1.7. The MPRS has proposed that the payment of monetary damages to the plaintiffs described above in paragraph 1.3, punitive damages described above in paragraph 1.4 and plaintiffs' costs, disbursements and attorneys' fees be allocated among the parties on the following basis: CLL98JJ5 MPllO-2 1 20% of such costs would be divided equally among the 36 city defendants. 80% of such damages would be divided pro rata on the basis of the population served by the cities police departments as of the time the actions were commenced in January of 1993. Such population would be determined on the basis of Metropolitan Council estimates for cities in the metropolitan area. For communities outside of the metropolitan area the population would be determined by the State Demographer's estimates. For communities with service contracts under which police service is provided to other municipalities, the populations of such other municipalities would be included in the computation of population served. Sec. 2. Findings. 2.1. It is in the best interest of the City to reach mutual agreement on the allocation of damages. 2.2. The allocation proposed by the MPRS is found to be fair and reasonable, and consent thereto is in the best interest of the City. Sec. 3. Aoorovals and Authorizations. 3.1. The allocation for payment of damages, penalties, costs, disbursements and attorneys' fees described above is hereby approved. 3.2. The City consents and agrees to payment of its share of such damages, penalties, costs, disbursements and attorneys' fees in accordance with the allocation formula described above. 3.3. The City and are authorized and directed to make payment for the City's share of final judgment of such expenses in accordance with the agreed upon allocation. 3.4. This resolution does not amend any previous agreement among the defendant cities for allocation of defense costs and defendants' attorneys fees; and nothing herein shall be deemed to be an agreement as to allocation of any statutory penalties which may be awarded in the future. 3.5. This resolution constitutes only an agreement between and among all cities which are defendants in the above-referenced actions which consent and agree to the allocation formula described above by adoption of substantially similar resolutions. Nothing herein shall be deemed an admission of responsibility or a liability in any action for contribution by any city which has not consented to such allocation or a waiver by the City of any rights. claims. demands, or causes of action for contribution by the City against any city which has not agreed to such allocation. CLL'.BJJ:, MF'llO-2 2 Adopted by the City Council of the City of , 1996. , this _ day of ATTEST: CLL983J:. MPllO-2 3 HIRING COMMITMENT In the Court's Order of November 6, 1995, the defendant cities were required by Order No.4 on page 7 to submit a plan to accommodate the impJenlentation of programs as described in finding 1~ on page 5 of the Order, under which the cities were obligated to pay a statutory penalty in the amoullt of $300,000 to -the state of Minnesota, or in lieu of such penalty~ establish a reasonable minority race hiring commitment satisfactory to the court. This section of the memorandum addresses that requirement. The court has recognized the validity of the use of cognitive skills tests for police officer selection. The record demonstrates that African Americans, as a group, ~core lower on such tests than white applicants. Therefore, the evidence suggests that, absent compensating factors, the selection rate for African Americans may be somewhat lower than the selection rate for whites. There is no evidence to suggest that the overall selection rate for African Americans would have been higher than the selection rate of white~. even in the absence of tests having no impermissible adverse impact. During the meeting among the Court. counsel, and representatives of a number of the parties on December 21, 1995, there was discussion of whether the hiring commitment ~hould detine the cities' obligation only by reference to new hirings, occwring after the suit was commenced or some later date. as opposed to giving the defendant (,.iti.es credit for those African American hirings which have already occurred. An order which did not recognize African American hirings which have already occurred would not be warranted because it would ex<.:eed the necessity of remedying the effects of past discrimination by resulting in an overall selection of African Americans which would substantially exceed the selection rate of whites. If a race conscious remedy is justified at all. it can only be to remedy the effe(;ts of past discrimination. If voluntary action of the defendants has reduced such effects, such reduction must be ac1cnowledge as a limitation on the permissibility of a race conscious remedy. Defendants cannot justifiably expand their authority to e.ngage in race conscious hiring activities by relnedying the effects of past discrimination twice. In response to the Court.'s Order, defendant cities submit the commitment to reach a point at which the African American hiring rate from 1979 onward meet" or exceeds the hiring rale of whites during the same period. That is, the ratio of African Americans hired to African Americans in the applicant pool meets or exceeds the ratio of whi.tes hired to white~ in the applicant pool. (African Americans hired equal or exceeds African Americans in the applicant pool whites hired whites in the applicant pool) The determination of the denominators of the two ratios (Le... the numbers of Afrk~Hl Americans and whites in (he applicant pool) is complicated by the fact that not all defendants who join in this proposal continue to be members of the MPRS and othe.r members of the MPRS are not defendants. Arguably, each of the defendant cities would have a different appli~ant pnq I after they left the MPRS. However. it is not practical to use individual dty applkan( p<.'nh because the numbers of African Alnericans in the applicant pool in me case of a single dty '" III 1 be too small to yield reliable or meaningful numbers for Inany years to come. It is only by accumulating data for all 36 cities for 17 years [hat a sufficient number of African Amerkan applicants (41) come into the system to generate statistics that are even arguably meaningful or representative. Even using tile entire MPRS data base, the triaJ evidence shows that the number of African Americans te.sting was three or fewer in 8 of 15 years lhrough 1993. The most accurate picture of lhe applicant pool is derived from the largest data base. That data base is the MPRS applicant pool which includes applicants for all MPRS cities and covers a time period of 17 years. This experience involves approximately 7,000 applicants. Moreover, the use of these numbers for the 17 year period, is related [0 the employment practice which is the subject of this case. Hiring goals based on statistics which do not include this MPRS testing experience will be unrelated (0 the employment practice which was the subject of this case, particularly in cities which no longer use the MPRS testing process. Additionally, it is not practical to combine applicant. pool statistics fronl me MPRS members because there will be significant overlap in t.hese different applicant pools. Therefore, the defendant cities propose that the number of African American applkants and the number of white applicants be taken from the MPRS testing statistics. A separate question is how to determine (he numerator of the two ratios, Le., the number of African Americans hired and the number of whites hired. Defendants submit the. proposal that these numbers be determined by the numbers of African American and white hirings in all of the defendant cities from the inception of the MPRS testing process to the date of the determination whether the comnlitment has been met. Only by accumulating data on hirings from all defendant cities is it possible to relate the hiring commitment to the effects of past discrimination. The number of African Americans in the total applicant pool is only a very smalJ percentage of the number of whites. Therefore if a hiring commitment were to apply to each individual city, each city whkh hired one, African American would have a selection rate of African Americans which exceeded the selection rate of whites. Each city which had not hired an African American would have a selection rate of Afrkan American's which fell short of the selection rate of whites. Tf each i.ndividual city were required to have an African American selection rate which equalled or exceeded the selection rate of whites, 36 African Americans would have to be hired, one for each of the defendant cities. This would be an overall selection rate for African Americans which is over five times the select.ion rate for whites. Nothing in the record suggests that a race conscious remedy of that magnitude is justified. The participating cities would be required to continue all effort~ described in the proposal submittal herewith (in re~ponse to Order No.4 as it relates to Findings 14a and b of the Order of November 6, 1995), uoril this commitment is met. 2