Christopher Peak Photo
Police Commission votes on undisclosed hiring policy.
Police commissioners approved a new policy for the department. But they won’t tell the public what it is.
Their secretive — and possibly, illegal — actions took place at a special meeting of the Board of Police Commissioners held at 1 Union Ave. on Thursday night.
The meeting was called to approve a new hiring policy, specifically a new drug policy, city lawyers later revealed. But the department brass won’t say what changed. The commissioners discussed the policy in executive session, and they voted to approve the policy without revealing what they were voting on.
Assistant Chief Racheal Cain said that the hiring policy was off-limits to public disclosure because a provision in state law allows agencies to withhold questions and answers from hiring tests.
An open-government expert said it’s unlikely that exemption would apply to the policy discussion and vote Thursday night. “A policy isn’t testing material,” said Thomas Hennick, the public education officer for the state’s Freedom of Information Commission (FOIC).
The New Haven Independent filed an appeal to the FOIC on Monday, asking for police commissioners to turn over any notes from their closed session and for the department to release the new hiring policy, which took effect on Thursday.
At issue is what constitutes a “policy” that should be discussed in public under the state’s open government laws and whether specific hiring guidelines need to be kept from public view in order to effectively hire the best cops.
Case law clearly protects the government’s right to withhold answers to tests from public view. But the case law also requires that policy matters be voted on in public meetings and made available for public view. This case may end up falling in the grey area between those two imperatives, testing how far freedom of information extends in either direction.
A Need To Fill Slots
The changes in the latest round of hiring come as the department struggles to fill its academy classes, with critics accusing it of lowering standards to hit its numbers.
Competing with higher salaries in the suburbs and losing half the applicants in an early fitness test, the department is now struggling to bring on at least 100 cadets from a list of only 130 conditional hires, a number that will drop as finalists undergo background checks, a lie-detector test and a psychological evaluation.
Chief Anthony Campbell has already loosened some requirements to allow more recruits through. Working with Mayor Toni Harp, he has worked to revise score cut-offs and the marijuana use policy. He tasked a sergeant with hiring new investigators for background checks.
The department also paid a consultant $75,000 to find a new psychologist to screen recruits. But after a bungled procurement process last summer, in which two psychologists with ties to the consultant received extra time to start a testing company, the department decided to start over and put out a new request for proposals. A committee is still reviewing those applications.
In the meantime, unable to keep up with a wave of senior retirements, Campbell’s understaffed force is relying on overtime. Averaging $138,000 each week in extra pay, the department is projected to run $3.15 million over budget for the rest of the fiscal year, according to the city’s latest finance report.
None Of Our Business?
Asst. Chief Racheal Cain: This is private.
On Thursday night, in a hastily called special meeting that one commissioner phoned into, the Board of Police Commissioners immediately voted to go into closed session to discuss a “draft hiring policy.” Campbell and Cain stayed in the room, along with Michael Carter, the city’s chief administrative officer, and Michael Wolak, the senior assistant corporation counsel.
State law allows agencies to discuss “preliminary drafts” in private. But there’s no “bright line” for what defines the difference between an early draft and a final copy, FOIC’s Hennick said. It would be illegal to discuss a policy that’s “just subject to a rubber-stamp vote,” he explained.
Even then, only certain drafts can be discussed privately. Scribbling a few lines on a Post-It note doesn’t give the agency license to go into executive session. By law, a private discussion can be held only if “the public interest in withholding [the draft] clearly outweighs the public interest in disclosure.”
After a 67-minute closed-door discussion, the police commissioners opened up the meeting. They called for a vote on the policy, and without any discussion, unanimously rubber-stamped the policy in a voice vote.
The commission’s chairman, Anthony Dawson, later said that they were simply updating the policy.
What changed from the previous version?
“Nothing basically. We just had to make sure that everything was in order so that we could move this class forward,” Dawson said. “There’s things that we want to make sure are legally right so that people don’t put us in any kind of trouble. That’s it.”
Cain added, “There’s been a policy in the past, but not specific to this civil service list. Every civil service list has policies that have to be put in place. We have the new list, so we wanted to be sure that this policy was put in place.”
Was this about drug-testing? “It’s just about one of the processes,” Cain said. Was anything changed? “I wouldn’t say that; it’s just a policy,” she said.
So, nothing’s different about the evaluations?
“No,” she said. “It’s just a formality, really. When a new [civil-service] list comes up, that’s the opportunity to put everything back in place and vote and make sure we are still doing the same process.”
Cain collected the commissioners’ drafts. The drafts were titled, “Employment Drug Policy.” She said that despite that wording, the document is really more about “hiring standards” than formal “policy.”
Cain denied the Independent’s request to look at a copy.
“This actually isn’t something that I can release,” she said. “It’s a training document, so it’s not releasable.”
What part of the Freedom of Information Act said that?
Wolak, the city’s lawyer, pointed to an exemption for testing materials. Agencies can withhold “test questions, scoring keys and other examination data,” the statute says.
Did the commission’s new policy contain test questions?
“No, it was testing procedure,” Cain said. “It’s a portion of the testing process, not the test itself that we were speaking about.”
Did it have the test’s answers?
“No,” Cain said.
Did it have any data about the results?
“No, no, that’s all been done,” Cain said.
Wolak said the police may withhold materials related to testing. “It’s within that ambit,” he argued. “If you want to challenge it, that’s up to you, but it’s part of the whole testing thing.”
(Wolak once unsuccessfully moved for a mistrial in federal court because of a news article about the case that the Independent published. The judge ended up giving Wolak a refresher course in the First Amendment and the role of a free press in a democratic society, in which reporters can report on alleged police misconduct without that alleged misconduct becoming ineligible to be heard in a court of law.)
The FOIC handles many complaints accusing New Haven’s cops of improperly withholding records. Usually, those come from inmates seeking evidence to exonerate them and jilted applicants wondering why they didn’t make the cut. Most are withdrawn, but the commission has weighed in about the department’s employment records several times, coming down on both sides.
In one 2016 case, an unsuccessful job seeker asked for his entire application. The department said he could inspect the files without making a copy. But at a hearing, the police admitted that internal policy wasn’t based in law, and the FOIC agreed and made sure the applicant got his file.
Later that year, another rejected candidate asked for a copy of the 46-page exam. The FOIC upheld the department’s right to keep the test questions private, as state law explicitly allows.
Cain cited that case Thursday in arguing that the Police Commission’s new policy fell in the same category, like the questions on a year-long test.
“When you say ‘test,’ you typically think of one thing, but when you’re talking about hiring police officers, the testing process is so many different things. There’s so many different steps,” she said. “I can tell you that we’ve gone up to the FOI Commission and won this.”