September 14, 2010
Memorandum to the Office of the Mayor
Of the City of Los Angeles
Via: Larry Frank
cc: Participants in the August 25, 2010 meeting to discuss discrimination issues vis a vis African American Employees; California LULAC; other civil rights organizations
Preface
While my invitation to participate in the August 25, 2010 meeting of civil rights and community leaders from the African American community at Los Angeles City Hall was in my capacity as a board member of the Alameda Corridor Jobs Coalition (ACJC), it should come as no surprise that I wear and have worn a variety of hats in civil rights activism. During the administrations of Norm Bullock and Jose De Sosa I served as Special Assistant to the Southern California Legal Redress Chair of the NAACP State Conference, Attorney Valerie Monroe. I have served in the administrations of three (3) NAACP branches, including the San Fernando Valley, Inglewood-South Bay, and Compton branches.
I currently am serving as National Civil Rights Commissioner and Chair of the California Civil Rights Commission for the League of United Latin American Citizens (LULAC) and as co-President of the San Fernando Valley/Northeast Los Angeles Chapter of the National Organization for Women (NOW).
By trade I am a private investigator. I have been a private investigator since March 1979 and licensed since October 1983. I am a member of the Board of Directors of the California Association of Licensed Investigators (CALI—the world’s largest organization of private investigators) and recently stepped down after serving seven (7) consecutive terms as Chairman of the Board, more than twice as long as anybody in the history of the organization. I also maintain a membership in the Los Angeles County Criminal Defense Investigators Association.
I served as First Vice President of Local 69 of The Newspaper Guild (AFL-CIO, CLC, CWA) under two administrations and represented that local for years in the Los Angeles County Federation of Labor. During that period I was a close confidante of Miguel Contreras and performed a number of clandestine investigations on his behalf in the service of the labor movement. I also served for years as the Local’s “Human Rights Chair,” the Newspaper Guild’s glorified title for an Affirmative Action/Equal Employment Opportunities Officer.
These experiences and a variety of other causes I have worked on have given me insights into the processes of government, labor, and workforce issues that are involved in the complaints expressed at the August 25, 2010 meeting. I was the author of then-Assembly member Cindy Montanez’s AB 1617 in the 2002-2003 legislative session. Although that bill did not pass, it was endorsed by many prominent civil rights organizations and went on to be adopted as official policy for combating workplace discrimination, harassment and retaliation by National LULAC.
The City’s Testing Methodology:
Is it based on science or contracts?
This may seem tangential to the issues in the meeting but the problems I will raise may be useful to assess, and hopefully spark an impartial, competent, and independent investigation of testing practices by the City of Los Angeles.
- City of Los Angeles use of MMPI in the hiring process
Some years ago I had the occasion to work on the defense of an Animal Control Officer for the City of Los Angeles in a criminal prosecution. The complaining witness (alleged victim) against him was another Animal Control Officer. The two (2) of them had been in a dating relationship.
In conducting a background investigation of the complaining witness, I found all sorts of skeletons in her closet, but when I subpoenaed her employment records from the City of Los Angeles I discovered something which was nothing short of flabbergasting. The documents that the City provided under subpoena demonstrated that she had been given an MMPI (Minnesota Multiphasic Personality Inventory) test. Her “L” score was 76. The “L” score is not on a percentage scale such as 1-100. It is commonly called the “lie score” because it is a control score used to determine whether the test subject is attempting to use unsophisticated responses in order to deceive the test givers. The following is a description of the purpose of the “L” score from a research study:
“L Lie Scale (Hathaway and McKinley, 1951) (MMPI 15 items, MMPI-2, 15 items). High: (> Raw 5 for either the MMPI or the MMPI-2). Tendency to create a favorable impression as a response bias, conventional, rigid, moralistic, repression, denial, and insightless. A high L can mean anything from a very well mannered normal wanting to give a good impression, to a compensated paranoid. A high L will submerge scales of obvious psychopathology, and inflate scales of healthy functioning such as the Ego Strength scale.”
An abstract of an article in the Journal of Police and Criminal Psychology (Volume 18, Number 1, 57-60, DOI: 10.1007/BF02802608) “The MMPI-2 L scale as a tool in police selection” by William U. Weiss, Robert Davis, Cary Rostow and Sarah Kinsman noted:
“The MMPI has been used extensively in the selection of law enforcement personnel. Because police officer candidates have been preselected, however, individuals with obvious mental disturbance have been screened out of the candidate pool before evaluation. It is necessary to search for more subtle variables to serve as predictors of unsatisfactory future performance. The L scale is a subtle variable which can suggest potential for problematic behavior. The value of the L scale in the selection process is discussed.”
The maximum level of deception for the MMPI begins at 70. The subject I was investigating received a score of 76. Nevertheless, the City of Los Angeles employed her as a peace officer, entrusting to her powers of arrest, a gun, and a badge.
There is no point in mincing words here. Whoever allowed her to become a cop for the City of Los Angeles, regardless of the fact that her primary mission was enforcement of laws involving animals, must have been a stark, raving, idiot if they bothered to look at the results of her MMPI exam. If on the other hand, nobody bothers to look at the scores, then why are the taxpayers paying the bill for administering MMPI exams? Did somebody cut a contract for a useless screening tool that nobody was actually going to take seriously?
- The Los Angeles Police Department’s use of Polygraph for pre-employment examination
The LAPD created an RFP for potential outside contractors to qualify to perform pre-employment background examinations that was so complex, and the process so costly and time consuming, that I am told that only one bid was submitted and accepted. It was submitted by a company in the State of Virginia. The company that received the contract promptly sub-contracted all the work out to local polygraph examiners, some of whom were APA (American Polygraph Association) certified and some of whom weren’t.
A competent polygrapher will not perform an examination on more than three to four (3-4) “seminal questions,” i.e., questions that are specifically relevant to the investigation of an incident. Additional questions will be for control methodology only. The way the LAPD pre-employment exams go there are numerous supposedly relevant questions apparently formulated using not just questionable methodology, but discredited methodology that runs counter to APA standards and ethics.
It is no secret that in organizational sociology there is a regrettable corrupt tendency for people to write RFP’s or otherwise to solicit bids in such a way that the process is rigged for a company or person to be effectively the only person that meets the requirements. Similarly, employment qualifications are frequently rigged by “good ole boy” networks to provide employment for cronies and friends.
So, was the LAPD selection of an out of state vendor for polygraphs simply a manifestation of good ole boy networking or just outright corruption? What’s the point of paying profits to a Virginia firm so that local subcontractors can do the work if not to grease somebody’s palm with green stuff?
Righting a Past Wrong
In 1992, the San Fernando Valley/Northeast Los Angeles Chapter of NOW, along with the United Paramedics of Los Angeles, an independent union, fought against a proposed elimination of the separate civil service classification of Paramedic, requiring that new paramedics also be firefighters and consequently needing to pass the “tower” test at the fire academy, a feat that was extremely difficult for women. At the time, the excuse publicly foisted on the public and the city council by the fire department brass was that “lack of promotional opportunities” for female paramedics necessitated the classification change.
However, three fire department representatives assigned to meet with me as representative of SFV/NELA NOW to explain the department’s reasoning admitted to me that the entire charade was a union busting move designed to get the UPLA out of the brass’s hair. This move of course violated the rights of the UPLA and its members to engage in protected concerted activity.
In 1991, uniformed personnel of the LAFD consisted of 1,411 firefighters and 395 paramedics for a total of 1,806. Of these, there were 38 female firefighters and 46 female paramedics, totaling 84 women. As the females were a much higher percentage of the then separate paramedic union bargaining unit, UPLA had a female Vice President and the union took issues of sexual harassment and discrimination very seriously.
As a result of the civil service change, instead of the purported goal of increasing opportunities for women in the LAFD, by 2003 there were 3,398 uniformed members of the department. Eighty-nine (89) of them were female. So while the number of males in the department increased by 1,419 males, females increased in number by five (5).
To make this right, the City of Los Angeles should (a) restore the separate civil service classification of paramedic and declare neutrality towards an organizing drive for a new union along the lines of UPLA, (b) launch an independent investigation into the conspiracy of the old LAFD brass that led to the civil service change, and (c) terminate the employment of any members of the brass still employed who either fabricated the pretext for the union busting move and/or knew of it and failed to take action to expose it.
Audits and Reporting of Civil Rights Violations
Article 40 of the International Covenant on Civil and Political Rights (ICCPR) of the United Nations, to which the United States is a signatory and ratifying state party, requires reporting on compliance with the rights established and enumerated in the ICCPR itself.
The City of Los Angeles should adopt by ordinance or by charter amendment the rights set forth in the ICCPR with the proviso that those rights elucidate, illustrate, and enumerate rights which are already inherently provided to the people by the Constitution of the United States and the Constitution of the State of California. These rights should be made self-executing by ordinance and/or charter amendment.
Consistent with the ICCPR, the City of Los Angeles should undertake a yearly report on compliance with the ICCPR as called for by Article 40 to do its part in United States compliance with the treaty.
The Strange Case of XXXXXX
How to get Rewarded for Misconduct
In the early 90’s, XXXXXXX, then a civilian investigator for the Los Angeles Police Commission, was given a fourteen (14) day suspension for having unlawfully accessed personal information, such as DMV address information, on over 200 individuals. The only victims that were ever identified publicly were myself, Arnold Schwarzenegger, Tom Metzger of the KKK and White Aryan Resistance (WAR) and two other individuals whose identities were mentioned by Pat McGreevey’s reporting in the Los Angeles Daily News (Pat had gotten a peak at a civil service file he wasn’t supposed to see).
During the so-called “investigation” of the misconduct by two Los Angeles Police Department lieutenants, none of the victims were questioned! Why? Because if they had questioned me, they would have learned that shortly after XXXXXX obtained my home address from the Department of Motor Vehicles, Nazi Swastikas were painted on my car and my office. The LAPD didn’t want to find out how the victims were affected so that they could minimize their punishment of XXXXXXXX and save face.
XXXXXXXXX was a member of the Institute for Historical Review, the neo-Nazi “think tank” (if you can call their thought processes “thinking”) which claims that Hitler was a nice guy and that the World War II holocaust was a myth; that the Turks didn’t wipe out 1.5 million Armenians in World War I; and that the slave trade did not kill off numerous Africans in the “Middle Passage.” The probable reason that he accessed Tom Metzger’s information was to provide it to Metzger along with the information he gave Metzger about me.
The civil service hearing officer was astounded that all that the City was giving XXXXXXXXX was a 14 day suspension, even without knowing that none of the victims were questioned by the so-called “investigators.” It is highly likely however that the cover-up was deliberate and that XXXXXXXX was rewarded for his adhering to the “code of silence,” because he was eventually promoted to be a Division Adjutant within the LAPD itself. In that position, he posed as being friendly to the first African American female lieutenant in the LAPD while she was complaining about discrimination and harassment. Thinking that XXXXXXXX was her “friend,” she confided her planned moves against harassment in him. Wonder what he did with that information? I don’t wonder: it’s intuitively obvious that he was part of the conspiracy against her.
Qualifications of City Investigators
Of Discrimination, Harassment, and Retaliation
All too often it is the case that large organizations entrust the assignment of “investigating” claims of discrimination, harassment and retaliation to individuals who come out of a background of personnel administration (i.e. “human resources”) who are practitioners of so-called Theory Y management methodology. Their orientation towards investigation usually comes down to asking questions, taking down dictation of the answers, and then somehow trying to subjectively determine who is telling the truth in what amounts to a “swearing contest.”
Nobody who “investigates” any workplace situation should be considered qualified unless they have been trained in the various methodologies to detecting deception during investigative interviews and tested in their ability to detect deception, unless they intend to make use of polygraph examinations to clear up the ambiguities that are involved in “swearing contests.” To illustrate the point, the following are my own continuing education courses that I have taken to learn the science of detecting deception from a variety of methodologies:
October 6, 2000 – Techniques of Interview & Interrogation—Instructor: Sgt. Greg Yacoubian, Special Enforcement Unit, L.A. Police Dept.
October 17, 2003 – Detecting Deception in Forensic Interviews – Instructor: Nick Flint, Behavior Analysis Training Institute, Inc.
June 22, 2006 – How to Spot a Liar – Instructor: Gregory Hartley, former SERE (Survival, Evasion, Resistance, Escape) School, United States Army; Operational Interrogation Support, 5th Special Forces Group, Desert Storm
October 13, 2006 - Detecting the Lie — Instructor: Maureen O’Sullivan, Ph.D., Professor of Psychology, University of San Francisco
Additionally, the investigators should be double blind tested on their ability to detect deception. Lots of people think that they are adept at detecting deception. This may be true with people we know and have been familiar with for long periods of time. It is not so easy with strangers. I was tested along with about 100 other licensed investigators by Dr. Maureen O’Sullivan of the University of San Francisco. I and a handful of other investigators scored 8 correct out of 9 (nobody got 9 of 9). This does not mean that everybody needs to have exceptional abilities at “lie detection,” but a competent investigator – in whose hands the fate of employees rests – should at least test with significantly better than average deception detection skill.
The Use of Polygraph
There are many misconceptions about the use and legalities of polygraphs. The first misconception is that they are not legal to use. The fact is that for government employees, federal and state law allows workers to be required to submit to lie detector examinations unless they are peace officers who are protected by Section 3307 of the California Government Code. Labor Code Section 432.2 of the California Labor Code expressly exempts government workers as does the federal Employee Polygraph Protection Act, 29 USC 2006.
At the meeting of August 25, 2010, it was made clear that while participants in formulating the examinations are on notice that participation in cheating may get them disciplined and/or prosecuted, it is highly unlikely that anybody is ever going to be able to detect or prove cheating. It may be that the only realistic deterrent is to (a) polygraph everybody who has ever participated in formulating tests to demonstrate that the use of polygraph is a realistic prospect for the City and (b) insert language in the existing notifications which employees sign that makes clear that the City has the legal right to polygraph examine them to determine whether or not the testing procedures were carried out fairly.
The City should also consider whether there are other functions or categories of employees that should be periodically examined as a matter of policy to deter bad acts. In the private sector, there are certain categories of employees where the temptations of reward are always inherently present. Take for example, purchasing agents. Employees of a purchasing department, no matter how well compensated and trained they may be, will always be vulnerable to temptation. The benefits of corruption are many and the odds of detection are slight when one knows what they are doing. The best deterrent to temptation is fear of detection and that is best accomplished by knowledge that they may or will be periodically brought before a polygraph examiner.[1]
It is simply not acceptable to have a system “based on trust,” as it was enunciated in the meeting of August 25, 2010 when employees and their livelihoods and careers are at stake, unless of course one inherently accepts the values of Theory Y management. I personally do not, based upon the totality of my background, training, education and experience.
The AB 1617 Principles
I was the principal author of AB 1617 which was introduced by then-Assembly Member Cindy Montanez during the 2002-2003 legislative session. This legislation garnered the support of California NOW, various NAACP branches, the National Center for Lesbian Rights, and many other organizations. Its principles and recommended methodology to deal with discrimination, harassment and retaliation in the workplace went on to be adopted nationally by the LULAC National Convention. These measures should be adopted by municipal ordinance by the City of Los Angeles.
MODEL ANTI-HARASSMENT POLICY
(Based upon AB 1617 [2003-2004 Legislative Session])
SECTION 1. It is the policy of (employer or government entity) that:
(a) Employees who, in good faith, complain about harassment in the workplace should not
be penalized for complaining.
(b) Employees who harass others in the workplace should not be rewarded for their misconduct.
(c) Remedies for harassment in the workplace should be effective and serve as a
deterrent to future acts of misconduct.
(d) An employee’s status as spouse of an employer, supervisor, or manager
should not affect the right of that employee to a workplace free from a hostile
working environment; entering into a contract of marriage does not mean that a
person gives up his or her right to be free from harassment and/or discrimination
in the workplace or to oppose unlawful practices pursuant to California Government
Code Section 12940(h).
SECTION 2. The reasonable steps required by Section 12940(j) of the Government Code
to prevent workplace harassment from occuring shall include but not be limited to the following:
In determining whether supervisory employees have taken all reasonable
steps to prevent harassment from occurring, the following shall be considered:
(A) Whether management personnel acted in good faith in making employment-related decisions.
(B) Whether management employees undertook an investigation that was reasonable
and appropriate under the circumstances, including a consideration of the following issues:
(i) If the investigator was an employee of ________________, whether the investigator
was sufficiently unbiased to conduct a fair, objective, and truthful investigation and
whether the investigator implemented adequate safeguards to insure employee privacy.
(ii) If the investigator was an independent contractor hired by _____________________,
whether the investigator was a licensed private investigator pursuant to Article 3
(commencing with Section 7520) of Chapter 11.3 of Division 3 of the Business and
Professions Code and complied with subdivisions (a) and (b) of Section 7539 of the
Business and Professions Code.
(iii) Whether the background, education, training, and experience of the
investigator complied with industry standards of competence for the investigation of harassment.
(iv) Whether allegations of prior misconduct by the alleged perpetrator were investigated.
(C) Whether, after the investigation and prior to taking corrective action,
managers had a good faith, reasonable belief that an employee engaged in misconduct
and took corrective action based on reasonable conclusions supported by substantial
evidence that was not trivial, arbitrary, capricious, or pretextual.
(D) Whether the corrective action taken by management was reasonable under the
circumstances, including a consideration of the following issues:
(i) Whether actual discipline was imposed on the perpetrator of harassment, and
not merely a change in the perpetrator's duties or working hours.
(ii) Whether the supervisor changed the duties or working hours of the perpetrator or the victim.
(iii) Whether, if the supervisor changed the victim's duties or working hours,
the change was satisfactory to, and did not cause annoyance or hardship to, the victim.
(iv) Whether, if the supervisor changed the duties or working hours of the perpetrator,
the change was, in fact, corrective action that the perpetrator did not welcome.
(v) Whether the corrective action was reasonable in light of any past misconduct.
(vi) Whether any prior corrective action had been ineffective in deterring the
current misconduct.
(vii) Whether an alternative to the action taken by the supervisor would have
imposed a significant economic burden on ______________.
(E) The provisions of (D) shall not be construed to prohibit, prevent, or interfere
with a supervisor’s decision to take interim measures, pending the outcome of an investigation
conducted with all deliberate speed, in order to separate the person alleging harassment from
the alleged perpetrator of harassment.
What a Whistleblower Says
That whistleblowers from Los Angeles City government periodically come to me as opposed to filing union grievances or complaining up the chain of command speaks volumes about the perception amongst City employees that they will face retaliation and that they will not be protected. The following are my excised notes from a recent whistleblower who asked me to bring the information to the attention of proper authorities with myself as the buffer between the City and him/her self to insure anonymity:
(MALE SUSPECT 1)
General Manager LA City Dept of XXXXXXXX
(FEMALE SUSPECT 1) (PHONE NUMBER EXCISED) used to work for WOW Wonderful Outdoor World
DWP now for exorbitant salary relative to competence, something to do with smart irrigation
Only single person interviewed, (FEMALE SUSPECT 2), not panel (slept her way to top with [MALE SUSPECT 2]) interview
Only two other people even applied since it was known that the position was created by (MALE SUSPECT 1) for his girlfriend.
(MALE SUSPECT 1) took her to Ireland while she was facility director; took her on trips to Mexico and Washington DC
(UNION INVOLVED)
(MALE SUSPECT 1) trying to eliminate jobs while maintaining his own quid pro quo sexual harassment regime with (FEMALE SUSPECT 1).
(MALE SUSPECT 2) Asst General Manager, fucking (FEMALE SUSPECT 3).
Job for PR Director; was given (FEMALE NON-SUSPECT 1) job instead of eliminating job when (FEMALE NON-SUSPECT) left; some kind of management analyst
Used Prop K funds wound up being used for child care centers, Yucca Community Center used for RSVP (Retired Senior Volunteer Program) after being kicked out of Fountain office of Labonge. Yucca had been Prop K funded to be a Youth Center.
At Las Palmas Center pre-school coop gets $1 a year lease; not paying any share of utilities.
Conclusion
Does the City of Los Angeles want to radically change the ways it does business or does it want to continue business as usual, with a few cosmetic changes to mask the underlying problems in the status quo? Big Bill Heywood of the Industrial Workers of the World (IWW) once said that “trying to reform the rotten, graft infested, AF of L unions is like spraying a cesspool with an attar of roses.”
We can spray the city with the nice designer brand fragrance with some modest reforms or promises of management diligence or else we can take to heart the need for real, honest change.
Yes we can. Si, se puede!
Respectfully yours,
Jan B. Tucker
[1] An area where City performance in contracting is wholly inexplicable, unless explained by kickbacks and corruption, is in the award of a contract to The Parking Network (TPN) to work for the Department of Finance. In spite of the fact that the Department of Transportation had a legitimate company already performing parking lot audits to monitor collections of Parking Occupancy Tax revenue, the Department of Finance selected TPN in spite of the fact that it was a suspended corporation in its home state of Texas at the time it received the contract. It took out a Los Angeles City Business license, but while it was maintaining its offices in Los Angeles, it failed to qualify or attempt to qualify with the California Secretary of State or the Franchise Tax Board until it was sued for these omissions by one of the companies it audited.
TPN, according to one of its former employees, failed to withhold taxes as required by state law. The employee, working his first job since graduating from USC, indicated that he had no experience whatsoever for the job and he presumed that the only reason he was hired was that TPN assumed that since he had a college degree, he was able to count. The City of Los Angeles can just as easily hire plenty of college graduates who know how to count and let them loose on the parking lot operators and save itself the cost of paying a profit margin to TPN.
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