DPS Slapped in ‘Troopergate’ Verdict

By Jordan Smith
The Austin Chronicle

On Dec. 15, after more than nine hours of deliberation, a Travis Co. jury returned a verdict against the Texas Department of Public Safety, in a 2-year-old case brought by 16 DPS lieutenants. The jury found that DPS rigged a promotional examination and engaged in both gender discrimination and retaliation against the plaintiffs.

The DPS officers filed suit against the agency in late 2002, alleging that DPS higher-ups rigged a 2001 promotional exam in order to promote a group of favored good ol’ boys, and in the process engaged in age, gender, and race discrimination and retaliation against several officers who had the temerity to complain about the rigged exam. On Wednesday, jurors who heard the case in District Judge Lora Livingston’s court found in favor of the officers on the charges of exam rigging, gender discrimination, and retaliation, and recommended a nearly $1.2 million judgement against the agency.

The plaintiffs’ allegations arose from a 2001 reorganization of the department’s narcotics enforcement activities, which resulted in 11 new captain positions. A total of 33 officers (including the 16 plaintiffs) assigned to various posts across the state (including at least two from Austin) signed up to take the two-part promotional exam.

According to state statute and agency rules, promotional exams are designed to “reduce the subjective or discretionary component of the promotions decisions.” Candidates are scored and ranked based on the results of both a written exam (500 points possible) and an oral exam (another 500 points possible) administered by a six-member panel of DPS supervisors from several law enforcement units. After the testing is complete, the candidates are ranked and the names of the top scorers are forwarded up through the chain of command for promotion by DPS Director Col. Thomas A. Davis.

However, in the case of the 2001 captain exam, the plaintiffs alleged, the six-member oral board broke agency rules by preselecting 11 officers they wanted to promote and then devising “a scoring strategy to ensure that their candidates would be promoted.” According to the plaintiffs, the six oral-board members Cmdr. Walter “Chap” Eeds, Deputy Cmdr. Grady Michael Dunn, Assistant Cmdr. Earl McNeil, Maj. Kent Mawyer, Cmdr. David Griffith, and Assistant Cmdr. Wilbur Eugene Hawkins reviewed all of the written exam scores in order to determine how the orals would need to be scored to ensure that the prechosen officers would be the top 11 scorers. Indeed, the plaintiffs alleged that the board members met with several of the pre-chosen candidates to discuss the exam content the night before the oral exam was administered.

In the end, none of the 16 plaintiffs was promoted, even though many of them had posted the highest results on the written exam. In fact, their high-scoring written exams were rendered meaningless when combined with the extremely low scores (each less than 320 points) that each received on the oral test. Meanwhile, the allegedly preselected officers rose to the top 11, scoring more than 450 points each on the oral exam, despite posting modest or low-end scores on the written exam, and each was promoted to captain.

Not only did the oral-board members follow the concocted scoring strategy, said Michael Pezzulli, one of the attorneys representing the 16 plaintiffs, but each of the examiners recorded the exact same scores for each of the 11 prechosen officers. “The fact is that the numbers don’t lie,” he said. “What probability is there that all of the officers [previously] selected” for promotion would receive the same oral score, he asked. “If it’s more than one in 10 billion, I’ll eat my hat.”

In part it was the identical scores that led several of the lieutenants who had not been promoted to file complaints. Davis finally ordered a DPS Internal Affairs investigation and, although the investigators concluded that the test had been rigged, the official conclusion was changed, the plaintiffs alleged, to reflect that no policies had been violated. After filing complaints with the federal Equal Employment Opportunity Commission and the Texas Commission on Human Rights, the 16 got the go-ahead to sue.

In the end, the jurors agreed that the department did rig the test, in violation of state law and agency rules, and upheld several of the plaintiffs’ other claims. (They did not find in favor of the plaintiffs on the allegations of race or age discrimination.) Notably, the jurors voted in favor of Austin-based Lt. Maria Garza, finding that the department discriminated against her based on her gender and retaliated against her for complaining about the 2001 exam. They also found in favor of Lt. Robert Ralls, concluding that agency retaliation was the only reason he has not been promoted.

Garza and Ralls have each taken numerous promotional exams since late 2001 (Garza has taken at least nine exams, Ralls at least four), and although each officer has received high scores each time, neither has been promoted. Jurors recommended awarding the two officers combined damages of more than $400,000, along with attorney’s fees and court costs for all 16 plaintiffs, adding up to well over $600,000. Four other plaintiffs also tried to promote but failed, several gave up trying, and several have left the agency. Meanwhile, four of the six oral-board members involved in the test rigging have since retired and two have since been promoted.

DPS spokeswoman Tela Mange said the agency is “in consultation” with the attorney general’s office and is considering filing an appeal once Livingston’s final judgement is entered. With the jurors’ declaratory judgement in hand, it is up to Livingston to decide what sort of remedy is called for, and there are a host of options from ordering a retest, to ordering promotions for the aggrieved plaintiffs, to revamping the DPS promotional process, among others. Attorney James Skinner said that he and the other lawyers representing the lieutenants will file a motion with Livingston listing their suggestions. Livingston’s final decision is expected by early January.

Still, Skinner said, there is at least one question left open in the wake of his clients’ victory: What will DPS do with the 11 ill-promoted captains? “When a jury makes this kind of decision, the question is what does DPS intend to do about the people that were promoted?” he asked. “These are people who are now in command over a wide swath of state law enforcement.”