477
 1                IN THE UNITED STATES DISTRICT COURT
                     NORTHERN DISTRICT OF ILLINOIS
 2                          EASTERN DIVISION
 3   ADAMS, et al.,               ) Docket No. 94 C 5727
                                  )
 4               Plaintiffs       )
                                  )
 5         v.                     ) Chicago, Illinois
                                  ) March 7, 1996
 6   THE CITY OF CHICAGO,         ) 11:20 o'clock a.m.
                                  )
 7               Defendant        )
 8
 9                               VOLUME IV
                           TRANSCRIPT OF TRIAL
10                BEFORE THE HONORABLE JOHN A. NORDBERG
                      UNITED STATES DISTRICT JUDGE
11
     APPEARANCES:
12
     For the Plaintiffs:        LAW OFFICES OF KENNETH N. FLAXMAN
13                              By:  MR. KENNETH N. FLAXMAN
                                122 South Michigan Avenue, Suite 1850
14                              Chicago, Illinois  60603
15   For the Defendant:         CITY OF CHICAGO
                                By:  MS. SHONA B. GLINK
16                                   MS. DARKA PAPUSHKEWYCH
                                     MR. JAY KERTEZ
17                              30 North LaSalle Street, Suite 1020
                                Chicago, Illinois  60602
18
19
     Court Reporter:            Carol Matz
20                              343 South Dearborn Street, Suite 319
                                Chicago, IL  60604
21
22
23
     Proceedings recorded by mechanical stenography, transcript
24   produced by computer.
25
                                                            478
 1             THE COURT:  All right, are we set --
 2             MR. FLAXMAN:  Yes.
 3             THE COURT:  -- to call the next witness in the
 4   plaintiffs' case in chief?
 5             MR. FLAXMAN:  The next witness is Commissioner Carr.
 6               GLENN CARR, PLAINTIFFS' WITNESS, SWORN
 7             THE COURT:  Counsel, you may proceed.
 8                         DIRECT EXAMINATION
 9   BY MR. FLAXMAN:
10   Q.  Could you state your name and spell your last name, please.
11   A.  My name is Glenn Carr.  C-a-r-r.
12   Q.  And are you the Commissioner of Personnel of the City of
13   Chicago?
14   A.  Yes, I am.
15   Q.  Could you briefly explain what your role is, what your
16   position is as Commissioner.
17   A.  As Commissioner of Personnel I am the chief administrative
18   officer of the Department of Personnel for the City.
19             We employ approximately 100 employees in that
20   department, and we have the responsibility of -- of accepting
21   applications for employment, assessing qualifications of
22   candidates, referring to various City departments lists of
23   individuals for consideration for hire, and maintaining
24   employment records for incumbent City employees.
25   Q.  Were you involved in preparation of the 1993 Police
                                                            479
 1   Sergeant's promotional test?
 2   A.  My department was.
 3   Q.  Were you personally involved?
 4   A.  Well, not in preparing the list, no.
 5   Q.  Were you personally involved in preparing the test?
 6   A.  No.
 7   Q.  Were you involved in the decision that the test would
 8   consist of three parts?
 9   A.  No.
10   Q.  Were you involved in certifying a list that was prepared
11   from the results of that test?
12   A.  Yes, I was.
13   Q.  And what did you do in certifying the list?
14   A.  There is a process by which a list of -- of prospective
15   promotions or individuals who would be promoted would be
16   prepared by my Employment Services Division and brought to me
17   for signature and subsequent referral to the Police Department.
18   Q.  And do you recall when it was that you affixed your
19   signature to certify the promotional roster prepared from the
20   1993 Sergeant's test?
21   A.  No, I don't.
22   Q.  Was that shortly before promotions were actually made from
23   that list?
24   A.  I'm sure it was.
25   Q.  Now, are you familiar with the procedure for promotions in
                                                            480
 1   filling vacancies in the Chicago Police Department?
 2   A.  I wouldn't say that I'm familiar with them, no.
 3   Q.  Have you ever been familiar with them?
 4   A.  Perhaps I'm having trouble with the word "familiar."
 5   Q.  Well, is it correct that in order for there to be an
 6   officially recognized vacancy in the Chicago Police Department
 7   there must be the coalescence of three factors; the first is
 8   that there must be an unoccupied budget line, the second is
 9   that the Budget Department must confirm that the City has
10   sufficient funds to support that budget line, and, three, the
11   Police Superintendent must determine that there is an
12   operational need to fill the unoccupied budget line?  Is that
13   correct?
14   A.  That's correct.
15   Q.  And is it also correct that if any of these requirements is
16   missing there is no officially recognized vacancy in the
17   Chicago Police Department?
18   A.  I'm not sure that that's an accurate representation.  I'm
19   not personally aware of circumstances where there may have been
20   exceptions, but I suspect there may have been.
21   Q.  Okay.  Let me show you the second page of what's previously
22   been marked as Plaintiffs' Exhibit 49.  And is that your
23   signature?
24   A.  This is my signature, yes.
25   Q.  And is Plaintiffs' Exhibit 49 an affidavit that you signed
                                                            481
 1   to be submitted in the case pending in this court known as
 2   Deveraux, D-e-v-e-r-a-u-x, versus City of Chicago?
 3   A.  That's correct.
 4   Q.  And in that affidavit did you write that you are familiar
 5   with the procedure for promotions in filling vacancies in the
 6   Chicago Police Department?
 7   A.  Yes, I did.
 8   Q.  And then in paragraph 3 did you write that if any of these
 9   requirements -- and requirements refer to the three
10   requirements we discussed before -- is missing there is no
11   officially recognized vacancy in the Chicago Police Department?
12   A.  I did.
13   Q.  Now, back in 1992 is it correct that the City of Chicago
14   decided to stop using the results of the 1988 Police Sergeant's
15   list for making promotions?
16   A.  Yes.
17   Q.  And is it also correct that the City did not make any
18   promotions to sergeant in 1992?
19   A.  Correct.
20   Q.  And in 1992, when the City did not make any promotions to
21   sergeant, do you know whether or not the number of budgeted
22   positions for sergeant decreased?
23   A.  No, I don't.
24   Q.  Do you know whether the City did not have enough funds to
25   hire sergeants?
                                                            482
 1   A.  No.
 2   Q.  Do you know if the Police Superintendent determined -- did
 3   not determine that there was a need to add sergeants in 1992?
 4   A.  No, I don't.
 5   Q.  Okay.  Now, do you know if the City of Chicago made any
 6   promotions to sergeant in 1993?
 7   A.  I believe they did not.
 8   Q.  Okay.  And do you know why that was?
 9   A.  I don't recall.
10   Q.  Okay.  Well, is it correct that in 1993 there were no
11   officially recognized vacancies in the Chicago Police
12   Department rank with police sergeant?
13   A.  I'd like to go back to the previous question.  As I re- --
14   I believe there was some court order to the effect that there
15   would be no further promotions off the list over several years.
16   Q.  Well, could you take a look at Plaintiffs' Exhibit 49 and
17   just maybe read that and see if that refreshes your
18   recollection.
19             MS. PAPUSHKEWYCH:  I'm sorry, what number are you
20   referring to?
21             MR. FLAXMAN:  49.
22   BY THE WITNESS:
23   A.  Yes, there was a legal interpretation.
24   BY MR. FLAXMAN:
25   Q.  Okay.  So what happened is that the City decided that it
                                                            483
 1   would not use the 1988 Police Sergeant's list to make further
 2   promotions until it had a new list --
 3   A.  Correct.
 4   Q.  -- is that right?
 5   A.  Uh-huh.
 6   Q.  And one of those reasons was a concern about the Civil
 7   Rights Act of 1991?
 8   A.  That is correct.
 9   Q.  And one of the results of that is that the City did not
10   have any officially recognized vacancies in the position of
11   sergeant in 1992 and 1993?
12   A.  Correct.
13   Q.  And the first promotions, the first officially recognized
14   vacancies occurred when promotions were made from this 1993
15   test, is that right?
16   A.  As far as I know.
17   Q.  And that was about August of 1994?
18   A.  Correct.
19             MR. FLAXMAN:  Thank you.  I have nothing further.
20             MS. PAPUSHKEWYCH:  I have no questions of the
21   Commissioner.
22             THE COURT:  All right.  Thank you very much.  That
23   concludes your testimony.
24             THE WITNESS:  Thank you, your Honor.
25        (Witness excused)
                                                            484
 1             THE COURT:  Let's call the next witness.
 2             MR. FLAXMAN:  Robert Joyce, your Honor.
 3             ROBERT JOYCE, PLAINTIFFS' WITNESS, SWORN
 4             THE COURT:  Counsel, you may proceed.
 5                         DIRECT EXAMINATION
 6   BY MR. FLAXMAN:
 7   Q.  Could you state your name, please, and spell your last
 8   name.
 9   A.  Robert Joyce.  J-o-y-c-e.
10   Q.  And are you the -- a Deputy Commissioner in the City of
11   Chicago Department of Personnel?
12   A.  I am a Deputy Commissioner in the Department of Personnel,
13   yes.
14   Q.  How many deputies are there?
15   A.  Three.
16   Q.  As part of your responsibilities do you oversee the
17   development, administration and scoring of career service
18   promotional testing for uniform positions in the Chicago Police
19   Department?
20   A.  Yes.
21   Q.  And have you held that position since 1981?
22   A.  Yes.
23   Q.  Before becoming Deputy Commissioner -- did you become a
24   Deputy Commissioner in 1981?
25   A.  Yes, I believe that was the year.
                                                            485
 1   Q.  Before becoming -- immediately before becoming a Deputy
 2   Commissioner did you hold the position of Manager of Employment
 3   Services?
 4   A.  Yes.
 5   Q.  And did you have similar responsibilities?
 6   A.  Yes.
 7   Q.  Have you ever been involved in preparing a police
 8   promotional test?
 9   A.  Yes.
10   Q.  How many police sergeant promotional tests have you been
11   involved in preparing?
12   A.  Two that come to mind.
13   Q.  When was the first one?
14   A.  In 1978, I believe.
15   Q.  When was the second one?
16   A.  In 1985.
17   Q.  Were either of those tests prepared with the assistance of
18   an outside consultant?
19   A.  Yes.
20   Q.  Which one?
21   A.  The one that began in 1985.
22   Q.  And was Dr. Barrett involved in that effort?
23   A.  No.
24   Q.  Now, in the test that you were -- the sergeant promotional
25   test in which you've been involved, did those tests begin with
                                                            486
 1   a job analysis?
 2   A.  Yes.
 3   Q.  And did the job analysis involve talking to a
 4   representative sample of incumbent sergeants?
 5   A.  I'm having difficulty remembering exactly how we did it in
 6   '78.  But in the '85 job analysis we did interview incumbents
 7   and do ride-alongs.
 8   Q.  And did you talk to higher-ranking officers also?
 9   A.  Yes.
10   Q.  And did you get a pretty good picture of the kind of work
11   that a Chicago Police Sergeant does?
12   A.  I believe we did.
13   Q.  Did you ever conclude that the job of police sergeant is
14   viewed differently by minority police sergeant than by white
15   police sergeants?
16   A.  There -- we did -- part of our job analysis did look at
17   that, and there was a certain amount of indication that that
18   could be true.
19   Q.  That what could be true?
20   A.  That the job of sergeant, or the essential -- or the most
21   important functions of the job weren't unanimously agreed upon
22   by all participants.
23   Q.  And by not -- by a lack of unanimous agreement do you mean
24   that black sergeants did the job differently than white
25   sergeants?
                                                            487
 1   A.  I don't recall that it was that they did the job
 2   differently.  I believe it was more in the context of what they
 3   saw as the most important aspects of the job.
 4   Q.  And did you do any statistical tests with this data?
 5   A.  At present I don't recall.
 6   Q.  Well, was this data sufficient for you to conclude that
 7   there were actual differences in the job as it's viewed by
 8   incumbent white sergeants and incumbent black sergeants?
 9             MS. PAPUSHKEWYCH:  Objection as to foundation.  That
10   hasn't been established that that was a conclusion by Deputy
11   Joyce.
12             THE COURT:  Well, I believe he's asking him whether
13   that conclusion was drawn.
14             Do you understand the question?
15             THE WITNESS:  If he could repeat it I'd appreciate
16   it.
17             THE COURT:  All right, why don't you restate the
18   question.
19             I'll overrule the objection.
20   BY MR. FLAXMAN:
21   Q.  When you did the job interviews of incumbent sergeants for
22   the 1985 test did you gather data?
23   A.  Yes.
24   Q.  And that data consisted of answers to interview questions?
25   A.  I'm sure there were interview questions.  But the job
                                                            488
 1   analysis was more -- the data was more collected via
 2   questionnaire.
 3   Q.  And when you collected that data via questionnaire did you
 4   know the race of the person who provided the data?
 5   A.  I don't know.
 6   Q.  Well, did you analyze the data to see if there were
 7   differences in the job the way it's viewed by white sergeants
 8   and black sergeants?
 9   A.  Yes.
10   Q.  And from that analysis of the data did you conclude that
11   there were significant differences in the way the job of police
12   sergeant is viewed by black sergeants and white sergeants?
13   A.  I would not characterize it as significant in my opinion.
14   But -- but there were different views in terms of relative
15   importance of certain functions.
16   Q.  Did the black sergeants think that some activities were
17   more important than the white sergeants as a group?
18   A.  Yes.
19   Q.  Okay.  Now, was the job analysis, in your opinion, in the
20   1985 test thorough?
21   A.  Yes.
22   Q.  Was it complete?
23   A.  Yes, I believe it was.
24   Q.  Was it undertaken in a professional manner?
25   A.  Yes.
                                                            489
 1   Q.  Now, in addition to having worked for the City of Chicago,
 2   do you belong to any professional organizations that relate to
 3   test development?
 4   A.  Yes, I do.
 5   Q.  Could you tell us briefly what those organizations are.
 6   A.  International Personnel Management Association, which is
 7   a -- a general personnel organization, the International
 8   Personnel Management Association Assessments Council, which is
 9   a -- a branch of that organization -- of the larger
10   organization that deals specifically with testing and selection
11   issues --
12             THE COURT:  What was the title of that again?
13             THE WITNESS:  International Personnel Management
14   Association Assessments Council.  IPMAAC is the shorthand name.
15   BY MR. FLAXMAN:
16   Q.  Any other organizations?
17   A.  We have become a little bit inactive right now, but there
18   is another organization called the Great Lakes Assessment
19   Council that was comprised of -- of persons like myself who
20   have an interest in selection and -- and testing, mainly
21   focused around the midwest cities and states represented.
22   Q.  Do you read any professional literature concerning test
23   development?
24   A.  Yes.
25   Q.  Could you tell us briefly what it is you read.
                                                            490
 1   A.  Oh, a variety of things.  IPMAC puts out a periodical news
 2   letter and IPMA puts out periodical monographs.
 3             I've read books or chapters of books that deal with
 4   selection issues and measurement issues, reports by
 5   organizations that are interested in the, you know issues, of
 6   testing for selection.
 7   Q.  Now, after you did the job analysis for the 1985 Sergeant's
 8   test did you then turn to the question of what type of test
 9   should be developed?
10   A.  Yes.
11   Q.  Did you decide on the type of test after you had completed
12   the job analysis?
13   A.  Well, actually, we began that process, doing the job
14   analysis, towards the end of that process.
15   Q.  Well, just so we're clear, when you started doing the job
16   analysis did you know that the test would consist of three
17   particular subtests that would be graded in a certain way?
18   A.  Not at the start, no.
19   Q.  And at some point you decided what the test would consist
20   of?
21   A.  Yes.
22   Q.  And did you decide that it would consist of three portions?
23   A.  Well, actually, I would call it four portions.
24   Q.  And could you tell us what they were.
25   A.  There was a written multiple choice examination, a
                                                            491
 1   traditional multiple choice paper and pencil.  There was what
 2   we called a written short answer which required the test takers
 3   to fill out brief responses to questions.  It could be words or
 4   phrases or short sentences.  There was an oral -- a structured
 5   oral interview panel.  And then there was a segment for
 6   administrative performance in their present rank as police
 7   officers.
 8   Q.  Now, when you say administrative performance in their
 9   present rank as police officers does that mean that you were
10   using someone's performance rating?
11   A.  That's correct.
12   Q.  Are there performance ratings that are used in the Police
13   Department of the City of Chicago?
14   A.  I believe they're still in use, yes.
15   Q.  And are you familiar with the way in which persons can
16   become D-2 rank in the Police Department?
17   A.  Generally speaking, yes.
18   Q.  And is there -- was one way to become a D-2 rank to take a
19   test?
20   A.  Yes.
21   Q.  And is there any requirement that you have certain --
22   attained a certain level in your performance ratings before
23   you're permitted to take the test to D-2 rank?
24   A.  I don't know that.
25   Q.  You're not aware of any requirement that you have a
                                                            492
 1   performance rating of 80 on three of your last four performance
 2   ratings?
 3   A.  I don't have personal knowledge of that.
 4   Q.  The performance ratings are given out twice a year, is that
 5   right?
 6   A.  When I was last familiar with them that was twice a year.
 7   Q.  Okay.  Now, in the 1985 test, though, you talked about your
 8   traditional multiple choice, written traditional multiple
 9   choice.  What did you mean by traditional?
10   A.  Well, there -- there was a question and several possible
11   alternative correct answers.  The candidate is to pick what
12   they believe to be the correct answer and transfer that
13   information onto a machine scorable answer sheet.
14   Q.  Was this a test of job knowledge?
15   A.  Yes.
16   Q.  It wasn't a test of who's the president of the United
17   States or miscellaneous knowledge like that, was it?
18   A.  I believe it was related to job knowledge for the position,
19   yes.
20   Q.  And isn't it correct that each question on that 1985
21   Sergeant's test related to a general order, a special order,
22   some other Police Department regulation, or Illinois statute,
23   or the City of Chicago Municipal Code?
24   A.  That's correct.
25   Q.  Now, after you -- now, the oral interview panel, could you
                                                            493
 1   explain what that consisted of in the 1985 test.
 2   A.  Well, the Department of Personnel and the Police Department
 3   identified command rank persons within the Chicago Police
 4   Department.  The Department of Personnel trained them in how
 5   the oral interviews were to be conducted, familiarized them
 6   with the questions to be asked and the keyed correct answers or
 7   proposed correct answers, as well as the scoring mechanism.
 8             The candidates who applied for and took the written
 9   portion of the test were -- were then invited for the oral
10   interview portion, which was held on a different date.
11   Q.  How many people took the oral interview portion, about?
12   A.  I at this point could only really guess.
13   Q.  Well, is it more than 2,000?
14   A.  I believe it would be more than 2,000.
15   Q.  Now, did the oral interview portion involve the ability to
16   understand what was spoken to you as the test taker?
17             Let me rephrase the question.  At the oral interview
18   panel was the police officer who wanted to be a sergeant asked
19   questions?
20   A.  Yes.
21   Q.  And the police officer then answered those questions?
22   A.  That's correct.
23   Q.  Now, after these three or four components of the 1985
24   Sergeant's test had been decided upon did you do any work to
25   determine the extent to which these four subtests fully
                                                            494
 1   reflected the job of police sergeant?
 2   A.  Well, by the way the test is constructed we attempted to --
 3   to measure those things that were deemed to be important for
 4   the job if in fact they were measurable in some way or another.
 5   Q.  Well, did you ever try to determine whether the items on
 6   the test fully reflected the tasks and the knowledges, skills
 7   and abilities that were important to the job of sergeant and
 8   that were capable of being tested for?
 9   A.  Yeah.  Yes, I believe that each of the questions was linked
10   back to either a knowledge, skill, or ability or an important
11   task.
12   Q.  Well, did you ever try to show whether -- well, how was the
13   final score -- well, strike that.
14             Did you ever conclude that someone who received a
15   higher score on the job knowledge test back in 1985 would do
16   better as a police sergeant than somebody with a lower score?
17   A.  In a very general sense I agree with that, yes.
18   Q.  Did you ever gather any data for that?
19   A.  Not that I can recall.
20   Q.  And, as a matter of fact, did you conclude that the
21   Sergeant's test -- that the results of the Sergeant's test
22   could not show those aspects of performance that differentiate
23   among levels of job performance?
24   A.  I don't recall having said that.
25   Q.  Well, did you ever say that "We cannot determine" --
                                                            495
 1             MS. PAPUSHKEWYCH:  Can we get a reference from
 2   counsel?
 3             MR. FLAXMAN:  Well, I think when I show it to him, if
 4   he doesn't admit or agree with it --
 5             THE COURT:  I take it you have a background knowledge
 6   of this so that the questions you're asking relate to something
 7   that there's some record or support for or this is not coming
 8   out of your fertile imagination?
 9             MS. PAPUSHKEWYCH:  I hope not.
10             MR. FLAXMAN:  No, Judge.
11             THE COURT:  All right, you may proceed.
12   BY MR. FLAXMAN:
13   Q.  Did you ever state that "We cannot determine or claim that
14   scores within a few points of each other accurately distinguish
15   candidates on the basis of their qualification for promotion"?
16   A.  I have made that statement.  I don't know if it was in the
17   context of police sergeant.
18   Q.  Have you made it in the context of a police promotional
19   test?
20   A.  I --
21             MS. PAPUSHKEWYCH:  The witness has testified that he
22   does not know what context it is.
23             If Mr. Flaxman can refresh the witness's recollection
24   as to what the context is --
25             THE COURT:  I think he's well aware of that.  And
                                                            496
 1   you're going to have the opportunity on cross examination, as
 2   well, to deal with it.  So I'll let counsel on each side
 3   present their cases the way they wish.
 4             I'm also well aware that I don't expect a witness to
 5   remember everything they've ever said leading up to today's
 6   date.  So --
 7   BY MR. FLAXMAN:
 8   Q.  Do you remember the last question?
 9   A.  I believe I answered it.
10   Q.  Well, the last question was:  Do you recall saying that
11   about any police promotional test?
12   A.  Oh, I'm sorry.  As I said, I do recall making that
13   statement, and probably on more than one occasion, but I cannot
14   specifically identify which type of examination I was making
15   reference to.
16   Q.  Well, did you ever try to argue that the results of the
17   1985 Sergeant's test could be used for rank order promotions?
18   A.  No.
19   Q.  And why was that?
20   A.  In my opinion, the results used in strict rank order would
21   have caused an adverse impact that would have concerned me.
22   Q.  And in the 1985 Sergeant's test you were -- did you have
23   significant responsibility for preparation of the test?
24   A.  Yes, I did.
25   Q.  What, were you like in command?
                                                            497
 1   A.  I was the ultimate decision maker, if you might put it that
 2   way.
 3   Q.  Were you the ultimate decision maker on the 1993 sergeant's
 4   promotional test?
 5   A.  No, I was not.
 6   Q.  Who was?
 7   A.  I'd have to say it was -- that responsibility was housed in
 8   several people in several departments.
 9   Q.  Who are they?
10   A.  I probably couldn't name all of them.  But the Mayor's
11   Office, the -- a representative from the Mayor's Office, the
12   consultants themselves, the -- the -- in a sense, the blue
13   ribbon panel was -- was given deference because of the
14   recommendations they made as to how the testing process should
15   go forth.
16   Q.  Well, was there one ultimate decision maker in the 1993
17   test, to your knowledge?
18   A.  I don't know.
19   Q.  Do you know who would know?
20   A.  No, I don't.
21   Q.  Well, were you involved in preparing the announcement for
22   the 1993 Sergeant's test?
23   A.  My staff was, so, therefore, it came under my
24   responsibility.
25   Q.  Did you review it before it went out to be printed?
                                                            498
 1   A.  Yes.
 2   Q.  When you reviewed it did you know that the test was going
 3   to consist of three parts?
 4   A.  Yes.
 5   Q.  Did you know that one part would be a written test of job
 6   knowledge?
 7   A.  Yes.
 8   Q.  And, based on your experience in the City of Chicago, did
 9   you expect that a written test of job knowledge for police
10   promotions would have a significant disparate impact on
11   minorities?
12   A.  No, I didn't expect that.
13   Q.  Did you ever learn that the written test did have that
14   significant disparate impact on minorities?
15   A.  Yes.
16   Q.  And how many written job knowledge tests have you been
17   involved with in police promotions or have you been -- or are
18   you aware of that have been used in police promotions in the
19   City of Chicago?
20   A.  Very roughly, 10.
21   Q.  And isn't it true that each one of those written tests of
22   job knowledge when scored for ranking has had a disparate
23   impact on minorities?
24   A.  I don't believe that's the case.
25   Q.  Well, is there one exception?
                                                            499
 1   A.  I -- I believe I recall an instance where -- a police
 2   captain examination where the -- the -- there was not a
 3   disparate impact or adverse impact on the written multiple
 4   choice test scores.
 5   Q.  Other than the police captain's examination, have you ever
 6   seen a -- in the City of Chicago a written test of job
 7   knowledge for proportions to sergeant that has not had a
 8   disparate impact on minority applicants?
 9   A.  I don't recall at present if there were.
10   Q.  But the 1985 written test did have a disparate impact on
11   minority applicants?
12   A.  The raw scores did.
13   Q.  And is that also true for the raw scores on the 1978
14   Sergeant's test?
15   A.  I suspect it did.  But I -- again, that's quite a while ago
16   and I -- I'm not quite sure.
17   Q.  Now, you're familiar with the way in which promotions have
18   been made to sergeant in the City of Chicago over the last 25
19   years, probably, is that right?
20   A.  Yes.
21   Q.  Okay.  Now, at some point there was a quota for promotions,
22   is that right?
23             If you don't recall I'll try to refresh your
24   recollection.
25   A.  Please.
                                                            500
 1   Q.  Okay.  Do you remember back in 1976 Judge Marshall ordered
 2   that 40 percent of promotions go to African-American and -- I
 3   think African-American and Hispanic police officers?
 4   A.  Yes, I believe I remember that.
 5   Q.  And those in that -- in 19- -- sometime thereafter the
 6   Court of Appeals ordered that that quota be reduced so that 25
 7   percent of the promotions went to minorities?
 8             Is that your recollection?
 9   A.  It depends on how you define minority.
10   Q.  Well, okay.  But that quota was reduced pursuant to the
11   Court of Appeals, is that right, as far as you know?
12   A.  Again, reduced minorities you'd have to define.
13   Q.  Okay.  Now, when the City of Chicago was complying with
14   those court orders and making quota promotions how did the City
15   do that mechanically?
16   A.  As I recall, we went to the list in use at the time, which
17   was a rank order list, and we identified persons in rank order
18   that had the highest remaining scores but in a manner that
19   ensured that we would meet the -- the goal or the quota for
20   minorities and for women.
21   Q.  Is that the process that was used up until promotions were
22   first made from the 1987 or 1988 Sergeant's test?
23   A.  I actually don't recall.
24   Q.  Okay.  Well, was one consequence of using this complying
25   with the quotas that a minority officer who had a lower raw
                                                            501
 1   score on the test would be promoted over a white officer who
 2   had a higher raw score?
 3   A.  That could have happened, yes.
 4   Q.  Has the Department of Personnel ever done any analysis to
 5   see if these minorities who were promoted with lower raw scores
 6   did as well on the job as the whites who had higher scores?
 7   A.  Not to my knowledge.
 8   Q.  Now, in 1987 the City used something called the race
 9   norm -- excuse me, 1988 -- the City used something called
10   called the race norm test, is that right?
11   A.  Yes.
12   Q.  Could you explain for us what that was.
13   A.  Well, after giving the various parts of the test we
14   analyzed the raw score results, and some of the portions had a
15   statistically significant difference in mean performance by --
16   by race or ethnic group.  And it was to an extent that I felt
17   was not defensible in that it was -- it was relatively small
18   differences in practical scores but it would have had a
19   significant difference in -- in a person's promotability and
20   that that would be caused by -- and that -- I guess that --
21   that effect would go beyond my comfort level in terms of the
22   validity of the test, being able to justify that.
23   Q.  So what did you do?
24   A.  What we did was a statistical process of converting
25   everyone's scores from their own subgroup -- white, black,
                                                            502
 1   Hispanic -- to -- to a common norm so that the average scores
 2   of each of those subgroups became equal and their distribution
 3   of scores from high to low became relatively equal.  It in
 4   effect eliminates the adverse impact of the raw scores.
 5             THE COURT:  Could I ask clarification of what he
 6   means by relatively equal.
 7             I think your testimony is just to the contrary, that
 8   it was to satisfy a quota percentage.  And, if so -- I'm not
 9   quite sure what his answer is on that.
10   BY MR. FLAXMAN:
11   Q.  Well, what was the purpose of race norming?
12   A.  In my opinion, the purpose of race norming was to develop a
13   usable, good eligible list that met the various requirements of
14   federal law and professional guidelines and so forth.
15   Q.  Is it correct that the result of race norming was to -- was
16   the same as superimposing a quota on the list?
17   A.  I would not characterize it that way.
18   Q.  Well, was the practical result that of the top 200 to be
19   promoted you would have a representation of all groups that
20   mirrored the representation of the groups who applied to be
21   promoted?
22   A.  In general, yes, that's true.
23   Q.  And through race norming you would eliminate or greatly
24   minimize any disparate impact?
25   A.  That's correct.
                                                            503
 1   Q.  And is it your understanding that race norming is something
 2   that's illegal under the 1991 Civil Rights Act?
 3   A.  That is my understanding.
 4   Q.  Now, as a result of race norming did the City -- is it
 5   correct that the City of Chicago promoted African-American and
 6   Hispanic police officers who had scored lower on the test than
 7   white police officers?
 8   A.  Yes, that's correct.
 9   Q.  Do you know if the City of Chicago has done any research to
10   determine whether or not these police officers who were
11   promoted with lower scores did not -- do not perform as well as
12   on the job as the police officers with higher scores?
13   A.  I'm not aware of any such study.
14   Q.  When you -- and it was your recommendation to do race
15   norming?
16   A.  Yes, it was.
17   Q.  When you made that recommendation did you believe that it
18   would be injurious to the public safety not to be promoting the
19   people with the highest scores on the test?
20   A.  No, I did not believe that.
21   Q.  And why is that?
22   A.  Because, as I -- I mentioned briefly before, the -- the
23   practical difference in scores between the subgroups was not
24   very great -- maybe two points -- and those two or three points
25   fall within the various -- well, the measures of error in a
                                                            504
 1   test.
 2   Q.  When you say practical differences do you mean the
 3   differences in the average score on each test?
 4   A.  Yes.
 5   Q.  Now, you talked about the blue ribbon panel.  Were you a
 6   member of the blue ribbon panel?
 7   A.  No, I wasn't.
 8   Q.  Did you provide any information to the blue ribbon panel?
 9   A.  Yes.
10   Q.  Did you ever review the recommendations of the blue ribbon
11   panel?
12   A.  Yes.
13   Q.  Do you know when those recommendations were announced?
14   A.  I don't recall.
15   Q.  Do you know whether it was before or after the 1993
16   sergeant's promotional test was announced?
17   A.  I actually don't recall.
18   Q.  Is it correct that the City of Chicago does not have any
19   evidence of which you're aware in the Department of Personnel
20   that a higher score on a written test of job knowledge reflects
21   expected or actual superior performance on the job with respect
22   to police sergeant?
23   A.  Any data that reflects that?
24   Q.  Right.
25   A.  I am not aware of any.
                                                            505
 1   Q.  Do you know if the City of Chicago has made any effort in
 2   the last 26 years to obtain such data?
 3   A.  Yes.
 4   Q.  What effort has been made to obtain such data?
 5   A.  I can think of a -- a study we conducted at one time on a
 6   sergeant's examination.  I believe it was the 1973 sergeant's
 7   examination.  It was a concurrent validation study where 88
 8   pairs of present sergeants were -- were matched.  And it was a
 9   white and a nonwhite who achieved the same score on the '73
10   sergeant's examination.  And -- and their performance was later
11   on assessed as sergeants.
12   Q.  And is it correct that that 1973 concurrent validation
13   study did not provide you with evidence that a higher score on
14   a written test of job knowledge reflects expected or actual
15   superior performance?
16   A.  It -- it did have -- the correlation that you would use in
17   that case, or that we did use was -- was a -- like a predictive
18   correlation, and it did predict -- there was a correlation
19   between test score and performance on the job.
20   Q.  And that was in 1973.  Was that presented in court?
21   A.  Yes.
22   Q.  And that was rejected by Judge Marshall, wasn't it?
23   A.  I don't know if the study was rejected by Judge Marshall.
24   Q.  Well, he didn't let you use the scores to make promotions
25   from the 1973 test, did he?
                                                            506
 1   A.  Not without the quota that you made previous reference to.
 2   Q.  Well, do you remember signing an affidavit sometime in 1990
 3   in a case known as Bigby and Irwin versus City of Chicago, No.
 4   80 C 5246?
 5   A.  I frankly don't have immediate recollection of whether I
 6   did.
 7   Q.  Let me mark that as Plaintiffs' Exhibit 65.  And I hope I'm
 8   not duplicating.
 9             Is that your signature that appears on page 9?
10   A.  Yes, it is.
11   Q.  Now, if you'll look at the bottom of page 4, do you see the
12   sentence that reads "We have no evidence that a higher score
13   reflects expected or actual superior performance and I know of
14   no practical way we could obtain such evidence"?
15   A.  That's what it says.
16   Q.  Well, and when you signed this you were certifying under
17   penalties of perjury, were you not, that that this was correct?
18   A.  Yes.
19   Q.  You didn't say anything about this 1973 concurrent
20   validation study when you talked about no evidence of a higher
21   score reflects expected or actual superior performance, did
22   you -- were you?
23   A.  No.  This is in reference to the '87 exam, not the '73
24   exam.
25   Q.  Well, as you sit here now do you know of any evidence that
                                                            507
 1   a higher score on a written test of job knowledge of a police
 2   sergeant reflects expected or actual superior performance?
 3             THE COURT:  Which test are you relating it to now,
 4   the current one --
 5             MR. FLAXMAN:  The current one.
 6             THE COURT:  -- or just generally?
 7             MR. FLAXMAN:  Just generally.
 8   BY THE WITNESS:
 9   A.  I generally believe that a higher test score is -- is
10   indicative of -- of higher performance on the job.  But in
11   terms of the statistical data I -- I don't have any to provide
12   you.
13   Q.  Well, when you used the phrase -- this affidavit, was
14   this -- did you draft this yourself, Exhibit 65?
15   A.  I certainly did a lot of it.  I must have relied on my
16   staff to provide me some input in terms of numbers and so
17   forth.
18   Q.  Well, but you didn't talk about no data, you talked about
19   no evidence that a higher score reflects expected or actual
20   superior performance.
21             Do you see that at page 4 and 5?
22   A.  That's true, yes.
23   Q.  And as you sit here now is it still true that we have no
24   evidence that a higher score reflects expected or actual
25   superior performance?
                                                            508
 1             MS. PAPUSHKEWYCH:  In what exam are you talking
 2   about?
 3             MR. FLAXMAN:  On a written test of job knowledge for
 4   a police officer and reflects expected or actual superior
 5   performance as a police sergeant.
 6   BY THE WITNESS:
 7   A.  My opinion is that a written test if adequately and
 8   professionally done is -- is useful in -- in making an estimate
 9   of a person's promotional potential.  But within my -- within
10   the constraints of the power of a test and -- and -- and the
11   fact that all tests are not perfect and all test scores are not
12   perfect.
13   BY MR. FLAXMAN:
14   Q.  Well, my question, Mr. Joyce, is about evidence.  When you
15   wrote in this affidavit "We have no evidence that a higher
16   score reflects expected or actual superior performance," is it
17   true today that we have no evidence that a higher score on a
18   written test of job knowledge reflects expected or actual
19   superior performance?
20   A.  Yes, that's correct.
21             MR. FLAXMAN:  Thank you.  I have nothing further.
22             THE COURT:  All right, cross examination.
23             MS. PAPUSHKEWYCH:  Thank you.
24                          CROSS EXAMINATION
25   BY MS. PAPUSHKEWYCH:
                                                            509
 1   Q.  Referring back to your affidavit that Mr. Flaxman was just
 2   talking about in the case of Bigby versus City of Chicago,
 3   again drawing your attention to page 4, the bottom of page 4,
 4   paragraph 8, where you made the statement "We have no evidence
 5   that a higher score reflects expected or actual superior
 6   performance and I know of no practical way we could obtain such
 7   evidence."  When you made this statement you were referring to
 8   the 1987 police lieutenant examination, isn't that correct?
 9   A.  Yes.
10   Q.  And when you made this statement you were referring, were
11   you not, to the fact that at that time you had not done a
12   concurrent criterion-related study of that examination?
13   A.  That's correct.
14   Q.  And you have testified today, I think at least three times,
15   that in your opinion, based on your experience, that you
16   believe that there generally is a correlation between a higher
17   test score and performance on the job, isn't that true?
18   A.  Yes.
19   Q.  In your professional opinion, does one need to have a
20   concurrent criterion-related study in order to utilize a
21   content valid exam?
22   A.  No.
23   Q.  Are you familiar with the EEOC guidelines?
24   A.  Yes, I am.
25   Q.  And isn't it true that nothing in those guidelines require
                                                            510
 1   that?
 2   A.  That is correct.
 3   Q.  In fact, the guidelines talk about three different ways of
 4   validating examinations, isn't that true?
 5   A.  Yes.
 6   Q.  And those three ways are criterion, construct and content,
 7   isn't is that right?
 8   A.  Yes.
 9   Q.  And the guidelines -- reading the guidelines and with your
10   experience in terms of the test, there is no one particular way
11   that is better than another, is there?
12   A.  That is correct.
13   Q.  You testified that you were familiar with the area of test
14   development and that you were familiar with the literature in
15   the area.  Have you ever reviewed or read any literature
16   regarding correlation between score on a test and subsequent
17   performance on a job?
18   A.  Yes.
19   Q.  And is there literature in the field that in fact states
20   that there is a correlation between test scores and performance
21   on a job?
22   A.  Yes.
23   Q.  In your professional opinion, is there any way to determine
24   whether a difference in scores on a particular examination is
25   meaningful from a statistical viewpoint without analyzing the
                                                            511
 1   data?
 2   A.  No.  I think you'd have to analyze the data.
 3   Q.  Why is that?
 4   A.  Well, absent the statistical tests that tell us how
 5   reliable or how powerful a particular test is in terms of
 6   prediction you really -- you really can't assess it with --
 7   with much certainty.
 8             In developing a content valid test, you know, the
 9   objective is to -- is to create a test that is directly related
10   to important job functions, and a carefully crafted job
11   analysis and the content valid test approach does that.
12   Q.  And isn't it true that in order to determine whether or not
13   there is meaningful differences between scores you need to do
14   some statistical analysis, for example like the standard
15   measurement and other types of methodology?
16   A.  Yes, there are a few ways of doing it and standard error
17   measurement is one of the keystones for that.
18   Q.  Is it possible -- strike that.  It isn't possible to
19   determine whether or not the use of an examination is
20   appropriate or valid without analyzing the data generated from
21   that examination, is there.
22             MR. FLAXMAN:  Objection.  It's a compound question,
23   appropriate or valid.  I don't know if --
24             THE COURT:  All right, I'll sustain the objection as
25   to form but not the subject matter.
                                                            512
 1             If you could restate the question in the singular as
 2   opposed to compound.  You can ask him three or four questions
 3   then.
 4             MS. PAPUSHKEWYCH:  I will do that.
 5             THE COURT:  Okay.
 6   BY MS. PAPUSHKEWYCH:
 7   Q.  Is it possible to form an opinion regarding the validity of
 8   how test results are utilized without analyzing the data from
 9   those test results?
10   A.  I can think of no way how you could do it.
11   Q.  If a examination has adverse impact, does that mean it is
12   not valid?
13   A.  No.
14   Q.  And what determines whether a test is valid, in your
15   experience?
16   A.  A test is valid if it accurately measures that which you
17   intended to measure and -- and that which you intend to measure
18   is -- is logically related to performance on the job.
19   Q.  And how do you make that determination as to whether or not
20   it accurately measures performance on the job?
21   A.  As I briefly mentioned before, in -- in the content of
22   validity strategy you -- you do a very careful and complete job
23   analysis to identify what the critical components of the job
24   are, you eliminate noncritical components, and you -- you try
25   and develop a test process or processes that measure as many
                                                            513
 1   parts of the job as can reasonably be measured and combine them
 2   in a -- in a manner that reflects the job or reflects the --
 3   the relevant quality of the various portions of the test.
 4   Q.  Mr. Flaxman asked you some questions about the 1985
 5   sergeant's exam which you developed, and I would like to turn
 6   your attention to the written short answer portion.  Could you
 7   describe what that written short answer portion consisted of?
 8   A.  There are relatively few questions -- I don't remember
 9   exactly offhand -- approximately 20 questions.  They were open-
10   ended in that the -- the correct answer was not provided to the
11   candidate.
12             They were -- for example, the question may have been
13   something like what are the three -- what are three activities
14   that must be carried out at roll call, and the person from
15   their own knowledge of the job would have to recall what three
16   things are required at roll call and write them out either in a
17   phrase or in some short sentences.
18   Q.  And what were you testing with that component of the
19   examination?
20   A.  The measure of their knowledge of the job that is
21   reasonably expected to be known from recall without having
22   to -- to be prompted by a study guide or -- or refresher notes,
23   those things that -- that someone needs to know immediately
24   and -- and should not to be expected to -- to be able to go
25   back to some reference book and -- or some general order to --
                                                            514
 1   to find out what the right answer is.
 2   Q.  In that component were you also looking at it to determine
 3   anything about the candidate's ability to write?
 4   A.  Well, there was -- one of the ratings used, I believe, did
 5   cause the rater to evaluate the person's writing legibility and
 6   how understandable it was.  But -- but that was -- the focus of
 7   that was not to take points off for syntax or grammatical error
 8   or spelling mistakes.  As long as the person's response was
 9   understandable to a reasonable person and they got their point
10   across they received credit for that.
11   Q.  And did you -- after the exam was administered did you
12   analyze the results of that component?
13   A.  I did, yes.
14   Q.  And the results were somewhat disappointing in terms of
15   differentiating between candidates, weren't they?
16   A.  Yes.
17   Q.  And why was that?
18   A.  Well, the -- the test scores were skewed to the high end.
19   In other words, most persons received a perfect score or very
20   close to a perfect score.
21   Q.  And what -- how does that impact the overall use of the
22   examination when that happens?
23   A.  Well, it becomes somewhat of a constant.  It is not
24   distinguishing those superior performers from -- from average
25   or poor performers.  So the test isn't doing much to -- to make
                                                            515
 1   that distinction.  And, since it isn't making that distinction
 2   it's -- it's -- it is kind of forced into being a non-
 3   contributing factor.
 4   Q.  You testified -- I'll turn now to your testimony regarding
 5   the quotas from the 1970 litigation in front of Judge Marshall.
 6             Were you in the position of management -- I'm sorry,
 7   what was your position in the 1970s?
 8   A.  Personnel Analyst III and in the mid '70s a -- a
 9   Supervising Personnel Analyst or Assistant Supervising, and
10   then -- up till about 1977.  And in approximately '77 or '78 I
11   was named the manager of the examination services.
12   Q.  When the court ordered certain quota promotions was -- to
13   your knowledge, was anyone demoted when those promotions were
14   ordered?
15   A.  No.
16   Q.  In your experience over 20 years with the City of Chicago,
17   whenever there has been any court-ordered promotion isn't it
18   true that there have not been demotions flowing from that court
19   order?
20   A.  That is correct.  There has never been a need for a
21   demotion.
22   Q.  You testified previously that you were not very familiar
23   with the performance evaluation system of the Chicago Police
24   Department, is that correct?
25   A.  Yes.
                                                            516
 1   Q.  Why is that?
 2   A.  Well, we have relied on it less in the recent past.  In
 3   fact, when we used it on the '85 sergeant's examination it
 4   played a -- a quite minor role in the overall weighting of the
 5   fine score.
 6             Additionally, there were some -- as I recall, there
 7   were some union grievances about the -- the utility of the
 8   performance evaluation system and there were study groups,
 9   or -- and the whole process was -- was scrutinized as to try
10   and improve it.  And I don't know that anything has come from
11   that yet.  And as -- as time has gone by my -- my direct
12   knowledge of it has -- has become less and less.
13   Q.  And you also testified that you were somewhat familiar with
14   the blue ribbon panel recommendations?
15   A.  Yes.
16   Q.  And are you aware that the ribbon panel recommended that
17   we -- that the Chicago Police Department in fact hire a
18   consultant to come up with a new performance appraisal system?
19   A.  Yes, that's correct.
20   Q.  And do you know whether or not the Police Department has
21   done that?
22   A.  Actually, I do not know that.
23   Q.  In your experience with the City of Chicago in your
24   position in the Department of Personnel have you had occasion
25   to deal with the issues that arise when one utilizes
                                                            517
 1   performance evaluations as a measure or a component of an
 2   examination?
 3   A.  Yes.
 4   Q.  And have you formed an opinion as to the reliability of
 5   such measures?
 6   A.  Yes, I have.
 7   Q.  And what is your opinion?
 8   A.  Well, especially at a rank like sergeant, where -- where
 9   those competing to become sergeants -- there are 8,000
10   potential candidates -- those 8,000 candidates are rated by
11   about 1,200 sergeants.  So, very quick mathematically, one
12   sergeant rates about 7 or 8 people.  And when you have --
13             THE COURT:  I'm not sure what you mean by the word
14   rates.
15             THE WITNESS:  They actually assign the evaluation of
16   the persons' performance for those police officers under their
17   direct supervision.
18             And -- and there are about 1,200 sergeants in the
19   department and there are about 8,000 police officers.
20             THE COURT:  So you're talking about performance
21   evaluation when you say rate?
22             THE WITNESS:  Yes.  I'm sorry.
23             THE COURT:  Okay.  I understand now.  Go ahead.
24             THE WITNESS:  In fact, it's -- it's -- I believe the
25   shorthand term for it is DPR, Departmental performance rating.
                                                            518
 1             THE COURT:  Okay.
 2             MS. PAPUSHKEWYCH:  We stand corrected.
 3             THE WITNESS:  It was my error.
 4             And -- and I'm very concerned that when you have
 5   1,300 or 1,200 persons performing evaluations that -- and, even
 6   though they are doing the best job they can, there's -- it's
 7   just fraught with the probability that those ratings are going
 8   to be unreliable because 1,200 people using rather complex
 9   standards of performance, it -- it's difficult to do.
10   BY MS. PAPUSHKEWYCH:
11   Q.  And in your position as Deputy Commissioner of Personnel
12   you're aware, are you not, that many, many individuals
13   challenge performance evaluations as being too subjective?
14   A.  That's correct.
15   Q.  And isn't it also true that many individuals within both
16   the police and the fire departments specifically feel that
17   performance evaluations are based on favoritism?
18   A.  Yes, that is a very widely held opinion.
19   Q.  And isn't it also true that there is a widely held opinion
20   that performance evaluations may also be impacted by politics?
21   A.  That -- that claim is raised frequently, yes.
22   Q.  And isn't it true that in fact those claims were made in
23   front of the blue ribbon panel?
24   A.  Yes.
25   Q.  I'm going to turn your attention now to something that
                                                            519
 1   Mr. Flaxman asked you regarding merit selection procedures, and
 2   I believe it was in the context of D-1 and D-2, was his
 3   terminology.
 4             Can you please explain to me what is D-1 and D-2.
 5   A.  Those are pay grades within the Police Department.  D-1
 6   grade is primarily for police officers.  D-2 covers a number of
 7   positions, primarily detective.  But youth officers and -- and
 8   dispatch officers also are D-2.
 9             But I -- I understood the question to be in the
10   context of detectives.
11   Q.  And it is a fact, is it not, that promotions to the rank of
12   D-2 are not career service promotions?
13   A.  That is correct.
14   Q.  In fact, persons who are in the detective position still
15   maintain the rank of police officer?
16   A.  That's correct.  In fact, technically, I think the title is
17   police officer assigned as detective or police officer assigned
18   as youth officer.
19   Q.  And isn't it also true that merit promotions within the D-2
20   ranks are made at approximately 20 percent of every promotional
21   order?
22   A.  Yes, I believe that's the case.
23   Q.  And isn't it true that until recently it was 10 percent?
24   A.  That is correct.
25             THE COURT:  I think I don't -- I don't understand
                                                            520
 1   that.  So if you can clarify it.
 2             MS. PAPUSHKEWYCH:  Oh.  Well, let me clarify that.
 3             THE COURT:  Yeah.
 4   BY MS. PAPUSHKEWYCH:
 5   Q.  Did you know whether or not -- well, strike that.  How
 6   long, to your knowledge, has the Police Department utilized a
 7   merit selection process to the rank of detective?
 8   A.  I can't say with certainty.  It's probably been at least 10
 9   years.
10   Q.  And over the last 10 years has the percentage changed in
11   terms of how many of those promotions are based on merit as
12   opposed to examination?
13   A.  Yes.
14             THE COURT:  Oh, okay.  That's what I didn't
15   understand.
16             MS. PAPUSHKEWYCH:  I'm sorry.
17             THE COURT:  Merit being a job performance evaluation?
18             MS. PAPUSHKEWYCH:  I'm going to clarify that.
19             THE COURT:  Okay.  All right.
20   BY MS. PAPUSHKEWYCH:
21   Q.  Now, merit selection is not based strictly on performance
22   evaluations, is it?
23   A.  No.
24   Q.  Do you know the what the merit selection process is within
25   the Police Department?
                                                            521
 1   A.  Not completely.  But it is a review of -- of the complete
 2   history and performance and work output of -- of the person who
 3   is wishing to be appointed.
 4   Q.  And isn't it true that the nominations in fact are made by
 5   supervisory personnel in the Police Department?
 6   A.  Yes, that's correct.
 7   Q.  And isn't it true that there is an academic selection board
 8   that was instituted by the Superintendent that reviews those
 9   nominations?
10   A.  Yes, that's true.
11   Q.  And isn't it also true that the merit selection board takes
12   a look at commendations?
13   A.  Yes.
14   Q.  And isn't it also true that the merit selection board looks
15   at academic credentials?
16   A.  Yes.
17   Q.  And isn't it also true that the merit selection board looks
18   at specialized training?
19   A.  That's correct.
20   Q.  And isn't it also true that the merit selection board looks
21   at things such as disciplinary records?
22   A.  Yes.
23   Q.  And is there anything else that you know that they review?
24   A.  I can't think of anything at present.
25   Q.  But it's clear that they do not just base it on a
                                                            522
 1   performance rating, isn't this true?
 2   A.  That's correct.
 3             THE COURT:  But they don't take any special exam for
 4   this promotion?
 5             MS. PAPUSHKEWYCH:  That's correct, your Honor.
 6             THE COURT:  Okay.
 7   BY MS. PAPUSHKEWYCH:
 8   Q.  The merit selection process is outside any examination
 9   process for the detective position, isn't that right?
10   A.  Yes.  Appointments to detective can come through one of two
11   ways:  by a -- by a person's score on an assembled competitive
12   examination and/or by -- by nomination and acceptance through
13   the merit process.
14   Q.  And isn't it true that that procedure is, in fact,
15   contained in the FOP contract?
16   A.  Yes, it is.
17             MS. PAPUSHKEWYCH:  Can I have a moment?
18             THE COURT:  And that's the union contract?
19             MS. PAPUSHKEWYCH:  Yes.  I'm sorry.
20             THE COURT:  Oh, that's okay.
21             MS. PAPUSHKEWYCH:  Fraternal Order of Police Lodge 7.
22             THE COURT:  Okay.
23             MS. PAPUSHKEWYCH:  May I have a moment?
24             THE COURT:  Yes.
25             MS. PAPUSHKEWYCH:  Nothing further, although we will
                                                            523
 1   reserve our right to call Deputy Joyce in our case in chief.
 2             THE COURT:  All right.  We're at 12:30.  Should we
 3   break now?  Or do you want finish --
 4             MR. FLAXMAN:  I have some short redirect, and then --
 5             THE COURT:  All right.  Why don't we finish this
 6   witness's testimony.  And then we'll take an hour for lunch.
 7   Is that satisfactory?
 8             MS. PAPUSHKEWYCH:  Yes.
 9             THE COURT:  Okay.
10             MR. FLAXMAN:  And do we have you for the whole
11   afternoon?
12             THE COURT:  Yes.
13             MR. FLAXMAN:  Okay.
14             THE COURT:  All week.
15             MR. FLAXMAN:  Fine.
16             THE COURT:  We're clear of motions.  I already had --
17   I have a terrific court clerk who just pushed all the cases
18   into the next week that we're going to face next week.
19                        REDIRECT EXAMINATION
20   BY MR. FLAXMAN:
21   Q.  Now, the FOP contract, does that have anything to do with
22   promotions to sergeant?
23   A.  There is language in there that -- that deals with -- with
24   promotion.  But, since sergeant is not in the collective
25   bargaining unit, it is -- it's not a -- it's not something that
                                                            524
 1   we have to rely on.
 2   Q.  Now, the merit selection board that you described selects
 3   20 percent of the persons who are promoted to detective, is
 4   that right?
 5   A.  They make recommendations to the Superintendent, who -- who
 6   then appoints, generally, 20 percent based on merit.
 7   Q.  And in making those recommendations the merit selection
 8   board is free to consider any police officer, is that right?
 9   A.  Well, they have to be nominated by their supervisors, and
10   it has to be done in the context of the general order that
11   describes how it's done.
12   Q.  Okay.  But of the people who can be nominated by the
13   Supervisor it's generally any police officer, is that right?
14   A.  I don't know the -- the minimum qualifications for -- for
15   nomination as we speak today.
16   Q.  Well, do you know whether or not those minimum
17   qualifications for nomination are different than the minimum
18   qualifications to become a sergeant, or to take the test to
19   become a sergeant?
20   A.  Well, since I don't know what they are for D-2 I can't
21   really answer that.
22   Q.  Well, is there any reason of which you're aware why the
23   merit selection board could not be making recommendations for
24   promotion to sergeant?
25   A.  Well, there's a -- a recent Illinois Appellate Court
                                                            525
 1   decision that has kind of clouded the issue a little bit.  But
 2   we are working on whether that -- that is a possibility.
 3   Q.  Well, other than that Illinois Appellate Court decision, is
 4   there any practical or psychometric reason why the merit
 5   selection board could not be used to make recommendations for
 6   promotion to sergeant?
 7   A.  Well, actually, I haven't -- I have not given that
 8   significant enough thought to -- to answer you professionally.
 9   But I do have some concerns about how it could be done at the
10   rank of sergeant, because the feeder pool for police officer in
11   Chicago is so large that, again, trying to have a reliable
12   nomination and evaluation process would become difficult.
13   Q.  Well, is the feeder pool the same for sergeants as for
14   detectives as police officers?
15   A.  I don't know.  There are -- I do know that there are fewer
16   people who apply to become detectives than there are who apply
17   to be promoted to sergeant.
18   Q.  Has the City done any investigation to determine whether or
19   not the detectives who have been promoted through the merit
20   selection board process have done as well as or not as well as
21   the detectives who were promoted through the examination
22   process?
23   A.  I don't know.
24   Q.  Now, when you talked about the performance rating system
25   and you said it had been criticized as having to do with
                                                            526
 1   politics, favoritism, or unreliable, do you know of any
 2   analysis, mathematical analysis that's been done to see whether
 3   any of those beliefs are true?
 4   A.  Well, the reliability part --
 5             THE COURT:  Are you talking about mathematical
 6   analysis or study?  Or is it limited strictly to mathematical
 7   analysis?
 8             MR. FLAXMAN:  No, I mean study.
 9             THE COURT:  I'm not sure how political favoritism
10   could be mathematically analyzed.
11             MR. FLAXMAN:  I wasn't sure either when I asked the
12   question.
13             THE COURT:  Okay.  All right.  Why don't you restate
14   the question then.
15             MR. FLAXMAN:  All right.
16   BY MR. FLAXMAN:
17   Q.  Has any study been done to see whether or not these
18   beliefs -- whether or not there's a factual basis for these
19   beliefs that politics, favoritism enter into performance
20   ratings?
21   A.  In terms of politics and favoritism, no.
22   Q.  Okay.  Has any study been done to see whether or not
23   performance ratings are reliable?
24   A.  Yes.
25   Q.  And by reliable do you mean that a person would get the
                                                            527
 1   same performance rating in one period as in another period?  Or
 2   was there any different rating?
 3             Well, what did you mean by --
 4   A.  Well, it's been done in several ways.  And, unfortunately,
 5   it was long enough ago that I -- I don't remember precisely.
 6             I do remember in one case we looked at the effect of
 7   an individual's performance rating after a transfer.  And there
 8   is -- there is -- as I recall, the findings were that after a
 9   transfer a -- a person's performance rating generally goes
10   down.
11             If the person stays under the same supervisor
12   there -- there is high reliability in terms of a repeated
13   performance score if under the same supervisor.  But -- but if
14   a person changes supervisors or changes units, then -- then
15   there is not a reliable continuation of the score.
16             But that gets back to part of my commentary earlier
17   that --
18   Q.  Now, at one time was it charged that the performance
19   ratings were discriminatory?
20   A.  Yes.
21   Q.  And that was -- when was that?
22   A.  I don't remember precisely.  It was in conjunction with the
23   Bigby in police lieutenant, I believe.
24   Q.  And that would be the trial that took place in 1982, is
25   that right?
                                                            528
 1   A.  I don't remember exactly.  But that sounds right.
 2   Q.  Now, since 1982 is it correct that the proportion of
 3   minority sergeants has increased in the City of Chicago?
 4   A.  I can't say that with certainty.
 5   Q.  Okay.  Well, since 1982 have you done any analysis to
 6   determine whether there are differences in the mean scores of
 7   black, white, and Hispanic police officers in performance
 8   ratings in the City of Chicago?
 9   A.  I'm quite sure we would have done that in conjunction with
10   our work on the '85 Sergeant.
11   Q.  Well, since the work on the '85 Sergeants have you done any
12   analysis of that nature?
13   A.  Not that I can recall.
14   Q.  Would it surprise you to know that there's less than one
15   point average score difference between blacks, whites and
16   Hispanics in their performance ratings?
17             MS. PAPUSHKEWYCH:  I object.  There are no facts in
18   evidence to that.
19             THE COURT:  Well --
20             MS. PAPUSHKEWYCH:  Would if surprise you to --
21             THE COURT:  I'll sustain the objection to that
22   question in the sense that it seeks to indirectly utilize
23   something that is not in evidence.
24             But you certainly can ask this witness if he's got
25   any knowledge.
                                                            529
 1   BY MR. FLAXMAN:
 2   Q.  Do you have any knowledge about whether the differences in
 3   mean scores performance ratings between black, white and
 4   Hispanic police officers is now less than one point?
 5   A.  No, I don't have that information.
 6   Q.  Would you be able to find that out if you wanted to?
 7   Q.  Not within my office or my records, no.
 8   Q.  Could you get data from the Police Department?
 9   A.  I could request it.
10   Q.  And is that data that they keep in computer readable form
11   somewhere?
12   A.  I don't know their format.
13   Q.  Now -- I'm almost done.
14             THE COURT:  Okay.
15   BY MR. FLAXMAN:
16   Q.  You talked about the uniform guidelines on employee
17   decision making, and you said -- I think you said you were
18   familiar with those.
19   A.  It's employee selection as opposed to decision making.
20   Q.  Okay.  So you are familiar with it?
21   A.  Yes, I believe I am.
22   Q.  Okay.  And you're familiar with the three validation
23   approaches that are recognized in those guidelines, is that
24   right?
25   A.  Yes.
                                                            530
 1   Q.  There's content validity, is that right?
 2   A.  Yes.
 3   Q.  And there's criterion validity?
 4   A.  Yes.
 5   Q.  And there's construct validity?
 6   A.  Yes.
 7   Q.  Is there something in those uniform guidelines called
 8   construct/content validity?
 9   A.  Not in the guidelines, no.
10             MR. FLAXMAN:  Thank you.  Nothing further.
11             MS. PAPUSHKEWYCH:  I just have two short questions.
12             THE COURT:  Okay.  Fine.
13                         RECROSS EXAMINATION
14   BY MS. PAPUSHKEWYCH:
15   Q.  You testified on redirect that there was an Illinois
16   Appellate Court decision regarding the merit selection process,
17   isn't that true?
18   A.  Yes.
19   Q.  And which examination did that decision pertain to?
20   A.  The police lieutenant examination that was completed in, I
21   believe, 1994.
22   Q.  And isn't it true that the merit selection process was
23   determined -- the City determined to utilize that merit
24   selection process after the results of the examination had been
25   obtained?
                                                            531
 1   A.  That's correct.
 2   Q.  And what is your understanding as to whether the City could
 3   utilize merit selection for this current sergeant's list?
 4   A.  Well, again, given my understanding of -- of the Illinois
 5   Appellate Court ruling, as an after-the-fact decision that we
 6   wouldn't be able to do it.
 7   Q.  And why is that.
 8             If you know.
 9   A.  Well, I don't remember the rationale exactly.
10   Q.  Okay.  One other question.  Isn't it true that in previous
11   litigation with the City of Chicago courts have found that
12   performance evaluation systems within the fire and police
13   department are biassed and discriminatory?
14   A.  Discriminatory, yes.
15             MS. PAPUSHKEWYCH:  Thank you.
16                        REDIRECT EXAMINATION
17   BY MR. FLAXMAN:
18   Q.  Has the City of Chicago ever been prohibited from using
19   performance ratings in -- as a component of the promotional
20   process in its police department?
21   A.  I actually don't recall.
22             MR. FLAXMAN:  Okay.  Thank you.
23             MS. PAPUSHKEWYCH:  Nothing further.
24             THE COURT:  All right, that concludes your testimony,
25   then, and you're excused.  And we'll recess for lunch and we'll
                                                            532
 1   ask that you report back at 1:40.
 2             MS. PAPUSHKEWYCH:  And at that time, your Honor, may
 3   I make my record on the subject matter experts ruling?
 4             THE COURT:  Yes.
 5             MS. PAPUSHKEWYCH:  Thank you.
 6        (Proceedings recessed at 12:35 p.m.)
 7
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                                                            533
 1                IN THE UNITED STATES DISTRICT COURT
                     NORTHERN DISTRICT OF ILLINOIS
 2                          EASTERN DIVISION
 3   ADAMS, et al.,               ) Docket No. 94 C 5727
                                  )
 4               Plaintiffs       )
                                  )
 5         v.                     ) Chicago, Illinois
                                  ) March 7, 1996
 6   THE CITY OF CHICAGO,         ) 2:25 o'clock p.m.
                                  )
 7               Defendant        )
 8
 9                         TRANSCRIPT OF TRIAL
                  BEFORE THE HONORABLE JOHN A. NORDBERG
10                    UNITED STATES DISTRICT JUDGE
11   APPEARANCES:
12   For the Plaintiffs:        LAW OFFICES OF KENNETH N. FLAXMAN
                                By:  MR. KENNETH N. FLAXMAN
13                              122 South Michigan Avenue, Suite 1850
                                Chicago, Illinois  60603
14
     For the Defendant:         CITY OF CHICAGO
15                              By:  MS. SHONA B. GLINK
                                     MS. DARKA PAPUSHKEWYCH
16                                   MR. JAY KERTEZ
                                30 North LaSalle Street, Suite 1020
17                              Chicago, Illinois  60602
18
19   Court Reporter:            Carol Matz
                                343 South Dearborn Street, Suite 319
20                              Chicago, IL  60604
21
22
23   Proceedings recorded by mechanical stenography, transcript
     produced by computer.
24
25
                                                            534
 1             THE COURT:  All right, court is back in session.
 2             I'm delayed in coming out because I've had a talk
 3   with our excellent Tribune reporter as to the concerns that he
 4   has, as well as the paper has, of our requiring that he sign on
 5   the protective order, as well as be limited on the ability to
 6   take notes as to what occurs in the courtroom while a public
 7   trial is taking place.
 8             And he hasn't had a chance to confer with counsel for
 9   the Tribune and -- but he has expressed his concern.  And I can
10   understand the concern.
11             I expressed to him -- and this was just a chat in
12   chambers before coming out -- the reason why the City had
13   requested a protective order with respect to the exact language
14   and the correct answer for each of the Sergeant's examination,
15   promotion examination questions.
16             It seems to me what I had proposed would work for
17   everybody except the question of the media.
18             I think at the time I was mentioning it I didn't see
19   any media representative there.  And we are now faced with
20   this.
21             And I can't recall enough case authority on this.  I
22   have had the question raised as to the right to attend side
23   bars, and so on, particularly in special criminal cases, but I
24   don't recall one with respect to this.
25             Now, our reporter reports that, of course, in a
                                                            535
 1   number of cities -- of course, I didn't know this -- but in a
 2   number of cities the police departments actually release the
 3   questions and the correct answers, the whole thing.
 4             MS. PAPUSHKEWYCH:  We did not and we do not.
 5             THE COURT:  No.  I know that.
 6             But one of the thoughts that occurred to me --
 7   because it hasn't been argued to me and I really just thought
 8   about it -- whether there is some sort of a crib sheet or crib
 9   book or -- I forget the various names that are used -- where
10   somebody can study police examination questions for sergeant
11   that have been utilized in other cities, and that sort of
12   thing.
13             What I'm wondering about, is it so critical that we
14   have to prevent -- assuming that I -- that we can be successful
15   in not reading the question in its exactitude and not reading
16   the answer to the question -- assuming that we can avoid doing
17   that -- and of course, I believe that there should be no
18   problem of the sealing of the actual questions and answers --
19   could we determine that that is going to be a sufficient
20   protection so far as the media is concerned?
21             MS. PAPUSHKEWYCH:  Well, your Honor, if the
22   parameters of what we're talking about --
23             THE COURT:  So we'd make an exception for anybody
24   that is reporting for any media publication.
25             MS. PAPUSHKEWYCH:  Yeah.  To the extent that what we
                                                            536
 1   are talking about is that the actual questions and answers are
 2   not going to be read into the record -- and is it my
 3   understanding that Mr. Flaxman is not going to go go through
 4   the complete examination?
 5             At least that's what he was -- you know, it's a
 6   question of how many items are going to get out and to what
 7   extent.
 8             You know, right now if what we're going to do is have
 9   a general description of some of the questions and why they're
10   bad, I think we can live within those paramaters, if that's
11   what, you know, Mr. Flaxman is going to be doing.
12             On the other hand, if the questions are going to be
13   basically read into the record with the answers, you know, I
14   know that it's the City of Chicago's exam.  We do not release
15   exams.  They're not FOIAble.
16             So I -- you know, I guess we have to see FOIAble --
17   you know, not foibles -- under the Freedom of Information Act.
18   I guess we have to see how this progresses.
19             But if this was within the parameters of identifying
20   generally a question, not reading the question into the record,
21   and --
22             THE COURT:  Can't we apply that to everybody, then,
23   and not go through this process that I had suggested before?
24             MS. PAPUSHKEWYCH:  I -- I guess, you know --
25             THE COURT:  I don't wish to get involved in
                                                            537
 1   collateral litigation as to whether it's fair to draw a
 2   distinction between the media reporters and other groups of
 3   citizens.
 4             MS. PAPUSHKEWYCH:  Your Honor, can I suggest this?
 5   Let's start the process and not go through the confidentiality
 6   at this point.
 7             THE COURT:  All right.
 8             MS. PAPUSHKEWYCH:  And if we have an objection in
 9   terms of that I -- I think we're getting to the point where --
10             THE COURT:  Okay.
11             MS. PAPUSHKEWYCH:  -- we have a legitimate and, you
12   know, problem --
13             THE COURT:  All right.
14             MS. PAPUSHKEWYCH:  -- we will raise it at that point.
15             THE COURT:  All right.  Okay.
16             MS. PAPUSHKEWYCH:  Okay?
17             THE COURT:  I think that's fine.  We'll start out --
18   everybody understands what I feel is a legitimate concern, and
19   let's hope that we'll work our way through it.
20             Okay.  All right.  With that, are we ready to call
21   the next witness, then?
22             MS. PAPUSHKEWYCH:  Actually, I would like to make my
23   record.
24             THE COURT:  Oh, now, the other thing I want to
25   report.  I didn't realize I was raising a problem.  This is
                                                            538
 1   what you get when you brainstorm, you know, on the spur of the
 2   moment.  But, apparently, there could be a problem -- whether
 3   it's protocol or rule of court or what -- in actually releasing
 4   to someone the tape of a court proceeding.
 5             But, as I understand it now, that's not going to be
 6   necessary, we'll all agree that she's going to be able get the
 7   transcripts out in time.
 8             MS. PAPUSHKEWYCH:  Right.
 9             THE COURT:  And there wasn't any intent -- I just
10   want to be sure on the record, there was no intent to cut
11   somebody out of doing some transcripts or interfere with the
12   fact that normally transcripts would be prepared, it was just
13   the emergency problem with the expert arriving on Sunday night
14   and only having one day left.
15             So, all right, in any event, we're all set to
16   proceed, then, unless you've got something else to raise now.
17             MS. PAPUSHKEWYCH:  I just wanted to make my record on
18   your ruling this morning.
19             THE COURT:  Oh, I'm sorry.  Yes.  Okay.  All right,
20   continue.
21             MS. PAPUSHKEWYCH:  In addressing your Court's ruling
22   that will allow the subject matter -- plaintiffs' subject
23   matter experts to come in and testify regarding the questions,
24   we think that your Honor is wrong on it.
25             THE COURT:  All right.  But, now, they're not going
                                                            539
 1   to be giving opinions as an expert in formulating questions.
 2   What they're go to be able to testify to, though, is the fact
 3   that the particular activities, if I can use that broad term,
 4   is not -- does not relate to the actual job activities that
 5   will be involved in the -- as a Chicago Police Sergeant.
 6             MS. PAPUSHKEWYCH:  I understand that that's your --
 7             THE COURT:  So and what it is, it mirrors, in effect,
 8   what Dr. Barrett received in the way of information from
 9   several members of the force who also purported to give their
10   advice as to the job relatedness of the various questions that
11   were proposed and that some questions were dropped because they
12   said it was not job related to what a Chicago Police Sergeant's
13   activities would be.
14             And so it seems to me that both sides ought to, in
15   order for a -- there would be a complete record made here
16   for -- which may or may not be required for a final decision in
17   the case -- that that evidence be in the record.
18             Because, certainly, plaintiff has the right to
19   challenge these questions on the fact that they aren't -- the
20   content validity of the type of questions by saying that
21   they're not sufficiently job related.  And you ought to have a
22   right to submit evidence to show that they are job related and
23   it is content valid.
24             So, all right, now you can go ahead with your
25   argument on it.
                                                            540
 1             MS. PAPUSHKEWYCH:  And, ultimately, your Honor, the
 2   pertinent question in front of this Court is the validity of
 3   the examination.  And what I would just suggest to this Court
 4   at this time is that plaintiffs' expert has already testified
 5   and plaintiffs' expert has offered no opinion as to the
 6   validity of the items.  Plaintiffs' expert has offered no
 7   opinion on which items or how many items were insufficient or
 8   how many items were not tasks that are identified with the
 9   Sergeant's exam.
10             In fact, he has not testified as to any of the
11   pertinent issues in this case.
12             THE COURT:  Well, but we're not talking about his
13   testimony now.
14             MS. PAPUSHKEWYCH:  I know.
15             THE COURT:  We're talking about the ability of the
16   others that -- whether there's an offer of proof to testify as
17   to the job relatedness of the questions.
18             MS. PAPUSHKEWYCH:  I understand that, your Honor.
19   But my point is that even if the subject matter experts could
20   show -- which we, you know, contend that they cannot -- that
21   some of these items were not related to the jobs, plaintiff
22   still cannot establish in this case what number is sufficient
23   to invalidate this exam.
24             You yourself asked yesterday "Is 78 enough?  Is 82
25   enough?"
                                                            541
 1             These subject matter experts are not going to be able
 2   to testify to that.  They are not test developers.
 3             THE COURT:  I don't think that -- well, I don't
 4   understand that's what they're going to be asked to testify to.
 5   But I would doubt that there would be a sufficient foundation
 6   laid where they could testify to that specific point.  I agree.
 7             MS. PAPUSHKEWYCH:  Which is exactly the point, your
 8   Honor.
 9             THE COURT:  But you're making a sort of a final
10   argument as to the inadequacy of plaintiffs' case.  And I
11   think, you know, we're not there yet, and I do think that the
12   plaintiff should have the right to attack the validity of these
13   questions.
14             Content validity can be tested, it seems to me, by
15   the testimony of those who are knowledgeable of the police
16   sergeant actions that are going to be expected of a police
17   sergeant -- I'm trying to stay away from some of the other
18   words -- and that would have -- that would be relevant, anyway,
19   to the content validity of the test.
20             So you made your point.
21             MS. PAPUSHKEWYCH:  Okay.
22             THE COURT:  You don't have to make it again.  It
23   remains throughout the case.  And --
24             MS. PAPUSHKEWYCH:  And may we just have a standing
25   objection on the record, then?
                                                            542
 1             THE COURT:  Yeah.  In federal court that's what you
 2   have.
 3             MS. PAPUSHKEWYCH:  All right.  And there's two other
 4   matters we would just like to clarify.  One matter.
 5             THE COURT:  All right.
 6             MS. PAPUSHKEWYCH:  Is the offer of proof therefore
 7   stricken from the record, since we did not have the opportunity
 8   to cross examine and since that was --
 9             THE COURT:  Yeah, that was a failed ruling on my
10   part.
11             Is there any objection to striking that?  Because
12   I --
13             MR. FLAXMAN:  No, Judge.
14             THE COURT:  I don't know what everybody would want to
15   do with it otherwise.
16             MS. PAPUSHKEWYCH:  Right.
17             THE COURT:  So I think that's a valid motion, and
18   I'll grant it, to strike all offers of proof by -- what are we
19   calling them, subject matter?
20             MR. FLAXMAN:  Experts.
21             THE COURT:  -- experts.  Okay.
22             MS. PAPUSHKEWYCH:  Thank you.
23             THE COURT:  All right, anything else, now, before we
24   put on the next witness?
25             MR. FLAXMAN:  Yeah.  We spell FOIAble F-O-I-A-b-l-e.
                                                            543
 1   That was the word that -- the new word.
 2             THE COURT:  Oh, yes.
 3             It shows that English is still a dynamic language.
 4             MS. PAPUSHKEWYCH:  Well, we deal with the Freedom of
 5   Information Act a lot.
 6             THE COURT:  Yes, I'm sure you do.
 7             I think it would be interesting if some day there
 8   will be a study made on that as to what effect that has on
 9   government action --
10             MS. PAPUSHKEWYCH:  Yes, that would be.
11             THE COURT:  -- other than hiring the number of people
12   that handle the procedures.
13             I suspect it does have an effect.
14             All right.  Are we ready to call our next witness?
15             MR. FLAXMAN:  Yes, we are.  We will be recalling Sgt.
16   Vance Kimber.
17             THE COURT:  Right.  Again, I'm going to put all of
18   you under oath because once you're, in a sense, excused that's
19   our regular practice.
20              VANCE KIMBER, PLAINTIFFS' WITNESS, SWORN
21                         DIRECT EXAMINATION
22   BY MR. FLAXMAN:
23   Q.  Could you state your name and spell your last name, please.
24   A.  My name is Sgt. Vance Kimber.  Vance T. Kimber.  I'm sorry.
25   K-i-m-b-e-r.
                                                            544
 1   Q.  And how old are you, Sergeant?
 2   A.  I'm 44 years old.
 3   Q.  And how long have you been a Chicago Police Officer?
 4   A.  I started with the --
 5             THE COURT:  Well, I don't mean to cut you short, but
 6   you don't have to repeat that.  I only struck the offers of
 7   proof.
 8             MR. FLAXMAN:  All right.
 9             THE COURT:  Okay.  Go ahead.
10   BY MR. FLAXMAN:
11   Q.  Let me show you what's previously been marked as
12   Plaintiffs' Exhibit 54.
13             THE COURT:  Excuse me.  What was that number again?
14             MR. FLAXMAN:  54.
15             THE COURT:  Okay.
16             MR. FLAXMAN:  I actually have a copy for your Honor
17   so we won't be talking in code.
18             THE COURT:  Okay.  Thank you.
19   BY MR. FLAXMAN:
20   Q.  Now, the first page of Plaintiffs' Exhibit 54 says question
21   6, is that right?
22   A.  That's correct.
23   Q.  Is the subject matter of question 6 something that's
24   important for a sergeant to know the first thing on the job?
25   A.  No, it is not.
                                                            545
 1   Q.  Why is that?
 2   A.  The reason it is not -- your Honor, directing your
 3   attention to the third sentence -- and the question and the
 4   first word in that third sentence is usually not found
 5   anywhere -- excuse me; anywhere in the field duties of a
 6   sergeant, or field responsibilities of a sergeant.  And, in
 7   fact, even a patrol unit would not specifically know that
 8   terminology.
 9             That terminology is usually only used in other units
10   that specialize in -- in vehicles.
11   Q.  And that phrase is a three-word phrase that begins with the
12   word "confidential," is that correct?
13   A.  That is correct.
14             MR. FLAXMAN:  Do you see where we're at, Judge?  I
15   don't --
16             THE COURT:  Yeah.  No, no; I'm with you.
17             MR. FLAXMAN:  I'll try to keep --
18             THE COURT:  I'm current.
19             MR. FLAXMAN:  Okay.
20   BY MR. FLAXMAN:
21   Q.  Now let's turn the page, and you see question 11, is that
22   right?
23   A.  That's correct.
24   Q.  And is question 11 something that relates to the actual
25   activity of a sergeant?
                                                            546
 1   A.  Yes, this question is.
 2   Q.  Okay.  Let's turn the page to question 15.  Does question
 3   15 relate to the actual activity of a sergeant in the Chicago
 4   Police Department?
 5   A.  The reason, your Honor, that this question does not and is
 6   ambiguous, from my point of view, is that it requires the
 7   officer to be in two places at once.
 8             The duties of -- I'm trying to stay within the
 9   protective order.  The duties of a -- the duties of an officer,
10   of his assignment, would be to do two things, and he couldn't
11   be in two places at once.  And that makes the question
12   ambiguous.
13             And the reason --
14             MR. KERTEZ:  Objection, Judge.  This is an objection.
15   I think that we established that he can testify whether it's
16   related to what a sergeant does.  But whether it's ambiguous or
17   confusing, that is something that this Court has said he may
18   not testify about.
19             THE COURT:  No.  I reversed myself on that too,
20   because it seems to me they can attack the content validity,
21   which certainly would relate -- I mean, if every question that
22   is proposed in an exam is ambiguous or not possible for
23   somebody to understand -- I'm exaggerating -- but it certainly
24   would affect the validity of the contents of the test, it seems
25   to me.
                                                            547
 1             So I'm not trying to draw that final line.  He's not
 2   giving an expert opinion about things, he's stating, in his
 3   opinion, whether persons that take the test would find it to be
 4   in this case ambiguous.
 5             So I'll overrule the objection and we'll proceed on
 6   the basis that we have now.
 7             And the reason for saying that it's ambiguous is that
 8   it requires you to do two things at once?
 9             THE WITNESS:  Yes, your Honor.
10             In fact, if you'll look at the responses A, B, and C
11   and D you'll notice that A was -- based on the scoring sheet
12   here at the bottom, A was the correct answer chose by most of
13   the people, which is not the correct answer.
14             THE COURT:  Yeah.
15             THE WITNESS:  And that is because A is an answer that
16   requires the officer to actually do -- that is what he actually
17   has to do.
18             And that is the reason that I -- I said the question
19   is ambiguous, because it requires for him to be in two places
20   at once.
21             THE COURT:  Okay.
22   BY MR. FLAXMAN:
23   Q.  Okay.  Let's turn to page 2, question 17.  Is the answer to
24   question 17 something that a sergeant has to know the first day
25   on the job?
                                                            548
 1   A.  No, it is not.
 2   Q.  And why is that?
 3   A.  What would happen in question 17 is that a sergeant would
 4   have to take this situation into the station.  And, just as --
 5   and in no disrespect, your Honor -- just as you refer to your
 6   legal documents and the -- and the law to further what the
 7   actual charge or the decisions that you make, so would a
 8   sergeant have to do with this.
 9             And, in fact, what a sergeant would do, as in most
10   cases and in general terms throughout this test -- what a
11   sergeant would do -- a field sergeant, not a desk sergeant --
12   he would return and ask the detectives, state's attorneys and
13   watch commanders for those -- for that -- that information.  He
14   would gather that further information.
15             So he wouldn't have to actually know the A, B, C, D,
16   E here that is -- that is outlined in this particular question.
17             Am I -- have I explained it --
18             THE COURT:  Yeah.  At least the way -- yeah, the way
19   the question is stated --
20             THE WITNESS:  Stated, right.
21             THE COURT:  -- there doesn't seem to be an emergency
22   or --
23             THE WITNESS:  Correct.
24             THE COURT:  -- a need for immediate action.
25             THE WITNESS:  Correct.  Correct.  Exactly.  He would
                                                            549
 1   refer to legal documentation that would be found in the station
 2   and add through assistance through a state's attorney and
 3   detectives.
 4   BY MR. FLAXMAN:
 5   Q.  Now, the next page is question 19.  Does question 19 relate
 6   to the actual activity of a sergeant?
 7   A.  No.
 8             One second.
 9             The activity -- the question relates to the activity
10   of a sergeant, but the problem with this question is -- your
11   Honor, if you'll look at the -- the score sheet, there are
12   two -- I don't know, can I say that?  The correct answer that
13   is given -- oh, yeah, I guess I can.  There are two correct
14   answers given for this question by the scorer.
15             That leads to the ambiguousness of it, because what a
16   sergeant would have to actually do is -- and this is the
17   logical steps that I'm speaking of -- that once he arrived on
18   the -- the incident that is related here on the question, what
19   a sergeant would actually have to do is C.  That would be he
20   would have to partially make out the document that is outlined
21   in C.  That is one of the first logical things that he would
22   have to do.  And E is -- is not -- is somewhere later on down
23   the line.
24             So it wouldn't relate to the --
25             THE COURT:  To the timing of it --
                                                            550
 1             THE WITNESS:  Exactly.
 2   BY THE WITNESS:
 3   A.  The logical sequence of it is not -- is not correct.
 4             And it's so stated by the -- by the D and E, you
 5   know, the double answer on the score sheet.
 6             THE COURT:  Right.
 7   BY MR. FLAXMAN:
 8   Q.  Question No. 23, which I think is the next page, does that
 9   relate to the actual activity of a Chicago Police Sergeant?
10   A.  No.  No, it doesn't.
11             And the problem with this question, your Honor, is
12   that it doesn't relate to the logical steps that would take
13   place.
14             And even if one of the logical steps is taken out --
15   you know what I mean -- you know, it is a test.  So maybe the
16   logical step would be, one, what do you actually do; two, if
17   that's not there, what's the logical step.
18             I don't know.  The logical steps is taken out, first
19   of all.  That's the first problem with it.
20   Q.  Well, so we're not so cryptic, what is the logical step?
21   What does a field sergeant do when confronted with the
22   situation described in question 23?
23   A.  Okay.  First of all, he would have to ascertain whether a
24   complaint would want to be signed by the -- the person that
25   is -- that is noted in this as -- as being the complaintant
                                                            551
 1   calling him to the scene.
 2             If no complaint was to be signed, then there is no
 3   crime and then there would be no --
 4             THE COURT:  And then he'd call the wife?
 5             THE WITNESS:  Right.  Exactly.  Exactly.  Thank you.
 6   Exactly.
 7   BY THE WITNESS:
 8   A.  If there was a complaint to be signed, so that he was
 9   somewhat disreputable, whether because of the -- the condition
10   described in question 23, then he would be treated just as any
11   other John Q Citizen and -- and transported and given other
12   tests.
13             I don't know if you want me to -- do you want me to
14   elaborate?
15             THE COURT:  Well, no.  I think you've covered it.
16             THE WITNESS:  Okay.  Good.
17             THE COURT:  As long as counsel is satisfied, I don't
18   want to interject.
19             THE WITNESS:  Okay.
20   BY MR. FLAXMAN:
21   Q.  Question 24 is the next page.  Does this question and the
22   proposed answers to this question relate to the actual
23   activities of a sergeant?
24   A.  No.  In fact, I think this is one of the ones that I really
25   found had a problem.
                                                            552
 1             The correct answer states that -- you know, it's D,
 2   and it's so stated on the form.  But what would actually
 3   happen, what a field sergeant would actually do would be --
 4   would sort of be response E.
 5             And if you'll notice the percentages on it --
 6             THE COURT:  Yeah.
 7             MR. KERTEZ:  Objection.
 8             THE COURT:  Yeah.
 9             MR. KERTEZ:  Objection, your Honor.  He is trying to
10   make an argument here that because a large -- the largest
11   number of people answered that answer E that it's somehow the
12   answer that should have been credited.  I don't think that he's
13   competent to make that determination.
14             Again, he can talk about what he thinks a sergeant
15   should do and how that's related to the question.  But to make
16   a statement --
17             THE COURT:  Well, he's pointing out something that is
18   in evidence, and that is what the results are.  He's not
19   permitted to draw any conclusion from that --
20             MR. KERTEZ:  Right.
21             THE COURT:  -- by way of any expertise.  But -- and
22   I'm not going to take -- let me just say that, however the
23   testimony comes in, I'm not going to consider that he's an
24   expert on the -- either the method of formulating the exact
25   question or as to the areas that can be tested by a particular
                                                            553
 1   question.
 2             But, on the other hand, I do think that he should be
 3   permitted, and I have so ruled now, to testify as to the job
 4   relatedness and as to whether the question is either ambiguous
 5   or misleading.
 6             It just seems to me that he has, certainly, the
 7   background and experience of being a -- a --
 8             MR. KERTEZ:  A sergeant.
 9             THE COURT:  -- a sergeant to be able to testify as to
10   that.
11             So your objection is denied to the extent that it
12   objects to that practice.
13             MR. KERTEZ:  I understand, your Honor.
14             I'd just like, then, to state for the record that
15   it's clear that the fact that a large number of people chose an
16   answer does not indicate at all its validity and doesn't seem
17   to me to be particularly relevant or useful at this juncture.
18             MR. FLAXMAN:  I think that this gentleman --
19             THE COURT:  Well, that's argument, and we're not
20   there yet, so --
21             MR. FLAXMAN:  And that might come up in cross
22   examination of Dr. Barrett.
23             THE COURT:  Okay.  Yes.  Okay.
24   BY MR. FLAXMAN:
25   Q.  The next page would be question 29.
                                                            554
 1             THE COURT:  And I take it there may be some
 2   literature on this.  All right, question 29.
 3   BY MR. FLAXMAN:
 4   Q.  Is there something confusing about this question?
 5   A.  Yes, it is.  The reason being is that you're required to do
 6   both A and B.  And, as I recall, to the best of my
 7   recollection, it doesn't require you which one to do first, but
 8   you are required by state statute to do B and we're required by
 9   the Department to do A to this question.
10             So it gives the difficulty of which one is -- you
11   know, which one is the right answer.
12   Q.  Okay.  The next page would be question 34.
13             THE COURT:  Or whether both would be the right
14   answer --
15             THE WITNESS:  Right.  Exactly.
16             THE COURT:  -- or maybe it's true of all of them.
17             THE WITNESS:  Right.
18             THE COURT:  So that's your point.
19             THE WITNESS:  Right.
20             THE COURT:  Okay, question 34.
21   BY MR. FLAXMAN:
22   Q.  Right.  Does this relate to the actual activity of a
23   Chicago Police Sergeant?
24   A.  I guess the -- the real problem -- twofold or threefold
25   problems with this question.
                                                            555
 1             The initial problem with the question is that -- I'm
 2   sorry, your Honor, I'm trying to -- to give you an answer
 3   without saying -- you know, referring to the question.
 4             The initial problem deals within the first
 5   sentence -- the first two sentences of the question.  Because
 6   of -- I guess I would direct the officer as a field sergeant to
 7   take him home.
 8             When you read the first two sentences, you know,
 9   that's the first problem.
10             THE COURT:  Yeah.  Okay, I see.
11             THE WITNESS:  You see?
12             THE COURT:  I see what you mean.  Sure.
13             THE WITNESS:  Yeah.
14             THE COURT:  Yeah.  And --
15             THE WITNESS:  Therein lies -- you know --
16             THE COURT:  It talks about transport to one location,
17   but they don't talk about transport to home.
18             THE WITNESS:  Right.
19   BY THE WITNESS:
20   A.  And if you'll read the question, the question is -- you
21   know, I mean, the only lack of ability is his ability to
22   transport himself.  That's his only ability that he lacks so
23   far, you know, basic to the question.
24             THE COURT:  Yeah.
25   BY MR. FLAXMAN:
                                                            556
 1   Q.  The next page would be question 37.  Is there -- well, does
 2   this relate to the actual activities of a Chicago Police
 3   Sergeant?
 4   A.  Okay.  The problem with this question is -- of 37 -- deals
 5   with what actually takes place.  And what actually takes place
 6   is D.  And it is -- it is a rare situation when E takes place.
 7   It is very rare when E takes place, but D is what actually
 8   takes place.
 9             So if that's what actually takes place that is the
10   problem I have with the question.
11   Q.  Okay.  The next --
12             THE COURT:  Because what actually takes place isn't
13   necessarily wrong?
14             THE WITNESS:  Correct.  Correct.
15   BY MR. FLAXMAN:
16   Q.  And, as a matter of fact, does the general order that
17   pertains to this area prescribe E as what should be done?
18   A.  Without looking at it, it probably does.  But I -- you
19   know, without looking at the general order I -- I wouldn't be
20   able to give a definite answer.  But I'm pretty sure it
21   probably does.
22   Q.  But the actual practice is not --
23   A.  Right, the actual practice is not -- actual practice is
24   not -- or policy -- procedure is not actually our practice in
25   this one.
                                                            557
 1   Q.  Now, the next page would be question --
 2             THE COURT:  Is it clear that the general order
 3   requires E?
 4             MR. FLAXMAN:  I believe it --
 5             THE WITNESS:  Yeah, it requires an order, yeah.
 6             THE COURT:  It doesn't give any discretion?  I mean,
 7   that's --
 8             THE WITNESS:  I can't recall it.  I'd have to look at
 9   the order to -- because it is a detailed order.  So I would
10   have to -- to refresh my memory I would have to look at the
11   order.
12             THE COURT:  Do they have 24-hour service of these --
13             THE WITNESS:  Oh, yeah.  Yeah.
14             THE COURT:  -- or require somebody that's on to call?
15             THE WITNESS:  Oh.  Oh, no.  I'm sorry.  Let me
16   explain why I said D.  The 24-hour service -- the reason I said
17   D is -- is that either the officer himself would keep -- keep
18   custody or -- or what is generally practice is that he would
19   turn to -- to a desk sergeant, and they would wait until a
20   parent or adult contacted them.
21             THE COURT:  Right.  But that's contrary to what the
22   general order states, is that right?  Do I understand that
23   right?
24             MR. FLAXMAN:  Yes.
25             THE COURT:  Okay.
                                                            558
 1   BY MR. FLAXMAN:
 2   Q.  The next page would be question 40.  Does this question
 3   relate to the actual activity of a Chicago Police Sergeant?
 4   A.  It doesn't relate to -- it relates to things that may have
 5   happened.  Yes, activity it does.
 6             But the problem with the question is -- is that the
 7   logical step in anything, in any victim crime-related
 8   situation, you would ascertain certain things.  So the problem
 9   is is that A would be the first logical step that you would
10   take.
11             And that is impressed on Department members
12   periodically.  We come out with literature referring to this --
13   I want to say to -- to what is mentioned in B, your Honor.
14             We come out with literature constantly because it's
15   such a new area in -- in the legal field.  So we've come out
16   with a lot of literature on that.  And all literature refers to
17   A as one of the first steps that you need to do in informing
18   someone.
19             THE COURT:  Okay.
20   BY MR. FLAXMAN:
21   Q.  Now, the next one is question 44.  And question 44 relates
22   to the actual activity of a sergeant?
23   A.  Yes, it does.
24   Q.  Does choice B on question 44 relate to what a patrol
25   officer does?
                                                            559
 1   A.  Choice B is not the responsibilities of -- usually, and in
 2   general terms almost always would not be the responsibility of
 3   a patrol officer to do that.
 4   Q.  Does the -- choice B talks about directly overseeing.
 5   A.  Right.
 6   Q.  And is it correct -- and I'm going to lead, I think, if I
 7   may -- that what the patrol officer does is directly place?
 8   A.  That's correct.  That is correct.  It is not -- he is not
 9   supervising, he is responding to -- to orders.  So he would not
10   be overseeing.  He would be placing people, not overseeing.
11   Q.  So if the choice for B had been --
12             THE COURT:  It shows the language.
13             THE WITNESS:  Yeah.  Yeah, the terminology.  I guess
14   the -- the problem throughout the test is -- is the terminology
15   that is used is not the terminology, the logical terminology
16   that is used in some police situations, I guess, is my response
17   to that.
18             THE COURT:  Well, you are also leading into these
19   answer paragraphs.  You have a colon, and they have what should
20   be instructed, but then the question doesn't relate to that --
21             THE WITNESS:  Right.  Exactly.
22             THE COURT:  -- introductory language.
23             THE WITNESS:  Right.  Correct.
24   BY MR. FLAXMAN:
25   Q.  Now, question 56, I think, is the next page.
                                                            560
 1   A.  Okay, your Honor, this is flat out easy.  We call this a
 2   easy one because what a sergeant -- what the sergeant should
 3   instruct the officer to do is definitely A.  And the reason
 4   that it is definitely A is because when people need to find out
 5   about someone that is in that facility that is what they have
 6   to do.  That is the only reference that someone would have to
 7   know that he is in that facility.
 8             So that would be the first thing that you have to do.
 9   And that is kept on the desk and is required by every officer
10   that comes into the station to fill that out.
11             Otherwise, if I brought you in -- well, I don't want
12   to get into the question.
13             You see -- I'm sorry, your Honor, do you see my
14   point?
15             THE COURT:  Right.
16   BY MR. FLAXMAN:
17   Q.  Okay.  So is there more than -- is the?
18             THE COURT:  There's more than one answer, but --
19             MR. FLAXMAN:  Well, when you go to --
20             THE COURT:  Actually, they don't say whether the
21   answer is to be the first thing that you do or the only thing
22   that you do or --
23             THE WITNESS:  Well, your Honor, if you go to the
24   correct response given by the score sheet --
25             THE COURT:  Right.
                                                            561
 1             THE WITNESS:  -- which is E.  But if you go to the
 2   question, that has already done been based somewhat in the
 3   question.
 4             Do you see what I'm saying?
 5             THE COURT:  Yes.
 6             THE WITNESS:  Because the officer has already done
 7   that.
 8             So the part of E would only be for the officer to
 9   find out through a watch commander or a detective or state's
10   attorney to actually perform those -- those functions it would
11   not be the function of the --
12             THE COURT:  Of the --
13             THE WITNESS:  Of a field sergeant.
14             THE COURT:  Well, no.  The patrol officer.
15             THE WITNESS:  Patrol officer or field sergeant,
16   right.
17             THE COURT:  Right.  But at least it would be
18   initiated by the sergeant, as opposed to the person he's
19   supervising --
20             THE WITNESS:  Correct.  Right.
21             MR. FLAXMAN:  Judge, we've now done about 13 of these
22   questions, and perhaps you'll agree that it's unlikely that
23   these -- these questions that we've done, and if the rest of
24   them are like this, will be used again by the City in a test.
25   And perhaps we could --
                                                            562
 1             THE COURT:  Well, the subject matter, it seems to
 2   me --
 3             MR. FLAXMAN:  Well, the subject matter is the general
 4   orders and the reading list.  And the precise wording of the
 5   questions --
 6             THE COURT:  I know.  But to foreclose their ability
 7   to test these areas, it seems to me -- I don't know.
 8             I mean, it seems to me unless you can explain why
 9   this is not a satisfactory method of eliciting his testimony I
10   think we ought to just stay with it.
11             MR. FLAXMAN:  Okay.  All right.
12             THE COURT:  At least for my purposes this works fine.
13             MR. FLAXMAN:  And you're the finder of fact and
14   you're the only one --
15             THE COURT:  If it works on cross, I don't know.  But
16   it certainly works so far.
17             MR. FLAXMAN:  Okay.
18   BY MR. FLAXMAN:
19   Q.  The next page would be -- what's the next page?
20   A.  57.
21   Q.  Okay.  Does 57 relate to the actual activity of a sergeant?
22   A.  The problem with -- with this question, your Honor, is that
23   B, the response B --
24             THE COURT:  The question that you asked, I think, is
25   not really --
                                                            563
 1             THE WITNESS:  Oh, I'm sorry.
 2             THE COURT:  -- responsive to the question.  You're
 3   having a problem on the correctness of the answer.
 4   BY MR. FLAXMAN:
 5   Q.  Is there more than one correct answer?
 6   A.  Oh, yes, it is.
 7   Q.  And which are the correct -- which answers are correct, in
 8   your opinion?
 9   A.  In my opinion, in my opinion B is what -- what would be
10   performed by the officer.
11             If the officer -- if the officer was John Q citizen
12   it would be B.  Being an officer doesn't take him out of the
13   light of being John Q. Citizen.
14             THE COURT:  Okay.
15   BY THE WITNESS:
16   A.  E is something that is done, but it's not done logically
17   first step.
18             THE COURT:  It's done later, right?
19             THE WITNESS:  Right.  Exactly.
20             MR. FLAXMAN:  Okay.  And your Honor understands what
21   the test is that's referred to in --
22             THE COURT:  Yes, I do.
23             MR. FLAXMAN:  Okay.
24             THE COURT:  I was a Justice of the Peace for a long,
25   long time, over eight years.  So --
                                                            564
 1   BY MR. FLAXMAN:
 2   Q.  The next page would be 58.  Is there more than one correct
 3   answer to 58?
 4   A.  Yes.  Yes, your Honor.  And this goes back to two or three
 5   questions previously that dealt with the same subject matter
 6   that is listed in line 1 and 2 of this question.
 7             THE COURT:  Okay.
 8   BY THE WITNESS:
 9   A.  The same subject matter.
10             Because we have come out new -- new area of law.
11   Because we've come out with so much information on this there
12   are some special things -- I'm sorry; there are some different
13   things that you do.  And in relation to that question answer B
14   would fall into that kind of thinking.
15             THE COURT:  I see.  Okay.
16             THE WITNESS:  Okay.
17   BY MR. FLAXMAN:
18   Q.  And the next page would be 59.  Does this relate to the
19   actual activity of a Chicago Police Sergeant?
20   A.  Yes, it does.
21             MR. KERTEZ:  Your Honor, I'd like to interpose an
22   objection at this point in time after some of questions that
23   we've heard and some of the answers that have been given.
24             It appears to me from the testimony that's been
25   elicited that the witness is saying that there have been some
                                                            565
 1   orders, or some policies that have come down after this
 2   examination had been given, and it seems to me that it is
 3   inappropriate to suggest that testing should have been done
 4   based upon what -- well, it could not have been done, actually,
 5   based upon what came after the examination.
 6             THE COURT:  Well, all right, I think that's something
 7   that you would logically treat in cross examination so we'd
 8   find out what the timing is, as opposed to taking any action in
 9   connection with the direct examination.
10             MR. KERTEZ:  I understand, your Honor.
11             THE COURT:  Let him bring out his evidence and then
12   you can cover it on cross.
13             MR. KERTEZ:  Your Honor, if I may add --
14             THE COURT:  But it seems to me that there is some
15   point to that, depending upon what the facts would be.
16             MR. KERTEZ:  Right.  And, your Honor, if I may make
17   one more point.  And that is that we've talked about some
18   policies.  There's been no foundation as to those policies to
19   allow testimony regarding what those policies are.
20             THE COURT:  Well, again, to the extent that you wish
21   to bring that out in cross examination that would be helpful.
22   Otherwise it's argument.
23             But we really need to move ahead.
24             MR. KERTEZ:  I understand.
25             THE COURT:  This is only the first witness, and we've
                                                            566
 1   got a long way to go.
 2             So it's not that I don't think you have some valid
 3   points, but I'm going to overrule the objection for the reasons
 4   that I've indicated.
 5   BY MR. FLAXMAN:
 6   Q.  Is knowing the correct answer to question 59 something that
 7   a sergeant should know the first thing on the job?
 8   A.  Yes.
 9   Q.  Okay.  Is there more than one correct answer?
10   A.  It appears to be, in my estimation.
11   Q.  Okay.  And which answers, in your estimation, are correct?
12   A.  A, because a sergeant is always instructed to do that.
13   Q.  Well, let me ask you a specific question.
14   A.  Okay.
15   Q.  When you complete the particular form that's referred to in
16   this question in its entirety do you also swear to the alleged
17   violation?  Is that part of the form?
18   A.  The only thing that a sergeant -- for your Honor's
19   clarification, the only thing a sergeant would have to do on
20   this particular form is to sign it.
21   Q.  Yeah.  But we're talking about the patrol officer.
22             THE COURT:  Well, no, it's the patrol officer's --
23   BY THE WITNESS:
24   A.  No.  He would --
25             THE COURT:  -- form, so --
                                                            567
 1   BY THE WITNESS:
 2   A.  -- fill out the form.
 3             THE COURT:  Yeah.
 4   BY MR. FLAXMAN:
 5   Q.  But would the patrol officer fill out the form in its
 6   entirety?
 7   A.  Yes, he would.
 8   Q.  And would the patrol officer in the form -- in the course
 9   of filling out in its entirety --
10             THE COURT:  Does the sergeant have the power to
11   administer an oath?
12             MR. FLAXMAN:  Yes.  That's under --
13             THE COURT:  Okay.  I didn't know.  I was just -- I
14   never had the question, so --
15   BY MR. FLAXMAN:
16   Q.  Does a sergeant have the power to administer an oath?
17   A.  The -- the sergeant is -- is deputized as a clerk of the
18   court.
19             THE COURT:  Okay.
20             MR. FLAXMAN:  You were a Justice of the Peace.
21             THE COURT:  So he swears in --
22             THE COURT:  Well --
23             THE WITNESS:  You know, he swears in any complaints
24   on things like that.  A sergeant, you know --
25             THE COURT:  Yeah.  There are different procedures in
                                                            568
 1   the suburbs, though, than in the city.
 2   BY MR. FLAXMAN:
 3   Q.  Okay.  The next page would be question 65.
 4   A.  Oh, okay.  This is a good question.  I mean -- well --
 5   excuse me, your Honor.  When I say it's a good question it is
 6   because I got asked this question recently.
 7             THE COURT:  I mean, this happened to you?
 8             THE WITNESS:  Yes.
 9   BY MR. FLAXMAN:
10   Q.  So knowing the answer to this question is something that
11   relates to the actual activity of a Chicago Police Sergeant?
12   A.  Let me read it again.
13             THE COURT:  Were you asked as a sergeant or as a
14   neighbor?
15             THE WITNESS:  I was asked at church.  A church member
16   asked me this question.
17   BY MR. FLAXMAN:
18   Q.  Okay.  And is the correct answer to this question choice C?
19   A.  Well, I call C -- let me see if I can get this right so I
20   don't have to talk about the question.
21             What I did was called -- it's not on here -- for
22   information about the correct procedure and was told the
23   correct answer was D, and have had several people tell me the
24   same thing.
25             MR. KERTEZ:  Objection, your Honor.  He said he
                                                            569
 1   called several people.  We have no foundation for this.  And I
 2   think we need to lay a little bit of a foundation in order to
 3   have further testimony on this particular point.
 4             THE COURT:  Well, he's alerting, anyway, so he can
 5   give his understanding.  It's not going to be conclusive,
 6   obviously.  But he certainly can give his understanding, but he
 7   can't testify to hearsay.
 8             In any event, there is a possibility that either the
 9   answer stated is incorrect or that there may be two answers.
10             THE WITNESS:  Right.
11             THE COURT:  Two answers may be correct.
12             THE WITNESS:  Right.
13   BY MR. FLAXMAN:
14   Q.  And --
15   A.  And I talked -- I contacted the City administration for
16   answer D is -- is what I -- what I did.  You know, I contacted
17   City Hall administration and they informed me this is the right
18   procedure in order to get this question answered.
19             THE COURT:  And, of course, again we don't know
20   whether there has been some change in something since this was
21   formulated, so -- all right.  Okay.
22   BY MR. FLAXMAN:
23   Q.  Okay, the next page would be --
24             THE COURT:  But, anyway, this does happen to
25   sergeants?
                                                            570
 1             THE WITNESS:  Yeah.
 2   BY MR. FLAXMAN:
 3   Q.  Question 70, could choices C and D both be correct?
 4   A.  Yes.
 5   Q.  Okay.  Question 72, does this relate to the actual activity
 6   of a police sergeant?
 7   A.  Yes, it does.
 8   Q.  Okay.  And is the -- is B what actually happens when a
 9   sergeant is confronted with this situation?
10   A.  Your Honor, the -- the logical step, though, is not -- is
11   not B.
12             The problem -- the problem with this question, I
13   guess, is is that there is a -- the closest logical step -- I
14   mean, B gives the inference that I'm just going to do that and
15   let you go with, you know --
16             THE COURT:  Tell a private tow firm to do the right
17   thing?
18             MR. FLAXMAN:  Right.  Right.  Exactly.  Exactly.
19   Exactly.  That's my point.
20   BY MR. FLAXMAN:
21   Q.  And is that one of the choices on there?
22   A.  No.  No, no.  Because B gives the inference that I'm just
23   going to do that and let you take it anyway.
24   Q.  The next question would be question 75.  Or -- yeah, 75.
25   A.  75.  Yeah.
                                                            571
 1   Q.  Is this important for a field sergeant to know the first
 2   thing on the job?
 3   A.  It's important for a sergeant to know, but every -- the
 4   easiest answer is that it is always given for 99 percent of the
 5   questions asked by agencies such as this.  The reference is
 6   always E, is to direct them to E for release of any
 7   information.
 8             And, in fact, you're punished if you do so yourself,
 9   if you release the information and don't refer them to E, or
10   talk to them about it and not refer them to E.
11   Q.  The next page would be question 76.  Is this something that
12   relates to the actual activity of a Chicago Police Sergeant?
13   A.  Very rarely, but it does.  But it is rare.  But it does --
14   the activity does -- I assume does happen.  However, I have not
15   known of any field sergeant to have -- to have done this.
16   Q.  And is the correct answer, or the answer that's shown to be
17   the correct answer --
18   A.  It's not a logical answer.
19             Your Honor, if you look at C, it assumes that there
20   is no -- if you look at the question assuming that the
21   question -- that he's doing something wrong in the question,
22   then C is not the right answer.
23             Do you see what I'm saying?
24             THE COURT:  Yeah.
25             THE WITNESS:  I would do C and something else.  You
                                                            572
 1   know, I would just let him go.
 2   BY MR. FLAXMAN:
 3   Q.  The next page would be question 81.  Is there more than one
 4   correct answer?
 5   A.  Yes, it is.
 6             And, in my opinion, because of the response in
 7   question -- I'm sorry, your Honor.  81?
 8             THE COURT:  Yeah, I've got 81.
 9             THE WITNESS:  Okay.
10   BY THE WITNESS:
11   A.  The response in question -- to the question in A, even
12   though A is not the correct answer, A gives the illusion -- or
13   not the illusion.  I should say A gives you the cause to think
14   that something serious is taking place.  And if something
15   serious is taking place life takes precedent over property
16   and/or anything else.
17             And so A would be -- when A is chosen as the answer,
18   that is the reason that you would choose -- you know, you would
19   choose A above anything else, because life comes first.
20   BY MR. FLAXMAN:
21   Q.  Choice D relates to an arrest report being prepared at the
22   scene of an incident.
23   A.  Okay.
24   Q.  Does that relate to the actual activity of Chicago Police
25   Officers?
                                                            573
 1   A.  First let me back up and clarify one other thing, your
 2   Honor.
 3             The first sentence of this question is unusual
 4   because a field sergeant would not do that.  Field sergeants
 5   very seldom perform that activity.  Usually it's performed by
 6   the subordinates.  And you would call a subordinate to perform
 7   that activity for you.
 8             So that's -- that is the first problem with it.
 9             Then when you go to D as a response, very seldom, if
10   rare- -- or only under other circumstances, I should say, is
11   this done in the field.
12             This is usually and normally done on a -- on an
13   average basis in -- in the station and not in the field.
14   Q.  Now, the next page would be question 87.  Is it part of the
15   job of a field sergeant to accept bail?
16   A.  Okay, your Honor, this question is -- the problem that I
17   have -- I'm sorry, counsel --
18   Q.  Is it part of the job of a field sergeant to accept bail?
19   A.  No, it is not.
20   Q.  Who accepts bail?
21   A.  The person that accepts bail on traffic violations --
22             THE COURT:  Is the arresting officer, isn't it?
23             THE WITNESS:  That's correct.
24   BY THE WITNESS:
25   A.  And if it's not him, then it would be -- and this as this
                                                            574
 1   question refers to would be a desk sergeant.  But not -- not
 2   the terminology used here.
 3   BY MR. FLAXMAN:
 4   Q.  Now, the next page is question 93.  Is it important for a
 5   police sergeant to know the correct answer to question 93 the
 6   first thing on the job?
 7   A.  No, it is not.  And this goes back to one of my previous
 8   answers when I stated that you would refer to detectives,
 9   attorneys, or watch commanders for the exact charging and -- of
10   the offense.
11             THE COURT:  Well, excuse me, if I could -- I'm
12   running a little behind here on question 87.
13             THE WITNESS:  87?
14             THE COURT:  I'm not sure that -- you might want to
15   reconsider what you said about 87 because it talks about items.
16             THE WITNESS:  Okay, it does talk about items, but the
17   question that counsel asked --
18             THE COURT:  He's trying to find out what is the best
19   thing to take, I take it.
20             THE WITNESS:  Correct.  Well, okay, that may be the
21   best thing to take, but the question that counsel asked me was
22   was this one of the things that a field sergeant would normally
23   do, and the answer to that question would be no.
24             THE COURT:  Oh, I see.  Okay.  Whether it's relevant
25   to --
                                                            575
 1             THE WITNESS:  To his job duties and responsibili-
 2   ties.
 3             THE COURT:  Job duties.  All right.
 4   BY MR. FLAXMAN:
 5   Q.  Now?
 6             THE COURT:  Okay, you may proceed.
 7   BY MR. FLAXMAN:
 8   Q.  Question 93 asks five conducts and asks which would be a
 9   misdemeanor, is that corr