Original Article 03/29/2005 Federal Jury Says Former Milwaukee Police Chief Discriminated Against White Lieu Author: WDJT Milwaukee - The City of Milwaukee comes out on the short end of a lawsuit filed by 17 white Milwaukee police officers. The 17 served as lieutenants during Arthur Jones' seven year tenure as Chief of Police. They contended they were discriminated against and denied promotion to the rank of captain while less qualified minorities were promoted. A federal jury ruled in their favor Tuesday afternoon. Jones, along with the City of Milwaukee and the Fire and Police Commission were named in the suit. The officers are seeking 300-thousand dollars a piece and immediate promotion to the rank of captain for those still with the department. The penalty phase of the trial gets underway next Monday. http://www.jsonline.com/news/metro/mar05/314124.asp Jones' defense faltered early on Subjectivity guided promotions, he admitted in court By DERRICK NUNNALLY and GINA BARTON dnunnally@journalsentinel.com Posted: March 30, 2005 The ill-fated defense of former Police Chief Arthur Jones' record against a federal discrimination lawsuit fell apart early on, several attorneys said Wednesday. Arthur Jones Case at a Glance The verdict: An eight-member federal jury decided that the Milwaukee Police Department, under former Chief Arthur Jones, discriminated against 17 white male lieutenants who were passed over for promotions. Whats next: The jury will reconvene Monday at 9 a.m. for the penalty phase of the trial. Testimony in this phase is expected to last three days. The plaintiffs are each seeking $300,000 in compensatory damages plus punitive damages and promotions to captain. Other cases: A number of discrimination suits against the department and city are pending from the Jones era, including two filed against the city by Jones himself. Jones is seeking $2 million in damages in each of his suits. Jones himself was the first witness called by William Rettko, attorney for the 17 white men who sued alleging that Jones discriminated when they were his lieutenants by passing them over to name less-qualified women or minorities for captaincies. And Jones freely admitted that his criteria for choosing captains was highly subjective. Most choices, he admitted, were made without consulting the supervisors' evaluations he mistrusted, the rsums he felt didn't explain a person's aptitudes, or the department's own personnel records. Nominations were made, Jones said frequently during his testimony, "because I felt that they were the best qualified person." Such admitted subjectivity crippled from the start Assistant City Attorney Miriam Horwitz's attempt to say Jones' discretion, though authorized by law, promoted people who could objectively be called among the most deserving, race and gender notwithstanding. He ended up naming 41 captains, 21 of whom were white men, during a time when 80% of the pool of lieutenants was white men, but testified that he had no objective criteria to back it up. That sank the case immediately, several discrimination and employment-law attorneys said Wednesday. "The lesson here for employers is that if you don't have fair and object promotion criteria, whether it's a white chief or a black chief, it's going to come back to bite you," said Jeff Hynes, co-chair of the Wisconsin Employment Lawyers' Association. "Certainly the handwriting was on the wall for the defense the minute this evidence comes in. This is right out of the case law." Hynes, who has worked as a defense and plaintiffs' attorney in more than 20 years of handling discrimination lawsuits, said Jones' admission that he used subjective criteria enabled the jury to then contemplate other elements of Jones' record - such as his hiring statistics and his usage of racially loaded language such as Massa (referring to then-Mayor John O. Norquist, who is white) and Uncle Tom (for black members of the Fire and Police Commission). "Why is this bad?" Hynes asked rhetorically. "We always, when we're looking at these cases, have to say to ourselves that if the tables were turned and if this was a white chief (sued by black lieutenants), how would we view this?" The discrimination was found by a jury of three white men, three white women, one black woman and one woman whose race was not apparent. Jones had testified that "race was not a factor" in his promotions, and even denied that he had a goal of diversifying the department, but the jurors checked off 144 instances in which the 17 white male plaintiffs were individually passed over during 19 promotions in which Jones eventually named a woman or a non-white person as a captain. Vastly changed department The department Jones was booted from in 2003 has a dramatically different racial makeup today than it did when Jones took the helm in 1996. That year, 22 of 25 police captains were white males. As of December - the latest date for which statistics were available - nine of 24 police captains were white males. Labor and employment-law attorney John D. Finerty Jr. said Jones couldn't admit openly to having any intention to diversify the Milwaukee Police Department. "Otherwise, he walks straight into the argument that white candidates couldn't be promoted because of their race," Finerty said. He and several other attorneys said police chiefs are generally given wide latitude to pick command staff members, "just as the president of the United States would choose his own cabinet," but there are specific exceptions. "The law says race would be one consideration that you can't use," Finerty said. "I think juries understand that they have to give deference to managers in making those decisions, but once you demonstrate race was a deciding factor, you're in trouble." Damages phase ahead Ellen Basting Dizard, who is on the board of directors of the Wisconsin Bar Association's labor and employment law section, said the damages phase of the trial, which starts Monday, could rely heavily on the jury's assessment of the number of times each plaintiff was passed over when Jones hired a woman or member of a racial minority. But she doubted that U.S. District Judge Thomas Curran will go out of his way to force the Police Department to change how captains are appointed, a process that currently allows chiefs to nominate anyone they want - almost always a lieutenant - and send only that candidate to the Fire and Police Commission for review and ratification. "Typically, courts shy away from dictating specific process changes to a department," Dizard said. It is highly unusual for a department Milwaukee's size to allow promotions to captain to be based solely on the chief's wishes. "That's how you pick your top commanders, but captains are not top commanders. They're middle managers," said D.P. Van Blaricom, a police practices expert based in Bellevue, Wash. More commonly, candidates for promotion take a civil service exam. The scores, along with other qualifications, help determine who is promoted, he said. Samuel Walker, a criminal justice professor at the University of Nebraska, said the lack of job postings for captain's positions in Milwaukee hurt the city's chances in the civil suit. "The city was in a vulnerable position because there were no criteria" for the positions, he said. That vulnerability was significant enough that Rettko was able to win despite what other attorneys viewed as incredibly long odds just because of the type of case. Successful racial-discrimination cases are hard matters to litigate, much more so when the victim is white, lawyers said, and wrongful-promotion cases are harder cases than wrongful-termination ones. Over seven years as police chief, Jones' record was enough to overcome all those obstacles in the jury's eyes. "The chief, though perhaps well-intentioned, seemed to be trying to implement his own version of affirmative action," Hynes said. "Given the current status of the law, that will tend to backfire." Leonard Sykes Jr. of the Journal Sentinel staff contributed to this report.