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Fire union leader lauds arbitrator’s decision, questions chief’s motives

Tuesday, November 30, 2010 by Josh Rosenblatt

The head of the Austin Firefighters Association said Monday that an arbitrator’s decision against Fire Chief Rhoda Mae Kerr in favor of captain passed over for a promotion could indicate that politics creeping into the promotions process.


Kerr’s decision to deny the promotion of Captain Guy Groomer in March was the subject of a lengthy arbitration process. After several months, hearing examiner Chuck Miller sustained Groomer’s appeal and said Kerr was unjustified in bypassing him for the position of battalion chief.


Groomer’s difficulties date back to 2005, when he was demoted two ranks – from captain to fire specialist—after getting caught shoplifting from Whole Foods. Since that time, however, two different chiefs have rated Groomer’s work performance satisfactory and he has been promoted twice, ending up back at captain. Consideration of the opinions of these supervisors helped convince Miller to decide in Groomer’s favor


Austin Firefighters Association President Bob Nicks told In Fact Daily that the Groomer case is important because it demonstrates that the civil service arbitration process removes political influence from decisions about hiring, firing, promotion, and discipline. “The arbitrator has no skin in the game. He looks at the facts to see if the chief did what she’s supposed to under the law,” he said. “Was there political influence involved? Were the facts laid out correctly? Did they have reasons for what they did?”


Nicks said that he and several of his colleagues in the department feel it might have been motivated by political considerations. If a chief bypasses one person, he said, that leaves the door open for the promotion of another person further down the list.


“That’s supposition. I’m not saying that did happen but just that we did have those feelings,” Nicks said. Asked whether he believed there was someone particular on the eligibility list Kerr was hoping to see promoted, Nicks said yes, but that he didn’t want to name names. “I don’t want to draw anyone else into any mud, but, yes, there are people we thought she might be trying to get to,” he said.


Mark Klaus and Joe Limon were promoted to the two open battalion chief positions following Kerr’s decision to bypass Groomer’s promotion. Since then Chris Swenson and Craig Walker have also been promoted to battalion chief. Nicks said Limon, Swenson, and Walker will all be demoted to captain when Groomer is promoted. Limon and Swenson will then immediately be re-promoted to battalion chief. The last one to be promoted, Walker, will go to the top of the department’s indefinite reinstatement list and wait for the next available battalion chief slot to open up.


Back in March, Kerr explained her decision to bypass Groomer in a six-page memo that claimed he had “not paid back to the department the discredit he brought to it even to this day,” Citing his “unscrupulous conduct,” Kerr said she would fire Groomer if she could.


In August, Groomer and the firefighters union filed an appeal with the department, claiming Kerr had not shown a “valid reason” why Groomer should not be promoted. According to state civil service law, police and fire chiefs must have a valid reason for not appointing promotional candidates who are next in line on one of the department’s eligibility lists.


“(Kerr) failed to show a valid reason for the bypass,” Nicks said. “She was making the case that his past behavior was so bad that if she had been chief when Groomer was demoted, she would have fired him. That doesn’t really build a case for a valid reason this time because anybody can say they would have done things differently in the past.”


In the decision he released Monday, Miller echoed Nicks’ sentiment. “Chief Kerr believes past performance is the best indicator of future performance. That’s a philosophical belief. A different philosophy might be that people learn from their past mistakes and are likely therefore to perform better in the future.”


Nicks said that when he was Groomer’s supervisor, he was particularly hard on him “because a liar and a cheat is never considered a good attribute among firefighters. But he really proved me wrong and did a great job and he did a great job for the next two chiefs he worked for. He went through five years of rebuilding his career and doing a good job for the department.”


Miller and Nicks pointed out that during her consideration of Groomer’s application, Kerr never spoke with any of Groomer’s supervisors, including the two under which he was promoted after the shoplifting incident. “She did not discuss the bypass with any of Groomer’s past or present supervisors or subordinates,”  Miller wrote. “Chief Kerr discussed the bypass with her assistant chiefs and relied on their counsel as well as the contents of Groomer’s personal file.”


“She was just looking at pieces of paper in a file,” said Nicks.


Miller ended his decision by quoting union attorney Lowell Denton in his Civil Service Update 2009 paper. “Evaluation of a promotional bypass by a fire chief or police chief should take into account feedback from individuals within the chain of command …”


Michelle DeCrane, AFD’s public information officer, told In Fact Daily that Kerr had no comment on the arbitrator’s decision except to say that “she’s very disappointed.”

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