Rank Discord

The cops are reluctant to talk about it. City officials flatly refuse. Who pushed the "mute" button on the most explosive affirmative-action lawsuit Minneapolis has seen in decades?

When Berryman published his lawsuit threat, Charlie Adams figured the two developments were connected. "This is a smoke screen put up by Al Berryman--because he knows what ticks off cops on the street--to divert attention from Technimar," he said then. "He wants to make it a race war on the streets."

Banham concedes he had similar suspicions: "It came around times when there were a lot of things going on with the federation," he maintains. "It kind of created something for Berryman to rally around."

Berryman says there was no connection between Technimar and his saber-rattling on expanded certification. "I said in 1997 that I wasn't running," he points out. "This is not the kind of thing you want to put employees on either end through. It's not something you want to subject people who have to work together to."

In March last year, Berryman relinquished his post to Sgt. John Delmonico, a 12-year department veteran. In June another round of officers were promoted to sergeant--again using expanded certification. Barely a month later, with no fanfare whatsoever, Delmonico filed the long-threatened suit. Delmonico says the decision was made by the federation's nine-member board before he took office; he says he was "aware of but not privy to" the deliberations, and that he fully supports the outcome.

Delmonico acknowledges that all the officers passed over through expanded certification eventually got promoted. But, he says, the federation hopes to stop the city from using the controversial method in future promotions, at least until officials prove that it's needed. He'd prefer to settle the suit out of court, Delmonico adds. "I wish cooler heads could prevail, that the people who make decisions on the city's side and us could sit down and see whether we can work this out. I really believe we're not that far apart."

That's something the federation should have thought of sooner, Banham says. Whenever expanded certification was discussed over the years, he charges, the union ducked the issue. "It's too bad the federation didn't get involved at the front end, when it would have been possible for everyone to create a system they'd be happy with," he says. "I'm not aware of any approach they've taken to be proactive."

Other labor unions representing public-sector workers have chosen to address affirmative-action programs through contract negotiations. City council member Jim Niland, a former organizer for the American Federation of State, County and Municipal Employees, says the trend has been to let officials go beyond the Rule of Three when there's a good justification. Many departments now observe the Rule of the List, under which anyone who passes a hiring or promotional test is eligible for an interview.

Delmonico says the federation has told the city it would support the use of that rule for recruiting purposes. The problem in this case, he says, is that officials never explained why they applied it to promotions. "The numbers were never in terms myself or [federation attorney Mark] Gehan could decipher," he says. "The numbers changed between the first time the city came to us and later times."

 

Mark Gehan's downtown St. Paul office is reached via a bustling skyway. Turn right off of one of the main corridors bisecting the First National Bank building, and gone is the smell of caramel corn, the chatter of workers taking a second-story walk on their lunch hour. Suddenly it's quiet except for the hushed opening and closing of a phalanx of brass-trimmed elevators.

Ten flights up at the firm of Collins, Buckley, Sauntry & Haugh, things are just as genteel. The glassed-in conference room is lined with law books, many of them old enough to warrant a spot on the stacks at the Minnesota History Center. Down the hall the ivory-hued meeting rooms are appointed with wildlife prints in heavy frames. Tall and thin, Gehan himself looks expensive, though his cords and crewneck signal that it's not a courtroom day.

Gehan is known as one of St. Paul's go-to guys, someone who knows everyone and can get things done. He was the court-appointed special master in the state's tobacco trial--the person charged with reviewing tens of thousands of industry documents to determine whether they should be released to the public.

He has also made a name for himself as one of a handful of local attorneys who have fought for white plaintiffs against affirmative-action policies. He has represented the Police Officers Federation of St. Paul for years, and has taken on several minority hiring suits on behalf of its members and others.

In 1991 Gehan won a $75,000 jury verdict in federal court in favor of a white man who was passed over for a St. Paul police job at the same time as the department hired three minority officers. The jury determined that the man had been denied the job because of his race.

Gehan also handled the closest local parallel to the current Minneapolis suit. In 1993 he filed a complaint in federal court on behalf of Dan Vanelli, the head of the St. Paul federation, and three white men who had applied for jobs on the force but were passed over because expanded certification was used. The suit was dismissed when a judge ruled that the plaintiffs had no legal basis for bringing it; two had been offered jobs within months, while the third had opted out of the running. The judge also found that there was no reason to believe that officers selected through expanded certification would not make good cops.

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