Montclair Township’s affirmative action officer has completed an investigation into Black firefighters’ allegations that a recent promotions test was stacked against them, wrapping up his inquiry nearly two months ago.

Among those officials who received Affirmative Action Officer Bruce Morgan’s report was Township Manager Timothy Stafford — the same official who on June 30 of last year issued a memorandum setting the scoring rubric that at least two firefighters allege put them at a disadvantage, instead giving preference to candidates favored by Chief John Herrmann, including Herrmann’s son.

Also receiving Morgan’s report were the township attorney, deputy township manager and members of the Township Council, Montclair Communications Director Katya Wowk confirmed. The report has not been made public. 

Christa Rapoport, chair of the township’s Civil Rights Commission — who’d emailed the council in November of last year, demanding an investigation after learning of the firefighters’ complaints — said she found Stafford’s receipt of Morgan’s report “concerning.”

“I think there is a conflict, and Tim Stafford should be excluded, and another township official should be appointed to handle this,” Rapoport said.

The township is still awaiting the results of a separate, ongoing investigation by Cedar Grove law firm O’Toole Scrivo, hired by the council in November to look into the firefighters’ complaints. 

Wowk said there’s been no council resolution to date reflecting O’Toole Scrivo’s hiring, but because its billing is expected to exceed a $17,500 threshold set by state law, one will be up for a vote at the council’s May 17 meeting. The township’s legal department expects the O’Toole Scrivo investigation within the next month, she said.

Montclair Local reported in November that the council was hiring an outside investigator, in stories that first made the firefighters’ allegations public. Morgan’s investigation hadn’t been previously reported, nor had the name of the outside firm. 

But Morgan confirmed last week to Montclair Local that his work was complete, and that the scope was “the firefighters’ exam and some of the outcomes of the firefighters’ exam.” He declined to address his findings, and said he wasn’t sure exactly who received his report.

Rapoport flagged what she described as another conflict, saying that according to the firefighters making the allegations, O’Toole Scrivo reached out to Herrmann to schedule interviews with them.

“In no way should the subject of an investigation, especially as chief of the fire department, direct his subordinates [to participate in the interviews],” she said. “That’s perceived as an order. If this is truly to be perceived as an independent investigation, normal and customary rules about conflicts should be followed.”

Stafford returned an email from Montclair Local this week asking about any steps to address concerns of conflicts, or appearances of conflicts, but said the township wouldn’t comment on pending investigations or personnel matters.

 Herrmann returned a call, but also declined to comment on the investigation. He wouldn’t say if he’d received a copy of Morgan’s report.

Council members David Cummings and Lori Price Abrams also would not comment, citing the confidentiality associated with an ongoing investigation, and Councilman Bob Russo said he’d been “constrained by our management and legal staff” on any comment he could offer. 

Only Councilman Peter Yacobellis, who serves as one of the council’s liaisons to the Civil Rights Commission with Russo and Price Abrams, offered some limited response about how the investigation had proceeded. 

Yacobellis said he was “concerned about” the manager receiving Morgan’s report, but cautioned he’d need to know more to have a specific comment on it — for instance, whether it’s standard procedure for a township manager to receive an affirmative action officer’s report, and whether the manager was given any option to recuse himself. 

And he said he’d suggested the township’s law department notify all employees it has an open-door policy to discuss “issues that could involve someone in their chain of command.”

“I think it is important that any employee in any environment, from Fortune 100 companies to municipal governments, should understand their rights and processes and how to step out of their chain of command to address potential issues involving individuals within their chain of command, in any situation,” he said.

Neither Mayor Sean Spiller, Deputy Mayor William Hurlock nor Councilwoman Robin Schlager have yet responded to a May 2 email seeking comment.

Members of the Montclair African American Clergy Association told township officials recently they want more transparency into the policies that govern investigations into issues concerning race, citing the investigation prompted by the firefighters’ allegations as one example. 

They said they understand particulars around personnel matters or legal disputes typically can’t be discussed, but want a better sense of what procedures apply to investigations, how they’re executed and what sorts of discipline could apply. 

Yacobellis, in an email to Montclair Local this week, said if the Morgan or O’Toole Scrivo investigations prompt any changes to policies and procedure, that should be communicated clearly to the public as well.

“While there are a lot of things that we can’t discuss, I do think it’s very important that the general public have confidence in how these matters are handled internally, and we should support boosting that confidence by disclosing what we can when the time is right,” he said.

Firefighters’ allegations

At least two Black firefighters wrote to Montclair Township officials in November of last year, alleging both that the scoring rubric used for a Sept. 2 and 3 promotional exam favored candidates Herrmann preferred, and that they were unfairly judged after completing the exam. Montclair Local obtained copies of their emails last year, and they were again provided to the news organization by the township following a public records request.

Promotional exams were last given in 2010, according to documents the township provided. At that time, firefighters were scored on a 100-point rubric — with 50 points for a written exam, 45 for an oral exam and 5 for seniority.

Seniority wasn’t a factor in the 2021 exam.

Instead, a written exam counted for 25 points, and an oral exam counted for another 25, Stafford’s June memorandum said. A “practical evolution demonstration” worth 35 points asked firefighters to respond to hypothetical scenarios to demonstrate they had the skills needed for the ranks they were pursuing.

And a 15-point section awarded points for a candidate’’ job performance history. That portion included up to 3.75 points for a candidate’s attendance history, citing an absenteeism policy that went into effect in September 2018. Candidates could lose points for discipline, or earn them for commendations. Job certifications and education levels were also worth points.

In both the 2010 and 2021 exams, candidates were considered for lieutenant, captain and battalion chief ranks. Stafford told Montclair Local last year, shortly after council members agreed to launch an investigation, no promotions had yet been put into effect.

In one of the firefighters’ emails, a captain who’d been testing for the battalion chief rank — describing himself as a 30-year veteran of the fire department — alleged he’d been disciplined over sick leave “all the way back to around 1996 and then again in 2017,” despite the rubric citing an absenteeism policy that went into effect in 2018. 

He said in that Nov. 15 email that he’d lost points over a 1993 discipline incident related to misunderstanding overtime rules.

And he said it was unfair that seniority had been cast aside as a consideration.

“From my review of my testing scores, the chief used his power to cause me to place No. 2 on the [battalion chief] list, to pick his own personnel for immediate promotion,” he wrote. “And why the chief has his 15 final points to add to the scores is beyond me.”

The inclusion of old disciplinary action, a lieutenant seeking a captain rank wrote to township officials on Oct. 28, “weaponized” the scoring rubric against Black firefighters. He said he took issue with the points for college degrees, calling it economic discrimination and saying only one Black member of the department has a degree.

But seniority points, he said, would have elevated his scores and those of other Black department members.

Rapoport, too, took issue with the rubric change: “If you’re not going to allow seniority, but then conversely look at something that happened on year one of someone’s 30-year career, there’s a logical inconsistency there.”

An email sent Nov. 5, 2020, from the lieutenant described a proctor hired to administer the exam “getting extremely angry” and “on a tirade” over issues with rooms at Montclair State University meant for the test being booked. 

The lieutenant said he was given the wrong information for the practical scenario portion of the test, and gave answers based on the erroneous information made available to him; the lieutenant said he later spoke to the firefighters who had the same experience.

When he later watched a video of the exam with Herrmann and the township’s human resources director, the lieutenant wrote, “they tried to shift blame by saying if I were serious about the exam I should have pursued Chuck [the proctor] down the hall and gotten the information that I didn’t get.”

Ultimately, Herrmann’s son, Chris Herrmann, received the highest total score on the lieutenant test — 96.07 points, with the next score about 6 points below. Twenty-seven firefighters took that test.

Capt. Daniel Ernst received the highest score on the battalion chief test, with 77.35 points, just barely edging out the captain who made the complaint to the township, at 77.28. The difference was close enough that seniority points would have flipped the first- and second-place rankings, the lieutenant who’d made a complaint said in his own letter.

Lt. Michael Lizza achieved the highest score among 10 who took the captain test, at 93.41 points; the lieutenant who’d made the complaint was in ninth place, with 80.62 points. As part of that breakdown: He was one of three applicants who’d scored 15.11 out of 17.5 points on the second part of the two-part practical test — the one for which he said he was given the wrong scenario. Just one other candidate scored lower on that portion.

Montclair Local has so far been unable to reach Chris Herrmann, Ernst or Lizza.