The Essex County Prosecutor’s Office is investigating claims that at least one Montclair Fire Department member paid others to take his shifts, Montclair Local has learned.

The allegations are described in a report by Montclair Affirmative Action Officer Bruce Morgan, generated as part of his investigation into Black fire department members’ claims that the scoring rubric for a September 2021 promotions exam was stacked against them, and in favor of candidates the department leadership preferred, including Fire Chief John Herrmann’s son.

Morgan’s inquiry is one of two prompted by the allegations about the rubric. In November, the Township Council hired Cedar Grove law firm O’Toole Scrivo to look into the complaints; in late April, Montclair Township spokeswoman Katya Wowk said that investigation was expected to wrap up within 30 days.

In Morgan’s report, submitted to township authorities on March 11 and obtained by Montclair Local this month, Morgan said he learned of a 2018 investigation into the claims of paying to cover shifts — a practice he described as “clearly against department policy” and that he wrote “may be criminal in nature.”

He wrote he learned from Deputy Fire Chief Robert Duncan that 10 fire department members “were believed” to have worked for another department member, and nine admitted it.

Yet, Morgan wrote, none of the 10 was subjected to discipline, but they were rather made to attend “counseling sessions.”

Despite Morgan’s description, counseling can be one form of discipline for a government job, such as that of a firefighter. But in 2021, when one of the 10 took the promotions test, the department member wasn’t docked any points for discipline — even though discipline is a factor in the new rubric, Morgan wrote.

When asked about the allegations regarding the shifts, Essex County Prosecutor’s Office spokeswoman Katherine Carter told Montclair Local this week there was an ongoing investigation. Her brief message to the paper didn’t say when it started, or what the scope of the investigation was. Law enforcement authorities typically do not comment on ongoing investigations.

The 2018 fire department investigation is just one item of concern in a 10-page report from Morgan that describes conflicts of interest in the formation of the promotions test, and inconsistent accounts from authorities over department policy and how the rubric came together. It’s unclear if Morgan submitted any further material beyond the pages obtained by Montclair Local.

In them, he concluded: “These kinds of issues have a far-reaching effect on promotional exams and how they are created, scored and who is ultimately promoted.”

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Graphic by LOUIS C. HOCHMAN/STAFF
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Paying to cover others' shifts

Morgan’s report doesn’t make clear who conducted the 2018 investigation into paying for shifts, or who was given any report generated by it. Montclair Local has submitted a public records request for any such report, and is awaiting a reply.

But then-Mayor Robert Jackson and Councilwoman Robin Schlager, both of whom served on the governing body at the time, told Montclair Local they didn’t know anything about it. Joe Burke, a former Montclair Fire Department captain and president of the fire department’s union in 2018, also said he wasn’t aware of it.

“I had literally never heard of anything like that taking place, not then and not now,” Schlager said.

Morgan’s report said it “was disclosed to me” that the practice had been going on for decades, though the 2018 investigation only went back two years. It doesn’t say who shared that with Morgan, or why the investigation didn’t go back further.

The allegations regarding shifts could amount to a criminal matter — perhaps being considered for a charge of official misconduct, Robert Bianchi, a former Morris County prosecutor who now heads the Bianchi Law Group, said. Bianchi does not have direct knowledge of the case; his comments are based on descriptions of the allegations by Montclair Local.

New Jersey’s official misconduct statute is a broad one — so broad, Bianchi said, “that I’m not a big fan of it.” It could ultimately be applied to virtually any policy violation by a public official, he said.

“You can imagine, most people think of official misconduct as a bribe, or something that's criminal in nature,” he said. “[A prosecutor would have to determine] if this is a violation of a rule, policy or regulation, which it seems hard to believe it would not be.”

It’s not clear that every violation that could result in charges should, Bianchi said. Prosecutorial discretion allows various considerations to come into play: Did the accused parties know they were doing something illegal? Were they following a custom common to their office or agency, and didn’t understand the law? If prosecutors believe there was malice, if someone was trying to get away with something, he said, they’re more likely to bring charges.

“We live in a real world and we understand people do stupid things, and we don’t want to criminalize people for all sorts of knucklehead behavior that they do,” Bianchi said.

Morgan’s report says of the 10 firefighters accused of being paid to work another’s shifts, “none of these firefighters were disciplined for these acts, including the firefighter who denied any wrongdoing.” He says he was informed they were given “counseling sessions.”

But Bianchi notes that counseling, in itself, is a form of discipline — on a spectrum that includes verbal and written reprimands, and then potentially more serious measures such as training, suspension or dismissal.

A June 30, 2021 memo from Township Manager Tim Stafford to fire department captains, lieutenants and firefighters describing the new promotions scoring rubric acknowledges “counseling level” as one type of discipline. A department member with no disciplinary records earns 3 points; that’s docked to 2.25 if there’s a counseling level incident in the member’s history. The memo was obtained by Montclair Local through a public records request.

Morgan wrote that if the shifts allegation had been counted against the firefighter who’d been accused in 2018 and who then in 2021 took the promotions test, it “would have moved him out of the top-5 scoring candidates in the promotional exam.”

The version of Morgan’s report obtained by Montclair Local does not include the names of the accused firefighters. It also doesn’t say how many fire department members were accused of paying others, or if anyone making payments was disciplined.

Yet other department members did lose points over discipline, including some incidents that went back considerably further.

In one of the department members’ emails to Montclair making the allegations about the scoring rubric — obtained by the newspaper through a public records request — a captain who’d been testing for the battalion chief rank alleged he’d been disciplined over sick leave “all the way back to around 1996 and then again in 2017,” despite the rubric’s citing an absenteeism policy that went into effect in 2018.

He said in that Nov. 15, 2021 email that he’d also lost points over a 1993 discipline incident related to misunderstanding overtime rules. 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.

Morgan acknowledged to Montclair Local last month that he’d submitted his report on March 11, though he declined to comment on its contents. As previously reported by Montclair Local, among the recipients was Stafford, one of those Morgan interviewed for his investigation, as Stafford helped craft the scoring rubric.

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.

“We live in a real world and we understand people do stupid things, and we don’t want to criminalize people for all sorts of knucklehead behavior that they do.”

— Robert Bianchi, Former Morris County prosecutor

 

Conflicts, concerns, inconsistencies

Morgan’s report describes three fire department members who allege the scoring rubric had a “discriminatory impact on minority fire fighters.” Montclair Local had previously been aware of and obtained correspondence from two department members making such allegations, and has submitted a public records request for correspondence from the third.

At issue: The Black firefighters say the 2021 test broke tradition in ways that hurt them and their chances of moving up in the ranks. In 2010, the last time Montclair gave a promotions test, it issued 50 points for a written exam, 45 for an oral exam, and 5 for seniority.

But in 2021, a more complicated rubric did away with seniority as a factor. It introduced a 35-point “practical evolution demonstration” — testing a response to a hypothetical scenario for which at least one fire department member says he was given the wrong information.

The rubric awards up to 15 points based on a candidate’s job history, docking them for past absences and disciplinary issues, and awarding points for commendations and educational history.

The Black department members say the collective impact was to push them down in the rankings, while pushing those favored by Herrmann up. That includes, they say, Chris Herrmann, the chief’s son, who achieved the top score in the test to become a lieutenant, according to records provided to Montclair Local through a public records request.

Fire Chief John Herrmann greets stusents at Watchung School.
Fire Chief John Herrmann greets students at a Watchung School event in 2018 (FILE PHOTO).
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As of Tuesday, May 24, John Herrmann, the chief, hadn’t returned a call from Montclair Local May 20 seeking comment. A message left with a number listed for Chris Herrmann in online directories hadn’t been returned.

In Morgan’s report, he found the chief’s role in creating the rubric created “a very precarious balance,” given that his son was among those taking it.

And he wrote it was problematic that the same people crafting the test would have known the disciplinary histories and educational levels of the people taking it. That, Morgan wrote, “can create an implication of potential bias.”

John Herrmann, Stafford and then-Montclair Human Resources director Sharyn Matthews all acknowledged having a role in creating the rubric, Morgan wrote. But he found inconsistencies in their descriptions of the details.

Stafford, via Wowk, the township’s spokesperson, declined comment on any ongoing investigation or personnel matter. Matthews, who has since left Montclair to be Wayne’s human resources director, declined comment as well.

Matthews had told Morgan that Herrmann recused himself from the entire process, Morgan wrote. But Herrmann told Morgan that he couldn’t recuse himself — even though some firefighters said they’d pursue legal action if he didn’t —  “because he had too much valuable knowledge about the fire service,” Morgan wrote.

“The opposite positions of those two statements gave me great reason for pause and uncertainty about the veracity and transparency of the creation and scoring of this promotional exam,” he wrote. The allegations about the payments for shifts were among the “disturbing issues” he’d unearthed “as to how the Montclair Fire Department is managed on a daily basis and how this promotional exam was created and scored,” he wrote.

The affirmative action officer also wrote that there were a “multitude of ways to deal with such a situation that creates an implication of a potential impropriety and yet none were utilized in this situation.”

Herrmann told Morgan that the Township Council had wanted a change in the criteria used for the test, making it less dependent on a written test and therefore fairer for others, Morgan wrote. He also recounted Stafford’s saying the council had directed the administration to revisit the test to get a “totality” analysis that would better reflect a fire department member’s contributions.

Jackson told Montclair Local he had, in fact, advocated for putting less emphasis on the written test: “Some people can do better on written tests than others. That’s not necessarily the person I wanted to be in a foxhole with.”

But he also said he believed seniority should have been a factor, and that he doesn’t recall any discussions about how various factors should be weighed. Schlager said she couldn’t remember any direction from the council about the factors to consider.

In his report, Morgan notes that Montclair’s fire department is not subject to the Civil Service Commission’s regulations, which would include seniority as a factor in a promotions test.

But he wrote that “virtually almost all fire departments” in New Jersey recognize seniority.

Under a contract between the township and Montclair Firefighters Mutual Benevolent Association Local 20, the union is to be provided with promotional examination scoring procedures at least 60 days before exams, but the township manager maintains the right to establish criteria and make promotions. The contract does require the township to give "due consideration" to objections or suggestions the union may have about exam procedure.

Morgan wrote in his report that Stafford told him the union had no position on the changes in the 2021 rubric, and that Matthews told him the union “didn’t disagree” with the new criteria. Matthews also said the union had been aware of the changes for two years, Morgan wrote. But Kevin Stoute, the union’s current president, told Morgan the union had only been told about the new rubric in general terms, and didn’t get any final terms until Stafford’s June 30, 2021, memo, Morgan wrote.

Morgan says Matthews’ statement about the union being informed is “contrary” to a June 20, 2021, memo from Stafford to the fire department. It’s unclear in what way it was contrary, and if that’s actually meant to be a reference to the June 30 memo. Montclair Local has submitted a public records request for the June 20 memo, if such a document exists.

Stoute told Morgan he voiced concerns about the rubric in August 2021 — after Stafford’s memo, but before the test was given in September of that year — according to Morgan’s report. He’d been particularly concerned about losing seniority as a consideration, the report says.

“There are a multitude of ways to deal with such a situation that creates an implication of a potential impropriety and yet none were utilized in this situation.”
— Report by Bruce Morgan
Montclair Affirmative Action Officer

Impacts on Black officers

The promotions test was open to department members seeking the ranks of lieutenant (for current firefighters), captain (for current lieutenants) and battalion chief (for current captains). No promotions have yet been made, township officials say.

Morgan wrote that under the new rubric, of the top-five scorers in each category, only one was Black. But each of six firefighters who passed the written exam — making them eligible to take the remainder of the test — would have scored higher without the changes.

One would have had the highest score in his category, Morgan wrote.

The battalion chief test was taken by five eligible department members, Morgan wrote. The margin between the top scorer and the second-place scorer was .07 points on a 100-point scale. The second-place scorer, a Black department member, had been docked for infractions dating back to 1993 and 1996 despite never losing points when he took an earlier promotions test to become a captain, Morgan wrote.

Adding seniority back into the mix would have put that department member at the top of the list, he wrote.

That department member seemed to be the same one who wrote the November email to the township described above.

“This is but one example of the disparate impact that the change in the criteria had on minority firefighters,” Morgan wrote.

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 — told Montclair Local last month she found the changes disturbing: “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.”

Morgan also wrote that Black firefighters were disproportionately hurt by the credits given for education, including advanced degrees, even if they weren’t related to work with the department. He cited the example of a master of fine arts.

“No one who I spoke to who helped create the new criteria was able to explain what is the rationale behind rewarding someone for non-work-related college while not rewarding them for consistent service/longevity,” Morgan wrote.

Duncan, the deputy fire chief, said Tuesday he’d need to confer with township officials before knowing if he could respond to questions for this story, and would be back in touch once he'd heard from them. As the end of business Tuesday, he hadn’t yet replied further. Township Councilman Bob Russo said he’d been informed he couldn’t respond about matters pertaining to an ongoing investigation. Stoute declined comment for the same reason.

Mayor Sean Spiller, Deputy Mayor Bill Hurlock, former Councilwoman Renee Baskerville and former Councilman Rich McMahon — all of whom had been on the governing body at the time of the 2018 investigation — haven't yet returned calls placed May 20.

Morgan says in his report he’s not sure what sort of relief should apply after his findings, but “hopefully it can be something that can be carried out in a reasonable manner and in a reasonable amount of time, as it has the potential to have a negative impact on the operation of the Montclair Fire Department and the township as a whole.”