To The Daily Sun,
Some of you may have read in the newspaper last year that I was suing the State of New Hampshire and the N.H. Police Standards and Training Council (PSTC) for discrimination. The suit was about reverse discrimination, or male discrimination. At 52-years-old I went to the N.H. Police Academy. I passed all the requirements except one. I had to run 1 1/2 miles in 14 minutes and 33 seconds. I came in 11 seconds late. The discrimination part was that a female, my same age, would have been allowed almost 3 minutes longer to complete the same test, even though we would be sent out, as police officers, to do the same job.
I asked for help from two U.S. Senators, a U.S. Congressman, seven State Representatives and one State Senator. I heard back from Senator Ayotte's office. Her aid told me this was a state concern and there was nothing she could do to help. This is a State of New Hampshire agency violating a federal Civil Rights Law and she could not do anything? Then he reminded me that the senator was a member of the Police Standards and Training Council when she was the state's Attorney General. That explained a lot.
I also heard from State Representative Guy Comtois. He agreed with me that this was reverse discrimination. He tried to help but it was an election year. The best he was able to do was get me a meeting with the governor's personal council. Representative Comtois even attended the meeting with me. (Thank you Rep. Comtois.)
The council is appointed by the Governor of New Hampshire. I went to see Governor Lynch to ask for his help. What his personal council told me was, "we haven't interfered with council business in eight years. Why would we start now?" and "You should get a good lawyer." I got the best lawyer I could afford. Me! I took my case to the New Hampshire Human Rights Commission. They told me that the PSTC was not my employer and that they had no jurisdiction over, "governmental places of public accommodation". I'm not really sure where that one came from because PSTC is not a grocery store or a gas station or even a motel. But, these were lawyers I was talking to.
I took my case to the U.S. District Court of N.H. and after months of motions and objections, the federal judge dismissed my case because PSTC was not my employer and the law was very specific — they must be the employer. I never saw the inside of a courtroom, met the judge or even met the attorney representing the State of N.H.
I tried to sue in N.H. Superior Court under a N.H. law that says anyone who aids, abets or compels another to discriminate is also guilty. Unfortunately, the judge said I did not follow proper procedure under the law by not filing my claim within 30 days of the N.H. Human Rights Commission denying my claim. Once again, I did not get to tell my story.
I feel that if I had a chance to tell my story in court, I would win hands down. Apparently, the state's attorney, who by the way is the N.H. Attorney Generals Office, thought so too. They did everything possible to get both suits dismissed on technical and procedural law. The merits of my case were never heard.
Let me explain. To become a police officer in New Hampshire, you must attend the N.H. Police Academy and graduate to become certified by PSTC. Among the many requirements at the academy there is a physical fitness test. You have to bench press a certain percentage of you body weight, do push ups and sit ups and run 1 1/2 miles in a certain time. Each exercise has a pass number assigned from a chart that takes into consideration your age, gender and then a percentage of the general population. They are taken from a well respected physical fitness organization called the Cooper Institute. The problem comes because these tests are mandatory. Many law enforcement and physical fitness organizations believe that using these standards for mandatory testing is illegal and recommend they not be used this way, including the Cooper Institute.
If you don't pass the test, you will get fired. In fact, PSTC has a rule that says if a candidate does not pass the retest, he..."shall be terminated by the hiring authority". For those of us in the law enforcement world, we know that the word "shall" means there are no options; you will be terminated.
Let me illustrate my point with a quick story. When I lost my job as a full-time police officer, I drove a school bus part-time. To get my school bus driver license, I had to pass a driving test in a school bus. I had to demonstrate certain driving skills by driving through a series of orange traffic cones without hitting any of them. I was told to imagine the cones as a young mother pushing her baby in a stroller. If I hit just one cone, the test was over and I would fail.
Now, imagine that the DMV said, because women are different then men, they are allowed to hit as many as two cones and still pass the test but men were not allowed to hit any cones. This is exactly what PSTC said when they adopted these tests in 1992. That is discrimination.
Now let's say the DMV called your employer and said they "shall" fire you! What if your employer thought you were worth re-training? Isn't that the right of the employer? Does the state have the right to order your termination? To the best of my knowledge, the state doesn't call your employer and order your termination if you fail the state licensing test for barbers, plumbers, doctors or lawyers. Here again, these are the rules of PSTC.
In 17th century England, King Henry VII created a council designed to hold the nobles accountable to the same laws as the peasants. Over time the council became corrupted and went easy on nobles friendly with the crown and tough on nobles that were not friendly with the crown. This council was called the "Star Chamber" because of the decorations on the ceiling of the council's chamber.
I'm not saying that police officers are nobles. They are simply the people we trust to enforce our laws. Having a council to ensure all are treated fairly is essential to our way of life. But even police officers have rights and no one is watching the council.
Let me be very clear. I am not against female police officers. I believe there are plenty of women that are very capable of doing the job of a police officer. I am also not against physical fitness testing. I believe it is very necessary. What I am against is lowering the standards just so a certain group can pass the test. We all do the same job. There should be one test to see whether you can or cannot do the job. I believe it is dangerous to send a less capable officer onto the streets, not only for the officer, but for their fellow officers and the public as well, just so a certain group will have more people pass the test.
The Police Standards and Training Council has become a "Star Chamber." No one overseeing what they do. No one holding them accountable. A state regulatory agency that runs a publicly funded police academy and has no accountability is dangerous to our freedom.
During my research for my lawsuit I discovered many questionable decisions by the council. For example: different officers are given different punishments for the same rule violation. A friend of mine in Lancaster was given a 90 day suspension. For violating the same rule, the council suspended a Salem officer and several corrections officers for 30 days and an officer from Henniker received no suspension at all. Can you imagine your boss suspending you for 90 days because you didn't turn your paperwork in on time?
There are rules for full-time officers and part-time officers, male and female officers, young and old officers, officers that started before January 2001 and those that started after January 2001. And we all do the same job!
In my case, I was told they would not waive the 11 seconds I missed the run by because, "if they did it for me they would have to do it for everyone." Imagine my surprise when I discovered there was a rule that allowed the waiver if I passed the mid-term test by the final test requirements. How did I find out about that rule? I read the PSTC meeting minutes, a year after my request was denied and found that two officers, one from Hooksett and one from Manchester, were granted a waiver to not take the final test because they passed the mid-term test. They were allowed to graduate and were certified.
If this physical fitness test is so important to being a police officer, why are part-time officers not required to take the same test to graduate from the Part-Time Academy? We all do the same job!
I was also told that I was not allowed to continue testing after a legislated 2-year probationary period. It's the law! Once again, I read the PSTC meeting minutes and discovered that two chiefs of police were given extensions, beyond the 2-year probationary period, to pass their 3-year PT test. (Part of the same law) One was even given an extension "without a time limit".
It seems, not only can the council grant waivers and extensions beyond state law; it depends on who you are as to how much help you can get from them.
Please understand, these are not just the ramblings of a disgruntled employee, these are documented facts.
— Unfair and uneven punishments;
— Rules that apply to some but not all;
— Violating state laws (for friendly nobles).
— No accountability.
These are the actions of the "Star Chamber" we call the "New Hampshire Police Standards and Training Council".
I have lost my cases without ever getting into court. As far as I know, I have no legal options left to me and the council refuses to meet with me. My concerns now are for the cities and towns of New Hampshire that hire police officers. You see, PSTC sets the standards the cities and towns must use to qualify their candidates. According to my experience with state and federal law, the hiring agencies, (cities and towns) are the employers. They can be sued for discrimination by any male applicant or employee who fails the test as long as he follows proper procedure. These cases can bring punitive damages of up to $300,000 for each case. PSTC is protected from any liability because they are not the employer under the law.
I hope the towns of New Hampshire have a good insurance company!
But, that's just my opinion and now I have, at least, told you my story!
David B. Scott