It required managers to promote from among those who earned the highest scores, which surely would have meant new jobs for Oliphant and Gainey.
The rule of three became official city policy in San Francisco nearly 20 years ago, and the concept has existed at the federal level for decades as a way to prevent patronage and favoritism.
At the time the job openings were announced, however, the Juvenile Probation Department was negotiating with Local 3 over an alternative selection process called the rule of the list, which is permitted under city guidelines only if applicants are notified of the change at the time the job openings are announced. The rule change allowed managers in this case juvenile probation chief William Sifferman to promote from a much larger group of applicants, including those who had earned lower scores on the exam.
But the change was not agreed on until months later, just after the tests were taken, leading Oliphant and Gainey to believe the department tinkered with the promotion process only after it learned who had made it to the top of the list.
"When a black man is in a position to make that touchdown, the goal line moves," Oliphant said. "The goal line moved here."
Department personnel analyst Barry Biderman, who was involved in the negotiated rule change, says it took months to settle because he was simply having trouble getting in touch with the union. "I had left messages with the union a number of times," he said. "The formal letter just took a while to sign."
Sam Kinghorne, who finalized the change with the union, insisted there was "nothing illegal about that" but mostly refused to comment, pointing to union grievances filed by Oliphant and Gainey. "You guys are barking up the wrong tree," Kinghorne said. "I'm not going to give you a spicy story. But remember that it's up to the appointing officer to [make the selection]."
That's true. As long as the rule of the list is in place, the department head can pick whomever he wants for the job from among those who passed the test, narrowly or not. The decision maker was Sifferman, but he called it a "personnel matter" and refused to explain why he selected four people for promotions other than Gainey and Oliphant, including one applicant who scored a 937 to Gainey's 1060.
"I followed the process as it was described in the job announcements and all of the procedures that were outlined there," Sifferman said.
Carl Bellone, a longtime public administration professor at California State University, East Bay, concedes that the rule of the list may "lend itself to more potential for abuse" than the rule of three.
The trick is finding a balance between a century of civil service rules designed to ensure clean government and the reality that top test scorers may not always be the best candidates. "Ironically, a lot of people wanted to go to the rule of the list for affirmative action reasons," Bellone said. "You can go lower on the list to select a woman or African American."
But the rule of the list can also allow managers and politicians to limit promotions to loyalists who will do their bidding, or exclude those who aren't afraid to openly criticize an agency's performance.
"It completely and totally ... prostitutes the promotional process," said Gary Delagnes, president of San Francisco Police Officers Association, which has long resisted the rule of the list. "If you give an exam any exam and you tell the person that finished number one, 'We're not going to give you this promotion, because we don't think you're up to the task,' then what's the point?