San Diego — The San Diego Police Department is either resuscitating affirmative action or its promotion practices are meant to reward "team players." So thinks Sergeant Mark Sullivan, whose highest possible promotional rating of "exceptionally qualified" the department has overlooked several times in selecting lieutenants. Sullivan defines a team player as one whose loyalty is to particular leaders in the department. A "good team member," he tells me, is loyal to the department.

In early February, the sergeant vented his frustrations in a letter to Mayor Jerry Sanders. A 24-year San Diego police veteran, Sullivan has served in numerous capacities, from SWAT-team and vice-squad member to administrative and teaching roles. He has been a sergeant for 12 years and represents police officers on the city's pension board. Sullivan was not asking the mayor to promote him outright, he wrote, but to assist in arranging an appeal hearing that "will decide whether I was denied a promotion on factors other than merit." He made the request in reference to the police chief's July 6, 2004 promotions. On that day, William Lansdowne, who became police chief in August 2003, promoted five sergeants and five lieutenants. In each case, the breakdown was three white males, one Hispanic male, and one black female. For the fourth time, Sullivan was overlooked, and at least one of those promoted, he maintains, was less qualified.

Sullivan opened his letter by appealing to concerns Mayor Sanders had voiced in his January 12 "State of the City" address. "You said," wrote Sullivan, "that too often 'important problems were swept under the rug by city leaders. As best as I can tell the operating philosophy around City Hall involved one of these three words: delay, deny or deceive.' " Sullivan argued that the problems at the police department went far beyond his own case. "It is an issue of public safety," he wrote, if the police department makes a habit of advancing less-qualified personnel over the more qualified.

Sullivan went on to elaborate his situation to the mayor. In November 2002, he said, the San Diego Police Officers Association (the police union) had chosen him and several other officers with similar histories to participate in a lawsuit to make the promotional process fairer. At the time of filing, charged the lawsuit, "The promotion decisions are routinely based on a myriad of improper considerations, including personal whims, animus, relationships to candidates, group affiliations, and worse, the candidates' race, sex, color, ethnicity, age, and national origin." In May 2004, the association and police department settled the lawsuit by establishing a new merit-based promotional process.

Chief Lansdowne announced his selections for promotion two months later. Wrote Sullivan, "I truly believed that I was passed over...in retaliation for participating in the lawsuit. On July 20, 2004, I made a formal request through the Chief's office for an administrative appeal for denial of promotion on factors other than merit."

California's Police Officers Bill of Rights grants officers in Sullivan's situation the right to such an appeal. So does Article 41 of San Diego's memorandum of understanding with its police personnel. Nevertheless, wrote Sullivan, "the chief's office fought my request for administrative hearing for ten months." Finally, through the work of the Police Officers Association's attorney, the department granted a hearing "on condition that the chief would not have to answer any questions related to the qualifications or the subsequent conduct of the other candidates."

Meanwhile, during August 2004, Channel 7/39 correspondent Tony Shin did a series of reports on the Central Division's investigative team. The team's leader had failed to complete investigating 900-plus criminal cases assigned to her division. It turned out, reported Shin, that the department had recently promoted the officer in question to lieutenant. On a day shortly after her promotion, she came back to Central Division to reclassify 160 of the late cases as "No Contact Required." That action precluded any subsequent investigation into the cases, a number of which were serious felony cases.

Shin later won a News Emmy for his reports. By phone, he tells me that his investigation relied largely on anonymous conversations with several officers who witnessed the former team leader reclassifying the cases after her promotion. "The officers were appalled at what they perceived as a clear cover-up," says Shin. On the video of his reports, I watch Shin stand first with Chief Lansdowne, then with executive assistant chief William Maheu, and ask them what the department planned to do about the incident. Maheu attempts to downplay its significance, arguing that most of the cases had already been finished and needed only official sign-offs. But Lansdowne acknowledges that improprieties may have occurred and promises to conduct an investigation whose results he will announce at a later news conference. "The news conference never happened," Shin tells me.

On May 26, 2005, Mark Sullivan went to the police chief's office for the start of his administrative hearing. The hearing officer was deputy city manager Bruce Herring. (Herring was later named in the Kroll report as having breached fiduciary responsibilities in the city's recent pension crisis.) "None of the discovery information requested by my counsel was produced, including my own promotional file," Sullivan wrote Sanders. "Chief William Lansdowne was the first witness to be interviewed."

The sergeant and his attorney learned the following. First, a committee of the police department's assistant chiefs, not the police chief's promotions board, made the choices during the July 6, 2004 selection process. Second, all the assistant chiefs that day had pictures of each candidate for promotion (there were 63). Third, the selection began with each assistant chief choosing his top five candidates, winnowing the group down from there. Fourth, the assistant chiefs made their selections on minimal merit-based information about the candidates.

In both the promotions to sergeant and to lieutenant, three white males, one Hispanic male, and one black female were selected. Lansdowne denied that any formal or informal "promotional formula" was used. "The fact that two dissimilar candidate pools could yield the same promotional results regarding race and gender," says Sullivan, "was just coincidental, according to the chief of police."

Sullivan tells me he found Lansdowne to be quite forthcoming in testimony. "We were getting all kinds of good info, especially about the use of the pictures," he says.

In his letter to Mayor Sanders, Sullivan wrote that later in the hearing, "shortly after these revelations, the deputy city attorney representing the chief of police advised my counsel that the chief had an important luncheon engagement and would need a break. As a courtesy to the chief, my counsel agreed to reschedule the remaining portions of the chief's interview at a later date. That date has never occurred. The chief's office advised my counsel we would have to take the chief of police to court to finish the interview."

Sullivan says he didn't know ahead of the hearing that Lansdowne would need the so-called break. I ask him if shortly before the deputy city attorney announced the break, the chief's lawyers were whispering in his ear. "They were," he tells me, "but we had no idea what it was all about. We did notice that the attorneys were grimacing a lot at what he was telling us."

Mayor Sanders did not respond to Sullivan's letter. Eventually, the sergeant did go to court seeking a continuation of the hearing. In January of this year, Judge Judith Hayes ordered the police chief to finish the hearing and to release Sullivan's promotional file. But "in an apparent act of defiance to the judge's order," Sullivan claims, "only half of my promotional file has been delivered."

On June 15, Sullivan completed his administrative appeal hearing in the police chief's office. This time, assistant chief Howard Kendall, who was not an assistant chief at the time the promotions were made, was the hearing officer. Less than a month later, on July 10, Kendall responded with a denial of the appeal. In explaining his decision, he told Sullivan that "the identity of the person or group making promotional decisions has nothing to do with whether you were denied promotion on grounds other than merit." But Kendall did not address how little merit-based information the chiefs used when they made promotional choices.

Sullivan argues that the role of the assistant chiefs and their selection method violated the settlement terms of the Police Officers Association lawsuit. On July 23, he wrote back to Kendall. In a point-by-point recitation, he painted a picture of the assistant chiefs committee usurping the primary role of the police promotions board. The way the process ought to work, according to the city's appointing authority manual, is that the promotions board is to recommend officers for promotion. The board is to decide on the basis of merit determined by written tests, oral interviews, and work history and evaluations. It can take community and department needs into consideration too.

According to San Diego Police Officers Association president Bill Nemec, "Nothing forbids the chief from accepting the advice of others in making his determination." Nevertheless, argued Sullivan in the letter to Kendall, "the addition of the chiefs executive committee [between promotions board and chief] seriously compromised the integrity of the promotional process." He later tells me that their role in the 2004 selections was not to advise the chief. "They made the selections for the chief," he says.

Sullivan contended in his response to Kendall that as a result of leaving out the promotions board, which takes promotional ratings into consideration, "no merit-based promotional information was ever used by the [chiefs executive committee] during the selection process." Prior to his second hearing, Sullivan thought that the assistant chiefs had at least used candidates' promotional ratings in making their choices. I listen to a recording of the June 15 appeal hearing. Sullivan is questioning Patrick Drummy, the police department's director of administrative services and human resources. Drummy tells a different story. The day the chiefs executive committee decided the promotions, Drummy states, "The [committee] doesn't know what the ratings are."

This made it more likely that the committee would use "pictures of candidates in a discriminatory manner," argued Sullivan in his letter to Kendall. The appointing authority manual, he said, does not authorize such use of pictures. "One candidate's picture showed him with the long hair and scruffy beard he wore as an undercover cop," Sullivan tells me. The picture he shows me does have the appearance of a scraggly hippie.

In the letter to assistant chief Kendall, Sullivan speculates that "the chiefs executive committee selections matched a promotional formula." The successful 1996 California ballot proposition 209 forbids discriminating against persons in public employment on the basis of race. I call Scott Fulkerson, executive director of the police Citizens' Review Board. Fulkerson says he does not recognize the term "promotional formula" but assures me that currently "affirmative action is being practiced in no city department."

"Why then," asks Sullivan, "did the chiefs use the pictures, which have no legitimate role in the promotion-selection process? The way it was explained to me was that Chief Lansdowne, a newcomer to the department, needed the pictures to get acquainted with the officers. But why did every assistant chief and the lawyer need to have the pictures too?"

In the end, wrote Sullivan, "the chiefs executive committee selected a less qualified candidate than myself." That candidate, according to Sullivan, is the officer responsible for what has become well known on the police-department grapevine as "Late-Case-Gate." Sullivan does not know her departmental rating, but he claims she was less qualified by virtue of experience, not to mention her performance in the late-case scandal. Assistant chief Kendall, however, wrote in his appeal-denial letter that "there is no evidence that the Chief of Police knew the information [about the late-case debacle] at the time he made the promotional decisions."

Sullivan's letter to Kendall brings up additional points relating to retaliation. Given his participation in the San Diego Police Officers Association lawsuit, Sullivan wrote, the chiefs were negligent in failing "to report and investigate [my] allegations of discrimination and retaliation." He added that "the department has a history of retaliating against officers who file discrimination complaints."

The reference is to at least four personnel retaliation lawsuits against the department in the last several years. In one case that stands out, a Latino undercover narcotics detective was awarded a $1.3 million court judgment for police discrimination and retaliatory practices. The retaliation took place, according to attorney Joel Golden, after his client complained to the Equal Employment Opportunity Commission that the department discriminated against him when he sought promotion to sergeant. The officer had been on special assignment in Del Mar with the federal Drug Enforcement Administration when his superiors transferred him to an area near his home in central San Diego. Given the sensitivity of his work, that decision put him at great risk, the attorney argued.

Golden tells me that the original promotion request had been denied for racial reasons. The department, he says, was overworking the officer because he was one of the few Latino detectives it had to do effective drug-enforcement work. His superiors did not want to see him promoted into a different assignment.

The City appealed the jury's verdict and managed to have the discrimination conviction overturned. But the appeals court upheld a $750,000 retaliation judgment. The City was then charged court fees and interest on the amount. On June 27 of this year, it issued a $1,013,057 check to the officer and attorney Golden. But the City's liability may still not be over. This summer Golden and his client won a California Supreme Court reversal of appeal that says they're entitled to a retrial of the original promotional discrimination case. A preliminary court hearing in the matter was held two weeks ago.

I speak with Sergeant Carlos Medina about the racial problems the police department gets into when it promotes within the ranks. Medina is president of San Diego's chapter of the National Latino Peace Officers Association. "Chief Lansdowne's heart is in the right place," he tells me, "but his hands are tied. On the one hand, the department's mission and goals statement gives lip service to diversity. Mayor Sanders responded positively when I wrote him recently promoting diversity. But when I wrote similar concerns to the assistant chiefs, they said, 'We can't talk about diversity.' "

Like Mark Sullivan, Medina thinks that the police department does promote according to a rigid racial formula. But he thinks the formula works to reduce the number of minority officers needed. When I recite "three white males, one Hispanic male, and one black female," he replies, "Yes, that sounds like one of the familiar ones." Medina believes that "promotions need to be made according to the requirements of community policing. We're getting dangerously close to the kind of paramilitary department people associate with Los Angeles," he says, "rather than the community policing we used to excel at." The promotions should serve "cultural competencies." Policing needs of Latino neighborhoods are not identical to those of Asian, black, or Anglo neighborhoods. So when it comes time to promote, the department should be thinking of what the communities need. "There are some assignments that are definitely handled better by female officers," says Medina. "And just because an officer has a Latino name is no guarantee that he is culturally competent in a Latino community. A black or Anglo officer might be more suited."

In the meantime, on September 25, Sergeant Sullivan received a letter from Jill Olen, the city's deputy chief operating officer for public safety/homeland security. In the letter, Olen promises that Sullivan soon will receive a final Article 41 review, not by the mayor, but by Ted Martinez Jr., head of the mayor's Neighborhood and Customer Services office. Olen alerts Sullivan, however, that in the new hearing "there will not be any testimony or review of new evidence."

Not one to go quietly, Sullivan is pursuing a concurrent case with the San Diego Civil Service Commission. And he has written a complaint to Olen about her restrictions on testimony and new evidence when his next hearing comes. On June 15, hearing officer Kendall did not allow "any testimony or evidence related to the Central Division late case investigation," says Sullivan. On top of that, Kendall did not reveal a conflict of interest he had in his role. Sullivan says he recently discovered that Kendall had been the late-case officer's supervising captain during a significant portion of the time she failed to manage her caseload. "The commanding officer bears responsibility for the failure of his subordinates to properly manage their caseloads. In addition, during this same period, the [late case] lieutenant I intended to question was at one time a direct report to Captain Kendall.... As a consequence, Captain Kendall would have submitted a recommendation for her promotion. I assume that recommendation was positive."