Judge voids officer’s promotion, says process unfair

A Pulaski County judge has voided the 2012 promotion of a Little Rock police assistant chief, ruling against the department in a civil-service lawsuit.

Circuit Judge Mackie Pierce issued his opinion in the case last week, stating in a letter to attorneys in the lawsuit that Assistant Chief Wayne Bewley had an unfair advantage over other candidates for the job. Bewley, who had been a captain in the department, served as interim assistant chief for six months before then-Chief Stuart Thomas promoted him on June 28, 2012. Other job candidates did not receive the information and training Bewley did in his interim position, the judge wrote.

A formal court order vacating Bewley’s position is pending.

Bewley, a Little Rock police veteran of 26 years who commands the department’s field services bureau, is ineligible to re-apply for the job because he does not meet its current education requirements, which were revised after he took the position.

Patrice Smith, a former

Little Rock police captain, filed the lawsuit challenging Bewley’s promotion, contending that she had been unfairly passed over for the job. She retired from the department Oct. 1, while Pierce was still deliberating the case. According to her attorney, Robert Newcomb, she has re-applied at the rank of captain, as the law allows within 30 days, and plans to pursue the assistant chief job.

It will be Smith’s fourth time applying for the job. She joined the department in 1984 and unsuccessfully sought promotions to assistant chief in 2004, 2012 and this year.

Newcomb said Smith wants the position, in part, “to show that she’d been wronged.”

In the lawsuit, Smith contended that she wasn’t promoted to assistant chief because she is black and a woman. Those claims are not addressed in the judge’s letter. Deputy City Attorney Bill Mann said Smith agreed to have those claims heard at a jury trial “somewhere down the line.”

Smith wasn’t the only person who claimed discrimination in the promotion process that year. Captain Alice Fulk stated in her own lawsuit that she wasn’t selected to be assistant chief because she’s a woman and that a “glass ceiling” existed at the department.

Fulk was promoted to the position in May after the retirement of Assistant Chief Eric Higgins. She dropped her lawsuit soon afterward.

Smith’s lawsuit also sought to vacate an assistant chief position held by Hayward Finks, who was promoted along with Bewley in 2012. Finks is a 25-year veteran who commands the police department’s investigative and support bureau.

On Wednesday, it appeared his job was safe.

“I don’t think Captain Fink’s promotion could be voided as there was no proof he received an unfair advantage of having served in the position of acting Assistant Chief,” Pierce wrote Wednesday in an email to Mann. “The unfair advantage argument only applied to Bewley.”

City officials, including City Manager Bruce Moore, testified in court hearings that the assistant chief position had actually been eliminated because of budget constraints in 2011. They said that because there was no funding for the job, a 60day limit on interim appointments had not been violated.

Pierce agreed, but he said the appointment allowed Bewley to “gain training and knowledge that was not available to the other candidates.” And once the city reinstated the assistant chief position, Bewley used that information to land the job, the letter states.

“The examination process was neither open nor fair,” which violated Arkansas civil-service laws, Pierce wrote.

Mann said the city is waiting on a formal ruling before it decides whether to file an appeal.

“We kind of want to digest what the ruling leaves us and see what our options might be,” he said.

Mann said Bewley is aware of the ruling. He declined to discuss Bewley’s future with the department.

Police Chief Kenton Buckner said Wednesday that he wouldn’t comment on an active legal matter.

Also at issue in the suit was whether the city had kept adequate records of the 2012 promotion process. A three-person panel documented interviews through handwritten notes and uniform evaluation forms, but it did not record the process, as had been done on other occasions.

Smith and her attorney argued that caused her to be inaccurately evaluated for promotion, even after an appeal.

Pierce ruled in June that the city’s record-keeping was in compliance with state civil-service laws, which require interviews to be conducted “so that some reasonable means for judicial review is possible.”

He has since changed that ruling, writing in the letter of opinion last week: “It is cause for pause and concern that the City of Little Rock would make a knowing and conscious decision not to record this exam in question. This court cannot unquestionably accept the subjective judgment of the examiners as to the qualifications of the applicants.”

Both attorneys in the case sought clarification from Pierce. In an email Wednesday, provided by Mann, the judge told the attorneys he did “a poor job” in deciding the matter, and that he’d “completely forgot and overlooked” his previous ruling.

“I must state that I reviewed my notes and even listened to the tape of some of the testimony in making my contradictory ruling. After having given it more thought than I did at the close of Plaintiff ’s case, I came to the conclusion there was not a sufficient record for a meaningful judicial review,” Pierce wrote.