Bradley v. Bruce ( 1986 )

Darrell Hickman, Justice.

The issue on appeal concerns the promotion eligibility list for the North Little Rock police. Danny Bradley, a sergeant, made the highest score on the examination for lieutenant. However, he was not listed first because the Civil Service Commission passed a rule that seniority is a factor to be considered in determining eligibility for promotions, causing points for years of service to be added to the test score. Wilson Parker, who had more seniority but made a lesser grade on the test, was listed first and has intervened in this case.

In a declaratory judgment suit, the circuit court held Arkansas law did not prohibit the Civil Service Commission from using seniority as a criterion to determine ranking on eligibility lists. We find Arkansas law is to the contrary, requiring that the person with the highest test score be promoted.

Ark. Stat. Ann. § 19-1603 (Repl. 1980) provides for the Board of Civil Service to prescribe rules and regulations for police and fire departments. That statute states:

These rules shall provide . . .

9th. For promotion based upon open competitive examinations of efficiency, character and conduct, lists shall be created for each rank of service and promotions made therefrom as provided herein.

6th. . . . and for the promotion or advancement of the one standing highest on the eligibility list for that rank of service.

This statute covers two separate subjects relevant here: (1) applicants who are to be hired, and (2) employees who are to be promoted. Undoubtedly, the Commission has been reading the statute using the two separate categories of individuals interchangeably, because the practice has been to forward an eligibility list containing the three persons ranked highest (figuring in seniority) to the department head. That practice is wrong. The statutory language which speaks of certification of the three highest persons, refers to the appointment of applicants, not the promotion of employees. The very next sentence in the statute deals with promotions which we have already quoted. In Orrell v. City of Hot Springs, 265 Ark. 267, 578 S.W.2d 18 (1979), we made the same mistake the Commission did in our reference to Ark. Stat. Ann. §19-1603 (6), by assuming that the three persons ranked highest on the eligibility list were to be used by the department head for promotion purposes.

The statute specifically provides that promotion shall be made on the basis of the examination. There is no provision authorizing any other criterion, including seniority. Any other reading of the law would negate its purpose which is to promote those eligible who score highest on the test.

713 S.W.2d 451

The primary rule of statutory construction is to find the intention of the legislature. Perry County v. House, 196 Ark. 317, 117 S.W.2d 342 (1938). When the language is clear, we follow it. Walker v. Allred, 179 Ark. 1104, 20 S.W.2d 116 (1929). The statutory language is clear that promotions shall be based on the results of the examination and does not provide for seniority as a factor.

The judgment is reversed and the cause remanded for the trial court to enter an appropriate order.

Reversed and remanded.

Purtle, J., not participating.

Rehearing Denied April 28, 1986