State Ex Rel. Linder v. Troy Civil Service Commission ( 1963 )

Relator, Donald B. Linder, a police officer of the city of Troy, has joined two causes of action, one for prohibition, and one for mandamus.

The issue centers about the use, or lack of use, by the respondent Troy Civil Service Commission of certified or modified efficiency ratings in computing the final grades on a competitive promotional examination of applicants who are presently members of the city of Troy police department for promotion to chief of police.

Relator seeks to prohibit respondents, as members of the Troy Civil Service Commission from certifying to the mayor the name of Dean B. Matthews, another police officer of the city, who has by agreement been joined as a party herein, as being the one receiving the highest final grade in a competitive promotional examination for chief of police, and from placing on the eligibility list the names and grades of the applicants other than in the order in which they finished, including a certified or modified efficiency rating.

Relator seeks also a writ of mandamus directing the respondents to certify his own name as having received the highest grade on the examination and to place on the eligibility list the names of the applicants and the grades, including the certified or modified efficiency rating; or, in the alternative, a writ of mandamus directing that a completely new examination be held with a new written test after adequately and properly determining and using efficiency ratings.

The procedure to be followed by the city Civil Service Commission is prescribed by Section 143.24, Revised Code, which reads as follows:

"Vacancies in positions in the classified service shall be filled in so far as practicable by promotions. The Director of State Personnel shall provide in his rules for keeping a record of efficiency for each employee in the classified service, and for making promotions in the classified service on the basis of merit, to be ascertained as far as practicable by promotional examinations, by conduct and capacity in office, and by seniority in service, and shall provide that vacancies shall be filled by promotion in all cases where, in the judgment of the director, it is for the best interest of the service. All examinations for promotions shall be competitive. In promotional examinations, efficiency and seniority in service shall form a part of the maximum mark attainable in such examination. In all cases where vacancies are to be filled by promotion, the director shall certify to the appointing authority only the name of the person having the highest rating. The method of examination for promotions, the manner of giving notice thereof, and the rules governing the same shall be in general the same as those provided for original examinations, except as otherwise provided in Sections 143.01 to143.48, inclusive, of the Revised Code."

This section is made applicable to the city Civil Service Commission by Section 143.01 (E), Revised Code.

From the pleadings and agreed stipulation of facts we learn that, prior to the examination, the commission asked for and obtained from the city Service and Safety Director efficiency ratings on the applicants, all of whom are police officers of the city; that the commission had never formally adopted a rule for keeping a record of efficiency for the members in the classified services, including the police department, nor had any written records of efficiency been kept by the commission, the director, or the police department; that the efficiency ratings were calculated upon the basis of a maximum, or spread, of ten points, and that after the examination one-half the points on each member's efficiency rating was added to his grade on the examination and his seniority rating to produce his final grade; that subsequently the commission decided that inasmuch as efficiency ratings had not been kept for several years it would not be proper to use any efficiency rating in calculating the grades; that the efficiency ratings were therefore eliminated from the calculation of the grades and the resulting grades were announced; and that according to such announcement Dean Matthews received the highest grade, whereas when the efficiency ratings had previously been included, Linder had received the highest grade.

The commission and Matthews cite the case of Underwood v.City of Bellefontaine, 64 Ohio App. 205, as authority for their contention that the grades as announced without the efficiency ratings are the correct ones. In that case, the commission credited each applicant with the same efficiency rating in arriving at the final grade. There was no finding of any abuse of discretion on the part of the commission in so doing. It was held that despite the lack of a rule for the keeping and maintaining of efficiency records, the commission had, nevertheless, substantially complied with the statute, and had included efficiency ratings.

It is argued that there is no difference between giving each applicant the same efficiency rating and omitting the ratings altogether. It is easy to see that the practical results of the two methods would lead to the same result in the Underwoodcase. However, they lead to different results in the present case.

There are at least two reasons why this case is not analogous to the Underwood case: First the omission of the efficiency ratings altogether, which occurred here, radically changed the results, causing a different person to receive the highest grade; a second and vital reason is that the exclusion of efficiency ratings here is a violation of the statute.

Hence, the commission would exceed its authority in certifying the applicant with the highest grade arrived at without considering the efficiency ratings, and it will be prohibited from so doing.

But to issue a writ of mandamus at this time ordering the commission to certify the applicant with the highest grade, including the efficiency ratings as tentatively calculated but subsequently disregarded by the commission, would be an attempt to control the present discretion of the commission. This the court may not do.

However, it is the plain duty of the commission to follow the provision of the statute that "In promotional examinations, efficiency and seniority in service shall form a part of the maximum mark attainable in such examination." By what method and according to what formula this is done, and whether under the old or a new examination, are questions which lie within the sound discretion of the commission.

A writ of mandamus will issue simply to compel compliance with the statute.

The commission has filed a cross-petition for declaratory judgment, asking this court to declare the rights and duties of the commission in the premises, particularly in view of the absence of efficiency records and rules for keeping such records. This court has no original jurisdiction in actions for declaratory judgment. The cross-petition will, therefore, be dismissed.

Judgment accordingly.

KERNS and SHERER, JJ., concur.