Robert George Russell, Jr. v. City of Knoxville ( 2015 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
May 18, 2015 Session
ROBERT GEORGE RUSSELL, JR. v. CITY OF KNOXVILLE ET AL.
Appeal from the Chancery Court for Knox County
No. 186936-2 Daryl R. Fansler, Chancellor
No. E2014-01806-COA-R3-CV-FILED-SEPTEMBER 24, 2015
Robert George Russell, Jr., a Knoxville Fire Department captain, brought this action
challenging the decision of Fire Chief Stan Sharp to promote others to the position of
assistant fire chief. In 2013, Chief Sharp selected three fire officers to fill vacancies in
the position of assistant chief. Russell filed an employment grievance with the Civil
Service Merit Board (the CSMB or the Board), alleging that, in making his selections,
Chief Sharp violated the applicable rules and regulations when he used, among other
things, a mathematical formula that had not been approved by the Board. Russell also
asserted that Chief Sharp violated the rules by not considering his ranking, according to
the eligibility roster listing of the candidates eligible for promotion. The Board‟s
administrative hearing officer denied the grievance, and the trial court affirmed. We hold
that Chief Sharp did not violate the Board‟s rules and regulations and did not act
arbitrarily or capriciously in exercising his discretion to make promotions. We affirm the
trial court‟s judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Affirmed; Case Remanded
CHARLES D. SUSANO, JR., C.J., delivered the opinion of the Court, in which D. MICHAEL
SWINEY and THOMAS R. FRIERSON, II, JJ., joined.
Wendell K. Hall, Knoxville, Tennessee, for the appellant, Robert George Russell, Jr.
Alyson A. Eberting, Knoxville, Tennessee, for the appellees, City of Knoxville and City
of Knoxville Civil Service Merit Board.
1
OPINION
I.
In 2013, the fire department had three vacancies in the position of assistant fire
chief. In accordance with its rules and regulations, the Board provided Chief Sharp with
an applicant referral form and selection report, also referred to as the eligibility roster,
ranking the names of all the candidates who were qualified under the rules. Eleven fire
officers were on the list. Russell was ranked highest. Chief Sharp, in his affidavit,
addressed his methodology and evaluation in promoting candidates to the position of
assistant fire chief:
After receiving the Eligibility Register with the list of eleven
(11) people who were eligible to be promoted, I asked each
Assistant Chief and the Deputy Chief to recommend three
people from the list, ranking them 1, 2 or 3. A blank packet
of what was provided to each Chief is attached as Exhibit B
to this Affidavit.
If a candidate was ranked “1,” they received 3 points, if they
were ranked “2,” they received 2 points, and if they were
ranked “3,” they received 1 point. (No ranking meant the
candidate received 0 points). The points for each candidate
were added together to obtain the Rating Sheet Score, which
was then placed on a curve for a Rating Sheet % score.
I then calculated a Final Recommendation Score for each
candidate based on the Rating Sheet Score and the total
number of recommendations each candidate received.
In addition to receiving recommendations, Deputy Chief
Roger Byrd and I interviewed each applicant listed on the
Eligibility Register. Each applicant was asked the same ten
(10) questions. Each candidate had the possibility of
achieving a total possible score of 80 points for the interview.
The Final Recommendation Score and Final Interview Score
were averaged to compile a Final Score. The top four
candidate‟s scores are listed on Exhibit C to this Affidavit.
Mr. Russell ranked number 4.
2
In addition to the mathematical calculation, which was just
one tool I used in making my decision, I also considered my
own personal knowledge of the candidates, their personnel
files, disciplinary records, and their resumes.
I met with Civil Service Director Hatfield on more than one
occasion to discuss the promotion process and was advised
that, so long as I conducted the required structured interview,
my selection procedure after receiving the Eligibility Register
was at my discretion.
(Numbering and some references to exhibits in original omitted.) Russell was not among
the three candidates promoted.
As previously noted, Russell filed an employment grievance with the CSMB on
August 15, 2013, and this matter proceeded before the Board‟s administrative hearing
officer. Each side filed a motion for summary judgment. The administrative hearing
officer found and held in pertinent part as follows:
On or about November 25, 2013, the City filed a Motion to
Strike certain exhibits submitted by the Grievant in support of
his Motion for Summary Judgment. No response to the
Motion to Strike having been filed by the Grievant and the
same being well-taken, the Motion to Strike filed by the City
is GRANTED. . . .The following exhibits to the Grievant‟s
Motion for Summary Judgment are not relevant in
determining the foregoing stipulated issues for reasons
discussed at length hereinafter: Exhibit B (resume Robert
Russell), Exhibit G (deposition testimony of Chief Stanley K.
Sharp) Exhibit J (deposition testimony of Assistant Chief
Victor Lawson), Exhibit K (deposition testimony of Assistant
Chief Mark Morris) and Exhibit L (deposition testimony of
Assistant Chief Gary Scott Compton).
For the record, admission of the foregoing exhibits would not
have altered the finding[s] of fact and conclusions of law as
set forth hereinafter. Further, all section references as
hereinafter cited a[re] to the Knoxville Civil Service Merit
Board Rules and Regulations.
* * *
3
[I]t is undisputed that Chief Stan Sharp . . . did not consider
Mr. Russell‟s ranking on the Eligibility Register in deciding
not to promote him to Assistant Fire Chief in August of 2013.
Robert Russell was ranked number one on the 2013
Eligibility Register, but was passed over for promotion with
Chief Sharp selecting for promotion three other applicants
from the Eligibility Register with lower rankings.
As part of the promotional process, all applicants on the
Eligibility Register were interviewed and asked the same
questions by Chief Sharp and Deputy Chief Roger Byrd.
Chief Sharp provided the list of eligible applicants and their
resumes to his Assistant Chiefs and his Deputy Chief for
recommendations in determining who to promote. Chief
Sharp developed a mathematical formula he relied on in
scoring the recommendations and interviews for promotional
determination. Chief Sharp reviewed personnel files,
disciplinary records, and the recommendations of various
Assistant Chiefs and the Deputy Chief, in addition to using a
mathematical formula to determine who he believed were the
best applicants for promotion. Chief Sharp did not obtain the
approval of the [CSMB] for his mathematical formula.
The City in its Motion for Summary Judgment argues that
final promotional decisions are within the discretion of the
department head and that ranking does not create a
promotional preference. In his Motion for Summary
Judgment and supporting Statement of Material Facts the
Grievant does not dispute the City‟s position, but argues that
ranking is an objective criterion which cannot be eliminated
from the selection process because promotional decisions
under Knoxville Civil Service Rules are required to be based
on merit. Grievant argues that the removal of ranking creates
a subjective selection process for promotion as opposed to a
merit based process. Mr. Russell takes the position that Chief
Sharp cannot, without approval of the [CSMB],
independently implement a promotional selection procedure
which ignores Eligibility Register ranking and incorporates a
mathematical formula of his own creation based on the
4
interview and/or recommendation scores of other assistant
chiefs.
Mr. Russell is understandably disappointed and frustrated that
he was passed over for promotion after ranking first on the
Eligibility Register. However [CSMB] Rules and
Regulations do not support his legal posture that Eligibility
Register ranking is a required merit promotional factor; or,
that Chief Sharp‟s mathematical promotional formula
required Board approval. Section 1003 provides that:
“because selection matters are discretionary in nature,
successful test results and the meeting of all eligibility
requirements do not in any way guarantee the selection of an
applicant.” Section 1003 specifically states that “eligibility
for selection” and “actual selection” are separate and distinct
matters.
Section 1503 states unequivocally that “rank order on the
referral does not in any way guarantee that an individual will
be hired” and that “[r]anking on the referral only means that
all individuals above the individual selected are guaranteed an
interview, but not that such individuals have any preference
in the selection process.” Since ranking provides no basis for
promotional preference under the express provisions of the
[CSMB] Rules and Regulations, Chief Sharp‟s failure to
consider ranking in his mathematical formula does not violate
the same; nor, does his use of a mathematical formula,
without [CSMB] Approval, violate Knoxville Civil Service
Rules and Regulations.
Section 1503 expressly provides that “hiring decisions are at
the discretion of the Department Head.” As to the application
of ranking in the exercise of this discretion, Section 1503 only
requires the Department Head to interview any applicant
ranked higher on the Eligibility Register than an applicant
selected for promotion providing detailed justifications for
such selection. It is undisputed that Chief Sharp interviewed
all the applicants on the Eligibility Register, including the
Grievant; and, filed the requisite statements justifying his hire
of individuals ranked lower than the Grievant on the
Eligibility Register. [ ]Having met the interview requirements
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of 1503 in which ranking had no promotional bearing, Chief
Sharp . . . did not violate civil service rules and regulations by
utilizing a mathematical formula in exercising his
promotional prerogatives.
While Grievant correctly argues that promotions are to be
based on merit, the consideration of eligibility ranking
beyond the exam is not required under [CSMB] Rules and
Regulations. Section 1005 provides that “[p]romotions shall
be made by appointing officers on the basis of merit, within
rules prescribed by the civil service merit board.” Section
2102 does in fact state that “[i]n accordance with Section
1005 of the Charter, promotion shall be based on „merit‟ to be
ascertained so far as practical by competitive evaluation, as
set forth in the Board Rules and Regulations.” Despite
Grievant‟s assertions, however, these provisions do not
conflict with, change, alter or override the express provisions
of Sections 1003 and 1503 mandating that promotional
decisions are discretionary with the department head who is
not bound by eligibility ranking. [CSMB] Rules and
Regulations specifically do not require consideration of
ranking for promotion beyond the Eligibility Register and that
promotion decisions are discretionary with the department
head. Therefore, Chief Sharp‟s failure to take into
consideration Mr. Russell‟s ranking in making his
promotional determinations is not in violation of Knoxville
[CSMB] Rules and Regulations.
Since promotional decisions are discretionary under the
express provisions of Sections 1003 and 1503, Chief Sharp
was not required under Section 2102.3 of the Knoxville
[CSMB] Rules and Regulations to obtain Board approval of
his promotional discretionary mathematical formula as argued
by the Grievant. Section 2102.3 does provide that “[t]he
Executive Secretary/Director in consultation with the
Department Head, subject to the approval of the Board, shall
determine the method of selection and shall use one or more
of the selection procedures and the certification process when
filling a vacancy by promotion as described in these rules.”
However, Grievant‟s argument defining the “selection
procedure” referenced in Section 2102.3 to include Chief
6
Sharp‟s mathematical formula is not in keeping with the
express promotional requirements of the Knoxville [CSMB]
Rules and Regulations; specifically, but without limitation
Section 2109 of the Knoxville [CSMB] Rules and
Regulations setting forth the PROMOTIONAL PLAN FOR
THE KNOXVILLE FIRE DEPARTMENT.
Chief Sharp did not select the applicant pool of qualified
individuals eligible for promotion, but merely promoted from
within the Eligibility Register as contemplated and required
by the promotional process of Section 2109. Section 2109.3
specifically enumerates the selection procedure components
of the selection process which result in the establishment of
an Eligibility Register for promotional vacancies from which
the department head makes promotional hires. This eligibility
selection procedure requires an oral interview and written
examination which [h]as occurred in the present case.
Once the Eligibility Register is established, then the
promotional decision from the Eligibility Register is a matter
of discretion by the department head under Sections 1003 and
[1503]. It is not necessary to rely on Affidavit testimony or
opinion [of] Vicki Hatfield as Executive Director of the Civil
Service Board in making this determination. Grievant‟s
arguments that the term “selection procedure” in Section
2102.3 requires consideration of ranking and [CSMB]
approval of Chief Sharp‟s mathematical formula in the
exercise of his discretion to promote from the Eligibility
Register, are directly contrary to the express provisions and
overall statutory scheme of the [CSMB] Rules and
Regulations; and, therefore, cannot be supported as a matter
of law. The express language of the Sections 1003 and
[1503] of the [CSMB] Rules and regulations unambiguously
provide that successful test results and the meeting of all
eligibility requirements do not in any way guarantee the
selection of an applicant and that hiring decisions are within
the discretion of the department head.
. . . [T]here being no factual or legal dispute between the
parties that the Grievant‟s number one ranking on the
Eligibility Register, while guaranteeing him an interview, did
7
not guarantee him promotion under the [CSMB] Rules and
Regulations, the City‟s Motion for Summary Judgment is
GRANTED.
Chief Stan Sharp‟s decision not to promote the Grievant to
Assistant Fire Chief in August 2013 did not violate Knoxville
[CSMB] Rules and Regulations; nor, did his discretionary
reliance on his promotional formula violate or require
[CSMB] approval. The consideration of rank beyond the
Eligibility Register is not required by the [CSMB] Rules and
Regulations; and, promotion from the Eligibility Register is at
the discretion of the Department Head. The employment
grievance of Mr. Russell appealing his lack of promotion
together with his Motion for Summary Judgment are
DENIED.
(Capitalization in original.)
Russell appealed this decision to the trial court, which affirmed. Russell timely
filed a notice of appeal to this Court.
II.
Russell raises the following issues, as quoted from his brief:
1. Whether the Chancellor erred by affirming the hearing
officer‟s holding that the Chief of the City of Knoxville Fire
Department did not violate Civil Service Merit Board rules
and regulations by not obtaining the approval of the Civil
Service Merit Board for the formula he used for promotions?
2. Whether the Chancellor erred by affirming the hearing
officer‟s holding that the Chief . . . did not violate Civil
Service Merit Board Rules and Regulations by not
considering Robert Russell‟s ranking on the eligibility
register as a factor for promotion?
3. Whether the Chancellor erred by holding that the
depositions conducted in [Russell‟s] grievance were
irrelevant and inadmissible?
8
III.
“Judicial review of decisions by local government civil service boards that affect
the employment of civil service employees is governed by the Uniform Administrative
Procedures Act [UAPA]. Tenn. Code Ann. § 27–9–114(a)(1).” Clarke v. Metro. Gov’t
of Nashville & Davidson Cnty., No. M2011-02607-COA-R3-CV, 2012 WL 6634344, at
*6 (Tenn. Ct. App. M.S., filed Dec. 18, 2012); Davis v. Shelby Cnty. Sheriff’s Dep’t, 278
S.W.3d 256, 263 (Tenn. 2009). The UAPA, at Tenn. Code Ann. § 4-5-322 (2015),
provides the following standard of review:
(h) The court may affirm the decision of the agency or
remand the case for further proceedings. The court may
reverse or modify the decision if the rights of the petitioner
have been prejudiced because the administrative findings,
inferences, conclusions or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Arbitrary or capricious or characterized by abuse of
discretion or clearly unwarranted exercise of discretion; or
(5)(A) Unsupported by evidence that is both substantial and
material in the light of the entire record.
(B) In determining the substantiality of evidence, the court
shall take into account whatever in the record fairly detracts
from its weight, but the court shall not substitute its judgment
for that of the agency as to the weight of the evidence on
questions of fact.
(i) No agency decision pursuant to a hearing in a contested
case shall be reversed, remanded or modified by the
reviewing court unless for errors that affect the merits of such
decision.
9
Tenn. Code Ann. § 4-5-322(h)-(i). The scope of review prescribed above is the same for
trial and appellate courts. Davis, 278 S.W.3d at 264; City of Memphis v. Civ. Serv.
Comm’n of City of Memphis, 216 S.W.3d 311, 316 (Tenn. 2007).
Russell styled his initial pleading in the trial court as a “writ of certiorari” and
states in his brief that the standard of review is the one applicable to a petition for a
common law writ of certiorari.1 Contrary to Russell‟s argument, the Supreme Court has
made it perfectly clear that the applicable standard of review in cases such as this one is
the UAPA standard. Davis, 278 S.W.3d at 262-63; City of Memphis, 216 S.W.3d at 315-
16. Regarding the UAPA standard, the High Court has observed as follows:
the Court of Appeals [has] confirmed the limited nature of
review under the Uniform Administrative Procedures Act.
That court observed that only those agency decisions not
supported by substantial and material evidence qualified as
arbitrary and capricious but determined that even those
decisions with adequate evidentiary support might still be
arbitrary and capricious if caused by a clear error in
judgment. Our Court of Appeals warned against a
mechanical application of the standard of review under
subsections (4) or (5):
In its broadest sense, the standard requires the
court to determine whether the administrative
agency has made a clear error in judgment. An
arbitrary [or capricious] decision is one that is
not based on any course of reasoning or
exercise of judgment, or one that disregards the
1
See Heyne v. Metro. Nashville Bd. of Pub. Ed., 380 S.W.3d 715, 728 (Tenn. 2012), in
which the Supreme Court noted that “[a] common-law writ of certiorari is an extraordinary
judicial remedy . . . [t]he scope of the judicial review available through a common-law writ is
quite limited.” The High Court further stated:
The judicial review available under a common-law writ of
certiorari is limited to determining whether the entity whose
decision is being reviewed (1) exceeded its jurisdiction, (2)
followed an unlawful procedure, (3) acted illegally, arbitrarily, or
fraudulently, or (4) acted without material evidence to support its
decision.
Heyne, 380 S.W.3d at 729.
10
facts or circumstances of the case without some
basis that would lead a reasonable person to
reach the same conclusion.
Likewise, a reviewing court should not apply
Tenn. Code Ann. § 4–25–322(h)(5)‟s
“substantial and material evidence” test
mechanically. Instead, the court should review
the record carefully to determine whether the
administrative agency‟s decision is supported
by “such relevant evidence as a rational mind
might accept to support a rational conclusion.”
. . . The evidence will be sufficient if it
furnishes a reasonably sound factual basis for
the decision being reviewed.
By virtue of these guidelines, our review is confined to
whether the decision of the Commission qualifies as either
arbitrary or capricious or, in the alternative, has insufficient
support in the evidence.
City of Memphis, 216 S.W.3d at 316-17 (quoting Jackson Mobilphone Co. v. Tenn.
Pub. Serv. Comm’n, 876 S.W.2d 106, 110-11 (Tenn. Ct. App. 1993)).
IV.
As already noted, Russell and the City of Knoxville both moved for summary
judgment. Neither side argues that there is a genuine issue of material fact. The issues
presented revolve around the construction of the rules and regulations of the CSMB.
“When [an] employee is governed by a civil service system, the civil service system
governs all aspects of employment, including terms of employment, promotion,
discipline and termination.” Stamson v. Lillard, 316 S.W.3d 611, 615 (Tenn. Ct. App.
2009). In Morristown Firefighters Ass’n v. City of Morristown, No. E2000-01942-
COA-R3-CV, 2001 WL 274114, at *4 (Tenn. Ct. App. E.S., filed Mar. 20, 2001), we
stated as follows regarding the applicable rules of construction:
This appeal involves the interpretation of the Civil Service
Act and the Civil Service Commission Rules. Our Supreme
Court in Gleaves v. Checker Cab Transit Corp., Inc., 15
S.W.3d 799, 802-803 (Tenn. 2000), summarized our role
when the issue involves statutory construction:
11
“Construction of a statute is a question of law
which we review de novo with no presumption
of correctness.” Myint v. Allstate Ins. Co., 970
S.W.2d 920, 924 (Tenn. 1998). . . . A basic rule
of statutory construction is to ascertain and give
effect to the intention and purpose of the
legislature. Carson Creek Vacation Resorts,
Inc. v. State Dep’t. of Revenue, 865 S.W.2d 1,
2 (Tenn. 1993). In determining legislative
intent and purpose, a court must not “unduly
restrict[ ] or expand[ ] a statute‟s coverage
beyond its intended scope.” Worely v. Weigels,
Inc., 919 S.W.2d 589, 593 (Tenn. 1995). . . .
Rather, a court ascertains a statute‟s purpose
from the plain and ordinary meaning of its
language, see Westland West Community
Ass’n v. Knox County, 948 S.W.2d 281, 283
(Tenn. 1997), “without forced or subtle
construction that would limit or extend the
meaning of the language.” Carson Creek
Vacation Resorts, Inc., 865 S.W.2d at 2.
Morristown Firefighters Ass’n, 2001 WL 274114, at *4.
Chief Sharp does not dispute that he did not factor in Russell‟s ranking on the
eligibility roster in making his promotion decisions, nor that he did not obtain the Board‟s
approval of the formula used in his decision-making process. Before the CSMB hearing
officer, the parties stipulated the issues to be determined: whether Chief Sharp violated
the applicable rules and regulations by (1) “not considering Robert Russell‟s ranking on
the Eligibility Register as a factor in his decision-making process as to whom to promote
to Assistant Chief”; and (2) “not obtaining the approval of the [CSMB] for the „formula‟
he used during his decision-making process for the 2013 Assistant Chief promotions.”
The question is whether these undisputed actions run afoul of the CSMB rules. The
hearing officer and the trial court correctly observed that nothing in the evidence
proffered by Russell, including the deposition testimony of Chief Sharp and his assistant
chiefs, and Russell‟s resume, had any bearing or relevance to the issues as stipulated by
the parties. Under these circumstances, we agree with the trial court‟s ruling affirming
the hearing officer‟s decision to exclude the deposition testimony proffered by Russell
and his resume. That material is simply not relevant to the issues stipulated by the
parties.
12
The pertinent CSMB rules and regulations provide as follows:
SECTION 1001. ESTABLISHMENT AND
MAINTENANCE OF ELIGIBILITY REGISTER
An eligibility register shall be established by the Board for
each classification after each examination given for the
classification. . . .
* * *
SECTION 1003. PLACEMENT ON ELIGIBILITY
REGISTER
After each examination for a particular classification, a new
eligibility register shall be established for that classification
placing the names of all persons eligible in the order of the
grade made on the selection procedure. However, because
selection matters are discretionary in nature, successful test
results and the meeting of all eligibility requirements do not
in any way guarantee the selection of an applicant.
“Eligibility for selection” and “actual selection” are
separate and distinct matters.
* * *
SECTION 1501. REQUEST FOR APPLICATIONS TO
BE FORWARDED
Whenever a vacancy in the classified service is to be filled,
the Department Head shall submit a requisition to the Finance
Department. [ ] Upon receipt by the Civil Service Department
of a properly executed requisition, the classification shall be
posted . . . The referral of applications shall not be made until
the posting period has expired, and the applicants have had
the opportunity to be processed through the selection
procedure.
* * *
13
SECTION 1503. JUSTIFICATION FOR SELECTION
All applicants ranking higher on the referral than the
applicant selected must be interviewed by the hiring
authority. Because hiring decisions are at the discretion of
the Department Head, rank order on the referral does not in
any way guarantee that an individual will be hired. Ranking
on the referral only means that all individuals above the
individual selected are guaranteed an interview, but not that
such individuals have any preference in the selection process.
If there are any applicants above the applicant selected,
detailed justifications for selection of the applicant selected
must be given[.]
* * *
SECTION 2101. PROMOTIONS AND
OPPORTUNITIES
It is the policy of the City, in accordance with the Affirmative
Action Program, to provide promotional opportunities,
whenever possible, to qualified employees. . . .
SECTION 2102. PROMOTION POLICY
In accordance with Section 1005 of the Charter, promotion
shall be based on “merit” to be ascertained so far as
practical by competitive evaluation, as set forth in the Board
Rules and Regulations. . . . Furthermore, service alone in a
position is not sufficient to achieve promotion to that
position. . . .
Section 2102.1. Consideration of Promotional Applicants
Vacancies, in positions above the lowest rank in any
classification in the civil service, shall be filled, as far as
possible, by the promotion of employees with civil service
status. With a view toward the selection of the best available
applicant for each position, recruitment may also be made
14
from outside of City employees. When the eligibility register
is prepared for referral to the department, said register shall
be expanded if and as necessary to include the five highest
scorers on the civil service examination. If expanded to
include entry-level applicants, the hiring authority must still
interview and give consideration to those with promotional
preference before interviewing and considering the entry-
level applicants.
* * *
Section 2102.3. Selection Procedure
The Executive Secretary/Director in consultation with the
Department Head, subject to the approval of the Board, shall
determine the method of selection, and shall use one or more
of the selection procedures and the certification process when
filling a vacancy by promotion as described in these rules.
(Emphasis added; bold font, underlining, and capitalization in original.)
Construing the CSMB rules by examining their plain language and ordinary
meaning, and reading them in context, they support the hearing officer‟s determination
that a candidate for promotion on the eligibility roster is entitled only to an interview and
consideration for the job, not a preference due to ranking on the eligibility roster. Rule
1503 plainly notifies candidates that their “[r]anking on the referral only means that all
individuals above the individual selected are guaranteed an interview, but not that such
individuals have any preference in the selection process.” Rule 1503 further provides
that “[b]ecause hiring decisions are at the discretion of the Department Head,” in this
case Chief Sharp, “rank order on the referral does not in any way guarantee that an
individual will be hired.” In fact, the rules specifically anticipate that applicants ranked
lower on the eligibility roster may be promoted, providing that “[i]f there are any
applicants above the applicant selected, detailed justifications for selection of the
applicant selected must be given.” Chief Sharp outlined in detail the procedure he used.
He provided the required detailed justifications in this case.
The CSMB hearing officer also correctly determined that the “selection
procedure” referred to in Rule 2102.3 applies to the procedure used in selecting
candidates who are qualified to go on the eligibility roster. Rule 1003 provides that
“ „[e]ligibility for selection‟ and „actual selection‟ are separate and distinct matters.”
Rule 1501 states that “[t]he referral of applications [i.e., the eligibility roster] shall not be
15
made until the posting period has expired, and the applicants have had the opportunity to
be processed through the selection procedure.” (Emphasis added.) The reasoning of the
hearing officer‟s order, quoted at length above, is sound.
Chief Sharp afforded Russell the process and consideration due under the CSMB
rules. He interviewed Russell along with the others on the eligibility roster. He made his
decision, exercising the discretion that the CSMB rules expressly afford him, by
considering the recommendations of his assistant chiefs, the job interviews, his own
personal knowledge of the candidates, their personnel files, disciplinary records, and
resumes. There is no indication that Chief Sharp treated Russell any differently from the
other candidates. There is also no proof suggesting that his promotion decisions were
based on anything other than the “merit” of the respective candidates. Chief Sharp‟s
actions were in accordance with the rules and were not taken arbitrarily or capriciously.
The record before us does not reflect an abuse by Chief Sharp of the discretion granted
him by the rules of the CSMB.
V.
The judgment of the trial court is affirmed. Costs on appeal are assessed to the
appellant, Robert George Russell, Jr. The case is remanded to the trial court for
collection of costs assessed below.
_____________________________________
CHARLES D. SUSANO, JR., CHIEF JUDGE
16