State Ex Rel. Dunn v. Elliott

The approval of the manner in which the examination, challenged on this appeal, was conducted will defeat the primary object of civil service: the elimination of favoritism and political considerations in the selection of the employees of municipal corporations.

Admittedly, the oral examination was not publicly conducted as required by the city charter. For that reason alone, the whole examination was a nullity.

In the second place, the civil service commission violated the spirit of its own rule when it changed the grades on the examination papers after the identity of the participants was known.

In the third place, the changing of the grades was in contravention of the rule laid down in State ex rel. Hearty v.Mullin, 198 Wn. 99, 87 P.2d 280. It was there said:

"The purpose of the rule, as well as the principle underlying civil service, is to make free and open the opportunity to enter the public service in accordance with certain tests as to qualification, and not to leave anything ``to whim or caprice of the appointive power.' The commission, in this case, in regrading the papers after they had approved, as the court found, the first grading and the identification of the applicants had become known, violated the provisions of the rule, above mentioned, as well as the principle of civil service. If the commission can do legally what it did in this case, civil service examinations would be subject to the whim or caprice of the commission.

"Attention is called to that provision in the rule which authorizes any competitor to inspect his papers and make written protest, and with reference to which the commission shall consider the protest and make any proper corrections, even though they apply to other competitors and might result in a higher or a lower average standing. Whatever the meaning of that rule may be, it cannot be given the construction which would support the action of the commission in this case. To do so, would, in effect, destroy the secrecy of the examination as to the identity of the applicants and result in a grading after the identity had become known."

It seems to me that, upon the uncontroverted facts, the civil service commission changed the standard by which the papers were graded after the identity of the participants was known. To begin with, the commission threw out the two following questions because they were "controversially worded":

"``V, however, did escape and found an agreeable and welcome hideout in a house owned by T's brother, rented and occupied by W. Later on V was recaptured and W was arrested for accommodating him. It would be correct to say that W was an accessory and not a principal.'

"``The failure of a father to supply necessary food and clothing to a minor child is a gross misdemeanor.'"

Then they held that its examiners scored the following questions as true when they should have scored them false:

"``Arrests for misdemeanors cannot be made at night, except when the offense is committed in the presence of the arresting officer.' . . .

"``M offers H, a witness in a court case, $10 to influence him in his testimony. M is guilty of bribery.'"

Besides that, the commission held that the following questions "were improperly scored" by its examiners:

"``Evidence of conditions and surroundings from which the existence of a principal fact may reasonably be inferred is: 1 —prima facie evidence; 2 — circumstantial evidence; 3 — parol evidence; 4 — oral evidence.' . . .

"``W, who was on bad terms with F, threw some concentrated acid in the face of F. As a result, F will lose his sight. W could be prosecuted for: 1 — no crime; 2 — mayhem; 3 — assault; 4 — assault and battery; 5 — attempted murder.' . . .

"``A, who pretends to be a friend of B, breaks into and enters the dwelling house of B in the night time with the intention of setting fire to it. A is guilty of the crime of: 1 — arson; 2 — robbery; 3 — burglary; 4 — false pretenses.'"

Effectually, the commission sat as a court of appeal to review the rulings of its own board of examiners — and that after the identity of the participants in the examination was known.

I think the questions all should have been thrown out as controversial. The examination itself and the method in which it was conducted was so palpably unfair that it should be set aside and a new examination ordered.

I dissent.

MAIN, J., concurs with BLAKE, C.J.