Bays v. Police Civil Service Com'n, City of Charleston

• Decision Date: 18 December 1987
• Docket Number: No. 17569,17569
• Citation: 364 S.E.2d 547,178 W.Va. 756
• Parties: Donald G. BAYS and Monon E. Taylor v. The POLICE CIVIL SERVICE COMMISSION, CITY OF CHARLESTON, West Virginia.
• Court: West Virginia Supreme Court

Page 547

364 S.E.2d 547

178 W.Va. 756

Donald G. BAYS and Monon E. Taylor v. The POLICE CIVIL SERVICE COMMISSION, CITY OF CHARLESTON West Virginia.

No. 17569.

Supreme Court of Appeals of West Virginia.

Dec. 18, 1987.

Dissenting Opinion Jan. 25, 1988.

Syllabus by the Court

1. "A police civil service commission created by Article 5A of Chapter 8 of Code, 1931, as amended [the predecessor to W.Va.Code, 8-14-6 to -23, currently in effect], has only such jurisdiction and powers as are conferred upon it by statute. It has no inherent jurisdiction or powers." Syl. pt. 3, State ex rel. City of Huntington v. Lombardo, 149 W.Va. 671, 143 S.E.2d 535 (1965).

2. The Police Civil Service Act, in particular, W.Va.Code, 8-14-17, as amended, requires that the promotions of individuals thereunder are to be based upon merit and fitness to be ascertained by competitive written examination and upon the superior qualifications of the individuals promoted, as shown by their previous service and experience. One of these test factors, in itself, is not an adequate determinant of the applicant's merit and fitness; therefore, it should not be considered to the exclusion of the others. Accordingly, regulations of a police civil service commission which conflict with the statute on this point are void.

3. "The judgment of a circuit court affirming a final order of a police civil service commission, upon appeal therefrom as provided by statute, will not be reversed by this Court unless the final order of the commission was against the clear preponderance of the evidence or was based upon a mistake of law." Syl. pt. 2, In re Appeal of Prezkop, 154 W.Va. 759, 179 S.E.2d 331 (1971).

Stanley M. Hostler, Robin Jean Davis, Charleston, for appellants.

F.I. Graff, Jr., Charleston, for appellees.

McHUGH, Justice:

This case is before this Court upon appeal from a final order of the Circuit Court of Kanawha County, West Virginia, affirming a final order of the appellee, the Police Civil Service Commission for the City of Charleston, West Virginia ("the PCSC"). The PCSC and the circuit court ruled that the appellants, Donald G. Bays and Monon E. Taylor, applicants for promotion from the rank of "patrolman" to the rank of corporal with the Police Department of the City of Charleston, West Virginia, were precluded from further consideration for such promotion as a result of receiving scores on the written examination within the bottom ten percent of those applicants taking the examination. Based upon our review of the petition, the briefs and argument of counsel and the record, we reverse.

I

The material facts in this case are uncontroverted. ¹ In November, 1985, the Mayor of the City of Charleston notified the PCSC that vacancies existed in the police department in the rank of corporal and requested that the PCSC establish an eligibility list to fill such vacancies. On November 15, 1985, the PCSC posted and published notice that these vacancies existed and that the same would be filled by promotion from a list of eligibles established by, inter alia, the applicants' achieving a passing score on a competitive written examination to be held on December 11, 1985, at a designated time and place. The notice stated that the PCSC would, "in its discretion, set the level of achievement necessary to qualify for promotion."

On December 9, 1985, two days before the competitive written examination, the PCSC, at the request of some of the applicants for promotion to the rank of corporal, set and orally gave notice of the passing ratio. Specifically, the PCSC determined that it would apply a 90/10 percent pass rate. That is, the top ninety percent of those taking the examination would receive passing scores and the bottom ten percent would fail.

The PCSC graded the examination and directed that all those who received a score in the bottom ten percent "cease from further participation in the promotional examination process." Seventy-three police patrolmen took the written examination for promotion to the rank of corporal. The written examination contained 145 questions. Those applicants finishing in the top ninety percent of the applicants achieved a score on the written examination of 75 correct answers or more. Those applicants achieving a score of less than 75 correct answers fell in the bottom ten percent. The appellants' scores, 71 by Mr. Bays and 73 by Mr. Taylor, fell in the bottom ten percent, and the appellants were accordingly not considered further for promotion to the rank of corporal.

Those applicants finishing the written examination in the top ninety percent of the applicants and, thus, passing the written examination, were required thereafter to pass a medical examination and were evaluated further, based upon their performance appraisal and length of service with the police department.

If appellant Bays had been given credit for his thirteen years of service and his performance appraisal had been considered, his cumulative score would have resulted in his being certified as the fifteenth person from the top of the eligibility list and his promotion, in December, 1985, to the rank of corporal. Appellant Bays would have received an increase in his annual salary in the amount of $882 had he been promoted to the rank of corporal. Similarly, if appellant Taylor had been given credit for his sixteen years of service and his performance appraisal had been considered, his cumulative score would have resulted in his being certified as number six on the eligibility list and his promotion, in December, 1985, to the rank of corporal. Appellant Taylor would have received an increase in his annual salary of approximately $900 had he been promoted to the rank of corporal. Both of the appellants met all of the other qualifications necessary to be promoted to the rank of corporal.

In December, 1985, the Mayor promoted the top thirty-two persons on the eligibility list to the rank of corporal.

After being refused further consideration for promotion, due to their scores on the written examination, the appellants timely requested the PCSC to review its decision not to certify the appellants as eligible for the promotion in question. ² The appellants' primary contention before the PCSC was that the Police Civil Service Act, specifically, W.Va.Code, 8-14-17 [1969, 1986], requires promotions to be based not only upon a consideration of the results of a written examination but also upon the applicants' previous service and experience. ³ The appellants also contended that the PCSC's determination of the 90/10 percent-of-applicants passing ratio on the written examination was unlawful, as such determination was made only two days before the written examination, in alleged conflict with W.Va.Code, 8-14-13 [1969], which requires notice of certain matters to be given at least one week prior to the written examination, and in alleged conflict with W.Va.Code, 8-14-11 [1981], which requires written notice to the appointing officer of any modifications to rules and regulations of the PCSC, "in due season[.]" The PCSC's final order, in March, 1986, was adverse to the appellants. They next brought the matter before the Circuit Court of Kanawha County, West Virginia. ⁴ The circuit court, in October, 1986, affirmed the PCSC's decision. The circuit court ruled that the PCSC had the authority to preclude from further consideration all applicants for promotion who fail to achieve a passing score on the written examination. The circuit court also ruled that the Police Civil Service Act and the PCSC's regulations do not require (or prohibit) the PCSC from establishing a passing score at any particular time in advance of administering the written examination.

II

The appellants raise before this Court the same issues raised before the PCSC and the circuit court. That is, their principal assignment of error is that the PCSC's own regulations, as well as the Police Civil Service Act, require the PCSC to consider the service and experience of each applicant for promotion, in addition to considering the grade of each applicant on the written examination. Stated another way, the appellants argue that the PCSC lacks the authority to establish a passing score for written examinations for promotions, so that an applicant who fails the written examination is precluded from further consideration for promotion. Due to our agreement with the appellants that the PCSC lacks the statutory authority to establish such a passing score, it is not necessary to address the other assignments of error relating to the procedures utilized in this case to establish and give notice of the passing ratio or score for the written examination administered as part of the process for promotions in this case.

The PCSC's regulations require an applicant for promotion to pass the written examination as a condition precedent to further evaluation for promotion. For example, PCSC Reg. § 10.02(a) provides in pertinent part: "Each applicant shall be required to achieve a passing score on such written examination." Another example is PCSC Reg. § 10.02(b), which provides in pertinent part: "The Commission shall direct that individuals failing the written examination cease to participate further in any evaluation processes." A third example is PCSC Reg. § 6.09(c): "Upon completion of the testing and evaluation procedures, candidates for promotion who have been qualified for promotion by achieving a passing result on each testing and evaluation procedure shall be ranked in order of merit, using the following formula: ..." ⁵ Thus, under these regulations, only those applicants who pass the written examination will have their performance appraisals and seniority credits weighted together with the written examination scores under PCSC Reg. § 10.07(b). ⁶

The question which must be decided, however, is whether these regulations of the PCSC conflict with the Police Civil Service Act, W.Va.Code, 8-14-6 to -23,...