Carney v. CIVIL SERVICE COM'N

• Decision Date: 19 July 2001
• Docket Number: No. 00CA0144.,00CA0144.
• Citation: 30 P.3d 861
• Parties: Clifford CARNEY, Gregory Cook, and Donna Starr-Gimeno, Plaintiffs-Appellees and Cross-Appellants, and Kevin Smith, Plaintiff-Appellee, v. CIVIL SERVICE COMMISSION, City and County of Denver, Colorado; Kristopher Colley, Christopher Olson, Ellen Realth, Paula Sandoval, and Edward Sullivan, its Commissioners; Paul G. Torres, its Executive Director; Tom Sanchez, Chief of Police, City and County of Denver, Colorado; Fidel "Butch" Montoya, Jr., Manager of Safety, City and County of Denver, Colorado; Patrick Carver; Roger Barker; and Kenneth Chavez, Defendants-Appellants and Cross-Appellees.
• Court: Colorado Court of Appeals

30 P.3d 861

Clifford CARNEY, Gregory Cook, and Donna Starr-Gimeno, Plaintiffs-Appellees and Cross-Appellants, and Kevin Smith, Plaintiff-Appellee, v. CIVIL SERVICE COMMISSION, City and County of Denver, Colorado; Kristopher Colley, Christopher Olson, Ellen Realth, Paula Sandoval, and Edward Sullivan, its Commissioners; Paul G. Torres, its Executive Director; Tom Sanchez, Chief of Police, City and County of Denver, Colorado; Fidel "Butch" Montoya, Jr., Manager of Safety, City and County of Denver, Colorado; Patrick Carver; Roger Barker; and Kenneth Chavez, Defendants-Appellants and Cross-Appellees.

No. 00CA0144.

Colorado Court of Appeals, Div. III.

July 19, 2001.

Worstell & Kiesnowski, David L. Worstell, Robert W. Kiesnowski, Jr., Denver, CO, for Plaintiffs-Appellees and Cross-Appellants and Plaintiff-Appellee.

Hall & Evans, L.L.C., Thomas J. Lyons, Malcolm S. Mead, John E. Bolmer, II, Andrew D. Ringel, Denver, CO, for Defendants-Appellants and Cross-Appellees Civil Service Commission, Kristopher Colley, Christopher Olson, Ellen Realth, Paula Sandoval, Edward Sullivan, Paul G. Torres, Tom Sanchez, and Fidel "Butch" Montoya, Jr.

Paul A. Baca, Denver, CO, for Defendants-Appellants and Cross-Appellees Patrick Carver, Roger Barker, and Kenneth Chavez. Opinion by Judge MARQUEZ.

In this action pursuant to C.R.C.P. 106(a)(4) and C.R.C.P. 57 contesting a civil service examination for the position of lieutenant in the Denver Police Department (Department), defendants, the Civil Service Commission, its Commissioners, its Executive Director, the Chief of Police, and the Manager of Safety (collectively the Commission), appeal a judgment in favor of plaintiffs, Clifford Carney, Gregory Cook, Donna Starr-Gimeno, and Kevin Smith, invalidating a portion of the examination. Patrick Carver, Roger Barker, and Kenneth Chavez (officers), individual defendants who were promoted under the examination, separately appeal the court's decision. Plaintiffs Carney, Cook, and Starr-Gimeno also cross-appeal the court's denial of an award of costs. We affirm in part, reverse in part, and remand with directions.

In 1998, plaintiffs, sergeants in the Department, took a lieutenant promotional examination administered by the Commission. The examination contained five components, including a personnel record evaluation component (PRE) for evaluating each candidate's personnel packet submitted with respect to: (1) disciplinary record; (2) commendations; (3) reliability; and (4) command-related education and experience. The PRE was worth 10 of 100 possible points. The evaluators scored the candidates between .01 and 5 on each dimension of the PRE and then combined those scores for an overall score, utilizing the mechanism of "judgmental integration." The non-PRE components of the test are not challenged here.

Plaintiffs sought review of the examination results pursuant to C.R.C.P. 106(a)(4). The trial court concluded that the PRE portion of the exam was arbitrary and capricious and ordered that the Commission neutralize that component of the exam scores by giving each candidate the same score of 5.

I. Standard of Review

C.R.C.P. 106(a)(4)(I) requires that the reviewing court decide whether the lower tribunal exceeded its jurisdiction or abused its discretion "based on the evidence in the record before the defendant body or officer."

In a C.R.C.P. 106(a)(4) action, a reviewing court must uphold the decision of the governmental body unless there is no competent evidence in the record to support it. "No competent evidence" means that the governmental body's decision is "so devoid of evidentiary support that it can only be explained as an arbitrary and capricious exercise of authority." Board of County Commissioners v. O'Dell, 920 P.2d 48, 50 (Colo. 1996).

Because the district court exercises no factfinding authority in such cases, the appellate court engages in the same type of record review as did the trial court. We are not, therefore, bound by any determination made by the trial court, but review the issues presented to that court on a de novo basis. Feldewerth v. Joint School District 28-J, 3 P.3d 467, 470 (Colo.App.1999).

II. Timely Complaint

The Commission first contends that the trial court did not have jurisdiction to consider plaintiffs' claims regarding the PRE because plaintiffs did not file their challenge within thirty days of the Commission's announcement that the exam would contain a PRE. We disagree.

Under C.R.C.P. 106(b), a complaint seeking judicial review pursuant to C.R.C.P. 106(a)(4) must be filed in the district court no later than thirty days after the "final decision" of the tribunal being challenged is rendered. This thirty-day limitations period is jurisdictional and begins to run at the "point of administrative finality," which occurs when "the action complained of is complete," leaving "nothing further for the agency to decide." 3 Bar J Homeowners Ass'n v. McMurry, 967 P.2d 633, 634 (Colo.App.1998)(quoting Cadnetix Corp. v. City of Boulder, 807 P.2d 1253, 1254 (Colo.App.1991), and Baker v. City of Dacono, 928 P.2d 826, 827 (Colo.App. 1996)). Therefore, the issue here is when the "point of administrative finality" occurred for purposes of C.R.C.P. 106(a)(4).

We agree with plaintiffs and conclude that, for purposes of judicial review of actions pursuant to C.R.C.P. 106(a)(4), a final decision was rendered on August 14, 1998, the date of certification and publication of the eligibility register. That was the "point of administrative finality" when the thirty-day limitations period began to run. Plaintiffs filed their C.R.C.P. 106(a)(4) complaint on September 11, 1998, safely within the thirty-day period.

Before August 14, the Commission was free to modify, amend, withdraw, or delete the PRE component of the exam, and plaintiffs would not have had an opportunity to review it. In short, the injury of which plaintiffs complain was not complete until the exam results were published and certified.

Plaintiffs' action, therefore, was not untimely.

III. Mootness

The Commission next contends that because two of the plaintiffs since have been promoted to lieutenant and the eligibility list has expired, plaintiffs' claims are moot. We are not persuaded.

A case is moot when the relief sought, if granted, would have no practical legal effect. When the conduct sought to be redressed by either declaratory or injunctive relief is peculiar to a particular event that has already occurred, the finality of the event in a manner incapable of repetition moots the controversy. State Board of Chiropractic Examiners v. Stjernholm, 935 P.2d 959 (Colo.1997).

Two exceptions exist to the mootness doctrine: the court may resolve an otherwise moot case if the matter is one that is capable of repetition yet evading review; and the court may hear a moot case involving issues of great public importance or recurring constitutional violation. State Board of Chiropractic Examiners v. Stjernholm, supra.

In our view, both exceptions apply in this case. First, the "capable of repetition yet evading review" exception applies here because, if the issue is not addressed now, it is likely that the Commission will utilize a PRE component in future exams. This conclusion is supported by the fact that a similar PRE component was used in a 1997 exam and subsequently declared invalid by a division of this court. Basefsky v. Civil Service Commission, 985 P.2d 81 (Colo.App.1999).

Second, we consider police department promotional procedures to be a matter of great public importance. The fact that two plaintiffs were subsequently promoted and are no longer subject to the PRE component of the lieutenant exam does not diminish this conclusion. Other officers are affected by the likelihood of its repetition.

Thus, it is appropriate for us to review plaintiffs' challenges to the exam.

IV. Objective Grading System

The Commission also contends that the 1998 lieutenant promotional examination satisfied state requirements. We disagree.

A.

Under the Denver City Charter (charter), promotional exams must be "open and competitive" and test only the fitness of the person examined. Basefsky v. Civil Service Commission, supra.

An examination, although partially subjective, may comply with the charter if it conforms to measures or standards that are sufficiently objective to be challenged and reviewed. Civil Service Commission v. Frazzini, 132 Colo. 21, 287 P.2d 433 (1955).

In Frazzini, the court noted that the test must comply with the charter and be administered objectively. It determined the examination at issue there complied with the charter. However, the characteristics of that examination were:

that the candidates were to participate against each other equally before the examiners in answering questions of like character and nature, and that they had equal opportunity in the oral discussion to compete each against the other under like and similar conditions; that the method of grading set up in the examination by the commission was sufficiently objective and definite to be capable of being challenged and reviewed by examiners of equal ability and experience, and that there was sufficient record available for a review by the courts.

Civil Service Commission v. Frazzini, supra, 132 Colo. at 35-36, 287 P.2d at 441.

Here, the record presented for review is limited in certain respects. It includes the examinees' scores on the various components of the exam, a rater's syllabus, which explains what the raters were to consider in making their evaluations and allows for the use of "professional judgment," a report of content validity, and compilations of candidates' "professional history," including education/experience, reliability, commendations, and discipline records, personnel evaluation training files, performance evaluation reports, evaluation selection forms, a daily schedule of PREs, and a report of "sustained cases."

This information, however,...