City of Bismarck v. Santineau

• Decision Date: 02 December 1993
• Docket Number: No. 930175,930175
• Citation: 509 N.W.2d 56
• Parties: CITY OF BISMARCK, Appellee, v. Eugene SANTINEAU, Appellant, and The Department of Veteran's Affairs, Respondent. Civ.
• Court: North Dakota Supreme Court

Page 56

509 N.W.2d 56

CITY OF BISMARCK, Appellee, v. Eugene SANTINEAU, Appellant, and The Department of Veteran's Affairs, Respondent.

Civ. No. 930175.

Supreme Court of North Dakota.

Dec. 2, 1993.

Charles C. Whitman, City Atty., Bismarck, for appellee.

Deborah J. Carpenter, Carpenter Offices, Bismarck, for appellant. Appearances by Kathleen J. Hall and Eugene Santineau.

VANDE WALLE, Chief Justice.

Eugene Santineau appealed from a judgment of the district court vacating an administrative hearing officer's order that the City of Bismarck employ Santineau under the state's "veterans' preference" statute, section 37-19.1-02, NDCC. We affirm.

Santineau, a veteran, was one of six applicants Bismarck examined, in an interview format, in October of 1992 for the position of Water Plant Operator I. The six applicants had been referred to Bismarck by Job Service of North Dakota, which had given the individuals an aptitude test and found each to possess the minimum qualifications required for the position. At the interview, a panel of four Bismarck public works and water treatment personnel asked the applicants a series of questions relevant to the position. The applicants could receive up to five points for each interview question, and the questions were weighted in light of their over-all importance. Each of the applicants was asked the same questions in the same order and by the same members of the panel. After the interviews, the members of the panel further scored the applicants in the areas of education, skills, experience, self-confidence, appearance and poise, and communication skills.

The members of the panel individually compiled total scores for each applicant based on the interview and post-interview evaluation scores. Each panel member added five points to Santineau's score pursuant to the veterans' preference statute, and the applicants were then ranked by each member of the panel based on the total scores. Santineau, ranked sixth by three members of the panel and fifth by the fourth member, was informed that he would not be extended an offer for the job. Two other applicants, whose scores and rankings were higher than those of Santineau, also were not extended job offers but were notified by the city that "[a]s a finalist in the running for this position, we will definitely keep you in mind should there be another Water Plant Operator I position open within the year."

Santineau appealed the City's hiring decision to the Department of Veterans Affairs (DVA) and a hearing was held on November 20, 1992. Santineau argued, and the DVA hearing officer agreed, that the hiring procedures employed by the City did not conform to the strictures of subsection (4) of NDCC Sec. 37-19.1-02. ¹ Specifically, the hearing officer concluded that

"[t]he City did not maintain a register of persons eligible for employment from which it could certify a prescribed number of names for the position of Water/Wastewater Plant Operator I. Therefore, the provisions of Sec. 37-19.1-02(4) do not apply. Because the position applied for was not maintained under a personnel system using a certified list of eligible persons, Sec. 37-19.1-02(2) is the correct application of the law in this instance."

Because Santineau was a veteran and met the minimum qualifications for the position, the hearing officer concluded that subsection (2) of NDCC Sec. 37-19.1-02 required his employment. The hearing officer ordered that Santineau be immediately employed by the City.

Bismarck appealed from the DVA's Order. Reversing, the district court found that Bismarck did have an "established personnel system" under which it maintained a register of persons eligible for employment, within the meaning of section 37-19.1-02, NDCC. Thus, the court concluded, Santineau received the statutory preference due him when five points were added to his evaluation score. See NDCC Sec. 37-19.1-02(4). After having awarded Santineau the five-point veterans' preference, Bismarck was permitted to hire the highest scoring applicant; Santineau was not the highest scoring applicant. Judgment was entered in favor of Bismarck and Santineau appealed.

Review by this court of agency determinations is governed by chapter 28-32, NDCC. Pursuant to this chapter, we examine the record of the administrative agency rather than the findings of the district court. Wiederholt v. Dept. of Transp., 462 N.W.2d 445 (N.D.1990). We affirm a hearing officer's decision if the officer's findings of fact are supported by a preponderance of the evidence, the officer's conclusions of law are supported by the findings of fact, the officer's decision is supported by the conclusions of law, and the officer's decision is in accordance with the law. NDCC Secs. 28-32-21, 28-32-19; Dyer v. N.D. Dept. of Human Services, 498 N.W.2d 160 (N.D.1993).

In this appeal, however, our interpretation of section 37-19.1-02, NDCC, will determine under which subsection Santineau was entitled to preference. Interpretation of a statute is a question of law. Dyer, supra. In an appeal from an administrative agency decision in which construction of a statute is at issue, our obligation, as it is in other appeals in which construction of a statute is at issue, is to fulfill the object and intent of the legislature. Johnson v. N.D. Workers' Comp. Bureau, 484 N.W.2d 292 (N.D.1992). "Statutes must be construed as a whole to determine the intent of the legislature, deriving that intent by taking and comparing every section as a part of a whole." Id. When the language of a statute is ambiguous or of doubtful meaning, we may look beyond the letter of the statute to ascertain legislative intent. County of Stutsman v. State Historical Soc., 371 N.W.2d 321 (N.D.1985).

In Dyer, supra, this Court for the first time construed the provisions of section 37-19.1-02, NDCC. We explained that subsections (2) and (4) of NDCC Sec. 37-19.1-02 establish separate and distinct veterans' preference guidelines, based on whether or not the government entities have established personnel systems. Subsection (2), which provides that the government entity "shall appoint or employ the veteran" if the veteran is qualified for the position, applies to entities without established personnel systems. Subsection (4) applies to entities that have established personnel systems and requires preference to be in the form of additional points added to a veteran's score prior to ranking the applicants.

"Personnel system" is defined in section 37-19.1-01, NDCC, as "a personnel system based on merit principles." The legislature has not defined "merit principles"; we construe the term in its ordinary sense, with consideration given to the context of its use and the purpose prompting its enactment. Dyer, supra. Webster's New World Dictionary, Second College Edition, defines "merit" as

"1. the state, fact, or quality of deserving well or, sometimes, ill; desert 2. worth; value; excellence 3. something deserving reward, praise, or gratitude 4. a reward or honor given for superior qualities or conduct; mark, badge, etc. awarded for excellence."

Thus a "personnel system based on merit principles" is competitive in nature; the objective in such a system is to employ the most worthy applicant.

Santineau argues that Bismarck's personnel system was not merit-based, because the interviewers scored the applicants on subjective criteria and on subjective impressions formed during the interview. We understand Santineau to argue that, by definition, a merit-based system must utilize wholly objective means of scoring. While Santineau's argument is persuasive in theory it may be unworkable in practice; it may be impossible to formulate a standard by which meritorious qualities are defined or measured with entire objectivity.

Considerable judicial deference must be afforded a hiring body in its assessment of whether, to what extent, and in what manner merit should be measured. Dyer, supra; McGowan v. Burstein, 71 N.Y.2d 729, 530 N.Y.S.2d 64, 525 N.E.2d 710 (1988). We agree with the Court of Appeals of New York, which stated,

"The law does not require the impossible or forbid the reasonable. The record discloses that here the examiners have based determination upon their estimates of qualities which, it is reasonably clear, affect the merit and fitness [for the position.] ... Much must be left here to the judgment of the examiners. The test cannot be wholly objective and to the extent that it is subjective the result may depend as much upon the fitness of the examiners as upon the fitness of the candidate. That is a risk inherent in all systems of examination."

Sloat v. Board of Examiners, 274 N.Y. 367, 9 N.E.2d 12, 15 (1937); see also, Stoor v. City of Seattle, 44 Wash.2d 405, 267 P.2d 902 (1954) [oral conferences, which may involve grading upon subjective impressions of intangible qualities, were sufficiently objective and "competi...