City of Rock Springs v. Police Protection Ass'n, 5171

• Decision Date: 30 April 1980
• Docket Number: No. 5171,5171
• Citation: 610 P.2d 975
• Parties: CITY OF ROCK SPRINGS, a Wyoming Municipal Corporation, Keith West, Mayor of the City of Rock Springs, and Russell Hawk, Chief of Police of the City of Rock Springs, Appellants (Respondents below), v. POLICE PROTECTION ASSOCIATION, an Unincorporated Association, Barney Ferrero, James Songster, Steven Majhanovich, in the official capacity as Rock Springs Police Department Civil Service Commission, Appellees (Petitioners below).
• Court: Wyoming Supreme Court

Page 975

610 P.2d 975

CITY OF ROCK SPRINGS, a Wyoming Municipal Corporation, Keith West, Mayor of the City of Rock Springs, and Russell Hawk, Chief of Police of the City of Rock Springs, Appellants (Respondents below), v. POLICE PROTECTION ASSOCIATION, an Unincorporated Association, Barney Ferrero, James Songster, Steven Majhanovich, in the official capacity as Rock Springs Police Department Civil Service Commission, Appellees (Petitioners below).

No. 5171.

Supreme Court of Wyoming.

April 30, 1980.

Jerry M. Murray, Rock Springs, for appellants.

Thomas T. Zollinger, Rock Springs, for appellees.

Before RAPER, C. J., and McCLINTOCK, THOMAS, ROSE and ROONEY, JJ.

ROSE, Justice.

The predicate for this appeal occurred March 8, 1979, when petitioners-appellees, the Police Protective Association of Rock Springs, Wyoming, an unincorporated association (hereafter P.P.A.), together with Barney Ferrero, James Songster and Steven Majhanovich, in their official capacity as the Rock Springs Police Department Civil Service Commission (hereafter the Commission), filed their petition praying for injunctive relief against the City of Rock Springs, Wyoming, a municipal corporation, Keith West, Mayor of the City of Rock Springs, and Russell Hawk, Chief of Police of the City of Rock Springs, respondents-appellants.

The petition took notice that the Mayor and City Council, at the City Council meeting on Tuesday, March 6, 1979, created a new job classification with the title of "Commander" within the Rock Springs Police Department. At the same meeting, Lawrence Levitt a person not theretofore a member of the Rock Springs Police Department was appointed to the newly created post. It is the contention of the Commission and the P.P.A. that this action violated the statutes of the State of Wyoming and various rules of the Commission.

The petitioners prayed for temporary injunctive relief whereby the respondents would be enjoined from giving effect to the purported appointment. Petitioners further prayed the court would, upon final hearing, permanently enjoin the respondents from creating the job classification in question without complying with Civil Service Rules and statutory provisions regarding such matters.

A temporary restraining order and an order granting permanent injunction were entered. An appeal has been taken from the order granting the permanent injunction.

FACTS

Mayor West took his oath of office January 1, 1979, and Police Chief Hawk was hired March 1, 1979. Their testimony is that unrest was present within the Police Department when they assumed the superintendence of the City and the Department of Police. The Mayor and Chief both felt a need to obtain upper-echelon police assistance and, with the consent of a majority of the city council, hired Mr. Levitt as "Commander."

On March 8, 1979, the Rock Springs Police Department Civil Service Commission was notified by Chief Hawk that a "temporary emergency" existed. The notification stated the emergency might be expected to last ninety days and, in response to the emergency, Larry Levitt had been appointed as a temporary emergency employee to the position of Commander in the Police Department.

The Chief, in his letter to the Commission, said that the reason for the "temporary emergency " employment is:

". . . Mr. Levitt possesses the qualifications and skills, I personally know are needed to be implemented immediately to carry out my plan to upgrade the department in general. . . ."

The Chief further observed:

". . . At this time, no other person possessing these qualifications is immediately available within the Rock Springs Police Department."

Evidence with respect to the term for which Levitt was appointed is in conflict. There is testimony he was to have his appointment on a "temporary emergency" basis. Other indications are that his tenure as Commander was not intended to be temporary and was to be coextensive with that of the Chief of Police, which was, itself, for an indefinite period.

ISSUE NO. 1.

The appellants identify the following as the first issue for this court's consideration:

"1. Whether the hiring of Larry Levitt as a temporary emergency Commander in the Rock Springs Police Department was legal under Section 15-1-103(a)(xxxv) (A); Sections 15-5-106 & 112, W.S.1977; or, Rules 8-4 & 8-15, Rock Springs Civil Service Board (Revised 5-14-59) particularly in light of Wyoming Constitution Article 13, Section 1(d)? (sic)."

Consideration of the applicable statutes and rules leads to this summary:

According to § 15-5-102(b), W.S.1977 ¹, the Rock Springs Police Department Civil Service Commission was authorized; and, by ordinance, the civil service system was adopted for the City of Rock Springs. By statute, § 15-5-120, W.S.1977 ², the Commission is directed to adopt rules governing its proceedings and is obliged to enforce its rules. Under the same section, the Commission must adopt rules for the classification of employment, for promotion on the basis set out in the statute and prepare eligibility lists from which vacancies are to be filled. Section 15-5-107, W.S.1977 ³, also requires the Commission to classify various employments and to examine the qualifications of applicants. Such rules as will govern these and other relevant matters were adopted. Commission Rule 1-13 ⁴ provides for new job classification procedures and at the time of trial, the city ordinance indicates police classifications for

"City Marshall, Assistant City Marshall, Police Lieutenants, Police Sergeants, and Deputy City Marshall."

Section 15-5-106, W.S.1977 ⁵, provides no person may be employed or appointed in the police department except from a list of eligible persons certified by the commission to the mayor and city council. Rule 8-1 of the Commission Rules ⁶ provides that the head of the police department will appoint "all subordinate officers" from the list furnished by the Commission. Section A1 ⁷ of the Commission Rules provides that assistant chiefs of the police department "shall " be appointed from the classified civil service.

Section 15-5-111, W.S.1977 ⁸, provides when a vacancy occurs in the officer grade (except the chief's position), it will be filled by a competent person from the next lowest grade and the commission will judge the competency of the person to fill the vacancy.

Section 15-5-109, W.S.1977, fn. 11, infra, provides where a position is to be filled, the commission will submit to the appointing body (upon its request) the names of three qualified persons, one of which shall be appointed. If there are no such qualified persons, the commission will certify additional names but if there be no registered applicants,

"the commission may allow provisional employment, or it may authorize the appointive authority to select a suitable person for examination, and if qualified, he shall be certified for employment."

At the time of trial, the governing body of Rock Springs, under § 15-1-103(a) (xxxv)(A), W.S.1977 ⁹, possessed (in addition to the powers of appointment otherwise provided by law) the power to appoint such other officers and employees as necessary to the efficient operation of the city and to control, regulate pay and prescribe the duties of all appointees. The governing body may, under this statute, determine working conditions, provide and determine pay scales and provide supplemental benefits "as long as those provisions are not in conflict with existing statutes. During an emergency or special conditions warranting, additional temporary appointments may be made." (Emphasis supplied.)

Section 15-5-112, W.S.1977 ¹⁰, provides temporary employment shall follow the same procedure as that for permanent employment "except in case of emergency," and no emergency employee can continue in service for in excess of ninety days, and no reappointment of such emergency appointments will be allowed without certification of the emergency employee's name by the commission, as provided by § 15-5-109, W.S.1977. ¹¹

Commission Rule 8-4 ¹² provides for appointment of temporary employees for no longer than one month in any calendar year; and Commission Rule 8-15 ¹³ provides that department heads may hire temporary employees (as contemplated by Rule 8-4) without making such appointment from the certified list. (See § 15-5-106, supra).

The appellants urge the liberal-construction rule as contemplated by Article 13, Section 1(d), Wyoming Constitution. ¹⁴

From the above, the following conclusions may be reached:

(1) There was no classified position of "Commander" in the Rock Springs Police Department when Levitt was appointed.

(2) Assuming, arguendo, that an emergency did not exist, the appointment violated Commission Rule 8-1, fn. 6, supra; Section A1 of the Commission Rules, fn. 7, supra; Commission Rule 1-13, fn. 4, supra; § 15-5-106, fn. 5, supra; § 15-5-111, fn. 8, supra; and § 15-5-109, fn. 11, supra.

(3) Section 15-1-103(a)(xxxv)(A), fn. 9, supra, was of no assistance to the respondents because its authority was nullified by its own terms since, in this situation, its provisions were "in conflict with existing statutes." Furthermore, this section is a general statute which is inconsistent with a special statute pertaining to the same subject and, therefore, the special statute must govern.

It has been held in In re Edelman's Estate, 68 Wyo. 30, 228 P.2d 408, 414-415 (1951), by quoting favorably from 59 C.J. 1000:

" 'General and special provisions in a statute should stand together, if possible but where general terms or expressions in one part of a statute are inconsistent with more specific or particular provisions in another part the particular provisions must govern, unless the statute as a whole clearly shows the contrary intention and they must be given effect notwithstanding the general provision is broad enough to include the subject to which the particular provisions relate. The particular provision should be regarded as an exception...