Devin v. City of Hollywood, 75-570

Decision Date23 July 1976
Docket NumberNo. 75-570,75-570
Citation351 So.2d 1022
PartiesAlan P. DEVIN and Beverly A. Parrott, Appellants, v. The CITY OF HOLLYWOOD, Florida et al., Appellees.
CourtFlorida District Court of Appeals

Salvatore V. Fiore of DiGiulian, Spellacy, Bernstein, Lyons & Sanders, Fort Lauderdale, for appellants.

J. Bart Budetti, Hollywood, for appellees.

BASKIN, NATALIE, Associate Judge.

This is an appeal by two City of Hollywood police officers alleging discrimination by the City of Hollywood Chief of Police in failing to promote them.

Plaintiffs-Appellants contend that Civil Service requires promotion of police department employees to be on the basis of merit and fitness only, as determined by competitive examination and resulting ranked eligibility lists provided by the Civil Service Board. They urge that no discretion exists in making promotions within the police department, but state that even if some discretion should be found to exist, it was abused when Plaintiffs-Appellants Parrott and Devin were bypassed and persons ranked below them were appointed.

Plaintiffs-Appellants amended complaint for declaratory relief, injunctive relief and damages filed against the City of Hollywood, the Civil Service Board of the City of Hollywood, Board members, the Chief of Police of the City of Hollywood and the Acting City Manager of the City of Hollywood was dismissed with prejudice after hearing. 1

Appellant Devin is a sergeant employed by the City of Hollywood Police Department. Appellant Devin was number one on the eligibility list for promotion to lieutenant but was not promoted because he did not receive any recommendations for promotion from the lieutenants called upon by Defendant-Appellee Martin, Chief of Police, to make such recommendations. Chief Martin utilized recommendations of lieutenants to assist him in determining which officer on the eligibility list should be promoted. Appellant Devin had already received outstanding comments and ratings by lieutenants and captains during the course of his nine years employment. He was advised by members of the Civil Service Board that he was not promoted in 1974 nor in the past, despite outstanding ratings, because he was not a member of the "club".

Appellant Parrott has been a police officer with the City of Hollywood for seven years. She was tenth on the eligibility list for promotion to sergeant when promotions of the individuals listed as numbers 1, 2, 3, 4, 6, 7, 8, 12, 13, 20 and 24 were made. She was not promoted. She was advised on a prior occasion that although she had received recommendations from other officers, the Chief of Police did not feel that there was a slot for a female and that her assignment to the patrol division would not be fair to the men, but without patrol experience Officer Parrott would not receive recommendations for promotion. There is no testimony that service in the patrol division is a prerequisite to promotion to the rank of sergeant.

Although Appellant Parrott had received above average evaluation reports during her employment, the reports were not contained in her personnel file when it was circulated among the captains and lieutenants who were to make recommendations for promotion and with whom she had not worked.

This appeal questions whether the Civil Service Act affords discretion to the Chief of Police in making promotions within the police department and if so to what degree.

The problem facing the court is to determine, in the absence of a statement by the legislature or by the Rules and Regulations for Municipal Civil Service of the City of Hollywood, Florida, from what portion of the list of eligibles certified by the Civil Service Board promotions may be made. Is the promoting authority required to select the individual at the top of the list or may the selection be made from the top three, four or more persons? 2

Because the legislature has failed to announce a standard to guide in the selection of applicants on the eligible list and to define the limits of discretion of the appointing authority in making promotions, the legislative intent must be examined.

The primary guide to statutory interpretation is to determine the purpose of the legislature. Tyson v. Lanier, 156 So.2d 833 (Fla.1963). Uncertainty should be resolved by an interpretation that best accords with the public benefits. Sunshine State News Company v. State, 121 So.2d 705 (Fla.App.1960). It is not the function of the judicial branch to supply omissions of the legislature. Brooks v. Anastasia Mosquito Control District, 148 So.2d 64 (Fla.App.1963).

In order to determine the legislative intent, an examination of the Civil Service Act and Rules and Regulations for Municipal Civil Service of the City of Hollywood, Florida becomes necessary.

The stated purpose of the Rules and Regulations for Municipal Civil Service of the City of Hollywood, Florida is:

" . . . that the City and its employees may have assurance that personnel will be dealt with on an equitable basis and that the citizens of Hollywood, Florida, may derive the benefits and advantages which can be expected to result from a competent staff of City employees."

The Civil Service Act of the City of Hollywood, 3 Section 6, states:

"Advancement by competitive examination. Employees coming within the provisions of this chapter shall be employed and retained in employment and advance to any higher grade on merit and fitness only, and the merit and fitness of any applicant for said departments, or for advancement therein, shall be determined by competitive examination, as hereinafter provided."

Merit and fitness are defined by Rule 5 of the Rules and Regulations for Municipal Civil Service of the City of Hollywood, Florida to be ascertained by examination prepared by or under the direction of the Civil Service Board.

"All examinations shall be impartial and shall relate to those matters which will test fairly the capacity and fitness of the candidates to discharge efficiently the duties of the position to be filled. Examinations may be assembled or non-assembled, and may include written, oral, physical test, performance tests, ratings of training and experience or any combination of these. They may take into consideration such factors as education, experience, aptitude, knowledge, character, physical fitness or any qualifications or attributes which, in the judgment of the Civil Service Board, enter into a determination of the relative fitness of applicants. Promotional examinations shall take into consideration the quality and length of employment in addition to any or all of the above factors."

Rule 9 provides that persons shall be placed upon the eligible lists as candidates in order of their relative excellence as determined by examination. All promotional appointments include a probationary period under Rule 11.

Rule 19 provides:

"The term 'Promotional Examination' signifies a fitness test to determine the relative standing of applicants for positions in a specified class and open only to employees in the classified service ."

Rule 8, Section 2, permits the appointing authority the privilege of examining the papers of applicants, if desired, in connection with determining the relative fitness of persons under consideration for appointment.

References in the above mentioned Rules to relative merit, when considered in the light of the standards of the Civil Service Act, indicate a legislative intent to obtain the best persons available to perform duties under Civil Service. The competitive examinations rank applicants on a wide variety of factors, including personality traits, before they are placed on the list. 4

It is apparent that the...

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