Ferguson v. Civil Service Commission

• Decision Date: 05 June 1962
• Parties: Harold D. FERGUSON v. CIVIL SERVICE COMMISSION.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 826

182 N.E.2d 826

344 Mass. 484

Harold D. FERGUSON v. CIVIL SERVICE COMMISSION.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 10, 1962.

Decided June 5, 1962.

Samuel W. Gaffer, Boston (Henry H. Chmielinski, Jr., Quincy, with him), for petitioner.

James J. Kelleher, Asst. Atty. General, for respondent.

Francis X. Bellotti, North Quincy, by leave of court, submitted a brief as amicus curiae.

Before WILKINS, C. J., and SPALDING, WHITTEMORE, CUTTER, and SPIEGEL, JJ.

CUTTER, Justice.

Ferguson and one Finn took an examination for promotion in the Quincy police department. Finn requested the director of civil service to re-mark his answer to question 5(a). ¹ The director denied his request and Finn appealed to the commission under G.L. c. 31, § 12A (as amended through St.1948, c. 297). See also G.L. c. 31, § 2(b), as amended through St.1945, c. 725, § 1. The commission 'found that the decision of the [d]irector refusing the applicant [Finn] a change in his mark was through mistake, and * * * that * * * [Finn] should be given full credit for his answer.' As a consequence Finn received an average grade of 95.73, instead of one of 92.39 previously given to him. This placed him above Ferguson, who received an average grade of 93.37. The director rearranged the promotion list accordingly.

Ferguson seeks a writ of certiorari to quash the commission's action giving Finn full credit for his answer, on the ground that 'the [commission's] action * * * was erroneous, unwarranted and without basis in fact or law; that * * * [Finn's] answer * * * was wrong as a matter of law and his original mark and the [director's] action * * * should stand.' The commission filed an answer asserting (a) that Ferguson was not entitled to relief upon the allegations of the petition and (b) that the commission's action on appeals is administrative and not subject to review by certiorari. The answer was accompanied by a return setting out essentially the facts already mentioned. The commission in its return reported that '[u]pon consideration of * * * Finn's appeal, the [c]ommission [had] found that * * * [Finn's] answer * * * stated the important fact that a state prison sentence cannot be imposed upon a person convicted and sentenced in the circumstances stated in the question as having been proved.' ²

Ferguson filed a motion to have the return further extended by attaching copies of (a) Finn's request for a review of his marks by the director, (b) the director's decision, (c) Finn's appeal to the commission, (d) the commission's decision, (e) the commission's minutes, and (f) a report showing relative positions and average grades of the candidates after the director's decision and before the commission's action. This motion was denied.

A judge of the Superior Court dismissed the petition. The case is here on Ferguson's appeal and upon his bill of exceptions ³ with respect to the denial of his motion to extend the return.

1. The only issue presented by the petition is whether, in view of Finn's answer to part (1) of question 5(a), the commission acted within its authority in evaluating Finn's answer as it did. Ferguson essentially seeks relief on the ground that Finn should have been given no credit for his answer, because of the contention that the answer to part (1) of the question was wrong as a matter of law. The question, the answer, and a full statement of the commission's reasons for its action are shown in the return. It would have been preferable if the commission had set out in its return the formal records of the director and of the commission itself (sought by the motion for a further return) showing the specific reasons for its action, instead of, or in addition to, the statements contained in the return. See Moore v. Civil Serv. Comm., 333 Mass. 430, 436, 131 N.E.2d 179. In the circumstances, however, particularly in view of Ferguson's concession in his brief (see fn. 3, supra), we think that the return adequately set out the facts alleged in the petition to permit Ferguson to present the issues therein raised. See Attorney General v. Board of Pub. Welfare of Wilmington, 328 Mass. 468, 471, 104 N.E.2d 496. There was no error in the denial of the motion for a further extension of the return.

2. Question 5(a) calls not only for an opinion about a legal issue but also for each applicant's reasons for his opinion. The form of the question indicates that it was designed to test the applicant's knowledge by obtaining explanation of the grounds for his answer to part (1), as well as by the answer to the first part of the question. As the commission pointed out (see fn. 2, supra), Finn's answer showed that he understood the principal statutory considerations affecting the legal problem and the practical consequences of applying the statutes in the circumstances. The amount of credit to be given for this answer by a police official was a matter within the commission's sound and honest discretion, in the light of all relevant factors, including its experience in giving similar examinations to persons of comparable training and qualifications. In Barry v. Civil Serv. Comm., 323 Mass. 431, 434, 82 N.E.2d 607, 610, it was said, 'In determining the accuracy of answers and the proper marks to be awarded, the director is given broad discretionary powers administrative in nature to make findings of fact. * * * On appeal the * * * [commission is] vested with similar powers subject to c. 31, §§ 2(b), 12A.' The petition does not allege, and the return does not disclose, facts showing that the commission improperly gave full credit for an answer which revealed practical understanding of the problem. The commission was entitled to regard the reasoning as the important aspect of the answer and the first part of the answer merely as laying the foundation for a statement of reasons. As was said in the Barry case, '[a] writ of certiorari does...