Habursky v. Recht
| Decision Date | 21 November 1988 |
| Docket Number | No. 18195,18195 |
| Citation | 180 W.Va. 128,375 S.E.2d 760 |
| Court | West Virginia Supreme Court |
| Parties | Corporal Steve R. HABURSKY and Corporal George J. Jacobs, Members of the Wheeling Police Department v. Arthur M. RECHT, James G. Squibb and George B. Vieweg, III, As Members of the Police Civil Service Commission of Wheeling, West Virginia. West Virginia |
Syllabus by the Court
1. A rule of a police civil service commission basing seniority points, for the purpose of promotion, upon "years of in-grade service" is invalid, as it is too restrictive and conflicts with W.Va.Code, 8-14-17, as amended, which requires consideration of "previous service and experience." An "in-grade" service credit rule is invalid also when it conflicts with an existing, city-approved regulation of a police civil service commission which requires consideration of "years of service."
2. "While long standing interpretation of its own rules by an administrative body [or a municipal agency] is ordinarily afforded much weight, such interpretation is impermissible where the language is clear and unambiguous." Syl. pt. 3, Crockett v. Andrews, 153 W.Va. 714, 172 S.E.2d 384 (1970).
3. "The judgment of a circuit court affirming a final order of a police civil service commission, upon appeal therefrom as provided by statute, will not be reversed by this Court unless the final order of the commission was against the clear preponderance of the evidence or was based upon a mistake of law." Syl. pt. 2, In re Appeal of Prezkop, 154 W.Va. 759, 179 S.E.2d 331 (1971).
John E. Gompers, Gompers, Buch, McCarthy & McClure, Wheeling, for Habursky & Jacobs.
Suzanne Belot, Solicitor's Office, Wheeling, for Recht, Squibb, & vieweg, III.
William E. Parsons, Wheeling, for Rockwell.
This appeal involving the Police Civil Service Act 1 raises a narrow question of first impression in this jurisdiction, specifically, the appropriate manner of calculating seniority points for the purpose of promotion of individuals under such Act. Believing this question of law was incorrectly decided below, we reverse.
The appellants, Steve R. Habursky and George J. Jacobs, holding the rank of corporal with the police department of the City of Wheeling, applied along with other persons in the early part of 1986 for promotion to the rank of sergeant. There was one vacancy at that time. Promotions in such department in that city are based upon the applicants' scores on (1) a written examination and (2) an oral examination and upon (3) points for seniority. This case involves only the latter. The appellants and the other applicants took the oral and written examinations in March and April, respectively, of 1986. The Police Civil Service Commission (the "PCSC") for the City of Wheeling subsequently graded the appellants' scores on the oral and written examinations and calculated the appellants' seniority points.
Initially, the PCSC calculated seniority points based upon the appellants' and the other applicants' years of service with the police department of the city. Using these calculations, the PCSC determined that the appellant Jacobs had achieved the highest overall score and that the appellant Habursky had achieved the second highest overall score on the promotional examination.
Shortly thereafter, however, the PCSC recalculated the applicants' seniority points by utilizing only their years of service "in grade," that is, in their grade or rank at the time of taking the promotional examination, namely, corporal. Using the "in-grade" calculations, the PCSC revised the eligibility list for promotion to the rank of sergeant. On this revised list, the appellant Jacobs achieved the second highest overall score (instead of first) and the appellant Habursky achieved the fifth highest overall score (instead of second) on the promotional examination.
The appellants timely requested a hearing before the PCSC. The evidence adduced at that hearing disclosed the following facts as found by the PCSC. 2
In November, 1976, the city manager approved and city council by ordinance approved the PCSC's regulations, including a regulation, section 10.07(b)(1)(c), which provided for seniority points to be calculated based upon "years of service." In 1984 and 1986 the city passed ordinances amending other parts of the PCSC regulations and containing the same "years of service" language in section 10.07(b)(1)(c).
In January, 1985, however, the PCSC promulgated rules for promotional examinations whereby seniority points were to be calculated based upon "years of in-grade service." A copy of these rules was distributed and read to each of the applicants prior to the competitive examination in question for promotion to sergeant. The January, 1985 rules for promotional examinations were never submitted to or approved by the city manager or city council. The January, 1985 rules for promotional examinations were, however, consistent with the long-standing practice of the PCSC to calculate seniority based upon years of in-grade service, as opposed to total years of service with the police department. The only two times when this practice was not followed, and, instead, seniority points were based upon years of service with the police department, were (1) the initial calculations in this case and (2) on one occasion in 1984, which the PCSC in its revised order in this case called an "aberration resulting from inadvertence."
The PCSC found that the "in-grade" service credit rule had been employed with substantial consistency for many years and that the appellants had not been prejudiced by the nonsubmission to the city manager and city council of the formal, January, 1985 "in-grade" service credit rule because all of the applicants for the promotion in question had been informed of such rule timely in advance of the exam. Therefore, the PCSC, applying the "long-standing administrative interpretation" rule of construction, denied the appellants' request for the PCSC to reinstate its initial list of eligibles for promotion to sergeant, using "years of service" with the police department to calculate seniority points.
Upon appeal the Circuit Court of Ohio County affirmed the order of the PCSC for the reasons set forth by the PCSC.
W.Va.Code, 8-14-17 [1969, 1986] provides in pertinent part: "Promotions [in a paid police department] shall be based upon merit and fitness to be ascertained by competitive examinations ... and upon the superior qualifications of the individuals promoted, as shown by their previous service and experience [.]" (emphasis added) 3 PCSC Reg. § 10.07(b)(1)(c), duly approved by the requisite city authorities, provides for seniority points to be calculated based upon "years of service." The statute and this approved regulation clearly imply the consideration of the total number of years of service with the paid police department, not merely the consideration of the number of years in the present grade or rank. This precise point was decided in State ex rel. Bigam v. Hainen, 150 Ohio St. 371, 82 N.E.2d 734 (1948), involving a promotional examination for city firefighters.
In Bigam the statute provided for seniority credits for promotions based upon "years of service." Under the city civil service commission's rule, however, seniority credits for promotions were limited to the years of service in the promotional applicant's present grade or rank. The Supreme Court of Ohio held in its syllabus that the term, "years of service," contained in the statute, providing for certain service-seniority credits in civil service promotional examination grades, includes the period represented by the total number of years of service rendered by the applicant in the governmental department in which the applicant is employed at the time of such examination and does not limit the period of credit to the years of service in the grade or rank of service in which the applicant is then employed; and a rule of a city civil service commission which does so limit is in conflict with such statute and is invalid.
The Bigam court's analysis is as follows. The language of the statute, providing for grade credit for seniority based upon "years of service," is in the most general terms and is without any limitations as to periods of service in any particular grade or rank. Clearly, the full period of service must enter into the computation for seniority credit. It would be incongruous to assume that it was the legislative intent to give an employee, in passing to the first higher grade or rank of service in a governmental department, seniority credit for the employee's full period of service in such department, and at the same time to limit the employee, in passing to each of the next higher grades or ranks in the same department, to in-grade service instead of total service in the department. This is especially true where the words, "years of service," are used in the statute without statutory definition, and, consequently, must be given their ordinary meaning of total number of years of service.
The court in Bigam disagreed with the claim that the rule of the city civil service commission was a fair interpretation of the statute and was not in conflict with it.
This Court believes that Bigam is very persuasive precedent. Accordingly, we hold that a rule of a police civil service commission basing seniority points, for the purpose of promotion, upon "years of in-grade service" is invalid, as it is too restrictive and conflicts with W.Va.Code, 8-14-17, as amended, which requires consideration of "previous service and experience." An "in-grade" service credit rule is invalid also when it conflicts with an existing, city-approved regulation of a police civil service commission which, as here, requires consideration of "years of service." 4
The "in-grade" service credit rule of "interpretation" in this case by the PCSC is remarkably analogous to the "long-standing interpretation" by...
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