Law Dept. Employees Union v. City of Flint

• Decision Date: 22 September 1975
• Docket Number: Docket No. 17864
• Citation: 235 N.W.2d 783,64 Mich.App. 359
• Parties: LAW DEPARTMENT EMPLOYEES UNION, a labor organization, et al., Plaintiffs-Appellees, v. The CITY OF FLINT, a Municipal Corporation, et al., Defendants-Appellants. 64 Mich.App. 359, 235 N.W.2d 783
• Court: Court of Appeal of Michigan — District of US

Page 783

235 N.W.2d 783

LAW DEPARTMENT EMPLOYEES UNION, a labor organization, et al., Plaintiffs-Appellees, v. The CITY OF FLINT, a Municipal Corporation, et al Defendants-Appellants.

Docket No. 17864.

64 Mich.App. 359, 235 N.W.2d 783

Court of Appeals of Michigan.

Sept. 22, 1975.

Released for Publication Dec. 16, 1975.

[64 MICHAPP 360] Patrick H. Hynes, City Atty., Flint, for defendants-appellants; A. Ronald Sirna, Jr., Flint, of counsel.

White, Newblatt & Grossman by Stewart A. Newblatt, Flint, for plaintiffs-appellees.

Before QUINN, P.J., and BASHARA and KAUFMAN, JJ.

KAUFMAN, Judge.

This case involves a dispute over methods used by defendant Flint Civil Service Commission (commission) to fill three vacancies in the Flint classified service. More generally, it requires our determination of how much discretion [64 MICHAPP 361] the commission is granted by Flint Charter § 247 to decide whether a vacancy should be filled by a promotional or an open competitive exam. The focal point of this controversy is the first sentence of § 247(a):

'Vacancies in higher positions in the classified service shall be filled So far as practicable by the promotion or advancement of employees in the service.' (Emphasis supplied.)

Under the Flint Charter, civil service job vacancies may be filled by one of three methods: (1) appointment of the employee who scores highest on a promotional exam, (2) appointment of one of the three people who score highest on an open competitive exam or on an interdepartmental exam, or, in rare cases, (3) by promoting, without an examination, the sole employee eligible for promotion. Each of the three vacancies in dispute was filled by an open competitive exam, rather than by a promotional exam. Plaintiffs, a number of unions representing employees in the Flint civil service, brought suit to have these positions declared vacant. They contended that because there existed employees who were eligible for promotion, it was practicable for the vacancies to have been filled by promotional exams and promotional examinations should have been given. The commission contended that the decision to hold open competitive exams was a valid exercise of the discretion which, it alleged, the Flint Charter provides.

This case was commenced with a complaint and order to show cause filed by the plaintiffs in Genesee County Circuit Court praying that the city of Flint be enjoined from employing Daniel Boggan, Jr. as the Deputy City Manager for Operations on [64 MICHAPP 362] a provisional basis and from permanently filling the vacancy to which Mr. Boggan had been appointed after having been certified as one of the three highest scorers on the open competitive test. The plaintiffs' complaint alleged that Mr. Boggan's employment was in violation of the charter of the City of Flint on the grounds that the Civil Service Commission had failed to make a determination that it was not practicable to fill the position by promotion of employees already within the classified service of the City of Flint. The plaintiffs further alleged that the provisional appointments of Frank N. Patitucci to the position of Director of Community Development on January 26, 1972 and Ray Vyvyan to the position of Buildings and Inspection Director on May 30, 1972 were likewise improper and in violation of the provisions of the city charter. Both Patitucci and Vyvyan had, likewise, been provisionally appointed and then given permanent appointments when they were among the top three qualifiers from the open competitive exam.

On April 4, 1973, after a lengthy trial and submission of detailed briefs, the court issued an eight page opinion, in which it analyzed the meaning of § 247(a). The court expressed its opinion that § 247(a) concerned vacancies and applied to the positions in question in the instant case.

The trial court stated the following conclusions pertinent to this appeal:

'The Court concludes that Plaintiffs should have the following relief prayed for in their Complaint:

'1. That the three positions in question should be declared vacant because of the failure of the Civil Service Commission to comply with requirements of the Charter.

[64 MICHAPP 363] '2. (A) Sec. 247(a) should apply to all vacancies in higher positions.

'(B) The Civil Service Commission should first determine if there are eligible employees qualified to take an in service examination.

'(C) Notice of such in service examination should be posted to permit employees to seek to qualify for such examination.

'(D) Sec. 247(c) If a promotional examination is not held and there are less than two eligibles employed by a given department and willing to compete, an open competitive examination may be scheduled.'

On May 7, 1973, the court issued a judgment which embodied these conclusions. The court also ordered that:

'the Defendants herein, in applying the first sentence of Section 247(a) of the Charter, shall construe the word 'practicable' as meaning 'that which may be done, practiced or accomplished; that which is performable, feasible, possible; and the adverb practicably means in a practicable manner."

A review of the trial court's rulings requires an interpretation of § 247(a) examined together with subsections (b) and (c) of § 247 and viewed in light of the purposes behind the civil service. Section 247 provides, in pertinent part:

'(a) Civil service commission to rule on promotional tests. Vacancies in higher positions in the classified service shall be filled so far as practicable by the promotion or advancement of employees in the service. The civil service commission Shall in each case determine whether or not an open competitive fitness test shall be held or whether a promotional test shall be conducted among the eligible employees of the department in which a vacancy occurs. The civil service commission shall Also determine what classes of employees[64 MICHAPP 364] are eligible to compete for promotion by reason of direct previous experience in work which would be natural preparation for the higher position.

'(b) Interdepartment advancement. If, in filling vacancies in a higher position, it is found that there are eligible employees who may be qualified for the work in two or more departments, the civil service commission May order a competitive examination. Employees having served six months or more in the department in which the vacancy occurs which would constitute a natural preparation or training for the higher type of employment, and competing in such examination, shall receive an additional credit of ten percent of their passing grade on the training and experience part.

'(c) Departmental promotions. 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 within a given department who have previously served in other specified classes for such a period as may be prescribed by the civil service commission. Whenever there are two or more persons, all in the same department, eligible and willing to compete for a vacancy in a higher position, the civil service commission may, if it deems that a satisfactory appointee can be obtained in this manner, hold a promotional examination, in which case only the name of the person having the highest rating shall be certified to the appointing authority. If a promotional examination is not held and there are less than two eligibles employed by a given department and willing to compete, an open competitive examination may be scheduled, or in exceptional cases, the civil service commission may authorize the promotion without competition of such eligible person * * *.' (Emphasis supplied.)

On appeal, plaintiffs' reasoning parallels that of the trial court. Plaintiffs define 'practicable' as meaning 'possible'. Under this definition, once there are two or more eligible in-service employees who desire to compete for the vacant position, the [64 MICHAPP 365] commission has no discretion in choosing the type of examination.

Defendants contend that § 247 states a preference for filling vacancies by promotion, but that this preference is directory, not mandatory. They argue that the determination of practicability is up to the discretion of the commission and that, regardless of the number of eligibles, a promotional exam is practicable only when the commission ascertains that the vacancy can be best filled in that way.

While this matter is one of first impression in this jurisdiction, a number of other jurisdictions have considered the problem. The general rule developed by those opinions is that the decision as to open or promotional exam is a discretionary one:

'Decisions of civil service commissions to hold open competitive examinations instead of merely promotion examinations will not be reversed by the courts absent proof that the administrative decision is illegal, unreasonable, arbitrary or capricious.' 2A Antieau, Municipal Corporation Law, § 22.04, p. 223.

See also Short v. Kissinger, 184 Neb. 491, 168 N.W.2d 917 (1969); Camfield v. Mealy, 288 N.Y. 149, 42 N.E.2d 9 (1942); Hewitt v. State Civil Service Commission, 114 Colo. 561, 167 P.2d 961 (1946); Flanagan v. Department of Civil Service, 29 N.J. 1, 148 A.2d 14 (1959); Timmins v. Civil Service Commissioners, 276 Mass. 142, 177 N.E.1, 75 A.L.R. 1232 (1931). This discretion is limited by the requirement that promotional examinations be held where practicable. Allen v. McKinley, 18 Cal.2d 697, 117 P.2d 342 (1941). Where courts have held that discretion has been abused, they have often based their holding on a large number of employees available for [64 MICHAPP 366] promotion, Allen v. McKinley, supra; Ptacek v. People ex rel. Deneen, 194 Ill. 125, 62 N.E. 530 (1901), and a past history of using promotional exams for the challenged position, Stagge v. City Service Commission of Baltimore City, 217 Md. 466, 143 A.2d 502 (19...