Legg v. Smith, 18674

• Decision Date: 03 July 1989
• Docket Number: No. 18674,18674
• Citation: 181 W.Va. 796,384 S.E.2d 833
• Court: West Virginia Supreme Court
• Parties: Randal M. LEGG v. Joseph SMITH, Mayor; the City of Charleston; and Fireman's Civil Service Commission of the City of Charleston.

Page 833

384 S.E.2d 833

181 W.Va. 796

Randal M. LEGG v. Joseph SMITH, Mayor; the City of Charleston; and Fireman's Civil Service Commission of the City of Charleston.

No. 18674.

Supreme Court of Appeals of West Virginia.

July 3, 1989.

Syllabus by the Court

1. " 'Where the language of a statute is clear and without ambiguity the plain meaning is to be accepted without interpretation.' Syllabus Point 2, State v. Elder, 152 W.Va. 571, 165 S.E.2d 108 (1968). Syllabus Point 2, State ex rel. Underwood v. Silverstein, W.Va. , 278 S.E.2d 886 (1981)." Syllabus Point 1, Fucillo v. Workers' Compensation Comm'r., [ 180 W.Va. [595, 378 S.E.2d 637 (1988).

2. There must be strict compliance with the provisions of the Civil Service for Paid Fire Departments, W.Va.Code, 8-15-11 et seq. [1987].

3. W.Va.Code, 8-15-20 [1969] requires that the appointing officer make an appointment among the three names certified by the fireman's civil service commission. Although the appointing officer is not required to appoint the candidate with the highest score, all appointments must be made with sole reference to the relative merit and fitness of the candidates. A candidate's name may be stricken from the list of eligible candidates after his or her name has been rejected three times in favor of a name or names below it on the list.

4. W.Va.Code, 8-15-20 [1969], provides that the appointing officer may make an objection to the commission, to one or more of the certified candidates, for any of the reasons stated in W.Va.Code, 8-15-19 [1969].

James F. Wallington, Charleston, for Randal M. Legg.

John L. Charnock, Chareston, for appellees.

NEELY, Justice:

Randal M. Legg appeals a decision of the circuit court that refused to require the City of Charleston to hire Mr. Legg as a fireman. The circuit court found that because there were no material issues of fact, the plaintiff, as a matter of law, was not entitled to be hired. Because we agree that Mr. Legg is not entitled to be appointed to the city fire department, we affirm the judgment of the Circuit Court of Kanawha County.

In January 1981, Mr. Legg and other candidates for employment by the City of Charleston's fire department took written and oral examinations given by the Fireman's Civil Service Commission. Based on a combined examination score, the Commission published a list containing the names of thirty-five (35) eligible candidates. Mr. Legg was listed in tenth position with a combined score of 85.25 out of a maximum score of 100. On 22 April 1982, and 4 May 1982, Joseph Smith, Mayor of the City of Charleston, appointed certain candidates from the list of eligible candidates. Some of those appointed had a lower score than Mr. Legg. On 30 April 1982, Mayor Smith advised Mr. Legg that he would no longer be considered for appointment because he had been passed over three times. Thereafter Mayor Smith appointed other candidates with lower scores than Mr. Legg's to the City's fire department.

On 4 May 1982 Mr. Legg requested a hearing before the Fireman's Civil Service Commission. The commission, claiming it lacked jurisdiction, refused to grant Mr. Legg a hearing. Mr. Legg then brought an action in the Circuit Court of Kanawha County seeking a declaration that, as a matter of law, he should be appointed to the City of Charleston's fire department.

Mr. Legg's motion for summary judgment was denied by the circuit court and on 25 September 1987, the circuit court entered a judgment in favor of the appellees. ¹

On appeal Mr. Legg argues that although three names of eligible candidates are submitted by the commission to the mayor, then the mayor must appoint only the candidate with the highest examination score and, at some point, because of the number of vacancies, Mr. Legg became the candidate with the highest score and was entitled to be appointed. We find, however, that the appointing officer is not limited to appointing the highest scoring candidate, but may chose among the three candidates certified.

I.

In considering a civil service statute it is important to follow the statute "as closely as possible in order to carry out the intention of the Legislature which enacted it." Martin v. Pugh, 175 W.Va. 495, 501, 334 S.E.2d 633, 639 (1985) (regarding the police civil service statute quoting Daniels v. McCulloch, 168 W.Va. 740, 745, 285 S.E.2d 483, 486 (1981)). The paid fire department civil service statute provides a complete and exclusive system for the appointment, promotion, reinstatement, removal, reduction, discharge and suspension for all covered positions. ² The purposes of civil service for paid fire departments are to promote personal efficiency, to assure fitness for the performance of duties is the criterion in all appointments and promotions, and to avoid discharges without cause. See State ex rel. McLaughlin v. Morris, 128 W.Va. 456, 37 S.E.2d 85 (1946). The necessity for strict compliance with the statute is shown in the key section involved in the case, namely, W.Va.Code, 8-15-20 [1969] which begins by requiring that "[e]very position, unless filled by promotion, reinstatement or reduction, shall be filled only in the manner specified in this section." ³

The appointment procedure for paid fire departments is specified in W.Va.Code, 8-15-11 et seq. [1987], and consists of (1) development of a list of eligible candidates through competitive examinations and (2) appointment from the list of eligible candidates. In the present case, Mr. Legg's objections concerned only the second part of the procedure, namely, appointment from the list of eligible candidates. W.Va.Code, 8-15-20 [1969] determines the procedures for the appointment from the list of eligible candidates:

The appointing officer shall notify the firemen's civil service commission of any vacancy in a position which he desires to fill, and shall request the certification of eligibles. The commissioner shall forthwith certify, from the eligible list, the names of the three individuals thereon who received the highest averages at preceding competitive examinations held under the civil service provisions of this article within a period of three years next preceding the date of the prospective appointment. The appointing officer shall, thereupon, with sole reference to the relative merit and fitness of the candidates, make an appointment from the three names so certified: Provided, that should he make objection, to the commission, to one or more of these individuals, for any of the reasons stated in section nineteen [§ 8-15-19] of this article, and should such objection be sustained by the commission, after a public hearing along the lines of the hearing provided for in section nineteen, if any such hearing is requested, the commission shall thereupon strike the name of any such individual from the eligible list, and certify the next highest name for each individual so stricken.

W.Va.Code, 8-15-20 [1969] requires that upon notice of a vacancy from the appointing officer, the fireman's civil service commission shall certify the names of three candidates who received the highest scores at the appropriate preceding competitive examination. Then the appointing officer selects among the three candidates certified by the commission, considering only the relative merit and fitness of the candidates. The appointing officer may make an objection about a candidate or candidates to the commission for one or more of the reasons stated in W.Va.Code, 8-15-19 [1969]. Some of these reasons include: addiction to drugs or intoxicating liquors; criminal behavior or notoriously disgraceful conduct; dismissal from public service for misconduct; or fraudulent behavior with respect to securing the fireman civil service position. ⁴ If the appointing officer makes an objection, W.Va.Code, 8-15-20 [1969] requires the fireman's civil service commission, if requested, to provide a public hearing similar to the public hearing described in W.Va.Code, 8-15-19 [1969].

Under W.Va.Code, 8-15-20 [1969], the appointing officer must select among the three names certified by the fireman's civil service commission. The appointing officer is vested with authority to exercise his best judgment, within the framework of merit and certification, to make an appointment. Appointments are not ministerial acts and the appointing officer exercising this limited authority might consider, for example, such personal characteristics as maturity, dependability, and experience. In Gartin v. Fiedler, 129 W.Va. 40, 38 S.E.2d 352 (1946) (regarding the mayor's role in a police promotion) we stated:

The mayor's function in selecting members of...