Portland Police Ass'n v. Civil Service Bd. of Portland

• Jurisdiction: Oregon
• Parties: PORTLAND POLICE ASSOCIATION, Petitioner on review, v. CIVIL SERVICE BOARD OF PORTLAND, Linda Rasmussen, Kenneth Gunther, and Rudolph Westerband, Respondents on review. ; CA 18732; SC 27970.
• Citation: 639 P.2d 619,292 Or. 433
• Docket Number: No. A8004-02027,A8004-02027
• Court: Oregon Supreme Court
• Decision Date: 26 January 1982

Page 619

639 P.2d 619

292 Or. 433

PORTLAND POLICE ASSOCIATION, Petitioner on review, v.CIVIL SERVICE BOARD OF PORTLAND, Linda Rasmussen, Kenneth Gunther, and Rudolph Westerband, Respondents on review.

No. A8004-02027; CA 18732; SC 27970.

Supreme Court of Oregon, In Banc.

Argued and Submitted Oct. 6, 1981.

Decided Jan. 26, 1982.

Susan P. Graber and Pamela L. Jacklin, Portland, filed a brief as amicus curiae for American Civil Liberties Union of Oregon, Inc.

Henry K. Drummonds, of Kulongoski, Heid, Durham & Drummonds, Eugene, argued the cause and filed a petition for petitioner.On the brief were Terry DeSylvia, Myron Schreck, and Black, Kendall, Tremaine, Boothe & Higgins, Portland.

Richard A. Braman, Portland, argued the cause and filed briefs for respondents.

James M. Brown, Atty. Gen., Salem, John R. McCulloch, Jr., Sol.Gen., Michael J. Tedesco, Asst. Atty. Gen., and Judith L. Miller, Certified Law Student, Salem, filed a brief as amicus curiae for Governor of the State of Oregon.

PETERSON, Justice.

This is a proceeding for declaratory and injunctive relief in which plaintiffPortland Police Association(Association) seeks to have a rule adopted by the defendantCity of Portland Civil Service Board(Board) declared void and its implementation enjoined.The Association contends that the challenged rule is in conflict with the Portland charter and is outside the Board's rulemaking authority.The trial court agreed with the Association and granted the relief prayed for.The Court of Appeals reversed, holding that there was no charter conflict and that the rule was within the Board's rulemaking powers.52 Or.App. 285, 628 P.2d 421(1981).We affirm the Court of Appeals.

Association is the certified bargaining representative for police officers employed by the City of Portland.Board is the agency responsible, under the city charter, for certifying eligible candidates for appointment to vacant civil service positions, including those within the Police Bureau.

In 1903, by charter amendment, the City of Portland enacted its present civil service system.The purpose of the system is to ensure that all appointments to, and promotions within, the city's subordinate administrative service are made solely on the basis of merit and fitness and not on the basis of political affiliation or patronage, nepotism, or other extraneous grounds irrelevant to an applicant's ability.Charter section 4-101 provides, in relevant part:

"All appointments to and promotions in the subordinate administrative service of the city shall be made solely according to fitness, which shall be ascertained by open competitive examination, and merit and fidelity in service, as provided for in this article. * * *."(Emphasis added.)

The Civil Service Board is the entity empowered by the charter to administer the civil service system and to devise and conduct the qualification examinations.See generally, Drake v. City of Portland, 172 Or. 558, 567-569, 143 P.2d 213(1943).

Under the charter the Board has responsibility to:

1.Classify offices, places and employments within the public service based upon their functions and compensations.City of Portland Charter, § 4-104.¹

2.Devise and administer periodic competitive examinations to ascertain the relative fitness and merit of applicants.§ 4-106.²

3.Prepare and maintain a register for each grade or class of positions in the civil service, ranking applicants upon the basis of their examination score.§ 4-107. ³ 4.Certify, in the event of a vacancy within the civil service, the names of the three eligible candidates standing highest on the applicable register (the so-called "rule of three").§ 4-108.This section provides, in part:

"Whenever there shall be a vacancy in any position in the classified civil service, the appointing authority shall immediately notify the board thereof.The board shall thereupon certify to such appointing authority the names and addresses of the three eligible candidates standing highest upon the register for the class or grade to which such position belongs, but, if there be less than three, the board shall so certify all such candidates upon the register.When vacancies exist in two or more positions of the same class in the same department at the same time, the board may certify a less number than three candidates for each position, but those certified must be the eligible candidates standing highest upon the register.The appointing authority may require the candidates so certified to come before him, and shall be entitled to inspect their examination papers.The appointing authority shall appoint to each vacant position, on probation for a period to be fixed by the rules, one of the candidates so certified.Within such period, the appointing authority may discharge such probationer, and, in like manner, appoint another of such candidates, and so continue until all said candidates have been so appointed; but the appointing authority must make permanent appointment from said list of candidates unless, upon reasons assigned in writing by the appointing authority, the board consents to and does certify a new list of candidates.If any probationer is not discharged within the period of probation, his appointment shall be deemed permanent. * * * "

5."(M)ake rules to carry out the purpose and provisions of this article" from time to time, including those relating to examinations and appointments.§ 4-105.

Purportedly pursuant to its section 4-105 rulemaking powers, the Board adopted Rule 3740 relating to affirmative action certification.This rule is the one challenged by the Association in this suit.Rule 3740 provides:

"An appointing authority may request in writing that affirmative action certifications be authorized to fill vacancies, in entry level classifications, in a particular department, office or bureau.The request shall include:

"(a) Identification of the protected group (minorities, a class of minorities, or women) to which the request applies.

"(b) A documented showing that past recruitment, examination and appointment practices have resulted in an underutilization of the protected group in the specific job category within the initiating department, office or bureau.

"(c) A statement explaining the compelling interest of the department, office or bureau in achieving a balance between members of the protected group in its workforce and those in the relevant labor force.

"The request must be approved by the Board.Following approval, all certifications shall be as provided in this paragraph, until approval of the affirmative action certification is revoked by the Board.When a notice of vacancy in an entry level position is received from a department, office or bureau for which affirmative action certification has been approved, two lists of the names of eligibles available for appointment will be certified by the Board.One list will contain names of the three eligibles highest on the register for the classification and one list will contain names of the three eligibles in the protected group highest on that register.When notified of multiple vacancies, two more names than the number of vacancies will be included in each list.Should the eligible register not contain names of a sufficient number of eligibles in the protected group to meet the requirement of this paragraph, the names of all eligibles in the protected group shall be listed in the certification.

"The purpose of this rule is to aid a department, office or bureau to voluntarily achieve hiring goals according to the Affirmative Action Plan adopted by the City Council, without imposing absolute hiring quotas with respect to a protected group.When there no longer is an underutilization of the protected group in the specific job category within the initiating department, office or bureau, the Board, upon request of the appointing authority or any interested party, will revoke its approval of affirmative action certification for that department, office or bureau.

Rule 3740, in substance, requires the Board to certify, upon an agency's written request, a second and alternative list of eligible applicants.This second list will be composed of the three eligible applicants standing highest on the applicable register who are members of the relevant protected minority group.The appointing authority is then apparently given the option to choose an applicant to fill the vacancy from either of the certified lists.

The Association contends that Rule 3740 is in direct conflict with charter § 4-108, is outside the Board's authority, and is thus void.It contends that charter sections 4-108and4-101 require that all certification and hiring for available positions be done strictly on the basis of register placement, as determined by examination score, and that the second and alternative "protected group" list is in direct and irreconcilable conflict with this requirement.

To the contrary, the Board and the amici curiae contend: (1) that the challenged rule is not in conflict with the charter and is within the Board's rulemaking power, and (2) that even if the rule is in conflict with the charter, the Board has the power to implement an affirmative action program to bring the city into compliance with overriding federal, state and local equal employment opportunity laws and regulations (the so-called "preemption argument" that these laws and regulations preempt the charter provisions which conflict with Rule 3740).

The trial court held that however laudatory the Board's motivation, the rule was outside the Board's rulemaking authority.The Court of Appeals, in reversing, did not reach the preemption question, holding that the rule was not in conflict with the charter but was within the Board's rulemaking powers.

At the outset we note that the wisdom of the challenged rule is not in issue.Rather, the sequence of potential issues in determining the validity of a...