Seskevich v. City Clerk of Worcester

• Decision Date: 04 December 1967
• Parties: Anthony M. SESKEVICH v. CITY CLERK OF WORCESTER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 376

231 N.E.2d 376

353 Mass. 354

Anthony M. SESKEVICH v. CITY CLERK OF WORCESTER et al.

Supreme Judicial Court of Massachusetts, Worcester.

Argued Nov. 7, 1967.

Decided Dec. 4, 1967.

Richard J. Sarapas, Worchester, for plaintiff.

Henry P. Grady, Asst. City Sol., for defendants.

Edward W. Hanley, III, Deputy Asst. Atty. Gen. (Howard M. Miller, Asst. Atty. Gen., with him), for the Director of Civil Service and another.

Before WILKINS, C.J., and WHITTEMORE, CUTTER, KIRK, SPIEGEL and REARDON, JJ.

WHITTEMORE, Justice.

The plaintiff, Seskevich, sought a declaration under G.L. c. 231A that he is entitled to be appointed first assistant city clerk of the city of Worcester. In the Superior Court the demurrer of certain defendants, that is, the members of the city council, the city treasurer, the city clerk and Thomas F. Donahue, was sustained. Also there was allowed a 'motion to dismiss' filed by the defendant members of the Civil Service Commission and the Director of Civil Service. A final decree dismissing the bill was entered. The plaintiff appealed from the decrees sustaining the demurrer and allowing the 'motion to dismiss' and from the final decree. The substantive issue is whether the city council validly appointed to the office the defendant Donahue. The plaintiff and the demurring defendans have asked that we decide that issue on the facts alleged.

The bill of complaint alleges that the Director of Civil Service had certified as eligible two disabled veterans, Seskevich as No. 1 and Donahue as No. 2. On motion demurring defendants have asked that we to appoint Seskevich, a council member requested the city clerk's recommendation. The city clerk stated that he had reviewed the examination papers and gradings and had 'found considerable discrepancy in the grading of the practical questions' and that he recommended the appointment of Donahue. The motion to appoint Seskevich was defeated. On May 9, 1966, at an executive session, the city clerk looked at and discussed the examination papers of Seskevich and Donahue, and stated that in his view the papers were incorrectly graded. The city council thereafter voted to appoint Donahue.

The statute provides (G.L. c. 31, § 23): 'The names of persons who pass examination for appointment to any position classified under the civil service shall be placed upon the eligible lists in the following order:--(1) Disabled veterans as defined in section twenty-three A, in the order of their respective standing; (2) veterans in the order of their respective standing; (3) persons described in section twenty-three B in the order of their respective standing; (4) other applicants in the order of their respective standing. Upon receipt of a requisition not especially calling for women, names shall be certified from such lists according to the method of certification prescribed by the civil service rules applying to civilians. A disabled veteran shall be appointed and employed in preference to all other persons, including veterans.'

The plaintiff contends that this shows by implication a policy to favor disabled veterans in the order of their respect standings. There is nothing in this. Chapter 31, § 15, permits appointments from an eligible list. Section 15C requires that if the appointing authority appoints a person other than the person highest on the list, it must deliver a statement of reasons to the director and no such appointment shall be effective until such statement is eceived. The preference to disabled veterans does not distinguish among those on the eligible list who are in that class.

The plaintiff also contends that the action of the city clerk in inspecting the examination papers and making a recommendation rendered the appointment void. Civil Service Rule 8(1) provides that a person taking the examination or his representative 'may inspect his papers.' Rule 16(1) provides that 'the appointing officer * * * may be allowed to examine the applications, the certificates and examination papers of the persons certified.' This gave certain unqualified rights of inspection; it did not make illegal inspection by other persons not specified. The law is now otherwise. ¹ The city clerk keeps the records of the city council and 'perform(s) such duties as the council...