State ex rel. Dunn v. Elliott

• Decision Date: 05 December 1940
• Docket Number: 28049.
• Citation: 107 P.2d 915,6 Wn.2d 426
• Court: Washington Supreme Court
• Parties: STATE ex rel. DUNN v. ELLIOTT et al., Civil Service Com'rs.

107 P.2d 915

6 Wn.2d 426

STATE ex rel. DUNN v. ELLIOTT et al., Civil Service Com'rs.

No. 28049.

Supreme Court of Washington, En Banc.

December 5, 1940

Proceeding by the State of Washington, on the relation of Edward A Dunn, against Henry Elliott, Jr., and others, as Civil Service Commissioners of the City of seattle, for writ of mandamus directing defendants to place relator in second position on eligible list for appointment as police captain and for related relief. From a judgment dismissing the action, relator appeals.

Affirmed.

BLAKE C. J, and MAIN, J., dissenting.

Appeal from Superior Court, King County; Howard M. Findley, judge.

George H. Crandell, of Seattle, for appellant.

Joseph A. Sweeney and B. H. Camperson, both of Seattle, amici curiae.

A. C. Van Soelen, Corp. Counsel, and John E. Sanders, both of Seattle, for respondents.

STEINERT Justice.

The relator, Edward A. Dunn, petitioned for a writ of mandate directing defendants, the Civil Service Commissioners of the City of Seattle, to place him in position No. 2 on the existing eligible list for appointment to the office of police captain; to certify his name, under that number, to the chief of police of the city; and, further, to direct the chief of police to give relator the position of captain in lieu of any person holding a lower grade who might since have been appointed to that position. After a hearing by the court, judgment was entered dismissing the action. From that judgment, relator has appealed.

Appellant relator is a sergeant in the police department of the city of Seattle. On April 10, 1939, a civil service examination for promotion from police sergeant to police captain was held. Appellant, together with eighteen others holding the position of police sergeant, took the examination, and received a passing grade.

At the beginning of the examination, each competitor was given a one-page instruction sheet, upon which appeared, among other directions and information, the following: 'The written part of the examination is given at this time. Those candidates who qualify on these written tests will be called for a working test and oral interview at a later date. (Italics thus far supplied.) * * * A minimum final grade of 75% is required for entry on the eligible list for certification, as well as the passing of a satisfactory medical test.' In order to conceal the identity of those participating in the written examination, the papers were identified by number rather than by name.

On May 24, 1939, the civil service commissioners approved the results of the preliminary, or written, examination, which showed that, of the nineteen participants, eighteen had qualified in the written test. At the same time, the commissioners ordered that the papers be identified, and that the tests be completed.

The applicants who had passed the written examination were later called for oral examination which was held August 4, 1939. The board of examiners consisted of the secretary and chief examiner of the civil service commission, an engineer examiner in the civil service department, a retired police captain, and a private citizen who was a personnel officer of a public utility corporation. Each examiner was provided with a mimeographed instruction sheet. We quote the opening paragraph therefrom to illustrate the nature of the instructions as well as the purpose of the oral examination: 'You are to rate the candidate on certain characteristics which have a bearing on the likelihood that he will be successful in the position for which he is an applicant, but which are not measured by a rating of his experience and training, nor by his performance in a written examination, but which can be observed when you talk with him face to face.' In addition, each examiner was given rating forms to be used by him during the oral examination. Each form listed the following characteristics, as to which the applicants were to be judged: Voice and speech; appearance; alertness; ability to present ideas; judgment; emotional stability; confidence; friendliness; and personal fitness for the position. Under each characteristic thus specified, and along a horizontal grading line, appeared certain data which served as a scale, and according to which each examiner was required to indicate the candidate's rating as to the particular characteristic, by placing a check mark at the appropriate point on the line. For instance, underneath the characteristic designated 'voice and speech' appeared the following descriptive matter printed below and along the grading line, at points as indicated in the brackets: 'Irritating or indistinct [extreme left of the line]; understandable but rather unpleasant [second from left]; neither conspicuously pleasant nor unpleasant [center of the line]; definitely pleasant and distinct [second from right]; exceptionally clear and pleasing [extreme right of line].' The further to the right that the checkmark was placed, the higher was the grade of the applicant upon the particular characteristic.

On the day set for the oral examination, August 4, 1939, the applicants who had been successful in the written examination appeared at the appointed place and were there privately interviewed, one at a time, by the board of examiners, the interview with each applicant lasting about ten minutes. During the interview with each particular applicant, each member of the examining board placed upon the rating form held by him check marks at appropriate places on the grading line to indicate his estimate of the applicant's various characteristics. All the interviews were completed on the same day. Later that day, the chief examiner and an assistant converted the check marks on the rating forms into percentages, and the results reached by the four examiners were averaged into one final grade on the oral examination. The results of the written and oral examinations were then combined, a weight of seventy-five per cent being assigned to the results of the written examination, and a weight of twenty-five per cent to the results of the oral examination. The following day, August 5, 1939, the final examination results were approved by the civil service commission, and by letter dated August 8, 1939, appellant was notified that his final grade was 88.014%, which gave him a relative standing of No. 6, subject to the result of the required medical examination.

On August 10, 1939, appellant addressed a communication to the civil service commission requesting that he be re-examined by a different interviewing board, on the ground that one of the oral examiners was prejudiced against him. A hearing on that matter was given appellant on August 16, 1939, and subsequently his request was denied. The correctness of that ruling, however, is not involved here. We mention the matter at this time only because of the reference which we shall make to it later.

On August 23, 1939, the civil service commission, acting upon a number of protests which had previously been filed by various applicants, determined that in the written examination six questions had been graded incorrectly, and that two additional questions were controversially worded and should therefore be eliminated from consideration. The papers of all the applicants were regarded in accordance with that order, and under date of September 6, 1939, a mimeographed explanatory letter was sent to each competitor, informing him of the action taken, and setting forth in full the questions involved, followed by the answers previously considered correct, and then by the correct answers as finally determined. The two questions eliminated from consideration because of their controversial nature were likewise quoted in the letter. The communication concluded with the applicant's corrected grade and relative standing. In appellant's case, the corrections resulted in a final grade of 86.964%, and a relative standing of No. 8. His previous grade, it will be recalled, was 88.014%, and his original standing, No. 6.

On September 11, 1939, appellant addressed a latter to the department of civil service protesting, in general terms, the oral interview, and, further, protesting the 'use of the score of the oral interview * * * in the reckoning of the final average' for the examination. The entire protest was denied on the ground that it was not timely.

On November 21, 1939, this action was instituted.

While appellant petitioned to have himself placed in position No. 2 on the eligible list, he now, in his argument Before this court, contends that he is entitled to position No. 1. We will assume that this contention may be urged at the present stage of the proceedings.

With respect to his appeal in general, appellant makes three main contentions. The first is that four specific questions upon the written examination, two being of the 'true-false' variety, and two being of the 'multiple-choice' type, were graded incorrectly. A detailed statement of the questions will not be necessary.

Rule IV, § 11, of the Rules of Civil Service of the City of Seattle, provides, in part, as follows: 'When final results of an examination are determined, the commission shall pass on the results thereof. If approved, the papers shall then be identified and notice of his grade shall be sent each competitor. Any competitor may inspect his examination papers within one week of the date of such notice, and if he finds material error in the marking, or in computing the final results, he may make definite written showing to the commission. The commission shall consider these claims and make any proper corrections.' (Italics supplied)

Insofar as appellant's claim of error in marking or computing final results is concerned, the record Before us does not...