State ex rel. Killingsworth v. George, ED 85262.
| Citation | 168 S.W.3d 621 |
| Decision Date | 30 August 2005 |
| Docket Number | No. ED 85262.,ED 85262. |
| Parties | STATE of Missouri ex rel. Wayne KILLINGSWORTH, et al., Respondents, v. Sherman GEORGE, Appellant. |
| Court | Missouri Supreme Court |
Donald L. Wolff, Clayton, MO, for appellant.
Jerome A. Diekemper, Janine M. Martin, St. Louis, MO, for respondent.
City of St. Louis Fire Chief Sherman George appeals the judgment granting the petition of Relators Wayne Killingsworth, John Fischer, James Willie, Gail Simmons, Russ Richter, Daniel Fog (collectively "Eligible Candidates") and the St. Louis Firefighters Association Local 73 for a writ of mandamus compelling him to make appointments under the Civil Service Rules of the City of St. Louis ("City"). We reverse.
In early 2004, the City's Department of Personnel administered competitive promotional examinations for the positions of fire captain and battalion fire chief in the City's Fire Department. Based on the examination results, the Department of Personnel prepared a ranked list of candidates for promotion to the positions. The Eligible Candidates successfully completed the examination process for promotion and were placed on the pertinent promotion list for one of the positions.
In July 2004, Chief George, as the appointing authority for positions within the City's Fire Department, submitted a request for certification to the Director of Personnel to fill two vacancies in the position of battalion fire chief and eight vacancies in the position of fire captain. The Department of Personnel filled the request and sent Chief George certified lists of eligible candidates for the job vacancies. The same day, the Department of Personnel sent letters to the Eligible Candidates alerting them to the imminent promotions. The Director of Personnel later extended the time period for appointing candidates from the certified list for an extra thirty days beyond its expiration date of August 2, 2004, as authorized by Civil Service Rule VII, Section 4. Thus, the certified list was in effect until September 1, 2004.
As of September 1, 2004, Chief George had not made any selections from the certified list. Relators filed a petition in mandamus requesting a permanent writ directing Chief George to make appointments from the certified list in effect on September 1, 2004. The trial court granted Relators' petition. This appeal follows.
In his sole point on appeal, Chief George argues that the trial court erred by issuing a writ of mandamus because, as appointing authority, he has discretionary power under the Civil Service Rules ("Rules") to appoint and promote or not to appoint and not promote from the lists of eligible candidates provided by the Department of Personnel. He further contends that because the power to appoint and promote is discretionary, the trial court's grant of a writ of mandamus was improper.
The grant or refusal of a writ of mandamus is reviewed under an abuse of discretion standard. Jones v. Carnahan, 965 S.W.2d 209, 213 (Mo.App.1998). A court may issue the extraordinary relief of mandamus to compel the performance of a ministerial duty but not to compel the performance of a discretionary duty. Id. at 212-13. A ministerial act is an act that the law directs the official to perform upon a given set of facts, independent of what the officer may think of the propriety or impropriety of doing the act in a particular case. Id. at 213. A discretionary act is one requiring the exercise of reason in determining how or whether the act should be done. Id.
A court may issue mandamus only where there is an unequivocal showing that the public official failed to perform a ministerial duty imposed by law. Id. The applicant for relief must prove that he has a clear, unequivocal, specific and positive right to have performed the act demanded, and the remedy will not lie if the right is doubtful. Id. To determine whether the right to mandamus is clearly established and presently existing, we examine the statute under which the relator claims a right. Id. If the statute involves a determination of facts or a combination of law and facts, a discretionary act rather than a ministerial act is involved, and this discretion cannot be coerced by the courts. Id.
In determining the meaning of a city ordinance, courts apply the same rules that are used in construing a state statute. Matthews v. City of Jennings, 978 S.W.2d 12, 15 (Mo.App.1998). We generally seek to ascertain the intention of the lawmakers by giving the words used their ordinary meaning, by considering the entire act and its purposes, and by seeking to avoid unjust, absurd, unreasonable, confiscatory or oppressive results. State ex rel. Jackson County v. Spradling, 522 S.W.2d 788, 791 (Mo. banc 1975). Further, in ascertaining the meaning of a particular statute, resort may be had to the established policy of the legislature as disclosed by a general course of legislation. Id.
Article XVIII of the St. Louis City Charter ("Charter") governs appointments and promotions to classified service. The stated purpose of Article XVIII is as follows:
[T]o provide a modern and comprehensive system of personnel administration for the [C]ity, whereby economy and effectiveness in the personal services rendered to the [C]ity, and fairness and equity to the employees and the taxpayers of the [C]ity, alike, may be promoted. To accomplish this end the provisions of this article shall be liberally construed....
Charter, Article XVIII, Section 2. To accomplish the Charter's purpose, among other principles and policies, Section 2(a) of the Charter requires the City to apply the following principle and policy:
Merit and fitness. All appointments and promotions to positions in the service of the [C]ity and all measures for the control and regulation of employment in such positions, and separation therefrom, shall be on the sole basis of merit and fitness, which, so far as practicable, shall be ascertained by means of competitive tests, or service ratings, or both.
Id. The Charter sets forth specific provisions for the testing and promotion process, including competitive examinations, certification and appointment of eligible candidates, filling vacancies, and promotions. Id. at section 3(c)-(e). The Charter delegates to the Director of Personnel the duty and power to hold examinations, to pass upon the qualifications of applicants, to establish eligible lists as needed, and to...
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