Opinion
August 7, 1951. Rehearing Denied September 5, 1951.
Appeal from the Circuit Court, Pinellas County, Victor O. Wehle, J.
Lewis T. Wray, Harry I. Young, Frank D. McDevitt and Adrian S. Bacon, St. Petersburg, for appellants.
Carroll R. Runyon (of Holland Runyon), St. Petersburg, for co-appellant Civil Service Commission.
Fogle Dunham, St. Petersburg, for appellee.
On July 31, 1938, the appellee, D.H. Bolender, was employed by the City of St. Petersburg and assigned to its police department. He has served the City of St. Petersburg as an officer continuously since 1938 and was rendering such service at the time of the institution of this suit on April 15, 1950. Applicable since 1937 to certain designated employees of said city is Chapter 18890, Special Acts of 1937, Laws of Florida, as amended by Chapter 21552, Special Acts of 1941, Laws of Florida, the same being the Civil Service Act of the City of St. Petersburg. Chapter 18890 created or established a Civil Service Commission and conferred upon it designated powers and authority with reference to the employees of the city. The terms of the Act grant to the Commission the power to make all reasonable rules incident to and necessary for carrying out the purposes of the Act. Examinations, appointments and removals of employees, as provided for in the Act, are regulated by rules promulgated by the Civil Service Commission. See Section 4 of Chapter 18890, supra.
D.H. Bolender for some time prior to November 16, 1946, held a position as patrolman of the police department of the City of St. Petersburg with Grade IVB 1 and, upon the recommendation of the Chief of Police and approval of the Civil Service Commission, under date of November 27, 1946, effective November 16, 1946, patrolman Bolender was transferred to the position of Detective Grade IVA. On November 28, 1949, when D.H. Bolender was employed by the City of St. Petersburg as Detective IVA upon the recommendation of the Chief of Police and approval of the Civil Service Commission, the said D.H. Bolender was given a probationary appointment to the position on the police force of Detective Sergeant Grade IIIB. The recommendation of the Chief of Police was approved by the Civil Service Commission on December 14, 1949.
On October 28, 1949, L.D. Humes, Secretary and Chief Examiner (presumably attached to Civil Service Commission), addressed to appellee the following letter: "Dear Sir:
"We wish to advise that you qualified in our recent examination for the position of Probationary Sergeant of Detectives with a final grade of 88.45%, which included 5 military credit points. Your position on the eligible list is Number 2, subject to medical examination.
"This eligible list will remain in effect for a period of two years, and thereafter until it is canceled by the Civil Service Commission.
"The Civil Service Law and Rules provide that the names of the three persons standing highest on the register of eligibles appropriate to the duties of the position be submitted to the Department Head for consideration. You will be notified as soon as your name is submitted, and if at that time, you are otherwise employed and desire to waive your appointment please do so promptly in writing.
"In case you change your place of residence, kindly notify this office at once." (Emphasis supplied).
The Chief of Police of St. Petersburg, prior to April 12, 1950, recommended a transfer of Probationary Sergeant, Grade IIIB, D.H. Bolender from the position of the Detective Bureau to the uniform rank, with a rating (under the Civil Service Act and Rules of the city) of Patrolman, Grade IV, and salary of $220 per month. The recommendation of the Chief of Police was approved by the Civil Service Commission on April 12, 1950, and was made effective April 16, 1950. The letter is viz.:
"City of St. Petersburg Florida
From: Police Department Civil Service Commission:
Effective April 16, 1950. D.H. Bolender Date Name
Prob. Detective Sergeant, Grade IIIB,in this Department. Position
is hereby
transferred from the Detective Bureau to the uniform rank. His rating will be Patrolman, Grade IV, and his salary will be $220. per month.
For the following reasons:
He has failed to pass his probationary period satisfactorily.
Approved Recommended by /s/ J.R. Reichert Department Head
Approved by Civil Service Commission in open meeting April 12, 1950."
Section 3 of Chapter 18890, supra, provides that the Civil Service Commission shall classify all the offices and places of employment of the city with reference to examinations, except those offices and places mentioned in Section 11. The offices and places classified by the Commission shall constitute the classified service of such city and no appointment to any such office or place shall be made except under and according to the rules hereinafter mentioned. Sections 1 and 2 of Chapter 21552, Amended Sections 11 and 13 of Chapter 18890. Section 4 of Chapter 18890 authorizes the promulgation and adoption of such rules as may be necessary to carry out the terms and provisions of Chapter 18890, as amended by Chapter 21552.
Section 6 of Chapter 18890 provides that all applicants for offices or places in the classified service, except those mentioned in Section 11, as amended by Sections 1, 2 and 3 of Chapter 21552, shall be subject to examination, which shall be public, competitive and free to all citizens of the United States, with specific limitations * * * and moral character. Such examinations shall be practical in their character and shall relate to those matters which will fairly test the relative capacity of the persons examined to discharge the duties of the position to which he seeks to be appointed and shall include tests of physical qualification and health * * *. The Civil Service Commission shall control all examinations.
Section 8: From the returns or reports of the examiners or from the examination made by the Commission, the Commission shall prepare a register for each grade or class of position in the classified service of the city of the persons whose general average standing, upon examination for such grade or class, is not less than the minimum fixed by the rules of the Commission and who are otherwise eligible; and such persons shall take rank upon the register as candidates in the order of their relative excellence as determined by the examination, without reference to priority of time of examination.
Section 9 provides that the Commission shall, by its rules, provide for promotion in such classified service on the basis of ascertained merit and seniority in service and examination and it shall provide in all cases where it is practicable that vacancies shall be filled by promotion. All examinations for promotions shall be competitive among such members of the next lower rank as desire to submit themselves to such examination; and it shall be the duty of the Commission to submit to the City Manager the names of not more than three applicants for each promotion, having the highest rating. The method of examination and the rules governing the same and the method of certification shall be the same as provided for applicants for original appointments.
Section 10 of Chapter 18890, supra, provides: Where there is a position in the classified service to be filled, the City Manager shall notify said Commission of the fact and said Commission shall certify to the City Manager the names and addresses of the candidates standing highest upon the register of the class or grade to which said position belong. In making such certification, sex shall be disregarded except when the rules of said Commission or the City Manager specify sex. The City Manager shall notify said Commission of each position to be filled separately and shall fill such place by the appointment from the persons certified to him by said Commission therefor, which appointment shall be on probation for a period to be fixed by said rules. Said Commission may strike off names of the candidates from the register after they have remained thereon more than two years. At or before the expiration of the period of probation, the Head of the Department or office in which the candidate is employed may, by and with the consent of the City Manager and the Civil Service Commission, discharge him upon assigning, in writing, his reasons therefor to the Civil Service Commission. If he is not then discharged, his appointment shall be deemed complete. To prevent the stoppage of public business or to meet extraordinary exigencies, the City Manager, with the approval of the Commission, may take temporary appointments to remain in force not exceeding sixty days and only until registered appointments under the provisions of the Act can be made.
Section 12. Removals: No officer or employee in the classified service of the city who shall have been appointed under said rules and after said examination shall be removed or discharged, except for cause, upon written charges and after opportunity to be heard in his own defense. Such charges shall be investigated by or before said Civil Service Commission or by or before some officer or board appointed by said Commission to conduct such investigation. The findings and decisions of such Commission shall be certified to the City Manager and there shall be no appeal from the decision of the Commission * * *.
Section 10 of Chapter 18890 was implemented prior to May 4, 1946, by Section 6 of Rule IV viz.: "Original appointment shall be on probation for a period of six months, but there shall be no probation period in the case of appointments from promotion lists. If any probationer, upon a fair test, shall be found incompetent or unqualified to perform the duties of the position to which he had been certified, the appointing officer shall certify the same to the Commission in writing, specifying his reasons and request the separation of such probationer. Upon the approval of the Commission such probationer shall be discharged. Time served on probation, whether continuous or not, shall be credited upon the period of probation."
A revision by the Civil Service Commission was made of Rule IV, Section 6, effective May 4, 1946, and pertinent portions thereof are viz.: "Any appointment, whether from an entrance or promotional eligible register, to a permanent position in the Classified Service shall be on probation. If any probationer, upon a fair test, is found incompetent or unqualified to perform the duties of the position to which he has been certified, the appointing officer shall furnish the Civil Service Commission with a written notice that the employee is unsatisfactory, specifying his reasons and request the separation of such probationer. Upon the approval of the Commission, such probationer shall be discharged unless the probationer had been appointed from a promotional register, in which case the employee shall be returned to the position from which promotion was made. Time served on probation, whether continuous or not, shall be credited upon the probationary period. `Time served on probation' for employees paid on a monthly or weekly basis shall be construed to mean actual time served by the employee after making deductions for time off for personal reasons, illness, suspensions, or layoffs, but not for time off due to injury received while on duty, and seniority shall be established as of the date the six months actual service has been completed."
It appears by the record that Bolender when serving the city as a patrolman, Grade IV, took one of the promotional examinations given by the Civil Service Commission and obtained a grade of 88.45% and thereby became No. 2 on the register or eligible list for promotion as kept by the Commission. Bolender was in the classified service prior to and at the time of taking the examination. Bolender was certified under the Act and Rules of the Civil Service Commission on November 28, 1949, to the position of Detective Sergeant IIIB, where he served until April 16, 1950, and was, upon the approval of the Civil Service Commission, returned to his former position with the city as Patrolman Grade IV, with a monthly salary of $220. The reasons assigned for not giving him the permanent appointment of Detective Sergeant, IIIB, are viz.: (1) He did not work well with fellow officers and was a poor team worker; (2) he frequently exercised poor judgment; (3) indulgence in alcoholic beverages while on duty; (4) public and excessive indulgence in alcoholic beverages and intoxication while off duty; (5) he did not have the confidence and respect of the men that should be had by an officer in the Police Department.
Bolender filed in the Circuit Court of Pinellas County, Florida, his bill of complaint under Chapter 87, F.S.A., being the Declaratory Judgments Act, against the Chief of Police and the Civil Service Commission of St. Petersburg and prayed: First, for an order restraining the defendants from transferring him to another rank on the police force or reducing his monthly salary; and second, that the Court fix or decree the Civil Service status of the plaintiff under the Civil Service Act and Rules promulgated thereunder. Answers were filed denying that Bolender was a classified Detective Sergeant, neither did he hold an appointment as such, but his Civil Service status was that of a probationary sergeant on the police force. The Chancellor sustained a motion to strike the answers on the ground that they failed to state any defense. A final decree was entered holding that Bolender's appointment as Detective Sergeant IIIB was permanent and not a probationary appointment. The defendants appealed.
On November 28, 1949, the position on the police force of Detective Sergeant, Grade IIIB, became available. The City Manager so advised the Civil Service Commission and the name of D.H. Bolender was certified to the Chief of Police for the position. In the appointment of Bolender the provisions of Section 10, supra, were substantially observed. Language thereof is viz.: "which appointment shall be on probation for a period to be fixed by said rules." The probationary period fixed by the rules was six months and within the six month period the Civil Service Commission declined to make the appointment permanent because the services rendered by Bolender during the probationary period were unsatisfactory, and Bolender, upon the recommendation of the Chief of Police, approved by the Civil Service Commission, was returned to the uniform rank of Patrolman, Grade IV, and salary of $220 per month. It appears by the record that Bolender failed to meet the several tests or requirement of Police and the Civil Service Commission in a satisfactory manner during the probationary period. It is not here contended the Act, or portions thereof, or the Rules promulgated under it are arbitrary or unreasonable.
The decree appealed from is reversed with directions to dismiss the bill of complaint.
SEBRING, C.J., and ADAMS and ROBERTS, JJ., concur.