Opinion
No. 73-344
Decided August 20, 1974. Rehearing denied September 10, 1974.
Upon remand of action concerned with police promotional procedures, district court ordered a revised promotion list to be prepared and ordered promotions on the basis of the revised list. One plaintiff who was found not entitled to promotion under this revised list appealed.
Affirmed
1. CIVIL SERVICE — Action — Police Promotional Procedures — Remand — Plaintiff — Number 87 — Revised List — Not Prejudiced — Promotion — 82 Others — No Error — Dismissal of Complaint. Where, upon remand of action challenging police promotional procedures, a revised promotion list was prepared for use by the court and, in that list, plaintiff policeman was accorded position number 87, plaintiff was not prejudiced by the promotion of 82 other officers on the basis of their positions in the revised list at the time of each appointment, and thus, there was no error in dismissal of that plaintiff's complaint.
Appeal from the District Court of the City and County of Denver, Honorable Edward J. Byrne, Judge.
Flowers Creamer, James W. Creamer, Jr., for plaintiff-appellant.
Max P. Zall, City Attorney, Brian H. Goral, Assistant City Attorney, Robert D. Dowler, Assistant City Attorney, for defendants-appellees.
Plaintiffs Spickard and Pinder and the plaintiff-appellant Boles were among several hundred Denver police officers who took an examination conducted by the defendant Civil Service Commission (Commission) in 1969 for promotion to the rank of sergeant. These three officers had not been promoted and had sued to enjoin the promotion of any of the examinees. The district court refused to enjoin. On appeal from that decision, this court, in Spickard v. Civil Service Commission, 31 Colo. App. 450, 505 P.2d 32, determined that the method by which the merit board arrived at a "merit" rating, which constituted 10% of each candidate's score, fell short of the requirements of being competitive and impartial. The case was remanded to the trial court for proceedings consistent with that opinion.
On remand, the district court ordered the Commission to prepare and submit to the court a revised promotion list, re-ranking the candidates numerically on the basis of their new scores after deleting "merit" points from the former scores. The court then compared the numerical ranking of the three plaintiffs on this revised list with the total number of examinees who had been promoted as of each date on which appointments were made. It determined that if, at the time of any appointment, the numerical rank of any plaintiff was a number less than the total number of sergeants who had been appointed through that date, then that plaintiff was to be promoted to the rank of sergeant as of that date or as of the date the Civil Service Commission should have re-ranked the officers without the "merit" portion of the examination (March 26, 1970), whichever is later.
Using this newly calculated list, the court ordered that plaintiff Pinder, who was number 50 on the revised list at a time when more than that number had been made sergeant, be promoted. He was promoted to the rank of sergeant as of March 26, 1970. It concluded that neither Spickard nor Boles was certifiable for promotion, and dismissed the complaint as to these two officers, Boles appeals. We affirm.
As to Boles, the trial court found from the evidence that promotion was on the basis of numerical position on the list, that 82 promotions to sergeant were available and had been made, but that Boles' position on the revised list was number 87. At no time on any list was Boles' position high enough to have his name submitted for appointment. Boles does not contest these findings. Instead, he contends that the court should order him promoted if any of those previously appointed by the Commission had a recalculated score equal to his present recalculated score. We disagree.
[1] The propriety of the promotion of other officers, even those with recalculated scores equal to Boles' recalculated score, is not before us for review because the other officers are not parties to this suit. Inasmuch as Boles, from position number 87 on the list, was not prejudiced by the appointment of 82 others on the basis of their position at the time of each appointment, there was no error in the dismissal of Boles' complaint.
The judgment is affirmed.
JUDGE COYTE and JUDGE SMITH concur.