Summary
In Charron, this Court construed § 13 of 1941 PA 370, the county employee civil service act, MCL 38.401 et seq.; MSA 5.1191(1) et seq., which provides a procedure similar to that of § 11 of act 78 for appointment to vacancies in the competitive civil service, except that § 13 of act 370 provides for the certification of an appointment of one of three candidates highest on the eligibility list.
Summary of this case from DeGrace v. Shelby Township Police & Fire Civil Service CommissionOpinion
Docket No. 11396.
Decided December 7, 1972.
Appeal from Wayne, Theodore R. Bohn, J. Submitted Division 1 June 10, 1972, at Detroit. (Docket No. 11396.) Decided December 7, 1972.
Complaint by William J. Charron against Bernard E. Hanus, the appointing authority of the Wayne County Board of Commissioners, for mandamus to compel the appointment of a candidate on a civil service eligibility list to the position of Assistant Legislative Agent. Summary judgment for defendant. Plaintiff appeals. Reversed and remanded.
Livingston, Gregory, Van Lopik Higle (by Gary A. Marsack), for plaintiff.
William L. Cahalan, Prosecuting Attorney, and Aloysius J. Suchy, Assistant Prosecuting Attorney, for defendant.
On December 1, 1969, the Wayne County Board of Commissioners approved the creation of the position of Assistant Legislative Agent. The Civil Service Commission announced a competitive examination would be held to fill the position. Among the minimum qualifications established by the commission for those who wished to take the examination were a college education and at least one year of full-time, paid experience "in an occupation directly related to the legislative process". Only 5 of 38 applicants met these standards, and they took the examination. Plaintiff William J. Charron scored highest and was one of three persons on the resulting eligibility list.
The County Board of Commissioners delegated to a study subcommittee of its Supervisors' Service Bureau the tasks of interviewing the three persons on the eligibility list and recommending one of the three for the position. After conducting the interviews the subcommittee reported that it would not recommend any of the three men. Instead the members of the subcommittee expressed their belief that the one-year-of-practical-experience requirement was unnecessarily restrictive. They recommended that the Civil Service Commission be asked to cancel the existing eligibility list and issue a new job announcement which would not include the practical-experience requirement.
Charron then commenced this action seeking a writ of mandamus to compel defendant Hanus, the appointing authority, to appoint one of the three eligible candidates (including but not limited to Charron) to the position of Assistant Legislative Agent. The trial judge entered a summary judgment denying the writ.
The establishment of job specifications is the function of the Civil Service Commission. See MCLA 38.412; MSA 5.1191(12); 3 McQuillin, Municipal Corporations (3d ed), §§ 12.78-12.80. Cf. Dodd v. Van Riper, 135 N.J.L. 167, 171; 51 A.2d 34, 37 (1947). While the commission should give weight to the recommendations of the appointing authority in establishing these specifications, the final decision, in the absence of arbitrariness, is to be made by the commission. It has not been contended that the requirement of one year of practical experience was arbitrary; such requirements have generally been upheld. See 3 McQuillin, Municipal Corporations (3d ed), § 12.78, p 340; 15 Am Jur 2d, Civil Service, § 21, pp 483-484.
Charron relies on the statutory language that the appointing authority "shall forthwith appoint" (MCLA 38.413; MSA 5.1191[13]) one of the eligible persons certified by the Civil Service Commission. We are, however, of the opinion that an appointing authority, faced with developments since the job announcement and the results of the examination, may properly decide that it would not be in the public interest to fill the position. Perhaps the need for the position has disappeared, or the concept has soured in the minds of its originators, or perhaps the eligible persons are so different from the original expectations, that the appointing authority would rather let the position go unfilled. These are legitimate grounds for refusing to appoint. If we were to grant mandamus, willy-nilly, we might well be adding an unwanted and unneeded employee to the public payroll.
Cf. Bobick v. Fitzgerald, 416 Pa. 588, 592; 207 A.2d 878, 881 (1965), where the Pennsylvania Supreme Court ruled: "It is within the discretion of the [appointing authority] to determine if and when police officers are to be appointed and, if such police are to be appointed, which person or persons is or are to be appointed subject to the statutorily imposed limitations on such power". (Emphasis by the Court.)
We do not think such rigidity was intended by the Legislature, or is needed to preserve the policy embodied in civil service. Nevertheless an appointing authority cannot be allowed to defeat this policy by the simple device of refusing to hire from the eligibility list and obtaining reexamination under slightly different eligibility standards. An appointing authority which opposes standards adopted by the Civil Service Commission may object before the examination is given. Once an eligibility list is presented to the authority, its discretion is limited to making an appointment from the list of those eligible or refusing to fill the position at all. Cf. State ex rel Hearty v. Mullin, 198 Wn. 99; 87 P.2d 280 (1939); People ex rel Gaynor v. Board of Fire Police Commissioners, 14 Ill. App.2d 329; 144 N.E.2d 763 (1957); Suchman v. Kern, 170 Misc. 586; 10 N.Y.S.2d 973 (1939).
A person standing in Charron's position ought to be able to enforce this limitation through injunctive relief. A judge may properly enjoin the appointing authority for a reasonable period of time from appointing a person not on the original eligibility list. Such relief appears to be included in the relief sought by Charron in his first amended complaint, filed subsequent to the denial of mandamus. The judge refused to allow this amendment to the pleadings.
The passage of time may have rendered injunctive relief purposeless. Nevertheless, we remand to the trial court so that this aspect of the matter may be fully considered.
Reversed and remanded.