Opinion
December 17, 1909.
Elliot S. Benedict of counsel [ Theodore Connoly with him on the brief], Francis K. Pendleton, Corporation Counsel, for the appellants.
James O'Malley, for the respondent.
Relator is a first-grade fireman in the fire department of the city of New York. On or about September 23 to September 27, 1907, a competitive examination was held by the municipal civil service commission for the position of assistant foreman in the fire department for all fireman who were eligible to the position. Relator was eligible and took such examination, and on the 7th of January, 1908, received notice from the secretary of said commission that he had successfully passed the examination and had received a rating of eighty-six and seventy one-hundredths per cent. When the eligible list was announced, relator's name appeared as number 199, said list containing the names of 1,120 successful candidates. Relator's rating was based upon two elements, namely, mental average and seniority. Upon mental average relator was given a total of eighty and forty one-hundredths per cent, which, counting for fifty per cent on the final rating, amounted to forty and twenty one-hundredths per cent. On seniority, relator received ninety-three per cent, which, counting for fifty per cent of the final, amounted to forty-six and fifty one-hundredths per cent. These two averages made up his total rating of eighty-six and seventy one-hundredths per cent.
Relator claims that he is entitled to credit for two meritorious acts performed by him during his service in the fire department in addition to the credit given to him by the examiners. If he is so given credit, he will be entitled to a rating of four additional points upon seniority, or a total of ninety-seven per cent upon this part of his examination, which would make his final rating a total of eighty-eight and seventy one-hundredths per cent. This increased rating would advance the relator 116 numbers on the list, namely, from 199 to No. 83, and he would be entitled upon this increased standing to immediate promotion. In this proceeding he prays for a peremptory writ of mandamus to compel the municipal civil service commission to so rerate him, and from the order granting said motion this appeal is taken.
By section 739 of the Greater New York charter (Laws of 1901, chap. 466) the fire commissioner is given power to adopt rules and regulations and orders for the government and discipline of the fire department. By the rules so adopted, provision was made for investigation of particulars of meritorious acts by firemen and for recommendations for entry upon the roll of merit under four classifications, of which class B was for "assisting endangered persons to escape when attended by some personal risk to the member performing the act, when in the line of duty." Class D: "All other acts in the line of duty without personal risk, but highly and unusually commendable, such as assisting in the rescue of endangered persons, or the exhibition of coolness, presence of mind and fertility of resource in a marked degree."
Section 124 of the charter provides that appointments and promotions in the public service of the city of New York shall be made in the manner prescribed by the Constitution, the Civil Service Law and the charter. Section 728 provides, in regard to the fire department, that "Promotions of officers and members of the force shall be made by the fire commissioner as provided in section one hundred and twenty-four of this act on the basis of seniority, meritorious service in the department and superior capacity as shown by competitive examination. Individual acts of personal bravery may be treated as an element of meritorious service in such examination, the relative rating therefor to be fixed by the municipal civil service commission. The fire commissioner shall transmit to the municipal civil service commission in advance of such examination the complete record of each candidate for promotion."
There is in the fire department a board of merit, to which was assigned the duty of considering the meritorious acts of members performed, and to make recommendations to the fire commissioner respecting the placing of the name of any member of the department on the roll of merit. On December 29, 1908, the petitioner received two letters from the secretary of the fire department, each dated December twenty-eighth, one notifying him that upon the recommendation of the board of merit, dated December 19, 1908, his name had been placed on the roll of merit, class D, for meritorious action at fire No. 4 York street, February 1, 1905; and that upon the recommendation of said board, dated November 23, 1908, his name had been placed on the roll of merit, class B, for meritorious action at fire No. 49 Bowery, June 18, 1903.
Under rule 15 of the rules of the municipal civil service commission, in force at the time the examination for assistant foreman here under consideration was had, it was provided in paragraphs 6, 7 and 8: "6. The subjects of rating and the relative weights thereof in any competitive promotion examination shall be as follows: For comparative conduct, seniority and efficiency in previous service, as may be determined from the transcript of the efficiency record (or as may be otherwise determined under paragraph 8 of this rule), between the date of the original appointment of the candidate and the final date for the receiving of applications for any stated examination, 50; and for written papers on pertinent subjects, 50. * * * 7. To provide a basis of rating for previous service, there shall be kept in each department or office continuous and permanent records of the efficiency, character and conduct of all persons employed in graded positions therein. Such records shall be known as `efficiency records,' and the entries made therein shall have reference to (a) quality of work performed by each such officer or employee; (b) the quantity of work performed by him; (c) his general conduct; (d) his punctuality and attendance; (e) his executive ability and capacity for initiative, where his work is of a character that will permit definite estimation. 8. The entries upon an efficiency record shall be made by the administrative officer most closely in touch with the work of the officer or employee to be rated, who shall be designated for such purpose by the appointing officer. Such entries shall be made monthly, and the following terms shall be employed to indicate the degree of efficiency: (a) far above average; (b) above average; (c) average; (d) below the average; (e) far below the average. A transcript or summary of such record and all rewards or measures of discipline shall be furnished to the commission annually, and shall contain the certification of the appointing officer that such entries were made monthly; and whenever the commission so requires, like certification of the full record of each candidate shall be furnished by the appointing officer in advance of a particular examination."
Rule 9, paragraph 5, of said commission, relating to the correction of the marks of candidates given on examination, is as follows: "5. No examination paper or any part thereof, and no record of the results of a physical test, or any other record or statement rated as part of an examination, or in connection therewith, shall be subject to review, alteration or rerating after the marks of the examiners have been registered or attested as required hereunder; except that the commission, at any time within a year from the date of the certification of an examination, may correct any manifest error or mistake of marking or rating appearing in any such paper or record, the nature of which it shall set forth in its minutes; such correction, in any case, to be without prejudice to the status of any person previously appointed as a result of such examination."
It is alleged in the petition, and not denied, that the commission upon the seniority record for meritorious acts gives three points additional for meritorious acts each in class A and class B, and one point additional for meritorious acts each in classes C, D and E. The petitioner claims that upon the recommendation of the board of merit and the act of the commissioner in placing him upon the roll of merit in class B and class D, he was entitled to four additional points which would result, if added to his record, seniority counting as fifty per cent, in increasing his rating two actual points. In January he requested the civil service commission to reconsider and rerate his record paper by the addition of said counts. This application was refused by letter of January 13, 1909.
The situation presented is this: Relator performed a meritorious act on June 18, 1903, and another on February 1, 1905. In September, 1907, he went into a competitive civil service examination for promotion. At that time his record of efficiency did not contain the recognition of such meritorious acts required to give him the additional points he now claims because they had not been passed upon by the board of merit and approved by the fire commissioner. He took the examination, and upon his efficiency record, as it then existed, and his examination he received a rating and a position upon the eligible list of which, upon the record and upon the examination, he does not complain. On December 28, 1908, a year and three months after said examination, he is informed that the fire commissioner, upon the recommendation of the board, has just approved the formal recognition of his meritorious acts by putting his name upon the roll of merit in the designated classes; and in January following he demands a rerating, which, being declined, in September, 1909, he institutes this proceeding for a mandamus.
While we think there has been an extraordinary delay in the fire department in the consideration of the meritorious conduct of the relator, that is a matter which did not come within the purview of the municipal civil service commission and is not involved in this proceeding. As we read the statutes and the rules, the record of seniority, which includes efficiency and meritorious conduct, must be that which exists at the time the examination is taken, as the mental examination is that which is taken at said time; and that the efficiency record can with no more propriety be changed for the purpose of increasing standing upon the eligible list by events which occurred subsequent to the examination for promotion than a candidate could increase his standing upon the mental side of the examination by showing that since that time he had increased his knowledge. No other interpretation would be fair or just. Any change based upon subsequent events would invite hostile criticism of the whole system and tend to induce a belief in unfairness and favoritism in the minds of the members of the department and of the public.
Section 728 of the charter, hereinbefore cited, expressly provides that "the fire commissioner shall transmit to the municipal civil service commission, in advance of such examination, the complete record of each candidate for promotion." Rule 15 of the municipal civil service commission provides that "conduct, seniority and efficiency in previous service" shall be determined from the efficiency record "between the date of the original appointment of the candidate and the final date for the receiving of applications for any stated examination;" and again in the same rule, "And whenever the commission so requires, like certification of the full record of each candidate shall be furnished by the appointing officer in advance of a particular examination." And rule 9, paragraph 5, provides that "no examination paper * * * or any other record or statement rated as part of an examination, or in connection therewith, shall be subject to review, alteration or rerating after the marks of the examiners have been registered or attested as required hereunder."
There can be no doubt, it seems to us, from these provisions that the municipal civil service commission must be limited to the record as it exists at the time of the examination.
The relator complains that a number of members of the fire department who had performed meritorious acts prior to the examination, which were not recognized by the board of merit until thereafter, received the benefit thereof upon the list. The commission admits the facts, but states that this rerating was had before the publication of the list on the 30th of December, 1907.
We do not think that the publication of the list affects the question. The status of the candidates at the time they took the examination is the crucial question. But the relator takes no benefit because the board made a mistake in regard to another man. He comes into court claiming a legal right. He must stand upon his own case. He is not entitled to the peremptory writ of mandamus unless he establishes a strict legal right. That he has not done.
The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
INGRAHAM, LAUGHLIN, HOUGHTON and SCOTT, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.