Opinion
No. 77-564
Decided February 15, 1978.
Mandamus — To certify results of promotional examination — Writ improperly granted, when — Municipal civil service commission — Promotional examinations conducted, how.
APPEAL from the Court of Appeals for Franklin County.
On January 22, 1976, the Civil Service Commission of the city of Whitehall, respondent herein (the commission), posted notice of a promotional examination to be given to qualified candidates for the position of Chief of Police. The examination would be divided into two parts — a written segment to be administered on the morning of February 28, 1976, and an oral segment to be administered that afternoon. Candidates could earn additional credit based on their seniority and efficiency ratings on file with the commission. However, it was established that before the oral portion of the examination or additional credit would be considered by the commission in determining an overall score, a passing grade of 65 percent must have been achieved on the written portion.
On February 28, four eligible candidates, including Donald W. Campbell, relator herein, took the written and oral tests. The results of the examination reflected that relator was the only candidate to achieve the passing score of 65 percent on the written test.
However, on March 9, 1976, the commission, upon advice of legal counsel, voted to declare the first examination void, and ordered a second examination to be administered, presumably without an oral segment.
Relator subsequently filed a complaint for a writ of mandamus in the Court of Appeals, requesting that court to order the commission to certify the results of the February 28th promotional examination to the appointing authority.
On April 7, 1976, relator filed a motion requesting the court to issue an order restraining the commission from conducting a second promotional examination. The motion was denied.
Subsequently, a second promotional examination was administered, wherein scores of the examination were based on a new written test and credit was given for seniority and efficiency irrespective of the score achieved on the written test. Relator was not the highest scorer on this second examination, and thus was not certified to the appointing authority for the position of Chief of Police.
On June 28, 1976, respondent filed a motion to dismiss relator's mandamus action in the Court of Appeals. That court overruled the motion, and on March 24, 1977, granted the writ, subject to the following conditions.
"1. The oral portion of the test shall not be considered.
"2. Efficiency and seniority in service points shall be added to all marks before determining whether the 130 minimum score has been attained.
"3. Determine if the examination fairly tests the relative merit and fitness of the applicants. Any objection thereto, or of the grading process, must be decided prior to establishing an eligibility list. The ultimate determinations shall be whether it was a fair test and was it graded properly."
An appeal as of right brings the cause to this court for review.
Messrs. Smith Tobin and Mr. Ben W. Hale, Jr., for appellee.
Mr. George C. Rogers, city attorney, for appellant.
The central issue in the instant cause is whether the commission was under a clear legal duty to certify the relator's name to the appointing officer on the basis of test results achieved on the first promotional examination. See paragraph one of the syllabus in State, ex rel. Pressley, v. Indus. Comm. (1967), 11 Ohio St.2d 141.
Under R.C. 124.40, it is expressly provided that the municipal civil service commission shall conduct promotional examinations in accordance with the provisions of R.C. Chapter 124. R.C. 124.44 provides that "* * * [n]o position above the rank of patrolman in a police department shall be filled by any person unless he has first passed a competitive promotional examination." The promotional examination must be in writing (R.C. 124.23) and include credit for efficiency and seniority in service (R.C. 124.31). It is clear that before the results of a promotional examination can be certified to the appointing officer under R.C. 124.44, the examination itself must have been properly administered.
In the instant cause, the commission determined that its first examination was void, because the examination required that the candidate take an oral test and conditioned credit for efficiency and seniority in service on the basis of performance on the written test. Because of these defects, the commission did not certify the results of the first examination to the appointing authority, but rather conducted a second examination.
Clearly, the commission, which is vested with authority under R.C. 124.40 to effectuate the civil service laws of this state on a local level, exercised proper discretion in voiding the first examination. The examination improperly included an oral test (see State, ex rel. Ethell, v. Hendricks, 165 Ohio St. 217), and in effect improperly excluded credits for efficiency and seniority of service earned by three of the four candidates.
The Court of Appeals, in granting relator's request for a writ of mandamus, held that the first examination was not per se void, but voidable, and thus, given a few corrective adjustments, was a proper basis for certification to the appointing officer. However, even if this court were to agree with the Court of Appeals that the first examination was voidable (an issue this court need not specifically address in this cause), there is no authority to support the proposition that the commission had a clear legal duty to salvage the test results of the first promotional examination where such examination was improperly conducted, or, in the alternative, that the commission acted contrary to law in administering a corrected second examination. So long as the commission insured that certification for promotion was based on a properly administered promotional examination, its legal duties under R.C. Chapter 124 were met.
Because there was no clear legal duty on the part of the commission to certify corrected results of an improperly administered promotional examination, it was improper for the Court of Appeals to issue the writ of mandamus. (See State, ex rel. Cook, v. Civil Service Comm., 152 Ohio St. 71.)
The judgment of the Court of Appeals is therefore reversed.
Judgment reversed.
O'NEILL, C.J., HERBERT, PARRINO, W. BROWN, P. BROWN, SWEENEY and LOCHER, JJ., concur.
PARRINO, J., of the Eighth Appellate District, sitting for CELEBREZZE, J.