Summary
In Bigam, we noted that the term "years of service" was used broadly in the statute and construed it to include all of relator's service in a municipal fire department, regardless of the rank in which it was earned.
Summary of this case from State ex Rel. Mcarthur v. DesouzaOpinion
No. 31420
Decided November 24, 1948.
Civil service — Classified — Promotional examinations — Service-seniority credits — Section 486-10, General Code — Term, "years of service," includes entire period service rendered in department — Credit not limited to years applicant served in his rank — City civil service commission rule so limiting seniority credit, invalid.
The term, "years of service," contained in Section 486-10, General Code, providing for certain service-seniority credits in civil service promotional examination grades, includes the period represented by the total number of years of service rendered by the applicant in the governmental department in which he is employed at the time of the examination and does not limit the period of credit to the years of service in the grade or rank of service in which the applicant is then employed; and a rule of a city civil service commission which does so limit is in conflict with such statute and invalid.
IN MANDAMUS.
This is an action in mandamus originating in this court in which the relator seeks to compel the respondents, Hainen, Stephan and Wales, as members of the civil service commission of the city of Cleveland Heights, and Kimpel, as city manager and director of public safety of the same city, to appoint relator to a captaincy in the fire department of the city, as the result of a promotional examination taken by him.
Relator in his petition alleges that he is a member of the fire department of the city of Cleveland Heights and within the classified civil service of such city; that he was appointed a fireman in such department on March 1, 1929; that he served continuously as such fireman from the date of his appointment until April 16, 1946, at which time, having taken a civil service promotional examination and having become eligible for an appointment as a lieutenant, he was promoted to lieutenant in the fire department; that he has served continuously as such from the latter date; and that the respondent Kimpel, as such city manager, has the power and duty of making appointments to vacancies occurring in the fire department, including that of captain.
The petition alleges further that on February 27, 1948, the civil service commission held a promotional examination for the position of captain in the fire department; that the relator and certain other lieutenants in such department took the examination and he was given a credit of one per cent of the total grade attainable for lieutenant-service seniority and his name was placed fourth on the eligible list, whereas under the provisions of Section 486-10, General Code, he was entitled to a credit of one per cent of the total grade attainable by him for each of the first four years of his service in the fire department and six-tenths per cent of such total grade for each of the next ten years of his service in the department, or a total credit of ten per cent for service seniority, which credit, if given. to him, would have placed him first on the eligible list and would have entitled him to appointment as captain.
The prayer of the petition is that the relator be given the proper credit for service seniority; that his name be placed first on the eligible list for appointment as captain; and that he be appointed captain in a vacancy now existing.
The joint answer of the respondents admits that if the relator is entitled to a credit of ten per cent of the total grade attainable for service seniority, such credit would have placed him first on the eligible list and would have entitled him to be appointed captain in the fire department to fill the first vacancy occurring in that position, but alleges that on February 9, 1948, the civil service commission of the city established the following weights and grades for such promotional examination — 85 points for written work, 10 points for seniority, and 5 points for efficiency; that the civil service commission determined that the seniority credits should be limited to service in the rank of lieutenant from which the promotion to captain would be made; that under such rule the relator was entitled to one per cent of the total attainable grade for service seniority; that he was thereby entitled to be placed no higher than fourth on the eligible list; and that the respondent director of public safety promoted the lieutenant whose name stood first on such list to fill the vacancy of captain.
The relator filed a demurrer to the answer of the respondents thereby raising the issue to be determined by this court.
Mr. Neil W. McGill and Mr. Charles A. Niman, for relator.
Mr. George E. Hartshorn, director of law, for respondents.
The decision in this case depends upon the interpretation to be given to the provisions of Sections 486-10 to 486-15, inclusive, General Code, and upon the validity of the rule adopted by the civil service commission of the city with reference to the weight and grade to be given for service seniority to applicants taking the promotional examination for captain in the city fire department.
It is to be observed that, at the time of the examination in question, the relator had had a continuity of service in the fire department, first as fireman for more than 17 years and then as lieutenant for more than one year but less than two years. Under the rule of the city civil service commission, his seniority-service credit was limited to the latter period or to the time of service in his present grade or rank of lieutenant, which credit was computed to be a single percentage of credit instead of a credit for a total period of service of more than 18 years which would give him a credit of 10 per cent in his examination grade. The defense of the respondents, as set out in their answer, is based upon the application of this rule.
The pertinent parts of Section 486-10, General Code, are as follows:
"All applicants for positions and places in the classified service shall be subject to examination which shall be public, and open to all, within certain limitations to be determined by the commission, as to citizenship, residence, age, sex, experience, health, habit and moral character; * * *.
"Applicants taking promotional examinations, which shall be in writing, shall receive credit for seniority, which shall be determined as follows: one per centum of the total grade attainable in such examination for each of the first four years of service and six-tenths per centum of such total grade for each of the next ten years of service." (Italics supplied.)
The specific question raised is whether the term, "years of service," used in the statute shall be construed as limiting the credit for seniority to the applicant's period of service in his present grade or rank of service, or as extending such credit to the whole period of service rendered by him in the department in which he has served, and, if the latter construction be adopted, whether the rule of the city civil service commission limiting such credit to the years of service in the applicant's present grade or rank of service is in conflict with the statute and invalid.
The language of the statute providing for grade. credit for seniority — "one per centum of the total grade attainable in such examination for each of the first four years of service and six-tenths per centum, of such total grade for each of the next ten years of service" — is in the most general terms and without any limitations as to periods of service in any particular grade or rank. This direction is further emphasized in Section 486-15, General Code, wherein it is provided that "in promotional examinations efficiency and seniority in service shall form a part of the maximum mark attainable in such examination." (Italics supplied.) Clearly, the full period of service must enter into the computation for seniority credit when a fireman is promoted through promotional examination to a lieutenant. It would appear rather incongruous to assume that it was the legislative intent to give an employee in passing to the first higher grade or rank of service in a governmental department seniority credit for his full period of service in his department, and at the same time to deprive him of such credit in passing to the next higher grade or rank of service in the same line of service and to require him to serve 14 years in each grade or rank of services before he can attain a ten per cent credit for seniority in promotion to the next higher grade or rank of service. Especially is this true where the words used in forming the terms of the statute, in the absence of any statutory definition of such terms, must be given their common ordinary and accepted meaning in the connections in which they are used. Baker v. Powhatan Mining Co., 146 Ohio St. 600, 67 N.E.2d 714; State, ex rel. Church of the Nazarene, v. Fogo, Regr., 150 Ohio St. 45.
In the opinion of this court, the words, "years of service," used in the statute, must comprehend the entire period of service rendered in any department of service.
Respondents claim that the rule of the city civil service commission is not in conflict with the statute but is a fair interpretation of it. However, in the opinion of this court, the rule made by the city civil service commission is in conflict with the general law in the matter of seniority-service credit to be allowed in civil service promotional examinations and is invalid.
The parties hereto having agreed that the holding of this court on the demurrer filed by relator to the answer of the respondents shall be dispositive of the case on the merits, the demurrer is sustained and the writ allowed.
Writ allowed.
WEYGANDT, C.J., TURNER, MATTHIAS, ZIMMERMAN, SOHNGEN and STEWART, JJ., concur.