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Kelly v. City of New Haven9/27/2005
ose of the civil service rules.
Indeed, another jurisdiction recently has struck down as invalid a methodology designed to broaden greatly discretion in promotions. The Supreme Court of Washington rejected a civil service rule promulgated by the city of Seattle that permitted promotional consideration of "the top . . . percent of the eligible register, or the top five . . . candidates, whichever number is larger . . . ." Seattle Police Officers Guild v. Seattle, 151 Wash. 2d 823, 827, 92 P.3d 243 (2004). The civil service rule at issue in that case was promulgated pursuant to a state statute establishing a prototype civil service system for cities. Id., 832. The prototype suggested a rule of one, but did not require strict adherence by individual cities; instead, the cities were given authority to develop a system that substantially accomplishes the purpose of the prototype statute. Id., 834. In affirming the lower court's decision striking the language allowing appointment from the top 25 percent of an eligibility list, the court concluded that this rule afforded too much discretion to the appointing authority and, therefore, failed to substantially accomplish the purpose of the civil service statute. Id., 830.
Although the defendants in the present case rely on certain cases from other jurisdictions as support for the position that they have not abused their discretion under the charter in applying this methodology, those cases do not support the broad discretion created here. As an initial matter, we note that none of these cases addresses the same methodology applied by the defendants. The cases address either one or the other of the two practices that comprise the methodology here (rounding or applying the rule of three to broad score groups), but not both. See Ash v. Police Commissioner, 11 Mass. App. 650, 652, 418 N.E.2d 622 (1981); McGowan v. Burstein, 71 N.Y.2d 729, 733, 525 N.E.2d 710, 530 N.Y.S.2d 64 (1988); Akron v. Kettering 106 Ohio App. 3d 547, 549, 666 N.E.2d 615 (1995).
For example, the defendants cite McGowan v. Burstein, supra, 71 N.Y.2d 733, for the proposition that New York's highest court has approved zone or band scoring. To the contrary, the court began its opinion by noting that "zone scoring poses a threat to the competitive examination process that serves as the foundation of the merit system. The use of overly broad zones could negate the competitiveness of the test, allow too much room for the subjective judgments of appointing authorities and invite personal and political influence into the selection process. Any practice with such potential must be approached with skepticism." Id., 732. Due to the nature of the constitutional challenge in the case, however--the plaintiffs sought a blanket prohibition on the defendant's practice, as opposed to nullification based on a given set of facts or type of application-- the court determined that the plaintiffs could not prevail because they had failed to show that "in any degree and in every conceivable application [zone or band scoring] would be unconstitutional." (Emphasis added.) Id., 733; see id., 732 (stating that "broadside nature of plaintiffs' challenge bears emphasis").
In Ash v. Police Commissioner, supra, 11 Mass. App. 652, the Massachusetts Court of Appeals held that a personnel administrator had not exceeded her authority when deciding to round test scores to whole numbers. We do not decide in the present case, however, whether the rounding of scores in isolation is an abuse of discretion. Therefore, the Ash decision must be read in light of the factual context in which rounding applied under that civil service system. Under that system, strict rank order was used and, when a promotio
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