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Kelly v. City of New Haven9/27/2005
n decision departed from that strict rank, such that the top scoring applicant was not selected, the decision maker was required by law to submit an explanation for its departure. See Cotter v. Boston, 193 F. Sup. 2d 323, 357 (D. Mass. 2002), aff'd in part, rev'd in part, 323 F.3d 160 (1st Cir.), cert. denied, 540 U.S. 825, 124 S.Ct. 179, 157 L.Ed. 2d 47 (2003). Thus, despite the rounding of scores, the discretion in selecting candidates under that system was quite circumscribed.
Finally, the decision in Akron v. Kettering, supra, 106 Ohio App. 3d 547, which the defendants cite in support of the second practice employed in their methodology-- applying the rule of three to score groups--also underscores a methodology in which promotional discretion is far more limited than that at issue in the present case. In Kettering, the Ohio Court of Appeals held that a candidate with a high score of 83.4512, two candidates tied for second with a score of 79.9674, and a candidate with the third highest score of 78.2256, could all be considered for promotion under a statute that provided for certification of "the persons with the three highest scores." Id., 548-50. The court concluded that this interpretation "does not controvert the purpose of the [city of Akron's] harter." Id. In that case, the application of the rule of three to groups scored to the fourth decimal point, which still resulted in quite limited discretion, only serves to highlight how great are the liberties sought by the defendants in the present case.
In sum, rather than supporting the defendants' methodology, the foregoing survey of the case law to which they have pointed us serves to demonstrate the consistency of the limited discretion afforded in promotional decisions under the civil service system. To the extent that these cases recognize that, under certain circumstances, the practice of either rounding scores or creating score groups may be a reasonable exercise of discretion, we need not reach that question. Indeed, we underscore that, although we affirm the judgment of the trial court, we limit our conclusion to the facts at bar. Our holding applies to the defendants' methodology as a whole, which circumvents the letter and undermines the spirit of the charter's civil service provisions by allowing consideration of large groups of candidates for a single vacancy. This court will not endorse an effort to interpret out of existence the legislative check on discretion that the legislators have chosen to keep in place.
The appeals with respect to the partial judgments in the Kelly and Beckwith cases are dismissed; the partial judgment in the Burns case is affirmed and that case is remanded for further proceedings according to law.
In this opinion the other justices concurred.
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