
    The State, ex rel. Owens, v. Brewer.
    (No. CV78-05-0417
    Decided May 4, 1979.)
    Court of Common Pleas of Butler County.
    
      Mr. Roger B. Turrell, for relator Donnie Owens.
    
      Ms. Mary Lord, for respondents Samuel C. Brewer, William Sanders, Walter E. Weber, and Leroy Bechtel.
    
      
      Mr. Sheldon A. Strand, for Russell Dwyer and Dale Helsel.
    
      Mr. Dwight D. Brannon, for Merle Stethem.
   Moser, J.

This matter originated in this court upon relator’s amended petition asking for a writ of mandamus against the city of Middletown to: “Modify the decision of the Middletown, Ohio, Civil Service Commission and award Relator-Plaintiff partial credit for his partial years of service and seniority; also, to require the Commission to take into account efficiency, conduct and capacity in office, in the scoring of examinations for lieutenant in the Middletown Police Department; in the alternative, Relator-Plaintiff prays for an order voiding the examination of February 20, 1978, and requiring the Commssion to hold a new examination taking into account factors of credit for a partial year of service, and efficiency and conduct and capacity in office in accordance with past practice in law.”

Subsequently, on November 20,1978, the court dismissed the mandamus action; however, the relator was ordered to proceed in the alternative as if on appeal from the decision of the Civil Service Commission dated April 28, 1978.

The court now is considering this matter as an appeal, as provided for under R. C. Chapter 2506. The facts of this matter which precipitated this appeal are as follows:

The Middletown Civil Service Commission announced a promotion examination to be given on February 20,1978, for a vacancy in a lieutenant’s position on the Middletown Police Department. Added to the scores of each grade would be a percentage for seniority as provided for in R. C. 124.23, which provides for credit as follows: 1 percent for each of the first four years, and 0.6 percent for each of the next ten years.

The civil service announcement further stated that if, after determining the examination score plus credit for seniority there stül existed a tie, then such tie would be decided on the basis of seniority in police service.

The relator, Donnie Owens, scored eighty-three (83), Emmett Perry scored eighty (80), and Merle Stethem scored eighty (80). Stethem and Perry had fourteen years plus seniority and were given ten additional points each, and relator Donnie Owens, who scored eighty-three on the ex-animation was given seven points, as additional points for nine years seniority. Thus, a three-way tie existed, which tie was broken by determining overall seniority in service. The Mid-dletown Civil Service Commission then certified Merle Stethem to the City Manager for promotion to police lieutenant.

This promotion never took place inasmuch as the Mid-dletown Civil Service Commission has been under a preliminary injunction enjoining them from making the promotion until the litigation in this matter was resolved.

The relator, who had nine years, six months, and twenty-six days seniority prior to the examination, contends that he should be given partial credit for the six months and twenty-six days, rather than just credit for the nine years. Had he received credit for a partial year, then he would have had the high score and would have been certified to the appointing officer.

This contention is based upon the fact that the law provides for credit to be given for half years of service to firemen who take promotional examinations. The evidence also showed that the Civil Service Commission had given half year seniority points in the past on police examinations.

Secondly, the relator contends that promotions should also be based upon conduct and capacity in office as determined by efficiency records. The evidence clearly disclosed that conduct and capacity in office were not considered in making these promotions, inasmuch as no records were kept relating to the efficiency of the patrolmen, and therefore, they could not very well have been taken into consideration.

The respondents, being the city of Middletown, and Merle Stethem who has filed a brief amicus curiae, contend that the Civil Service Commission acted properly in accordance with law by not awarding credit for a partial year of seniority. They further contend that the consideration of efficiency for job promotion is not mandatory upon the Civil Service Commission and that in the alternative, if there were any errors in the conduct of these examinations, that they were waived by the examinees, inasmuch as they took this examination with no notice that efficiency would be part of the grade, and to so consider efficiency at this time would be to grade the officer retroactively.

The court now determines the issue' as to whether or not the relator’s contention regarding credit for a partial year of service is founded upon the law. R. C. 124.23 reads in part as follows:

“Applicants taking promotional examinations, which shall be in writing, shall receive credit for seniority which shall be determined as follows: one percent of the total grade attainable in such examination for each of the first four years of service, and six-tenths percent of such total grade for each of the next ten years of service.”

There is no mention for partial credit for any service less than one full year. The fact that the Civil Service Commission may have awarded points in the past for a partial year of service in contravention of law, is of no significance in coming to a decision in this case inasmuch as past practices, if in contravention of law, cannot be condoned prospectively.

There is a suggestion by relator that if the firemen are granted credit for a partial year of service, then it is obvious that the legislature intended that patrolmen be granted the same credit. The court however, is not of that opinion, and it is the opinion of the court that the legislature intended to deal differently between the firemen and patrolmen on promotional examinations. R. C. 124.23, which provides a credit for years of service on promotional examinations for the classified service was last amended on December 4, 1973. R. C. 124.45 which specifically gives firemen credit on promotional examinations for a partial year’s service was last re-codified on the same date, December 4,1973. Since the occurrence of the facts which gave rise to the instant litigation, the legislature has again amended and re-codified many of the laws pertaining to the classified service. R. C. 124.23 no longer contains the provision for credit for seniority; however, R. C. 124.31 now contains these identical provisions as they pertain to promotional examinations for classified service. R. C. 124.45, in specific reference to promotion of firemen and containing a provision for credit for a partial year’s service, has also been recently amended (5-23-78) and this provision of the Ohio Revised Code retains the identical language in regards to credit for a partial year’s service.

The legislature has had ample opportunity to review what might appear to be an inconsistency on credit for patrolmen promotional examinations and firemen promotional examinations. We believe that the legislative intent is clear and that the relator is not entitled to any additional seniority credit.

The court now addresses itself to the issue of whether or not the Civil Service Commission should have considered conduct and capacity in office in considering efficiency in the promotional examination given. If we determine that the law does require the considerations of efficiency and that the examinations are not legal without this consideration, then we must further determine whether or not those taking the examination waived this requirement inasmuch as the examinees were told at the time of the announcement of the examination what was to be considered in determining their grade, and efficiency was not one of those considerations.

R. C. 124.31 reads in part as follows:

“The director of administrative services shall provide in his rules for keeping a record of each employee in the classified service, and for making promotions in the classified service on the basis of merit, to be ascertained as far as practical by promotional examinations, by conduct and capacity in office, and by seniority in service***. In promotional examinations, efficiency and seniority in service shall form a part of the maximum mark attainable in such examinations.”

R. C. 124.31 deals with promotions of individuals in the classified service, while R. C. 124.44 deals with promotional examinations for patrolmen, and this latter section makes no mention of a determination of efficiency for the purpose of promotions for patrolmen. Herein lies an apparent conflict in the statutes. However, in the case of State, ex rel. Herder, v. Shock (1977), 55 Ohio App. 2d 116, this apparent conflict in the two statutes is resolved.

R. C. 1.51 reads as follows:

“If a general provision conflicts with a special or local provision, they shall be construed, if possible, so that effect is given to both. If the conflict between the provisions is irreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provision is a later adoption and the manifest intent is that the general provision prevail.” (Emphasis added.)

R. C. 124.31 and 124.44 are certainly reconcilable and intent can be given to both sections without doing harm to the other. R. C. 124.31 simply provides that efficiency shall be a determination in all promotional examinations for individuals in a classified service, while R. C. 124.44 provides for additional specific requirements for promotional examinations for patrolmen.

At this time the court could easily conclude that efficiency in service shall form a part of the maximum mark attainable in any promotional examination. Such a conclusion, under the present state of affairs in the city of Middletown, probably leaves that city in a dilemma. Mr. Michael Weiss testified that he administered the civil service examination and that efficiency or conduct and capacity in office was not considered simply because there are no efficiency records maintained on patrolmen. Does this mean that there can be no further promotional examinations given in the city of Middletown? Under the set of circumstances as presented to us in the case at bar, the answer would have to be in the affirmative. R. C. 124.31 mandates that efficiency be considered in promotional examinations. And R. C. 124.20 anticipates this need and provides the following mandate:

“The director of administrative services with the approval of the state personnel board of review [the city of Middletown in the case at bar] shall put into effect rules:
(( * * *
“(C) For maintaining and keeping records of the efficiency of officers and employees***.”

Under this section of law the Municipal Civil Service Commission is required to put into effect, rules for the keeping of records of efficiency of employees in the classified service, and the Civil Service Commission is vested with discretionary power to determine, in promotional examinations, what amount to allow as part of the grade, for efficiency. See Underwood v. Bellefontaine (1939), 64 Ohio App. 205.

At this point the court makes this observation: Except for the conclusion that we reach here regarding the state of the law, we would deny the taxpayers of Ohio the efficiency of its employees in the classified service which the private sector demands and obtains as the price of promotion. Should not the taxpayers demand as much of its employees as the private sector? Delete efficiency from promotional examinations and all public employees become like sheep going to market for the same price regardless of individual merit and quality.

We therefore do conclude that efficiency in promotional examinations shall form a part of the maximum mark attainable in such examinations. The only issue remaining in this case to dispose of is the contention by the respondent, city of Middletown, and Merle Stethem in his brief amicus curiae, that any irregularities in giving the examination have been waived by all of the parties, and that those taking the examinations did so in good faith and did everything on their part to comply with the requirements for taking the examination. Their authority for this proposition is State, ex rel. Mikus v. Hirbe (1966), 7 Ohio St. 2d 104. That case held:

“Where the appointees have taken competitive promotional examinations given in order to fill vacancies in the police department of a city, where the statutes relative to Civil Service are applicable, where the appointees have taken such examinations in good faith and have done everything on their part to comply with the applicable statute, and where they have satisfactorily completed their probationary periods, they can be removed from their offices only for cause***.”

In the Hirbe case efficiency ratings were not taken into account in grading the promotional examinations. In addition, those individuals who had been promoted had already completed their probationary period. The fact that the respondents in the Hirbe case had finished their probationary period distinguishes the Hirbe case from the case at bar. Hirbe stands for the proposition that where the appointee, before his appointment, complies as far as he is able with the rules governing the promotional examination, and then after his appointment satisfactorily serves his probationary period, a dereliction of duty on the part of the Civil Service Commission does not frustrate the appointee’s effort to secure the benefit of the civil service laws, and at that time he can only be removed from office for cause.

In the instant case Merle Stethem had not yet been appointed to the office of Lieutenant, as a result of the preliminary injunction issued, and this failure to be appointed and serve a probationary period prevented Stethem from fitting into the fact pattern of the Hirbe case.

We therefore conclude that the grade as determined for the participants in the civil service examination of February 20, 1978, was unlawful, and that the subsequent certification of Merle Stethem was contrary to law, and the city of Mid-dletown Civil Service Commission is hereby directed to conduct another civil service examination in accordance with the statutes made and provided for the classified service for the promotion of patrolmen to a lieutenant grade before certifying a name to the appointing authority.

Judgment accordingly.  