Opinion
Nos. CV 00 0444614, CV 01 0454311, CV 03 0477275
January 9, 2004
MEMORANDUM OF DECISION
The plaintiffs in these consolidated cases challenge certain promotional practices of the defendant City of New Haven and its Police Department. The challenged practices consist of the City rounding off the scores on promotional civil service exams to the nearest higher or lower whole number, and of considering for promotion all those individuals whose scores fall into the three highest groups of scores, rather than considering only those three individuals who scored highest on the examination.
The plaintiffs claim that these practices contravene the Charter and the Civil Service Rules of the City of New Haven. The defendants argue that a change in the City Charter in 1992 permitted and in fact compelled the City to consider for promotion all those candidates whose scores fall into the three highest groups of scores on the civil service promotional exam. Moreover, they defend the use of rounded-off numerical scores, instead of numbered scores that contain fractions, as a well-recognized practice in the scoring of employment and standardized tests, such that it is an administrative convenience that eliminates inconsequential scoring differences between candidates.
The court finds that the practice of the City of 1) rounding off scores so that tie scores are then created, 2) grouping candidates with tie scores into one group as though they all had actually received the identical score on the exam, and 3) promoting from among any of those candidates whose scores fall into the top three groups of scores, violates the City Charter and the Civil Service Rules.
PROCEDURAL BACKGROUND CT Page 459
In each action, the named plaintiffs, all New Haven police officers, have alleged that they sat for and passed a promotional examination for a higher rank, and that but for the defendant's practices of which they complain, each of them at some point would have been in a pool of only three individuals whose names would have been forwarded to the appointing authority for promotion only from among those three named individuals. Rather, their names were in each instance one among more than three, and often one among more than a dozen, candidates from among whom the appointing authority chose individuals for promotion. They allege that this unlawfully diluted their potential for promotion. In all of the files the plaintiffs have moved for temporary and permanent injunctive relief requiring the City to consider for promotion only the three individuals whose actual scores — not rounded scores — on the exam are the three highest; and for a declaratory judgment declaring the current practices of the City to be unlawful.
Notice pursuant to the request for declaratory judgment was ordered by the court to be given to any persons whose rights might be affected by such a declaration by delivery to the President of the New Haven Police Union, Local 530, collective bargaining representative for all police officers who might be affected by any orders of the court, by mail and delivery to certain specific affected individuals on August 7, 2003, and by publication in the New Haven Register newspaper on July 21, 2003. The court finds that notice of the proposed declaratory judgment has been accomplished as ordered and is adequate.
FACTS COMMON TO ALL OF THE PLAINTIFFS
The promotion to a higher rank in the Police Department of the City of New Haven is accomplished by a qualified employee of a lower rank sitting for and passing a civil service examination. The New Haven Civil Service Commission oversees and certifies the examination process. In practice, the Commission contracts with private individuals and companies to devise and administer the actual examinations. To be eligible for promotion, a candidate must pass the examination with a minimum score of 70% on a scale of 100. The examination consists of a written component and an oral component. Those scoring too low on the written component are not invited to sit for the later oral component. The two scores are combined, one often given greater weight than the other (for example, the written part weighted at 60% and the oral part 40%) to yield the candidate's total score. The actual score is usually expressed as a number into the hundredths of a percent (00.00). Tie scores are rare. Only the names of persons who score 70% or above appear on the Eligible List.
Once the Eligible List has been certified by the Civil Service Commission, it has no more than a two-year life. That is, the individuals on the list remain eligible for appointment to the higher rank for no longer than two years from the certified date, after which the list expires and no promotions to that rank can be made until a new exam procedure has occurred and a new list certified. See New Haven Civil Service Rules and Regulations, Rule IV, Sec. 3. If an individual is not reached for promotion before the expiration of a list, or has been passed over for promotion, that individual can retake the exam the next time it is offered and attempt to make the Eligible List once again.
The Chief of Police determines whom he wishes to promote from among the top three scorers on the Eligible List and sends the name or names to the Board of Police Commissioners. The Board is the appointing authority, but as a practical matter the Board routinely approves the recommendations of the Chief. An appointment cannot be made until an opening in the rank occurs. See New Haven Civil Service Rules and Regulations, Rule VI. Commonly, multiple appointments to a higher rank are made at one time, usually when multiple openings occur simultaneously because some slots are not filled when they first occur.
At issue in these lawsuits is the following language of the current City Charter, Sec. 160, the wording of which has been in effect since 1993:
[N]o appointments or promotions within such class shall be made except from those applicants with the three highest scores of those who shall have passed the examination with a score of at least seventy percentum and have received a certificate to that effect from said board . . .
The previous version of the City Charter, Sec. 191, had contained similar but not identical language:
[N]o appointments or promotions within such class shall be made except from those applicants, not exceeding three, who shall stand highest on the list of those who shall have passed an examination of at least seventy per centum and have received a certificate to that effect from said board . . .
Also at issue is the language of the current New Haven Civil Service Rules and Regulations, Rule III, Section 9:
The examination grades shall be based on a scale of one hundred points. No appointments or promotions within any class shall be made except from those applicants, not exceeding three, who shall stand highest on the list of those who shall have passed an examination of at least seventy percentum and have received a certificate to that effect from the Civil Service Board . . .
FACTS OF CV 00 0444614: KELLY VS. NEW HAVEN
The first of these lawsuits was commenced by plaintiffs John P. Kelly, James W. Kelly, Aaron Sweeney and Rebecca Sweeney-Burns with a return date of November 21, 2000. The former two plaintiffs were on Eligible List 00-16 for promotion to Lieutenant, and the latter two were on the Eligible List 98-65 for promotion to Detective. All four plaintiffs were at that time one of the three top-scoring candidates on these respective lists. As promotions from each list appeared imminent, the plaintiffs moved for a temporary injunction to prohibit the defendant from denying them fair consideration for promotion, that is, by refusing to consider them among an exclusive group of only three persons from among whom the next promoted individual would be chosen. Before a hearing was held, the defendant announced its intention to promote Sweeney to Detective and Sweeney-Burns to Sergeant, so that they withdrew their request for temporary injunctive relief.
Sweeney-Burns was also on Eligible List 00-31 for promotion to Sergeant, a separate rank from that of Detective.
At that time, there were no openings for Lieutenant, the promotion for which the Kellys were eligible. The defendant agreed that in the event of future openings, it would give three weeks notice to the plaintiffs of any intention to make promotions, so that they could once again seek relief from this court if they considered themselves aggrieved. Such notice was given in the spring of 2002, and the court (Munro, J.) conducted an evidentiary hearing on the renewed motion of the plaintiffs James Kelly and John Kelly for a temporary injunction. The court granted an injunction on June 11, 2002 [ 32 Conn. L. Rptr. 327], finding the following facts, which this court adopts here, CT Page 462 verbatim:
Judge Munro refers in her decision to "ranks" as representing score groups; the undersigned prefers to use the term "rank" to refer only to the promotional titles at issue, and the term "score group" to refer to the grouping of candidates whose scores are deemed to be identical.
On the exam at issue, the scores of the candidates were rounded to the nearest whole number. Exam scores above .5 were rounded up; exam scores at .5 and below were rounded down. A review of the actual scores, without rounding, discloses that there were no ties between candidates. Once the scores were rounded, there were numerous ties. It is not clear when this rounding practice commenced. The evidence discloses that there was no rounding in 1990 but that on a March 1994 eligibility list, rounding had commenced. In practice once the City rounds the scores, it treats all scores rounded to the same score as equal and treats all the candidates who have that score as being of one rank. For instance, in the exam at issue, the plaintiffs before the court each had their score rounded by the City to 83, as did several other candidates. The effect is that the plaintiffs were two among four candidates at rank 7. The certified eligibility list at issue has seventeen ranks among 36 candidates, none of whom actually achieved the same score on the civil service examination. The ranking runs from one to seventeen, such that, for example, the individual at rank one scored higher than those in succeeding ranks . . .
This practice of selecting those who shall be promoted from the three highest ranks has meant that an individual who did not have one of the three highest scores can be selected for the promotion. It is this practice that is challenged by the plaintiffs in this application for temporary injunction. Presently, the Chief of Police, Melvin Wearing has announced his intention to submit for [promotion] the names of Sgt. Joseph Streeto and Sgt. Diane Langston.
As a result of previous rounds of promotions off of the eligibility roster, every candidate ranked above the two plaintiffs Kelly have been promoted, except Sgt. Edward Kendall. Sgt. Kendall has retired. Therefore, as the list presently stands the eligible candidates are in the following listed order and rank as assigned to them [with the actual or raw score in parenthesis next to the rank]: plaintiff Sgt James W. Kelly at rank 7 (83.30), plaintiff Sgt [John] P. Kelly at rank 7 (83.00), Sgt. Kevin Emery at rank 11 (78.10), Sgt. Diane Langston at rank 11 (78.02), and Sgt. Joseph Streeto at rank 11 (78.39). The plaintiffs claim that the intended promotion of Streeto and Langston will violate the City Charter and therefore should be enjoined.
The court entered an order that enjoined the defendants from making any promotions off the existing lieutenant eligibility list unless the appointing authority selected from the top three scoring individuals. Thereafter, although two openings were available, the defendants elected to make only one promotion from the Eligible List 00-16, that of Joseph Streeto, the individual on the list who then held the third highest score. The defendants did not make the intended promotion of Diane Langston who held the fifth highest score.
As for the Detective list 98-65 on which Aaron Sweeney and Rebecca Sweeney-Burns were listed, the same practices were utilized by the City — rounding, score grouping, and promoting based on group score — to initially pass over Sweeney and Sweeney-Burns. On the examination for promotion to police detective, one hundred six people passed the exam with a score above 70%. Aaron Sweeney achieved an actual or raw score of 89.33 for the thirteenth highest score and Sweeney-Burns a raw score of 85.77 for the thirty-seventh highest score.
There were six sets of two persons whose actual or raw scores were tied. Once the defendants rounded the scores of the one hundred six candidates, twenty-two sets of ties were created, and every score group from 77 to 91 had at least five persons tied within it. Sweeney's score was rounded down to 89 and he became tied with eight other persons, only two of whom actually scored higher than he did on the exam. All of those nine persons were deemed to be in score group 6. Sweeney-Burns's score was rounded up to 86 and she became tied with seven other persons in score group 9, of whom she scored higher than four. The effect of such rounding and score grouping was that once the five highest scoring individuals on the exam had been promoted (those whose scores were rounded to 92 and above), the next three groups of highest scores — 91, 89, and 88 — contained twenty people from among whom a promotion could be made.
In an even more peculiar twist, the promoting authority, in its interpretation of the Rule of Three, would sometimes choose to skip all or nearly all candidates in an entire score group to reach those with lower scores for promotion. This occurred with Eligible List 98-65 in the months before the plaintiffs filed their lawsuit. In the first round of promotions from List 98-65, thirty-two people were promoted at once. Among those promoted were all those in score group 10, whose rounded scores were 85. Passed over for promotion in the first round were eleven people who all scored higher on the exam than those in score group 10: Officers Sweeney who scored 89.33, D'Amato who scored 89.15, Harkins who scored 89.15, Wasilewski who scored 88.88, Wortz who scored 88.93, Esposito who scored 85.69, Kenney who scored 86.27, Morrone who scored 86.07, Prinz who scored 86.03, Quinn who scored 86.49, and Sweeney-Burns who scored 85.77; all passed over in favor of the promotion of Officers Augustine-Daye, Burrell, Daniels, Rivera, and Vazquez, who all scored between 84.64 and 85.24.
FACTS OF CV 01 0454311: BECKWITH VS. WEARING
The second action was commenced by plaintiff Peter Beckwith, with a return date of September 11, 2001. Beckwith sat for and passed the examination in September and October of 2000 for promotion to Sergeant and was certified on Eligible List 00-31. His actual or raw score was 84.7632. Of the 149 persons who passed the exam with a score of 70 or above, Beckwith had the twentieth highest score. Rebecca Sweeney-Burns, plaintiff in the previous action, sat for this exam as well and achieved the twelfth highest score with 86.4828. Among the 149 persons who passed this exam, there were five pairs of naturally occurring tie scores, of which the highest was a tie at 81.7471%. However once the defendants rounded off the scores to the nearest whole percentage number, the defendants created twenty groups of tied scores, of which the largest contained twenty-two tied individuals (at 77%). Beckwith became "tied" in sixth place at the rounded-off score of 85 with six other individuals. Sweeney-Burns became tied at fifth place at the rounded-off score of 86 with three other individuals.
In the first round of promotions from this list, thirty-one individuals were promoted, including at least eighteen persons who scored lower on the examination than did Beckwith. Thirteen persons with scores of 82.5% and above, including Beckwith, were passed over during the first promotional round in favor of at least ten persons who had lower scores. If promotions had been made only from among the three highest-scoring candidates, none of the ten lower scoring persons could have been promoted until at least eleven promotions had been made from those higher-scoring candidates who were passed over.
FACTS OF CV 03 047727: BECKWITH AND BURNS VS. NEW HAVEN
The third action was commenced by Peter Beckwith and Shawn Burns in May 2003, with a return date of June 17, 2003. They sat for and passed the examination for promotion to Detective in January and February of 2003 and were certified on Eligible List 03-02. Beckwith's raw score was 82.08, and Burns's raw score was 82.83. Of the 47 persons who passed the exam with a score of 70% or above, Beckwith had the fourteenth highest score and Burns had the eleventh highest. There was only one pair of natural tie scores among the 47 persons who passed the exam. After the defendants rounded the scores, there were 14 sets of ties.
In the first round of promotions from this list, Chief Wearing announced his intention to promote the ten highest scoring persons, and then skip Burns at number 11, promote the candidate who scored 12th highest, and then skip the 13th, 14th (Beckwith), 15th highest scoring candidates, promote the 16th highest scorer, skip the 17th and 18th highest scorers, and promote the 19th highest scoring candidate. Beckwith and Burns applied for temporary injunctive relief to prevent any promotions below the 14th highest scoring candidate until at least one among the 11th, 13th, and 14th highest scoring candidate was promoted first. The court heard evidence and reviewed documents, one of which was an opinion of the Corporation Counsel indicating that the court's previous order and interpretation of the law in Kelly v. New Haven, then as now still pending, was erroneous and need not be followed in making promotions to Detective from the 2003 Eligible List. Not surprisingly, the court consistently applied its previous analysis to this part of the litigation and promptly entered an injunction on May 9, 2003, prohibiting the proposed promotion of the candidates who scored 16th and 19th. On August 26, 2003, Shawn Burns withdrew as a plaintiff in this case.
DISCUSSION OF THE FACTS AND THE LAW
The defendants have attempted to show that their recent examination scoring practices are all matters of administrative convenience that are common in educational and vocational testing. The court does not credit the evidence of the City that, in the administration of competitive examinations for civil service purposes, rounding of multiple decimal point scores to the nearest whole number is justified as either an administrative convenience or as a valid way to eliminate insignificant discrepancies among exam candidates. Nor do the data or cases in which all candidates are deemed successful who score above a certain score (such as on bar examinations or on standardized tests such as the SAT) have any persuasive value here. When a statute calls for a competitive examination through which candidates are to be selected based on their achievement on the examination relative to one another, the examining authority is not free to manipulate the data to create artificial categories of scores to increase discretion of the appointing authority. The City must report the scores according to the percent achieved on the test instrument, without rounding; rank candidates relative to the actual score each has achieved on the examination; and appoint or promote as indicated from among the three highest scoring candidates.
As for the process of rounding off scores, the court finds that the only purpose served by that practice here, and in fact the reason it was begun at all, is to create the artificial tie scores that allow for the selection of any candidate whose score fails in the three highest scoring groups. The practice of rounding off scores is one component of the City's manipulation of the examination results in order to artificially and unlawfully increase the discretion of the appointing authority beyond the bounds of the Charter and Civil Service Rules, and indeed beyond the rationale for the Civil Service system.
The City also advances the argument that the slight change in the wording of the applicable section in the City Charter, as part of a wholesale revision and renumbering of the Charter proposed in 1992, compels the court to adopt a different interpretation of the disputed section. The City argues that the wording change, from "applicants, not exceeding three, who shall stand highest on the list" to "applicants with the three highest scores" creates a conflict in the legislative enactments which cannot reasonably be reconciled and also indicates an affirmative intention of the legislative body to alter the meaning of the former enactment. The City cites New Haven Water Co. v. Town of North Branford, 174 Conn. 556, 565 (1978), for the former proposition, and Quarry Knoll II Corp. v. Planning and Zoning Commission, 256 Conn. 674, 732-33 (2001), for the latter.
This court finds the two enactments not to be in conflict at all, however. When both are given their ordinary and common sense meaning, with the salutary purpose of the civil service system — to hire and promote based on merit — as a background, the two provisions simply do not conflict with one another. Only under the City's patently absurd interpretation of the 1993 Charter provision do the two provisions conflict. Moreover, there is no credible evidence that any change in meaning was intended by the Charter Revision of 1992. As further evidence that no change in meaning or interpretation was compelled by the Charter revision, the New Haven Civil Service Commission did not enact a change of its own Rules and Regulations on the subject of examination grading in response to the slightly different Charter language. Also, persuasively, Judge Munro pointed out in her decision regarding the temporary injunction in Kelly v. New Haven that the provision of the Connecticut General Statutes that enables municipalities to enact civil service systems speaks of "candidates . . . in order of their relative excellence as determined by the test," and the submission to the appointing authority of "the names of not more than three applicants having the highest rating." Conn. Gen. Stat. § 7-414.
The plaintiffs have sought to prove that cronyism, nepotism, and outright racism are behind the defendants' desire to increase the discretion of the appointing authority though rounding off of scores and selections from groupings of tied candidates. The court declines to make a finding as to the motive of the defendants. Rather than drawing conclusions about the good faith or bad faith of the city in adopting this bizarre set of promotional practices, what controls the result here are the language and purpose of the Civil Service regulations and the City Charter which authorize a system of hiring and advancement in city service based on the selection of one among the three persons, not one among seven or twelve or twenty, who have demonstrated the highest achievement on a competitive examination.
This court fully adopts the analysis and rationale of courts who have previously considered the very practices at issue here — the unfortunate manipulation of the civil service regulations by these defendants: Judge Blue in Bombalicki v. Pastore, 2001 Ct. Sup. 3083 (2001), and Judge Munro in her decision on the temporary injunction in Kelly v. New Haven, supra.
The court, along with Judge Blue and Judge Munro, relies on the obvious and clearly articulated language of the statutes and rules involved, cited earlier in this memorandum. Among the well-established principles of statutory construction to be followed are that a court must construe a statute in a manner that will not thwart its intended purpose or lead to absurd results. See Sutton v. Lopes, 201 Conn. 115, 121, 513 A.2d 139, cert. denied sub nom. McCarthy v. Lopes, 479 U.S. 964, 107 S.Ct. 466, 93 L.Ed.2d 410 (1986). Also the court must avoid a construction that fails to attain a rational and sensible result that bears directly on the purpose the legislature sought to achieve. Turner v. Turner, 219 Conn. 703, 713, 595 A.2d 297 (1991).
The idea that the Civil Service Rules, originally enacted to limit the discretion of the appointing authority to select a candidate for reasons other than merit, ought to be parsed in such a way to expand the discretion of the appointing authority to choose from among upward of forty or more candidates for each opening is an absurd interpretation which this court will not adopt in the face of the language of the Charter and the Civil Service Rules and the important purpose of the civil service system.
We have long recognized the purpose and importance of [civil service] examinations . . . The object of providing for civil service examinations is to secure more efficient employees, promote better government, eliminate as far as practicable the element of partisanship and personal favoritism, protect the employees and the public from the spoils system and secure the appointment to public positions of those whose merit and fitness have been determined by proper examination. The civil service law provides for promotion in governmental employment according to merit and fitness ascertained by competitive examination. Resnick v. Civil Service Commission, 156 Conn. 28, 30, 238 A.2d 391 (1968); State ex rel. McNamara v. Civil Service Commission, 128 Conn. 585, 588, 24 A.2d 846 (1942). [Internal citations omitted.]
Cassella v. Civil Service Commission, 202 Conn. 28, 34-35, 519 A.2d 67 (1987). As long as the City chooses to have a competitive Civil Service system, the City must adhere to the letter and spirit of its statutes and rules that selection for promotion be based on the relative achievement of candidates on the required competitive examination.
CONCLUSION
Accordingly, this court enters a Declaratory Judgment declaring the herein described practice of the defendants of 1) rounding off scores so that tie scores are then created, 2) grouping candidates with tie scores into one group as though they all had actually received the identical score on the exam, and 3) promoting from among any of those candidates whose scores fall into the top three groups of scores, as opposed to promoting only one among three candidates who have scored highest on the examination, violates the City Charter and the Civil Service Rules of the City of New Haven; and such practice is hereby permanently enjoined.
The court directs counsel for the plaintiff to promptly draft an order to this effect for each of the above files, submit such drafts to counsel for the defendants for approval as to form only, and submit such final drafts to the court for signature.
IT IS SO ORDERED.
PATTY JENKINS PITTMAN, JUDGE.