State Ex Rel. Haley v. Elliott

Driver, J. Relator, a police officer of the city of Seattle, sought a writ of mandate to compel the civil *534 service commission of that city to place him in position No. 3 on an eligible list based upon a promotional examination held on April 10, 1939, for the position of police sergeant, and to require the commission to give him the preference as to appointment over any person holding a position on the list lower than No. 2. A trial to the court on the merits resulted in the entry of a judgment quashing the alternative writ and dismissing the action. The relator appealed. As the trial court observed, in orally announcing its decision, there was no material controversy concerning the facts. The examination in question was given in conjunction with one for the selection of detective sergeants. It had two phases: first, a written quiz and, second, a small firearms shooting test. At the same time, another promotional examination was held for the position of police captain. Some, but not all, of the questions propounded in the captaincy examination were also used in the sergeancy examinations. The identity of the participants was concealed by the customary method of assigning to each of them a number to be placed upon his examination paper. Eighty-one persons were examined for the position of detective sergeant. Thirty-seven qualified, forty-two failed, and two were permitted to take postponed firearm tests. One hundred nineteen took the examination for the office of police sergeant. Forty-seven qualified, sixty-six failed, and six were permitted to take the postponed firearm tests. The written examination counted seventy-five per cent and the shooting tests, twenty-five per cent. A seventy per cent grade was required for qualification. All of the police sergeancy contestants who passed the written examination took the firearm tests on July 5th and 6th, except the six previously mentioned, who were permitted to take them on July 21st and *535 August 3rd. On July 20th, the commission gave the appellant a written notice that his “final grade” was 88.138 per cent and his “relative standing,” No. 3. On September 15th, it sent him a form letter to the effect that four “true-false” and one “multiple-choice” examination questions had been improperly scored, and three questions were found to be controversially worded and should be eliminated from consideration; that the commission had ordered the scoring revised and corrected accordingly; and that, as a result of such revision, appellant’s final average had been reduced to 86.103 per cent and his relative standing to No. 17. Appellant filed timely written protests with the commission as to both the giving of the deferred firearm tests and the regrading of his examination papers. ■ The considerations which impelled the commission to change the scoring of some of the examination questions and to eliminate others, were stated in the testimony of its chairman as follows: “Following the proof of the results, of the examination, notices went out, and following this, under the Rule [Rule IV, § 11] there were a number of protests made by various persons who had taken this examination. ... I suggested that the Chief Examiner should consult with the Corporation Counsel’s office, and check on these legal questions, and following that the matter was brought back to the attention of the Commission. The Chief Examiner relied upon the results of his review of these questions with the Corporation Counsel’s office and the matter was heard before the Commission at a public hearing. As a matter of fact, these various protests were up for hearing on two or three occasions. . . . Any of the police sergeants, — any of the police, that we understood had made these protests, were invited to come in and give their views to the commission, in support of their protests, and after hearing all of the protests and after reviewing all of the questions about which any protest had been made or any question had been raised, the Commission took action.” *536 Some of the protests mentioned by the witness were made by participants in the captaincy examination, while others were made by contestants for sergeancies. Appellant advances two contentions: (1) That the civil service commission had no authority to change the grades after the identity of the competitors had been disclosed; and (2) that the commission’s conduct of the firearm shooting tests was improper and in excess of its lawful authority. The first contention is determined unfavorably to the appellant by State ex rel. Dunn v. Elliott, 6 Wn. (2d) 426, 107 P. (2d) 915. That case involved the captaincy examination mentioned earlier in this opinion and some of the same written examination questions under consideration here. There, the civil service commission, acting upon a number of protests filed by the contestants, concluded that six questions had been incorrectly scored and that two others were controversial and should be eliminated. The examination papers were regraded accordingly. As a result, the relative standing of appellant Dunn was lowered from No. 6 to No. 8. We held that such action on the part of the commission was authorized and proper, and did not invalidate the examination under the following provisions of Rule IV, § 11, of the civil service rules of the city of Seattle: “When final results of an examination are determined, the commission shall pass on the results thereof. If approved, the papers shall then be identified and notice of his grade shall be sent each competitor. Any competitor may inspect his examination papers within one week of the date of such notice, and if he finds material error in the marking, or in computing the final results, he may make definite written showing to the commission. The commission shall consider these claims and make any proper corrections. When such corrections apply to other competitors, the same shall he ordered on all papers affected, whether re- *537 suiting in higher or lower average standing(Italics ours.) We distinguished State ex rel. Hearty v. Mullin, 198 Wash. 99, 87 P. (2d) 280 (also relied upon by appellant in the present case), by pointing out that it involved the adoption by the civil service commission of a new standard of grading after the identity of the competitors had been disclosed, and that it was not applicable where the commission, upon protests by contestants, had merely corrected material errors found to exist in the markings. Passing now to appellant’s second contention, he maintains that his grade should be raised because six of the police sergeancy competitors took the firearm tests from two to four weeks after the others had taken them, at least three of the six ultimately receiving higher grades than the appellant. These favored individuals, appellant says, were in a position to find out in advance what types of targets would be used and what the distances would be, they had time to practice, and they did not have to shoot under the same competitive conditions as the other contestants. The record is silent as to whether, or to what extent, any of these factors actually entered into the making of the deferred tests. How, then, can we conclude, without resort to conjecture, that they materially affected the results? The tests were held at the Fort Lawton pistol range, and there is no testimony that they were in any respect extraordinary or unusual. It seems reasonable to assume that the contestants, all of whom were Seattle police officers, were familiar, at least in a general way, with the targets used and the procedure employed in shooting over a conventional army post pistol range. We may also fairly assume that such officers were trained and experienced in the *538 use of' firearms, and that they customarily practiced more or less, especially when they were about to take a promotional examination. It is not likely, therefore, that the giving of the six .contestants two or four weeks’ additional time in which to practice would make any material difference. As to the dissimilarity in competitive conditions, the effect of that, too, is uncertain. Hard, keen competition is detrimental to some contestants, but serves as a stimulant and an aid to others. The commission’s chief examiner testified, and his testimony was not disputed, that the six contestants in question were permitted to take deferred shooting tests because they were “out of town” when the tests were taken by the others. Not only this testimony but also the entire record indicátes that the civil service commissioners acted in good faith, for what they considered sufficient reason. The appellant has failed to show that their conduct of the shooting tests was arbitrary or capricious. Appellant also complains that two of the contestants were allowed to take the shooting tests a second time. The record leaves their exact identity very much in doubt. It seems that one was a Mr. Gay and the other a patrolman Murphy. The junior personnel examiner testified that the latter was permitted to take the tests again because his gun backfired and injured his thumb on the first occasion. Why Mr. Gay was accorded the privilege, does not appear. However, the same witness also testified that Mr. Gay had not taken his qualifying medical examination at the time of the trial, and that, even had he done so successfully, his relative standing would have been No. 22; and that patrolman Murphy, who twice took the shooting tests, was not Charles C. Murphy, the only Murphy on the eligible list who had a higher relative standing than the appellant. Mani *539 festly, appellant could not have been prejudiced by the giving of the second firearm tests to these competitors. Judgment affirmed. Robinson, C. J., Steinert, Beals, Millard, Simpson, and Jeffers, JJ., concur.