Sharkey v. Civil Service Commission

Sergeant Sharkey on a written examination for promotion received a mark of 67.2. To become eligible he required a mark of at least 70. Review by the Director of the Division of Civil Service (G. L. c. 31, § 12A, as amended through St. 1967, c. 780, § 13) and an appeal to the commission (c. 31, § 2 ¡jy, as amended through St. 1969, c. 15, § 1) resulted in no sufficient increase in his mark to make him eligible. Sergeant Sharkey was marked zero on his answer to a question involving a legal issue which is not now decided by us, and has not been decided by this court since the enactment of St. 1968, c. 721, § 1 (the 1968 statute). That issue is whether conspiracy to receive stolen property worth $55 is a “crime”, a felony, or a misdemeanor. See G. L. c. 266, § 60; c. 274, § 1 and § 7 (as amended somewhat obscurely in some respects by the 1968 statute). Although the question, which required a multiple choice answer, was hardly a suitable device for testing Sergeant Sharkey’s capacity to reason on an issue of law, it was a permissible inquiry. A Superior Court judge correctly sustained the commission’s demurrer to a petition for a writ of certiorari. The answer to a question upon an administrative examination of this type (even if it be a question about a legal matter) is not a question of law which may be raised by certiorari. The commission’s decision concerning answers to such questions, unless marked in a manner “clearly shown to be arbitrary or devoid of logic and reason,” will not be disturbed upon review by certiorari. See Ferguson v. Civil Serv. Commn. 344 Mass. 484, 488. See also Barry v. Civil Serv. Commn. 323 Mass. 431, 433-434. No facts are alleged which suggest any arbitrary action, or action otherwise than in good faith to test fairly the persons examined. Order sustaining demurrer affirmed.