400 Mass. 597 | Mass. | 1987
The plaintiffs, who seek promotion to the position of fire lieutenant, brought this action in the nature
The plaintiffs are fire fighters in the city of Boston who took an examination in October, 1983, for promotion to the position of fire lieutenant. The plaintiffs’ names were placed on the civil service eligibility list for the position of fire lieutenant on February 15, 1984 (1984 list). By the terms of the civil service statute, G. L. c. 31, that list was due to expire on February 15, 1986. Between February, 1984, and the end of 1985, promotions were made in the normal course from the 1984 list. By February, 1986, the plaintiffs’ names were the first four names appearing on the list and thus the next to be considered for promotion. In the normal course, a new examination for the position of fire lieutenant had been ádministered in November, 1985, from which a new eligibility list (1986 list) was to be created to replace the expiring 1984 list.
Although many promotions to fire lieutenant had been made from the 1984 list in February, 1986, no new positions were expected to become available before the 1984 list expired because of delays in creating the list of persons eligible for promotion to district fire chief.
On February 14, 1986, the plaintiffs brought this action in the nature of mandamus. On February 25, 1986, a judge of the Superior Court issued a preliminary injunction which ordered the administrator to create the district fire chief list, to refrain from interfering with the plaintiffs’ efforts to seek promotion, and to refrain from certifying names from the 1984 list “until the District Fire Chiefs’ Eligibility List is established and options are restored to the appointing authority to fill the resulting vacancies from the list in existence as of February 18, 1986.”
On March 26, 1986, the administrator established a new eligibility list for fire lieutenant from the results of the November, 1985, examination (1986 list). On April 1, 1986, the administrator established the eligibility list for the position of district fire chief. Shortly thereafter, the commissioner of the fire department submitted a requisition to fill the then-vacant positions of fire lieutenant. The administrator declined to certify names for that position until the litigation concerning the 1984 list was resolved, and filed a motion for summary judgment on April 11, 1986. On April 18, 1986, the plaintiffs filed a complaint for civil contempt. The judge granted the administrator’s motion to consolidate the hearings on the motion for summary judgment and the contempt petition. The judge ordered that the administrator certify the plaintiffs’ names to the appointing authority as eligible for appointment to the position of fire lieutenant. The judge also found the administrator to be in civil contempt, and fined him $50.
1. The plaintiffs’ claims rest on the argument that the administrator’s failure to establish the district fire chief list within
The plaintiffs are correct in pointing out that an important purpose of the civil service system is “assuring that all employees are protected against coercion for political purposes, and are protected from arbitrary and capricious actions.” G. L. c. 31, § 1, fourth par. (f). See also Debnam v. Belmont, 388 Mass. 632, 635 (1983). In this case, however, the plaintiffs have not demonstrated that the administrator acted deliberately or maliciously to delay the establishment of the district fire chief list in order to injure the plaintiffs. In his memorandum and order concerning civil contempt, the judge expressly stated that no malicious purpose on the part of the administrator had been shown.
In the circumstances of this case, we think the Legislature did not intend the six-month requirement of § 25 to confer a right on those whose names appear on eligibility lists for positions on lower tiers in the civil service system to postpone the expiration of their lists until all positions which might have become available during the term of their list are filled from
The civil service system confers only limited rights to those on eligibility lists. Chapter 31 expressly directs that an eligibility list will be effective “for such period as the administrator shall determine, but in any event not to exceed two years . . . .” G. L. c. 31, § 25. The system the Legislature created, in which eligibility lists expire and are replaced by new lists, involves the risk that positions might become available immediately after the expiration of an old list — or immediately before the establishment of a new list. The over-all pattern of the statute does not justify expectations that certain positions will become available during the period of a single list. Moreover, individuals do not have a vested right in their particular positions on the eligibility list once it is established. See G. L. c. 31, § 23 (“administrator shall make any necessary adjustment to correct such error” in grading of examination); McCue v. Director of Civil Serv., 325 Mass. 605, 608 (1950) (“The director may revise the list by placing ahead of [an applicant’s] name the names of disabled veterans who had failed to claim, until after the list was established, the preference accorded them”), citing Smith v. Director of Civil Serv., 324 Mass. 455 (1949). In addition, the statute does not specify when examinations should be administered, leaving the timing of an examination to the sound discretion of the administrator. G. L. c. 31, §§ 18-19. See generally McCue v. Director of Civil Serv., supra at 609. Hence, those on an eligibility list for a lower-tier position are unable to assert a protected interest in the timing of establishing a new eligibility list for that lower-tier position; we think they may not assert a greater interest in whether the six-month requirement of § 25 is satisfied for higher-tier positions.
We also note that the statute contemplates a new eligibility list being created during the active life of an older list, and directs that the two lists are to be merged. G. L. c. 31, § 25. In the statutory scheme, the most recent examination results
Finally, we note that the administrator is given a measure of discretion over the expiration of a list. Under the statute in effect at the expiration of the 1984 list the administrator could extend a list due to expire if “the administrator determines that the public convenience requires an extension of eligibility, in which case eligibility of all persons on such list shall be extended until such time as a new eligible list is established for the same position . . . .” G. L. c. 31, § 25. Effective February 21, 1986, § 25 was amended by St. 1985, c. 527, § 13, to extend an expiring list automatically if a new list has not been established; the extension is terminated, however, upon the establishment of a new list, or upon the decision of the administrator “that the effective maintenance of the merit system so requires such revocation.” Not only do the provisions give the administrator substantial discretion over extending eligibility lists, they also reflect the preference for the establishment of new lists. The corresponding provision for extension of a list because of a court order is designed to ensure that those on the list are eligible for the entire period of the list. Id. Nothing in that provision indicates that a court may extend a list to provide the members of the old list consideration for all promotions which might have become available before the list’s statutorily-prescribed expiration.
Accordingly, we conclude that the judge erred in issuing his order in February, 1986, extending the 1984 list for fire lieutenant, and in ordering on June 2, 1986, that the administrator certify the names of the plaintiffs to the appointing authority and refrain from interfering with the plaintiffs’ efforts to seek promotion.
2. The administrator was adjudicated to be in civil contempt for “contumacious” behavior with regard to the order of February 25, 1986. “When it is decided by appellate reversal that the plaintiff was not originally entitled to any equitable relief, civil contempt adjudications fall with the orders violated.” Fitchburg v. 707 Main Corp., 369 Mass. 748, 754 (1976). See Stow v. Marinelli, 352 Mass. 738, 745 (1967).
So ordered.
The plaintiffs Howard and Suprey did not take the November, 1985, examination. LaPorte took the examination, but did not receive a passing score. Although the record does not reflect whether Malone took the November, 1985, examination, the administrator states that Malone took it and passed.
The administrator explained that the reason for the lateness in establishing the district fire chief list was delays in the grading of the essay portion of