UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
filed: February 22, 1977.
ADELBERT M. BRYAN, APPELLANT,
ALPHONSO A. CHRISTIAN, COMMISSIONER OF PUBLIC SAFETY, AS SUCCESSOR TO ELDRIDGE WAITH (D.C. CIVIL ACTION NO. 393-1973)
ON APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF CHRISTIANSTED, ST. CROIX.
Seitz, Chief Judge, Gibbons and Hunter, Circuit Judges.
GIBBONS, Circuit Judge
In this appeal we review an order of the District Court of the Virgin Islands which, on a writ of review pursuant to 5 V.I.C. § 1421 et seq., affirmed the decision of the Government Employees Service Commission (GESC).*fn1 The appellant Adelbert M. Bryan, a police officer within the Virgin Islands Department of Public Safety, sought relief before the GESC from the decision of the Department of Public Safety to deny him promotion to the rank of police sergeant. When the GESC denied relief Bryan petitioned the District Court of the Virgin Islands for a writ of review of the GESC decision. The district court granted review and affirmed the decision of the GESC. We reverse and remand.
Employees of the Department of Public Safety are covered by the Personnel Merit System set forth in Chapter 25 of Title 3 of the Virgin Islands Code. That Chapter is administered by the Director of Personnel.*fn2 Under the Chapter ". . . all appointments and promotions to positions in the classified service shall be made on the basis of merit and fitness, to be ascertained by competitive examinations."*fn3 The sole examining authority is the Director of Personnel, who
". . . shall from time to time conduct such entrance tests and promotion tests as he considers necessary for the purpose of establishing employment lists and promotion lists. The tests shall be competitive and shall be of such character as to determine the relative fitness and ability of the person tested to perform the duties of the class of positions for which a list is to be established, except that with the approval of the Governor a noncompetitive test may be given to an employee for a promotion on the basis of special qualifications of the employee or special or unusual requirements of the service. Tests may be written, oral, physical or in the form of a demonstration of skill, or any combination of such tests. The tests may take into consideration such factors including education, experience, aptitude, capacity, knowledge, ability, character, physical fitness, and other qualifications, as in the judgment of the Director of Personnel enter into the determination of the relative fitness of the applicant. . . ."*fn4
The Chapter also provides that admission to tests shall be open to all persons desirous of taking the examination,*fn5 and that each person competing in any test shall be given notice of his final earned rating and of his relative standing on the list.*fn6
When a department head wishes to fill a vacancy he must submit to the Director of Personnel a statement showing the position to be filled and the duties of the position.*fn7 After such submission:
The Director of Personnel shall then certify to the appointing authority*fn8 the names of three eligibles for such position. If more than one vacancy is to be filled in the same class, one additional eligible shall be certified for each additional vacancy. Upon receiving certification of eligibles, the appointing authority, after consultation with the department head shall appoint one of those whose names are certified to each vacancy he is to fill.*fn9
The Director of Personnel has no discretion in certifying eligibles to depart from the ranking in the employment or promotion lists established as a result of competitive examinations.*fn10 Nor is there any discretion with respect to the number of persons certified; three persons for one vacancy and one additional person for each additional vacancy. The only exception is that "more than three names may be certified to insure that all persons of equal rank and eligibility have an equal opportunity to be selected for available vacancies."*fn11 The plain meaning of the exception is that if two persons score identically on a competitive examination both may be certified.*fn12
In August of 1971 the Commissioner of Public Safety proposed to the Assistant Director of Personnel that certain changes be made in the requirements for promotion within the police ranks. The Commissioner's draft proposal suggested a length of service requirement of three years for promotion to sergeant; plus an examination, weighted 50% on a written test and 50% on "Record & Seniority." The draft spelled out a method of quantifying "Record & Seniority" by giving point scores for college credits, departmental awards, and length of service, while deducting points for suspensions or reprimands. Thus an officer's "Record & Seniority" point score was determinable by a simple examination of his personnel file. Although the Director of Personnel's approval of the foregoing requirement appears to have been informal, rather than by formal rulemaking, it is undisputed that the requirements were approved. Indeed the Office of the Director of Personnel acted pursuant to those requirements in determining the rank of persons eligible for promotion to the sergeant positions implicated in the instant case.
In August of 1972 the DPS had twelve vacancies to be filled by promotion to the rank of sergeant. Appellant Bryan applied for promotion to sergeant and received a score on the written examination of 79.38, and a "promotional record"*fn13 score of 84.30. His final rating as determined by the Office of Personnel was the average of these two scores - 81.84.
That score placed Bryan fourth on the entire promotion list, containing 34 names, of all those eligible for promotion to sergeant. The entire list of eligibles was then turned over to the Department of Public Safety. Nothing in the record indicates whether in turning over the entire list the Director of Personnel intended to make the certification required by § 526(a).*fn14 If that was intended the only persons "certified" were the fourteen highest ranking eligibles,*fn15 since under § 526(b) the Director of Personnel ordinarily has no discretion in determining which eligibles may be certified once they are ranked on the basis of their test results.*fn16
Upon receiving the entire list of eligibles the Department of Public Safety convened what it refers to as a "review board." It consisted of superior officers who conducted interviews of all those interested in becoming a sergeant. Each applicant was given an "interview" score. This score was combined with the score determined by the Office of the Director of Personnel, and a new final score assigned. The new final score, reflecting the "interview" score, moved Bryan from fourth to seventeenth on the list of 34 eligible persons.
The "review board" procedure is not authorized by any statute of the Virgin Islands. It was not approved, either by regulation or informally, by the Director of Personnel. Indeed it could not have been, for no provision in Chapter 25 authorizes the Director of Personnel to delegate the certification of eligibles to the departments whose personnel policies he supervises. The Assistant Attorney General has referred us to no statutory authority for the Commissioner of Public Safety, or any other governmental official or agency, to conduct its own promotional examinations or to change the rankings of persons who qualify for eligibility certification pursuant to § 526(a) and substitute names on a certification list who do not so qualify.*fn17
As a result of changes in the eligibility list which we have found to be invalid, twelve officers, not including Bryan, were appointed to sergeant. Most of these officers, if not all, ranked lower than Bryan on the eligibility list prepared by the Office of the Director of Personnel. Bryan petitioned to the GESC for relief from the DPS's decision denying him promotion. Before the GESC he contended (1) that the entire "review board" proceeding was unlawful, and (2) that in any event it had been utilized in a discriminatory manner. The GESC denied relief.
We initially address the jurisdiction of the GESC to entertain Bryan's contentions. The GESC is a statutory commission within the office of the Governor.*fn18 It has both investigatory and advisory jurisdiction*fn19 and power to conduct hearings authorized by Chapter 25.*fn20 Among those authorized are appeals by employees affected by the classification or allocation of a position,*fn21 appeals in cases of proposed dismissal or suspension,*fn22 and appeals charging discrimination on account of non-merit factors.*fn23 While the language of the three sections authorizing hearings is not free from ambiguity, it would appear that the overall legislative intention was to vest in the GESC jurisdiction to hear disputes over classification, discharge or suspension, or the application of non-merit factors in promotion or hiring. The latter jurisdiction is found in § 531. That section does not define a non-merit factor. In the context of this case, however, it takes on meaning from the other provisions of Chapter 25. A non-merit factor must mean a factor other than "merit and fitness, to be ascertained by competitive examinations."*fn24 We conclude, then, that the GESC had jurisdiction to consider both the contention that the entire "review board" proceeding was unlawful, and the contention that it had been utilized in a discriminatory manner.
At Bryan's hearing the Department of Public Safety, although disputing the scope of the GESC's remedial authority, conceded jurisdiction over both claims,*fn25 and the GESC assumed such jurisdiction.*fn26 The GESC found:
"Appellant Adelbert M. Bryan received the same consideration treatment and procedures as all other eligible candidates."
Relying on this finding the GESC dismissed Bryan's appeal "for insufficient evidence of discrimination." The GESC opinion did not specifically address the contention that the "review board" procedure was unlawful. But implicit in its finding that Bryan had not been discriminated against since he had received the same consideration as all other eligible candidates, including the twenty eligibles who could not properly be certified for promotion consideration, is the holding that the board review procedure was valid. It is clear, then, that the GESC rejected both of Bryan's contentions.
Bryan's petition for a writ of review raised both issues. The district court affirmed the GESC dismissal. It concluded that substantial evidence in the record supported the Commission's finding that Bryan received the same consideration treatment and procedures as all other candidates. With respect to the claim of illegality in the appointing process the court reasoned:
"It cannot be reasonably expected that decisions regarding the promotion of a police officer can be made solely on the basis of factors which readily lend themselves to numerical ratings."
We concede that there is much to be said for a legislative judgment that the qualities which make for a good police sergeant cannot readily be quantified. But the legislature of the Virgin Islands has made the legislative judgment. It has placed policemen in the classified service, with promotion to be made on the basis of merit "to be ascertained by competitive examinations." And it has vested the examining authority not in a "review board" in the Department of Public Safety, but in the Director of Personnel. The only discretionary authority in the Commissioner of Public Safety (assuming he was the appropriate appointing authority) was to select from the first fourteen on the promotion list twelve eligibles for the twelve vacancies.*fn27
The procedure used in selecting officers for promotion to sergeant was totally inconsistent with the governing provisions of the Virgin Islands Statutes. Thus we must reverse. Whether, had proper procedures been followed, Bryan would have been appointed from the fourteen properly certified eligibles cannot be determined at the appellate level on the present record. But what is clear is that the GESC erred in denying his appeal, and that the district court erred in affirming that denial. We express no opinion as to a remedy for the violations we have found since it appears proper to remand to the GESC, the administrative agency with primary responsibility, for its initial consideration of "appropriate corrective action."*fn28
The judgment affirming the decision of the GESC shall be reversed and the case remanded to the district court for the entry of an order vacating the GESC order and remanding the proceedings for the entry of an order granting appropriate action to remedy the violations of Chapter 25 which we have found.