ON APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF CHRISTIANSTED, ST. CROIX.
Seitz, Chief Judge, Gibbons and Hunter, Circuit Judges.
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, ...