HEDRICK, Judge.
The first assignment of error to be treated is respondent’s contention that “[t]he Court erred in concluding that the sole issue presented to the Raleigh Civil Service Commission by respondent’s appeal to it was whether [the] Chief of Police . . . wrongfully discriminated against respondent when he passed over respondent and promoted Lieutenants Meekins and Winston.” The gravamen of respondent’s argument under this assignment of error is that the court’s ruling limited respondent’s appeal to the sole issue of whether he had been a victim of racial discrimination, and that such ruling therefore improperly avoided the question raised by respondent of whether the “merit principle” was violated when other lieutenants were promoted over him.
The “merit principle” to which respondent refers appears in section (b) of the then-controlling Raleigh Civil Service Act, found in 1971 N.C. Sess. Laws Ch. 1154, § 1, which reads as follows:
Merit Principle.
All appointments and promotions of the City officers and employees shall be made solely on the basis of merit and fitness demonstrated by examination or other evidence of competence. However, any employee who contends that he was not promoted because of bias or because of reasons not related to merit, fitness or availability of posi
tions, shall have the right, after exhausting all administrative remedies, to appeal his cause to the Civil Service Commission.
Respondent is correct insofar as he suggests that his appeal presented a question of whether his nonpromotion was a violation of the merit principle even if it was not attributable to racial discrimination. He is wrong, however, in contending that the court’s limiting the appeal to the issue of “wrongful discrimination” avoided the “merit principle” question. “Discrimination” is defined as follows: “the act or an instance of discriminating: as (1) the making or perceiving of a distinction or difference . . . (2) recognition, perception, or identification esp. of differences: critical evaluation or judgment.” Webster’s Third New International Dictionary 648 (1968). Hence, an issue of “wrongful discrimination” would encompass the question of whether wrongful differentiations were made by the Chief of Police in his assessments of candidates for promotion; such a wrongful differentiation would be one based on grounds unrelated to merit. The court, in considering the sole issue of wrongful discrimination, therefore did not fail to pass on the “merit principle” issue. This assignment of error has no merit.
The next assignment of error to be considered is respondent’s contention that the court’s reversal of the Commission’s order was predicated on a ground which was erroneous or, if not erroneous, insufficient for reversal. The alleged improper ground for reversal was the court’s conclusiqn that the “Commission was without authority to promulgate, publish and consider rules which it deemed to be essential elements of the ‘Merit Principle.’ ”
The essential elements of the “Merit principle” referred to in the court’s order were delineated by the Commission in Conclusion of Law number 4 of the Commission’s order, set out
supra.
Respondent argues that the Commission did have the power and authority to delineate these essential elements.
An administrative “agency is a creature of the statute creating it and has only those powers expressly granted to it or those powers included by necessary implication from the legislative grant of authority.”
In re Broad & Gales Creek Community Association,
300 N.C. 267, 280, 266 S.E. 2d 645, 654 (1980).
Although “[t]he authority to make rules and regulations to carry out an express legislative purpose or to effect the operation and enforcement of a law . . . may be delegated,”
Motsinger v. Perryman,
218 N.C. 15, 20, 9 S.E. 2d 511, 514 (1940), there is nothing in the Raleigh Civil Service Act to indicate that the Commission was conferred the power to delineate the essential elements of the “Merit principle.” Rather, the Act vests in the City Council the ultimate responsibility for the promulgation of personnel rules as follows:
(e)
Personnel Rules.
The officer administering the personnel system shall prepare personnel rules. The City Manager shall refer such proposed rules to the Civil Service Commission which shall report to the Manager its recommendations thereon. The rules including the recommendations of the Civil Service Commission and the recommendations of the City Manager shall be presented to the City Council. The Council upon consideration of the recommendations shall then adopt the official personnel rules.
1971 N.C. Sess. Laws Ch. 1154, § 1. Furthermore, the Commission’s “essential elements” require more of a promoting official than is required by the “Merit principle,” in that the “essential elements” include procedural requirements as well as considerations of substantive qualifications;
e.g.,
the Commission required that promotional criteria and procedure be established and published in advance of the promotional process. Noncompliance with such procedural details does not necessarily constitute a violation of the “Merit principle,” and the promoting official was free to make its promotional decisions as it chose, except for the specific statutory constraints imposed by the Act’s “Merit principle” and prohibition of wrongful discrimination.
See
3 McQuillin, The Law of Municipal Corporations § 12.131 (3d ed. 1982).
The Commission’s “essential elements” were therefore unauthorized and not binding on the Chief of Police, and his failure to comply therewith was not
ipso facto
a violation of the “Merit principle” requiring relief from the Commission. Under this assignment of error, however, respondent also contends that even if the Commission's “essential elements” were improper, the court should not have reversed the Commission since the Commission did make findings of fact to support a conclusion that the
true “Merit principle” had been violated. This argument coincides with respondent’s final assignments of error and will be discussed thereunder.
The last assignment of error brought forward in respondent’s brief is in pertinent part as follows: “[t]he Court erred in reversing and setting aside the Order of the . . . Commission because . . . the conclusions of law are supported by the findings of fact.” Notwithstanding his assertions to the contrary, respondent appellant does have the burden of prevailing on this issue, since otherwise the court’s order reversing the Commission would have to stand on the basis of its conclusion “that the Commission made no such finding” “that respondent was wrongfully discriminated against.”
In resolving this issue, there is a two-fold inquiry. First, there must be a determination of what the statutory “Merit principle” requires in promotions; secondly, there must be a determination of whether the Commission’s findings of fact are sufficient to support a conclusion that the “Merit principle” was violated.
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HEDRICK, Judge.
The first assignment of error to be treated is respondent’s contention that “[t]he Court erred in concluding that the sole issue presented to the Raleigh Civil Service Commission by respondent’s appeal to it was whether [the] Chief of Police . . . wrongfully discriminated against respondent when he passed over respondent and promoted Lieutenants Meekins and Winston.” The gravamen of respondent’s argument under this assignment of error is that the court’s ruling limited respondent’s appeal to the sole issue of whether he had been a victim of racial discrimination, and that such ruling therefore improperly avoided the question raised by respondent of whether the “merit principle” was violated when other lieutenants were promoted over him.
The “merit principle” to which respondent refers appears in section (b) of the then-controlling Raleigh Civil Service Act, found in 1971 N.C. Sess. Laws Ch. 1154, § 1, which reads as follows:
Merit Principle.
All appointments and promotions of the City officers and employees shall be made solely on the basis of merit and fitness demonstrated by examination or other evidence of competence. However, any employee who contends that he was not promoted because of bias or because of reasons not related to merit, fitness or availability of posi
tions, shall have the right, after exhausting all administrative remedies, to appeal his cause to the Civil Service Commission.
Respondent is correct insofar as he suggests that his appeal presented a question of whether his nonpromotion was a violation of the merit principle even if it was not attributable to racial discrimination. He is wrong, however, in contending that the court’s limiting the appeal to the issue of “wrongful discrimination” avoided the “merit principle” question. “Discrimination” is defined as follows: “the act or an instance of discriminating: as (1) the making or perceiving of a distinction or difference . . . (2) recognition, perception, or identification esp. of differences: critical evaluation or judgment.” Webster’s Third New International Dictionary 648 (1968). Hence, an issue of “wrongful discrimination” would encompass the question of whether wrongful differentiations were made by the Chief of Police in his assessments of candidates for promotion; such a wrongful differentiation would be one based on grounds unrelated to merit. The court, in considering the sole issue of wrongful discrimination, therefore did not fail to pass on the “merit principle” issue. This assignment of error has no merit.
The next assignment of error to be considered is respondent’s contention that the court’s reversal of the Commission’s order was predicated on a ground which was erroneous or, if not erroneous, insufficient for reversal. The alleged improper ground for reversal was the court’s conclusiqn that the “Commission was without authority to promulgate, publish and consider rules which it deemed to be essential elements of the ‘Merit Principle.’ ”
The essential elements of the “Merit principle” referred to in the court’s order were delineated by the Commission in Conclusion of Law number 4 of the Commission’s order, set out
supra.
Respondent argues that the Commission did have the power and authority to delineate these essential elements.
An administrative “agency is a creature of the statute creating it and has only those powers expressly granted to it or those powers included by necessary implication from the legislative grant of authority.”
In re Broad & Gales Creek Community Association,
300 N.C. 267, 280, 266 S.E. 2d 645, 654 (1980).
Although “[t]he authority to make rules and regulations to carry out an express legislative purpose or to effect the operation and enforcement of a law . . . may be delegated,”
Motsinger v. Perryman,
218 N.C. 15, 20, 9 S.E. 2d 511, 514 (1940), there is nothing in the Raleigh Civil Service Act to indicate that the Commission was conferred the power to delineate the essential elements of the “Merit principle.” Rather, the Act vests in the City Council the ultimate responsibility for the promulgation of personnel rules as follows:
(e)
Personnel Rules.
The officer administering the personnel system shall prepare personnel rules. The City Manager shall refer such proposed rules to the Civil Service Commission which shall report to the Manager its recommendations thereon. The rules including the recommendations of the Civil Service Commission and the recommendations of the City Manager shall be presented to the City Council. The Council upon consideration of the recommendations shall then adopt the official personnel rules.
1971 N.C. Sess. Laws Ch. 1154, § 1. Furthermore, the Commission’s “essential elements” require more of a promoting official than is required by the “Merit principle,” in that the “essential elements” include procedural requirements as well as considerations of substantive qualifications;
e.g.,
the Commission required that promotional criteria and procedure be established and published in advance of the promotional process. Noncompliance with such procedural details does not necessarily constitute a violation of the “Merit principle,” and the promoting official was free to make its promotional decisions as it chose, except for the specific statutory constraints imposed by the Act’s “Merit principle” and prohibition of wrongful discrimination.
See
3 McQuillin, The Law of Municipal Corporations § 12.131 (3d ed. 1982).
The Commission’s “essential elements” were therefore unauthorized and not binding on the Chief of Police, and his failure to comply therewith was not
ipso facto
a violation of the “Merit principle” requiring relief from the Commission. Under this assignment of error, however, respondent also contends that even if the Commission's “essential elements” were improper, the court should not have reversed the Commission since the Commission did make findings of fact to support a conclusion that the
true “Merit principle” had been violated. This argument coincides with respondent’s final assignments of error and will be discussed thereunder.
The last assignment of error brought forward in respondent’s brief is in pertinent part as follows: “[t]he Court erred in reversing and setting aside the Order of the . . . Commission because . . . the conclusions of law are supported by the findings of fact.” Notwithstanding his assertions to the contrary, respondent appellant does have the burden of prevailing on this issue, since otherwise the court’s order reversing the Commission would have to stand on the basis of its conclusion “that the Commission made no such finding” “that respondent was wrongfully discriminated against.”
In resolving this issue, there is a two-fold inquiry. First, there must be a determination of what the statutory “Merit principle” requires in promotions; secondly, there must be a determination of whether the Commission’s findings of fact are sufficient to support a conclusion that the “Merit principle” was violated.
The “Merit principle” requires that promotions be made “solely on the basis of merit and fitness.” Hence, the condition precedent to any Commission-ordered relief from a City promotion decision is a showing that such decision was based on some consideration other than the candidates’ merit and fitness.
The Commission’s findings of fact relevant to the Chief of Police’s decision to promote Lieutenants Meekins and Winston over respondent are as follows:
Some of the procedures undertaken by the Chief in the promotional process appeared to be favoritism towards respondent, and prejudiced certain ranking officers against respondent; nevertheless, respondent’s name was one of six submitted to the Promotion Review Board, and such Board ranked him a close second behind Meekins, and two places in front of Winston. The Chief gave the promotions to Meekins and Winston, notwithstanding respondent’s testimony that he had greater educational qualifications and more varied experience than Meekins, and greater tenure and more varied experience than Winston. The Chief “did not consider the seniority, education, or variety of experience of
any candidate in the promotional process.” In deciding not to promote respondent, the Chief relied heavily upon oral criticism of his qualifications by his immediate commanding officer, Captain James Stell, and by Captain Larry Smith; these oral criticisms conflicted with contemporaneous written Officer Evaluation Reports, one of which had been prepared by Captain Stell. In selecting Winston for promotion, the Chief considered principally his qualifications for a specific job at the Police Academy in the area of personnel.
These findings of fact are insufficient to support a conclusion that the Chief relied on anything other than merit or fitness in not promoting respondent. There is no finding that the Chiefs decision was based on an unwarranted bias against respondent or on an illegitimate favoritism towards Meekins or Winston. Rather, the findings show that Meekins had been ranked first by the Promotion Review Board, and that Winston’s promotion was based on his qualifications for a specific job in the sensitive area of personnel. Further, the findings show that the nonpromotion of respondent was based on oral criticism of his qualifications by two ranking officers, including his immediate commanding officer. Finally, the fact that a person of less experience and education than another is promoted over that other does not necessarily imply that the promotional decision was based on considerations other than merit and fitness. In determining which candidate has the most merit and fitness for a job, criteria other than educational degrees, examination scores, and years of tenure are relevant; for instance, the Chief of Police in the present case testified to the importance of considering a candidate’s attitude in ascertaining his merit and fitness for a particular position. There is no finding that respondent’s overall qualifications for promotion were superior to those of either Meekins or Winston, and that the Chief of police failed to promote him in the face of those superior qualifications. The Commission committed an error of law when it concluded that the facts found by it amounted to a violation by petitioner of the “Merit principle.” “Ordinarily, a municipal body, when sitting for the purpose of review, is vested with quasi-judicial powers, and a decision of the board, while subject to review by the courts upon certiorari, will not be disturbed
in the absence
of arbitrary, oppressive, or manifest abuse of authority, or
disregard of the law." Springdale Estates Association v. Wake
County,
47 N.C. App. 462, 467, 267 S.E. 2d 415, 418 (1980). [Emphasis in original.] In the present case, the Commission did misapprehend the law, and was properly reversed by the superior court on certiorari. This assignment of error is overruled.
The order of the trial court is
Affirmed.
Judge ARNOLD concurs.
Judge Wells concurs in the result.