Kelleher v. Personnel Administrator of the Department of Personnel Administration

657 N.E.2d 229, 421 Mass. 382, 1995 Mass. LEXIS 450
CourtMassachusetts Supreme Judicial Court
DecidedNovember 16, 1995
StatusPublished
Cited by16 cases

This text of 657 N.E.2d 229 (Kelleher v. Personnel Administrator of the Department of Personnel Administration) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kelleher v. Personnel Administrator of the Department of Personnel Administration, 657 N.E.2d 229, 421 Mass. 382, 1995 Mass. LEXIS 450 (Mass. 1995).

Opinion

Fried, J.

This case requires us to construe the Commonwealth’s civil service law as it defines the level of scrutiny that should be employed by the personnel administrator (administrator) of the Department of Personnel Administration (department) in approving certain provisional promotions. The chief engineer’s post in the Somerville fire department having fallen vacant, the mayor of Somerville, the appointing authority here, provisionally promoted Deputy Fire Chief John Cover to the position of acting chief engineer. To this the plaintiff, Kevin W. Kelleher, a candidate for the position, objected.

Kelleher joined the Somerville fire department in 1977 and currently holds the rank of deputy fire chief. In 1990, Kelleher and another individual took the civil service promotional examination for the position of chief engineer, the next higher grade above deputy chief. Kelleher attained the higher score, but the two-person list expired without a vacancy. In 1992, Kelleher took the examination again, but this time he took it alone. He scored a ninety-one and secured his place as the only person on the 1992 list. In 1993, the mayor called for another examination. The position of chief engineer became vacant with the incumbent’s retirement on January 6, 1994, and the next day the mayor provisionally appointed Deputy Fire Chief John Cover to acting chief engineer. In March, an examination was held for the post, but once again only two persons competed. Although Kelleher attained the higher score, the establishment of this list has been enjoined by the Superior Court until the present action is finally resolved.2 Thus, on each occasion, Kelleher’s name topped a list with fewer than three names (a short list).

In August, the mayor requested the administrator’s approval for Cover’s appointment as a provisional promotion [384]*384pursuant to G. L. c. 31, § 15 (1994 ed.). Following an exchange of letters, the administrator refused to grant approval unless the mayor provided “sound and sufficient” reasons for not promoting someone from the 1992 list. This the mayor declined to do. It is the mayor’s position that § 15 no longer requires him to include a statement of sound and sufficient reasons with a request for approval of a provisional promotion such as this one.

Kelleher brought this action in the Superior Court to enjoin the mayor and the department from taking further steps to make an appointment, provisional or permanent, of anyone other than Kelleher. After issuing a temporary injunction to maintain the status quo pending resolution of the dispute, the Superior Court judge, in a comprehensive and carefully reasoned opinion, denied Kelleher the relief he sought. The judge concluded that, where there is only a short list of eligible persons, G. L. c. 31, § 15, allows the appointing authority to make a provisional promotion to the next higher grade without offering “sound and sufficient reasons” for not making a permanent promotion from that list. Kelleher appealed from this decision. We granted the plaintiff’s application for direct appellate review and now affirm.

A. Exhaustion of administrative remedies. As a general rule, a plaintiff must exhaust all administrative remedies prior to seeking an injunction or declaratory relief. See Space Bldg. Corp. v. Commissioner of Revenue, 413 Mass. 445, 448 (1992); Villages Dev. Co. v. Secretary of the Executive Office of Envtl. Affairs, 410 Mass. 100, 106 (1991); East Chop Tennis Club v. Massachusetts Comm’n Against Discrimination, 364 Mass. 444, 450 (1973); Reidy v. Acting Director of Civil Serv., 354 Mass. 760 (1968). The Legislature has given the Civil Service Commission (commission) the power and duty “[t]o hear and decide appeals by a person aggrieved by any decision, action, or failure to act by the administrator.” G. L. c. 31, § 2 (b) (1994 ed.). The Legislature has also provided that “[a]ny party aggrieved by a final order or decision of the commission following a hearing . . . may institute proceedings for judicial review in the superior [385]*385court . . . .” G. L. c. 31, § 44 (1994 ed.). We may, however, excuse the failure to exhaust administrative remedies if the case presents a purely legal question of wide public significance. See Space Bldg. Corp. v. Commissioner of Revenue, 413 Mass. 445, 448-449 (1992). This is such a case.

B. The requirements of G. L. c. 31. General Laws c. 31, §15, does not explicitly mandate that the appointing authority submit “sound and sufficient reasons” when making a provisional promotion of a person whose name does not appear on a list of eligible candidates if the only such list is a short list. We are asked to determine whether the statute should be construed to require such a submission, and, if not, whether the administrator may nevertheless choose to require such a submission. We hold that the statute neither (1) compels nor (2) permits such a requirement by the administrator.

1. General Laws c. 31, § 15, provides that “[a]n appointing authority may, with the approval of the administrator .. . make a provisional promotion of a civil service employee in one title to the next higher title in the same departmental unit ... if the [eligible] list contains the names of less than three persons eligible for and willing to accept employment .... No provisional promotion shall be continued after a certification by the administrator of the names of three persons eligible for and willing to accept a promotion to such position.” (Emphasis added.)

Kelleher argues that, because earlier versions of G. L. c. 31, § 15, required “sound and sufficient” reasons for provisional promotions, the omission from the current version “is more likely a legislative oversight.” Our examination of the former and current versions of the statute do not lead us to this conclusion. The former version, codified at G. L. c. 31, § 15G, as appearing in St. 1994, c. 835, § 89, provided that neither provisional promotions nor provisional appointments could be authorized unless the appointing authority interviewed the candidates and provided “sound and sufficient reasons, satisfactory to the administrator, why the certification of less than three names was not adequate to make a proper selection.” In the current recodification, the Legisla[386]*386turc makes a distinction between provisional promotions and provisional appointments by dividing them into separate sections. Appointments and promotions go forward in different circumstances and with different requirements for approval.

General Laws c. 31, § 12, governing provisional appointments of persons from outside the departmental unit, permits such appointments, with the authorization of the administrator, if: (a) no suitable eligible list exists; or (b) (i) the list contains less than three names, (ii) the appointing authority interviews each listed person and (iii) the appointing authority provides “sound and sufficient reasons, satisfactory to the administrator” why none was selected.

General Laws c. 31, § 15, governing provisional promotions, permits a provisional promotion from the next lower title within the departmental unit, with the approval of the administrator, if: (a) there is no suitable eligible list; (b) the list contains less than three names (short list); or (c) the list consists of persons seeking an original appointment, and the appointing authority requests that the position be filled by a departmental promotion.

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Bluebook (online)
657 N.E.2d 229, 421 Mass. 382, 1995 Mass. LEXIS 450, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelleher-v-personnel-administrator-of-the-department-of-personnel-mass-1995.