Lefebvre v. Kando

383 A.2d 589, 119 R.I. 780, 1978 R.I. LEXIS 614

Opinions

Per Curiam.

The Charter of the City of Pawtucket, as well as the rules and regulations in implementation thereof, require that all permanent employees in the personnel system receive annual job efficiency ratings. Notwithstanding, the city solicitor did not rate his two assistants during their respective several years of employment because in his opinion for one attorney to rate another is professionally improper. Thus, when a decreasing work load in the law department dictated the laying-off of one of those assistants, no efficiency ratings were available. Consequently, the defendants ignored the charter requirement that “efficiency rating shall be considered * * * as a factor in determining the order of lay-offs because of lack of * * * work.” Instead, seniority in service was the sole criterion.

The plaintiff, the junior of the two assistants in time of service and thus the one terminated, was unable to persuade the Superior Court that defendants’ failure to consider efficiency ratings as a factor in the lay-off process entitled him to relief in the civil action he brought to enjoin termination of his employment. In our judgment, this was error. True, no efficiency ratings were available for consideration at the time of termination, but the city solicitor could have been ordered to evaluate forthwith the services of each of the assistants during their respective terms of employment. The plaintiff was entitled to at least that consideration. Although obviously such an evaluation at this late date will not be an equivalent of what would be available had there been full compliance with the pertinent requirements, it will insure as close an approach to compliance as is now possible in the light of all the circumstances. In addition, it will prevent the city solicitor’s prior noncompliance with one charter requirement from providing an acceptable excuse for noncompliance with another requirement. And finally, this evaluation will not, as the dissent suggests, be an exercise in futility for it is not to be presumed that plaintiff will necessarily be evaluated as less efficient than the other assistant.

The plaintiff’s appeal is sustained, the judgment appealed from is reversed and the case is remanded to the Superior Court for further proceedings.

Mr. Justice Paolino participated in the decision but retired prior to its announcement.