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People Ex Rel. Mathes v. Foster

OPINION FILED SEPTEMBER 20, 1977.

THE PEOPLE EX REL. DWIGHT LOWELL MATHES, APPELLEE,

v.

JOHN D. FOSTER ET AL., APPELLANTS.



Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of Sangamon County, the Hon. Simon L. Friedman, Judge, presiding.

MR. JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:

In the circuit court of Sangamon County, petitioner, Dwight L. Mathes, sought a writ of mandamus against the respondents, John D. Foster, James Hatcher, and Alfred E. Langenbach, as members of the Civil Service Commission of the State of Illinois (Commission), and Nolan B. Jones, Director of Personnel of the State of Illinois (Director). The petition was dismissed for failure to state a cause of action. On appeal, the appellate court, in a split decision, held that the petition had stated a cause of action. It, therefore, reversed and remanded the cause with directions. (40 Ill. App.3d 1053.) We granted respondents leave to appeal.

Petitioner alleged that he was an employee of the Bureau of Employment Security of the State of Illinois (Bureau); that he had obtained that position by competing in an open examination and by being selected from a published eligibility list; that he was within the reasonable and logical promotional line for certain positions within the Bureau; and that, contrary to the Personnel Code (Code) (Ill. Rev. Stat. 1973, ch. 127, par. 63b101 et seq.), the respondents adopted or condoned a policy of filling, by promotion, new or vacant classified positions within the Bureau "without the holding of objective examinations, [and without] the publication of and selection from eligibility lists." Petitioner further alleged that it was the statutory duty of respondents to fill positions by open competitive examination and to establish eligibility lists. The petition requested a writ of mandamus requiring:

"The Respondents jointly and severally to submit proposed rules for the conduct of objective examinations to this Court and the publication of and selection from eligibility lists personnel within the Bureau of Employment Security to fill, by promotion, all new or vacant positions within the classified civil service, and that such rules, upon approval of this Court, be implemented."

The respondents, in their motion, sought to dismiss the petition on the grounds that no statutory provision or rule of the Department of Personnel (Department) or the Commission required a competitive promotional program for certified employees of the Bureau. It was further asserted that noncompetitive promotions were provided for and were proper pursuant to the Department's Rule 2-130.

Prior to 1963, section 8b(2) of the Code required that the Director provide rules "[f]or promotions which shall give appropriate consideration to the applicant's qualifications, record of performance, seniority and conduct." It also provided:

"Vacancies shall be filled by promotion whenever practicable in the best interest of the service, and promotion shall be by competitive examination whenever practicable. An advancement in rank or grade to a vacant position shall constitute a promotion." (Emphasis added.) (Ill. Rev. Stat. 1961, ch. 127, par. 63b108b(2).)

Subsequent to 1963, the legislature amended section 8b(2) by deleting the emphasized portion above.

The trial court determined that, in light of the deletion, the legislature intended that competitive examinations no longer be the required basis for promotions and that procedures for promoting employees were to be left to the discretion of the Department. Accordingly, the trial court held that the petition failed to state a cause of action.

On appeal, the appellate court considered two sections of the Code which the trial court did not discuss in its conclusion: sections 8b.1 and 8b.3 (Ill. Rev. Stat. 1973, ch. 127, pars. 63b108b.1 and 63b108b.3). Section 8b.1 (Ill. Rev. Stat. 1973, ch. 127, par. 63b108b.1) provides that rules shall be promulgated "[f]or open competitive examinations to test the relative fitness of applicants for the respective positions." The section further provides:

"Tests shall be designed to eliminate those who are not qualified for entrance into or promotion within the service, and to discover the relative fitness of those who are qualified. The Director may use any one of or any combination of the following examination methods which in his judgment best serves this end: investigation of education; investigation of experience; test of cultural knowledge; test of capacity; test of knowledge; test of manual skill; test of linquistic ability; test of character; test of physical fitness; test of psychological fitness."

Section 8b.3 (Ill. Rev. Stat. 1973, ch. 127, par. 63b108b.3) provides "[f]or the establishment of eligible lists for appointment and promotion, upon which lists shall be placed the names of successful candidates in order of their relative excellence in the respective examinations." It also provides that "[t]he Director may substitute rankings such as superior, excellent, well-qualified, and qualified for numerical ratings and establish eligible lists accordingly."

Due to the retention of this statutory language dealing with competitive promotional examinations and promotional eligibility lists, the appellate court determined that the elimination of the provision in section 8b(2) (now section 8b.2) — that "promotion shall be by competitive examination whenever practicable" — created an uncertainty as to the continued relationship of section 8b.2 to sections 8b.1 and 8b.3. Turning then to the rules of statutory construction, the appellate court concluded that the legislative deletions in amended section 8b.2 only eliminated the requirement that, when practicable, competitive examination be the sole basis for promotion. It held that, "although competitive examinations are no longer the sole criterion when practicable for promotion, the legislature intended that open competitive examinations continue to be held," that promotions be made from eligibility lists established as a result of those examinations, but that, in making the actual promotion, consideration could and should be given to the "applicant's qualifications, record of performance, seniority and conduct," as provided by section 8b.2. (40 Ill. App.3d 1053, 1057.) Consequently, the appellate court found that the Code did require rules for competitive promotional examinations and for the establishment of promotional eligibility lists. The court also ruled that, to the extent that petitioner's prayer for relief requested the promulgation of rules requiring all new positions and vacancies within the Bureau to be filled by promotion, such ...


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