APPEAL from the Circuit Court of Cook County; the Hon. RICHARD
L. CURRY, Judge, presiding.
MR. JUSTICE DIERINGER DELIVERED THE OPINION OF THE COURT:
This is an appeal of an order entered on March 10, 1977, by the circuit court of Cook County dismissing a declaratory judgment action instituted by William Macaitis, Frank Kudrna and Andrew Kowalski (hereinafter called "plaintiffs"), against the Civil Service Board of the Metropolitan Sanitary District of Greater Chicago (hereinafter called "the Board") and the Director of Personnel (hereinafter called "the Director") of the Metropolitan Sanitary District of Greater Chicago, seeking to void a civil service examination for the position of supervising civil engineer, for which the plaintiffs did not receive passing grades. A separate count of plaintiffs' complaint was brought under the Administrative Review Act.
The issues presented for review are whether the Board has the power and authority to adjudicate the validity of an examination issued by the Director and whether the examination in question was so arbitrary, unfair and unreasonable as to render it invalid.
The plaintiffs are all temporary supervising civil engineers employed by the Metropolitan Sanitary District of Greater Chicago (hereinafter called "the District") who were not accorded passing grades on a promotional examination for permanent appointment to the position of supervising civil engineer.
Macaitis has been employed by the District since 1969 and has been the temporary supervising civil engineer in charge of planning since June of 1974. Kudrna has been an employee of the District since 1968 and has been temporary supervising civil engineer in charge of flood control since June of 1974; prior to that he was supervising civil engineer of planning from August, 1972 until May 1974. Kowalski has been employed by the District since 1962 and has been temporary supervising civil engineer in charge of construction since March 1972.
Defendants are the Board, the Director and Ross W. Dring, J. Edward Knowles, Thomas M. Edwards, Robert M. Eldon and Walter J. Weaver (hereinafter called "Intervenors") who took and received passing grades on the promotional examination in question.
The notice of the holding of the promotional examination for supervising civil engineer was issued by the Director on September 23, 1975. This notice stated, among other things, the exam would be divided and weighted as follows: a rating of training and experience, 20 percent; a written test, 20 percent; an oral test, 50 percent; a rating of seniority, 5 percent; and a rating of efficiency, 5 percent. It further stated it would be necessary to achieve a passing score on each test to be eligible to take the subsequent test. This form of testing is commonly known as truncated testing. A passing score was defined as 70 percent or such other percentage as the Director in his discretion would determine.
Plaintiffs all submitted written applications to take the exam and were found to have the necessary qualifications to be admitted to the exam by the Director. On November 1, 1975, plaintiffs took the first two portions of the exam, consisting of filling out a training and experience questionnaire and taking a written test consisting of 150 multiple choice questions. By letter dated December 4, 1975, Macaitis was advised he had not achieved a passing score on the rating of training and experience and was therefore ineligible to participate in subsequent tests. Consequently, his written test would not be graded. By letter of the same date, Kudrna and Kowalski were advised by Rol Jeske, chief of the examination development section of the department of personnel, that they had not achieved a passing score on the written test portion of the exam and were therefore ineligible to participate in subsequent tests.
Prior to receiving their grades, Kudrna and Kowalski had made complaints to the chief examiner, Jeske, and a staff member. Upon notification of their grades, plaintiffs renewed their objections to the test by both written and oral complaints to the Director. The plaintiffs advised the Director the training and experience portion of the test (hereinafter called "T and E") was unfairly and improperly designed in that it did not consider the competency of the individual completing it, and the exam as a whole was arbitrary and capricious and bore no relationship to the purpose for which it was designed; namely, testing the qualifications of an individual to be a supervising civil engineer. The Director refused to void the examination, and his sole response to the plaintiffs was "he, as Director of Personnel, could put a crossword puzzle on the exam and make it stick."
Plaintiffs appealed to the Board. From December of 1975 through August of 1976, the Board held several hearings, and in August 1976, it issued its finding upholding plaintiffs' charges and concurring in their conclusion the examination was "unfair." However, apparently under the restraint of a prior ruling of the circuit court of Cook County, the Board further found it had no jurisdiction under the law to void the exam and therefore denied plaintiffs relief.
On September 1, 1976, plaintiffs filed a verified complaint under the Administrative Review Act to review the decision of the Board, charging, among other things, the Board did have jurisdiction to void the exam; the "T and E" portion of the exam was unfair and was arbitrarily used to disqualify individuals who were eligible under the personnel rules to take the exam; and the written portion of the exam bore no direct or reasonable relationship to the type of work involved in the position of supervising civil engineer, rendering the exam an arbitrary and unfair test of the relative capacity of the persons examined to perform the duties of the position. Plaintiffs requested the court to issue a temporary restraining order enjoining the Director from posting the exam grades and from making any appointment to the position of supervising civil engineer pending the disposition of their suit. Plaintiffs further requested the court find the Board had jurisdiction over the exam and either enter judgment affirming its findings or remand the cause to the Board with instructions to enter appropriate findings.
On September 2, 1976, Judge Raymond K. Berg entered a preliminary injunction enjoining the Director from "Posting the grades of the examination for Supervising Civil Engineer or from making any certification of appointments to such position." On September 9, 1976, the intervenors were permitted to intervene in the suit. Subsequently, on October 26, 1976, Judge Berg, without passing on the factual sufficiency of the Board's findings relating to the unfairness of the exam, entered an order dismissing plaintiffs' complaint under the Administrative Review Act on the grounds that the Board had no jurisdiction to void the exam. This is the first of the two orders of the circuit court from which this appeal is taken.
Prior to the trial court's ruling on the complaint under the Administrative Review Act, plaintiffs filed an amended complaint (designated as count II) under the Declaratory Judgment Act alleging an actual justiciable controversy existed between the parties involving the construction of the applicable statutory provisions and rules of the District. The amended complaint repeated in essence the charges made in the complaint under the Administrative Review Act, and made further allegations.
Following answers filed by all defendants, and stipulations of fact among the parties, the cause was tried before Judge Richard L. Curry on March of 1977. In addition to documentary evidence, plaintiffs' case consisted of their own testimony; the testimony of their immediate supervisor, Frank Dalton; the testimony of Ernest Bennett, who prepared certain questions on the written test; the testimony of Ronald Huston, the #2 man in the Department of Personnel; and the testimony of Rol Jeske, the #3 man in the Department of Personnel, and the individual who was responsible for the overall preparation and presentation of the exam.
Mr. Jeske, called as an adverse witness, testified he had no engineering background, but subject to the approval of the Director, he prepared and created the exam. He stated a supervising engineer is the top civil service position of five engineering positions. He testified, in the notice of the exam, the minimum qualifications for the position of supervising civil engineer were stated, and in the case of the promotional exam, the requirement was one year at the next lowest level. He further testified the purpose of the application was to permit the District to determine if the minimum qualifications were present, and when the exams were accepted, it meant the individuals had the minimum qualifications to take the exam.
He stated he had recommended the exam be truncated, and a passing score would be 70 percent for each test, except if the Director in his discretion determined otherwise. He explained he recommended the truncated exam for purely administrative reasons in that as each stage of the test was taken, it made less work for the examiner to administer and grade the remaining portions of the exam because there were fewer candidates.
He stated the purpose of the "T and E" portion of the exam was to quantify the level and length of an individual's experience in civil engineering, conceding, "you can't rate quality on a Training and Experience questionnaire * * * if you mean by quality how well an individual does on a job."
After grading all the scores on the "T and E" form, and ranking them, he determined a passing grade by looking for a "natural break or gap between the scores." A natural break occurred in this exam at about 50 percent, and therefore he made 50 percent the passing score. He stated he graded the forms before the information on them had been verified, and if someone had misstated or puffed his experience or educational background, a different natural break could have resulted.
With respect to the written portion of the exam, he testified 60 questions out of 150 related exclusively to sanitary engineering. With respect to scoring the written exam, 16 of the 150 questions were thrown out because of complaints of candidates.
On cross-examination Mr. Jeske testified Macaitis lost 70.4 points by not having his pre-engineering degree experience counted, and if he had received it, he would have fallen only 8.4 points short of a passing grade.
Ronald Huston, who was also examined as an adverse witness, testified he was the #2 man in the Department of Personnel. He had been with the Department for 23 years, had served as its acting director, had been involved in the testing area, including formulation of exams and grading and currently his primary job is job classification.
He testified he had the responsibility for accepting or rejecting the applications for the examination in question. In response to a hypothetical question he stated in his opinion the "T and E" portion of the exam was "unfair." When cross-examined by counsel for the District as to whether his opinion would be different when the number of applicants taking the exam was considered, he stated ...