Request By:
Thomas G. Alig, Jr., Esq.
115-117 Park Place
Covington, Kentucky 41011
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising questions concerning the civil service examinations for police officers in a city of the fourth class which has adopted the provisions of KRS 95.761 et seq. dealing with civil service and a police and fire fighter's pension plan by a fourth class city.
Your first question asks whether the city may use an oral interview plus the written test, with the oral interview being used as a portion of the applicant's grade, to make a determination if the applicant is one of the top three qualifiers.
KRS 95.762 provides in part that the civil service commission shall require all applicants for appointments as members of the police department to be examined as to their qualifications to fill the office of policeman and as to their knowledge of the English language and as to the law and rules governing the duties of policemen. KRS 95.764 states in part that the civil service commission shall conduct an examination of persons for appointment as members of the police department each time a vacancy occurs in the department. It is also provided that the civil service commissioners shall make all rules and regulations for the proper conduct of their office but, however, we have no idea as to what specific rules and regulations have been adopted by the city in question. The statutes do not set forth any other specific requirements as to the examination which must be given.
In McQuillin Mun. Corp. (3rd Ed.), Vol. 3, § 12.78(c), it is stated that the method of giving the examination, the nature of the questions and the objectives sought are usually prescribed by the governing act or by the rules and regulations of the civil service commission. Furthermore, in connection with the examination,
"This is usually by a written examination, sometimes mandatorily to be entirely by written examination, but where no legal restrictions exist, an oral examination may be given instead of or in addition to the written examination, and such oral examination can still constitute a competitive examination. Oral examination may be especially designed to determine personality traits. "
In addition, in 15A Am.Jur.2d, Civil Service, § 42, it is stated that an oral examination may be rendered permissible where tests of manual or professional skill are necessary, provided the examination questions are such as to best determine the practical and technical qualifications of the applicants to perform the duties of the position to be filled. An oral interview is not prevented from being a competitive examination just because the measurable standards for determining the general proficiency of a candidate for a specific position are subjective rather than objective if it tests all candidates for the same personality factors, each person putting his personality traits against those of the other persons seeking the position.
Thus, while we do not know what type of oral examination you are considering, we can only state that in some situations an oral examination could be utilized as part of the examination process provided such a test is uniformly and fairly applied to all candidates and measures some trait, skill, characteristic or ability of the applicants which is needed to perform the job or position in question.
Your second question is as follows:
"If one of the applicants for the job was discharged from another police department for alleged criminal misconduct, is this basis enough not to consider him for the opening."
We direct your attention to OAG 71-498, copy enclosed, at page two, where we said that the fact that the applicant may have simply been charged with a criminal offense, but not convicted, would in no way disqualify him from serving as a police officer provided he possesses the statutory qualifications set forth in KRS 90.330. Similarly in your situation, a mere allegation of criminal misconduct would not be sufficient to bar an applicant from being considered as a municipal police officer.
Your third question asks:
"If one of the applicants has worked for the city through C.E.T.A. for one year, must he still be one of the top three qualifiers on the written examination? "
Your question is not entirely clear so we will answer with two responses. If the C.E.T.A. worker who is an applicant for a police officer position has been in fact serving as a municipal police officer and paid by C.E.T.A. funds, he should have qualified for the position of police officer as any other applicant would have. As we said in OAG 76-712, copy enclosed, at page three, a CETA-sponsored worker could be a municipal employe under a civil service plan if the job being performed by the CETA worker is a job covered by the city's civil service plan. A person who is serving as a police officer is not exempt from the statutory procedures and requirements pertaining to that position merely because he is paid by CETA funds.
If the applicant for the police officer position is a CETA-sponsored city worker working in some capacity other than a police officer, perhaps what you are really asking is whether he is entitled to some sort of preference or credit in computing his examination scores. In McQuillin Mun. Corp. (3rd Ed.), Vol. 3, § 12.82, it is stated that laws often provide that preference be given, for example, to those who have long served in public positions and to honorably discharged servicemen who have served in time of war. In 15A Am.Jur.2d, Civil Service, § 46, it is written that in a proper case the civil service commission may award additional credits for educational training in relevant or related fields after a preliminary test has been passed. The person who is entitled to preference, however, must pass the required tests and if such a person is equal in standing to another, he may then be given the preference points or additional credits to which he is entitled.
KRS 95.764 provides in part that the civil service commissioners shall certify to the legislative body the names of the three persons receiving the highest grades. Thus, even if the city involved had devised through its civil service commission some type of valid preference system for those currently working for the city, a recipient of such preference points or additional credits must be among the three persons receiving the highest grades if he is to be considered for appointment.
Your fourth question asks:
"If the one applicant can be disqualified from consideration for the alleged criminal misconduct while with another department and he was one of the three top qualifiers, does this bump the number 4 qualifier up to the third spot, etc.?"
Since, in response to a previous question, we have concluded that mere allegations of criminal misconduct are not sufficient to bar an applicant from consideration for the position, your question becomes moot. However, in connection with the list of eligibles we direct your attention to KRS 95.764 providing in part that appointments are made from the list of names certified to the legislative body by the civil service commission. The life of any particular list of eligibles is frequently governed by regulations of the civil service commission.
Pursuant to a telephone conversation you have raised two additional questions, one of which asks if a new exam can be given if each of the applicants had not been "investigated."
You did not explain what the "investigation" consists of but apparently it is required by local regulations, copies of which have not been furnished to us. The statutes require that an "examination" be conducted. Where examinations are required, they are essential and not to be dispensed with and one who has not taken the examination has no civil service status. See McQuillin Mun. Corp. (3rd Ed.), Vol. 3, § 12.78. In addition, in 15A Am.Jur.2d, Civil Service, § 28, the following appears:
"In adopting certain requirements which an applicant is required to satisfy to establish eligibility for a position, the civil service commission has broad discretionary powers. Generally speaking, the Civil Service Commission is the judge of the facts necessary to establish eligibility to take examinations in accordance with its rules, being subject to court review only where its jurisdiction is exceeded or its powers are abused. . . ."
Your last question concerns the status of an examination where a member of the examining board was not approved by the city council.
KRS 95.763 deals with the appointment of the civil service commission. The mayor, with the approval of the legislative body, shall appoint three persons who shall constitute the city's civil service commission. If a member of the civil service commission was not appointed pursuant to the required statutory procedure, he is serving in violation of KRS 95.763 and is subject to removal. However, until the disqualified commission member either resigns or is removed from his position, he serves as a de facto officer and his acts, if otherwise authorized and permissible, are considered valid. See Commonwealth Ex Rel. Breckinridge v. Winstead, Ky., 430 S.W.2d 647 (1968) and OAG 77-103, copy enclosed, at page two, for a definition of a de facto officer.
Thus, the examination, if otherwise properly conducted pursuant to the power and authority of the civil service commission, is not invalid merely because a member of the commission was not properly appointed to the commission.