Number 12 November 19, 1971

Number 12 November 19, 1971 Mrs. Nancy B. Beecher, Chairman Civil Service Commission State House Boston, Massachusetts 02133 Dear Mrs. Beecher: You have requested my opinion on the following question: Where an applicant for a civil service position has pro- tested the contents of a civil service examination for that pos- ition to the Director of the Division of Civil Service, and the Director has denied that protest, does the Civil Service Commission have sufficient statutory authority to reverse the Director's decision that the examination is valid and that its results should stand? Specifically, does the Commission have the authority to determine whether the Director has met the requirements of section 10 of Chapter 31 of the General Laws which provides, in part, that "... they [the examinations] shall relate to matters which will fairly test the fitness of the applicants actually to perform the duties of the positions for which they apply." It is, of course, fundamental that statutes are to be construed accord- ing to the intention of the Legislature: "[SJtatutes are to be construed according to the intention of the framers ..." Howard v. Harris, 90 Mass. 297, 298. With respect to the civil service law, the fundamental rule of construction is as follows: "The civil service law as a whole . . . 'ought, if possible, to be so construed as to make it an effectual piece of legislation in harmony with common sense and sound reason.' ' Younie v. Doyle, 306 Mass. 567, 571-572. General Laws, c. 13, § 2 creates the Division of Civil Service within the Department of Civil Service and Registration and provides that the P.D. 12 69 Division of Civil Service " . . . shall be under the supervision and con- trol of a director of civil service, who shall be the executive and adminis- trative head of the division ..." This section emphasizes the "adminis- trative" nature of the Director's position by adding, "He shall be a per- son familiar with the principles and experienced in the methods and practices of personnel administration." General Laws, c. 31, § 2 details some of the duties and powers of the Civil Service Commission, among which is the following: "Hear and decide all appeals from any decision or action of, or failure to act by, the director ..." (Emphasis supplied.) The choice and use of the modifiers "all" and "any" suggests that the Legislature intended this appellate au- thority to be both broad and eclectic in nature, and to be limited, if at all, only by reservations or qualifications expressly spelled out within the statute itself. Section 2 clearly provides for appellate review by the Commission of a Director's decision regarding examination results: "An appeal from a decision determining the results of an examination shall be in writing in the form approved by the commission, and shall contain a brief statement of the facts upon which such appeal is based ..." However, on this particular grant of appellate review to the Commission by the Legislature, there is one explicit qualification: "[PJrovided, that no decision of the director relating to an examination mark shall be re- versed and no such mark changed unless the commission finds that it was through error, fraud, mistake or in bad faith ..." (Emphasis sup- plied.) It is important to note that this single limitation on the Commission's otherwise full and unfettered appellate authority over the Director's decisions refers expressly and exclusively to examination marks alone (as opposed to a broader, more encompassing term such as examination "results" or examination "content" or "format"). That the Legislature so intended this one limitation to apply specifically and ex- clusively to the review of "marks" (and not to the review of examina- tion "results") is plainly evidenced by the fact that the 1945 amendment to this section inserted the restrictive phrase "relating to an examination mark." St. 1945, c. 725, § 1. Prior to 1945, this proviso which required the Commission to find that the Director's decision was "... through error, fraud, mistake or in bad faith ..." before the Commission could reverse the Director's decision applied to any and all appeals concerning the results of an examination. Thus, I conclude that where a decision of the Director regarding the results of an examination is being reviewed by the Commission, the Commission does have statutory authority to reverse, upon appellate review, the Director's decision that an examination's results should stand. I now reach the specific example referred to in your question. General Laws, c. 31, § 10 speaks directly to the scope of examinations offered by the Division of Civil Service. It reads, in part, as follows: "Examina- tions shall be conducted under the direction of the director, who shall determine the form, method and subject matter thereof; provided, that they [the examinations] [shall relate to matters which will fairly test the 70 P.D. 12 fitness of the applicants actually to perform the duties of the positions for which they apply." (Emphasis supplied.) It is clear from the language in this section that the authority granted to the Director is not unqual- ified or final. On the contrary, the qualifying proviso is in the nature of a caveat to the Director, reminding him that his decisions concerning the scope of examinations are subject to a standard of "fairness" and, to the degree that those decisions do not conform to that standard of fairness, are reviewable by, and subject to reversal by, the Commission. Such a legislative intent is both inferable from and consistent with the appellate authority broadly and absolutely granted to the commission in § 2 of c. 31 cited supra.] This conclusion is supported by an analysis of two decisions of the Supreme Judicial Court which dealt with the Commission's powers over the results of examinations. In Moore v. Civil Service Commission, 333 Mass. 430, the petitioner, along with seven others, took a competitive civil service promotional examination. He was notified that his grade was the highest received by anyone taking the examination. After the grades had been recorded, some of the other competitors appealed to the Director of Civil Service who, after hearing, denied their appeal and re- fused to set aside the results of the examination. From this decision, the aggrieved competitors appealed to the Commission which voted to can- cel the examination and to hold another. The Court stated: "One of the subjects with which the special commissions and the Legislature were especially concerned was that relat- ing to examinations. It is apparent from the recommendations of the commissions and the statutes set forth above that the making up and grading of examinations were to be primarily administrative functions to be performed by the director and that the appellate jurisdiction of the commission relating to examination marks was to be more restricted than it was in other matters." 333 Mass. at 434. However, the Court drew a distinction between aggrieved applicants who were challenging the examination in its entirety and those appli- cants who were exercising their rights under G. L. c. 31, § 12A for a review by the Commission of the markings of the examination. The Court noted that, "If the former [challenging the examination in its entirety], we cannot say that the commission could not, in appropriate cases, set aside an examination. In such cases, however, the commission must set forth in its records the specific reasons for its action. If the appeal here was of that sort we cannot say on the basis of the petition that the commission exceeded its authority. The commission may have had good grounds for setting aside the examination." 333 Mass. at 436. As an example of the type of case which the Court felt would justify the Commission's decision to set aside an examination where it was being challenged in its entirety, it said: P.D. 12 71 "If, for example, the commission was satisfied that prior to an examination the examination paper had been stolen or that its contents had been revealed by a disloyal employee in the division, it would plainly be justified in setting the examina- tion aside." 333 Mass. at 436, fn. 2. The Court did remind the Commission, though, that: "This limitation on the powers of the commission touching examination marks could not be evaded by the simple device of setting the examination aside. Where that course is adopted by the commission in cases of appeals from decisions relating to examination marks there must be a finding of error, fraud, mistake or bad faith." 333 Mass. at 436-437. Thus, a key question seems to be whether or not a particular examina- tion is being challenged in its entirety or only for the limited purpose of reviewing some or all of the markings of applicants taking that examina- tion. If the latter, then there must first be a finding by the Commission that such markings were arrived at by the Director, "... through error, fraud, mistake or in bad faith ..." and absent such a finding, the Commission may not reverse any examination mark assigned by the Di- rector. If, however, the former is the case, i.e., that a particular exam- ination is being challenged in its entirety, then the Commission can, in appropriate cases, set aside such an examination. However, an appeal as to markings may, in an appropriate case, be treated as a challenge to the examination in its entirety. In DiRado v. Civil Service Commission, 352 Mass. 130, the petitioner and seventy- one other applicants took a civil service examination for the position of artist in the Department of Public Works. The examination was held at different places and only nine applicants, including DiRado, passed the examination. Some applicants had the advantage of using certain mechanical drawing aids which they had brought to the examination, whereas other applicants had not brought such aids with them because the notice of the examination gave no indication that their use would be permitted. There was testimony to the effect that the use of these mechanical drawing aids resulted in a time advantage for those appli- cants who used them. Four applicants, including petitioner, requested the Director to review their markings on some of the particular ques- tions in the examination. Thereafter, three of the four applicants, includ- ing DiRado appealed from the Director's decision to the Commission under § 12A and the Commission voted to cancel the examination and to request the Director to hold a new examination for the position. Petitioner sought to quash the decision of the Commission to cancel that examination that he had passed, and he contended that the subject of his appeal to the Commission was limited to the markings (as opposed to a review of the examination in its entirety). The Court, in its response, construed the appellate authority of the Commission rather broadly. It stated, "We conclude, therefore, that although the appeals, in form, may have requested that the markings on designated examination ques- 72 P.D. 12 tions be reviewed, their purpose, in fact and in substance, was to have the Commission review the manner in which the examination had been conducted." 352 Mass. at 133. The Court continued: "The Commission was therefore correct in deciding that the evidence showed that the use of drawing aids was a factor in the results of the examination, that the applicants at large had not been given an equal opportunity to use them, and that a new examination with uniform standards was the feasible way to provide an equal opportunity. The decision in no way usurped the powers given by statute to the Director. Rather, it was a quasi-judicial determination made by the commission acting in a quasi-judicial capacity." 352 Mass. at 134. (Em- phasis supplied.) In conclusion, it is my opinion that the Commission has statutory au- thority to reverse a Director's decision that an examination is valid and that its results should stand where the Commission finds that the exam- ination, as offered, did not fairly test the fitness of the applicants actu- ally to perform the duties of the positions for which they applied. Very truly yours, ROBERT H. QUINN Attorney General