The Supreme Court has declined to review the Commonwealth Court’s 2008 holding that a Borough was statutorily required to promote the top-scoring candidate on its eligibility list. Accordingly, the Court found that the Borough erred when it promoted a lower-scoring candidate, who was in the top three on the eligibility list, to fill a position for the Captain of its Fire Department.

Background

Borough of Wilkinsburg v. Colella involved a civil service firefighter who had served as the Borough’s Fire Department Chief Engineer for almost eight years. When the Captain position became vacant, the Borough held an examination to establish the eligibility list for the position pursuant to its civil service rules and regulations. Each candidate who took the exam received a score based on his or her performance on the written and oral portions of the examination. The candidates were then ranked by final score and placed on the eligibility list for promotion. Colella received the highest score. However, the Borough promoted another employee, who was serving as the acting Captain, even though that employee received a lower score on the exam, but was still in the top three. The Borough did so on the basis that it could select any of the top three candidates on the list for promotion.

The Chief Engineer filed a statutory appeal of the decision to the Court of Common Pleas, which sustained the Engineer’s objections and directed the Borough to promote him to the position of Captain. The Court of Common Pleas reasoned that the Borough Code required promotions to be based solely on the outcome of the examination. Thus, the Borough did not have any discretion to choose from the three highest scorers on the eligibility list when filling the vacant Captain’s position by promotion, as opposed to when it hired a new firefighter. The Borough then appealed to the Commonwealth Court.

The Commonwealth Court’s Decision

The Commonwealth Court affirmed the ruling of the lower court. The court drew a clear distinction between original appointments and subsequent promotions. Under the Borough Code, the ability to select from a list of the highest-scoring applicants applied only to original positions. Such discretion did not apply to promotions. Specifically, the language allowing for discretion in the selection process for original appointments did not appear in the provision relating to promotions. The Borough’s interpretation of the Borough Code ignored this distinction and would have rendered the provision pertaining to promotions meaningless. Earlier cases to the contrary were distinguishable, because they were decided before the Pennsylvania General Assembly amended the Borough Code to limit the ability to select from a list of the highest-scoring applicants to original positions. Since virtually identical language appears in the First Class Township Code and the Third Class City Code, promotions in those communities must also comply with this ruling. With the Supreme Court declining to review this decision, this decision is now established law.

Practical Effects for Pennsylvania Public Employers

  • All Boroughs, First Class Townships, and Third Class Cities should amend their civil service rules to provide that promotions must be awarded to the highest-ranking individual on the civil service list.
  • The only way to avoid promoting the highest ranked individual is to decline to fill the position. Promotions are discretionary; a municipality is not required to fill a position simply because there is an opening. See Trosky v. Civil Service Commission, City of Pittsburgh, 539 Pa. 356, 652 A.2d 813 (1995).
  • Note that veteran’s preference does not apply when promoting current civil service employees.