Benz v. Walker
Benz v. Walker
Opinion of the Court
The plaintiffs are thirty-two state policemen who either failed to receive passing marks in oral examinations for the creation of eligibility lists for promotion in the state police department or who, although receiving passing marks, claim that their positions on the lists are such that they will not be certified for promotion during the life of the lists. The examinations were set up and con
The record discloses that 182 candidates took the oral portion of the examination for sergeant and that eighty-five took the oral examination for detective. One hundred and six candidates received passing grades in the examination for sergeant, and fifty-five passed the examination for detective. Some passed both examinations. Of the thirty-two plaintiffs, eleven were successful in passing either or both examinations. Twenty-two state policemen who passed the oral examinations entered a general appearance in the case, and their attorney participated in the trial. Hence, at least 75 percent of those who passed were not parties to the action, and it does not appear that any attempt whatsoever was made to give them any notice of this suit.
Section 309 of the Practice Book expressly provides : “The court will not render declaratory judgments upon the complaint of any person . . . (d) unless all persons having an interest in the subject matter of the complaint are parties to the action or
This rule is not merely a procedural regulation. It is in recognition and implementation of the basic principle that due process of law requires that the rights of no man shall be judicially determined without affording him a day in court and an opportunity to be heard. We had recent occasion to reiterate with approval in Winick v. Winick, 153 Conn. 294, 298, 216 A.2d 185, the words of this court in Ackerman v. Union & New Haven Trust Co., 91 Conn. 500, 508, 100 A. 22: “It is the settled rule of this jurisdiction, if indeed it may not be safely called an established principle of general jurisprudence, that no court will proceed to the adjudication of a matter involving conflicting rights and interests, until all persons directly concerned in the event have been actually or constructively notified of the pendency of the proceeding, and given reasonable opportunity to appear and be heard. This firmly fixed limitation, which, in effect if not technically in all cases, is a jurisdictional one, is as binding in English practice as it is with us. It is a principle safe from the reach of attack by remedial legislation because of its sound constitutional basis.”
Since all of the candidates who were successful in the examinations are not parties to this action or were not given notice of its pendency pursuant to the express requirements of Practice Book § 309 (d), their rights cannot be adjudicated in these proceedings. Nor does due process of law permit the fruits of their success to be destroyed without notice and an opportunity to be heard. We have, therefore, no occasion to consider further the appeal from the judgment which found the issues
There is no error.
In this opinion King, C. J., and Alcorn, J., concurred.
Concurring Opinion
(concurring). I concur in the result because of the failure to cite in the successful candidates other than the twenty-two who appeared generally. I do so with great reluctance because I am convinced that the examinations did not conform to the statutory requirements. Were it not for the failure to join the necessary parties, the results should be nullified and new examinations ordered. Had proper procedure been followed and all interested candidates notified, this court would, I am satisfied, declare the 1964 oral examinations invalid.
Following a request from the state police commissioner to establish an employment list for sergeants and an employment list for detectives from which the commissioner could make appointments to those positions, the state personnel department conducted a written examination of the eligible members of the police department who sought to qualify for either one or both employment lists. In response to a request from the personnel department, the heads of the state police departments in six sister states provided the services of three captains and three lieutenants from their departments as qualified examiners to conduct oral examinations for these
Prior to October 5, 1964, the date the examinations started, the personnel department had provided each of the examiners with an eight-page printed booklet entitled “A Guide for Oral Examiners.” It contained a general discussion of the oral interviewing procedure and of the general criteria to be applied in the oral examinations. On the morning of October 5, the six examiners were briefed by Robert G. Mack, chief of the examination and recruitment division of the personnel department, by Bernard McGrevy, the personnel technician who was to be in charge of the oral examinations, and by Leslie Williams, a major in the state police department and the executive officer of that department. Mack urged the examiners to widen the range of their marks so that there would be some high scores and some low ones so as to eliminate bunching with resultant tie scores. He also urged them to mark as though they were employing the particular candidates for work under them. Major Williams stated that the police department was seeking men who would demonstrate the qualities of leadership, forcefulness, ability to think on their feet, and ability to express themselves, and whose personalities would appear to be pleasing or acceptable to the examiners with their knowledge of what was required in police operations. He spoke to them of the duties to be performed by a sergeant but said very little about the duties of a detective.
McGrevy had also prepared the written examination. He testified that the oral examiners were informed that they would be divided into two panels of three each and would sit simultaneously in adjoining rooms to examine the candidates as they
Upon the completion of the instructions, the examiners were divided into two panels, and one of the two examiners who had previously acted as an examiner in Connecticut was assigned to room A and the other to room B. McG-revy acted as technician for the panel in room A, and Victor I. Harris, another personnel technician, was assigned to the panel in room B. The technicians were to introduce the candidates, operate a recording device and mark down on a rating sheet the final score received by each candidate. These were the only formal markings made in the examination rooms which were kept by the personnel department. The scratch sheets which were provided to and were
The examinations were scheduled so that no candidate was examined by more than the three examiners in the panel to which he was assigned. The membership of each panel changed each half day with one member of each group switching places. Under this rotation system, no two panels were made up of the same three examiners.
The first candidates examined were those who applied for both the position of sergeant and the position of detective. The examinations for both positions were given simultaneously. Eleven candidates were examined by each panel on Monday morning, October 5. All eleven in room A passed both examinations with each person receiving the same mark for sergeant as he received for detective. Of the eleven in room B, three were successful in both examinations, one passed the sergeant’s examination but failed the one for detective, and one other passed the detective’s examination but failed the one for sergeant. In view of the stress which the plaintiffs have placed on the fact that the panel in room A gave the same passing mark to each candidate for sergeant as it gave him for detective, it is noted that in room B seven of the eleven received similar treatment but only two of these passed. One who qualified for both lists received different grades as did the two who passed but one of the examinations.
After the noon recess on Monday, one examiner from room A exchanged places with one of the examiners in room B. Nine candidates were exam
The positions of sergeant and detective in the state police department are in the “classified service” of the state and promotions to those positions can be made only according to merit and fitness, to be ascertained by examinations which must be competitive. General Statutes § 5-1. These examinations shall be in such form and of such character and shall relate to such matters as will fairly test and determine the qualifications, fitness and ability of the persons tested to perform the duties of those positions and shall be competitive. General Statutes § 5-26. The use of the word “competitive” in both of these statutes indicates clearly that actual competition between the candidates is the foundation on which the merit system rests and that any examination which is not truly competitve fails to comply with the statutory requirement.
The oral examination was divided into two parts, and it was necessary for each candidate to get a mark of thirty-five in each part in order to attain a passing mark of seventy. The first part embraced the external aspects of personality and was to evaluate the appearance, manner, speech, maturity and
“In a [civil service] competitive examination, the candidates match their qualifications, each against the others, and the final determination is made by rating and comparison.” State ex rel. King v. Emmons, 128 Ohio St. 216, 221, 190 N.E. 468. In a competitive examination under civil service, the candidates are to participate against each other equally before the examiners in answering questions of like character and nature and to have equal opportunity in the oral discussion to compete each against the
The rationale of the cases in other jurisdictions, including those cited above, as well as Matter of Fink v. Finegan, 270 N.Y. 356, 1 N.E.2d 462, Matter of Sloat v. Board of Examiners, 274 N.Y. 367, 9 N.E.2d 12, Matter of Cowen v. Reavy, 283 N.Y. 232, 28 N.E.2d 390, Almassy v. Los Angeles County Civil Service Commission, 34 Cal. 2d 387, 210 P.2d 503, and Stoor v. Seattle, 44 Wash. 2d 405, 267 P.2d 902, has been thoroughly explored. In the Fink ease, which we cited with approval in Howell v. Johnson, 147 Conn. 290, 295, 160 A.2d 486, it was held (p. 361): “A test or examination, to be competitive, must employ an objective standard or measure. . . . [p. 362] A definite standard may be formulated. . . . An [oral] examination cannot be classed as competitive unless it conforms to measures or standards which are sufficiently objective to be capable of being challenged and reviewed, when necessary, by other examiners of equal ability and experience.” In the Sloat case (p. 373), it was held that the test need not be wholly objective, and, to the extent that it is subjective, the result may depend as much on the fitness of the examiners as on the fitness of the candidates. All of these cases have been extensively reviewed in the Almassy case, which holds (p. 398) that, although measurable standards must be established for determining the general proficiency of the candidates for the partic
The plaintiffs also challenge the validity of these examinations on the ground that the personnel department did not have each examiner fill out a rating sheet of the grade he gave to each candidate and then retain the sheets so that they would be available for judicial review if the results were questioned. Although each examiner had blank rating sheets in his possession during the examinations, the examiners had not been requested to fill them out. Each examiner also had scratch pads to jot down his observations and markings, but these were not signed by the examiners and were not retained. The only official record of the mark obtained by each candidate was that made by the technician on a single master copy of the composite grade which he compiled as the average of the three grades stated to him by the examiners and then signed by them. Consequently, the individual ratings by the various examiners were not available for review by other examiners of equal ability and experience as those selected by the personnel department. Matter of Cowen v. Reavy, 283 N.Y. 232,
Mechanical recordings of all of the interviews of the candidates were made on a tape recorder or other similar equipment and were marked for identification at the trial. They were excluded as full exhibits. Although a review of these recordings would have imposed an onerous burden on the court, there was, in this case, no other adequate means of reviewing these examinations, and under these cireum
As Major Williams, the second-in-command and the executive officer of the state police department, has had extensive experience both within and without Connecticut as an examiner in similar tests, I cannot understand the statement in the defendants’ brief that the major’s experience would “not qualify him as an expert.” I doubt that that opinion is shared by the state police commissioner, one of the defendants and the person who appointed the major to the very important post he holds.
I regret that under the circumstances we have to affirm the judgment below. One set of examiners should have conducted the sergeant’s examination and a second set the detective’s examination. The use of multiple panels of examiners destroyed the competitive feature of these examinations.
Concurring Opinion
(concurring). I concur in the result insofar as the failure to cite in all of the interested parties or to give them reasonable notice of the action is concerned. I also concur in the concurring opinion of Justice Murphy that one set of examiners should have conducted the sergeant’s examination and a second set the detective’s examination. The use of the multiple panels of examiners, as employed here, destroyed the competitive feature of these examinations and rendered them invalid.
Reference
- Full Case Name
- Walter A. Benz, Jr., Et Al. v. George J. Walker Et Al.
- Cited By
- 37 cases
- Status
- Published