Mississippi Advisory Opinions September 02, 2011: No. 2011-00330 (September 02, 2011)

No. 2011-00330.

Dear Ms. St. Pe':

Attorney General Jim Hood has received your request for an opinion and has assigned it to me for research and response.

You inquire as to whether a civil service commission can categorize a position as non-competitive and permit individuals outside a municipal department to apply for the promotions. Specifically, you provide the following:

I am the city attorney for Moss Point and have been asked by the civil service commission to request an opinion on the commission's authority to change a competitive position in the Moss Point police department to an appointed position.

Moss Point police department falls under the civil service rules found in Section 21-31-1 to 21-31-27 of the Mississippi Code. Further, Moss Point has adopted its own civil service rules and regulations, which are attached to this opinion request. The rules define a "non-competitive class" as any position requiring peculiar and exceptional qualifications of a scientific, professional or expert nature. Upon satisfactory evidence that written competition is impractical, the Commission may, by a majority vote, suspend competition. Candidates applying for appointment under this section shall file an application on the prescribed form with the Commission and, additionally, shall file proof of education, training, experience, ability and character, as the commission may require. If such candidate is properly qualified, the Appointing Authority shall be so advised and authorized to appoint."

Moss Point's Rules also state that all promotions must be made based upon "merit, efficiency, seniority, and fitness by open competitive examination and impartial investigation." To be promoted under Moss Point civil service rules, an employee must have satisfactorily served in a position for three (3) years before applying for a promotion.

The Moss Point police chief has requested that the top positions in the police department, including captains and above, be appointed positions. While there will be an interview and possible written test given, he does not want these positions to be determined based on the standardized test currently given to determine promotions. Further, the chief does not want to promote from within the department, but wants to review qualified candidates from other law enforcement agencies. The chief's basis for this request is that the department lacks eligible candidates for the top ranking positions and he feels that the interview and written tests (not the typical standardized test currently used) will give him a better view of the person's ability to perform the managerial type jobs. The chief understands that the civil service commission would oversee the testing process and would have to approve the candidates. He further understands that the mayor and the board of aldermen would have the final appointing authority for these positions. His goal in making this request is to have more input into who is placed in these key management roles.

The civil service commission has reviewed the opinion issued by you to Mr. A.J. Dees, Jr., dated March 1, 1995 (1995 WL 108914) and the Chandler v. City of Jackson Civil Service Commission , 687 So.2d 142 case. In both of these opinions, it is clear that all promotions and appointments must be based solely on merit, efficiency and fitness, and that a written examination is not required to determine whether the candidate is qualified. Therefore, the commission feels comfortable that it can authorize these promotions through means other than written examinations so long as they examine the merit, efficiency and fitness of the candidate. The question arises, however,

whether or not the commission can determine that a position is non-competitive (i.e., appointed) and allow people outside of the department to apply for the promotions.

* * *

Any determination as to whether a position will be an "appointed", non-competitive one is a determination to be made by the governing authorities of the municipality, and not the civil service commission.

A civil service commission "is a creature of the Legislature with limited authority to investigate, conduct hearings, make decisions and promulgate and adopt its own rules and regulations." City of Meridian v. Johnson , 593 So.2d 35 (Miss.1992). It is the duty of a municipal civil service commission to ensure that policies and procedures adopted by the governing authority are fairly and evenly applied to all civil service employees. City of Jackson v. Little , 245 So.2d 204 (Miss.1971). While the civil service commission has the authority to set rules and regulations regarding examinations, appointments, promotions, transfers, reinstatements, demotions, suspensions and discharges from employment, pursuant to its authority under Mississippi Code Annotated Section 21-31-9, we have consistently opined that it may not engage in establishing the administrative or organizational structure of a municipality. MS AG Op., Ramsay (November 29, 2010); MS AG Op., Tynes (March 9, 2007); MS AG Op., Bowman (March 17, 2000). The governing authorities of a municipality possess the authority to create and eliminate positions within the municipal government. MS AG Op., Bowman (February 7, 2003); MS AG Op., Whitfield (May 5, 1994). Furthermore, the determination of qualifications necessary for municipal positions and the criteria by which municipal employees will be promoted rests with the governing authorities. MS AG Op., Dees (November 8, 1996).

Likewise, any determination as to whether a position will be an "appointed" one or not is a determination to be made by the governing authorities of the municipality, and not the civil service commission. See MS AG Op., Dees (March 1, 1995)(governing authorities to determine that promotions to be based upon merit, efficiency and fitness without the necessity of a written examination). The authority of the civil service commission is to adopt rules and regulations concerning municipal employment and to ensure that such rules and regulations are applied fairly and evenly, not to make determinations as to what positions will be "appointed". That authority is reserved to the governing authorities of the municipality.

If we may be of further assistance, please advise.

Sincerely,

JIM HOOD, ATTORNEY GENERAL

By:

Leigh Triche Janous

Special Assistant Attorney General