Opinion No.

The Honorable Mike Ross State Senator P.O. Box 374 Prescott, AR 71857

Dear Senator Ross:

This is in response to your request for an opinion on the following question:

Under the Civil Service promotional system as it relates to a city with a Civil Service Commission, if the Civil Service Commission certifies three officers for a promotion, does the Chief of Police and the Commission have the authority, within months of the original certification, to by-pass those names on the list and add other names, subsequently promoting one of the new names added to the list and by-passing those names on the original list?

You set forth the following example:

A, B, and C are certified for promotion. B is promoted. The Chief then goes to the Commission and gets the new name of D added to the list. Thirty days later D is promoted. There is no notice as to why A and C were passed over, nor is there any disciplinary action involved.

It is my opinion that the answer to your question is "yes," with respect to the example set forth above, assuming that candidate "D" is next on the eligibility list for promotion. See A.C.A. § 14-51-301(b)(4)(B), (b)(6) and (b)(9) (Cum. Supp. 1993) (pertaining to rules and regulations governing municipal fire and police departments). This question was addressed in Attorney General Opinion 91-114, previously issued by this office. I have enclosed a copy of the opinion for your review.

As stated in Opinion 91-114, candidate #4 in that hypothetical (the counterpart of D here), presumably will move up on the list after candidate #2's promotion, and will be one of the top three eligible candidates when the decision is made to make another promotion. The eligibility list, which establishes a "right of priority," remains in force and effect for one (1) year. A.C.A. § 14-51-301(b)(4)(B)(i) (Cum. Supp. 1993). Under your example, D was presumably "added to the list" by virtue of his or her inclusion in the three names certified to the Chief of Police following the promotion of B. The Chief may select any one (1) of these three (3) for promotion, i.e., either A, C or D.A.C.A. §14-51-301(b)(6) (Cum. Supp. 1993). There is no requirement in A.C.A. §14-51-301 that A and C under this scenario must first be promoted, nor is the disciplinary status of A and C relevant to the above conclusions.

The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elisabeth A. Walker.

Sincerely,

WINSTON BRYANT Attorney General

WB:EAW/cyh