dissenting.
{¶ 26} Respectfully, I dissent.
{¶ 27} Civil service examinations are designed to identify applicants who have earned the best examination scores, not those selected by extraneous considerations such as personal favoritism or personal connections. See Cassella v. Civ. Serv. Comm. of New Britain (1987), 202 Conn. 28, 34, 519 A.2d 67.
{¶ 28} Today’s majority opinion, which condones the preference practice instituted by the city of Dayton in its Fire Apprentice Program, upsets the longstanding design of civil service examinations and offends the principle of civil service. In Curtis v. State ex rel. Morgan (1923), 108 Ohio St. 292, 296, 140 N.E. 522, we stated that the fundamental purpose of civil service laws is to establish a merit system by which selections for appointments in public service may be made upon the basis of demonstrated relative fitness. Further, the civil service laws “safeguard appointees against unjust charges of misconduct and inefficiency, and from being unjustly discriminated against for religious or political reasons or affiliations.” Id. at paragraph four of the syllabus.
{¶ 29} The Fire Apprentice Program began as part of a commendable goal to increase female and minority representation in the Dayton Fire Department. In fact, a written report known as the Diversity Plan recommended creation of the *15program to facilitate recruitment, education, and training of “a diverse group of individuals.”
{¶ 30} Contrary to these objectives, Dayton’s charter prohibits the use of race, religion, and political affiliation as criteria for selection for the civil service. Furthermore, Rule 6, Section 2 of the Civil Service Board Rules and Regulations, related to open competitive examinations, provides, “All examinations shall be designed to test the relative qualifications of applicants to discharge the duties of the particular position(s) which they seek to fill.” It further states, “No question shall relate to the race, ethnic background, sex, political affiliation or opinion, religious belief, or age of any applicant.”
{¶ 31} The Civil Service Board based its rules not only on the authority of the charter of Dayton but also on the Ohio Constitution, each of which mandates that civil service appointments to the Fire Department be made on the basis of merit and fitness.
{¶ 32} Specifically, Section 96 of the charter requires the Civil Service Board to adopt rules and regulations for appointment to the classified civil service based on “merit, efficiency, character, and industry.”
{¶ 33} And as a fundamental framework and guideline for all civil service appointments in Ohio, Section 10, Article XV of the Ohio Constitution requires that “[ajppointments and promotions in the civil service of the state, the several counties, and cities, shall be made according to merit and fitness, to be ascertained, as far as practicable, by competitive examination.”
{¶ 34} The issue presented to us in this case concerns the amendment to Rule 6 of the Civil Service Board Rules and Regulations, which awards preference points to applicants who are selected to participate in, and who complete, the Fire Apprentice Program.
{If 35} This amendment creates a situation by which a selection committee can favor either one group of minority people over another or one sex over the other by choosing those who will receive preference points upon completing the Fire Apprentice Program. Here, the city of Dayton is attempting to permit indirectly through the selection committee that which it is prohibited from doing by law.
{¶ 36} The majority’s reliance upon State ex rel. King v. Emmons (1934), 128 Ohio St. 216, 190 N.E. 468, is misplaced because in that case, service in the military was not arbitrarily restricted, and everyone who completed specified military service received additional preference credit. Such a basis for awarding preference points results in equal application for all, would not offend the charter of the city of Dayton or the Ohio Constitution, and has been upheld by the United States Supreme Court in Personnel Admr. of Massachusetts v. Feeney (1979), 442 U.S. 256, 99 S.Ct. 2282, 60 L.Ed.2d 870. In sharp contrast to King, here, *16only the participants chosen by the selection committee to participate in the Fire Apprentice Program receive the preference points.
Susan D. Jansen and Diana S. Brown, for appellants. Patrick J. Bonfield, Dayton Director of Law, John J. Danish, Chief Trial Counsel, and John C. Musto, Assistant City Attorney, for appellees.{¶ 37} In State ex rel. Brenders v. Hall (1995), 71 Ohio St.3d 632, 634, 646 N.E.2d 822, we observed that a “competitive civil service examination” consists of an “ ‘[e]xamination which conforms to measures or standards which are sufficiently objective to be capable of being challenged and reviewed by other examiners of equal ability and experience.’ ” Id., quoting Black’s Law Dictionary (6th Ed. 1990) 284. Instead of using objective criteria for hiring firefighters, the selection committee used references, the participant’s record of community service, and a brief essay. These criteria, unlike the credit for military service upheld in King, are not capable of being challenged and reviewed, because they are subjective and dependent upon the arbitrary exercise of discretion by the members of the Selection Committee.
{¶ 38} The amendment to Rule 6 does not award preference points on the basis of “merit, efficiency, character, and industry” based on a “competitive examination” as required by the charter of the city of Dayton and the Ohio Constitution. Instead, it permits Dayton to artificially inflate the scores of selected applicants, who may belong to a particular class of persons chosen for special consideration.
{¶ 39} For these reasons, I respectfully dissent. I would reverse the judgment of the court of appeals and hold that the amendment to Rule 6 of the Civil Service Board Rules and Regulations is unconstitutional, violates the Dayton charter, and is therefore unenforceable.