concurring in part and dissenting in part:
I fully agree with the majority that the task imposed upon the trial judge by the mandate of the court turned out to be most difficult and that he strove conscientiously to follow the mandate. I cannot agree, however, that he followed the mandate in ruling the qualifying tests administered to be invalid.
The supreme court recognized that the case concerned the transition of the employment practices of a State office from the traditional system of employment based largely upon patronage to one of civil service. It recognized that the contending individuals were persons who had apparently received original appointment under a patronage system. The court ruled that the procedure used by the Department of Personnel in waiting until the examinations had been completed before fixing a cutting score and then determining a cutting score grossly below the level set for open competitive examinations was improper and stated that the reasons given for using the method adopted did “not justify the failure to comply more closely with the statute.” (Emphasis added.) The language used indicated that a complete compliance was not required.
The equitable solution mandated was premised upon the proposition that from the perspective of the persons who took the qualifying test, “the examination they took was legal.” The further proceedings directed were for the trial court to compare the scores received by the employees on the qualifying examination with the cutting scores for similar position in other departments, if such existed, and, if not, with cutting scores for open competitive examinations for the same position in the Secretary of State’s office. If the score received equalled or exceeded the appropriate cutting score and the employee had satisfactorily completed his probationary period, the trial court was to order that the employee be “certified in accordance with section 4b.”
I do not interpret the direction that the certification be “in accordance with section 4b” to mean that the trial court was to order certification only if section 4b had been complied with. The implication of earlier language in the opinion was that full compliance with the section was not required. I interpret the reference to section 4b to mean that the certification provided for there was the certification the employee was to receive. Interpreting the mandate to permit further inquiry into the validity of the qualifying tests to see if section 4b was complied with destroyed the premise that the employees taking the qualifying tests were entitled to rely on the assumption that the tests were valid and, thus, cut at the heart of the equitable remedy directed.
The mandated comparison of scores was a hard task. Because no numerical scores were available as to group “B”, I agree with the majority that certification could not be ordered as to any in that group. Some comparison of scores could have been made in the “C” and “D” groups.In some cases it would be necessary to adjust the scores received to take into account that more or less questions were asked in the tests to which comparison was made. I do not interpret the supreme court to rule that certification should be denied if the tests taken were too easy. Rather, I interpret the opinion to state that giving some advantage to the incumbents in keeping with their “expectations” would be permissible.
I would affirm the order of the trial court as to the persons in groups “A”, “B”, and “E” and reverse and remand as to the rest. In regard to group “C” and “D” I would direct that the trial court make a comparison between the qualifying examination score and the appropriate cutting score if any are available. Adjustment should be made to accommodate for the number of questions involved in the respective tests. If the adjusted qualifying score equals or exceeds the appropriate score and the employee has served the required probationary period, certification should be ordered. The original judgment of the trial court should be entered as to all others in groups “C” and “D”, those for whom no numerical comparison can be made and those whose adjusted qualifying score does not equal the appropriate cutting score.