Berkeley Police Assn. v. City of Berkeley

Opinion

CHRISTIAN, J.

The Berkeley Police Association and six of its members appeal from a judgment determining that the City of Berkeley may lawfully make appointments to the position of police inspector through an open examination rather than through a closed examination limited to eligible existing employees of the city. The appeal is on the judgment roll. (Cal. Rules of Court, rule 5(f).)

Establishment of a personnel board with power “to administer a personnel system under rules and regulations to be made by the [City] Council” is authorized by section 119 of the Charter of the City of Berkeley.

1

The city council has adopted Personnel Rules and Regula

[111]

tions.

2

Subject to conformity with the civil service system thus created, the power “to appoint, discipline or remove all officers and employees of the City” is vested in the city manager. (Charter, art. VII, § 28.)

Appellants contend that the personnel rules adopted by the city council require that when appointment is to be made to a position that is at a rank higher than the entry level, a promotional examination be given to all qualified existing employees and that an open examination is permitted only if the preliminary closed examination establishes that a sufficient number of qualified candidates cannot be found among existing employees. This contention cannot be sustained. The rules do provide for filling vacancies by promotion from within the competitive service “[ijnsofar as practicable and consistent with the best interests of the service” but “[i]f, in the opinion of the City Manager, the best interests of the service can be served by an open competitive examination instead of a closed, promotional examination .. . the City Manager may instruct the Director of Personnel to call for applications for the vacancy and arrange for an open, competitive examination.... ” (Rule XIV, § 2.)

In its memorandum of decision, the trial court pointed out that although the rule expresses a preference for promotion from within the service the construction advanced by appellants would “give no meaning to the language conferring discretion on the City Manager.” The trial court’s construction of the regulations is correct.