City of Fort Smith v. Driggers

Tom Glaze, Justice. I respectfully dissent. Under Act 138 of 1957 [ Ark. Code Ann. § 14-5 3-109 (a)], the City of Fort Smith had formed a commission form of government, and it continued with that form of government until 1967, when the city adopted the administrator form authorized under Act 36 of 1967 [ Ark. Code Ann. §§ 14-48-101 to -131 (1987 and Supp. 1989)]. As a commission form of government, Fort Smith’s sole criterion for the promotion of firefighters was based on an applicant’s seniority as mandated by §§ 1 and 2 of Act 138 [now codified as § 14-53-109(a) and (b) (1987)]. In particular, § 2 of Act 138 [§ 14-53-109(b)] provides as follows:

It is the purpose of this section to establish seniority in service as the basis for promotion in cities of the first class having the commission form of government.

The majority opinion states the record in this appeal suggests Fort Smith, when it was a commission form of government, did not recognize seniority as the criterion for promotion. However, even if that was true, the city’s action in adopting competitive examinations as the criterion would have been contrary to Act 138 and therefore invalid. The City of Fort Smith, as a commission form of government, simply had no authority to recognize any criterion other than seniority as provided by Act 138.

The majority opinion states that even if Fort Smith had previously followed seniority when awarding promotions, the city had authority to change that criterion to examination scores after it adopted the administrator form of government in 1967. For this proposition, the court cites the “savings provision” of the City Administrators Act, § 7 of Act 36 of 1967 [§ 14-48-102], which, in relevant part, provides as follows:

When a city effects a change of government under this Act, it shall remain subject to and controlled by all laws (except those inconsistent with this Act) which on the effective date of such reorganization applied to or governed such city including, without limiting the foregoing, the laws relating to improvement districts. The city, as reorganized, shall have all of the rights, powers and authority which it had immediately prior to reorganization, and shall also be entitled to exercise any right, power or authority (except those inconsistent with the provisions of this Act) permitted cities organized under any other form of government. In cities having the commission form of government immediately preceding the adoption of the City Administrator form of government, the Board of Directors elected under the authority of this Act may, by ordinance duly adopted, organize or reorganize any municipal board, commission, authority, agency or department pursuant to the authority provided in the general laws of the State for municipalities having the mayoraldermanic form of government, except that no such reorganization shall be lawful which impairs the validity of existing contracts. All by-laws, ordinances and resolutions lawfully passed and in force in such city under its former organization, and not in conflict with this Act, shall remain in force until altered or repealed by the Board of Directors elected under the authority of this Act. (Emphasis added.)

In reading § 7(a) above, when Fort Smith changed from commission to the administrator form of government, the city remained subject to those laws that governed it as a commission form of government. Thus, as previously discussed, the governing law, §§ 1 and 2 of Act 138, required Fort Smith to use seniority when promoting firefighters. However, the savings provision further provided that, under Act 36, the new board of directors under the city administrator government may by ordinance duly adopted, organize or reorganize any municipal board, commission, authority, agency or department in accordance with the general laws of the state. From my search of the record in this appeal, I am unable to find any evidence to support the fact that Fort Smith’s board of directors by ordinance changed its law to provide for promotions based on competitive examinations rather than seniority.

Almost all of the evidence taken by that court after our remand of this cause, see City of Fort Smith v. Driggers, 294 Ark. 311 , 742 S.W.2d 921 (1988), shows that, from 1957 to 1986, Fort Smith based its firefighter promotions upon seniority. For example, Fire Chief James Moore, a firefighter employee for the city for forty-one years, testified that from 1957 to 1986, promotions in the fire department were based seniority. In addition, testimony and exhibits given and introduced through attorneys, who had worked for the city before and during the transitional period in dispute, reflect that rules and regulations purportedly adopted by the city’s Board of Civil Service Commissioners in 1969 and 1974 provide for promotion by seniority. The only exhibit introduced even mentioning competitive examinations was a copy of the purported Rules and Regulations of the Civil Service Commission, which reproduction exhibit came from one of the attorney’s files and which was further labeled in handwriting, “old copy, effective prior to April 30, 1969.” Although the trial court relied on this exhibit (and the majority court sustains that reliance) to show that the city, at some time after 1967, based its promotions on something other than seniority, such exhibit fails in any evidentiary way to show the city’s board of directors ever adopted any such change by ordinance, resolution or otherwise, as is required by the “savings provision” of Act 36 of 1967. 1 In sum, there is no evidence whatsoever to show the city’s board of directors ever took any action to change the seniority criterion the city was statutorily mandated to follow as a commission form of government. At most, the appellee Driggers showed only that the city’s Civil Service Commission, not the city board of directors, may have adopted exams as the promotion criterion. Such proof fails to meet in any way the dictates of Act 36. In sum, the trial court erred in finding the city ever legally changed its seniority criterion for purposes of promoting firefighters, and the majority court is wrong in affirming that finding.

For the foregoing reasons, I would reverse and remand this cause.

Hays and Corbin, JJ., join this dissent. The City of Fort Smith objected to this exhibit’s introduction, and I think properly so. Besides having no relevance on the issue of whether the board of directors had changed the seniority criterion previously required and followed by Fort Smith, the record reflects the city’s Civil Service Commission had rules in 1974 that used seniority as its basis for awarding promotions.