Petition — Brabant v. City of Seattle

Supreme Court brief1976

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Supreme Court, v. &.

FILED

AUG 9 1976

IN THE

SUPREME COURT OF THE UNITED seg ee ae

October Term, 1976

No. 76-1 96

MICHAEL E. LINDSAY, RON WATSON

and DAVID L. DAY,

Plaintiffs,

WESLEY BRABANT,

Plaintiff-Petitioner,

THE CITY OF SEATTLE, ALLEN W. MONROE,

DONALD D. HALEY, ROBERT E. McGETTY

CIVIL SERVICE COMMISSIONER,

Defendants-Respondents,

ROBERT L. GREEN and the UNITED

CONSTRUCTION WORKERS ASSOCIATION,

Defendants in Intervention.

PETITION FOR WRIT OF CERTIORARI

CHARLES R. LONERGAN, JR.

and PATRICK W. CROWLEY

Counsel for Petitioner

Of Counsel:

SIDERIUS, LONERGAN & CROWLEY

847 Logan Building

Seattle, WAshington 98101

CRAFTSMAN &@ MET PRESS SEATTLE. WASHINGTON

EO OT

SUBJECT INDEX

Report of Opinion Below ..... .

Jurisdiction ...«+s«-e«esee ee

Questions Presented for Review ..

Constitutional Provision ....

Statute Involved ......e.2-s

Seattle's City Charter Provision

Civil Service Rule .......

Statement of the Case .......

Reasons Why Writ Should be Granted

Appendices:

AppenGig A «se cece eevee

Repenein B wt te eee ee eee

Appendix C

Repenegas © .ccseeaecsetsee

Appendix

rt)

Appendix

TABLES OF AUTHORITY

Table of Cases

Anderson v. San Francisco Unified

chool Dist., F. Supp.

(N.D. Giles 1972) . ° . - . ° . 7

nN oc" uw 4) Ww N N ~

* 14

. one

Page

Brown v. Board of Education, 347 U.S. -

4) _ * . > . a. a. > 7 — — _ . -

Defunis v. Odegaard, 82 Wn.2d ll,

507 P.2d. ° . . © . . . . . . ~11,12,13

Franks v. Bowman Transportation

Companys 44 L.W. 4356, 4363 -

Fraternal Order of Police v. City

Of Dayton, hio App. ’

Ten Gebewe Bee tiOvaer «+ « « 6 6 6 6 ebt

Griggs v. Duke Power Co., 401 U.S.

424 (1971). - . 2 . 7 7 . . . . . . 16

Jackson v. Poston, 40 A.D.2d 19,

337 N.Y.S. 2d 108 (1972). . . « « « «17

Weber v. Kaiser Aluminum, 45 L.W.

‘2018 (U.S.D.C. E.ba., 19 _) « « « « od?

Constitutional Provisions

U.S. Const. Amen. XIV 7.“ 2©« #« .2,374,9,10

Statutes

28 usc S 1257(3). . . « . . . . . . . . 2

42 USC § 2000e-2(J) . . . « - « « 3,10,18

Other Authority

Presidential Executive

Order 11246 * _ * . > . . _ . >. —_ - . 9

Seattle City Charter

Article 16, Section 9... .5-6,7,8,17

Seattle Civil Service Commission

Civil Service Rule 7.033. ... . 6-7,8,

17,18,

2 Aenea

—

ee er ere

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1976

No. *eeee#e:.

MICHAEL E. LINDSAY, RON WATSON

and DAVID L. DAY,

Plaintiffs,

Vv.

WESLEY BRABANT,

Plaintiff-Petitioner,

THE CITY OF SEATTLE, ALLEN W. MONROE,

DONALD D. HALEY, ROBERT E. McCGETTY

CIVIL SERVICE COMMISSIONER,

Defendants-Respondents,

ROBERT L. GREEN and the UNITED

CONSTRUCTION WORKERS ASSOCIATION,

Defendants in Intervention.

PETITION FOR WRIT OF CERTIORARI

REPORT OF OPINION BELOW

The opinion of the Supreme Court

of the State of Washington, the highest

court in Washington State jurisdiction,

is officially reported in 86 Wn.2d 698,

3948 P.2d 320, and a copy of this opinion

is reproduced in the Appendix to this

petition as Appendix A. The remittitur

from the Supreme Court returned the case

to the Superior Court for the State of

Washington in and for the County of King,

and provided that the written opinion

became the final judgment of the court on

May 11, 1976. The opinion of the Supreme

Court upheld the ruling of the trial

judge. A copy of the trial court's deci-

sion is attached hereto as Appendix B.

JURISDICTION

This petitioner seeks review of

the final decision of the Washington

State Supreme Court pursuant to 28 USC

1257(3), by Writ of Certiorari.

Re The following questions are

presented by this petition:

a. Whether the 14th Amendment

of the United States Constitution pro-

hibiting states from denying persons

within their jurisdiction the equal

protection of laws or the deprivation of

life, liberty and property without due

process of law is violated by a rule of

the Seattle Civil Service Commission

giving a preference solely on the basis

of race to certain minority persons

to the detriment of non-minorities in

competition for promotion within the

Seattle Civil Service System.

b. Whether a rule of the Seattle

Civil Service Commission which grants

a preference solely on the basis of

race to minority persons violates 42 USC

§ 2000e-2(J) which provides that nothing in

Title VII of the Civil Rights Law shall be

interpreted to require preferential

treatment to remedy racial, sexual or

other imbalance in a work force.

Constitutional Provision

14th Amendment

Section l. All persons born

Or naturalized in the United

AEE EE

States, and subject to the juris-

diction thereof, are citizens of

the United States and of the State

wherein they reside. No State

shall make or enforce any law

which shall abridge the privileges

or immunities of citizens of

the United States; nor shall

any State deprive any person

of life, liberty, or property,

without due process of law; nor

deny to any person within its

jurisdiction the equal protection

of the laws.

Statute Involved

42 USC 2000e-2(J)

Nothing contained in this sub-

chapter shall be interpreted to

require any employer, employment

agency, labor organization, or

joint labor-management committee

subject to this subchapter to grant

preferential treatment to any

individual or to any group because

of the race, color, religion, sex

Or national origin of such indi-

vidual or group on account of an

imbalance which may exist with

respect to the total number or

percentage of persons of any race,

color, religion, sex, or national

origin employed by any employer,

referred or classified for employ-

ment by any employment agency Or

labor organization, admitted

to membership or classified by

a labor organization, or admitted

to, or employed in, any apprentice-

ship or other training program, in

comparison with the total number

Or percentage of persons of such

race, color, religion, sex, or

national origin in any community,

State, section, or other area, or

in the available work force in

any community, State, section,

Or other area.

Seattle's City Charter Provision

Article XVI

Section 9. The head of the

department or office in which the

office classified under this

article is to be filled shall

notify the commission of any

vacancy, and the commission shall

certify to the appointing officer

the names and addresses, together

with the notation of military,

naval or marine service, if any,

of such number of candidates, not

less than five if there shall be so

many eligible, standing first upon

the register for the class or

grade to which such position

belongs as shall be equal to

twenty-five percent of the total

number of candidates on said

shall notify the commission sepa-

rately of each position to be

filled, and shall fill such places

by appointment from the persons

certified to him by the commission

therefor, which appointment shall

be on probation for a period of

twelve months, except for firemen

where such period shall be six

months. To facilitate the selec-

tion of appointees from the persons

so certified, the appointing

officer may require such persons to

come before him, and shall be

entitled to inspect such persons'

examination papers, and may fill

Civil

such positions by appointment from

the persons so certified without

regard to their order of certifi-

cation, subject to the preference

herein providea for. The commis-

sion may strike off the names of

candidates from the register after

they have remained thereon for a

time to be limited by rule.

Before the expiration of the period

of probation, the head of the

department or office in which a

candidate is employed may, by and

with the consent of the commission,

discharge him upon assigning

in writing his reasons therefor

to the commission. If he is not

then discharged, his appointment

shall be deemed complete. To

prevent the stoppage of public

business, or to meet extraordinary

exigencies, the head of any depart-

ment may, with the approval of the

commission, make temporary appoint-

ments to remain in force not

exceeding sixty days, and only

until regular appointments under

the provisions of this article can

be made.

Service Rule

7.03(})

Where a certification of eli-

gibles other than in the normal

order is requested in writing by

the appointing authority as being

necessary to implement the Affirma-

tive Action Program of the City of

Seattle by achieving ratios of

minority, female or handicapped

employees in all classifications of

city employment approximately

equal to the ratios of these

a Ct a Ri

same groups in the Seattle com-

munity, and the Secretary deter-

mines that the reasons given fully

justify the request, a certifica-

tion may be made of only the

highest ranking eligibles of the

particular race, creed, color,

national origin or sex or the

highest ranking handicapped eli-

gibles, as designated in the

request.

STATEMENT OF THE CASE

The City of Seattle maintains a

System of Civil Service for municipal

employment which is governed by the

Seattle City Charter. Article 16, Section

9 of the Charter establishes a merit

System by which eligible candidates

are selected for municipal employment.

A municipal official is required by this

Section of the Charter to hire from the

top 25% of those who passed the Civil

Service Examination or, at least, from the

top five candidates examined, whichever

number is greater.

This City Charter provision governed

municipal employment selection until

August 20, 1971 when the Seattle Civil

Service Commission adopted Rule 7.03}.

Civil Service Rule 7.033 changed the

previously established hiring policies of

the City with respect, to merit hiring in

an effort to achieve a more desirable

minority employment ratio. Rule 7.03j

permits the hiring and promotion of

municipal employees who have passed a

Civil Service Examination solely on the

basis of race, creed, color, national

origin or sex without regard to their

scores on the examinations.

The petitioner, Wesley M. Brabant,

was passed over for promotion even though

he had scored within the top 25% of those

taking the Civil Service Examination, in

favor of Emeliano Ponce, who took and

passed a promotional examination, but who

also was below the percentile established

by Article 16, Section 9 of the Seattle

City Charter. The petitioner thus inter-

vened in a pending lawsuit in the King

’

County Superior Court with other plain-

tiffs in order to protect his rights

established by the Seattle City Charter

and the United States Constitution.

The other plaintiffs in that action were

dismissed and the petitioner's case went

to trial upon agreed facts resulting in an

adverse decision by the trial court.

In his original complaint (Appendix Cc

hereto), petitioner alleged that his

constitutional rights were violated

by the conduct of the City. In its Answer

(Appendix D hereto), the City of Seattle

alleged that its change in Civil Service

policy was mandated by the 14th Amendment

to the United States Constitution and the

Civil Rights Act of 1964, as well as

Presidential Executive Order 11246. A

constitutional argument was made in the

affidavit of Thomas F. Hanley, Secretary

of the Civil Service Commission of the

City of Seattle (Appendix E hereto).

Robert L. Green and the United

Construction Workers Association were

allowed to intervene in the action as

defendants. In the Answer of said inter-

venors, the constitutional issue was

raised and the court was asked to deter-

mine the constitutional rights of the

intervenors in addition to their rights

under the Civil Rights Act of 1964, 42 USC

2000e, et seq. (Appendix F). All of the

constitutional implications of affirmative

action taken pursuant to the 1964 Civil

Rights Act were raised and argued to the

trial court.

A "Statement of Stipulated Facts

and Issues of Law" is attached as Appendix

The Washington State Supreme Court,

although it answered the 14th Amendment

arguments of petitioner, gave indication

that it did not feel as though that

answer necessariy had to be given.

The Supreme Court stated that since the

parties had submitted an agreed statement

of stipulated facts and issues of law to

the trial court in which they agreed that

"There is no constitutional question of

egual protection of the laws and due

process presented", that the Supreme Court

need not consider such an issue (see

Appendix A). The Supreme Court missed the

entire point of the agreed stipulation

upon which this case was originally

submitted to the trial court. The Supreme

Court quoted the stipulation out of

context. The true stipulation was worded

as follows: "The parties agree that there

is no constitutional question of equal

Protection of the laws and due process

presented, the same having been disposed

of in Defunis v. Odegaard, 82 Wn.2d 11"

(Emphasis supplied; see Appendix G). This

is not a true stipulation of any factual

material and was never intended by the

litigants to be such. The stipulation in

its terms purports to be a waiver of

constitutional arguments on both sides of

this question and the respondents herein

at no stage of these proceedings have ever

ceased to raise constitutional issues

involving equal protection and due process.

Neither has petitioner waived his right

to his full constitutional protection.

Moreover, the parties to this action were

not attempting to stipulate what the

constitutional law of the United States

shall be. The stipulation by its very

terms merely acknowledges for purposes of

the trial court's decision, the fact of

life in this jurisdiction that we are a

DeFunis state. 82 Wn.2d 11, 507 P.2d

1169 (1973). Nothing more was intended

nor did the trial court consider the

stipulation to go beyond this basic

acknowledgment. In fact, the trial

court's decision itself clearly shows that

the constitutional implications of this

case were primary considerations in

reaching his decision where in his order

he ruled:

The court concluded from the

records and files and argument

that:

l. Under Amendment 14 of the

United States Constitution and

§ VII of the Civil Rights Act of

1964, as amended (42 USCA §§ 2000e,

et seq.), and Executive Order

11246, as amended, the City of

Seattle has a legal duty to take

affirmative action to eliminate the

effects of past racial discrimina-

tion in the City employees selec-

tion processes and to prevent such

racial discrimination from occur-

ring in the future.

In any event, our Washington State

Supreme Court did, in fact, reach the

constitutional issue and thus the language

indicating a waiver of constitutional

rights by petitioner is purely dicta in

the Washington Supreme Court decision.

Therefore, the constitutional issue is

appropriately before this court for

review.

REASONS WHY WRIT SHOULD BE GRANTED

This case presents to the court a

clear instance where a preference was

granted to a minority employee and a right

denied another not of a minority race

where no specific discrimination had

actually been proven to occur. Therefore,

this case is truly a case of reverse

discrimination. The uncertainty of the

law in this area legitimately calls for

national clarification by this court. The

opinion of the Washington State Supreme

Court below assumed that the City of

Seattle was guilty of such discrimination

as would require petitioner to suffer on

behalf of a greater good when, in fact, no

such discrimination was either admitted

by the City nor proven by any party

litigant. The Supreme Court said:

That the City's selection process

through the Civil Service Examina-

tions administered in the past have

discriminated against minority

applicants is borne out by the

record and statistical information.

(See Appendix A-8)

“15

In fact, however, the only evidence

the Supreme Court had to consider was the

City's statement contained in their

Stipulation of facts:

8. That Seattle's Civil Service

Tests have had the effect in some

cases of discriminating against

minority applicants among those

deemed eligible for appointment in

accordance with provisions of

Charter Article XVI, Section 9, as

determined by the results of those

examinations; and said results tend

to cause the minority applicants to

be placed at the iower end of the

eligible registers and, therefore,

have little or no chance of being

employed.

See Appendix A-46. Thus the City in effect

denies that there has been a general

condition of discrimination throughout the

Civil Service Examination process, and in

addition, refuses to acknowledge that

there has been any specific discrimination

either in the department in which peti-

tioner works or any discrimination against

Ponce, the minority applicant, indivi-

dually. Thus, the City has not been

proven to have discriminatory hiring

ae: ee ee

patterns in practice; such was required by

Franks v. Bowman Transportation Company,

44 L.W. 4356, 4363 (1976). In the absence

of evidence of a specific discriminatory

hiring policy, the court, therefore,

approved an affirmative action program

that was inappropriate under the circum-

stances and violative of the constitu-

tional rights of petitioner. Griggs v.

Duke Power Co., 401 U.S. 424 (1971).

The Supreme Court has stated that

reverse discrimination is illegal under

the Civil Rights Act of 1964:

In short, the Act does not

command that any person be hired

simply because he was formerly the

subject of discrimination, or

because he is a member of a minor-

ity group. Discriminatory prefer-

ence for any group, minority or

majority, is precisely and only

what Congress had proscribed.

Griggs v. Duke Power Co., 401 U.S. 424,

430 (1971).

When actually attempted, reverse

discrimination has been ruled illegal.

Weber v. Kaiser Aluminum, 45 L.W. 2018

(U.S.D.C. E.La., 19 _); Anderson v.

San Francisco Unified School Dist., 357 F.

Supp. 248 (N.D. Cal., 1972); Fraternal

Order of Police v. City of Dayton, 35 Ohio

App. 2d 196, 301 N.E.2d 269 (1973);

Jackson v. Poston, 40 A.D.2d 19, 337

N.Y¥.S. 2d 108 (1972).

Civil Service Rule 7.03j attempts

by preferential treatment to the “highest

ranking” eligibles of the particular race,

creed, color, national origin or sex or

the “highest ranking” handicapped eli-

gibles to bring all minorities into a

desirable ratio with the Seattle Commun-

ity. The noble effort, however, makes

shambles of the City Charter Provision,

Article 16, Section 9, and is an inappro-

priate response to non-specific disparate

discrimination as was established in the

case by the evidence. Title VII permits

the court to order such "affirmative

action" as may be appropriate in order

to remedy intentional discrimination (42

- U.S.C. § 2000e 5(G)). However, it does

not mandate, nor does the 14th Amendment

of the United States Constitution require,

the reverse discrimination preferences

as required by Civil Service Rule 7.033.

The Supreme Court opinion is very

candid in its reasoning, wherein it

equates the preference granted Mr. Ponce

in this case to a veterans’ preference in

public employment and the overtime parking

privilege offered the physically handi-

capped (See Appendix A-12, 13). However,

a preference based on military service

or physical infirmity is not relevant to

a discussion of preferences based on race.

Racial preferences have no constitutional

basis for their justification and have

been found violative of the equal protec-

tion clause of the 14th Amendment. Brown

v. Board of Education, 347 U.S. 483

(1954).

This case presents issues which

should be decided by this court. The

federal questions involved are extremely

important because they totally destroy the

merit concept of Civil Service employment

in municipal government and affect a

substantial body of the public.

Respectfully submitted,

CHARLES R. LONERGAN,JR.

PATRICK W. CROWLEY

Counsel for Petitioner

pe ae

APPENDIX A

[No. 43750. En Banc.

MICHAEL E. LINDSAY, ET AL, Plaintiffs, WESLEY

BRABANT, Appellant, v. THE CITY OF SEATTLE,

ET AL, Respondents.

[1] Civil Rights - Public Employment - Discrim-

ination - Determination. A court may

determine whether public employment prac-

tices violate the equal protection rights of

minority applicants by applying the test

imposed by title 7 of the Civil Rights Act

of 1964, i.e., whether they deprive or tend

to deprive such persons of employment

opportunities or adversely affect their

status as employees on the basis of race or

national origin. Discrimination may be

inferred from statistics which demonstrate a

substantially disproportionate level of

minority representation in public employment.

(2] Civil Rights - Affirmative Action - Neces-

sity - Public Employment. Title 7 of the

Civil Rights Act of 1964 mandates an affirma-

tive action program for persons of minority

background in public employment when neces-

sary to eliminate the continuing effects of

past discrimination, whether or not current

practices are discriminatory. The need and

justification for affirmative action are

eliminated when minority representation

in public employment fairly approximates

minority representation in the population of

the area; statistical perfection is not

required.

[3] Civil Service = Discrimination - Federal

Supremacy ~- Local Laws. Under the supremacy

clause (U.S. Const. art. 6, cl. 2), federal

legislation relating to discrimination

in public employment is controlling over

conflicting state or local enactments rela-

ting to selection of public employees.

A-2

[4] Appeal and Error = Review - Issues Not

Raised in Trial Court - In General. An

appellate court will not pass upon issues

which were not presented to the trial

court.

([5] Administrative Law and Procedure - Delega-

tion of Powers - Constitutional Requisites.

A delegation of legislative power is consti-

tutionally permissible when it provides

standards which indicate what is to be done

and the administrative body which is to do

it, and there are procedural safeguards

against arbitrary administrative action and

abuse of discretionary power.

[6] Civil Rights - Affirmative Action -

Public Employment - Use of Goals - Validity.

The use of goals in implementing an affirma-

tive action program in public employment is

constitutionally permissible. A goal,

unlike an absolute quote or preference, is a

realistic numerical objective which is based

on expected job vacancies and qualified

applicants available and which does not

require displacement of existing employees,

creation of unneeded positions, or the

hiring of unqualified persons.

[7] Administrative Law and Procedure - Admini-

strative Rules - Validity - Determination.

Rules adopted by an administrative agency

pursuant to a specific legislative delega-

tion of such authority are presumed to be

valid; a person who asserts their invalidity

has the burden of proving that the agency

abused its discretion in adopting the rules

in question.

Appeal from judgment of the Superior Court

for King County, No. 757364, Solie M. Ringold,

J., entered October 5, 1973. Affirmed.

Action challenging a civil service affirma-

tive action program. One of the plaintiffs appeals

from a summary judgment in favor of the defendants.

“Ri

A-3

- Lonergan, Jr. (of Siderius, Loner-

gan & 2 ai, for appellant.

John P. Harris, Corporation Counsel, and

Gordon F. Crandall, Assistant, for respondents

City of Seattle, et al.

James E. Fearn, Jr., and Peter Greenfield

of Legal Services Center (Seattle), for re-

spondents Green, et al.

This opinion was prepared by Justice Robert

C. Finley before his death. It is adopted by the

undersigned Justices as the opinion of this Court.

A-4

IN THE SUPREME COURT

OF THE STATE OF WASHINGTON

MICHAEL E. LINDSAY, RON

WATSON and DAVID L. DAY,

Plaintiffs,

WESLEY BRABANT, No. 43750

Appellant, EN BANC

)

THE CITY OF SEATTLE; ALLAN )

W. MUNRO, DONALD D. HALEY, )

ROBERT E. McGINTY, CIVIL )

SERVICE COMMISSIONERS, )

)

Respondents, )

)

ROBERT L. GREEN; and UNITED

CONSTRUCTION WORKERS

ASSOCIATION,

Respondents,

EMELIANO PONCE,

Respondent.

Filed Apr 8 1976

The central issue raised in this case is

whether the City of Seattle may adopt a system

or program for the employment of civil service

workers that gives special employment preference

or priority as to jobs to certain qualified

individuals solely because they are members of

minority groups.

Wesley Brabant, a civil service employee

with the City of Seattle, was passed over for

possible promotion to a foreman’s position in

the engineering department. Instead, Emeliano

Ponce, a Spanish surnamed minority eligible,

was chosen to fill the vacancy to further the

A-5

goals of the City’s "affirmative action program,"

which was designed to correct preexisting dis-

crimination and to equalize employment opportun-

ities in the City’s civil service. Brabant

brought suit against the City, alleging his

entitlement to promotion to the position which

had been given to Emeliano Ponce. The trial court

granted defendant’s motion for a summary judgment

and Brabant has appealed.

Brabant contends the trial court erred

in denying him relief because (1) selective

certification under Rule 7.03(j), Seattle Civil

Service Laws and Rules, violates the express

provisions of article 16, section 9, of the City

charter; (2) the selective certification violates

the fourteenth amendment to the United States

Constitution and Const. art. 1, sec. 3; (3) the

Commission lacks the authority to delegate to its

secretary the discretionary power to certify

eligible candidates for appointment; and (4) the

City’s affirmative action program goes beyond

existing federal or state requirements. we

disagree and affirm the trial court.

The parties have agreed and stipulated as

to the facts, which we recap as follows: On

August 25, 1972, the Mayor of Seattle issued an

executive order establishing an affirmative action

program. The goal of the program was "to increase

the number of underrepresented persons employed by

the City to correspond with their statistical

composition within the available working force of

the population” of Seattle. The City passed an

ordinance, approved by the Mayor on October 27,

1972, that provided for implementation of the

affirmative action program "to achieve equality of

City employment opportunities for members of

minority races. Under the ordinance, all City

departments were required to estabish and maintain

effective affirmative action programs until the

effects of inequality of employment opportunities

were eliminated. The Seattle engineering depart-

ment, on June 21, 1972, promulgated a departmental

policy statement that established as the goal of

A-6

that department the achievement of ratios of

minority employment “comparabl< to the ratios

of . . + minorities in the Seattle Community."

The department adopted as an emergency measure

during the years 1972-74 a rule that "the first of

every three vacancies resulting from retirement or

termination in under-represented classes will be

filled with appropriate minorities."

Article 16, section 9, of the Seattle City

Charter established the method by which the Civil

Service Commission shall certify available elig-

ible candidates to a department head for possible

employment by the City. Specifically, it provides

that, if the head of a department notifies the

Commission of a vacancy in an office classified

under article 16, the Commission is required

to certify to the appointing authority the top

five eligible candidates who have successfully

passed the civil service examination and are

available. In the alternative, the Commission is

required to certify the top 25 percent of the

available and eligible candidates on the register

if that number is more than the top five.

As a result of the emphasis placed on af-

firmative action in public employment and the

City’s awareness that its employee selection

procedures had discriminated against minorities,

the Commission adopted a special certification

procedure to further the goals of affirmative

action. Rule 7.03(4) allows selective certifi-

cation of "only the highest ranking eligibles” of

a particular minority when necessary to implement

the affirmative action program. A selective

certification of a minority eligible must be

requested by the department head, approved by the

secretary of the Commission, and by the director

of the City’s Department of Human Rights.

The plaintiff Brabant, a nonminority elig-

ible, took the City’s civil service examination

for the position of signal electrician foreman in

1969 and was placed on the promotional register of

eligibles fourth from the top with a grade of

A-7

88.58. In 1970, Brabant was appointed to an

intermittent vacancy in the engineering department

to serve as relief foreman when a regular foreman

was on vacation or sick leave.

Emeliano Ponce, a minority applicant, also

took and passed the promotional examination in

1969 and was placed on the register of eligibles

eighth from the top with a grade of 81.83. In

1972, he also was appointed to an intermittent

vacancy in the engineering department to serve as

a relief foreman.

On January 31, 1973, the engineering depart-

ment requested a selective certification to fill a

vacancy of signal electrician foreman. The

request for selective certification was approved,

and Ponce, who was not among the top five on the

eligible register at the time, was appointed by

the engineering department to fill the vacancy on

March l, 1973.

The City is an "employer" under Title 7 of

the Civil Rights Act of 1964, as amended, 42

U.S.C. sec. 2000e, et seq., and is subject to its

provisions. Section 2000e-2(a)(2) of the act

provides that it is an unlawful employment prac-

tice for an employer to

limit, segregate, or classify his employees

Or applicants for employment in any way

which would deprive or tend to deprive any

individual of employment opportunities or

otherwise adversely affect his status as an

employee, because of such individual’s

race, color, religion, sex, or national

origin.

Section 2000e-5(g) authorizes courts to “order

such affirmative action as may be appropriate" to

remedy the effects of unlawful employment prac-

tices. Alexander v. Gardner-Denver Co., 415 U.S.

36, 44, 39 L. Ed. 2d 147, 94 S. Ct. 1011 (1974).

Congress enacted Title 7 of the Civil Rights

A-8

Act of 1964

to assure equality of employment opportun-

ities by eliminating those practices and

devices that discriminate on the basis of

race, color, religion, sex, or national

origin. McDonnell-Douglas Corp. v. Green,

411 U.S. 792, 800 (1973); Griggs v.

Duke Power Co., 401 U.S. 424, 429-430

(1971). Cooperation and voluntary com-

pliance were selected as the preferred

means for achieving this goal.

Alexander v. Gardner-Denver Co., supra at 44.

Accord: Associated General Contractors of Mass.,

Inc., v. Altshuler, 490 F.2d 9, 15 (lst Cir. 1973)

cert. denied, 416 U.S. 957, __ Le Ed. 2d

94 S. Ct. 1971 (1974).

The City voluntarily has established a

program of affirmative relief and, in an effort to

comply with Title 7, has chosen selective certifi-

cation of qualified minority applicants as the

most efficacious means to eradicate the effects of

past discriminatory practices in its emp loyee

selection procedure.

That the City’s selection processes through

the civil service examinations administered in the

past have discriminated against minority appli-

cants is borne out by the record and statistical

information.

By affidavit dated September 7, 1973, Thomas

F. Hanley, secretary of the Civil Service Commis-

sion, stated that the Equal Employment Opportunity

Commission has formally charged the City with

unlawful employment practices in violation of

Title 7 of the 1964 Civil Rights Act, arising in

part because it "“administers unvalidated tests

which have the effect of eliminating a dispropor-

tionate number’" of minority persons. The formal

charge attached to the Hanley affidavit also

indicates that the City has maintained a seniority

system which operates to perpetuate the effects of

A-9

past discriminatory practices and procedures. The

affidavit further indicates that it will take the

City several years to validate all examinations

given for positions by the City’s civil service

department i.e., to determine whether the examina-

tions are designed to measure reliably an in-

dividual’s ability or capacity to perform a

particular job.

On October 20, 1971, the Civil Service

Commission, in conjunction with Rule 7.03(4),

Seattle Civil Service Laws and Rules, adopted a

resolution that the

civil service tests have had the effect, in

some cases, of discriminating against

minority applicants among those deemed

eligible for appointment .. . [and that

the] results [of the examinations] tend to

cause the minority applicants to be placed

at the lower end of the eligible registers

and therefore have little or no chance

of being employed.

The parties stipulated to the factual assertions

stated in the Civil Service Commission’s resolu-

tion.

By affidavit dated June 28, 1973, Philip

Hayasaka, the City’s director of the Department of

Human Rights, stated that in 1969 the City had

10,294 employees, 780 or 7.6 percent of whom were

members of minority races. The 1970 census,

according to the affidavit, indicated that of the

530,831 persons living in the City, 77,796 or 14.7

percent were minorities. The affiant stated that

the following statistics (compiled by the Depart-

ment in 1972) were considered by the Department of

Human Rights prior to its approval of the use of

selective certification in the instant case:

(1) of the three signal electrician foremen in

the engineering department, no one was of a

minority; (2) of the fifty foremen in th engineer-

ing department, three or 6 percent were minori-

ties; (3) of the 136 unskilled laborers in the

A-10

engineering department, fifty or 36.7 percent

were minorities; and (4) of the 10,630 persons

employed by the City, 1,359 or 12.7 percent were

minorities.

The statistical information in the record

indicates that the employee selection procedures

used by the City had, over a period of years,

created a substantially disproportionate level of

minority representation in public employment.

The statistical evidence raises an inference

that the racial imbalance is a result of dis~

criminatory examinations and practices. A prima

facie case of discrimination based on such evi-

dence is established. Rogers v. International

Paper Co., 510 F.2d 1340, 1348 (8th Cir. 1975);

United States v. Masonry Contractors Ass‘n of

Memphis, Inc., 497 F.2d 871, 875 (6th Cir. 1974);

Rodriguez v. East Texas Motor Freight, 505 F.2d

40, 55 (Sth Cir. 1974); Carter v. Gallagher, 452

F.2d 315, 323 (8th Cir. 1971), modified on re~

hearing en banc, 452 F.2d 327 (8th Cir.), cert.

denied, 406 U.S. 950, 32 L. Ed. 2d 338, 92 S.

Ct. 2045 (1972).

The test of the validity of employee selec-

tion procedures under Title 7 is comparable to the

test of their validity over the long run under

the Fourteenth Amendment. United States v.

Chesterfield County School Dist., 484 F.2d 70, 73

(4th Cir. 1973); see Castro v. Beecher, 459 F.2d

725, 733 (lst Cir. 1972). The test statutorily is

defined in 42 U.S.C. sec. 200%e-2(a) (2) which pro-

scribes classification of employees "in any way

which would deprive or tend to deprive any indi-

vidual of employment opportunities or otherwise

adversely affect his status as an employee,

because of such individual’s race « + + OF na~

tional origin." Thus, in the past, the City’s

prior discriminatory examinations and employee

selection procedures have violated the cons ti-

tutional rights of minority applicants. When

state or local officials have deprived a class of

individuals of their rights guaranteed by the

A-ll

equal protection clause of the Fourteenth Amend-

ment, the federal courts have 38

not merely the power but the duty to render

a decree which will so far as possible

eliminate the discriminatory effects of the

past as well as bar like discrimination in

the future.

Louisiana v. United States, 380 U.S. 145, 154, 13

L. Ed. 2d 709, 85 S. Ct. 817 (1965); accord

- Ct. NAACP

ve. Allen, 493 F.2d 614, 617, (Sth Cir. 1974);

Carter v- Gallagher, supra at 328.

In Griggs v. D Power Co 401 U.S

Griggs v. Duke e ° °S. 424,

430, 28 i. Ed. 24 158, 91 8. Ct. 849 (1971), the

United States Supreme Court stated:

Under the Act, practices, procedures,

or tests neutral on their face, and even

neutral in terms of intent, cannot be

maintained if they operate to "freeze"

the status quo of prior discriminatory

employment practices.

The effects of past discrimination tend to per-

petuate themselves because the resul ting inequali-

ties made new employment opportunities less

pov ene to minorities. Associated Gen. Con-

Factors of Mass., Inc. v. Altshuler, supra at 16;

See DeFunis v. Odegaard, 82 Wn.2d 11, 36, 507 P.2d

1169 (1973). Under Title 7, the obligation not te

discriminate does not allow indifference to

employment procedures outwardly neutral but

racially oriented. Opinion of the Attorney

General, 115 Cong. Rec. 40024 (1969).

Section 2000e-5(g) of the act v

the trial court broad equitable powers both ms

eliminate the vestiges of past discrimination

rn to terminate present discriminatory prac-

5 PT wee) States ve insavorkers Local 86, 443

. : th Cir. 1971), cert. denied 404

U.S. 984, 30 L. Ed. 2d 367, 92 S. Ct. 447 (1971).

Transitional affirmative relief authorized by

A-12

section 2000e-5(g) of the act to insure that

the continuing effects of past discrimination are

overcome not infrequently is both appropriate and

necessary. NAACP v. Allen, supra at 621; Morrow

v. Crisler, 491 F.2d 1053, 1056 (1974); Carter v.

Gallagher, supra at 330-31; Castro v. Beecher,

supra at 736. The fact that the City voluntarily

has sought to achieve equality of employment

opportunity in the public sphere rather than by

court order does not detract from or lessen the

legal validity and necessity of its affirmative

action program under Title 7. Voluntary com-

pliance, rather than court ordered relief, is the

congressionally preferred method of achieving

equality of employment opportunity.

Selective certification coupled with the

engineering department’s policy of filling the

first of every three vacancies with a qualified

minority candidate is not only appropriate, but

also essential to eradicate in the instant case

the present effects of past discrimination. Cf.

United States v. T.I.M.E.-D.C., Ince, 517 F.2d

299, 319, 320 (Sth Cir. 1975). It is not enough

that employment procedures utilized by employers

are fair in form. They must be fair in cpera-

tion. See Griggs v. Duke Power Co., supra at

431.

The ethics of our society would judge people

on their ability and their individualized worth.

But past discriminatory practices incongruent

with those same ethics and with the abstract,

idealistic perfection of a color-blind society,

envisioned by the Fourteenth Amendment, have left

minorities to varying degrees educationally and

economically disadvantaged.

It may seem somewhat anomalous, at first

glance, to aspire to equality by resorting to

preference or devices premised upon inequality,

namely relief in the form of temporary quotas.

Preferences are not alien to this society. It has

long been recognized that the need or merit of

certain individuals provides a politically and

A-13

economically justifiable basis for preferential

treatment. Kaplan, Equal Justice in an Unequal

World: Equality for the Negro--The Problem of

Special Treatment, 61 Nw. U.L. Rev. 363, 364-65

(1966). For example, veterans are given prefer-

ence in public employment; the handicapped,

quite deservedly, are accorded many advantages,

even to the extent of granting overtime parking

privileges to some. RCW 46.61.580.

; The thorny problem created by the use of

emporary quota relief is that this type o

preferential treatment may tend to become oo

nently institutionalized. Those minorities who

benefit may only reluctantly give up the economic

advantage that local, state and federal govern-

ments have given them. Nevertheless, the basis

and rationale for affirmative relief will dis-

appear when the vestiges of past discriminatory

effects substantially are eliminated. Morrow

v. Crisler, 479 F.2d 960, 971 (Sth Cir. 1973) (dis-

senting opinion); Blumrosen, Quotas, Common Sense,

and Law In Labor Relations: Three Dimensions

of Equal Opportunity, 27 Rutgers L. Rev. 675, 692

(1974); see Swann v. Charlotte-Mecklenbur Board

of Educ., 402 U.S. l, 31-32, 28 L. Ed. 2d 554,

91 S. Ct. 1267 (1971); NAACP v. Allen, supra

at 621; Carter v. Gallagher, Supra at 330.

Affirmative relief is designed to eliminate

discrimination, but statistical perfection is not

required. Once a fair approximation of minority

representation in city employment consistent with

the population mix in the arEa is achieved,

affirmative relief is no longer necessary or

appropriate. See Swann v. Charlotte-—Mecklenbur

Board of Educ., Supra at 31-32; Carter v. Gal-

lagher, supra at 330.

In the absence of Rule 7.03(4j) (Seattle

Civil Service Laws and Rules), article 16, section

9 of the City charter would impair or frustrate

the purpose of Title 7 of the 1964 Civil Rights

Act. The examinations used by the City to rank

applicants for certification, as reflected by the

record, have created in the past a substantial

A-14

racial imbalance. There is no reason to suppose

that these same examinations, until validated or

shown to be job-related, will not continue to

perpetuate discrimination in the City’s public

employment sector. State and local laws cannot

stand if they impede, burden or frustrate the

purpose of Title 7. See Nash v. Florida Indus.

Comm’n, 389 U.S. 235, 240, 19 L. Ed. 2d 438, 88 S.

Ct. 362 (1967); Hsieh v. Civil Serv. Comm’n, 79

Wn.2d 529, 536, 488 P.2d 515 (1971). If it were

not for the presence of Rule 7.03(4), article 16,

section 9 of the City charter would violate the

supremacy clause of the United States Constitution

(U.S. Const. art. 6, clause 2). We hold that the

conflict between article 16, section 9 of the

City charter and Rule 7.03(j) of the Seattle Civil

Service Laws and Rules is excused because of the

overriding provisions of Title 7 of the Civil

Rights Act of 1964.

Plaintiff next contends that the selective

certification made in the instant case is viola-

tive of equal protection and due proces guaran-

tees. This contention need not be considered.

Although the trial court in a judgment entitled

"Summary Judgment of Dismissal" stated that under

the Fourteenth Amendment the "City of Seattle has

a legal duty to take affirmative action," the

parties submitted an agreed statement of stipu~

lated facts and issues of law to the trial court

in which they agreed that “there is no constitu-

tional question of equal protection of the laws

and due process presented." It is apparent that

the trial court did not consider the issue whether

selective certification in the instant case

violates the Fourteenth Amendment to the United

States Constitution and article 1, section 3 of

the Washington State Constitution. Under familiar

principles of law, issues not considered by the

trial court need not be considered on appeal.

Kirkland v. New York State Department of

Correctional Services, 520 F.2d 420 (2d Cir.

1975), cited by plaintiff, is distinguishable even

if we were to address the issue raised by this

A-15

contention. There the court reversed a district

court order which required the imposition of

promotion quotas based upon the results of one

civil service examination. The court concluded

that the imposition of permanent quotas to eradi-

cate the effects of past discriminatory practices

was unwarranted because of the "paucity of the

proof concerning past discrimination." We are not

faced with that situation in the instant case.

Plaintiff next contends that the Commission

lacks the authority to delegate to the secretary

the discretionary power vested in it by article

16, section 9 of the City charter to certify

eligible candidates for appointment. In Barry &

Barry, Inc. v. Department of Motor Vehicles, 81

Wne2d 155, 159, 500 P.2d 540 (1972), the court

held that the delegation of legislative power is

justified (1) when it can be shown that the

legislature has provided standards which define in

general terms what is to be done and the adminis-

trative body which is to accomplish it, and (2)

when procedural safeguards exist to control

arbitrary administrative action and abuse of

discretionary power.

Article 16, section 4 of the City charter

provides that the Commission shall meke "rules

to carry out the purposes of this article, and

for examinations, appointments, promotions, .. .

and for seniority, transfers, demotions and

removals." Article 16, section 15, provides that

the secretary is to be the chief examiner and is

to "perform such other duties as the Commissin may

prescribe." Rule 7.03(c)(1) of the Seattle Civil

Service Laws and Rules provides:

If a vacancy is to be filled from a

promotional register, the Secretary shall

certify to the appointing authority the

names of the five available eligibles or

25% of the total available eligibles,

whichever is greater, who stand highest on

the appropriate register...

A-16

In order to make a selective certification under

Rule 7.03(4), a request in writing must be made

by the appointing authority to the secretary

that selective certification is necessary in

order to implement the affirmative action program;

and the secretary must determine that the reasons

given fully justify the request. Rule 2.05(a)

provides that the Commission may on its own

motion review or modify any action or decision of

the secretary. Rule 2.05(b) also provides that

any person adversely affected by any action or

decision of the secretary may request the Commis-

sion to revise or modify such action or decision.

These standards or guidelines carefully define

what is to be done by the secretary and that he is

vested with the obligation to make the certifi-

cations. Finally, procedural safeguards exist

which allow either the Commission or the indi-

vidual adversely affected by the secretary’s

action to review or to request a hearing by

the Commission to revise or modify any action or

decision. We are convinced that the conditions

outlined in the Barry case are met in the instant

case and that the challenged delegation of legis-

lative power is valia.

Plaintiff finally contends that the City’s

affirmative action program is overly broad under

existing federal or state requirements. It

is contended that a joint policy statement issued

by the Equal Employment Opportunity Commission,

and the Department of Labor’s Office of Federal

Contract Compliance does not allow an affirmative

action program to subordinate

considerations of relative abilities

and qualifications . . . to considerations

of race, religion, sex or national origin

in determining who is to be hired, ... in

order to achieve a certain numerical

position [because such a program] has the

attributes of a quota system which is

deemed to be impermissible under the

standards set forth.

A-17__

Joint Policy Statement, March 23, 1973.

The policy statement specifically recognizes

that “goals and timetables are in appropriate

circumstances a proper means for helping to

implement the nation’s commitments to equal

employment opportunities through affirmative

action programs." A goal is defined to be a

realistic numerical objective fixed in relation to

the number of expected vacancies and the number of

qualified applicants available in the relevant

labor pool. A goal, as opposed to an absolute

quota or preference, does not subject an employer

to sanction. An employer is not expected to

displace existing employees or to create unneeded

positions to meet his goal. An employer is never

required to hire an unqualified applicant. None

of the characteristics of an absolute quota or

preference is present in the instant case. See

Jones, The Bugaboo of Employment Quotas, 1970 Wis.

Le. Rev. 341, 378; Comment, Developments in the

Law: Employment Discrimination and Title VII of

_ the Civil Rights Act of 1964, 84 Harv. L. Rev.

1109, 1301 (1971); cf. Opinion of the Attorney

General, 115 Cong. Rec. 44024 (1969); see also

Blumrosen, Strangers in Paradise: Griggs v. Duke

Power Co. and the Concept of Employment Discrimi-

nation, 71 Mich. L. Rev. 59, 102-06 (1972). In

fact, several courts have required affirmative

hiring relief by public agencies that have engaged

in employment practices which have been shown to

have a racially discriminatory impact. See, e.g.,

Morrow v. Crisler, 421 F.2d 1053 (5th Cir. 1974);

Vulcan Soc. of New York City Fire Dept., Inc. v.

Civil Serv. Comm’n, 490 F.2d 387 (2d Cir. 1973);

Bridgeport Guardians, Inc. v. Members of the

Bridgeport Civil Serv. Comm'n, 482 F.2d 1333 (2d

Cir. 1973); Castro v. Beecher, 459 F.2d 725 (lst

Cir. 1972); Carter v. Gallagher, 452 F.2d 315 (8th

Cir. 1971), modified on rehearing en banc, 452

F.2d 327 (8th Cir.), cert. denied, 406 U.S. 950,

32 Le Ed.2d 338, 92 S. Ct. 2045 (1972).

With respect to state guidelines, WAC

A-18

162-18-040(2) specifically recognizes that

selective certification may be the only effective

method for a public employer to implement an

affirmative action program. Where the legislature

specifically delegates to an administrative agency

the power to make rules, there is a presumtpion

that such rules are valid, and the burden is upon

the person asserting the invalidity to prove that

the administrative agency abused its discretion in

adopting the rule. Weyerhaeuser Co. v. Department

of Ecology, 86 Wn.2d 310, 314, __ pe2d ___

(1976). Plaintiff provides no evidence to support

his contention, and we find that it lacks merit.

The judgment of the trial court should

be affirmed. It is so ordered.

WE CONCUR:

LAC 162-18-040(2) provides, in part:

"The purpose of a corrective employment

program is to include persons of the underrepre~

sented protected class into the employment pro-

cess; not to exclude others from it. . . . It is

permissible to ask for applications of only the

underrepresented protected class of persons from a

particular source, or at 4 particular time, if

other applicants are not excluded from the total

hiring process but have access from another

source, or are considered at another time.”

APPENDIX B

IN THE SUPERIOR COURT

OF THE STATE OF WASHINGTON

FOR KING COUNTY

MICHAEL E. LINDSAY, RON

WATSON and DAVID L. DAY,

Plaintiffs,

WESLEY BRABANT, NO. 757 364

Plaintiff in

Intervention,

SUMMARY JUDGMENT

OF DISMISSAL

VS. Copy Received

Oct. 1, 1973

CITY OF SEATTLE, ALLAN W. Siderius, Lonergan &

MUNRO, DONALD D. HALEY, Crowley

SERVICE COMMISSIONERS, Received

Oct. 1, 1973

Defendants, Legal Services

Center

ROBERT L. GREEN and Central Area

UNITED CONSTRUCTION Office

WORKERS ASSOCIATION,

Defendants in

Intervention,

EMILIANO PONCE,

Additional

)

ROBERT E. McGINTY, CIVIL )

)

Defendant. )

THIS MATTER came on before the undersigned

Judge for hearing on the motions for summary

judgment of plaintiff in intervention (13)*

and of defendants (36) on September 10, 1973.

* Clerk’s sub-number

A-20

The complaint of the original plaintiffs (1)

was filed on or about September 25, 1972, alleg-

ing that their rights to City employment or

promotion had been violated by the failure of

the City and its Civil Service Commission to

certify eligibles for vacancies in accordance

with the procedure provided in Article XVI,

Section 9 of the Charter of The City of Seattle.

Defendants filed their answer (6) on December 19,

1972 denying the essential allegations of the

complaint. Thereafter all of the original

plaintiffs were employed or promoted by the

City, rendering their complaint moot, and the

action was dismissed as to them on March 15,

1973 (12). However, plaintiff in intervention’s

(Brabant) motion to intervene (8) was granted

by agreement (9) and his complaint in inter-

vention (10) was filed on or about March 14,

1973, alleging that his rights were violated

by the Civil Service Commission’s action in

refusing to certify his name for a vacancy of

Signal Electrician Foreman and in certifying

only one name, that of Emiliano Ponce, to the

appointing authority for the position. The

certification of only Ponce’s name to the

appointing authority, even though he ranked

below plaintiff in intervention on the eligible

"selective certification" because Ponce was

a member of an underrepresented minority race.

Defendants in intervention were allowed

to intervene (21) in the matter by agreement of

all parties pursuant to motion (17), supported

by an answer in intervention (19) and the

affidavit of Harley Bird alleging the interest

of Robert L. Green in possible city employment

through selective certification.

Plaintiff moved for summary judgment (13)

and noted it for the Motion Calendar for July 29,

1973 (14). The matter was continued by the

Court to September 10, 1973, and several pre-

trial conferences were held to establish the

facts of the case by affidavit or agreement,

A-21

and to define and narrow the issues to be re-

solved. Emiliano Ponce was ordered named as

an additional defendant (25) and served with

Summons and complaint. On August 10, 1973

Mr. Ponce filed an acknowledgment of service

and a declaration of his intention not to em

ploy an attorney in the case (28).

On September 10, 1973 the parties sub-

mitted an agreed Statement of Stipulated Facts

and Issues of Law to the Court (34). The City

also filed its motion for summary judgment (36)at

the prior suggestion of the Court, and plaintiff

and defendants in intervention orally waived the

lack of timeliness of said motion. The Court then

heard argument of counsel, and in addition to the

foregoing considered the following papers filed

in the case:

Document Title Be cnchl

Complaint in Intervention 10

Answer (of City defendants) 6

Answer in Intervention 19

Affidavit of Wesley Brabant in

Support of his Motion for

Summary Judgment ll

Affidavit of Thomas F. Hanley 15

Affidavit of Philip Y. Hayasaka 16

Affidavit of Harley Bird 19

Affidavit of C. R. Lonergan, Jr. 23

Affidavit of John F. Fenton 31

Affidavit of Thomas F. Hanley 29

A=-22

Clerk’s

Document Title (Cont“d) Subnumber

Affidavit of Thomas F. Hanley 32

Third Affidavit of Thomas F. Hanley 33

Statement of Stipulated Facts and Issues

of Law 34

Brief in Support of Motion [of UCWA and

Green] to Intervene 18

City’s First Brief on Summary Judgment 22

Memorandum on Motion of Plaintiff for

Summary Judgment 24

Memorandum on Motion for Plaintiff

Summary Judgment by Defendant in

Intervention 27

City’s Second Brief on Summary Judgment 30

Memorandum of Plaintiff in Intervention

in Answer to Defendant City, etc. 35

Charter of the City of Seattle --

The Court concluded from the records and

files and arguments that:

l. Under Amendment 14 of the United States

Constitution and Title VII of the Civil Rights

Act of 1964, as amended (42 U.S.C.A. secs. 2000(e)

et seq.), and Executive Order 11246, as amended,

The City of Seattle has a legal duty to take

affirmative action to eliminate the effects of

past racial discrimination in City emp loyee

selection processes and to prevent such racial

discrimination from occurring in the future.

2. While Civil Service Commission Rule

7.034 is in apparent conflict with Article XVI,

Section 9 of the Charter of The City of Seattle,

A-23

said conflict is excused by the overriding pro-

visions of federal law referred to in the pre-

ceding paragraph.

3. Rule 7.034 does not constitute an illegal

delegation of discretionary authority from the

Civil Service Commission to its Secretary.

4. That portion of the affirmative action

program of the Engineering Department by which

the first of every three vacancies created by

retirement or resignation will be filled with a

minority application who has passed the required

civil service examination does not constitute

the adoption of a quota system, but is rather

a tool to accomplish the legitimate goals of

said program within the timetable established

to reach such goals.

5. Selective certification is lawful in

connection with promotional eligible registers

because the opportunities for minorities on

promotional registers are probably even more

limited than on open competitive eligible regi-

sters.

6. The existence of other methods of taking

affirmative action to eliminate the effects of

past and present discrimination does not preclude

the use of selective certification.

7. The fact that the duty to take affirma-

tive action was recognized voluntarily by The

City of Seattle, rather than being imposed by

judicial mandate, is immaterial.

8. The elimination of the effects of past

and present discrimination is a legitimate public

purpose, and selective certification is a reason-

able and effective means of accomplishing such

purpose.

9. The City of Seattle has satisfied the

burden of shewizg the necessity for taking

A-24

affirmative action to eiminate the effects of

past and present discrimination in its employees

selection processes; and a showing that the

City’s civil service tests have had the effect,

in some cases, of discriminating against minority

applicants among those deemed eligible for

appointment in accordance with provisions of

charter Article XVI, Section 9, as determined

by the results of those examinations, and that

said results tend to cause the minority appli-

cants to be placed at the lower end of the

eligible registers and therefore to have little

or no chance of being employed, is sufficient

in such connection.

Now, Therefore, it is

ORDERED, ADJUDGED AND DECREED that plain-

tiff’s motion for summary judgment be, and it is

hereby denied; and it is

FURTHER ORDERED, ADJUDGED AND DECREED that

defendants’ motion for summary judgment of dis-

missal be, and it is hereby, granted, and the

complaint is hereby dismissed with prejudice

and without costs to any party.

DONE IN OPEN COURT this 5 day of

October, 1973.

/s/ Ringold

JUDGE

Presented by:

GORDON F. CRANDALL

Of Counsel for Defendants

Copy received, approved

as to form:

A-25

APPENDIX C

IN THE SUPERIOR COURT

OF THE STATE OF WASHINGTON

FOR KING COUNTY

MICHAEL E. LINDSAY, RON ]

WATSON and DAVID L. DAY, ]

]

Plaintiffs, ]

]

WESLEY BRABANT, ] NO. 757 364

)

Plaintiff in ] COMPLAINT IN

Intervention, ) INTERVENTION

]

v8. ] Copy Received

] Mar. 15, 1973

CITY OF SEATTLE, ALLAN W. ] A.L. Newbould,

MUNRO, DONALD D. HALEY, ] Corporation

ROBERT E. McGINTY, CIVIL ) Counsel

SERVICE COMMISSIONERS, )

] Filed

Defendants, ] °73 Mar 19 PM 3:46

COMES NOW the plaintiff and for cause of

action alleges as follows:

Plaintiff is a resident of Seattle, King

County, Washington.

II.

In response to advertisements issued by

the defendant announcing a “promotional” examina-

tion for the Civil Service position of signal

electrician foreman, plaintiff applied for and

took the examination. A copy of said announcement

is attached hereto., marked Exhibit "A", and

incorporated herein by reference.

A-26

III.

Thereafter plaintiff was notified that he

had passed the examination and his name was placed

upon the eligible register for signal electrician

foremen.

IV.

Section 8, Article XVI, Seattle City Charter,

requires the defendants to rank candidates who

pass Civil Service examinations upon eligible

registers for the position examined for, in

the order of their excellence, as determined in

said examinations.

At all times herein, Article XVI, Section

9, of the City Charter of the City of Seattle,

provides in part as follows:

", « «+ mumber of candidates, not less than

five if there shall be so many eligible,

standing first upon the register for the

class or grade to which such position belongs

as shall be equal to twenty-five percent of

the total number of candidates on said

VI.

The defendants, in violation of the pro-

visions of the City Charter as referred to above,

did on or about March lst purport to certify an

individual for the position of signal electician

foreman the name of Ponce, whose true Christian

name is unknown to plaintiff. The defendants

refused to certify plaintiff’s name although

plaintiff ranked second on the list at the time of

said certification. Said Ponce ranked last on

said eligible register, and the defendants refused

to certify any other names than said Ponce’s for

consideration for the appointment to the position.

A-27

VII.

Plaintiff spent considerable time preparing

for said examination and defendants” action in

refusing to certify his name was wholly beyond

defendants” authority and in violation of the

Constitution of the State of Washington and the

United States of America in that it discriminated

against plaintiff, and further, that actions

of said defendants are in violation of the City

Charter and the authority confered upon the Civil

Service Commissioners of the City of Seattle, and

that said actions of the defendants should be

nullified and enjoined and the defendants should

be required to nullify the appointment of said

Ponce made in violation of said provisions.

WHEREFORE, plaintiff prays for judgment,

declaring the actions of the defendants herein-

before referred to to be wholly illegal and of no

effect whatsoever, and that the defendants be

enjoined from certifying any employees appointed

to positions in the Civil Service of the City of

Seattle except in the manner prescribed by Article

XVI, Section 9, of the City Charter; and that the

defendants be required to make proper certifica-

tion for the position of signal electrician

foreman, and for such other further relief as the

Court may deem equitable in the premises.

/s/ C.R. Lonergan, Jr.

C.R. Lonergan, Jr.

STATE OF WASHINGTON]

) ss.

County of King ]

WESLEY BRABANT, being first duly sworn,

upon oath deposes and states: I am the plaintiff

in intervention in the foregoing cause; I have

read the above complaint, know the contents

thereof and believe the same to be true.

ls/ Wesley M. Brabant

Wesley Brabant

A-28

SUBSCRIBED AND SWORN TO before me this 9th _ day

of March, 1973.

/s/ Helsie I. O’Brien

NOTARY PUBLIC in and for the

State of Washington, residing

at Seattle

A-29

APPENDIX D

IN THE SUPERIOR COURT

OF THE STATE OF WASHINGTON

FOR KING COUNTY

MICHAEL E. LINDSAY, RON

WATSON and DAVID L. DAY,

Plaintiffs, NO. 757 364

ANSWER

VSe

Copy Received

Dec. 19, 1972

CITY OF SEATTLE, ALLAN W. Siderius, Lonergan &

MUNRO, DONALD D. HALEY, Crowley

ROBERT E. McGINTY, CIVIL

SERVICE COMMISSIONERS, Filed |

*72 Dec 19 PM 4:52

Defendants,

Comes now defendaats and for their answer

the the Complaint, admit, deny and allege as

follows:

Defendants admit Paragraph I.

Il.

Defendants admit Paragraph II, except the

allegation regarding reliance of which defendants

lack sufficient knowledge to form a belief and

therefore deny the same.

IIl.

Defendants admit Paragraph III.

IV.

Defendants admit Paragraph IV.

A-30

Defendants admit Paragraph V.

VI.

Defendants admit Paragraph VI except the

allegation that the acts alleged violate the

City Charter, which is denied.

VII.

Defendants deny Paragraph VII.

VIII.

Defendants deny Paragraph VIII.

IX.

DEFENDANTS ALLEGE AFFIRMATIVELY that on

October 2, 1971 the Civil Service Commission

of the City of Seattle adopted the following

resolution:

"Whereas, civil service tests have had

the effect, in some cases, of discriminating

against minority applicants among those

deemed to be eligible for appointment in

accordance with provisions of Charter

Article XVI, Section 9, as determined by

the results of those examinations, and;

"Whereas, said results tend to cause

the minority applicants to be placed at the

lower end of the eligible registers and

therefore to have little or no chance of

being employed, and;

"Whereas, said results deny these same

minorities the equal protection of the laws

guaranteed to all persons by the 14th Amend-

ment to the Constitution of the United

States;

A-31_

"Be It Resolved that Rule 7.03 Certifica-

tion be amended by adopting a new section

j-"

"j. Where a certification of eligibles

other than in the normal order is

requested in writing by the appointing

authority as being necesssary to

implement the Affirmative Action

Program of the City of Seattle by

achieving ratios of minority employees

in all classifications of city employ-

ment approximately equal to the

ratios of these same minorities in the

Seattle community, and the Secretary

determines that the reasons given

fully justify the request, a certifi-

cation may be made of only the highest

ranking eligibles of the particular

race, creed, color, national origin or

sex designated in the request.

Xx.

That on August 25, 1972 the Mayor of The City

of Seattle issued an executive order establishing

an affirmative action program for city employment,

which provided in part that -

"The goals of this affirmative action program

shall be to increase the number of underrep-

resented persons employed by the City to

correspond with their statistical composition

within the available working force of the

population of The City of Seattle."

and ordered or requested each department of

the City to -

"Instruct all staff in hiring responsibili-

ties that underrepresented persons are to be

sought for appointments and that Civil

Service selective certification procedures

are available for use to this end."

A-32

XI.

That The City of Seattle is required by the

federal Civil Rights Act of 1964, as amended, and

by Executive Order 11246, as amended, to take

reasonable, affirmative action to remove or

overcome the consequences of prior discriminatory

practices or usage in order to accomplish the

purposes of said Act.

WHEREFORE, defendants pray that the complaint

be dismissed with prejudice and with costs.

DATED this 18 day of December, 1972.

_/s/ A. L. Newbould

A. Le NEWBOULD, Corporation

Counsel

/s/ Gordon F. Crandall

GORDON F. CRANDALL, Assistant

Attorneys for Defendants

A-33

APPENDIX E

IN THE SUPERIOR COURT

OF THE STATE OF WASHINGTON

FOR KING COUNTY

MICHAEL E. LINDSAY, RON

WATSON and DAVID L. DAY,

Plaintiffs,

WESLEY BRABANT, NO. 757 364

Plaintiff in AFFIDAVIT OF

Intervention, THOMAS F. HANLEY

CITY OF SEATTLE, ALLAN W.

MUNRO, DONALD D. HALEY,

ROBERT E. McGINTY, CIVIL

SERVICE COMMISSIONERS,

Filed

°73 Jun 26 PM 4:56

meee ee ee ee ee

Defendants,

STATE OF WASHINGTON )

) ss.

COUNTY OF KING )

THOMAS F. HANLEY, being first duly sworn,

on oath deposes and says:

That he is the Secretary of the Civil Service

Commission of The City of Seattle, and makes

this affidavit from his own personal knowledge and

information and is competent to testify hereto.

That on October 20, 1971, the Civil Service

Commission of The City of Seattle adopted the

following resolution:

"Whereas, civil service tests have had

the effect, in some cases, of discriminating

against minority applicants among those

deemed to be eligible for appointment in

A-34

accordance with provisions of Charter Article

XVI, Section 9, as determined by the results

of those examinations, and;

"Whereas, said results tend to cause the

minority applicants to be placed at the lower

end of the eligible registers and therefore

to have little or no chance of being em-

ployed, and;

"Whereas, said results deny these same

minorities the equal protection of the laws

guaranteed to all persons by the 14th Amend-

ment to the Constitution of the United

States;

"Be it Resolved that Rule 7.03 Certifica-

tion be amended by adopting a new section

"4. Where a certification of eligibles

other than in the normal order is

requested in writing by the appointing

authority as being necessgsary to

implement the Affirmative Action

Program of the City of Seattle by

achieving ratios of minority employees

in all classifications of city employ-

ment approximately equal to the

ratios of these same minorities in the

Seattle community, and the Secretary

determines that the reasons given

fully justify the request, a certifi-

cation may be made of only the highest

ranking eligibles of the particular

race, creed, color, national origin or

sex designated in the request."

That on March 4, 1969, the Civil Service

Commission advertised a promotional examination

for Signal Electrician Foreman. Exhibit "A,"

attached, is the official advertisement of the

examination.

Wesley M. Brabant (Brabant) filed an applica-

tion, took and passed the exam, and was placed in

A-35

the promotional register of eligibles for that

class in grade order, fourth from the top. A copy

of the register is attached as Exhibit "B". On

April 23, 1969, Brabant’s name was certified to

the Engineering Department in response to a

request for the top five names to fill a vacancy.

Another man, Joseph Sherman, was appointed.

Brabant was subsequently appointed on April 1,

1970 to an intermittent vacancy in the Engineering

Department to serve as relief foreman when regular

foremen were on vacation or sick leave, and he has

served in that position from time to time.

Emeliano Ponce (Ponce) also applied for,

took and passed the promotional examination and

was placed on the promotional register of eli-

gibles for that class in grade order, eighth from

the top. (See Exhibit "B"). On March 6, 1972,

Ponce was also appointed to an intermittent

vacancy in the Engineering Department to serve as

relief foreman when regular foremen were on

vacation or sick leave, and he has served in that

position from time to time.

On January 31, 1973, the Engineering Depart-

ment initiated a request to the Civil Service

Commission for a selective certification of

minority persons to fill onc vacancy of Signal

Electrician Foreman. The request stated that the

request was made "to assist in the furtherance of

our Affirmative Action Program in this class.

Rule 7.03 j. We have 3 Signal Electrician Foreman

(sic) in the Department none of which are minor-

ity." The request for certification is attached

as Exhibit "C". The request was routed through

and approved by the Office of Management and

Budget and the Human Rights Department, together

with a "Request to Fill Position” (Exhibit "D"),

and was received by the Civil Service Commission

on February 2, 1973. The Commission certified the

only minority name on the register of eligibles,

which was Ponce. (See Exhibit "C"). On March l,

1973 the Engineering Department appointed Ponce to

the vacancy.

A-36

The Engineering Department now has four

Signal Electrician Foreman positions, and there is

one additional position of this class in the

General Services Department, which is filled by

Robert McCurdy, a minority person.

s/ Thomas F. Hanle

THOMAS F. HANLEY

SUBSCRIBED AND SWORN to before me this 26th

day of June, 1973.

/s/ T. W. Listow

Notary Public in and for

the State of Washington,

residing at Seattle.

COPY RECEIVED

June 26, 1973

Siderius, Lonergan & Crowley

A-37_

APPENDIX F

IN THE SUPERIOR COURT

OF THE STATE OF WASHINGTON

FOR KING COUNTY

MICHAEL E. LINDSAY, RON

WATSON and DAVID L. DAY,

Plaintiffs,

WESLEY BRABANT, NO. 757 364

Plaintiff in ANSWER IN

Intervention, INTERVENTION

vs. Copy Received

July 5, 1973

Siderius, Lonergan &

Crowley

CITY OF SEATTLE, ALLAN W.

MUNRO, DONALD D. HALEY,

ROBERT E. McGINTY, CIVIL

SERVICE COMMISSIONERS, Copy of Within

Received

July 5, 1973

A. L. Newbould,

Corporation Counsel

Defendants,

ROBERT L. GREEN and

UNITED CONSTRUCTION

WORKERS ASSOCIATION,

Defendants in

Intervention.

a ee ee ee ee

COME NOW intervenors Robert L. Green and

United Construction Workers Association (herein-

after U.C.W.A.) and as a defense for which inter-

vention is sought allege as follows:

Intervenors Green and U.C.W.A. incorporate

by reference paragraphs I through XI of Defen-

dants” Answer.

By Way of defense and for cross and counter-

claim, Intervenors Green and U.C.W.A. allege

A-38

affirmatively that:

II.

U.C.W.A. is a non-profit association organ-

ized in June, 1970 for the purpose of promoting

equal employment opportunities. On April 6, 1972,

said association entered into an agreement with

the Department of Lighting of Defendant City of

Seattle (hereinafter referred to as “the Depart-

ment) in which a commitment was made to institute

a specified affirmative action program for the

purpose of increasing the number of its minority

emp loyees. A true copy of the agreement is

attached as Exhibit A.

III.

Pursuant to its agreement, a memorandum

was issued by the Department setting forth its

pledge, objectives and policy with regard to

implementing the affirmative action plan. A true

copy of its memorandum is attached as Exhibit

IV.

In its memorandum, it was recognized by

the Department of Lighting that affirmative

action was necessary "to correct the racial

imbalance of the department work force."

U.C.W.A. is informed and believes that

the agreement and the memorandum implementing it

are part of a larger program instituted by the

defendants herein (as more particularly described

in paragraphs IX through XI of their answer) to

insure that artificial barriers are not created

which have the effect of excluding members of

minority groups from employment by the city.

VI.

As part of that program and in order to

A-39

fulfill its agreement with U.C.W.A., the defen-

dants rely upon a process of "selectively certify-

ing" for employment members of underrepresented

groups who have taken and passed relevant civil

service examinations, for placement in those

departments when there is found to be a racially

imbalanced work force. Provision for this pro-

cedure is set forth in paragraphs IX and X of

defendants” answer.

VII.

U.C.W.A. has placed many members of minority

groups, including its own members, in jobs, as a

direct result of the agreement and affirmative

action program of which it is a party and which is

challenged herein.

VIII.

Intervenor Robert L. Green is a member of

a minority group by virtue of his being a Black

American. He is also a member of U.C.W.A.

IX.

As a result of the agreement between U.C.W.A.

and the Department of Lighting of Defendant City

of Seattle and the city’s affirmative action

plan, he was hired by said Department on a pro-

visional basis in May of 1972. He took the

relevant Civil Service Exam for his job in July of

1972. Except for a period in which he recuperated

from an injury incurred on the job, he continued

in the employ of the Department of Lighting until

December 15, 1972 when he was laid off due to the

phasing out of his job.

Subsequent to his lay-off, intervenor Green’s

name was placed upon the eligible Civil Service

of Lighting.

A-40

XI.

Intervenor Green believes that he has been

and will be benefited by the Defendants” affirma-

tive action program which is challenged in this

action.

XII.

The intervenors believe that so long as

the defendants utilize Civil Service Examinations

and conform to the requirements of Article XVI,

section 9 of the City Charter, the employment of

members of minority groups will be substantially

prevented, resulting in a racially imbalanced work

force. Failure to adopt the actions herein

described and challenged will result in failure of

defendants to satisfy the standards imposed by

relevant laws which prohibit discrimination

on the basis of race, creed, color, national

origin and sex.

XIII.

The intervenors believe that this action

constitutes an interference with their contractual

relations with the defendants and that either a

negotiated settlement or judgment herein will

render impossible performance of the duties and

obligations owed them under the agreement between

U.C.W.A. and the City of Seattle.

XIV.

Intervenor Green believes that invalidation

of the city’s affirmative action program, as

requested herein by the plaintiff will exclude him

from employment with the city.

UPON THE ABOVE allegations, intervenors

Green and U.C.W.A. cross and counterclaim as

follows:

XV.

FOR A FIRST CLAIM, the intervenors seek

to enforce their rights under a contract with the

A-41_

named defendants to which they are a party and

third party beneficiary.

XVI.

FOR A SECOND CLAIM, the intervenors seek

to prevent the interference with their contractual

relationship with the defendant that is the

necessary product of this suit.

XVII.

FOR A THIRD CLAIM, the intervenors seek to

enforce their rights under Title VII of the 1964

Civil Rights Act, 42 U.S.C. 2000e et seq. which

prohibits discrimination against members of a

minority group on account of their race, color and

national origin in their attempts to secure

employment opportunities.

XIX.

FOR A FOURTH CLAIM, the intervenors seek

to enforce their rights under the Civil Rights

Act, 42 U.S.C. sec. 1981, namely “the same right

+ « « to make and enforce contracts, and to the

full and equal benefit of all laws and proceedings

for the security of persons and property as is

enjoyed by white citizens... ."

XX.

FOR A FIFTH CLAIM, the intervenors seek

to enforce their rights to the equal protection

of the laws guaranteed by the Fourtheenth Amend-

ment of the United States Constitution and Article

I, section 12 of the Washington Constitution.

XxI.

FOR A SIXTH CLAIM, the intervenors seek

to enforce their rights under the Civil Rights

Act, 42 U.S.C. 1983, which prohibits the depri-

vation of any rights, privileges or immunities

secured by the Constitution and laws of the United

States.

A-42

WHEREFORE, the defendants in intervention

respectfully pray:

l. That the complaint of the plaintiff

be dismissed with prejudice and with costs.

2. That an order be entered requiring,

defendants City of Seattle, Munro, Haley and

McGinty to specifically perform the terms and

conditions of the agreement entered into by

U.C.W.A. and the Department of Lighting of the

City of Seattle.

3. That this court enter a judgment declar-

ing this action to be in interference with the

rights of intervenors under the agreement entered

into by U.C.W.A. and the Department of Lighting

and dismissing this action accordingly.

4. That an order be entered requiring

defendants City of Seattle, Munro, Haley and

McGinty to comply with the standards imposed by

relevant laws cited herein which prohibit disc-

rimination in employment on the basis of race,

color, creed, national origin and sex.

Respectfully submitted,

/s/ James B. Fearn, Jr.

JAMES E. FEARN, JR.

/s/ Stephen M. Randels

A-43

APPENDIX G

IN THE SUPERIOR COURT

OF THE STATE OF WASHINGTON

FOR KING COUNTY

MICHAEL E. LINDSAY, RON

WATSON and DAVID L. DAY,

Plaintiffs,

WESLEY BRABANT, MO. 757 364

Plaintiff in ANSWER IN

Intervention, INTERVENTION

VSe

MUNRO, DONALD D. HALEY,

ROBERT E. McGINTY, CIVIL

SERVICE COMMISSIONERS,

Defendants,

ROBERT Le. GREEN and

UNITED CONSTRUCTION

WORKERS ASSOCIATION,

Defendants in

)

CITY OF SEATTLE, ALLAN W. )

)

Intervention. _)

STEPHEN M. RANDELS

Attorneys for Defendant

Intervenors Green and U.C.W.A.

The undersigned hereby stipulate to the

following facts:

l. The City of Seattle is a city of the first

class, governed by the Charter of The City of

Seattle.

2. That the City of Seattle is an "employer"

under Title VII of the Civil Rights Act

of 1964, and subject to the duties of an

employer fixed by that act to refrain from

A-44

engaging in racial discrimination in employ-

ment, and to take affirmative action to

eliminate the effects of past discrimination.

That The City of Seattle is a contractor

with the United States for millions of

dollars of federal financial assistance and

as such is obligated by Executive Order

11246, as amended, to take affirmative action

to avoid and eliminate racial discriminatin

in city employment.

That on August 25, 1973, the Mayor of Seattle

issued his "Executive Order Establishing an

Affirmative Action Program for City Employ-

ment," described therein as a "program to

increase the number of employees of a par-

ticular race, age, color, national origin, or

sex employed by the City in order to correct

a condition of underrepresentation of such

persons caused by present or past practices,

customs or circumstances that have limited

employment opportunities for members of the

affected group." The goal of the affirmative

action program was "to increase the number

of underrepresented persons employed by the

City to correspond with their statistical

composition within the available working

force of the population of the City of

Seattle." The order called upon each City

department head to “establish, administer and

maintain an affirmative action program

tailored to the particular set of circum-

stances applicable to that department and

designed to carry out the principles and

purposes of this executive order." In

particular, each department was ordered to,

among other things, ". . . (c) Review, and as

necessary, modify performance rating systems

and all other qualification and testing

requirements used in selecting personnel for

city positions to ensure that they are

job-related, valid under Federal, State and

local law, and to the greatest extent pos-

sible, free from cultural bias and institu-

A-45

tionally discriminatory practices.", and "(f)

Instruct all staff with hiring responsibili-

ties that underrepresented persons are to be

sought for appointments and that Civil

Service selective certification procedures

are available for use to this end."

That Resolution 23849 of the City Council of

The City of Seattle, passed October 16, 1972,

declares the policy of the City for Affirma-

tive Action Programs by City departments to

achieve equality of City employment oppor-

tunities for members of minority races,

women, and persons over 40 years of age, and

affirms the Mayor’s Executive Order of August

25, 1972. That Ordinance 101548 of The City

of Seattle, approved by the Mayor on October

27, 1972, provides for implementation of

the affirmative action program for City

employment and requires all departments

to establish and maintain effective affirma-

tive action programs of employment oppor-

tunity as set forth in the Mayor’s Executive

Order of August 25, 1972, including the

setting of goals and timetables for the

achievement of equality of work force rep-

resentation. Said ordinance also provides

that no departmental budget shall be approved

as to any department which fails to submit

reports required by said ordinance.

The Civil Service Commission is established

by Article XVI of the City Charter, and

is authorized thereby to make rules to

carry out its functions.

Article XVI, Section 9 of the City Charter

provides that where a head of a department

notifies the Civil Service Commission of

a vacancy in an office classified under

Article XVI, the Commission shall certify to

him such number of candidates, not less than

five if there shall be so many eligible,

standing first upon the register for the

class or grade to which such position belongs

10.

as shall be equal to twenty-five percent of

the total number of candidates on said

That Seattle’s civil service tests have

had the effect, in some cases, of discrinm-

inating against minority applicants among

thos deemed eligible for appointment in

accordance with provisions of Charter

Article XVI, Section 9, as determined by

the results of those examinations; and said

results tend to cause the minority appli-

cants to be placed at the lower end of the

eligible registers and therefore have little

or no chance of being employed.

The Seattle Civil Service Commission has

promulgated rules for the administration of

the Civil Service Department, including

Rule 7 relating to certification of can-

didates. That Rule 7.03(4) authorizes

certification of minority persons only

when requested by an appointing autority

as necessary to implement the affirmative

action policy of the city.

That pursuant to the City’s affirmative

action policy for employment opportunities

for minorities, the Engineering Department

on June 21, 1972 promulgated a departmental

policy statement which established 4s the

goal of that department the achievement

of ratios of minority employment in each

Civil Service classification comparable to

the ratios of these same minorities in the

Seattle Community, and adopted as an emer-

gency measure during 1972, 1973 and 1974 a

rule that the first of every three vacancies

resulting from retirement or termination in

under-represented classes will be filled

with appropriate minorities. Such appoint-

ments are to be made from Civil Service

registers whenever possible and by pro-

visional appointments as necessary.

ll.

12.

A-47

That plaintiff, a Caucasian, is on the

promotional eligible register for signal

electrician foreman, established after an

examination in 1969, with a department grade

of 88.58. That Emeliano Ponce, a minority

applicant, is also on the eligible register

with a department grade of 81.83.

That to fill a vacancy of Signal Electri-

cian Foreman for the City Engineering Depart-

ment requested and the Civil Service Com

mission certified the only minority appli-

cant on the eligible. register, Emeliano

Ponce, and passed over a non-minority

eligible, Wesley Brabant, who had a higher

test score.

ISSUES OF LAW

The parties agree that the following are the

issues of law presented by the foregoing facts:

Whether Rule 7.03(4) conflicts with Article

XVI, Section 9 of the City Charter.

Whether compliance with Article XVI, Sec-

tion 9 is excused by overriding provi-

sions of state or federal law.

Whether the selective certification of

Mr. Ponce to a vacant position of Signal

Electrician Foreman pursuant to Rule 7.03(j4)

conformed to law.

Whether Rule 7.03(4) constitutes illegal

delegation of the Civil Service Commission’s

discretionary power to its Secretary.

Whether The City of Seattle has a legal

duty to take affirmative action to elimi-

mate the effects of past discrimination.

Whether the City’s duty referred to in

Paragraph 5 is as to particular positions,

A-48

by particular departments of the City, or in

civil service positions generally? Must it

be shown that a civil service test for a

particular position is discriminatory, or is

it sufficient to show that civil service

tests generally of the City, as presently

devised, are discriminatory.

Whether Rule 7.03(4) conflicts with Sec-

tion 703(4) of Title VII of the Civil Rights

Act of 1964.

Whether Rule 7.03(j) is a reasonable and

necessary method of eliminating the effects

of past discrimination.

The parties agree that there is no con-

stitutional question of equal protection of the

laws and due process presented, the same having

been disposed of in De Funis v. Odegaard, 82

Wn.2d 1l.

DATED this 7th day of September, 1973.

Attorney for Plaintiffs

Attorney for Defendants

Attorney for Intervenors

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.