Home JAMES H. SHARKEY vs. CIVIL SERVICE COMMISSION.

357 Mass. 785

June 19, 1970

Sergeant Sharkey on a written examination for promotion received a mark of 67.2. To become eligible he required a mark of at least 70. Review by the Director of the Division of Civil Service (G. L. c. 31, Section 12A, as amended through St. 1967, c. 780, Section 13) and an appeal to the commission (c. 31, Section 2[b], as amended through St. 1969, c. 15, Section 1) resulted in no sufficient increase in his mark to make him eligible. Sergeant Sharkey was marked zero on his answer to a question involving a legal issue which is not now decided by us, and has not been decided by this court since the enactment of St. 1968, c. 721, Section 1 (the 1968 statute). That issue is whether conspiracy to receive stolen property worth $55 is a "crime", a felony, or a misdemeanor. See G. L. c. 266, Section 60; c. 274, Section 1 and Section 7 (as amended somewhat obscurely in some respects by the 1968 statute). Although the question, which required a multiple choice answer, was hardly a suitable device for testing Sergeant Sharkey's capacity to reason on an issue of law, it was a permissible inquiry. A Superior Court judge correctly sustained the commission's demurrer to a petition for a writ of certiorari. The answer to a question upon an administrative examination of this type (even if it be a question about a legal matter) is not a question of law which may be raised by certiorari. The commission's decision concerning answers to such questions, unless marked in a manner "clearly shown to be arbitrary or devoid of logic and reason," will not be disturbed upon review by certiorari. See Ferguson v. Civil Serv. Commn. 344 Mass. 484 , 488. See also Barry v. Civil Serv. Commn. 323 Mass. 431 , 433-434. No facts are alleged which suggest any arbitrary action, or action otherwise than in good faith to test fairly the persons examined.

Order sustaining demurrer affirmed.

Home WENDY HARRISON & others vs. DEPARTMENT OF PUBLIC WELFARE & others.

357 Mass. 785

June 19, 1970

Recipients of public welfare seek declaratory and other relief concerning the validity of the revocation of the department's so

Page 786

called "State Letter 239," as amended. We assume (without deciding) that, under G. L. c. 30A, Sections 3 and 5, and c. 30, Section 37, this letter as amended may have had the effect of a regulation. The revocation was attempted by a "directive" of April 3, 1969, concerning which the Commissioner of the department issued a certificate on May 20, 1969, that the "directive" had been "made necessary because of budgetary limitations which make the fair . . . administration of the welfare programs impossible without the suspension of . . . special grants" for furniture. On June 25, 1969, the directive of April 3, 1969, was rescinded and the pre‰xisting State letter again came into effect. This was established by a stipulation and an interlocutory decree of November 18, 1969, sustaining a substitute plea in bar. Declaratory relief concerning the directive of April 3 thereafter ceased to be appropriate for the plaintiffs could then seek relief under the restored State Letter 239, as amended. No basis appears for recovery of damages (as incidental relief under the bill for declaratory relief; see Executive Air Serv. Inc. v. Division of Fisheries & Game, 342 Mass. 356 , 358) from the Commonwealth or any State department or official, by reason of the temporary suspension of the State letter. We do not consider the adequacy of the reasons given on May 20, 1969, for not giving (a) advance notice of the "directive" of April 3, and (b) an opportunity to express views about it, as permitted by G. L. c. 30A, Section 3 (2) and Section 3 (3). Cf. Pioneer Liquor Mart, Inc. v. Alcoholic Beverages Control Commn. 350 Mass. 1 , 5 (fn. 6), 8-9, where this court discussed the importance of careful compliance with Section 3 in taking departmental administrative action which may have the effect of a regulation.

Interlocutory and final decrees affirmed.