Neither its home rule charter nor civil service regulations required the City of Philadelphia to immediately fill vacancies in fire captain and fire lieutenant positions, the Pennsylvania Supreme Court held in Philadelphia Firefighters’ Union, Local 22 v. City of Philadelphia, __ A.3d __ (No. 16 EAP 2014, filed July 20, 2015). On May 25, 2011, following civil service testing and ranking, the City established a promotional list for the positions of Fire Captain and Fire Lieutenant. The City used the list to promote 113 employees into those positions. Pursuant to the City’s Home Rule Charter and Civil Service Regulations, the promotional list expired two years after its creation, or May 25, 2013. Near the end of that term, an additional 17 positions became vacant. The City decided to wait until the 2011 promotional list expired so it could fill the vacancies with the top-ranking candidates from the next promotional list. Union filed an emergency motion in the trial court seeking injunctive and mandamus relief. The trial court granted peremptory mandamus in favor of Union and ordered the City to fill the positions from the 2011 list.
On appeal, the Commonwealth Court reversed the trial court’s order, holding that the Home Rule Charter and Civil Service Regulations govern only the manner of filling vacancies, not the timing. The Fire Commissioner has discretion to decide when to promote employees and fill vacancies. Because there was no right to a promotion, and promotion of employees from a promotional list is not a ministerial act, the Commonwealth Court held the trial court erred in granting mandamus relief. See Philadelphia Firefighters’ Union, Local 22 v. City of Philadelphia, 78 A.3d 16 (Pa. Cmwlth. 2013)
On further review, the Supreme Court affirmed and held that Union was not entitled to mandamus relief. The majority, speaking through Justice Baer, held that Union failed to establish a clear right to relief, noting that “while the Commissioner is required to fill vacancies in the manner prescribed by the Home Rule Charter and the Civil Service Regulations, neither the Charter nor the Regulations speak to the timing of promotions or otherwise create a clear legal right to a promotion.” The Court further held that Union failed to demonstrate a corresponding duty in the City since neither the Charter nor the Regulations require the City to fill vacancies immediately. The Court observed that its ruling in the case is aligned with the Charter’s emphasis on making promotion an incentive for achievement and continued municipal employment, rather than on filling vacancies as soon as they arise.
Justice Stevens issued a concurring opinion to express his concern that the City’s procedure for promoting civil service employees “does not serve to maintain objectivity in the promotion process, but instead enables the very manipulation of the process that the civil service system was intended to prevent.”