Philadelphia Charter Does Not Require Immediate Filling Of Fire Promotional Vacancies

Philadelphia firefighters are represented by Local 22 of the International Association of Fire Fighters, and are subject to Philadelphia’s Civil Service Regulations, which set forth the procedures for hiring and promotion in the City in accord with the Home Rule Charter. The Home Rule Charter directs that Civil Service Regulations “shall provide for” promotions which “give appropriate consideration to the applicant’s qualifications, record of performance, seniority and conduct.” Moreover, “vacancies shall be filled by promotion whenever possible, and promotion shall be on a competitive basis except where the Personnel Director with the approval of the Civil Service Commission finds that competition is impracticable.”

On May 25, 2011, following civil service testing and ranking, the City established promotional lists for the positions of Fire Captain and Fire Lieutenant that were set to expire by operation of law on May 25, 2013, two years from the date they were established. The City thereafter promoted 35 employees into the position of Fire Captain and 78 into the position of Fire Lieutenant from the lists, leaving 82 individuals on the list for the position of Fire Captain and 140 on the list for Fire Lieutenant.

Near the end of the May 2011 lists’ two-year term, an additional 17 positions became vacant. The City, however, declined to fill these vacancies through utilization of the May 2011 lists. Instead, on May 3, 2013, the Director of Public Safety announced at a City Council hearing the City’s decision to await the expiration of the May 2011 lists by operation of law in three weeks’ time, and to fill the vacancies with the top-ranking candidates from the next promotional lists. These new lists were to be established following civil service testing and ranking after May 25, 2013. The Director of Public Safety explained that the City wanted to allow the May 2011 lists to expire because the candidates who remained on the lists were ranked near the bottom, and the City would prefer to choose the highest ranked candidates from new lists.

Local 22 sued the City, contending that the decision to stop promotions from the May 2011 lists violated the Charter’s provisions governing the filling of vacancies. The dispute eventually made its way to the Pennsylvania Supreme Court.

The Court accepted the City’s interpretation of the Charter. The Court held that “the Charter provisions, read in isolation or in context, indicate that when vacancies are filled, the City is required to fill them by promotion as opposed to another method of hiring, such as hiring from the outside. Use of the phrases ‘whenever possible’ and ‘so far as practicable’ modify the manner of filling vacancies, i.e., by promotion. They emphasize that the preferred method of doing so is by promotion, and direct that only when promotion is not possible or practicable can the City consider other methods of filling a vacancy.

“The annotation to the Charter supports this conclusion, providing that promotion is an important incentive for achievement and continued municipal employment. Its emphasis is upon the significance of promotion in municipal employment, rather than on filling vacancies as soon as they arise. Reading the Charter together with its annotation establishes that whenever possible the City should prioritize promotion and career advancement of municipal employees when it fills vacancies. Civil Service Regulation 9.021 restates this preference, placing promotion behind demotion, transfer, reinstatement, and from a layoff list as the sanctioned methods for filling vacancies.

“Neither the Charter nor civil service regulations require the City to fill vacancies immediately, and no other provision of the Charter or regulations imposes such a requirement upon the City. There is no imperative that the City exhaust a promotional list before establishing a new list, or that promotions must occur from a particular list before it expires. Rather, the City is required to expire a list after two years to provide employees ‘reasonable opportunity for employment’ and to replenish lists with the names of the most competent candidates available for employment.”

Philadelphia Firefighters’ Union, Local 22 v. City of Philadelphia, 2015 WL 4401552 (Pa. 2015).