Legal Lesson of the Month: The Tainted Captain’s Exam

EMS can be full of interesting and tricky legal scenarios. While you can’t have an attorney ride with you, it behooves providers to have at least some familiarity with the principles, precedents, and major issues of EMS law. To that end EMS World is pleased to offer the EMS Legal Lesson of the Month.

These cases are presented by prominent attorneys in the EMS field. This month’s comes from Larry Bennett, program chair for fire science and emergency management at the University of Cincinnati. Bennett’s department publishes a monthly Fire & EMS and Safety Law newsletter; subscribe to that by e-mailing Lawrence.bennett@uc.edu or read the latest edition here. Find this case and more in his newsletter archive. 

Case: State of Ohio, ex rel. Jeffrey Neal v. City of Cincinnati

Decided: April 2021

Verdict: The Ohio Court of Appeals, First Appellate District (Hamilton County) held 3–0 that a trial court improperly ordered the city to promote Cincinnati Fire Lt. Neal.

Facts: Neal joined the Cincinnati Fire Department in 1998 and was promoted to lieutenant in 2010. In 2015 the department began accepting internal applications for fire captain, administering promotional exams as part of that process. Neal applied for the advancement and participated in the promotional exam, which consisted of five sections. The first two presented objective multiple-choice questions, whereas the remaining three were subjective, involving tactical, interview, and written components.

Neal scored 42nd out of 54 candidates, and the city ultimately promoted the 25 highest-scoring candidates, passing him over. Neal complained to the Civil Service Commission, seeking the promotion, but was denied. He then brought a mandamus action against the city seeking it.

Neal specifically challenged the administration of the tactical and interview portions of the exam, which involved Neal orally responding to questions posed by assessors. He alleged interruptions began during the tactical portion, after an assessor’s phone went off. Because the phone was located across the room in a backpack, the assessor went over to the backpack and rummaged around before locating the phone to silence it. The assessor then allegedly spent considerable time reading texts from the phone before returning to the table. Once there the phone repeatedly vibrated, prompting the distracted assessor to engage with the phone and respond to messages, while presumably ignoring Neal. All of this occurred during an exam where phones were not permitted.

Neal further alleged these distractions spilled over to the interview portion as well. At one point, he said, an assessor was responding to a text message during the entirety of Neal’s answer to a question. Another assessor allegedly dozed off. In sum, Neal claimed these repeated distractions placed him at a considerable disadvantage for the tactical and interview portions of the exam because other applicants did not encounter similar distractions.

After a two-day bench trial, the court agreed with Neal and ordered his promotion, along with back pay and attorneys’ fees. This decision was reversed by the appeal.

Key quote: “Conspicuously absent in this case is the source of any legal right or duty. As Lt. Neal frames it, he deserved ‘a competitive examination that was administered competently, properly, fairly, and in accordance with Ohio law.’ But he points to no statute or ordinance providing a right or duty for this promotion. And as we have recently explained, ‘[f]or mandamus to lie, the duty “must be specific, definite, clear, and unequivocal.”’”

Legal lesson: The appeals court noted that Neal didn’t request a new exam, just the promotion, and that his scores in the “untainted” portion of the exam suggested he was unlikely to have advanced even in a perfect testing environment. The department’s larger problem, however, seems to be its unprofessional examiners.