Arkansas Democrat-Gazette (Little Rock)
Copyright 2007 Little Rock Newspapers, Inc.
LITTLE ROCK, Ark. — The Arkansas Court of Appeals on Wednesday reversed a Faulkner County circuit judge’s dismissal of a lawsuit filed by two Conway firefighters who accused the city of changing at the last minute the format of a promotional examination they took.
In July 2006, Circuit Judge David Reynolds of Conway dismissed the lawsuit by Rick Powell and Fred Nutt on the grounds that they had failed to exhaust administrative remedies relating to the April 12, 2005, exam. A three-judge panel of the appeals court, however, concluded the case should go back for “further factual development of the issues in dispute.” The appeals court noted that Nutt and Powell, who still work for the Conway Fire Department, contended that no administrative remedies were available for challenging the test but they tried to resolve the situation with Fire Chief Bart Castleberry and Mayor Tab Townsell before suing. The city countered that Nutt and Powell had not exhausted administrative remedies, according to the court’s opinion, written by Judge Brian S. Miller.
Miller wrote that Reynolds apparently “relied on a matter outside the complaint - the page from the city’s handbook containing the grievance procedure.” Miller added that “while the city provided the trial court with the grievance-procedure page from its handbook, no affidavit or ordinance was presented to show that the city had adopted the handbook, nor was it shown that the handbook provisions constituted a contract between the city and these firefighters.” Miller said other issues needing resolution include whether the grievance procedure applied to the firefighters’ complaint about testing, whether the city led them to believe the procedure was not applicable and whether the city waived compliance with its formalities.
The appeals court said the Fire Department had issued a notice that the promotional exam would consist of a written exam and a practical one. But, according to the court, the two firefighters said the practical test was replaced by a 25-question quiz on the department’s standard operating procedures. They are asking to take the test they say they were promised, according to their attorney, Charles Finkenbinder.