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The City, however, refused to promote Nyborg to lieutenant, arguing that because the ordinance contemporaneously created a captain's position and eliminated a lieutenant's position, no vacancy occurred in the lieutenant's position. Nyborg timely filed a request with the Commission for an investigation, a hearing, and a determination of this matter. STANDARD OF REVIEWThe standards for reviewing a motion for summary judgment are well established. See International Ass'n of Firefighters Local 624, 822 S. Nyborg, as the movant, has the burden of establishing that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law. W.2d at 131 (holding that whenever a vacancy occurs, the person next in line on the promotion list has the primary right to fill the vacancy).17. The trial court also entered an agreed order granting attorney's fees to Nyborg. at 313-14; International Ass'n of Firefighters Local 624, 822 S.

The trial court granted Nyborg's motion and denied the City and the Commission's motion.

We therefore must first determine whether a vacancy occurred within these dates.

A vacancy occurs when an existing position is vacated or a newly created position is established by ordinance.

The CSA provides specific procedures for filling a vacancy in a non-entry position that is not appointed by the department head, such as the position of lieutenant in the FWPD.

When, as in this case, an eligibility list for the position to be filled exists on the date the vacancy occurs,the director [of the Commission], on request by the department head, shall certify to the department head the names of the three persons having the highest grades on that eligibility list.

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