Opinion
No. 80-859
Decided December 17, 1980.
Quo warranto — To compel ouster from city commission — Forfeiture provision in charter enforced, when — Other "public employment," construed.
IN QUO WARRANTO.
Respondent, Jacqueline Gillon, has served as a member of the City Commission of East Cleveland since December of 1979. In February of 1980, she entered into employment with the East Cleveland Public School System as a teacher, and in March of 1980 began her employment with the United States Department of Commerce, Bureau of the Census, as a clerk.
The charter of the city provides in part:
"Section 5. Qualification of Members.
"Each member of the Commission for at least one year immediately prior to his election shall have been, and during his term of office shall continue to be, a resident of the City of East Cleveland, Ohio, and shall have the qualifications of an elector therein. He shall not hold any other public office or employment except that of notary public or member of the State Militia." (Emphasis added.)
Based upon this provision, relator, prosecuting attorney for Cuyahoga County, seeks ouster of respondent from her position on the city commission.
This matter is now before the court on the relator's motion for summary judgment, and respondent's request for dismissal of the complaint.
Mr. Carl J. Character, for relator.
Mr. Gary Cook, for respondent.
In State, ex rel. Corrigan, v. Wheeler (1971), 27 Ohio St.2d 9, this court enforced the foregoing forfeiture provision contained in the East Cleveland City Charter. We also recognized that quo warranto is the proper method for enforcing this provision. In Corrigan, supra, the court stated, at page 10:
"There is no dispute here that subsequent to his election to the City Commission of East Cleveland respondent became employed by the Auditor of Cuyahoga County. The employment by the Auditor's office constitutes a violation of the charter in that this second public employment is prohibited thereby and does not fall within the exceptions of `notary public or member of the State Militia.' Thus it falls within the forfeiture provision of the city charter.
"***[J]udgment of ouster is issued."
The thrust of respondent's response to relator's motion herein is that the status of relator's other positions as "public employment" has not been established and, therefore, this case is not ripe for summary judgment. This court determines as a matter of law that the other positions held by respondent are "public employment," within the meaning of that phrase in Section 5 of the East Cleveland City Charter.
This court does not consider respondent's defense of insufficiency of service of process herein, as respondent has waived this issue by failing to raise it by motion or responsive pleading. Civ. R. 12(H).
Relator's motion for summary judgment is, therefore, sustained and judgment of ouster is issued.
Judgment accordingly.
CELEBREZZE, C.J., W. BROWN, P. BROWN, SWEENEY, LOCHER, HOLMES and DOWD, JJ., concur.