Summary
In Henderson, a nonresident employee of the city of Maple Heights appealed to the city's civil service commission from the city's termination of his employment for his failure to comply with the city charter's residency requirement.
Summary of this case from State ex Rel. Lane v. PickeringtonOpinion
No. 80-80
Decided July 2, 1980.
Mandamus — Remedy not available, when — Failure to pursue appellate procedures — Municipal civil service commission — Refusal to grant hearing — R.C. 124.34 — Remedies.
APPEAL from the Court of Appeals for Cuyahoga County.
Respondent city of Maple Heights (hereinafter "city") is a chartered municipality under the provisions of the Ohio Constitution. The city charter requires all city employees to reside within the city insofar as practicable, and an ordinance adopted pursuant to the charter also requires city employees, with limited exceptions, to remain residents during the term of their employment with the city. The city charter also establishes a civil service commission, provides for excluding certain classifications of employees from testing, and provides further for "appeals from the action of the mayor in any case of transfer, reduction or removal."
Relator, Troy H. Henderson, was initially employed by respondent city as a part-time bus driver in October of 1974, at which time he was not a resident of the city. On or about August 31, 1975, relator became employed as a full-time bus driver. At that time, he was notified by letter, that the city charter required, as a condition of employment, that all full-time employees of the city must become and remain residents of the city. As of August 29, 1975, relator's residence was located in the city of Maple Heights.
On or about December 1, 1978, relator moved his residence outside the city of Maple Heights, where he had resided for the previous three years. On December 8, 1978, he notified respondents of his move and requested permission to reside temporarily outside the city for a period up to and not to exceed 150 days. Relator represented that he would reestablish his residency within the city at the conclusion of the 150-day period. Respondents granted relator's request.
On May 1, 1979, relator requested an extension of the approved 150-day period. Respondents notified relator that an extension would be granted only through June 30, 1979, at which time his file as an employee would be "closed" unless he had reestablished residency within the city. On June 27, 1979, relator requested permission to continue with the respondent city as a "non-resident employee" on a permanent basis. Respondent mayor denied this request in writing on the following day and again reminded relator that his file would be "closed" unless he reestablished residency within the city limits on or before July 1, 1979.
Relator failed to reestablish his residency by July 1, 1979, and, accordingly, his employment with the city ceased. On July 20, 1979, relator filed an appeal and requested a hearing with the respondent civil service commission. In response to a request from relator's attorney, the commission, through its legal counsel, notified relator's attorney, on September 11, 1979, that relator "does not fall within the confines of the Civil Service Commission of the City of Maple Heights, Ohio."
Relator thereupon filed for a writ of mandamus in the Court of Appeals directed (1) to the city civil service commission ordering them to grant him a hearing to contest the termination of his employment as a bus driver for the city and (2) to the mayor and transit director of the city ordering his reinstatement with back pay.
The Court of Appeals sustained a motion to dismiss, holding that relator has an adequate remedy at law.
The cause is now before this court upon an appeal as of right.
Messrs. Stege Delbaum and Mr. Charles M. Delbaum, for appellant.
Messrs. Squire, Sanders Dempsey, Mr. B. Casey Yim and Mr. John T. Meredith, for appellees.
The Court of Appeals, without discussion, dismissed relator's action because "[r]elator has an adequate remedy at law." Presumably, the court was making reference to the procedure found in R.C. 124.34. Under that section, an employee who is being removed may appeal to the appropriate civil service commission and, if not satisfied, may then appeal to the Court of Common Pleas of the county in which that employee resides in accordance with R.C. Chapter 119.
A denial by the respondent civil service commission of jurisdiction of this controversy represented a final appealable order. When the commission refused relator's request for a hearing, relator should have appealed to the Court of Common Pleas. Having failed to do so, and, thereby having failed to pursue his appellate remedies in the ordinary course of law, he cannot now collaterally attack this jurisdictional determination. See State, ex rel. Stough, v. Bd. of Edn. (1977), 50 Ohio St.2d 47, and State, ex rel. Bingham, v. Riley (1966), 6 Ohio St.2d 263.
Accordingly, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., HERBERT, W. BROWN, P. BROWN, SWEENEY, LOCHER and HOLMES, JJ., concur.