Summary
In McCaw, a merger of two positions for the purpose of economy resulted in the discharge of a civil service employee and the retention of a provisional civil service appointee named to perform the duties of the single, new position created by the said merger.
Summary of this case from State, ex Rel. Sigall, v. AetnaOpinion
No. 27626
Decided May 22, 1940.
Civil service — Power to create includes power to abolish position — Order ineffective where new appointee named to perform same duties — Discharged employee not reinstated where positions merged for economy.
1. The power to create a position in the civil service includes the power to abolish the position, particularly where the purpose of the abolishment of such position is that of economy or improvement in the public service.
2. Where there is a substantial merger of two positions for the purpose of economy with no proof of ulterior motive or purpose on the part of the employing officer, or discrimination upon political, religious or other improper grounds, a writ of mandamus will not be granted to require reinstatement of an employee discharged as a result of such merger.
IN MANDAMUS.
This is an original action in mandamus in this court wherein the relatrix, Blanche L. Stine, seeks an order of mandamus requiring her restoration to the position heretofore held by her as a classified civil service appointee in the Division of Aid for the Aged, from which she claims to have been improperly and unlawfully discharged.
The petition alleges that on the 28th day of February, 1939, the respondent chief of the Division of Aid for the Aged discharged her from the position then held and to which she theretofore had been duly appointed, known as supervisor of grade 3-B, her removal being effective March 15, 1939, and the reason stated for her discharge being that the position she then held was no longer necessary or essential and had been abolished.
She avers that the position designated carries with it supervisory duties relating to the examination of old age pension claims, which duties will continue to exist, and that in discharging her from such classified position she was discriminated against for political reasons or affiliations.
The relatrix states further that her protest to the state Civil Service Commission was rejected and the commission permitted one Elinor Hixenbaugh, who was appointed to the position of supervisor of case work effective March 1, 1939, as a provisional appointee, to assume and perform the duties and functions of the relatrix since her discharge on March 15, 1939.
The respondents by answer admitted the statements of the petition relative to the appointment of the relatrix to the position designated in the petition and her incumbency thereof, as well as her discharge therefrom. The answer avers that the position formerly occupied by relatrix had been abolished in good faith and for the sole purpose of economy and efficient operation of the department, and denies it was for any other reason or purpose; that the duties formerly attaching to such position have been combined with those of the former position of supervisor of field representatives; and that the duties of the two positions are now joined and performed by one person.
Upon the issue thus made the case was submitted to the court upon the evidence taken by way of deposition, which discloses no testimony tending to show that the relatrix was discharged for political reasons. That claim seems to have been abandoned. The record does disclose that some time prior to February 28, 1939, the date of the discharge of the relatrix, one Walter Kildow, an employee in the department, was the supervisor of district representatives of the Department of Aid for the Aged who performed duties throughout the state, and that the relatrix, Blanche Stine, was supervisor of the case work performed in the central office.
Mr. Kildow resigned March 1, 1939 (effective March 15, 1939), and Mrs. Hixenbaugh was then appointed provisionally to the position vacated by Mr. Kildow, and assumed the duties theretofore performed by him. He had been directly responsible for the investigation of case work as it was carried on by the various representatives of the state, while Miss Stine was responsible for the supervision of case examination as it took place in the central office. Though there is some conflict in the testimony of Miss Stine and Mrs. Hixenbaugh as to their respective duties, the field representatives who testified on the subject stated that they had received their supervisory directions from Mr. Kildow and not from Miss Stine and, following the resignation of Mr. Kildow, had received such instructions from Mrs. Hixenbaugh. When the position of Miss Stine was abolished, Mrs. Hixenbaugh assumed the duties theretofore performed by Miss Stine in addition to those previously performed by Mr. Kildow whom she had succeeded upon his resignation, as well as other duties assigned to her.
Mr. M. Ray Allison, for relatrix.
Mr. Thomas J. Herbert, attorney general, and Mr. John P. Walsh, for respondents.
The question presented is merely whether, under the civil service laws of Ohio, a position may be abolished and the duties thereof combined with another position which at that time is being held by a civil service employee appointed provisionally when such abolishment results in the discharge of a civil service employee holding her position as the result of a competitive examination.
It is well established in Ohio that the power to create a position in the civil service includes the power to abolish the position, particularly where the purpose of the abolishment of such position is that of economy or improvement in the public service. 7 Ohio Jurisprudence, 594, Section 87; Curtis, Safety Dir., v. State, ex rel. Morgan, 108 Ohio St. 292, 140 N.E. 522; Vansuch, Dir. of Pub. Safety Service, v. State, ex rel. Fetch, 112 Ohio St. 688, 148 N.E. 232; State, ex rel. Miller, v. Witter, Din. of Dept. of Indus. Relations, 114 Ohio St. 122, 150 N.E. 431.
The evidence in the record does not indicate that the consolidation of the two positions and the assignment of the duties theretofore performed by Miss Stine to Mrs. Hixenbaugh were for the reason or purpose of any improper or unlawful discrimination against Miss Stine.
The sole remaining question is whether the fact that Mrs. Hixenbaugh was at the time a provisional appointee affects the legality of the transaction. It recently has been held that a provisional employee is an employee within the civil service law and has tenure of office until a successor is duly appointed from an eligible list resulting from a competitive examination. Hence, the rights of the provisional appointee are the same as those of the person appointed as the result of a competitive examination except that the former may be displaced when a properly qualified civil service employee who has acquired eligibility by competitive examination is appointed to succeed him.
An order abolishing a civil service position is ineffective where a new appointee is named to perform the same duties; but where there is a substantial merger of two positions for the purpose of economy with no proof of ulterior motive or purpose on the part of the employing officer, or discrimination upon political, religious or other improper grounds, a writ of mandamus will not be granted to require reinstatement of an employee discharged as a result of such merger.
Writ denied.
WEYGANDT, C.J., DAY, WILLIAMS and HART, JJ., concur.