Opinion
No. 27531
Decided May 8, 1940.
Civil service — Mandamus — Reinstatement to position as clerk in classified service — Relator certified on eligible list, employed as laborer but not appointed clerk — Provisional appointment preceded certification by civil service commission — Sections 486-13 and 486-14, General Code.
IN MANDAMUS.
A writ of mandamus is sought from this court to reinstate relator to a position as liquor store clerk.
The petition alleges that in 1934 relator took a competitive examination for the position of liquor store clerk, received a passing grade, was placed upon the eligible list, was certified to the Director of the Department of Liquor Control for the position of clerk in a liquor store in the classified civil service on October 2, 1935, was appointed a short time thereafter to serve as clerk in a liquor store and continued in such employment as clerk until notified that his services would terminate on February 28, 1939, without reasons or grounds having been assigned, charges or complaints made or an opportunity given him to make or file any explanation.
The respondent by amended answer admitted that relator passed a competitive examination for the position of liquor store clerk and that he was certified as eligible for appointment to that position, but specifically denied he was ever appointed as such clerk in conformity with Section 486-13, General Code. The amended answer alleged that relator was first employed in the capacity of a laborer at an hourly wage in December of 1935 and his name appeared upon the department payroll in that capacity until October 1, 1936, when the then Director of the Department of Liquor Control attempted to appoint relator as a provisional liquor store clerk, and that he performed the duties and received the salary of a provisional liquor store clerk, but was not legally appointed as such under Section 486-14, General Code.
Relator by reply alleged he was employed in a clerical capacity, doing only clerical work, and that in December of 1935 was falsely and improperly designated as a laborer on the records of the Department of Liquor Control, when he was entitled to the position of liquor store clerk with a permanent status in the classified civil service, having served in that capacity for more than 90 days, regardless of how his position was designated in the records of the Department of Liquor Control and the state Civil Service Commission.
The cause was heard upon those pleadings and depositions.
Mr. Jerome Goldman, for relator.
Mr. Thomas J. Herbert, attorney general, Mr. John P. Walsh and Mr. Howard Bernstein, for respondent.
It appears that in 1934 relator took a civil service examination for clerk in a state liquor store, that as a result he became seventy-sixth on the eligible list for the district concerned, and that his name was certified to the Department of Liquor Control as being eligible for appointment on three separate certifications of which relator received notice. However, he was never appointed as clerk by the appointing officer from those certifications.
From the time of his employment in December of 1935 relator continued in the status of a laborer upon an hourly salary until October 1, 1936, when he was entered as a provisional clerk at a regular clerk's monthly salary. On October 10th relator signed and executed a non-competitive examination blank as candidate for provisional appointment and on October 15th that document, which also contained a nomination for provisional appointment effective October 1, 1936, was received by the Civil Service Commission. On October 19, 1936, approval of the nomination for provisional appointment was entered by the commission on the face of the document, which also bore the notation that the appointing officer was notified on November 6, 1936.
Relator contends that, under Section 486-13, General Code, he is entitled to a permanent status as clerk. That section requires the appointing officer to "fill such position by appointment of one of the three persons certified to him as provided in this act." (Italics ours.) No proof has been produced to sustain the allegation of the petition that relator was appointed as clerk from the eligible list certified to the appointing officer. As recited in the foregoing statement of facts, the reply pleads merely that relator was employed in a clerical capacity but does not allege that he was appointed as liquor store clerk. If this were a proceeding in mandamus to reinstate relator to a position as clerk to which he had been appointed from an eligible list and he established his right to such position, a different question would be before the court.
Furthermore, relator is not entitled to the position of clerk even as a provisional appointee since his appointment in that status preceded his certification by the commission contrary to the provisions of Section 486-14, General Code. State, ex rel. Lynch, v. Taylor, ante, 417, 26 N.E.2d 207.
The relator not having demonstrated a clear legal right in himself and a duty imposed by law upon the respondent, a writ of mandamus will be denied.
Writ denied.
WEYGANDT, C.J., DAY, ZIMMERMAN, WILLIAMS, MATTHIAS and HART, JJ., concur.
MYERS, J., dissents.
This case and the Lynch case, recently decided by this court, are typical examples of visiting the sins of the appointing authority and the Civil Service Commission upon the employee. In the two cases, State, ex rel. Slovensky, v. Taylor, Dir., 135 Ohio St. 601, 21 N.E.2d 990, and State, ex rel. Lagedrost, v. Beightler, Dir., 135 Ohio St. 624, 21 N.E.2d 992, this court decided that on principle provisional appointees were entitled to the protection of Section 486-17 a, General Code, against summary removal without cause. That was an interpretation of the rights of the appointee on the merit of his services rendered. Now it is sought through mere technicalities to invalidate the standing not only of all provisional appointees, but even of this relator, who took and satisfactorily passed a competitive examination for a permanent civil service status but who through no fault of his own but under a threat of being "fired" was forced to sign a provisional application blank. If technical mistakes are to render futile permanent and provisional appointments alike, and if the mistakes of the appointing authority and commission are to be charged to innocent employees, then security of tenure will give way to insecurity and no civil service employee may feel safe unless he first hires an attorney or abstracter to examine the record. Such execution and interpretation of civil service laws do not hold much promise for the future. Apparently all an appointing authority will need to do is to make a few convenient mistakes and the hapless employee will be at his mercy.
The writ should be allowed.