Opinion
No. 76-785
Decided April 20, 1977.
Civil service — Provisional employees — City school district — Promotions — R.C. 124.271 — Constitutionality.
APPEAL from the Court of Appeals for Cuyahoga County.
On April 4, 1974, plaintiffs, an organization composed of non-teaching employees of the Board of Education of the Cleveland City School District, and a civil service employee, filed a complaint for declaratory judgment, injunction and equitable relief, and a motion for preliminary injunction, in the Court of Common Pleas. In their complaint, plaintiffs allege that R.C. 124.271, which allows provisional civil service employees in certain circumstances to become permanent employees without taking a competitive examination, is unconstitutional in that it is contrary to Section 10, Article XV of the Ohio Constitution. The board of education, the Cleveland Civil Service Commission, and individual members of those organizations, are named as defendants.
The case was submitted to the trial court on the pleadings, stipulations, briefs and oral argument, and the court entered judgment for defendants, upholding the constitutionality of R.C. 124.271. The Court of Appeals reversed and remanded.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Messrs. Terrell, Williams Salim, Mr. Ralph A. McAllister and Mr. S.A. Terrell, for appellees. Messrs. Squire, Sanders Dempsey and Mr. Daniel J. O'Loughlin, for appellant Board of Education of the Cleveland City School District.
R.C. 124.271 was adopted in 1973 and provides, in pertinent part, that:
"Any employee in the classified service of the state or any county, city, city health district, general health district, or city school district who is appointed provisionally to fill a vacancy and who remains in provisional status in the same classification for a period of two years of continuous service, during which period no competitive examination is held, becomes a permanent appointee in the classified service at the conclusion of such two year period."
The basic issue raised by the appellant board of education is whether this statute contravenes Section 10, Article XV of the Ohio Constitution, which provides that:
"Appointments and promotions in the civil service of the state, the several counties, and cities, shall be made according to merit and fitness, to be ascertained, as far as practicable, by competitive examinations. Laws shall be passed providing for the enforcement of this provision."
In Karrick v. Bd. of Edn. (1963), 174 Ohio St. 467, this court, on rehearing, unanimously adopted the reasoning of Chief Justice Taft in a concurring opinion to the original decision ( 174 Ohio St. 73, 81) that "since school districts are not mentioned in Section 10 of Article XV, its limitations on the power of the General Assembly to enact laws relating to `appointment and promotions in the civil service' are not applicable to * * * appointments and promotions in the civil service of city school districts." Justice Taft also concluded, at page 80, that the General Assembly has the power to enact civil service laws applicable to schools by reason of Section 7 of Article I of the Ohio Constitution, which provides that "`it shall be the duty of the General Assembly to pass suitable laws * * * to encourage schools and the means of instruction.'" See, also, State, ex rel. Giovanello, v. Lowellville (1942), 139 Ohio St. 219; State, ex rel. Jackman, v. Court of Common Pleas (1967), 9 Ohio St.2d 159, 163.
Under the holding and the reasoning in Karrick, Section 10 of Article XV does not apply to laws relating to civil service appointments and promotions in city school districts, and therefore R.C. 124.271, insofar as it applies to city school districts and to the appellees herein, employees of a city school district, is not affected by Section 10 of Article XV. Accordingly, the judgment of the Court of Appeals in this cause is reversed.
Judgment reversed.
O'NEILL, C.J., HERBERT, CELEBREZZE, W. BROWN, P. BROWN, SWEENEY and LOCHER, JJ., concur.