Opinion
No. 30415
Decided March 6, 1946.
Civil service — Appointing authority not permitted to assert competitive examination of person — Not practical to determine merit and fitness — Position deemed in competitive class and incumbent appointed after competitive examination — Cincinnati director of recreation not a secretary, assistant or clerk — Sections 486-8 (a) and (b), General Code — Director may be removed only after charges preferred — Section 486-17a, General Code.
1. The appointing authority will not be permitted to assert that it is not practicable to determine by competitive examination the merit and fitness of a person for a given position, where that position has been deemed in the competitive class of the classified civil service as provided for in Section 486-8 (b) 1, General Code, and is being filled by such person after a competitive examination before the civil service commission, the certification of his name, as one of the three persons who had the highest grades, to the appointing authority upon its requisition and his appointment pursuant thereto.
2. The director of recreation of the city of Cincinnati is not a secretary, assistant or clerk within the meaning of those words as used in paragraph 8, subdivision (a) of Section 486-8, General Code, and is not specifically included by statute in the unclassified service.
3. Such a director of recreation, who has been appointed after competitive examination and certification by the proper civil service commission to the appointing authority on its requisition, can be removed only pursuant to the provisions of Section 486-17 a, General Code.
APPEAL from the Court of Appeals of Hamilton county.
On December 15, 1944, the plaintiff, Tam Deering, brought an action in the Court of Common Pleas of Hamilton county, Ohio, against the Public Recreation Commission of the city of Cincinnati, the members thereof and James A. Kashbaum, head engineer clerk of the commission, to enjoin the defendants from removing the plaintiff from the position of Director of Recreation of the Public Recreation Commission of the city of Cincinnati.
A permanent injunction against such removal was granted to the plaintiff and thereupon defendants took an appeal to the Court of Appeals on questions of law and fact.
Upon trial in that court, the injunction was dissolved and the action dismissed.
This court allowed a motion to certify the record.
The plaintiff, however, has been kept in his position as director of recreation by orders of suspension pending final determination of the case.
Considerable evidence was adduced upon trial in the Court of Appeals, but the controlling facts are not in dispute and present questions of law only. The cause in no way involves the capacity of plaintiff to fill the position or the manner in which he performed his duties.
The position of director of recreation had been listed in the classified service of the city of Cincinnati for several years prior to 1931, and, there being a vacancy in the position in that year, the civil service commission of that city took steps to hold a competitive examination for the selection of three names to certify to the public recreation commission from which that body might make a selection to fill the vacancy. Various persons throughout the country were invited to take the examination, with the assurance that the position was in the classified service. Among others the plaintiff responded and had next to the highest grade in the examination. He was therefore one of three whose names were certified to the public recreation commission on its written request and he received the appointment. The official record of the action of the civil service commission and the recreation commission appears on a single sheet of paper headed "Requisition, Certification, and Appointment." The requisition is dated February 9, 1932, and requests a certification of names from the eligible list. Therein the position sought to be filled is referred to as in the classification, director of recreation, with an annual salary of $6,000. The requisition is signed by Walter S. Schmidt, department head of the recreation commission. The certification is dated the same day, and contains three names one of which was that of plaintiff, as stated. The official appointment is in the following language:
"To the civil service commission: From the above certification, the names checked () and initialed above in red ink are hereby appointed for a probationary period of 90 days, effective February 23, 1932. Walter S. Schmidt, Appointing Officer for Department."
The name of Tam Deering was so checked and approved and he being thus appointed, filled the position for the probationary period. At the expiration of that period the appointment was made permanent and the plaintiff has now served in the position for more than 14 years.
On December 12, 1944, the recreation commission passed a resolution which provided in substance that although the position of director of recreation had theretofore been treated as in the classified service, it was the unanimous opinion of the recreation commission that the position, being properly in the unclassified service, would therefore in the future be treated as in that service. Notice of the passage of this resolution was duly given to the civil service commission on the same day.
On December 14, 1944, the recreation commission determined by resolution to discontinue the plaintiff's service as director of recreation as of December 31, 1944, and notified him of such action.
The Public Recreation Commission of the city of Cincinnati was established by Section 14 of Article VII of the city charter adopted in 1926. Section 3, Article V of that charter provides, inter alia:
"The council shall have no power to modify the provisions of the laws of the state of Ohio now or hereafter in effect relating to the civil service and civil service commissions. * * *"
The administrative code of that city empowers such commission to equip, operate, supervise and maintain all existing courses, tennis courts, baseball diamonds, indoor recreation centers, municipal camps and other recreational facilities.
It is further provided in the administrative code that the recreation commission shall be authorized to appoint a director of public recreation and such supervisors, instructors, clerks and other employees as shall be provided for by ordinance; and that such director shall have authority to contract for the services of umpires, referees, special directors and instructors, musicians, accompanists and other employees to perform special and occasional duties.
In his previous employment, plaintiff received a salary of $6,500. Although when he entered on the duties of his present position plaintiff received a salary of $6,000, in recent years it has been somewhat increased. By reason of his long service he can, if allowed to remain in his position until he is 60 years of age, retire with an annuity for life, valued at many thousands of dollars, whereas if he is dismissed, the amount he will receive from the fund will be comparatively small. He is now about 57 years of age.
Messrs. Paxton Seasongood, for appellant.
Mr. John D. Ellis, city solicitor, and Mr. Nathan Solinger, for appellees.
In the consideration of the questions presented, it must be kept in mind that the record discloses that the relator duly qualified for and was appointed to a position in the classified service and has continued in that same position for a period of more than fourteen years.
The Court of Appeals, hearing this case de novo, found as conclusions of law (a) that the position of director of recreation is and, at all times during plaintiff's incumbency, has been in the unclassified civil service and (b) that such director, holding his position at the pleasure of the public recreation commission, was lawfully dismissed from his position by such commission.
The appellate court based its conclusion upon pertinent parts of Section 486-8, General Code, which are as follows:
"The civil service of the state of Ohio and the several counties, cities and city school districts thereof shall be divided into the unclassified service and the classified service.
"(a) The unclassified service shall comprise the following positions, which shall not be included in the classified service, and which shall be exempt from all examinations required in this act: * * *
"8 * * * and two secretaries, assistants or clerks and one personal stenographer for other elective officers and each of the principal appointive executive officers, boards or commissions, except civil service commissions, authorized by law to appoint such secretary, assistant or clerk and stenographer. * * *
"(b) The classified service shall comprise all persons in the employ of the state, the several counties, cities and city school districts thereof, not specifically included in the unclassified service, to be designated as the competitive class and the unskilled labor class.
"1. The competitive class shall include all positions and employments now existing or hereafter created in the state, the counties, cities and city school districts thereof, for which it is practicable to determine the merit and fitness of applicants by competitive examinations. * * *" (Italics ours.)
The Court of Appeals reasoned that the position of director of recreation is comprehended within the provisions of paragraph 8, subdivision (a), quoted above; that such position, being fiduciary in character, was not one for which it was practicable to determine merit and fitness by competitive examination; and that the resolution of the recreation commission declaring the position of director to be in the unclassified service did not actually fix a status but only gave recognition to the true legal status which had obtained since the creation of the position. State, ex rel. Myers, v. Blake, Dir., 121 Ohio St. 511, 169 N.E. 599, is cited and relied on, but in that case, rightly or wrongly, the position in question was put in the unclassified service by order of the civil service commission. There is no express statutory provision that prevents the merit and fitness of an applicant for a position, the duties of which are of a fiduciary or confidential nature, from being determined by competitive examination and the fact that the duties performed by plaintiff were of such a nature, if they were, did not of itself require that injunctive relief be denied him.
Under the statutory provisions quoted above, the competitive class of the classified service in a city shall include all positions and employments for which it is practicable to determine the merit and fitness of applicants by competitive examination, but excepting therefrom all positions specifically included in the unclassified service.
Is the recreation commission, as the appointing authority, permitted to raise the question whether it was practicable to determine plaintiff's merit and fitness by competitive examination?
The plaintiff took the civil service examination and, upon the request of the recreation commission, his name was certified with the names of two others as provided by law. Thereupon the plaintiff received the appointment which was in all respects regular and he served for years without interference. Now it is asserted that it was not practicable to ascertain his merit and fitness by competitive examination. The practicability of a test by examination was here, as it usually is, a question of fact. The civil service commission, by giving the examination and certifying the names, and the recreation commission, by requesting in writing the certification and appointing the plaintiff, recognized that it was practicable to determine the merit and fitness of applicants for the position by competitive examination. In State, ex rel. Hoskins, v. Ohio Board of Administration, 92 Ohio St. 457, 459, 111 N.E. 283, it was held that the appointing authority, having requested the state civil service commission to furnish a list of names eligible for appointment to a given position after competitive examination, could not be heard to claim that it was not practicable, by such an examination, to determine the merit and fitness of applicants for that position. There was no actual appointment in that case. The same principle applies here but the basic facts herein are stronger. In addition to the request for a list of names, there were the subsequent certification, the appointment of plaintiff to the position, the acceptance by him with the understanding and assurance that he was to be in the classified service and the years of actual service before any question was raised as to the security of his tenure. The factual determination as to practicability, which rested with and was made by the civil service commission in the first instance and was acquiesced in and sanctioned by the recreation commission by its request for a certification of names and by its appointment of plaintiff from the names certified, should not be disturbed by the court now. It might well be urged that the classified service status of the plaintiff thus established by word and deed continues by every principle of justice so long as he holds the position; and surely, the defendants cannot be heard to raise the question of impracticability as a justification for the plaintiff's removal from the classified service or for his dismissal from his position as of December 31, 1944.
Was the position of director of recreation specifically included in the unclassified service?
There are twelve paragraphs in Section 486-8 specifically mentioning positions and employments which shall not be included in the classified service and which shall be exempt from all examinations. No claim is made that the position in controversy here could or does come within any other provision than the portions of paragraph 8 quoted above. Counsel for defendant urge that the director of recreation properly comes within the category of "secretaries, assistants, or clerks" and so is and was at all times in the unclassified service.
No doubt the recreation commission could have recognized the position of secretary, assistant or clerk and employed the plaintiff to fill it, if willing, without any examination. Then he would not have been in the classified service. But that course was not followed and the statutory provisions did not require that it should have been. "Two secretaries, assistants or clerks" may be needed by some commissions and not by others. Certainly the law does not require the employment of help not needed. In our judgment the provision as to these positions is therefore directory and not mandatory, and discretion as to filling such a position is vested in the appointing power. On the other hand, had the plaintiff been appointed a secretary, assistant or clerk he would not have been director of recreation. That position is specifically created by ordinance with prescribed powers and does not fall under the head of "secretaries, assistants or clerks" as used in the statute. Therefore the position held by the plaintiff is not specifically included in the unclassified service or exempted from examinations.
Was the plaintiff wrongfully dismissed from his position?
Since the defendants cannot question the practicability of determining plaintiff's merit and fitness by competitive examination and since the position held did not come within the meaning of "secretaries, assistants or clerks," or any other exceptions in paragraphs 1 to 12 inclusive of subdivision (a) of Section 486-8, the plaintiff is in the classified service and can be removed only for misfeasance, malfeasance or nonfeasance in accordance with the provisions of Section 486-17 a, General Code. Consequently his dismissal was wrongful.
The judgment of the Court of Appeals is accordingly reversed and final judgment rendered in favor of the plaintiff, making the injunction permanent.
Judgment reversed.
WEYGANDT, C.J., ZIMMERMAN, BELL, MATTHIAS and HART, JJ., concur.
TURNER, J., dissents.