Opinion
No. 71-168
Decided January 5, 1972.
Municipal corporations — Civil service — Commission has jurisdiction to reconsider decisions — Until appeal or expiration of time therefor — Dismissal of employee in classified service — Commission order disapproving dismissal, final — Mandamus lies to compel reinstatement of employee.
1. An administrative board or agency, including a municipal civil service commission, has jurisdiction to reconsider its decisions until the actual institution of a court appeal therefrom or until expiration of the time for appeal, in the absence of specific statutory limitation to the contrary.
2. Where the employment of a police officer in the classified service of a municipality is terminated, and, upon a hearing requested by the employee before the Civil Service Commission, the commission disaffirms such termination and that order becomes final upon the exhaustion of the remedy of appeal, a writ of mandamus will issue to compel reinstatement of the employee by the municipality.
APPEAL from the Court of Appeals for Cuyahoga County.
Robert J. Borsuk, appellee herein, passed an examination for the position of patrolman in the Division of Police, Department of Public Safety of the city of Cleveland. Upon certification of his name to the appointing authority, he was advised on September 15, 1965, of his appointment as a patrolman, effective September 16, 1965. He was administered the appropriate oath of office on September 15, 1965.
On September 15, 1966, relator was advised in writing by the Director of Public Safety, a respondent-appellant herein, that his employment was terminated. Simultaneously therewith, the director forwarded a letter to the Civil Service Commission advising it that relator's employment had been terminated, as of September 15, 1966, because of unsatisfactory service during his probationary period. On September 19, 1966, relator was advised by the Civil Service Commission that the termination of his employment was approved by the commission.
On September 29, 1966, relator requested a hearing before the Civil Service Commission on the termination of his employment. At the same time, relator filed a notice of appeal to the Court of Common Pleas of Cuyahoga County, the appeal being subsequently dismissed by relator. Upon a hearing before the commission on October 3, 1966, the commission determined that relator had served one day more than the one-year probationary period and rescinded its former order of approval of the termination, substituting therefor an order disapproving the termination of relator's employment.
On October 7, 1966, the Director of Public Safety requested a rehearing by the Civil Service Commission. On October 11, 1966, the Director of Public Safety filed a notice of appeal to the Court of Common Pleas of Cuyahoga County from the October 3, 1966, decision of the commission. On October 17, 1966, the commission refused a rehearing on the ground that it lacked jurisdiction because of the appeal to court by the Director of Public Safety and the earlier appeal of relator.
At the hearing before the Common Pleas Court on the appeal of the director, the parties agreed to submit an initial issue of whether the court had jurisdiction to entertain an appeal by an appointing authority. The court, on April 15, 1969, entered a judgment that the court was without jurisdiction, ordered the appeal dismissed, and further ordered that relator be reinstated to his former position. The judgment was affirmed on May 11, 1970, by the Court of Appeals and a motion to certify the record was overruled by this court on September 24, 1970.
Section 131, Chapter 27 of the Charter of the city of Cleveland, provides, in part, that at the end of the probationary period, the appointing officer shall transmit to the commission a record of the employee's service certifying that such service has been satisfactory or unsatisfactory, and if such service is unsatisfactory the employee may, with the approval of the commission, be removed.
Section 121, Chapter 25 of the Charter of the city of Cleveland, provides for an appeal to the Civil Service Commission by any person in the classified service who has been dismissed. The commission is authorized to "affirm, disaffirm or modify" the judgment of the director of the department involved and it is provided further that the "judgment of the commission in the matter shall be final."
On November 2, 1970, Borsuk filed this mandamus action in the Court of Appeals, alleging that respondents, city of Cleveland, the Mayor and the Director of Public Safety, although requested, had refused to reinstate him to his position. Relator sought an order requiring respondents to reinstate him to his position of patrolman in the Cleveland Police Department and for his wages due him as an emolument of his office. The court entered judgment granting the relief sought. Respondents appeal as a matter of right to this court.
Messrs. Barragate Barragate and Mr. Phillip C. Barragate, for appellee.
Mr. Clarence L. James, Jr., director of law, Mr. Jay L. Loeb and Mr. William D. Moore, for appellants.
Appellants assert, in substance, that the court below erred in issuing the writ of mandamus for the reason that relator did not show a clear right to the relief sought.
This assertion is supported by an argument that since the Common Pleas Court held, in the appeal by respondents from the Civil Service Commission order, that the court had no jurisdiction of the appeal, the court should have dismissed the appeal and was without authority to order reinstatement. It is then argued that since the judgment could go no further than to order a dismissal for lack of jurisdiction, the Civil Service Commission retained jurisdiction to entertain the request for rehearing filed by respondents, and, until the commission ruled, the Civil Service Commission order disapproving of relator's dismissal was not final and a basis for mandamus relief.
Whatever merit may exist in the contention that the portion of the Common Pleas Court judgment ordering reinstatement was a nullity, appellants' conclusion that the Civil Service Commission retained rehearing authority is without merit in light of the prior decisions of this court.
In Diltz v. Crouch (1962), 173 Ohio St. 367, an issue was presented to this court as to the authority of the Board of Liquor Control to modify an order of revocation after an appeal had been taken to court and the order affirmed. In holding that the board lacked such authority, it was reasoned that, absent specific statutory authority or rule, official boards or administrative agencies have jurisdiction to reconsider decisions only until the actual institution of a court appeal therefrom or until expiration of the time for appeal. Reliance was placed upon the decisions of this court announcing the same rule in National Tube Co. v. Ayres (1949), 152 Ohio St. 255 (rehearing authority of Board of Tax Appeals); Mariemont v. Schaefer (1961), 171 Ohio St. 481; and State, ex rel. Maxson, v. Bd. of County Commrs. (1958), 167 Ohio St. 458 (rehearing authority of county commissioners in annexation proceedings).
Of particular relevance here is a claim raised by plaintiffs in Diltz that since, on appeal, courts have no juridiction over the penalty imposed by the Board of Liquor Control jurisdiction to modify must rest with the board. In answer to the claim, the opinion states:
"* * * And we concede that it does — up to the point that an appeal is taken from the imposition of the penalty on the time for appeal has expired. But we do not agree that, merely because a court has no jurisdiction to modify a penalty, the board, therefore, must have that jurisdiction ad infinitum."
In State, ex rel. Prayner, v. Indus. Comm. (1965), 2 Ohio St.2d 120, the Diltz decision was cited as authority for a holding that the Industrial Commission has control over its orders until the actual institution of an appeal therefrom or until the expiration of the time for such an appeal.
Relator asserts in his brief that there exists no specific authority either in the Charter of the city of Cleveland or Rules of the Civil Service Commission as to reconsideration authority by the commission, and respondents have cited none to this court.
At the time of hearing of this cause below, the order of the Civil Service Commission disapproving the termination of relator's employment had become final by exhaustion of appellate remedies in the direct appeal from the order. The office of the remedy of mandamus is to compel the performance of a duty specifically enjoined by law. State, ex rel. Brophy, v. Crawford (1934), 127 Ohio St. 580; State, ex rel. Selected Properties, v. Gottfried (1955), 163 Ohio St. 469; Cleveland, ex rel. Neelon, v. Locher (1971), 25 Ohio St.2d 49.
Under the facts of this case, respondents were under a clear legal duty to reinstate relator to his employment, and the Court of Appeals was correct in the issuance of a writ of mandamus to compel performance of that duty.
Judgment affirmed.
O'NEILL, C.J., SCHNEIDER, HERBERT, BRENNEMAN, CORRIGAN and LEACH, JJ., concur.
BRENNEMAN, J., of the Ninth Appellate District, sitting for DUNCAN, J. JUDGE BRENNEMAN of the Court of Appeals was, pursuant to Section 2 of Article IV of the Constitution of Ohio, duly directed by the Chief Justice "to sit with the justices of the Supreme Court in the place and stead of" JUSTICE DUNCAN and JUDGE BRENNEMAN did so and heard and considered this cause prior to the resignation of JUSTICE DUNCAN on November 28, 1971.
STEPHENSON, J., of the Fourth Appellate District, sitting for STERN, J.
While I am in essential agreement with the opinion by Judge Stephenson, I would also place emphasis on the fact that, although one branch of municipal government cannot appeal to the courts from a ruling by another branch of the same government, in the absence of specific statutory authority, the Director of Public Safety of Cleveland by purporting to appeal the order of the Cleveland Civil Service Commission of October 3, 1966, very effectively precluded an orderly hearing by the commission of the director's request for rehearing. Moreover, whether the reasons stated by the commission in refusing a rehearing on October 17, 1966, were or were not legally sound, the inescapable fact is that it did refuse a rehearing. Thus, the rehearing application is not still pending before the commission awaiting decision, as respondents assert, and the order of October 3, 1966, has long since become a final order of the commission.