Opinion
No. 78-297
Decided December 4, 1978
Quo warranto — Writ denied, when — Respondent not exercising a "public office."
APPEAL from the Court of Appeals for Summit County.
On June 6, 1977, an amended complaint in quo warranto was filed in the Court of Appeals by Nicholas Buian stating that he was employed as personnel director of the city of Akron by a contract with the civil service commission to extend through December 31, 1978; and that he submitted by letter dated March 18, 1977, his resignation to Jack Moye, president of the civil service commission, "effective on the pay period ending March 19, 1977." On March 20, 1977, Nicholas Buian delivered to the homes of Jack Moye and Robert Wheeler, vice president of the civil service commission, a letter withdrawing the letter of resignation dated March 18, 1977. A similar letter was delivered to, what Buian believed to be, the home of John E. Holcomb, the Law Director of the city of Akron.
On March 21, 1977, the civil service commission met and designated Richard F. Pamley as temporary personnel director. Later, Nancy Kadlec, respondent herein, was named to the position of personnel director.
The answer of Pamley, which serves as the answer of respondent Kadlec, states, basically, that the position of personnel director is not a public office and quo warranto does not lie. In addition, it is contended that the relator resigned effective March 19, 1977, and any attempt to withdraw such resignation after that date is of no force and effect.
Relator prayed that he be restored to the position of personnel director of the city of Akron.
On December 29, 1977, the Court of Appeals, dismissing the complaint, found that the position of personnel director of the city of Akron was not a "public office" within the purview of R.C. 2733.06 and that, therefore, quo warranto would not lie.
The cause is now before this court pursuant to an appeal as of right.
Mr. John R. Vintilla, for appellant.
Mr. John E. Holcomb, director of law, and Mr. Edward J. Riegler, for appellee.
R.C. 2733.06 provides that:
"A person claiming to be entitled to a public office unlawfully held and exercised by another may bring an action therefor by himself or an attorney at law, upon giving security for costs."
Obviously, such action does not lie unless the person against whom it is brought is exercising a public office.
Section 104 of the Charter of the city of Akron establishes the position of personnel director and states that "[t]he Civil Service Commission * * * shall appoint a Personnel Director * * *." In addition Section 106 of the charter specifically outlines the duties of the personnel director and states that such duties are performed under the direction of the commission. The Court of Appeals had before it testimony indicating that the position of personnel director is by appointment and that it is a contractual form of employment for a specific period of years. Under these facts the position of personnel director is not a "public office." A "public office" generally denotes exercise of certain independent public duties and embodies part of the sovereignty of the governmental unit involved. The position of personnel director has only the attributes of a mere employment, the holder thereof being subject to the direction and control of the civil service commission. Cf. State, ex rel. Atty. Genl., v. Jennings (1898), 57 Ohio St. 415.
In addition, this court has already decided in State, ex rel. Buian, v. Kadlec, 53 Ohio St.2d 239, an earlier appeal involving these same parties, that quo warranto is not relator's proper avenue for redress since the respondent, Kadlec, has prima facie title to the office of personnel director.
"A writ of quo warranto issues only where there is a clear legal right to the relief requested and is not the proper remedy to test the right of a person having prima facie title to an office. `The proper method of procedure in a case of this character is by mandamus rather than quo warranto.' State, ex rel. Keyser, v. Babst (1920), 101 Ohio St. 275, 281." Kadlec, supra, at page 240. This court, in Kadlec, further characterized the nature of the dispute between the parties hereto as follows:
"* * * [t]he propriety of the relief here requested is obviously bottomed upon resolution of a contractual law question. It is not the obligation of this court or the Court of Appeals to resolve contractual disputes in the guise of applications for extraordinary writs, especially in view of the fact that appellant has a plain and adequate remedy in the ordinary course of the law under either Section 116 of the Akron City Charter or a declaratory judgment proceeding under R.C. 2721.03."
Accordingly, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
LEACH, C.J., HERBERT, CELEBREZZE, W. BROWN, P. BROWN, SWEENEY and LOCHER, JJ., concur.