Opinion
No. 79-1394
Decided May 21, 1980.
Mandamus — Public employees — To recover back pay and attorney's fees — Action maintainable, when.
APPEAL from the Court of Appeals for Cuyahoga County.
Appellant, Gloria Colangelo, was employed by the Cuyahoga County Sheriff's Office. She was removed from her position on January 2, 1977, by Sheriff Gerald T. McFaul, appellee herein. The removal was appealed to the State Personnel Board of Review. On January 3, 1978, the board ordered that the order of removal be disaffirmed. Appellee herein appealed that order to the Court of Common Pleas of Cuyahoga County. That appeal was dismissed, however, because appellee violated Local Rule 28.
On March 29, 1979, appellant's attorney sent a certified letter to appellee's attorney formally notifying him that appellant intended to return to work and that she be given her back pay as soon as possible. He received no response either to this or to a second letter.
On June 21, 1979, appellant filed a complaint in mandamus in the Court of Appeals for Cuyahoga County asking that a writ issue requiring appellee to reinstate her effective January 2, 1977, with back pay. She also prayed for costs and attorney's fees, alleging bad faith in appellee's refusal to reinstate her with back pay.
The Court of Appeals issued the writ ordering appellant reinstated, but denied the back pay. The court did not rule on the request for attorney's fees.
The cause is now before this court upon an appeal as of right.
Messrs. Lucas, Prendergast, Albright, Gibson, Newman Gee, Mr. James E. Melle and Mr. John F. Gillespie, for appellant.
Mr. John T. Corrigan, prosecuting attorney, and Mr. David A. Williamson, for appellee.
Appellant alleges that the Court of Appeals erred when it held that appellee had no clear legal duty to pay past compensation since the State Personnel Board of Review made no ruling concerning it and that she had an adequate remedy at law for it by commencing a separate action.
We agree. "An action in mandamus is maintainable by a reinstated public employee to recover compensation due him for the period of time during which he was wrongfully excluded from his employment, provided the amount recoverable is established with certainty." State, ex rel. Martin, v. Columbus (1979), 58 Ohio St.2d 261, paragraph one of the syllabus. We also agree with appellant that the Court of Appeals erred in not ruling on her request for attorney's fees. See Sorin v. Bd. of Edn. (1976), 46 Ohio St.2d 177.
Accordingly, the judgment of the Court of Appeals as to the questions of back pay and attorney's fees is reversed and the cause remanded to that court for further proceedings.
Judgment reversed in part and affirmed in part, and cause remanded.
CELEBREZZE, C.J., HERBERT, W. BROWN, P. BROWN, SWEENEY, LOCHER and HOLMES, JJ., concur.