Opinion
No. 76-98
Decided June 23, 1976.
Municipal corporations — Office and officer — Member of city council — Qualifications — Municipal charter — Council member not to hold other public employment — Teacher elected to council — Quo warranto — Writ allowed.
IN QUO WARRANTO.
This is an action in quo warranto originating in this court. Relator, city of Garfield Heights, alleges adoption of a Municipal Charter in effect since November 6, 1956, and sets out Section 9 thereof relating to qualification of members of City Council which reads, in pertinent part, "* * * [m]embers of council shall not hold any other public office or public employment except as otherwise provided in this charter * * * Any member who shall cease to possess any of the qualifications herein required shall forthwith forfeit his office * * *." Relator alleges that respondent, Anthony J. Nadratowski, occupies the office of City Councilman of Ward 7 of such city as a result of being elected thereto on November 4, 1975. Continuing, relator alleges that respondent was at the time of his election, and continues to be, employed as a school teacher for the Board of Education of the Garfield Heights School District. Thus, relator contends, respondent holds his office illegally in that he fails to possess the qualification prescribed by the charter.
Respondent's answer admits all but one of the material facts alleged in the complaint, including paragraph three thereof which sets out Section 9 of the charter. Respondent denies, however, paragraph two of the complaint, which states, "[p]ursuant to the Constitution and laws of the state of Ohio, the electors of Garfield Heights have adopted a Municipal Charter which has been in effect since November 6, 1956." Respondent then sets up two affirmative defenses which are that: (1) If Section 9 of the charter disqualifies him from office, then it is unconstitutional; and (2) relator has paid him with knowledge of the facts, and laches thus prevents the seeking of ouster.
Mr. Francis X. Reddy, Jr., director of law, for relator.
Messrs. Newman Newman, Mr. Joel I. Newman and Mr. Gordon Biggs, for respondent.
Respondent contends that summary judgment is not now appropriate inasmuch as the status of Garfield Heights as a charter city is in issue. No affidavits or other evidentiary support is submitted by respondent to support his denial of the complaint's allegation relating to the adoption of a charter by the electors of Garfield Heights. Thus, respondent has failed to comply with Civ. R. 56(E) which requires that he "* * * must set forth specific facts showing that there is a genuine issue for trial." Respondent's answer, which admits paragraph three of the complaint which sets forth Section 9 of the Charter, presents a patent inconsistency with his apparent denial of the charter's existence, further emphasizing why respondent can not here rest upon such denial to avoid summary judgment.
Disposition of this case is made upon the basis of State, ex rel. Platz, v. Mucci (1967), 10 Ohio St.2d 60, on both the question of whether a public school teacher is in public employment and whether a charter provision prohibiting a member of council from holding "other public office or public employment" is constitutional. Thus, we hold that a public school teacher receiving a salary supported by tax moneys is in other public employment, and the creation of a class prohibited as to "public employment" has a reasonable basis so as to be within the equal protection clause of the federal Constitution.
The filing of this action in this court was authorized on January 26, 1976, by resolution of the city council of relator, and was so filed on February 2, 1976. The time lapse between the action of relator to obtain judicial determination herein and respondent's election of November 4, 1975, was not inexpedient nor was relator's payment of respondent's salary tantamount to a condonation. The issue here is the right of respondent to the office of member of city council in light of the qualification and forfeiture provision as aforesaid and does not involve a question of entitlement to salary. The defense of laches is not well taken.
Accordingly, a writ of quo warranto is allowed.
Writ allowed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.