Summary
In State ex rel. Habe v. S. Euclid (1990), 56 Ohio St.3d 117, 564 N.E.2d 483, the amended charter gave the mayor the authority to promote police applicants from a list of three persons who obtained the highest rating by the civil service commission but did not subject the mayor's powers to the laws of Ohio; we held the charter superseded R.C. 124.44.
Summary of this case from State ex Rel. Lightfield v. Indian HillOpinion
No. 89-1388
Submitted October 16, 1990 —
Decided December 19, 1990.
Public employment — Civil service — R.C. 124.44 — Promotion of police officer — Officer not entitled to promotion, when.
APPEAL from the Court of Appeals for Cuyahoga County, No. 56970.
On November 5, 1987, the Civil Service Commission of South Euclid conducted a promotional examination for the position of sergeant in its police department. Appellant, Carl J. Habe, and four other applicants were successful, with appellant scoring the highest grade on the examination. The commission, in conformity with its rules, the Charter and Administrative Code of the city of South Euclid, and the collective bargaining agreement between the Fraternal Order of Police Local Lodge No. 80 and the city, prepared an eligible list containing three names. Appellant's name appeared first.
Upon notification from the mayor that there were two vacancies in the position of sergeant, the commission, at the mayor's request, submitted four names for his consideration. He appointed two applicants, Charles Madger and Matthew T. Capadona, on March 29, 1988, effective April 3, 1988, both of whom were listed below appellant on the eligible list. Each sergeant completed the prescribed probationary period of six months on October 3, 1988.
On September 30 and October 14, 1988, appellant's attorney, in conferring with the mayor and the law director of South Euclid, contended that, based on the June 8, 1988 decision of the Supreme Court in State, ex rel. Bardo, v. Lyndhurst, 37 Ohio St.3d 106, 524 N.E.2d 447, appellant was entitled to appointment as sergeant in the police department because he obtained the highest grade on the competitive examination and was certified first on the eligible list, and that, in accordance with R.C. 124.44, it was unlawful to appoint applicants who finished second and third, in preference to appellant. No formal action was taken by appellant at that time.
On November 8, 1988, the Charter of South Euclid was amended in relevant part to read as follows:
"Positions above the rank of patrolman in the Police Department * * * shall be filled by a competitive promotional examination and when a vacancy occurs in such position the Mayor shall notify the Civil Service Commission of that fact and the Commission shall certify to the Mayor, for each such vacancy to be filled, the names and addresses of three (3) candidates with the highest rating as established by the Civil Service Commission and the Mayor may appoint any one of the persons so certified. * * *"
In a letter dated November 18, 1988, the mayor advised the police department that Sergeant Capadona would be demoted to patrolman and that appellant would be appointed sergeant in his place. By letter dated November 23, 1988, the mayor countermanded the November 18 letter and advised that appellant's promotion would be held in abeyance.
Appellant filed the instant mandamus action in the Court of Appeals for Cuyahoga County on December 29, 1988 to compel his appointment as sergeant. On June 13, 1989 the court granted appellees' motion for summary judgment, holding that there were no vacancies for the position of sergeant and thus that appellant could not establish a clear right to relief.
Butler, Clarke, Feighan Hyland, Joseph E. Feighan and Dennis F. Butler, for appellant.
Victor E. DeMarco and Robert P. DeMarco, for appellees.
Appellant claims that civil service commission rules that provide for appointments in a municipal police department do not supersede similar but conflicting provisions of R.C. 124.44, and that the court of appeals erred in refusing to issue a writ of mandamus based upon the finding that there were no vacancies in the position of sergeant at the time this action was filed. We disagree.
There is a conflict between the eligible list requirements of R.C. 124.44 and the South Euclid civil service rules. The statute provides that the person having the highest rating shall be appointed. The commission rules authorize the appointing authority to select any one of the three names certified by the commission.
R.C. 124.44, as pertinent, reads:
"* * * No position above the rank of patrolman in a police department shall be filled by any person unless he has first passed a competitive promotional examination. * * * Whenever a vacancy occurs in the position above the rank of patrolman in a police department, and there is no eligible list for such rank, the municipal * * * civil service commission shall, within sixty days of such vacancy, hold a competitive promotional examination. After such examination has been held and an eligible list established, the commission shall forthwith certify to the appointing officer the name of the person receiving the highest rating. Upon such certification, the appointing officer shall appoint the person so certified within thirty days from the date of certification. If there is a list, the commission shall, where there is a vacancy, immediately certify the name of the person having the highest rating, and the appointing authority shall appoint such person within thirty days from the date of such certification. * * *"
We addressed this issue in Bardo, supra, at 108-109, 524 N.E.2d at 450, and stated the general rule that in the event of conflict between a charter provision and a state statute, the charter would prevail, but only where the conflict was by "the express terms of the charter and not by mere inference." In Bardo, supra, at 110, 524 N.E.2d at 451, we referred to State, ex rel. Canada, v. Phillips (1958), 168 Ohio St. 191, 5 O.O. 2d 481, 151 N.E.2d 722, where the municipal charter prevailed because the administrative rule was expressly set forth in the charter.
In the instant case, the conflicting eligible list specifications were first set forth in commission rules as authorized by the municipal charter. However, as in Bardo, supra, the authority to deviate from the statutory standard was not expressly set forth in the South Euclid Charter. On November 8, 1988, no doubt in recognition of our holding in Bardo, supra, the South Euclid Charter was amended so as to include the missing specifications relative to promotional examination and other aspects of employment by the city. Thus, the statutory standard was the applicable standard on March 29, 1988, the time of the appointments here.
Appellant raises equitable arguments why the writ of mandamus should issue, but the writ essentially depends on the existence of a legal right. State, ex rel. Carson, v. Bd. of Edn. (1926), 115 Ohio St. 55, 152 N.E. 646. Appellant could arguably establish a legal right to relief if there had been a vacancy at the time his action was filed.
When relator filed his mandamus action, there were no vacancies for the position of sergeant because the sergeants who were appointed had satisfactorily served their probationary period as of October 3, 1988, and had become permanent employees in the South Euclid Police Department, completing the number of sergeants allotted under the city's administrative code. Thus, appellant, by delaying the filing of his mandamus action until after Madger's and Capadona's appointments became permanent, failed to show either "a clear legal right to the relief prayed for" or "that the respondent is under a clear legal duty to perform the requested act." State, ex rel. Westchester Estates, Inc., v. Bacon (1980), 61 Ohio St.2d 42, 15 O.O. 3d 53, 399 N.E.2d 81, paragraph one of the syllabus.
Consequently, appellant is not entitled to the issuance of the writ, and the judgment of the court of appeals is affirmed.
Judgment affirmed.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.