Summary
In Polen, the Court stated, "It was not that the litigation could create a cloud over respondent's title to the office nor was it [respondent's] duty to take affirmative action.
Summary of this case from State ex Rel. Perkins v. MerrileesOpinion
No. 73-197
Decided October 24, 1973.
Civil service — Competitive promotional examination — Grading — Civil service law not fully complied with — No irregular conduct by candidates — Probationary period completed — Quo warranto — Not available to prevent permanent appointment, when — R.C. 143.27.
Where a candidate is certified as having scored the highest grade in a promotional civil service examination that was not graded in full conformity with civil service law, and where it does not appear that the candidate so certified knew of or participated in the irregular grading, he will not be replaced by one bringing an action in quo warranto who failed to take affirmative action to prevent the certification and permanent appointment.
APPEAL from the Court of Appeals for Hancock County.
This is an action in quo warranto instituted in the Court of Appeals by a claimant for the position of assistant chief of the fire department of the city of Findlay, Ohio. Most of the facts are stipulated and not subject to dispute.
On May 20, 1971, the Civil Service Commission of Findlay, having been notified of a vacancy in one of the three positions of assistant fire chief, administered a competitive promotional civil service examination to relator, Polen, respondent, Wymer, and a third party. The highest scores in the test were achieved by:
Wymer Polen Raw score on written exam 87% 87.0% Seniority credit 10% 10.0% Efficiency credit 10% 9.8% Total 107% 106.8%
Accordingly, on May 28, 1971, the commission certified the respondent to the acting Service Safety Director of the city as having attained the highest score on the examination. On June 14, 1971, respondent was notified by the acting director of his appointment to the position of assistant fire chief. The difference in efficiency credit was obviously the determinative factor in the grading.
Within five days after relator received notice of the examination grading, he appealed, pursuant to R.C. Section 143.341, to the Civil Service Commission, complaining of the illegal and improper use of the efficiency credits in computing the grades.
There is no assertion, direct or indirect, that respondent achieved his score by illegal means. In fact, it is stipulated that both relator and respondent took the examination in good faith. Both attempted to comply with the applicable parts of the statutes, and neither had prior knowledge of the procedures the commission used to compute the scores. That appeal, to which respondent was not a party, was denied on June 22, 1971. On July 2, 1971, relator appealed the ruling of the commission to the Court of Common Pleas, which rendered its decision on January 19, 1972. The court held that the efficiency credits had been improperly applied, and it directed the commission to recompute the grades for the examination solely upon the basis of the written examination and the seniority credits.
The new total resulted in a tie score. Relator claims that such a tie should result in his being certified. He cites as support the provision of R.C. 143.342 that: "In the event two or more examinees receive the same grade, seniority in the fire department service shall determine the order of their names." Since it is stipulated that relator began his service with the department on March 16, 1951, and that the respondent began his service on May 1, 1956, relator contends that he, not respondent, should have been certified. Even though the appointing authority was notified on March 13, 1972, that the recomputation of the grades resulted in a tie, it took no action to remove respondent from his position.
Meanwhile, respondent, whose appointment to the position of assistant fire chief became effective on June 10, 1971, completed his probationary period; and on December 15, 1971 — a month before the decision of the Common Pleas Court was rendered — he received a permanent appointment to the position. It should be noted that respondent was not made a party to the appeals, to either the commission or to the Common Pleas Court.
After the appointing authority had failed to act, relator filed this action in quo warranto in the Court of Appeals, alleging that he was entitled to the position under the provision of R.C. 143.342 cited, supra. The Court of Appeals denied the writ, concluding that:
"* * * in the present case the error of the board in certification is subject to correction, may be and has been corrected, but this does not affect the tenure rights of one appointed originally under the erroneous certification through no fault or connivance of his own, but who has satisfactorily passed his probationary period and attained his permanent appointment before any challenge is directed to his holding the position in question."
The cause is now before this court pursuant to an appeal as of right.
Mr. Russell E. Rakestraw, for appellant.
Messrs. Hinton, Noble Bryant and Mr. Carl W. Hinton, for appellee.
Respondent contends that (1) an appointee to the position of assistant fire chief pursuant to the civil service statutes can be removed only for cause, as provided in R.C. 143.27, and (2) the position of assistant fire chief is not a public office subject to a writ of quo warranto.
In response to the first contention, respondent was appointed to the position of assistant fire chief on June 14, 1971, effective June 10, 1971, eleven days after relator appealed the grading to the commission. His appointment was made permanent on December 15, 1971, over six months after the ruling of the Civil Service Commission was appealed to the Common Pleas Court. So, as the relator was perfecting his appeals in an attempt to overturn the grading by which respondent was certified for the office they sought, respondent was securing his hold on the office. Relator took no legal action to stop respondent.
Relator responds that his appeal was brought under R.C. Section 143.341 and that this section does not require or even provide for joinder of any other participants. Relator nevertheless knew that at the time of filing the appeals the ultimate resolution of the case in his favor would affect respondent's claim to the office. It was not that the litigation could create a cloud over respondent's title to the office nor was it his duty to take affirmative action. Rather, it was the relator's duty to seek appropriate relief to prevent respondent from further securing his claim to the office, by such means as enjoining the certification and the appointment or obtaining a stay of the proceedings pending the outcome of the appeals.
In our earlier case of Kluth v. Andrus (1952), 157 Ohio St. 279, the court refused to replace a tenured officeholder, who had obtained his office by irregular activity on the part of the Civil Service Commission in grading the examinations, with one who would have been entitled to the office if the regular legal procedures had been followed.
This position was reaffirmed in State, ex rel. Mikus, v. Hirbe (1966), 7 Ohio St.2d 104, 107, where the court concluded that:
"It appears on the basis of Byrd and Kluth that, where the appointee before his appointment complies as far as he is able with the rules governing the promotional examination and after his appointment satisfactorily serves his probationary period, a dereliction of duty on the part of the commission does not frustrate the appointee's effort to secure the benefits of the civil service laws, e.g., that he can be removed from office only for cause pursuant to Section 143.27 of the Revised Code."
In the instant case, there is evidence that the respondent complied, in so far as he was able, with the rules governing the promotional examination. In fact, it is stipulated that he acted in good faith and had no prior knowledge of the procedures the commission would use in the grading. Furthermore, since respondent has satisfactorily served his probationary period, and since there is nothing in the record to indicate cause why respondent should be removed pursuant to R.C. 143.27, this court will not order his removal.
The case of State, ex rel. Ethell, v. Hendricks (1956), 165 Ohio St. 217, is cited as a case where a writ of quo warranto was issued to settle a dispute over an office arising because the commission illegally included in its examination both an oral and a written part. That case is distinguishable because the record does not indicate that the officeholder therein had completed his probationary period and succeeded to tenured rights.
Since this cause is determined by consideration of the first issue, we will not rule upon the issue of the scope of quo warranto actions.
For the foregoing reasons, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
O'NEILL, C.J., CORRIGAN, STERN, CELEBREZZE, and P. BROWN, JJ., concur.
I believe that we also should have addressed ourselves to the proposition of law regarding the propriety of quo warranto under the instant facts.