Opinion
No. 79-181
Decided July 11, 1979.
Mandamus — To compel reinstatement of part-time city employee — Availability of writ.
APPEAL from the Court of Appeals for Lorain County.
On May 17, 1977, appellant, Robert A. Rieke, was hired as a part-time policeman for the city of Avon Lake. In June 1977, because of the undermanned status of the Avon Lake police department, Rieke became what was described as a "full-time — part-time" policeman, working more than 40 hours a week, but not enjoying the full protection afforded civil service employees.
On September 26, 1977, appellant was appointed to a full-time position as a patrolman, subject to a one year probationary period. However, by letter dated August 19, 1978, appellant's employment was terminated by appellee, Mayor Richard W. Hausrod, effective August 4. Appellant attempted to secure a review of the discharge order from the Avon Lake City Council and the Avon Lake Civil Service Commission. The city council did not formally respond to appellant's request. By letter dated September 5, 1978, the commission advised appellant that, at the time of his discharge, city records showed him to be a probationary employee. On that basis, appellant's request for a hearing was denied by the commission.
On August 25, 1978, appellant filed a complaint in mandamus in the Court of Appeals for Lorain County seeking a writ compelling his reinstatement and recovery of back wages. Appellees filed an answer raising as an affirmative defense appellant's probationary status at the time of his termination from employment. Certain facts were subsequently stipulated by the parties.
On January 18, 1979, the Court of Appeals denied appellant's request for a writ of mandamus on the ground that appellant had as an adequate remedy at law an administrative appeal, pursuant to R.C. 2506.01.
This cause is now before this court upon appeal as a matter of right.
Messrs. Gareau Gareau and Mr. Michael R. Gareau, for appellant.
Messrs. Barnard Becker and Mr. Michael F. Becker, for appellees.
Appellees contend, and the Court of Appeals held, that appellant's dismissal by Mayor Hausrod and subsequent denial of a review by the Avon Lake Civil Service Commission are appealable orders, pursuant to R.C. 2506.01, which provides, in pertinent part, as follows:
"Every final order, adjudication, or decision of any officer, tribunal, authority, board, bureau, commission, department or other division of any political subdivision of the state may be reviewed by the common pleas court of the county in which the principal office of the political subdivision is located, as provided in sections 2505.01 to 2505.45, inclusive, of the Revised Code, and as such procedure is modified by sections 2506.01 and 2506.04, inclusive, of the Revised Code." (Emphasis added.)
However, a limitation has been placed upon the right to appeal under R.C. 2506.01. In the first two paragraphs of the syllabus in M.J. Kelley Co., v. Cleveland (1972), 32 Ohio St.2d 150, this court held the following:
"1. The review of proceedings of administrative officers and agencies, authorized by Section 4(B), Article IV of the Ohio Constitution, contemplates quasi-judicial proceedings only, and administrative actions of administrative officers and agencies not resulting from quasi-judicial proceedings are not appealable to the Court of Common Pleas under the provisions of R.C. 2506.01. ( Fortner v. Thomas, 22 Ohio St.2d 13, approved and followed.)
"2. Proceedings of administrative officers and agencies are not quasi-judicial where there is no requirement for notice, hearing and the opportunity for introduction of evidence."
No such quasi-judicial proceeding is evidenced by the record in the instant cause. Therefore, no administrative appeal, pursuant to R.C. 2506.01 was available to appellant. This does not mean, however, that mandamus lies in the instant cause. In order for a writ of mandamus to issue, it must be established that the appellee is under a clear legal duty to perform an official act. State, ex rel. Pressley, v. Indus. Comm. (1967), 11 Ohio St.2d 141. The Court of Appeals denied the writ for the reason that appellant had an adequate remedy at law by way of appeal and did not make a determination whether under the facts presented appellant was entitled to allowance of the writ.
Accordingly, the judgment of the Court of Appeals is reversed and the cause is remanded to that court for further proceedings.
Judgment reversed.
CELEBREZZE, C.J., HERBERT, W. BROWN, P. BROWN, SWEENEY, LOCHER and HOLMES, JJ., concur.