Opinion
Nos. 29015 and 29016
Decided July 1, 1942.
Civil service — Classified service — Incumbent appointed from list duty certified to appointing officer — Removal governed by statutory reasons and procedure, when — Sections 486-13 and 486-17a, General Code — Incorrect certification of eligible list may be corrected — Peremptory dismissal of employee appointed through incorrect certification, not authorized, when.
1. The removal of one regularly appointed to a position in the classified service from a list of persons whose names had been duly certified to the appointing officer in accordance with the provisions of Section 486-13, General Code, and who had rendered satisfactory service for more than 90 days is governed by the provisions of Section 486-17 a, General Code.
2. Though an incorrect certification of an eligible list from which appointments to positions in the classified service are to be made may be subsequently corrected, such change does not authorize the peremptory dismissal of an employee who prior thereto had been appointed pursuant to such certification and served satisfactorily longer than the probationary period.
IN MANDAMUS.
These original actions in mandamus in this court are grounded upon the same state of facts and were argued and submitted together. They will be thus considered and decided.
The relator in one case and the relatrix in the other seek reinstatement to the position of investigator for the Division of Aid for the Aged, Department of Public Welfare of the state, to which each claims to have been duly appointed August 1, 1941, and from which it is asserted each was wrongfully and unlawfully discharged November 15, 1941.
Issue was made by petition, answer and reply, and was submitted to the court upon an agreed statement of facts and certain exhibits thereto attached. The facts essential to a consideration and decision of the legal question presented may be concisely stated.
The relator and relatrix received passing grades, the former 70.65, the latter 71.78, in a civil service examination for the position of investigator in such department. As a result of the examination, the state Civil Service Commision on June 11, 1941, created and announced an eligible list which comprised the names of 133 persons, in which list the grades of relator and relatrix placed them as No. 129 and No. 123 respectively. On July 17, 1941, in response to a notification by the Division of Aid for the Aged, Department of Public Welfare, of its desire to appoint 42 investigators in that division and request for certification of names and addresses of persons eligible for such appointments, the state Civil Service Commission certified a list of names to the respondents, which included the names of the relator and relatrix, who were thereupon appointed investigators by the respondents. They reported for duty August 1, 1941, and performed the duties of such position until December 15, 1941.
The Civil Service Commission, pursuant to complaints presented October 20, 1941, caused an investigation to be made, as a result of which it was ascertained that within a month after the creation of the eligible list of 133 heretofore referred to a certain investigator therefore assigned to personnel work in the Division of Aid for the Aged, Department of Public Welfare, without instruction or authority of the respondents, had personally contacted many of the persons on the eligible list and had persuaded 71 of them to execute purported waivers of their rights of priority and appointment to such positions for varying periods of time, 68 of which were executed on identical forms. Such waivers were procured by various forms of persuasion, including assurances of later favorable attitude and consideration of the appointing power for those who signed such waivers and indication of probable disfavor and unfriendly attitude of the appointing power with a possibility of removal at the end of the probationary period of those who declined to execute such waivers.
It is further disclosed that the investigator above referred to reported to the Civil Service Commission that the unusual number of such waivers was occasioned by the national defense program, that private industry was offering better wages to employees and that it was difficult to interest those whose names appeared upon the eligible list to accept the positions in question.
The names of the 71 persons whose waivers had been procured, with the exception of one who, upon written demand, had been reinstated, do not appear upon the list certified to the respondents from which appointments were to be and were made. As previously indicated, all had higher grades than the relator and relatrix. Under the rules of the Civil Service Commission, the names of 64 should be certified upon information from the appointing officer that 42 were to be appointed.
The state Civil Service Commission communicated to the respondents the results of its investigation "relative to alleged violations of the civil service laws of Ohio, by representatives of the Division of Aid for the Aged, in the matter of securing waivers for appointment from eligibles * * *." The state Civil Service Commission, by reason of the condition disclosed by its investigation, on November 15, 1941, directed that all appointments made from the previous certification be cancelled and, on November 19, in accordance with the request of the respondents to recertify list of all eligibles in Hamilton county for the position of investigator, Division of Aid for the Aged, Department of Public Welfare, disregarding all waivers which had been theretofore filed with the commission, recertification was ordered for the purpose of filling 34 positions of investigator in Hamilton county. The relator and relatrix were accordingly notified on November 18 of the rescission of the certification and of all appointments made therefrom, and of the 30-day emergency appointment of relator and relatrix until permanent appointments could be made from the new certified list.
The names of the relator and relatrix did not appear on such complete list as finally certified for the reason that their grades placed them too low to be included therein.
Mr. Chester S. Durr, for relator and relatrix.
Mr. Thomas J. Herbert, attorney general, Mr. E.G. Schuessler and Mr. Howard Bernstein, for respondents.
It is urged on behalf of relator and relatrix that they were permanent civil service employees in the classified service of the state by reason of having been appointed to their several positions from a duly certified list of eligibles, having accepted such appointment and having satisfactorily served more than the 90-day probationary period. It is contended that they had thereby become vested with a tenure of position and office during good behavior and efficient service and could be removed only in the manner provided by statute and only for some cause therein specified.
It is to be observed that these actions are directed against Charles L. Sherwood, director of the department of public welfare, and Thomas W. McCaw, chief of the division of aid for the aged, and not against the Civil Service Commission. There is, therefore, no issue in this action as to abuse of discretion of the Civil Service Commission. The members of the commission are to be commended for their insistence upon the proper administration of the civil service laws of the state and the enforcement of the rules of the commission calculated to preserve and maintain the merit system.
Broad authority with reference to investigations is conferred upon the commission by Section 486-22, General Code. The only question now presented to the court, however, is one of law. It is whether, by reason of the attempted rescission of its previous action and the revocation of its certification by the Civil Service Commission, the respondents were authorized and empowered to peremptorily dismiss the relator and relatrix from the positions to which they had been appointed and in which they had rendered satisfactory service for more than the probationary period.
The Legislature has provided in Section 486-17 a, General Code, for the removal of employees in the classified service. It provides as follows:
"The tenure of every officer, employee or subordinate in the classified service of the state, the counties, cities and city school districts thereof, holding a position under the provisions of this act, shall be during good behavior and efficient service; but any such officer, employee or subordinate may be removed for incompetency, inefficiency, dishonesty, drunkenness, immoral conduct, insubordination, discourteous treatment of the public, neglect of duty, violation of the provisions of this act or the rules of the commission, or any other failure of good behavior, or any other acts of misfeasance, malfeasance or nonfeasance in office.
"In all cases of removal the appointing authority shall furnish such employee or subordinate with a copy of the order of removal and his reasons for the same, and give such officer, employee or subordinate a reasonable time in which to make and file an explanation. Such order with the explanation, if any, of the employee or subordinate shall be filed with the commission. Any such employee or subordinate so removed may appeal from the decision or order of such appointing authority to the state or municipal commission, as the case may be, within ten days from and after the date of such removal, in which event the commission shall forthwith notify the appointing authority and shall hear, or appoint a trial board to hear, such appeal within thirty days from and after its filing with the commission, and it may affirm, disaffirm or modify the judgment of the appointing authority, and the commission's decision shall be final * * *."
The appointment of the relator and relatrix was regularly made by the respondents from the list of eligibles certified by the Civil Service Commission. This court has recently held that where a person on a competitive eligible list is duly certified by the Civil Service Commission to the head of the department for appointment to a position in such department and the appointment has been regularly made, it becomes effective from the date of the appointment. State, ex rel. Hoornstra, v. Atkinson, Admr. of Bureau of Unemployment Compensation, 136 Ohio St. 569, 27 N.E.2d 249.
If the relator or relatrix had sponsored or participated in any violation of the civil service statutes, Section 486-17 a, General Code, provides a ready means for their removal from their positions. It does not appear in this case that either has even been charged with misconduct or with participation in the misconduct of another, either directly or indirectly, though they benefited from the questionable action of the representative of the respondents, or with having any connection whatever therewith, except to be made the innocent victim of such action.
So far as the record discloses, the first and only connection of the relator or relatrix to matters involved herein was through a letter dated November 18, 1941, addressed to each of them by one of the respondents, which is as follows:
"As you are probably aware, some of the people who waived their rights to appointment to the position of investigator, Hamilton county, from civil service certification No. 26701 have since filed complaints with the Civil Service Commission that their waivers were obtained in an irregular manner. Regardless of the validity of these complaints or charges, the fact remains that many of these people were apparently laboring under a misunderstanding when they signed waivers. It appears that the only way left open to this division and the Civil Service Commission to correct this situation is to rescind the original certification and to cancel all appointments made from that certification. This is now being done and we regret to inform you that your present appointment from certification No. 26701 has been cancelled by the Civil Service Commission, effective at the close of business November 15, 1941.
"In order that the present investigators appointed from certification No. 26701 may continue to serve until they are appointed from the new certification or their successors appointed from that certification, the Civil Service Commission has authorized thirty-day emergency appointments to start with the effective date of cancellation of the former appointments above referred to and to run until the permanent appointments have been made from the new certification. Therefore, you have been given an emergency appointment effective November 16, 1941, salary to remain the same as you have been receiving.
"The appointments to be made from the new certification will be handled in the regular manner, subject to such waivers as may be sent voluntarily to the Civil Service Commission direct. No official or representative of this division will accept any waivers from any one whose name may appear on this certification.
"All waivers which have heretofore been submitted in connection with certification No. 26701 will be disregarded by the Civil Service Commission."
The duty of the Civil Service Commission with reference to certification of eligible lists is controlled by Section 486-13, General Code. It is provided thereby that "appointments to all positions in the classified service * * * shall be made only from those persons whose names are certified to the appointing officer in accordance with the provisions of this act."
The original list certified was concededly a list of persons, all of whom were then eligible for appointment. The names of the relator and relatrix were on such list and their appointment by the respondents was thereby authorized and accordingly made. Bd. of Trustees of Madison County Children's Home v. State, ex rel. Laird, 128 Ohio St. 560, 192 N.E. 877. An incorrect certification undoubtedly may be corrected, but this correction cannot be employed to remove employees who theretofore had been appointed pursuant to such certification and who, through satisfactory service for the required period, had acquired a status of members of the classified service of the state. Being in the classified service, they may not be summarily dismissed. State, ex rel. Slovensky, v. Taylor, Dir., 135 Ohio St. 601, 21 N.E.2d 990. To proceed against these persons, the provisions of Section 486-17 a, General Code, must be followed. If those provisions are deemed inadequate, the remedy is by legislative amendment and not by administrative or even judicial amendment.
If it be assumed that fraud would vitiate the original certification and warrant the rescission of the appointment of anyone selected from that list, it must be observed that no finding of fraud was announced, either by the Civil Service Commission or by the officers making the appointment.
Boards or commissions which are the creatures of statute have only such jurisdiction as is thus conferred, and they may not, under rules of their own making or otherwise, confer upon themselves further jurisdiction or authority. Hence, the statute having specified in detail the various grounds for the removal of employees in the classified service, no board or commission created by statute has any further or additional power respecting the removal of such employees. Davis et al., Civil Service Comm., v. State, ex rel. Kennedy, Dir., 127 Ohio St. 261, 187 N.E. 867; Verberg v. Board of Edn. of City School Dist. of Cleveland, 135 Ohio St. 246, 20 N.E.2d 368.
It follows that the writs of mandamus are awarded, as prayed for in the petition in each case.
Writs allowed.
WEYGANDT, C.J., WILLIAMS, HART and BETTMAN, JJ., concur.
TURNER and ZIMMERMAN, JJ., dissent.
I think relators were improperly certified and that the Civil Service Commission had the right to correct the mistake made in its certification. There are two reasons for this position. In the first place, a fraud was worked upon the Civil Service Commission which resulted in an improper certification. While the record discloses no participation by the relators in the fraud practiced upon the commission, I do not see how relators, though innocent themselves of fraud, are entitled to retain positions to which they were improperly appointed.
Even in the absence of fraud, I am of the opinion that the certification which contained the names of relators was void for the reason that it did not contain the names of persons as candidates in the order of their respective rank as required by Section 486-12, General Code. While any person duly certified may decline a specific appointment, no authority exists for waivers prior to certification by persons whose names appear on the eligible list.
ZIMMERMAN, J., concurs in the foregoing dissenting opinion.