Opinion
No. 38675
Decided December 2, 1964.
Civil service — Classified employee illegally deprived of rights — Waiver not effected by accepting inconsistent employment — Duty to mitigate loss of income during determination of rights.
One who has been illegally deprived of civil-service rights does not waive such rights by accepting inconsistent employment during the pendency of litigation respecting those rights. Such a person is entitled to seek, and indeed has a duty to seek, employment to mitigate the loss of income pending a determination of such rights.
APPEAL from the Court of Appeals for Franklin County.
This cause is before this court on an appeal as of right from the allowance of a writ of mandamus by the Court of Appeals, where this action was instituted.
Alice F. Jones, the relatrix herein, was appointed as a provisional clerk typist III in the office of the Attorney General of Ohio on August 28, 1954. On April 1, 1956, relatrix's provisional classification was changed, and she was promoted to clerk stenographer IV. This position was abolished by House Bill No. 591 (128 Ohio Laws, 892, 894), effective January 1, 1960, the highest remaining category in this class being clerk stenographer III. However, on that date relatrix's position was reduced in classification to the position of clerk typist III, provisional, although she suffered no reduction in pay. Relatrix appealed from this classification which was affirmed by the Personnel Board of Review and the Franklin County Common Pleas Court. Relatrix then appealed to the Franklin County Court of Appeals, which court in case No. 6801 reversed the judgment of the lower court and ordered that relatrix be restored to the highest remaining number in the classification she held at the time of her lawful reclassification. The journal entry was filed on August 20, 1962. That judgment was never appealed from.
While her reclassification was being appealed from, relatrix continued to work as a provisional clerk typist III in the classified service until she resigned by letter, dated March 29, 1961, to take another job in the office of the Attorney General as an exempted clerk typist III, pursuant to Section 143.08 (a) (8), Revised Code, on April 1, 1961. On July 5, 1962, her employment was terminated. On August 22, 1962, relatrix was appointed to the position of librarian I in the unclassified service, which position she held until October 31, 1962.
Relatrix filed a petition in mandamus in the Court of Appeals for Franklin County on March 27, 1963, to secure compliance with that court's unappealed-from judgment of August 20, 1962, in case No. 6801. That court ordered compliance with its 1962 judgment, the court stating also that relatrix was entitled to certification as a result of Section 3 of House Bill No. 126 (129 Ohio Laws, 1079, 1081), effective October 26, 1961. The cause is before this court on appeal from that order.
Mr. John S. Bowers, for appellee.
Mr. William Saxbe, attorney general, and Mr. Clark G. Redick, for appellants.
It is conceded that the judgment of the Court of Appeals in case No. 6801 has not been obeyed, and that relatrix has not been restored "to the highest remaining number in the classification she held on December 31, 1959, giving effect to the requirement that she suffer no reduction in salary". There being no appeal from such judgment fixing relatrix's civil-service classification, the matter is res judicata. Further, the judgment is not subject to collateral attack. It also is conceded, as it obviously must be, that the respondents as successors in office of the respondents in case No. 6801 are bound by that judgment.
Respondents seek to avoid the effect of the judgment in case No. 6801, on the basis of waiver or estoppel. They contend that relatrix intended to abandon her classified civil-service rights by her purported resignation of March 29, 1961, and her acceptance of two positions, viz., exempted clerk typist III and librarian I, in the unclassified service. We do not believe that her resignation, if it were effective as such, from a position to which the Court of Appeals said she was illegally and involuntarily assigned can reasonably imply any intent to abandon her claim to the restoration of her legal rights. Nor do we believe that acceptance of the exempted position of clerk typist III or the unclassified position of librarian I indicates any such intent. In fact, one who has been illegally deprived of civil-service rights is entitled to seek, and indeed has a duty to seek, employment to mitigate the loss of income pending a determination of those rights. In this connection, relatrix asserts that, if she has taken any inconsistent employment during this litigation, it has been out of economic necessity and her desire to mitigate damages.
Respondents contend that the Court of Appeals exceeded its jurisdiction in the instant case by issuing a writ granting to relatrix status as a certified employee on the basis of Section 3 of House Bill No. 126 (129 Ohio Laws, 1079, 1081), since the opinion in case No. 6801 does not mention House Bill No. 126. As the Court of Appeals noted, there was no proof that relatrix was replaced by the appointment of a certified person to her position either before or after the effective date of House Bill No. 126. Although certification is not mentioned in the opinion in case No. 6801, had respondents complied with the judgment in such case relatrix would have acquired certified status under House Bill No. 126 by operation of law.
Respondents contend also that relatrix's right to relief in mandamus is barred by the doctrine of laches. In opposition to this contention, relatrix points out that the Attorney General was not re-elected, and that after two months of fruitless negotiation with the new administration she was forced to bring this action in mandamus. Under all the circumstances of this case, we can not say that relatrix is guilty of laches in bringing her action for a writ of mandamus to compel the respondents to comply with the judgment of the Court of Appeals in case No. 6801.
For the foregoing reasons, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
TAFT, C.J., ZIMMERMAN, MATTHIAS and GRIFFITH, JJ., concur.
HERBERT, J., dissents.
O'NEILL, J., not participating.