Opinion
No. 75-914
Decided April 28, 1976.
Civil service — Deputy sheriff — Classification — Determination — Whether relationship "fiduciary" — State Personnel Board of Review — R.C. 124.11.
APPEAL from the Court of Appeals for Wood County.
In the case of In re Termination of Employment (1974), 40 Ohio St.2d 107, 321 N.E.2d 603, it was held, in paragraph two of the syllabus, that:
"Deputy sheriffs are members of the unclassified civil service only when they are assigned to, and perform, duties such that they hold `a fiduciary or administrative relationship' to the sheriff."
It was indicated in the opinion of that case, at page 115, that whether a fiduciary relationship exists between a deputy and a sheriff constitutes a question of fact "* * * and can only be answered by examination of the duties assigned to and performed by the deputy."
In case No. 74-589, which involved Bruce C. Pratt, Jr., and Carl Johnson, appellees herein, the judgment of the Court of Appeals was reversed because "* * * there was no finding of fact that the duties assigned to and performed by the deputies were such as to render them members of the unclassified civil service under R.C. 124.11(A)(9)." 40 Ohio St. 2d, at page 116.
Subsequent to the reversal by this court of the judgment of the Court of Appeals, that court, in ruling on a motion for contempt filed by the deputies against the sheriff of Wood County, concluded that the court's mandate required reinstatement of Pratt and Johnson, and ordered such reinstatement.
Appellant-sheriff filed an appeal in this court from the order of reinstatement entered by the Court of Appeals and the cause is now before this court pursuant to the allowance of a motion to certify the record.
Messrs. Lucas, Prendergast, Albright, Gibson, Brown Newman, Mr. John A. Brown and Mr. W. Joseph Strapp, for appellees.
Mr. Daniel T. Spitler, prosecuting attorney, and Mr. Donald D. Simmons, for appellant.
The basis for reversal of the judgment by this court in case No. 74-589 was the lack of findings of fact relative to the duties "assigned to and performed by" the deputies, Pratt and Johnson. The record shows that the only evidence before the State Personnel Board of Review bearing on the duties of these deputies is included in a stipulation. The pertinent portion of that stipulation reads:
"These two men performed all of the functions and duties and had all of the responsibilities which are normally assigned to deputy sheriffs in similar counties throughout the state of Ohio. But, that insofar as the internal operation of the sheriff's office of Wood County and similar counties throughout the state of Ohio are concerned, Pratt and Johnson did not under normal circumstances have any administrative responsibility for directing the operations of the office."
It is the opinion of this court that the foregoing stipulated matters do not provide a sufficient basis for determination of the duties "assigned to and performed by" the appellees.
Therefore, the judgment of the Court of Appeals is reversed and the cause is remanded to the Court of Appeals with instructions that the cause be returned to the State Personnel Board of Review for further proceedings for the purpose of taking evidence to determine whether the duties assigned to and performed by the appellees "were such as to render them members of the unclassified civil service under R.C. 124.11(A)(9)."
Judgment reversed.
O'NEILL, C.J., HERBERT, CELEBREZZE and W. BROWN, JJ., concur.
CORRIGAN and P. BROWN, JJ., dissent on the basis of the dissenting opinion of CORRIGAN, J., in In re Termination of Employment (1974), 40 Ohio St.2d 107, at 117.
STERN, J., dissents.
The thrust of In re Termination of Employment (1974), 40 Ohio St.2d 107, was that deputy sheriffs are presumed to be in the classified service unless they perform administrative duties. See State, ex rel. Emmons, v. Lutz (1936), 131 Ohio St. 466, 3 N.E.2d 502. In the instant case, the jurisdiction of the State Personnel Board of Review was not attacked, either before the board or upon appeal, on the ground that the deputies' duties made them fiduciaries, except in the sense that deputies are by the nature of their employment fiduciaries: it was stipulated by the parties that they were not administrators.
To determine whether the board had jurisdiction, it had to make a finding of fact as to the actual duties performed by the deputies; but no claim was made that the deputies performed anything other than the usual duties of these officeholders. This entire case was argued on that basis.
Thus, it seems that the sheriff has waived his chance to raise that issue of fact in this proceeding.
The board did apply essentially the test mandated by this court, in finding that the deputies were, in fact, in the classified service; based upon that finding it issued a final order directing their reinstatement. This court affirmed that decision and, therefore, affirmed that order.
The only claim raised by the appellant herein is based upon an issue of fact, which could have been raised at the initial hearing before the board but was not. I do not find in the record sufficient grounds to reverse the order and judgment.