Summary
upholding the rule announced in Shine
Summary of this case from Malagisi v. Mahoning Cty. Commrs.Opinion
No. 81-1422
Decided June 9, 1982.
Mandamus — Improperly granted, when — Adequate appeal remedy available — County employees — Discharge.
APPEAL AND CROSS-APPEAL from the Court of Appeals for Franklin County.
Appellant, Rick Cartmell, was hired as a mechanic by the Franklin County Board of Commissioners (hereinafter "the county") on or about November 5, 1979. On June 2, 1980 his employment with the county terminated. Cartmell asserts that on that date he was fired while it is the county's position that Cartmell quit. In either event, it is uncontroverted that no R.C. 124.34 order of removal was furnished the appellant, nor was such an order filed with the Director of Administrative Services or the State Personnel Board of Review.
Thereafter Cartmell initiated proceedings in an attempt to obtain unemployment compensation. When his application was ultimately denied, Cartmell sought the advice of counsel. On October 2, 1980, Cartmell filed a complaint in mandamus in the Court of Appeals, naming as defendants the individual members of the Franklin County Board of Commissioners and his immediate supervisor at the Franklin County garage. He sought reinstatement to his position with the county and an award of full back pay which he contended has accrued since his June 2, 1980 discharge.
The Court of Appeals found that the evidence supported Cartmell's contention that he did not voluntarily terminate his employment but rather was discharged. It granted a writ of mandamus ordering the board to file an order of removal in compliance with R.C. 124.34 so that the State Personnel Board of Review might determine in the first instance whether that discharge was made with good cause. The county was further ordered to pay Cartmell accrued but unpaid vacation pay. The court refused, however, to order Cartmell's immediate reinstatement with full back pay. The court reasoned that Cartmell's four-month delay in seeking extraordinary relief in the form of reinstatement with back pay was unreasonable and constituted laches where back pay accrued in the interim.
The cause is now before this court on an appeal and cross-appeal as of right.
Messrs. Lucas, Prendergast, Albright, Gibson, Newman Gee, Mr. James E. Melle, Mr. Robert J. Walter and Mr. Mark R. Scherer, for appellant and cross-appellee.
Mr. Michael Miller, prosecuting attorney, and Mr. Dale Williams, Jr., for appellees and cross-appellants.
The syllabus to State, ex rel. Shine, v. Garofolo (1982), 69 Ohio St.2d 253, provides:
"An employee in the classified civil service who alleges she has been removed from her employment has a plain and adequate remedy in the ordinary course of the law by way of appeal to the State Personnel Board of Review under R.C. 124.34, even though her employer fails to file an order of removal with the board of review."
The Shine case implicitly overruled prior decisions of this court which held that the filing of an order of removal of a classified civil service employee is a jurisdictional prerequisite to a right of appeal before the State Personnel Board of Review.
State, ex rel. Brittain, v. Bd. of Agriculture (1917), 95 Ohio St. 276; State, ex rel. Bay, v. Witter (1924), 110 Ohio St. 216; State, ex rel. Alford, v. Willoughby (1979), 58 Ohio St.2d 221.
Under the authority of Shine it is clear that at the time of the de facto termination of his employment, appellant had an adequate remedy at law by way of appeal to the State Personnel Board of Review to raise the issues of the justness of his discharge and his entitlement to accrued vacation pay. This remedy was available despite the county's failure to file an order of removal. That being the case, the Court of Appeals improperly granted relief by way of mandamus.
"The writ of mandamus must not be issued when there is plain and adequate remedy in the ordinary course of the law." R.C. 2731.05.
The Shine opinion, at page 256, contains the following comment: "We conclude that the administrative rules establishing a 30-day period within which civil service employees may appeal job actions by employers who fail to file removal orders fall within the authority granted the board of review." It should be noted that the validity of Ohio Adm. Code 124-5-02 and 124-1-03 was not before this court in the Shine case. Rather, as is evident from the syllabus, Shine held only that the State Personnel Board of Review has jurisdiction to entertain an employee's appeal of an alleged removal despite the failure of the appointing authority to file a R.C. 124.34 order of removal. This court did not have before it any issues as to whether the board of review lawfully dismissed Shine's appeal at the board level — proceedings independent of Shine's mandamus action — due to her failure to comply with the 30-day rule of Ohio Adm. Code 124-1-03(D). Although Shine opines that the adoption of that rule was "within the authority granted the board," this court has at no time expressed an opinion as to whether the rule is unreasonable, arbitrary or discriminatory in its actual operation. See 2 Ohio Jurisprudence 3d 240, Administrative Law, Section 74. Nor are those issues ripe for adjudication by this court in the instant cause.
Ohio Adm. Code 124-5-02 provides:
"If a reduction, removal or suspension is alleged and no `Section 124.34' order has been filed with the state personnel board of review, the affected employee shall prove, by a preponderance, that the reduction, removal or suspension has occurred."
Ohio Adm. Code 124-1-03(D) provides:
"If an appointing authority fails to file an order or provide an employee with written notice, the affected employee shall file an appeal within thirty calendar days of the time he has actual notice of the action."
Because appellant had an adequate remedy at law, the Court of Appeals erred in granting a writ of mandamus and its judgment is hereby reversed.
Judgment reversed.
CELEBREZZE, C.J., W. BROWN, SWEENEY, HOLMES, C. BROWN and KRUPANSKY, JJ., concur.
LOCHER, J., concurs in the judgment.