Opinion
No. 85-495
Decided April 9, 1986.
Public employment — Discharge for lack of funding — CETA employees are not in the civil service — Jurisdiction of civil service commission.
APPEAL from the Court of Appeals for Franklin County.
Appellants, Frank C. Cleveland, Jr., Thomas J. Maloney and Anthony W. Arnold, were employed by the city of Columbus, Department of Community Services. Cleveland was a Comprehensive Employment and Training Act ("CETA") Technical Assistant and Maloney and Arnold were CETA Manpower Placement Officers. Appellants were employed by the city of Columbus before being appointed to CETA positions — Maloney and Arnold, since 1973 and Cleveland, since 1968.
On April 30, 1981, Arnold and Maloney were discharged by the Department of Community Services because of lack of funding. Appellant Cleveland was discharged for the same reason on September 15, 1981. Ultimately, the Department of Community Services was abolished.
The employees appealed their discharges to the city of Columbus Municipal Civil Service Commission which issued an order compelling their reinstatement. The city of Columbus appealed that order to the court of common pleas which reversed the order of the commission holding that it lacked jurisdiction to hear appeals of terminations for lack of funding. The court of appeals held that the common pleas court had no jurisdiction to reverse the order of the commission because the termination was for other than disciplinary reasons. It reversed the judgment of the court of common pleas and remanded the cause with instructions for it to dismiss the appeal. Poole v. Maloney (1983), 9 Ohio App.3d 198, 199. This court overruled a motion to certify the record in that case on September 21, 1983 (case No. 83-1159). The employees then requested that they be reinstated and when reinstatement was refused, they requested the city attorney to file a mandamus action to compel their reinstatement. The city attorney refused to do so.
Appellants then filed this action in mandamus in the court of appeals against respondents, the Department of Community Services and the Columbus Civil Service Commission, requesting the issuance of a writ to compel their reinstatement with back pay and benefits and an award of costs and attorney fees in accordance with the original order of the civil service commission. The court of appeals denied the writ.
The cause is now before this court upon an appeal as a matter of right.
Jones Thompson Co., L.P.A., and H. Lee Thompson, for appellants.
Gregory S. Lashutka, city attorney, and Barbara A. Gates, for appellees.
Appellants claim entitlement to reinstatement with back pay in accordance with the order of the civil service commission. Appellees contend that the civil service commission had no jurisdiction to enter that order and it is therefore void. The court of appeals agreed and held that this mandamus action was the proper forum to collaterally attack that judgment. Appellants contend that the order of the civil service commission was entered with jurisdiction, was final, and any further action to contest that decision is barred by principles of res judicata. Appellants rely on State, ex rel. Stough, v. Bd. of Edn. (1977), 50 Ohio St.2d 47 [4 O.O.3d 116], for the proposition that the commission's order is not subject to collateral attack in this proceeding. In Stough, however, the court concluded that no lack of jurisdiction had been claimed, but only an error in determining eligibility. Similarly, in State, ex rel. Witsamen, v. Maumee Valley Guidance Center, Inc. (1983), 6 Ohio St.3d 26, which followed Stough, the court stated that the claimed lack of jurisdiction was hypothetically error only. Id. at 27. In both of those cases, relators had failed to pursue an appeal which was available to them by statute. In the case at bar, appellees did appeal the order of the civil service commission.
Directly on point, however, is State, ex rel. Pennington, v. Ross (1980), 63 Ohio St.2d 58 [17 O.O.3d 36]. That case involved a county employee whose job was funded under the Emergency Employment Act of 1971. He was discharged and appealed his removal to the State Personnel Board of Review. The board accepted jurisdiction of his appeal and ordered his reinstatement. The court of common pleas reversed the order of the board, and the court of appeals reversed the common pleas court finding that it had no jurisdiction to consider the appeal. The employee, like appellants herein, then filed an action in mandamus to compel his reinstatement in accordance with the board's order. The appointing authority defended, claiming that the board lacked jurisdiction to enter the order. This court held that it was a proper forum to collaterally attack the judgment and that CETA employees were not members of the civil service, stating at 60-61:
"* * * The prior holding of the appellate court that an appeal would not lie from the State Personnel Board of Review to the Court of Common Pleas, and the reversal of the trial court's decision in that court, effectively placed respondent in the same position as the appointing authority in Ogan v. Teater * * * [(1978), 54 Ohio St.2d 235] who was precluded by law from appealing the board's order.
"Thus, the jurisdictional defense urged by respondent can be raised in this proceeding. A review of the purposes of E.E.A. and the Comprehensive Employment and Training Act of 1973, and decisions of courts of other jurisdictions indicates that employment under either of these Acts does not accord tenure under state civil service laws. See DeLarmi v. Fort Lee (1975), 132 N.J. Super. 501, 334 A.2d 349; White v. Paterson (1975), 137 N.J. Super. 220, 348 A.2d 798; Ragner v. Zielke (1979), 86 Wis.2d 542, 273 N.W.2d 304; Gooley v. Conway (C.A. 8, 1979), 590 F.2d 744. We agree.
"Relator not being in the classified civil service, the appellate court correctly concluded that the order of the board was beyond its subject-matter jurisdiction under R.C. 124.03, which confines the board to `* * * hear[ing] appeals * * * of employees in the classified state service from final decisions of appointing authorities * * *.' "
The provisions of the Columbus City Charter at issue herein are comparable to the state civil service laws held controlling in State, ex rel. Pennington. Section 149-1 of the Columbus City Charter defines the jurisdiction of the city's civil service commission and provides in relevant part:
"Except as otherwise provided in this charter any employee of the City of Columbus in the classified service, who is suspended, reduced in rank or compensation or discharged * * * may appeal from such decision or order therefor, to the Civil Service Commission * * *." (Emphasis added.)
Based on State, ex rel. Pennington, we hold that appellants, as CETA employees, were not in the civil service and the commission had no jurisdiction to hear their appeals. In view of this holding it is irrelevant that appellants were terminated for non-disciplinary reasons.
Appellants also suggest that they were in the civil service at the time of their discharge because they were employed by the city in other capacities before they received the CETA appointments. However, there was no evidence that they took civil service exams and were appointed to civil service positions. Rather, their depositions indicate their earlier jobs were also federally funded positions. In any event, this would not affect the finding that the CETA positions from which they were terminated were not in the civil service.
Appellant's remaining arguments relate to their claimed entitlement to reinstatement, and amounts of back pay, benefits and attorney fees. Because we find the question of jurisdiction dispositive, we need not address these issues.
Accordingly, the judgment of the court of appeals is affirmed for the reason that appellants were not civil service employees.
Judgment affirmed.
CELEBREZZE, C.J., SWEENEY, LOCHER, HOLMES, C. BROWN, DOUGLAS and WRIGHT, JJ., concur.