Summary
holding in a case challenging an appointment of a police chief that if a relator fails to show entitlement to a contested office, "judgment may be rendered only on the issue of whether respondent lawfully holds the office"
Summary of this case from State ex rel. Flanagan v. LucasOpinion
No. 88-843
Submitted April 11, 1989 —
Decided July 5, 1989.
Public employment — Civil service — Challenge to chief of police's right to office maintainable in quo warranto — Appointment made in violation of Sunshine Law — R.C. 121.22(H) — Permanent employment not achieved under R.C. 124.271, when.
O.Jur 3d Quo Warranto § 55, 56.
To prevail under R.C. 2733.06, a relator must show (1) that the office is being unlawfully held and exercised by the respondent, and (2) that relator is entitled to the office.
APPEAL from the Court of Appeals for Highland County, No. 571.
This case arises from a dispute with respect to appointment of the police chief in the city of Greenfield. A vacancy occurred on May 1, 1984 due to the retirement of the former Greenfield police chief. Thereafter came a somewhat peculiar chain of events.
The three members of the Greenfield Civil Service Commission met informally at the home of one of them on August 9 or 10, 1984. At the informal meeting the commissioners discussed the suspension of competitive examination (and, presumably, other requirements of R.C. 124.01 et seq.). Subsequently, at a public meeting on August 13, 1984, the commission formally decided that R.C. 124.30(B) allowed it to suspend the competitive requirements. In an eighty-one day period Greenfield had lost forty-four percent of its full-time police force. The commission recognized "a state of disrepair due to low morale, lack of respected authority, and a general confusion combined with a leadership vacuum and no list of eligible persons for the position of Chief of Police." The commission relied on Moore v. Agin (1984), 12 Ohio St.3d 173, 12 OBR 241, 465 N.E.2d 1293, in deciding that a police chief could be appointed without a competitive examination when a critical situation existed in the police department.
Prior to the commission's August 13 meeting, John H. Delph, relator-appellee, and Gregory Barr, respondent-appellant, had filed applications to take an examination on August 16, 1984 for the police chief position. However, Delph's application was the only one presented to the commission at the August 13 meeting. The commission chairman apparently had seen Barr's application, but stipulations between the parties indicate that the commission had not seen Barr's application as of its August 13 meeting.
With only Delph's application before it on August 13, the commission voted to certify Delph for appointment as police chief. Two members voted for Delph's certification; the chairman voted against it. These decisions were not recorded due to the chairman's failure to keep minutes.
On August 16, 1984, notwithstanding Delph's certification, the Mayor of Greenfield "nominated" Barr as police chief and asked the commission to place Barr on its "eligibility list." Barr was "appointed provisionally" as police chief by the mayor, and took an oath of office. On the evening of August 16, while administering examinations for other police department vacancies, the three members of the commission certified Barr as police chief. The commission did not take another vote to suspend the competitive requirements before it certified Barr. It also appears that on August 24, Barr was again appointed police chief by the mayor and took an oath of office. Barr has served while this case has been pending.
Barr was twenty-eight years old when he applied to be police chief in Greenfield. Delph was fifty. Both men had been employed in law enforcement for a number of years. Barr was serving as a captain in the Hillsboro Police Department when he accepted the police chief appointment; Delph was working as a corrections officer at London Correctional Institute, as a licensed private investigator, and as a constable for Madison Township, when he applied for the police chief position. Delph was also an auxiliary patrolman in Greenfield, a position to which he had been appointed in 1982 by the former Greenfield police chief.
Delph did not possess an Ohio Peace Officer Training Certificate when he was appointed an auxiliary patrolman and did not have one when he applied to be police chief. Barr maintains that this is why he was nominated by the mayor on August 16. Delph secured the certificate in February 1985.
On October 29, 1984, some two months after Barr took his second oath of office, Delph filed a complaint in quo warranto in the Court of Appeals for Highland County. Delph claimed that he was entitled to be police chief and that Barr was holding the office unlawfully.
A referee, appointed by the court of appeals, heard the matter in May 1986. The referee found Barr's August 16 certification to be invalid because the commission had violated R.C. 121.22 by acting on the certification at a private meeting. The referee rejected Barr's argument that Delph was not entitled to office because of his age and lack of training. The referee recommended that a writ of quo warranto be issued to remove Barr and to order Delph's appointment.
In his objections to the referee's report and in an amended answer that he was later granted leave to file, Barr raised an additional objection. Barr argued that he could not be removed through quo warranto because, as of August 24, 1986, he had served two years as police chief and had attained permanent classified status under R.C. 124.271. Barr maintained that Delph should have filed for injunctive relief instead. Barr claimed he could only be removed for cause under R.C. 124.34.
The court of appeals rejected Barr's arguments. It held that while Delph could have sought injunctive relief, he accomplished the same result by challenging Barr's title to his office through quo warranto. The court of appeals issued the writ that had been recommended by the referee.
The matter is before the court on an appeal as of right.
Jon C. Hapner, for appellee.
Manley, Burke Fischer, Andrew S. Lipton and Ralph W. Phillips, for appellant.
Sarah C. Duncan, director of law, urging reversal for amicus curiae, city of Greenfield.
Chief of police is a public office from which a usurper may be removed pursuant to R.C. Chapter 2733. State, ex rel. Hanley, v. Roberts (1985), 17 Ohio St.3d 1, 4, 17 OBR 1, 3, 476 N.E.2d 1019, 1021, at fn. 5. Thus, we must first decide whether Barr is holding the office unlawfully. If he is, we must determine whether Delph is entitled to that office.
I
The court of appeals found that Barr was not certified at a public meeting. It further found that Barr's certification was not done at a regular or special meeting under the executive-session exception of R.C. 121.22(G). Thus, citing R.C. 121.22(H), the court determined that Barr was appointed to and holding his office unlawfully.
Barr does not challenge the appellate court's analysis of the appointment process. Instead, Barr argues that he cannot be removed through quo warranto because he has become a permanent employee under R.C. 124.271. R.C. 124.271 provides, in part:
"Any employee in the classified service of * * * any * * * city * * * who is appointed provisionally to fill a vacancy and who remains in provisional status in the same classification for a period of two years of continuous service, during which period no competitive examination is held, becomes a permanent appointee in the classified service at the conclusion of such two year period. * * *"
Barr submits that he has been police chief continuously for a two-year period during which no competitive examinations were given.
The court of appeals rejected this argument, mainly on the authority of State, ex rel. Polen, v. Wymer (1973), 36 Ohio St.2d 24, 65 O.O. 2d 96, 302 N.E.2d 889. The syllabus in Wymer states:
"Where a candidate is certified as having the highest grade in a promotional civil service examination that was not graded in full conformity with civil service law, and where it does not appear that the candidate so certified knew of or participated in the irregular grading, he will not be replaced by one bringing an action in quo warranto who failed to take affirmative action to prevent the certification and permanent appointment." (Emphasis added.)
The court below concluded that the prompt filing in quo warranto by Delph was an affirmative action under the Wymer syllabus. Barr disagrees. Barr maintains that the court in effect granted injunctive relief to Delph though no such relief was sought. Barr claims that Wymer requires more than a challenge to another's title through quo warranto. Specifically, he argues that Delph had to file in quo warranto and either (1) secure an order enjoining Barr's permanent appointment, or (2) obtain a stay of operation of the statute pending the outcome of his action. Barr relies on this language in Wymer:
"* * * [I]t was the relator's duty to seek appropriate relief to prevent respondent from further securing his claim to the office, by such means as enjoining the certification and the appointment or obtaining a stay of the proceedings pending the outcome of the appeals." Id. at 27, 65 O.O. 2d at 98, 302 N.E.2d at 891. Barr also relies on State, ex rel. Hanley, v. Roberts, supra. Hanley implicitly recognizes the availability of ancillary injunctive relief to maintain the status quo after a quo warranto action is filed. See, also, Reemelin v. Mosby (1890), 47 Ohio St. 570, 26 N.E. 717; State, ex rel. Garrison, v. Brough (1916), 94 Ohio St. 115, 113 N.E. 683. However, to recognize the availability of ancillary injunctive relief in quo warranto actions is not to say that it is required.
In the circumstances at bar, we are not inclined to extend the holding in Hanley (and the cases which precede Hanley). A complaint in quo warranto was filed shortly after an improper civil service appointment. Therefore, we hold that Delph's complaint challenging Barr's title to office was sufficient to prevent Barr from securing a permanent hold on the office under R.C. 124.271. Because Barr's appointment was not accomplished in compliance with R.C. 121.22, we also find that he is holding the office unlawfully and that a writ of quo warranto ordering his removal should issue.
II
We turn to the question of Delph's entitlement to office. To prevail under R.C. 2733.06, a relator must show (1) that the office is being unlawfully held and exercised by the respondent, and (2) that relator is entitled to the office. State, ex rel. Halak, v. Cebula (1977), 49 Ohio St.2d 291, 292, 3 O.O. 3d 439, 440, 361 N.E.2d 244, 246. A relator need not prove his own title beyond all doubt, but his claim must be established on good faith and reasonable grounds. State, ex rel. Hanley, v. Roberts, supra, at 6, 17 OBR at 5, 476 N.E.2d at 1023, citing State, ex rel. Ethell, v. Hendricks (1956), 165 Ohio St. 217, 59 O.O. 298, 135 N.E.2d 362, paragraph three of the syllabus, and State, ex rel. Halak, v. Cebula, supra, at 293, 3 O.O. 3d at 440, 361 N.E.2d at 246. If he fails in this regard, judgment may be rendered only on the issue of whether respondent lawfully holds the office in dispute. R.C. 2733.08; State, ex rel. Ethell, v. Hendricks, supra.
The court of appeals found that Delph was entitled to office despite Barr's arguments that (1) Delph was beyond the thirty-five year age limit for original appointments and (2) Delph did not timely hold a Peace Officer Training Certificate. Barr does not assert error based upon these findings.
Instead, Barr challenges the validity of Delph's certification on August 13, 1984. Barr asserts that the decision to certify Delph was reached at an informal "rump" session on August 10, 1984, rather than at a public meeting pursuant to R.C. 121.22(A) and 121.22(H).
R.C. 121.22 provides, in part:
"(A) This section shall be liberally construed to require public officials to take official action and to conduct all deliberations upon official business only in open meetings, unless the subject matter is specifically excepted by law.
"* * *
"(H) * * * A resolution, rule or formal action adopted in an open meeting that results from deliberations in a meeting not open to the public is invalid unless the deliberations were for a purpose specifically authorized in division (G) of this section and conducted at an executive session held in compliance with this section." (Emphasis added.)
It is undisputed that Delph's certification and the suspension of the competitive requirements were considered at an informal meeting. This informal meeting preceded the August 13, 1984 meeting at which these measures were adopted. The court of appeals did not find that the informal meeting was an executive session authorized by R.C. 121.22(G). Rather, it determined that the statute was not violated because the commissioners did not conclusively decide to certify Delph and to suspend the competitive requirements at the informal meeting.
R.C. 121.22(H), however, invalidates any formal action that results from deliberations conducted in private. The commission's formal action resulted from deliberations taken at a private, informal meeting. Therefore, Delph is not entitled to a writ making him police chief in Greenfield.
Having determined Barr to be holding the office of Greenfield's police chief unlawfully, we find that the court of appeals properly issued a writ of quo warranto ordering his removal. However, we hold that the court of appeals erred to the extent that its writ orders Delph appointed to the office of police chief. Accordingly, we affirm the judgment below in part and reverse it in part.
Judgment affirmed in part and reversed in part.
MOYER, C.J., SWEENEY, DOUGLAS, WRIGHT and RESNICK, JJ., concur.
HOLMES, J., dissents.
I would reverse the judgment of the court of appeals in that I conclude that, under the facts presented here, Gregory Barr has held the office of chief of police for the requisite period of two years as provided in R.C. 124.271, and therefore is a permanent appointee within the classified service.