Opinion
No. 79-536
Decided November 21, 1979.
Mandamus — To compel recognition of entitlement to office — Writ allowed, when — Prima facie title established.
IN MANDAMUS.
Nicholas M. DeVito, relator herein, was appointed to the Board of Trustees of the Cleveland Regional Sewer District on December 1, 1977, by Ralph Perk, then Mayor of the city of Cleveland, for a term expiring March 1, 1979. On February 22, 1979, Dennis J. Kucinich, then Mayor of the city of Cleveland, appointed Jack M. Schulman to succeed to relator's term. The appointment was not submitted to the Cleveland City Council for its consent. Relator claims that he is still a member of the board since his successor has not been lawfully appointed and qualified to succeed him. The board, however, has refused to acknowledge him as a member.
Relator now brings this action in mandamus praying that the court issue a writ compelling respondents, the members of the board and its chief fiscal officer, to call his name at the roll-call of all the board's meetings, to permit him to vote at its meetings, to accord him all rights and privileges as a member of the board, to restore his name to its payroll and to pay him his salary together with all benefits appurtenant thereto.
The cause is also now before this court upon the allowance of a motion by Kucinich, Schulman and Louis V. Corsi "for Leave to Intervene in this action, and to file an Answer and Crossclaim and Motion to Dismiss." Intervenors allege that Kucinich appointed Corsi to the board on May 16, 1978, but that the city council rejected his appointment. Further, the board has refused to recognize either Schulman or Corsi as members. Intervenors petition this court to issue a writ of mandamus compelling respondents to recognize Schulman and Corsi as members of the board, to permit them to vote at all its meetings, to accord them all rights and privileges as members of the board, and to compensate them from the dates of their appointments in the same manner as other members of the board.
Mr. Malcolm C. Douglas, for relator.
Mr. William B. Schatz and Mr. S. Melvin Kociubes, for respondents.
Mr. Jack M. Schulman, law director, and Mr. Howard A. Schulman, for intervenors.
Relator claims that he continues in office because Schulman cannot be "appointed and qualified" to succeed him until his appointment is consented to by Cleveland City Coluncil.
R.C. 3.01 provides that "[a] person holding an office of public trust shall continue therein until his successor is elected or appointed and qualified, unless otherwise provided in the constitution or laws of this state."
Section 1 of Cleveland City Ordinance 1139-72, in pertinent part, states:
"Appointments to the Board of Trustees of the Cleveland Regional Sewer District made by the Mayor of the city of Cleveland shall be subject to the consent of the Cleveland City Council." Thus, relator contends that the board has a clear legal duty to accept him as a member.
In Kucinich et al. v. Cleveland Regional Sewer District et al. (Cuyahoga Co. Ct. App. No. 40217, Decided May 24, 1979), unreported, however, the Court of Appeals affirmed a November 29, 1978, judgment of the Court of Common Pleas holding that, despite Ordinance 1139-72, the Mayor of the city of Cleveland is the sole appointing authority for the city's representatives on the board and that council confirmation or affirmance is not necessary. DeVito, admittedly, was one of the active members of the board of trustees at the time this suit was commenced. Thus, relator DeVito and respondents herein are bound by that judgment. See State, ex rel. Hofstetter, v. Kronk (1969), 20 Ohio St.2d 117; Hicks v. De La Cruz (1977), 52 Ohio St.2d 71. Since the board does not have a clear legal duty to accept relator as a member, his complaint for a writ of mandamus must be denied.
Intervenors Schulman and Corsi have, however, established prima facie title to the office of member of the board of trustees since they were lawfully appointed to that office by the Mayor of the city of Cleveland. The writ is allowed as to Schulman and Corsi.
Judgment accordingly.
CELEBREZZE, C.J., HERBERT, W. BROWN, P. BROWN, SWEENEY, LOCHER and HOLMES, JJ., concur.