State, ex Rel. Gibbons, v. Cleveland

Full title: THE STATE, EX REL. GIBBONS ET AL., APPELLEES, v. CITY OF CLEVELAND ET AL.…

Court: Supreme Court of Ohio

Date published: Feb 22, 1984

9 Ohio St. 3d 216 (Ohio 1984)

459 N.E.2d 892

Opinion

No. 83-386

Decided February 22, 1984.

Municipal corporations — Public employment — Civil service — No legal right to back pay before an appointment has occurred regardless of the reasons for failure to appoint.

APPEAL from the Court of Appeals for Cuyahoga County.

On May 25, 1977, the city of Cleveland's Civil Service Commission certified the names of eighteen patrolmen of the Cleveland Police Department who had passed the examination and were eligible for promotion to sergeant. The list included the names of appellees, Thomas Gibbons and Perry Ward.

Prior to that time, the Cleveland City Council had enacted three ordinances limiting the power of the Cleveland Police Department to fill vacancies created in their ranks. As a result, the department could only fill twelve vacancies in the rank of sergeant, although others existed. Appellees were not appointed to any of the twelve vacancies.

On May 27, 1977, appellees joined in filing a "Complaint for Intervention for Declaratory and Injunctive Relief" in an action captioned " Kish et al. v. Cleveland et al., No. 77-970509," in the Court of Common Pleas of Cuyahoga County. The complaint alleged that the ordinances at issue were in violation of Section 26 of the Cleveland City Charter which prohibited City Council from taking "* * * any part in the appointment, promotion or dismissal of any officer, or employee in the service of the city." The complaint sought, inter alia, an order compelling the promotion of appellees or, alternatively, to extend the eligibility list which was scheduled to expire on May 28, 1977; and to compel the city to fill all vacancies arising from the compulsory retirement ordinance.

The court of common pleas court action resulted in a determination that the ordinances at issue were invalid. Ultimately, upon determination of a motion to show cause, the court, on April 16, 1979 ordered "that the defendant Director of Public Safety of the City of Cleveland, James W. Barrett, immediately fill nine vacancies in the rank of Lieutenant and eight vacancies in the rank of Sergeant from the current police promotional list * * *."

On April 24, 1979, the names of ten patrolmen, including appellees, were certified as eligible for promotion to sergeant. Appellees were among the eight patrolmen appointed to the rank of sergeant on April 24, 1979.

On May 26, 1982, appellees initiated this action in mandamus in the Court of Appeals for Cuyahoga County against appellants, the city of Cleveland, its Director of Public Safety, its Treasurer and its Director of Finance. The complaint alleged that appellees were wrongfully excluded from employment as sergeants from May 26, 1977 to April 24, 1979. They sought the issuance of a writ to compel the payment of wages they would have received if promoted to the rank of sergeant during that time.

The court of appeals granted appellees' motion for summary judgment and issued the writ requested.

The cause is now before the court upon an appeal as of right.

Mr. John B. Gibbons, for appellees.

Mr. John D. Maddox, director of law, Mr. Nick Tomino and Mr. Irving Berger, for appellants.

Per Curiam.

In order for a writ of mandamus to issue the relators must establish a clear legal right to the relief prayed for; a clear legal duty upon respondents to perform the act requested; and that relators have no plain and adequate remedy in the ordinary course of the law. State, ex rel. Butler, v. Demis (1981), 66 Ohio St.2d 123, 124 [20 O.O. 121]; State, ex rel. Akron Fire Fighters, v. Akron (1978), 54 Ohio St.2d 448, 450 [8 O.O.3d 443].

Appellants argue that no legal right to back pay can be established before an appointment has occurred, regardless of the reasons for the failure to appoint. We agree.¹

1 In view of our determination herein, we need not address the issue of whether, in fact, appellees were entitled to appointment to the position of sergeant as of May 26, 1977.

It is well-settled that mandamus does not lie to compel the granting of benefits conferred by the civil service laws unless it has been established that the employee was appointed to the civil service position in question. State, ex rel. Lynch, v. Taylor (1940), 136 Ohio St. 417 [16 O.O. 577]; State, ex rel. Baker, v. Wichert (1953), 159 Ohio St. 50 [50 O.O. 26]; State, ex rel. Brown, v. East Cleveland (1979), 58 Ohio St.2d 232 [12 O.O.3d 235]; State, ex rel. Pennington, v. Ross (1980), 63 Ohio St.2d 58 [17 O.O.3d 36]. Appellees have no legal right to the salary and benefits incidental to the rank of sergeant prior to their appointment to the position of sergeant.

The cases cited by appellees in support of their claimed right to back pay involve situations where the employees had been properly appointed to their positions before the actions for wrongful exclusion and back pay accrued. See State, ex rel. Colangelo, v. McFaul (1980), 62 Ohio St.2d 200 [16 O.O.3d 239]; State, ex rel. Hamlin, v. Collins (1981), 65 Ohio St.2d 63 [19 O.O.3d 259]; and State, ex rel. Kabatek, v. Stackhouse (1981), 66 Ohio St.2d 64 [20 O.O.3d 58].

Similarly, when a civil service appointment has been compelled by way of mandamus, no concomitant order of back pay was included for the period of time before the employee received his appointment. State, ex rel. Pell, v. Westlake (1980), 64 Ohio St.2d 360 [18 O.O.3d 514]; State, ex rel. Wolcott, v. Celebrezze (1943), 141 Ohio St. 627 [26 O.O. 194].

Accordingly, the judgment of the court of appeals is reversed and the writ is denied.

Judgment reversed and writ denied.

CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and J.P. CELEBREZZE, JJ., concur.