Opinion
No. 74-993
Decided May 7, 1975.
Municipal corporations — City council — Charter — Member not to hold any other public office or public employment — Member also public school teacher — Councilmanic action not prerequisite to quo warranto action.
IN QUO WARRANTO.
ON MOTIONS for Summary Judgment.
Relator, city of Highland Heights, is a charter municipality and by this original action seeks the ouster of respondent, Dorothy Kee, from her office as a member of city council because of her assumption of other "public employment" as prohibited by the city charter.
Section 4.03 of the city charter prescribes, as a qualification for a member of city council, that "he shall not hold any other public office or public employment, except as otherwise provided in this charter * * *" with the exception of the position of notary public and service in the state militia or Reserve Corps of the United States unless called to full time military service therein for a period exceeding thirty consecutive days. Section 4.03 further prohibits council members, to the extent provided by general law, from having a direct or indirect interest "in the profits or emoluments of any contract, work, or service with or for the municipality." The concluding paragraph of Section 4.03 of the charter states, in part, that "any member of council who shall cease to possess, or who violates any of the qualifications herein enumerated may be removed from his office * * *."
It is undisputed that respondent was elected to city council for a two year term commencing January 1, 1974. It is likewise undisputed that respondent subsequently became an employee of the Mayfield City School District, Cuyahoga County, as a school teacher, and such employment continues.
There is no claim by relator that council has taken any formal councilmanic action as to respondent's removal other than to authorize the filing of this action. Both parties have moved for summary judgment.
Mr. David B. Shillman, director of law, and Messrs. Gustin, Shillman Weiss, for relator.
Avery, Puette Carbone Co., L.P.A., and Mr. Guerin L. Avery, for respondent.
Although respondent does not expressly concede that her employment as a public school teacher constitutes other public employment in contravention of the charter of the city of Highland Heights, she does not oppose such conclusion as being the law of Ohio. See State, ex rel. Platz, v. Mucci (1967), 10 Ohio St.2d 60.
The question raised by respondent is whether, under the charter, affirmative councilmanic action is a prerequisite to removal of a council member in a quo warranto action, and is councilmanic action the exclusive remedy for disqualification of such council member, in view of the permissive phrase "may be removed" in the charter.
Resolution of the question is found in State, ex rel. Corrigan, v. Wheeler (1971), 27 Ohio St.2d 9, where this court considered the grant of judicial power to the various Ohio courts under Section 1, Article IV of the Ohio Constitution, and the further grant of original jurisdiction by Section 2, Article IV in certain types of actions of which "quo warranto" is one. Specifically, this court stated, at page 10, that "* * * the grant of authority to the city commission cannot result in a diminution of the constitutional grant of judicial power to this court. This court's original jurisdiction in quo warranto cannot be diminished by a city charter."
Although it is true that the Highland Heights charter does not contain a forefeiture provision, as in Wheeler, the "shall not" prohibition against other public employment was nonetheless violated, and such charter, by affording council discretion as to whether it chooses to disqualify, cannot serve to require councilmanic action as a prerequisite to an original action in quo warranto. Such requirement would diminish and limit this court's original jurisdiction in quo warranto. The absence of a forfeiture provision is not a valid distinction to Wheeler where the prohibition violated is mandatory and unequivocal. Here, the absence of a forfeiture provision is merely consistent with the charter's authorization of councilmanic action for removal, which action this court holds is not necessary to a determination in quo warranto.
The motion for summary judgment in favor of relator is sustained and the writ of quo warranto is allowed.
Writ allowed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.