Opinion
No. 27785
Decided May 8, 1940.
Civil service — Competitive service — Appointment effective from date of appointment — Not from date appointing authority reports to Civil Service Commission — Section 486-13, General Code.
Where a person on a competitive eligible list is duly certified by the Civil Service Commission to the head of a department for appointment to a position on the staff of such department and her appointment has been regularly made, it becomes effective from the date of appointment and not from the date of the report of such appointment made by the appointing authority to the Civil Service Commission as required by Section 486-13, General Code.
IN MANDAMUS.
This is an original mandamus action in which the relatrix seeks to compel the respondent to restore her to her former position of senior interviewer in the classified service of the Ohio Bureau of Unemployment Compensation, she not having been laid off or suspended for cause under the provisions of Section 486-17 a, General Code. Her right to prevail depends upon the effective date of her appointment to such position.
Prior to December 26, 1938, the relatrix successfully passed a competitive civil service examination for the position above named in the classified service. On December 30, 1938, the Civil Service Commission, by certification No. 23918, certified her name to the Unemployment Compensation Commission as one eligible for appointment in the Cleveland and East Cleveland districts. On December 31, the Unemployment Compensation Commission, by resolution of that date, appointed her to the position in question to become effective on the day she should report to the manager of the Cleveland office. As a matter of fact, she began work on December 27, 1938, pending her appointment, and continued to hold the position until May 10, 1939, when she was discharged.
For some reason, no report of her appointment as a senior interviewer was made to the Civil Service Commission as required by Section 486-13, General Code, until February 10, 1939. Under date of February 6, 1939, a second certification, No. 24182, for the position of senior interviewer bearing the name of the relatrix, was sent by the Civil Service Commission to the Unemployment Compensation Commission. On February 10, 1939, two cards from the Unemployment Compensation Commission, referring to relatrix, were on file with the Civil Service Commission. One is entitled "Report of Emergency Appointment" and states that the Ohio State Employment Service, which was a department of the Unemployment Compensation Commission, appointed relatrix as an emergency appointee December 28, 1938. The other card is entitled "Report of Appointment" and says that relatrix was appointed from certification No. 23918, which was issued as of December 30, 1938, to the position of senior interviewer in the Cleveland district, "effective February 10, 1939, to succeed herself, temporary emergency."
The records of the Civil Service Commission show that from the date relatrix reported to work until February 10, 1939, she was an emergency appointee, but this was without her knowledge and at no time did she consent to temporary appointment.
It is the claim of the relatrix that the appointment to her position became effective December 31, 1938, while the respondent claims such appointment became effective February 10, 1939, and that her discharge on May 10, was within the probationary period of three months as allowed by Section 486-13, General Code.
Messrs. Harrison Marshman and Mr. William K. Thomas, for relatrix.
Mr. Thomas J. Herbert, attorney general, Mr. John P. Walsh and Mr. Howard Bernstein, for respondent.
The record in this case presents for decision the questions whether the relatrix was regularly appointed to a position in the classified service, and what was the date of that appointment.
She was certified by the Civil Service Commission to the Unemployment Compensation Commission as eligible for appointment to the position of senior interviewer; by resolution of the latter commission duly adopted, her appointment was approved and made as a senior interviewer for the Cleveland unemployment office to become effective when she should report for work; she was notified as to such appointment all in regular order; and, as a matter of fact, she began work as such employee on December 27, 1938, and continued until the date of her discharge.
The report of her appointment and employment as senior interviewer, required by Section 486-13, General Code, was not sent back to the Civil Service Commission until February 10, 1939. The necessity of filing this report with the Civil Service Commission as a prerequisite to employment is hereinafter considered. The court is of opinion that these steps, in the order named, completed her appointment to a position in the Unemployment Compensation Commission.
Unknown to relatrix, it seems that she was carried on the unemployment compensation records and perhaps on the civil service records as an emergency employee and was not reported as being appointed senior interviewer until February 10, 1939. But, since the record of her appointment shows that she was appointed as senior interviewer, that Section 6 of Rule 7 of the Civil Service Commission provides, "the name of an eligible shall not be certified for temporary appointment unless he has signified his willingness to accept temporary employment," and that she did not consent to any emergency or temporary appointment, her appointment was to the position of senior interviewer, and not to that of a temporary or emergency employee.
It is claimed by the respondent that since the report of the appointment of relatrix as senior interviewer was not made to the Civil Service Commission until February 10, 1939, her appointment became effective as of that date, and that as a result, her discharge on May 10, 1939, was within the probationary period and proper under Section 486-13, General Code. The relatrix, however, claims that her appointment became effective December 31, 1938, and that such effective date did not depend upon the report of such appointment to the Civil Service Commission.
The determination of this question depends upon the construction to be given to Section 486-13, General Code, as to whether it is directory or mandatory in character and an essential prerequisite to the effectiveness of the appointment. The evident purpose of this required report is to perfect the records of employment and to provide payroll records in the office of the Civil Service Commission. The report constitutes no essential step in the regular routine by which a person on a competitive classified list in the civil service is appointed to a position in such service. In the opinion of the court, the appointment of relatrix became effective as of December 31, 1938, and since her probationary period of employment had expired before May 10, 1939, she could not then be removed except for cause. Her discharge was, therefore, wrongful.
The writ will be allowed.
Writ allowed.
WEYGANDT, C.J., DAY, ZIMMERMAN, WILLIAMS, MYERS and MATTHIAS, JJ., concur.