Opinion
No. 29601
Decided December 8, 1943.
Civil service — Employee terminates classified service status upon accepting appointment to elective office — Classified service employee granted leave of absence — Cannot occupy elective position in unclassified service — Secretary of State — Statistician and editor may be claimed exempt as an assistant — Section 486-8 (a) 8, General Code, constitutional.
IN MANDAMUS.
This is an action originating in this court. Relator, George M. Neffner, filed his petition and later by leave filed an amendment thereto. The relief sought is a writ of mandamus ordering and directing the respondent, Edward J. Hummel, Secretary of State, to restore relator to his former position as statistician and editor in the office of the Secretary of State.
The substantive facts necessary to a determination of this cause, as alleged in the petition and the amendment thereto, may be stated thus:
Relator on January 10, 1927, was appointed to and until November 15, 1927, held the position of statistician and editor in the office of Secretary of State by provisional appointment in the classified service of the state. Between those dates the duties and qualifications of the position were defined by the State Civil Service Commission, hereinafter called the commission. On the last mentioned date, relator passed a competitive examination for such position, was appointed thereto and thereafter held such position until April 1, 1940. On April 2, 1940, the relator was appointed Secretary of State.
On May 8, 1940, the relator as Secretary of State delivered to the commission a letter which reads:
"In accordance with your telephone request this is to advise you that as of April 1, 1940, George M. Neffner, classified as statistician and editor, took a leave of absence from his classified position for a period of one year from said date."
On May 13, 1940, the commission entered upon its record the following minute:
"Leaves of absence approved
"Secretary of State:
"George M. Neffner from the position of statistician and editor, for a period of one year, effective April 1, 1940."
On January 10, 1941, relator as Secretary of State delivered to the commission a letter as follows:
"Civil Service Commission of Ohio
"State Department Building
"Columbus, Ohio
"Attention: Gertrude Jones, Chairman
"Dear Miss Jones:
"As you will recall, I was granted a leave of absence from my former position as statistician and editor in the office of the Secretary of State. Since my appointment as Secretary of State, that part of the duties of this office has received my personal attention and the duties performed quite satisfactorily.
"Due to a change of administration, I wish to advise that I will report for duty as statistician and editor, thus resuming my former position on Monday, January 13th at noon. I understand that the compensation that I will receive will be designated by Hon. John E. Sweeney, Secretary of State elect, upon his induction into office.
"Appreciating your courtesy in this matter, I am
"Very truly yours,
"(Signed) George M. Neffner
"Secretary of State."
On January 13, 1941, relator resumed his position as statistician and editor in the office of the Secretary of State and was placed upon the pay roll of such office by the then Secretary of State, John E. Sweeney. On January 27, 1941, the commission entered upon its records the following minute:
"Reinstatements approved
"Secretary of State:
"George M. Neffner to the position of statistician-editor, at a salary of $375 per month, effective January 131, 1941."
On February 4, 1941, the commission delivered to the Secretary of State a letter which reads:
"In accordance with your recent payroll showing the reinstatement of George M. Neffner to the position of statistician-editor, effective January 13, 1941, we wish to advise that such reinstatement has been approved and entered on our records accordingly."
Relator continued to perform the duties of statistician and editor until January 30, 1943, but on January 28, 1943, respondent delivered to relator the following letter:
"Under Section 486-8-8 of the General Code of Ohio, I am claiming as one of my exemptions the position of 'statistician-editor' which position you now hold.
"Therefore you will please consider this a notice of the termination of your services effective as of twelve o'clock noon of January 30th, 1943.
"I am taking this action for the reason that the duties which will be assigned by me to the position which you now hold are of an intimate, fiduciary character, and consequently, I do not regard such duties as within the classified civil service of the State.
"Respectfully,
"(Signed) Edward J. Hummel,
"Secretary of State."
On January 30, 1943, relator delivered a letter to the respondent which reads as follows:
"I have your letter of January 28, 1943, purporting to be a notice that you are terminating my services in the office of Secretary of State, as of twelve o'clock noon, January 30, 1943. This is to advise you that I deny your right to terminate my services in this manner, and that I do not consider my services terminated. I stand ready, and shall continue to stand ready, to perform the services of my position, and I await your further instructions.
"Respectfully,
"(Signed) Geo. M. Neffner"
On January 28, 1943, respondent dispatched a letter to the commission which reads as follows:
"State of Ohio
"Secretary of State
"Columbus, Ohio
"January 28, 1943
"Miss Gertrude Jones,
"Chairman, Civil Service Commission of Ohio,
"State Office Bldg.,
"Columbus, Ohio.
"Dear Miss Jones:
"I am herewith enclosing copy of my letter of this date addressed to Mr. George M. Neffner, which is self-explanatory.
"Will you please note on your records that this position is claimed exempt.
"Sincerely yours,
"(Signed) Edward J. Hummel
"Secretary of State."
On February 8, 1943, the commission delivered to respondent the following communication:
"Designation by the Secretary of State of the following positions as personal exemptions to which he is entitled, in accordance with Section 486-8-8 of the Civil Service Laws of Ohio and Section 2 of Rule III of the rules and regulations of the commission, was ordered entered accordingly:
"Statistician and Editor — Vacant.
"Administrative Secretary — Margaret Colburn.
"Executive Secretary — Fred Snyder.
"Personal Secretary — Jane Watkins.
"The position of statistician and editor occupied by George M. Neffner having been changed by the Secretary of State from the classified to the unclassified service under the provisions of Section 2 of Rule III of the rules and regulations of the commission, which resulted in the separation of such classified employee from the service, the commission directed that the name of the incumbent of the position be placed at the head of an appropriate eligible list to be certified therefrom for a period of one year, in accordance with Section 8 of Rule III of the rules and regulations of the commission.
"By direction of the commission:
"Very truly yours,
"(Signed) Gertrude Jones,
"Chairman."
Since January 30, 1943, relator has been ready, able and willing to perform the duties of statistician and editor, but respondent has refused relator the right to perform such duties.
To the petition the respondent filed a general demurrer "for the reason that it appears on the face thereof that it does not state facts which show a cause of action."
The cause was submitted to the court upon the petition, the amendment and the demurrer thereto.
Messrs. Druggan Gingher and Mr. J. Paul McNamara, for relator.
Mr. Thomas J. Herbert, attorney general, Mr. E.G. Schuessler and Mr. Daronne R. Tate, for respondent.
The first question to engage our attention is whether relator was in the classified service of the state at any time after April 1, 1940.
Regulation of civil service is provided for by the Constitution; Section 10, Article XV, reads as follows:
"Appointments and promotions in the civil service of the state * * * shall be made according to merit and fitness, to be ascertained, as far as practicable, by competitive examinations. Laws shall be passed providing for the enforcement of this provision." (Italics ours.)
The underlying purposes which lead to the passage of this provision were to secure the maximum of efficiency and integrity in the public service; to restrain persons occupying positions in the classified service from political activity; to prevent discrimination for political, religious or racial reasons; and to guarantee permanent tenure to persons in the classified service.
Pursuant to the constitutional mandate the General Assembly passed a civil service code creating a State Civil Service Commission, defining its duties and powers and fostering civil service in the state, county, municipal and school governments. Sections 486-1 to 486-31, both inclusive, General Code. (103 Ohio Laws, 698, 106 Ohio Laws, 400.)
By the provisions of the civil service code all positions in the service of the state are embraced within two divisions, unclassified and classified service. Persons in the unclassified service are not protected in their tenure of office, nor are they prohibited from political activity; on the other hand, persons holding positions in the classified service are protected in their tenure and are prohibited from all political activity except to vote as they please and to express freely their political opinions.
The commission is authorized by Section 486-7, General Code, to adopt administrative rules to make effectual the mandate of the civil service code.
Section 1, Article III of the Constitution provides that the Secretary of State shall be an elective officer.
Section 486-8, General Code, provides in part as follows:
"(a) The unclassified service shall comprise the following positions, which shall not be included in the classified service, and which shall be exempt from all examinations required in this act.
"1. All officers elected by popular vote or persons appointed to fill vacancies in such offices." (Italics ours.)
The relator by virtue of the statute entered the unclassified service on April 2, 1940, when he accepted the appointment as Secretary of State.
It is claimed on his behalf that during the period he occupied the office of Secretary of State (April 2, 1940, to January 13, 1941) he was on leave of absence from his position (statistician and editor) in the classified service.
At the threshold of our consideration of this contention we are met with this anomalous situation: On May 8, 1940, relator, as Secretary of State, granted to himself a leave of absence for one year from the position of statistician and editor which he did not then occupy, he having entered upon his duties as Secretary of State on April 2, 1940. Later, on January 10, 1941, as Secretary of State, relator reinstated himself as of January 13, 1941, at which time he was not Secretary of State. The leave of absence, according to the letter of May 8, 1940, was effective as of April 1, 1940.
The court will take judicial notice that on April 1, 1940, the office of Secretary of State was vacant.
We find nothing in either the code or the rules of the commission which provides authority for the procedure followed by the relator.
This situation presents the further question of whether a person can hold a position in the unclassified service as the result of the acceptance of an appointment to fill a vacancy in an elective office, while on leave from a position in the classified service. In other words: Can a person occupy positions in both the unclassified and classified service at the same time, as above stated?
A leave of absence properly granted to one in the classified service does not have the effect of taking the person to whom such leave is granted out of the employ of the state or out of the classified service. By such leave the employee forfeits none of his rights under the civil service law and therefore it would be a strange doctrine which would protect all the rights conferred upon the employee during such leave and yet would relieve such employee from all obligations and restrictions embodied in the same law which protects his rights. Such person is not separated from the classified service by mere leave of absence and although his actual service and compensation are suspended during the continuance of such leave he is for every other purpose and in all other respects subject to the statutory provisions applicable to employees in actual service.
This is substantially the same conclusion reached by Judge Turner, now a member of this court, when he was Attorney General. (See Vol. 2, Opinions of Attorney General, [1916], 1955, 1961.)
A casual reading of the civil service code demonstrates clearly that the General Assembly created two classes of service. The rights and obligations of and restrictions upon persons in the classified service are wholly inconsistent with the rights and obligations of and restrictions upon persons in the unclassified service.
As we read and construe the code an employee in the classified service upon acceptance of an appointment to an elective office in the unclassified service thereby terminates his status as an employee in the classified service. If such employee at some future date desires to re-enter the classified service he must submit himself to a competitive examination in accordance with the provisions of the code. This the relator did not do. It follows, therefore, that he was not in the classified service on and after April 2, 1940.
On May 8, 1940, the relator attempted to grant himself a leave of absence effective April 1, 1940, and on January 10, 1941, he attempted to reinstate himself as of the date of January 13, 1941. Both of these actions were ineffective for the reason that relator was not Secretary of State on April 1, 1940, or on January 13, 1941.
This conclusion in our opinion is dispositive of the case. However, this question, although squarely presented by the record, was not seriously urged in the oral arguments or briefs.
The question most strongly urged was whether the respondent had the legal authority under Section 486-8 (a) 8, General Code, to claim the position of statistician and editor exempt from the classified service.
By relator it is vigorously asserted that under the facts in this case to so hold would be to render this section unconstitutional.
This assertion is based upon the decision of this court in the case of State, ex rel. Townsend, v. Berning, Treas., 135 Ohio St. 31, 19 N.E.2d 155.
The factual situation in the instant case is entirely dissimilar to the factual situation presented in the Berning case, and therefore that decision is not controlling here.
The duties of the statistician and editor in the instant case are more nearly akin to the duties of the position of chief of the division of boiler inspection considered in State, ex rel. Myers, v. Blake, Dir., 121 Ohio St. 511, 169 N.E. 599.
In that action the relator, Carl O. Myers, prayed that a writ of mandamus be issued ordering respondent, Blake, to recognize him as the lawful incumbent of the position of chief of the division of boiler inspection in the Department of Industrial Relations. The respondent, Blake, claimed that position exempt from the classified service as one of the exemptions provided for by Section 486-8 (a) 8, General Code. Relator, Myers, held that position until it was claimed exempt by respondent at which time Myers was dismissed.
This court, in that case, considered and passed upon these two questions among others:
(1) Is the chief of the division of boiler inspection an assistant within the meaning of the term as used in paragraph (a), subdivision 8 of Section 486-8, General Code?
(2) Does paragraph (a), subdivision 8 of Section 486-8, General Code, contravene Section 10, Article XV of the Constitution of Ohio?
The court answered the first question in the affirmative and the second question in the negative.
It is here urged that by reason of Section 157, General Code, which grants the power to the Secretary of State to appoint an assistant secretary of state, he cannot claim exemption of the position of statistician and editor as one of three assistants provided for in paragraph (a), subdivision 8 of Section 486-8, General Code.
It is clear that the word "assistants" as used in Section 486-8 (a) 8, General Code, does not refer to the assistant secretary of state provided for in Section 157, General Code.
Paraphrasing the language used in the Blake case, supra, the statistician and editor in the office of the Secretary of State is an "assistant" to the head of the department, as an agent through whom the duties and purposes of the department are accomplished. It is in that sense that the word "assistant" was used by the General Assembly in Section 486-8 (a) 8, General Code, and as so used is not inconsistent with any constitutional provision.
In our view the petition cannot be amended so as to state a cause of action. The demurrer is sustained, the writ is denied and the petition is dismissed.
Writ denied.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, BELL, WILLIAMS and TURNER, JJ., concur.