Summary
In Buckman we have the case of a provisional employee of the city of Cleveland, appointed October 23, 1941, and laid off for reasons of economy on or about January 27, 1943. He attempted to secure reinstatement to his position by way of a petition in mandamus.
Summary of this case from In re SmithOpinion
No. 29451
Decided April 7, 1943.
Civil service — Classified — Fundamental purposes of laws and regulations — Appointments and promotions upon merit and fitness — Safeguards against unjust charges and discriminations — Unessential employee may be laid off for reasons of economy — Mandamus — Writ not issued to compel reinstatement of employee, when — Layoff for economy not challenged and subterfuge or discrimination not charged.
1. The fundamental purpose of civil service laws and rules is to assure appointments and promotions in the public service based upon merit and fitness and to safeguard appointees in the classified service against unjust charges of misconduct or inefficiency and from being unjustly discriminated against for religious or political reasons or affiliations.
2. Such provisions, however, do not restrict public authorities in their bona fide efforts to effect necessary and desirable economies, or to prevent the laying off of an unessential employee for reasons of economy. ( Curtis, Safety Dir., v. State, ex rel. Morgan, 108 Ohio St. 292, approved and followed.)
3. The issuance of a writ of mandamus to compel the reinstatement of an employee to a position in the classified service, from which he had been laid off for reasons of economy only, is not warranted where there is no challenge of the accuracy of the statement of the appointing officer indicating that the layoff was prompted by the necessities of economy, no charge of subterfuge or discrimination and no claim that the order of layoff complained of was actuated by any motive or based upon any reason or for any purpose other than that specified.
IN MANDAMUS.
This is an original action in mandamus in this court. Relator is the commissioner of auditorium and stadium in the department of public properties of the city of Cleveland. The respondent is the director of the department of public properties of the city of Cleveland.
Asserting that he has been wrongfully and illegally "laid off" and deprived of his right to perform the duties of his office and employment, and wrongfully and illegally removed from the pay roll of the city of Cleveland by the respondent, and "that it is impossible for the division of auditorium and stadium to function without him acting as commissioner of said division," relator seeks reinstatement and restoration to his office and employment and the emoluments thereof.
Issue is made by demurrer to the petition. The facts stated in the petition, essential to a consideration and decision of the question of law presented, are in substance as follows:
The charter of the city of Cleveland establishes various departments of government and authorizes the establishment of other departments and offices by ordinance with the concurrence of the board of control and the discontinuance of any department and office in the same manner.
The charter further provides that the same authority may prescribe, combine, "distribute or abolish the functions and duties of departments and offices; but no function or duty assigned by this charter to a particular department or office shall be abolished or assigned to any other department or office."
The charter further provides for the appointment of a director for each department by the mayor, and that the director of each department shall have the supervision and control of the department, together with "power to prescribe rules and regulations, not inconsistent with this charter, for the conduct of the officers and employees of his department."
It is further provided by the charter as follows: "The work of the several departments shall be distributed among such divisions thereof as are established by this charter or as may be established by the council by ordinance, with the concurrence of the board of control. There shall be a commissioner or chief in charge of each division who shall be appointed, and may be removed, by the director of the department in conformity with the civil service provisions of this charter. Each commissioner shall, with the approval of the director of his department, appoint all officers and employees in his division and have supervision and control of its affairs."
The Municipal Code of the city of Cleveland contains the following provisions:
Section 159. "There shall be and there is hereby established in the department of parks and public property [since changed to "the department of public properties"], with the concurrence of the board of control, in accordance with section 79 of the charter, a division of the Cleveland auditorium and stadium to be administered and controlled by a commissioner of the Cleveland auditorium and stadium, subject to the provisions of the charter and ordinances of the city of Cleveland and to the supervision and direction of the director of parks and public property."
Section 159-1. "The commissioner of the Cleveland auditorium and stadium shall have the charge and management of the Cleveland auditorium, of the Cleveland stadium and of the Lakeside exhibition hall, heretofore known as the Underground Exhibition Hall. He shall have power from time to time to enter into contracts with persons desiring to lease said Cleveland auditorium, said Cleveland stadium and said Lakeside exhibition hall, or parts of any of them, under such rules as may be established by the board of control. It is hereby made the duty of such commissioner of Cleveland auditorium and stadium to originate and supervise such means of publicity as will advertise to the public of the United States and Canada the advantages afforded by the Cleveland auditorium, the Cleveland stadium and the Lakeside exhibition hall, and to take such other action as will procure application for the use of the Cleveland auditorium, the Cleveland stadium and the Lakeside exhibition hall or parts of any of them, with a view to making said Cleveland auditorium, said Cleveland stadium and said Lakeside exhibition hall self-supporting; he shall fix such rental in each case as may be agreed upon, based upon a schedule of rates approved by the board of control and upon the cost of preparation and services furnished by the division of the Cleveland auditorium and stadium, provided that no lease or concession in the stadium extending over a period of ninety (90) days shall be granted without a resolution of council authorizing the same. All such leases, contracts or concession agreements shall be executed on behalf of the city of Cleveland by the director of parks and public property and shall be approved by the commissioner of the Cleveland auditorium and stadium."
Section 159-5. "All moneys in any of said accounts shall be withdrawn only upon a check signed by the commissioner of auditorium or stadium, or deputy commissioner of auditorium or stadium, and countersigned by such other individual as may be designated by the city treasurer as his representative; provided that no moneys shall be withdrawn from the 'Cleveland auditorium special account' or the 'Cleveland stadium special account' unless the voucher calling for such check is properly supported by duly itemized bills, statements, releases or other memoranda authenticated by either the commissioner of the auditorium and stadium, or by such other officer as may be designated by such commissioner of auditorium and stadium, to examine and approve bills and other vouchers for payment."
The relator was appointed commissioner of the division of auditorium and stadium January 1, 1936, pending the establishment of an eligible list. The position of commissioner of the division of auditorium and stadium was placed within the noncompetitive class of the classified service of the city of Cleveland by action of the civil service commission of Cleveland January 6, 1941.
The relator, on October 9, 1941, took the noncompetitive examination for that position and, having passed the examination, was, on October 23, 1941, appointed thereto by the then director of the department of public properties.
On or about January 27, 1943, relator received from the respondent the following communication:
"You are hereby advised that for reasons of economy you are laid off as Commissioner of the Division of Public Auditorium and Stadium, Department of Public Properties, effective at the end of the working day of January 31st, 1943."
Messrs. Phillips Falsgraf, for relator.
Mr. Thomas A. Burke, Jr., director of law, and Mr. Charles W. White, for respondent.
Counsel for the respondent contend that necessary retrenchment in expenditure of public funds is a justifiable ground for laying off an officer or employee in the classified service of a municipality, and therefore the disclosure in the petition that the layoff complained of was for reasons of economy renders the petition vulnerable to a demurrer on the ground that the facts stated therein are insufficient to constitute a cause of action.
Counsel for the relator contend that the position held by the relator, having been established by an ordinance of the city of Cleveland pursuant to and in accordance with the provisions of the city charter, cannot be abolished by the respondent and that the order laying off the incumbent of such position is in effect an attempt to abolish the position and is likewise invalid.
It is fundamental that a demurrer to a petition admits only the facts pleaded therein and does not concede the correctness of legal conclusions. Hence we must disregard as conclusions the language employed to characterize the acts complained of and consider only the facts alleged which are relied upon as constituting the basis of the relator's complaint.
The petition itself shows that it was only "for reasons of economy" that the relator was "laid off as commissioner of the division of public auditorium and stadium." There are no averments in the petition impugning the motive of the respondent or challenging the truth or accuracy of the statement of the respondent that the layoff is for the purpose of economy, no charge of subterfuge and no assertion of discrimination, and no allegation that the order complained of was actuated by any motive or based upon any reason or for any purpose other than that specified. In the absence of any such allegation, the truth and accuracy of the statement as to the object and purpose of the order must be assumed.
We look in vain for any averments in the petition which would warrant the conclusion therein stated that the position held by the relator is being abolished or that such result is contemplated by the respondent. No action or statement of the respondent is alleged which indicates any intention, purpose or desire of the respondent to abolish or discontinue the position or to discharge or remove the incumbent, or in any manner deprive the incumbent of title to the position or the right of reinstatement to active duty therein in preference to all other persons. The relator, being an employee in the classified service, is, as a matter of course, entitled to the benefit afforded by all provisions of law and of civil service rules and regulations adopted pursuant thereto and to the full and complete protection thus provided for those in the classified service.
As pointed out in the case of Curtis, Safety Dir., v. State, ex rel. Morgan, 108 Ohio St. 292, 140 N.E. 522, the fundamental purpose of those laws and rules is to safeguard appointees against unjust charges of misconduct or inefficiency and from being unjustly discriminated against for religious or political reasons or affiliations. In that case, as in the instant case, no charges were made involving misconduct, inefficiency or any other delinquency which is the basis of an order for discharge or removal as provided in Section 486-17 a, General Code. The position involved in the Curtis case was one created by ordinance of the city, just as is the position under consideration in this case. In neither instance was the position abolished or the incumbent discharged.
Under the provisions of the charter of the city of Cleveland, the commissioner in charge of a division (a position held by relator) "shall be appointed, and may be removed, by the director of the department in conformity with the civil service provisions of this charter" and, under the provisions of ordinance section 159, such commissioner is subject to the supervision and direction of the director of public properties.
This court specifically held in the Curtis case that the statutory provisions governing the procedure with reference to removal of civil service employees from office on the grounds set forth in Section 486-17 a, General Code, have no application whatever in a situation where the employee is laid off solely by reason of the necessities of economy.
The principles therein declared and which are applicable in this case are supported by the decisions of courts of last resort in numerous other jurisdictions with statutory provisions governing civil service similar to our own, some of which decisions are cited in the opinion in the Curtis case.
Many additional decisions are cited in 111 A. L. R., 438, and also in McQuillin on Municipal Corporations (2 Ed.), 445, Section 581, which are quite uniform in holding that the power to suspend or lay off public officials or employees for reasons of economy is not to be denied notwithstanding statutory or charter provisions to the effect that no employee in the classified service shall be removed except for cause and requiring a statement of reasons for suspension and affording opportunity for explanation and hearing, the view held by all being that such statutory or charter provisions refer to matters of personal conduct of the employee and are not intended to restrict the public authorities in their efforts to effect necessary or desirable economies.
This is an action in mandamus, and it is well settled that such writ will not be granted except where it is made to appear that a clear legal right thereto exists. It is a writ to compel the performance of a duty specially enjoined by law. It cannot be assumed that an officer has acted in violation of his duty or contrary to law and he is not called upon to defend his action in the absence of averments of fact which, if true, constitute illegal official conduct.
The demurrer is therefore sustained, and the relator having stated that he does not desire to plead further, a writ of mandamus is denied.
Demurrer sustained and writ denied.
WEYGANDT, C.J., HART, ZIMMERMAM, BELL and TURNER, JJ., concur.
WILLIAMS, J., not participating.