Opinion
No. 27240
Decided February 23, 1939.
Civil service — Discharged clerk not protected by municipal charter amendment — No appointment from eligible list or three-year previous tenure.
APPEAL from the Court of Appeals of Summit county.
Relator, Charles A. Baird, in the Court of Appeals sought a writ of mandamus commanding the respondents to reinstate him in the position of clerk in the bureau of water supply of Akron. The cause was heard upon an amended petition, a joint answer, exhibits and the evidence. Judgment was entered for the respondents and an appeal as of right was perfected to this court.
In 1924, by amendment of the charter of the city of Akron, the duties of the mayor and chief administrator were combined, and as chief administrator the mayor had the power and duty, with certain exceptions, to appoint employees both in the classified and unclassified service.
In 1936 the appellant was appointed as clerk in the bureau of water supply, which clerkship had been created by council. There was no eligible list and appellant had not taken a competitive examination before his appointment, but the civil service commission thereafter certified upon the payrolls that his employment was in accordance with the civil service laws of the state. At the time of his employment the then charter of Akron divided civil service into the classified and unclassified service. The position of appellant was not included in the latter, or unclassified service. That charter also provided that the civil service commission should prescribe rules for the classified service and include therein rules for temporary employment without examination in the absence of an eligible list, but that no temporary employment should continue after the establishment of an eligible list, and also provided for temporary employment for periods not to exceed 60 days. The charter likewise provided for a temporary appointment when no eligible list existed or when such list became exhausted and until a new list could be created.
On November 2, 1937, the electors of Akron amended the charter of that city, Section 109 of the amended charter reading:
"All persons holding positions in the service of the city pursuant to appointment from eligible lists at the time these amendments take effect, or who have been continuously in the service of the city in the same position for the three years next preceding the effective date of these amendments shall retain their positions until discharged, reduced, promoted or transferred in accordance with the provisions hereof. The commission shall maintain a list of all persons in the service, showing in connection with each name the position filled, the date and character of each appointment and of every subsequent change in status. * * *" (Italics ours.)
On March 1, 1938, appellant was discharged by the acting superintendent of the bureau of water supply, with the approval of the mayor and the director of public service.
Appellant contends that he was entitled to the benefits of the charter at the time of his appointment and to the further protection given him by the amendments which confirmed his employment in the classified service, and that he was entitled to retain his office until discharged in accordance with the terms of the charter amendments relating to written reasons for discharge and a hearing.
Mr. W.E. Pardee and Messrs. Burch Baird, for appellant.
Mr. Wade DeWoody, director of law, and Mr. Harold L. Mull, for appellees.
By Section 109 of the amended charter, the people of Akron protected persons holding positions pursuant to appointment from eligible lists and those who had been continuously in the service in the same position for three years preceding the effective date of the amendments. The appellant did not come within either of those requirements, and therefore the judgment of the Court of Appeals should be, and is, affirmed.
Judgment affirmed.
WEYGANDT, C.J., DAY, ZIMMERMAN, WILLIAMS, MYERS, MATTHIAS and HART, JJ., concur.