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State ex Rel. v. Haynes

Supreme Court of Ohio
Mar 19, 1952
105 N.E.2d 53 (Ohio 1952)

Opinion

No. 32498

Decided March 19, 1952.

Civil service — Chief of police — Right of removal at end of probationary period — Section 486-13, General Code — Order of removal by mayor — Noncompliance with Section 486-17a, General Code — Reinstatement — Remedy by appeal to Common Pleas Court — Mandamus not available although remedy by appeal not employed — Right to salary during period officer under void suspension — Not enforceable by mandamus.

1. Where a mayor files with the city civil service commission what purports to be an order of removal of a chief of police and reasons therefor, and furnishes a copy thereof to such chief, and the chief within ten days after such order of removal files a motion with the commission raising the question whether his removal could be so accomplished, and the commission promptly renders a decision approving such action of the mayor, a writ of mandamus will not be issued to compel the reinstatement of such chief of police.

2. In such an instance, assuming the facts are such that the proceedings for his removal should comply with Section 486-17 a, General Code, and the proceedings actually taken for his removal did not comply therewith, the remedy of such chief of police is by appeal to the Common Pleas Court pursuant to the provisions of Section 486-17 a, General Code.

3. Where a party had a remedy by appeal, whether he exercised that remedy or not, he cannot ordinarily have the extraordinary remedy of mandamus to secure the same rights which he could have secured by such appeal.

4. At the end of the probationary period provided for in Section 486-13, General Code, an appointing authority has the right to remove an appointee whose service has been unsatisfactory to such appointing authority. Such right of removal is subject only to the approval of the civil service commission.

5. Any rights of the chief of police of a city to salary, for a period during which he was not paid because excluded from office by reason of a void suspension, may be asserted in an action at law against the city; and such chief is, therefore, not entitled to a writ of mandamus to enforce such rights.

IN MANDAMUS.

On September 20, 1950, the relator, Harris, was certified as having received the highest grade upon a competitive civil service examination for chief of police of Newark. Thereupon, he was suspended by Mayor Haynes for 30 days on grounds later found by the Common Pleas Court to be unjustified.

Thereafter, on November 9, 1950, Mayor Haynes appointed Harris as chief of police.

On January 4, 1951, Mayor Haynes wrote a letter to Harris reading as follows:

"Your conduct of office as chief of police has not been satisfactory to me and to many other people. Therefore, I am giving you an opportunity to resign from `chief' and revert to `sergeant' in the police department, or I shall file charges for removal from the department.

"You are hereby suspended for fifteen days, to arrive at your conclusion. This suspension shall be without pay should you not decide to comply with the demotion."

No copy of this letter was sent to the Newark civil service commission.

On January 8, 1951, Harris instituted this original action of mandamus in this court to secure his salary and the privileges of his office as against the January 4, 1951, action of the mayor; and he also filed with the civil service commission of the city a writing, styled "Explanation," setting up that the mayor's action was void because no breach of duty on Harris' part was assigned against him which might be the basis of an appeal to the commission, that the mayor's action was for political and frivolous reasons, and that by its terms he was not afforded a hearing, nor was a time for hearing set; and requesting that, if, despite these defects, the action was not void, he be given a hearing.

The commission accepted this document but set no time for a hearing.

Harris was precluded from working and was denied and pay for a 15-day period beginning January 4. At the end of the 15-day period, no charges having been drawn up against him, Harris resumed the duties of chief of police and continued to act as chief until February 8, 1951.

On February 7, 1951, Mayor Haynes sent a letter to the civil service commission of Newark reading as follows:

"The services of James D. Harris, chief of police of the city of Newark, Ohio, are terminated as of February 8, 1951, at the end of the three-month probationary period, for the reason that his services were unsatisfactory in the following particulars:

"1. Lack of executive ability to properly direct the department.

"2. Does not plan the operation of the department and the assignment of men to particular duties and hours of duty in a way that affords proper protection to the citizens of the city.

"3. Devotes his time to detailed personal performance of the duties of subordinates, rather than the management and direction of the department.

"4. Lacks tact in relationship with the men working under him.

"5. Does not command the confidence and respect of the men in the department which in turn has resulted in a breakdown of morale of the department.

"I therefore recommend that the commission affirm my dismissal of Mr. Harris as chief of police, at the end of his probationary services."

On February 12, 1951, Harris filed with the civil service commission a motion to quash and hold for naught Mayor Haynes' order purporting to dismiss him and to accord to him all the privileges and emoluments of the office of chief of police and requesting a hearing upon that motion to quash; and, in the alternative, requesting that, if the commission did not uphold the motion to quash and consider it as a dismissal order, he be given a reasonable time to prepare an explanation thereto as contemplated by Section 486-17 a, General Code, and afforded a hearing thereon to test the validity of that order.

In his memorandum in support of these motions, Harris pointed out that he had been illegally dismissed and precluded from serving 15 days during his probationary period and therefore should be given a hearing on his dismissal, under Section 486-13, General Code; that, if the commission chose to ignore that dismissal of 15 days and assume that he had a full probationary period, then his purported dismissal on February 8 came in fact on the 93rd day after the date of his appointment on November 8 so that he was entitled to a hearing on the charges under Section 486-17 a, General Code. Harris further stated that the charges of Mayor Haynes were drawn up in bad faith and were frivolous, and proffered documents and called attention to other facts tending to support that charge.

On February 15, the commission adopted a resolution approving the dismissal by the mayor of Harris as chief of police, overruling Harris' motion to quash, overruling his motion for a hearing on that motion, overruling his alternative motion for a hearing, and providing that he retain his rank as sergeant. At that time the commission also adopted an opinion indicating that its action was taken pursuant to Section 486-13, General Code, and the decision of this court in State, ex rel. Clements, v. Babb, Chief, 150 Ohio St. 359, 82 N.E.2d 737, and indicating that that action was based on the determination that Harris had served a full three-month probationary period.

By reason of amendments to his pleadings, relator has increased the scope of the relief originally sought in this action so that this action is now one to secure by a writ of mandamus not only the salary for the 15-day period in January 1951 but also reinstatement as chief of police and the difference between the salary which he did receive as a sergeant after February 8, 1951, and the salary of the chief of police.

Mr. Robert Denzler Holmes, for relator.

Mr. Walter U. Bolton, city solicitor, and Mr. Glenn Kreider, for respondents.


The relator contends that, because his 15-day suspension in January was void, he did not have the full three-month probationary period provided for by Section 486-13, General Code, and therefore could not be dismissed from office as chief of police except pursuant to Sections 486-17 and 486-17 a, General Code.

He contends further that, if it should be held that he did have an opportunity to serve his full three-month probationary period, then the end of that probationary period was February 5 and thereafter the mayor could not dismiss him as chief of police, as he endeavored to do on February 7, without following the procedure provided for in Sections 486-17 and 486-17 a, General Code.

As we view the law applicable to this case, it is not necessary for this court to determine whether the efforts made by Mayor Haynes to suspend relator in January for 15 days did or did not represent a void suspension. Likewise, we do not believe it is necessary to determine whether, as contended by relator, the three-month probationary period was only 90 days and not the 93 days included in the period of three months running from and including November 9, 1950, to and not including February 8, 1951.

Section 486-13, General Code, provides so far as material in this case:

"All original and promotional appointments shall be for a probationary period of not to exceed three months to be fixed by the rules of the commission, and no appointment or promotion shall be deemed finally made until the appointee has satisfactorily served his probationary period. At the end of the probationary period the appointing officer shall transmit to the commission a record of the employee's service, and if such service is unsatisfactory, the employee may, with the approval of the commission, be removed or reduced without restriction; but dismissal or reduction may be made during such period as is provided for in Sections 486-17 and 486-17a of the General Code." (Emphasis supplied.)

Section 486-17, General Code, provides so far as material in this case:

"* * * No chief of police or chief of a fire department or any member of a police or fire department shall be reduced in rank, laid off, or suspended, except as provided in Sections 486-17a and 486-17b of the General Code with reference to the removal of any officer, employee or subordinate in the classified service of the state, counties, cities and city school districts." (Emphasis supplied.)

Section 486-17 a, General Code, provides so far as material in this case:

" In all cases of removal the appointing authority shall furnish such employee or subordinate with a copy of the order of removal and his reasons for the same, and give such officer, employee or subordinate a reasonable time in which to make and file an explanation. Such order with the explanation, if any, of the employee or subordinate shall be filed with the commission. Any such employee or subordinate so removed may appeal from the decision or order of such appointing authority to the state or municipal commission, as the case may be, within ten days from and after the date of such removal, in which event the commission shall forthwith notify the appointing authority and shall hear, or appoint a trial board to hear, such appeal within thirty days from and after its filing with the commission, and it may affirm, disaffirm or modify the judgment of the appointing authority, and the commission's decision shall be final; provided, however, that in the case of the removal of a chief of police or chief of the fire department or any member of the police or fire departments of a municipality an appeal may be had from the decision of the municipal commission to the Court of Common Pleas of the county in which such municipality is situated to determine the sufficiency of the cause of removal. Such appeal shall be taken within ten days from the finding of the commission." (Emphasis supplied.)

Much reliance is placed by relator upon State, ex rel. Brittain, v. Board of Agriculture, 95 Ohio St. 276, 116 N.E. 459. It is sufficient to state that in his letter of February 7 Mayor Haynes did state what purport to be reasons for his order of removal while "no reason whatever" was stated in the order of removal in the Brittain case.

In the instant case, the mayor furnished Harris a copy of what purports to be an "order of removal and his reasons for the same" when he gave him a copy of the letter of February 7. Thereafter, Harris promptly appealed to the commission from that order by filing his motions with the commission. When the commission rendered its order of February 15, it certainly rendered a decision which appeared upon its face to be final so far as it affirmed the judgment of the mayor in terminating the services of Harris as chief of police. Thereafter, if, as relator contends, the provisions of Sections 486-17 and 486-17 a, General Code, were applicable, those statutes certainly gave Harris a right of appeal from that decision of the commission to the Court of Common Pleas. In re Fortune, 138 Ohio St. 385, 35 N.E.2d 442. In our opinion, the remedy made available to him by that statute was an adequate remedy. See State, ex rel. Sidell, v. Cole, Dir., 147 Ohio St. 203, 206, 70 N.E.2d 451. Having had such a remedy, whether he exercised it or not, Harris cannot now have the extraordinary remedy of mandamus in this court to secure the same rights which he could have secured by appeal to the Common Pleas Court. See State, ex rel. Bassichis, v. Zangerle, Aud., 126 Ohio St. 118, 184 N.E. 289; State, ex rel. Blackburn, v. Court of Appeals, 154 Ohio St. 464, 96 N.E.2d 297.

However, relator argues that the February decision of the commission overruled relator's motion for a hearing to test the February 7 action of Mayor Haynes, and that, therefore, there was nothing from which relator could have appealed to the Common Pleas Court. In support of this argument, relator contends that "the `decision' of the commission only becomes an appealable final order when that `decision' was the one contemplated by exact words of the statute, i. e., that decision after the commission `shall hear' or have a `trial' board hear the removal question," and that a necessary step in the procedure of the commission is notification to "the appointing authority that it is going to have a hearing." As relator recognizes, this amounts to an argument that the Common Pleas Court upon appeal cannot review legal questions "such as denial of a hearing by the commission." In support of this, relator relies on the provision of Section 486-17 a, General Code, that the "appeal * * * to the Court of Common Pleas" is "to determine the sufficiency of the cause of removal." We are of the opinion that the words of the statute do not justify any such narrow scope being given to the court appeal therein provided for. See State, ex rel., v. Cole, supra, 206, and Gannon v. Gallagher, Dir., 145 Ohio St. 170, 60 N.E.2d 666. But compare Hawkins v. City of Steubenville, 134 Ohio St. 468, 17 N.E.2d 641; Kearns v. Sherrill, City Mgr., 137 Ohio St. 468, 30 N.E.2d 805. For example, if the commission refused to give relator a hearing, to which he was entitled under the statute, we believe that the Common Pleas Court could have determined that there was no sufficient cause of removal. Certainly, there is no sufficient cause of removal where an employee, entitled to appeal from an order of removal under Section 486-17 a, General Code, has appealed and fully complied with the statutory requirements for such appeal but has been denied a hearing by the commission on such appeal.

Relator argues further that even if the order of removal or reduction was made at the end of his probationary period and so was governed by Section 486-13, General Code, the actions of Mayor Haynes and the civil service commission "were in bad faith, frivolous, abuses of discretion and wholly void as in conflict with Article XV, Section 10 of the Ohio Constitution, and the statutes which implement it."

As appears from its words, the constitutional provision referred to is not self-executing.

As the above-quoted provisions from Section 486-13, General Code, indicate, "if such service [during the probationary period of three months] is unsatisfactory, the employee may, with the approval of the commission, be removed or reduced without restriction." Obviously, it is contemplated that, in the first instance, the party to determine whether or not "the appointee has satisfactorily served his probationary period" is "the appointing officer." The only review of that determination provided for is "the approval of the commission." No provision is made for an appeal from the decision of the commission.

In our opinion, the use of the words "without restriction" in Section 486-13, General Code, indicates that the appointing authority is to have the right to remove his appointee at the end of the probationary period of three months, subject only to the approval of the civil service commission. The General Assembly has provided for the foregoing right of removal in the appointing officer and has guarded against its abuse only by requiring approval of the civil service commission. State, ex rel. Artman, v. McDonough, Dir., 132 Ohio St. 47, 4 N.E.2d 982. In so providing, the General Assembly apparently determined that the only other checks on an abuse of that right should be public opinion and subsequent disciplinary action, which the voters might take in refusing to return to office anyone whom they held responsible for such abuse.

The only question remaining is whether relator is entitled to the extraordinary writ of mandamus to compel the city to pay him the salary which he claims to be due him for the 15-day period during which Mayor Haynes endeavored to suspend him in January.

It is not necessary for us to consider whether his claim in this respect is valid or not. If it is valid, it can be asserted in an action at law against the city of Newark. See City of Cleveland v. Luttner, 92 Ohio St. 493, 111 N.E. 280, relied upon by relator. Here again it appears that relator has an adequate remedy at law and is, therefore, not entitled to the extraordinary writ of mandamus to enforce any rights in this respect that he may have. State, ex rel. Curtis, v. DeCorps, 134 Ohio St. 295, 300, 16 N.E.2d 459; State, ex rel. White, v. City of Cleveland, 132 Ohio St. 111, 5 N.E.2d 331.

Writ denied.

WEYGANDT, C.J., ZIMMERMAN, STEWART, MIDDLETON and MATTHIAS, JJ., concur.

HART, J., not participating.


Summaries of

State ex Rel. v. Haynes

Supreme Court of Ohio
Mar 19, 1952
105 N.E.2d 53 (Ohio 1952)
Case details for

State ex Rel. v. Haynes

Case Details

Full title:THE STATE, EX REL. HARRIS, CHIEF OF POLICE v. HAYNES, MAYOR, ET AL

Court:Supreme Court of Ohio

Date published: Mar 19, 1952

Citations

105 N.E.2d 53 (Ohio 1952)
105 N.E.2d 53

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