Decided December 2, 1936.
Civil service — Classified — Appointment not final until appointee satisfactorily serves probationary period — Section 486-13, General Code — Appointee removable at end of probationary period, when — Appointee not entitled to copy of charges and right of appeal — Sections 486-17 and 486-17a, General Code.
1. Under the provisions of Section 486-13, General Code, no appointment to a civil service position shall be deemed finally made until the appointee has satisfactorily served the prescribed probationary period.
2. If, at the end of the probationary period, the service of a probationary appointee is unsatisfactory, the appointing officer may, with the approval of the civil service commission, remove or reduce such appointee without restriction.
3. The removal of such appointee is governed by the specific provisions of Section 486-13, General Code, and not by the general provisions of Sections 486-17 and 486-17 a, General Code, relating to removal and appeal.
APPEAL from the Court of Appeals of Jefferson county.
This case originated in the Court of Common Pleas of Jefferson county. The question of law involved was presented by a demurrer to the petition. The demurrer was sustained by the Court of Common Pleas, which judgment was reversed by the Court of Appeals. Thereafter, upon motion sustained by this court, the record was certified for review.
The facts essential to the consideration of the legal question presented may be very concisely stated. On November 18, 1935, the relator, George A. Artman, was selected by the director of public safety of the city of Steubenville from an eligible list certified by the civil service commission as a result of competitive examination and was tendered a ninety-day probationary appointment as a police patrolman, which appointment was accepted, and relator entered upon the performance of the duties of such position. Pursuant to statutory authority, ninety days had been fixed as the probationary period by the city civil service commission. On February 15, 1936, relator was notified by the director of public safety of his dimissal from further service as a patrolman for the reason that his services were unsatisfactory, and the director thereupon named and appointed another in relator's place. Thereafter, on February 18, the civil service commission of the city was furnished a copy of the order of dismissal and subsequently a record of service of the relator, together with certain stated reasons for his discharge, pursuant to which the civil service commission made a finding that the reasons submitted by the safety director warranted the dismissal of the relator, and thereupon approved the same.
The relator urges that the reasons set forth were pretended reasons merely, and that he was refused a hearing or an opportunity to refute the charges made against his service. He further avers that the reasons assigned for his dismissal were a pretense and that "the real reasons were solely for political purposes," and that his conduct has at all times been good and his service efficient and satisfactory.
A writ of mandamus was prayed for requiring the restoration of his name as an employee and patrolman in the permanent civil service classification of the city and an assignment to duty as such.
Messrs. Moreland Moreland, for appellee.
Mr. John J. Griesinger, Jr., Mr. Fred A. Stone and Mr. Hugo F. Chestosky, for appellants.
The relator was a probationary appointee only. That fact is conceded. In our view that is the determinative fact in this case. It is provided by Section 486-13, General Code, as follows: "* * * 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 employe's service, and if such service is unsatisfactory, the employe may, with the approval of the commission, be removed or reduced without restriction * * *."
When it is further conceded that the three steps required by provisions of this section which are specifically applicable to the situation here presented have been taken and the essential requirements of the statute thereby met, the averments of the petition challenging the good faith and impugning the motive of the appointing officer and the civil service commission become immaterial. The removal was made at the end of the probationary period by the process prescribed by the section above quoted. Such appointment could not be deemed finally made until the appointee had satisfactorily served his probationary period. The provisions of Section 486-17, General Code, therefore have no application to the situation presented in this case. It is governed and controlled by the specific provisions of Section 486-13, General Code. Pursuant thereto the record of the service of the probationary appointee was certified to the civil service commission as unsatisfactory, and that commission approved the removal of such appointee.
As a safeguard against arbitrary action of the appointing official or even his erroneous judgment as to the unsatisfactory character of the probationary appointee's services, his removal at the termination of the probationary period cannot be made effective without the approval of the civil service commission. But with that approval, such removal or reduction is "without restriction." No right is granted by this statute to probationary appointees to appeal to the civil service commission or to have a hearing upon the question of the character of the service rendered by him, as is granted by Sections 486-17 and 486-17a, General Code, to permanent appointees. Such distinction specifically made by the legislation relative to such appointments cannot be disregarded. To do so would be tantamount to an amendment of the statute — a legislative and not a judicial function.
It follows that, under the facts presented, the official action complained of is not reviewable in a proceeding in mandamus. The judgment of the Court of Appeals is reversed and that of the Common Pleas Court affirmed.
WEYGANDT, C. J., STEPHENSON, WILLIAMS, JONES, DAY and ZIMMERMAN, JJ., concur.