State ex rel. Alford v. Willoughby Civil Service Commission

• Decision Date: 30 May 1979
• Docket Number: No. 78-373,78-373
• Citation: 12 O.O.3d 229,390 N.E.2d 782,58 Ohio St.2d 221
• Parties: , 12 O.O.3d 229 The STATE ex rel. ALFORD et al., Appellants, v. WILLOUGHBY CIVIL SERVICE COMMISSION et al., Appellees.
• Court: Ohio Supreme Court

Page 221

58 Ohio St.2d 221

390 N.E.2d 782, 12 O.O.3d 229

The STATE ex rel. ALFORD et al., Appellants, v. WILLOUGHBY CIVIL SERVICE COMMISSION et al., Appellees.

No. 78-373.

Supreme Court of Ohio.

May 30, 1979.

Syllabus by the Court

1. A person holding a position within the unskilled labor class of the classified civil service is not denied the protections afforded by R.C. Chapter 124 because of the failure of a civil service commission to promulgate and implement such rules as are necessary for the furnishing of such evidence, or the taking of such test, as the Director of Administrative Services deems proper for the determination of whether the laborer is capable and fitted for performing the work or employment for which he applies.

2. A complaint filed on behalf of classified civil service nonteaching employees claiming that the civil service commissions have not established rules for examinations, resignations, appointments, promotions, eligibility lists and other requirements of R.C. Chapter 124 relative to employment practices within the school district by which complainants were employed sets forth a cause of action for which a writ of mandamus might issue.

On June 3, 1977, relators (appellants herein) filed a complaint in mandamus in the Court of Appeals, naming as respondents the Willoughby-Eastlake Board of Education (the board), the clerk-treasurer of the board, the civil service commissions of four cities situated within the Willoughby-Eastlake City School District, and the members of those commissions.

Count one of the complaint contained, in substance, the following allegations: that prior to September 1, 1976, relators David J. Alford, Roger J. Carabotta and Laurence Peters were employed by the board as unskilled laborers within the classified civil service; that these relators were entitled to the protections of R.C. Chapter 124, in general, and R.C. 124.34, in particular; that the board unlawfully terminated the employment of these relators by failing to comply with the removal procedures set forth in R.C. 124.34; and that relators have no adequate remedy at law.

The allegations contained in count two of the complaint may be summarized as follows: that relators Ralph Everson, Rosemary Regula, Joseph B. Harris, Ronald C. Denhour, Albert E. Jones and John C. Simmons were then employed as nonteaching personnel within the classified civil service of the board, and were entitled to the protections afforded them by R.C. Chapter 124; that the respondent civil service commissions have a legal duty to comply with the provisions of R.C. Chapter 124 as they apply to nonteaching employees of the board; that the respondents have failed to comply with those provisions generally; that the respondent commissions are required to adopt and enforce rules for the classification of positions in the civil service of the city school district; that the respondent commissions are required to maintain eligibility lists for positions of employment with the board; that the respondent commissions are required to implement testing procedures with respect to the civil service of the city school district; and that relators have no adequate remedy at law.

By way of relief, relators sought a writ of mandamus compelling the board to reinstate relators Alford, Carabotta and Peters with full back pay and seniority. Additionally, relators sought to compel the respondents to perform the duties enjoined upon them by R.C. Chapter 124 and requested all other relief to which they may be entitled.

All respondents, by answer or by motion pursuant to Civ.R. 12(B)(6), moved to dismiss the complaint for failure to state a claim upon which relief can be granted. The Court of Appeals sustained the motions to dismiss as to all respondents.

The cause is now before this court on appeal as a matter of right.

Lucas, Prendergast, Albright, Gibson, Brown & Newman, Peter J. Gee and Robert J. Walter, Columbus, for appellants.

J. Melvin Andrews, Eastlake, for appellee Willoughby-Eastlake Bd. of Ed. and its clerk-treasurer.

B. Lawrence Allen, Cleveland, director of law, for appellee Willoughby Civil Service Commission and its individual members.

Theodore R. Klammer, Willoughby, director of law, for appellee Eastlake Civil Service Commission and its individual members.

Baker, Byron & Hackenberg, Barry M. Byron, director of law, and Abraham Cantor, Painsville, for appellee Willowick Civil Service Commission and its individual members and Willoughby Hills Civil Service Commission and its individual members.

HOLMES, Justice.

In construing a complaint upon a motion to dismiss for failure to state a claim, the material allegations of the complaint are taken as admitted. Jenkins v. McKeithen (1969), 395 U.S. 411, 421, 89 S.Ct. 1843, 23 L.Ed.2d 404. Then, before the court may dismiss the complaint, " * * * it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery. * * * " O'Brien v. University Community Tenants Union (1975), 42 Ohio St.2d 242, 327 N.E.2d 753.

In order to establish a claim in mandamus, it must be proved that there exists a clear legal duty to act on the part of a public officer or agency, and that the relator has no plain and adequate remedy in the ordinary course of the law. State ex rel. Pressley v. Indus. Comm. (1967), 11 Ohio St.2d 141, 228 N.E.2d 631, paragraph one of the syllabus. A complaint in mandamus states a claim if it alleges the existence of the legal duty and the want of an adequate remedy at law with sufficient particularity so that the respondent is given reasonable notice of the claim asserted.

With this understanding of the underlying procedural rules, we now turn to a consideration of the complaint dismissed by the Court of Appeals.

I.

Count one of the complaint alleges that three of the appellants were employed, prior to September 1, 1976, by the board of education, the body charged with the management of the Willoughby-Eastlake City School District. It is alleged further that appellants are entitled to the protections afforded employees in the classified civil service, including the removal provisions of R.C. 124.34. Appellants claim that they were not removed in compliance with the statutory requirements, and that they have no adequate remedy at law.

We hold that count one of the complaint states a claim in mandamus, and that a writ should issue if appropriate supportive evidence is submitted upon the merits.

R.C. 124.11(B) provides, in relevant part, that:

"The classified service shall comprise all persons in the employ of the state * * * and city school districts thereof, not specifically included in the unclassified service. * * *"

This section places unskilled laborers employed by city school districts within the classified civil service, unless their positions are exempted therefrom by a properly entered order of the civil service commission, pursuant to R.C. 124.11(A)(12). State ex rel. Ohio Assn. of Pub. Sch. Employees v. Civ. Service Comm. (1976), 45 Ohio St.2d 295, 345 N.E.2d 58. Nothing in the complaint indicates that appellants have been exempted from the classified service. Therefore it would appear that the appellants are entitled to the protections afforded classified civil servants.

One of those protections is the removal procedure set forth in R.C. 124.34. That section provides, in part, that:

"The tenure of every officer or employee in the classified service of the state * * * and city school districts thereof, holding a position under this chapter of the Revised Code, shall be during good behavior and efficient service * * *.

"In any case of * * * removal, the appointing authority shall furnish such employee with a copy of the order of * * * removal, which order shall state the reasons therefor. Such order shall be filed with the director of administrative services and state personnel board of review, or the commission, as may be appropriate.

"Within ten days following the filing of such order, the employee may file an appeal, in writing, with the state personnel board of review or the commission. * * * "

R.C. 124.34 enjoins the appointing authority, in this instance the board of education, to remove employees in the manner specified therein. The failure to comply with this duty, as alleged in the complaint, would, if proven by relators upon the merits, render the removal void and would entitle the appellants to a writ commanding reinstatement. See State ex rel. Brittain v. Bd. of Agriculture (1917), 95 Ohio St. 276, 287, 116 N.E. 459; State ex rel. Bay v. Witter (1924), 110 Ohio St. 216, 223, 143 N.E. 556.

Appellees, board of education and Eastlake Civil Service Commission, urge that the complaint was properly dismissed by the Court of Appeals because appellants failed to allege that they were appointed from an eligibility list following a competitive examination. In support of this proposition they cite State ex rel. Stein v. Dept. of Highways (1940), 136 Ohio St. 252, 25 N.E.2d 285; State ex rel. Lynch v. Taylor (1940), 136 Ohio St. 417, 26 N.E.2d 207; State ex rel. Baker v. Wichert (1953), 159 Ohio St. 50, 110 N.E.2d 771; and State ex rel. Stough v. Bd. of Edn. (1977), 50 Ohio St.2d 47, 362 N.E.2d 266.

In Stein, supra, the court denied the relator a writ of mandamus in that he failed to show that the statutory requirement that "(v)acancies in the labor class shall be filled by appointment from lists of applicants registered by the commission" had been fulfilled. In other words, there was not shown to be a compliance with the statutory registration requirement and, therefore, the relator could not claim the tenure secured to those persons in the classified service.

In Lynch, supra, the court stated that the statute controlling the provisional appointment of a person in the classified service provided that the nominee could be certified by the commission as being qualified only after a...