Aniello v. Marcello

• Decision Date: 24 June 1960
• Docket Number: No. 1334,1334
• Parties: Domenico ANIELLO v. Angelo A. MARCELLO, as Director of Public Works. M. P.
• Court: Rhode Island Supreme Court

Page 270

162 A.2d 270

91 R.I. 198

Domenico ANIELLO v. Angelo A. MARCELLO, as Director of Public Works.

M. P. No. 1334.

Supreme Court of Rhode Island.

June 24, 1960.

Hugo L. Ricci, Providence, for petitioner.

William F. Fidalgo, East Providence, for respondent.

ROBERTS, Justice.

This petition for a writ of mandamus seeks to compel the respondent in his capacity as director of the department of public works to reinstate the petitioner as an employee of that department in accordance with the pertinent provisions of General Laws 1956, § 36-4-42. The case is before us solely on a question of law.

The facts which are material to such determination as they appear in substance in the petition and record are as follows. The petitioner had been temporarily employed by the department of public works as a highway right-of-way agent in the division of roads and bridges from May 11, 1953 until he was dismissed therefrom 'For the good of the service' as of April 17, 1959. He thereupon appealed the action of respondent to the personnel appeal board, purporting to act under the provisions of G.L.1956, § 36-4-42. The appeal board held a hearing which began on May 6, 1959 and, after being recessed on several occasions, was concluded on August 6, 1959.

At an adjourned session held on May 15 respondent contended that a temporary employee was not entitled to be heard on an appeal under § 36-4-42. The personnel appeal board, apparently treating this contention as a motion to dismiss the appeal of petitioner for want of jurisdiction, continued the hearing pending its decision thereon. A subsequent session was held on July 23, 1959, at which time the appeal board filed an opinion in which the majority thereof held that it had jurisdiction to hear the appeal of one temporarily employed in the classified service, and denied the motion to dismiss the appeal.

The hearing was then continued to August 6 to permit respondent to present evidence, and at that time he declined to present evidence on the merits of the appeal. The hearing was then concluded. Thereafter, on that same day, the board found that petitioner here had been dismissed without reason and 'therefore orders him reinstated to his position as provided in Section 36-4-42 of the Merit System Law.'

On August 13, 1959 the appointing authority, respondent in the instant case, petitioned this court for a writ of certiorari, praying therein that the record of the decisions of the personnel appeal board both as to the motion for a dismissal of the appeal for want of jurisdiction and on the merits be quashed. The writ issued as prayed returnable on October 5, 1959. On December 5, 1959 the appeal board, as respondent in that action, through counsel moved that the petition for the writ of certiorari be dismissed for want of prosecution 'because the citation issued by this Honorable Court in said matter has never been delivered to the sheriff for service upon respondents.' On January 4, 1960 the motion to dismiss the petition for certiorari was granted, and on January 5, 1960 petitioner herein filed the instant petition for a writ of mandamus.

It is well settled that mandamus will issue to compel a public officer, board, or commission to perform a ministerial duty. McLyman ex rel. Hogan v. Holt, 51 R.I. 96, 151 A. 1; Newman v. Mayor of Newport, 73 R.I. 435, 57 A.2d 180. It is appropriately used to compel the restoration to public office or employment of an incumbent or employee who has been wrongfully removed therefrom. We so held in Chace v. City Council, 36 R.I. 331, 341, 89 A. 1066. See Izzi v. Warwick School Committee, 82 R.I. 76, 105 A.2d 818, and Conley v. McCarthy, 84 R.I. 141, 121 A.2d 875.

In this jurisdiction mandamus proceedings are governed by the rules of common law, both as to legal principles and procedure. The writ is prerogative in nature, and it is issued in the exercise of the discretion of the court having jurisdiction to act. McCoy v. Nolan ex rel. Providence Journal Co., 74 R.I. 464, 62 A.2d 330. Concerning the issuance of a writ of mandamus we stated in Sun Oil Co. v. Macauley, 72 R.I. 206, at page 210, 49 A.2d 917, 919: 'It is generally well established that a writ of mandamus will issue only where the petitioners have a clear legal right to have the act done which is sought by the writ; and where the respondents have a ministerial, legal duty to perform such act without discretion to refuse; and where the petitioners have no plain and adequate remedy at law. It is not generally used to establish such a right and it is usually denied where such an alleged right is either uncertain or doubtful.'

It does not appear that respondent disputes petitioner's allegation that he is without a remedy at law which would be adequate to accomplish his reinstatement in the employment from which he claims he was illegally removed by the order of respondent. Nor do we perceive that respondent contends that the restoration of petitioner to his prior position is not a ministerial act which he would be legally obliged to perform under the pertinent provisions of § 36-4-42 if the appeal board had made a valid decision in favor of petitioner on the appeal.

With respect to such duty, § 36-4-42 provides that appeals may be taken from actions of an appointing authority and for hearings on such appeals. That section further provides: 'Within five (5) days after conclusion of the hearing the personnel appeal board shall render a decision which shall be final and binding upon all parties concerned, and upon the finding of the personnel administrator, or upon appeal, in favor of the employee, said employee shall be forthwith returned to his office or position, without loss of compensation, seniority, or any other benefits which he may have enjoyed.'

It is our opinion that under these provisions of the act, upon the rendition of a decision by the appeal board in favor of an appealing employee, when said board was acting within the scope of the authority conferred upon it by the statute, it becomes the legal duty of the appointing authority to reinstate the employee in his prior position. In such circumstances the appointing authority is without discretion to refuse to so act.

We turn then to what we understand is respondent's objection to the issuance of the writ, which is that petitioner has not established that he has a clear legal right to be reinstated in his prior employment. In this he challenges the validity of the decision of the personnel appeal board in favor of petitioner on jurisdictional grounds. As we understand respondent's position, he contends, first, that the provisions of G.L.1956, § 36-3-10, confer no authority upon the personnel appeal board to hear and decide the appeal of a temporary employee from an action of an appointing authority affecting his employment status; and, second, that petitioner as a temporary employee was subject to summary dismissal from the state service and therefore was not a person entitled to appeal from an action of the appointing authority within the purview of G.L.1956, § 36-4-42. It is our further understanding that when the parties use the term 'temporary employee,' they have reference to an employee who has been appointed to a position temporarily by virtue of G.L.1956, § 36-4-31, and who has not acquired 'full status' in the merit system.

We direct attention first to respondent's contention that the appeal board was without jurisdiction to hear an appeal brought by a temporary employee. We find such contention to be without merit. The appellate jurisdiction of the appeal board is conferred by G.L.1956, § 36-3-10, which authorizes that board to hear, among others, appeals 'By any person in the classified service who has been discharged, demoted, suspended or laid off by any appointing authority.'

We do not perceive that respondent is contending that the position of right-of-way agent in the department of public works is not a position within the classified service. Rather, he clearly argues that petitioner is not an employee in the classfied service because he had not acquired full status as a permanent employee. We do not agree with this...