Appeal of Bidlack
| Decision Date | 25 February 1982 |
| Citation | 445 N.E.2d 722,3 Ohio App.3d 351,3 OBR 408 |
| Parties | , 3 O.B.R. 408 In re Appeal of BIDLACK. |
| Court | Ohio Court of Appeals |
Syllabus by the Court
1. The jurisdiction of an administrative agency is terminated at the end of the appeal period, or, when an appeal is filed, and "reconsideration" of an agency's decision within that period means the actual rendition of a new or reconsidered decision before the expiration of the appeal period.
2. Where a public employee is presented with a suspension and demotion by his supervisor, where there is no suggestion that he resign and the employee of his own free will and choice does, in fact, resign, said resignation is voluntary for purposes of R.C. 124.34.
Lucas, Prendergast, Albright, Gibson, Newman & Gee, James E. Melle and Scott D. Stubblebine, Columbus, for appellant.
William J. Brown, Atty. Gen., and Joseph E. Scuro, Jr., Asst. Atty. Gen., for appellee.
This matter is before us on the appeal of Thomas Bidlack from a judgment of the Court of Common Pleas of Franklin County affirming a purported order of the State Personnel Board of Review (board), which affirmed the suspension and demotion of Bidlack by the appellee, Ohio State Highway Patrol.
On March 29, 1977, Bidlack, who was an Ohio State Highway Patrol lieutenant, was presented with an order of demotion and suspension which suspended him for ten days and demoted him from the rank of lieutenant to the rank of sergeant. The order stated that Bidlack was guilty of violating rules of the Highway Patrol by not exercising proper command responsibility in the processing of several traffic crash reports and in supervising eleven investigations originated by members of his command; by not exercising proper command responsibility in the proper training of subordinate personnel in the care and use of issued shotguns; and by not insuring proper validation of Leads/NCIC computer information. On the same day, Bidlack tendered a written resignation and turned in his equipment. The following day, March 30, 1977, Bidlack submitted a letter rescinding the resignation. The letter purported to be from Bidlack's attorney but was apparently signed by Bidlack on behalf of the attorney. On April 1, 1977, Bidlack signed and submitted a second letter rescinding his resignation. On April 5, 1977, Bidlack submitted a letter requesting a voluntary demotion to patrol sergeant. On April 7, he submitted another letter in which he agreed to a demotion to the rank of patrol trooper. The record indicates he was "reinstated" as a trooper. On April 4, 1977, Bidlack's attorney filed with the board an appeal of the ten-day suspension and demotion.
The case was heard before a hearing officer who recommended that the order of the Highway Patrol be disaffirmed because there was no evidence that Bidlack's resignation was ever accepted by the patrol; there was evidence that Bidlack withdrew his resignation; Bidlack's suspension and demotion begun pursuant to R.C. 124.34 was never completed because it was not filed with the board; and Bidlack's alleged voluntary demotion following his alleged resignation was in fact a "reduction in position" accomplished without following the procedure set forth in R.C. 124.34. On April 17, 1978, the board accepted the hearing officer's recommendation and disaffirmed the suspension and demotion. Fifteen days later, on May 2, 1978, pursuant to the patrol's motion for reconsideration, the board issued an order vacating its previous order of April 17 and stating that the parties would be advised of the board's reconsidered decision. The board issued a reconsidered decision on May 22, 1978, which dismissed Bidlack's case for lack of jurisdiction. The board held that it had no jurisdiction over a case involving a voluntary resignation.
The trial court affirmed the reconsidered decision of the board. Appellant Bidlack asserts the following assignments of error:
The assignments of error restated are that the order of the State Personnel Board of Review is not supported by reliable, probative and substantial evidence and is not in accordance with law. The second subtopic, designated (B) in appellant's brief, will be considered first. Appellant argues that the board could not reconsider its original decision unless it actually rendered another decision to replace it within the fifteen-day period for appeal provided by R.C. 119.12. We agree. In State ex rel. Borsuk v. Cleveland (1972), 28 Ohio St.2d 224, 277 N.E.2d 419 , paragraph one of the syllabus, the Supreme Court held that "[a]n administrative board or agency * * * has jurisdiction to reconsider its decisions until the actual institution of a court appeal therefrom or until expiration of the time for appeal * * *." While the jurisdiction of a civil service commission in Borsuk was terminated by the filing of an appeal, the law of the case does apply to the facts of this case.
In the earlier case of State ex rel. Prayner v. Indus. Comm. (1965), 2 Ohio St.2d 120, 121, 206 N.E.2d 911 , the Supreme Court stated that "[t]he Industrial Commission has control over its orders until the actual institution of an appeal therefrom or until the expiration of the time for such an appeal." See, also, Diltz v. Crouch (1962), 173 Ohio St. 367, 182 N.E.2d 315 .
In the case before us, the jurisdiction of the board continued throughout the fifteen-day appeal period, and was terminated at the end of the fifteenth day following its order. The board issued an order disaffirming appellant's suspension and demotion on April 17, 1978. No appeal was filed during that time but the Highway Patrol filed a motion for reconsideration. The board's order of May 2, 1978 vacating its April 17 order was issued within fifteen days of the board's April 17 order. However, the reconsidered decision of the board was not issued until May 22, 1978, well outside the fifteen-day statutory limit for filing an appeal. The board, therefore, had no authority to issue its reconsidered order. Because the board vacated, within rule, its April 17 order, there exists no valid order of the board disposing of the issue that was before it. Any other ...
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