Appeal of Gardner, 87AP-374

• Decision Date: 01 October 1987
• Docket Number: No. 87AP-374,87AP-374
• Citation: 531 N.E.2d 741,40 Ohio App.3d 99
• Parties: , 50 Ed. Law Rep. 887 In re Appeal of GARDNER.
• Court: Ohio Court of Appeals

Page 99

40 Ohio App.3d 99

531 N.E.2d 741, 50 Ed. Law Rep. 887

In re Appeal of GARDNER.

No. 87AP-374.

Court of Appeals of Ohio, Tenth District, Franklin County.

Oct. 1, 1987.

Syllabus by the Court

The provision of R.C. 124.34 requiring a hearing within thirty days of an employee's timely appeal of an order of reduction, suspension or removal is mandatory, not merely directory. However, the failure of the State Personnel Board of Review or the civil service commission to hold a hearing within such time, although error, does not deprive the board or commission of jurisdiction to proceed to hold the hearing.

Robert G. Byrom, Niles, for appellant.

Lawrence H. Braun, Columbus, for appellees.

BOWMAN, Judge.

In April 1986, appellant, Patricia Gardner, was discharged from her position as a bus driver with appellee, the Columbus City School District, following an accident involving a school bus, driven by appellant, and another vehicle. Appellant timely filed a notice of appeal to the Columbus Civil Service Commission on April 21, 1986, and a hearing was set for October 27, 1986. The hearing was continued at the request of appellant to December 15, 1986. On December 23, 1986, the Columbus Civil Service Commission issued its written decision, disaffirming the action of the appellee and ordering appellant reinstated to her position with back pay from April 7, 1986, through October 27, 1986.

Appellee appealed the decision of the Columbus Civil Service Commission to the court of common pleas, which found that the commission lacked jurisdiction to hear the appeal as it failed to hold a hearing within the required period of time. The court further found that the commission's decision was not supported by reliable, probative and substantial evidence and was not in accordance with law.

Appellant sets forth the following assignments of error:

"1. The Common Pleas Court erred in ruling, as a matter of law, that the Columbus Civil Service Commission lost the requisite jurisdiction to hear Gardner's disciplinary appeal because it failed to hold the statutory hearing within the expected thirty (30) days from the date of appeal.

"2. The Common Pleas Court erred in finding that the order of the Columbus Civil Service Commission was not supported by a preponderance of reliable, probative and substantial evidence, and thereupon disaffirming the Commission's modification of Garnder's termination, and then ordering the termination order of the appointing authority reinstated on the same evidence, improperly substituting its own judgment for that of the trier of fact."

R.C. 124.34 provides in pertinent part:

"In any case of reduction, suspension of more than three working days, or removal, the appointing authority shall furnish such employee with a copy of the order of reduction, suspension, or 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. In the event such an appeal is filed, the board or 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 board or commission, and it may affirm, disaffirm, or modify the judgment of the appointing authority. * * * "

A reading of the above provisions clearly indicates that the time limitation for holding a hearing is not merely directory but, rather, is mandatory as the statute provides the commission shall hear or appoint a trial board to hear an appeal within thirty days. However, this court has held that such time requirement provisions, although mandatory, are not necessarily jurisdictional.

In State, ex rel. Pontiac Motor Div. of General Motors Corp., v. Motor Vehicle Dealers Bd. (Nov. 29, 1984), Franklin App. No. 84AP-550, unreported, this court, in examining a similar time provision in R.C. 119.07, stated:

" * * * The statute was mandatory in the sense that it established the procedure to be followed in the exercise of jurisdiction, but it was not jurisdictional in the sense that following the notice and hearing requirements of the statute were prerequisites to the exercise of such jurisdiction. The only prerequisite was the institution of an appeal by filing a request for an adjudication hearing.

" * * *

" * * * The fact that a hearing on the merits has not been conducted within the specified time period as alleged does not deprive the board of power to hear the matter even though it may constitute error. Once jurisdiction has properly been attached, by way of the filing of a proper protest, the right to hear and determine the matter is protected and any decision thereafter is but the exercise of that jurisdiction. * * * " Id. at 4.

In State, ex rel. Vernon Place Extended Care Ctr., Inc., v. State Certificate of Need Review Bd. (Aug. 11, 1983), Franklin App. No. 82AP-1044, unreported this court stated:

"Commonly, jurisdiction is divided into two parts: jurisdiction of the subject matter and jurisdiction of the person. Jurisdiction of the subject matter is defined generally as power of the tribunal to hear and determine a case because it is one of the class of cases over which the tribunal has power to exercise jurisdiction. Jurisdiction of the person depends upon whether the subject-matter jurisdiction of the tribunal has been invoked in such a manner as to give the tribunal power to adjudicate the rights of the parties involved. Some jurisdictional questions, however, transcend these definitions and are somewhat difficult to classify in either. This deals with the power of the court to proceed to hear a particular matter. Thus, as here, the court may have true subject-matter jurisdiction and may have jurisdiction of the persons involved but may not have jurisdiction to proceed to hear the case because of some procedural defect, which may include timely application to the court to exercise its subject-matter jurisdiction. Relator contends that the alleged defect in this case is of this type of procedural nature.

"Ordinarily, however, matters are jurisdictional in the sense that...