Hardin v. Johnson

• Decision Date: 27 July 1971
• Citation: 281 N.E.2d 194,30 Ohio App.2d 19
• Parties: , 59 O.O.2d 11 HARDIN v. JOHNSON et al., Public Utilities Commission of Ohio, et al.
• Court: Ohio Court of Appeals

Page 19

30 Ohio App.2d 19

281 N.E.2d 194, 59 O.O.2d 11

HARDIN v. JOHNSON et al., Public Utilities Commission of Ohio, et al.

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

July 27, 1971.

Syllabus by the Court.

1. Where a state employee, improperly dismissed, is by court order restored to her former position, she is entitled to be compensated for wages lost by reason of the improper dismissal, less deduction for the amount earned in other employment during the dismissal period, and to be credited with her previously accumulated sick leave.

2. In such case, where the amount due for lost wages and the previously accumulated sick leave are calculable, there is a clear legal duty to pay the amount due and to record the appropriate sick-leave credit, which is enforceable by mandamus.

Lucas, Prendergast, Albright, Gibson, Brown & Newman and John A. Brown, Columbus, for relatrix.

William J. Brown, Atty. Gen., and F. Richard Heath, Columbus, for respondents.

TROOP, Presiding Judge.

This is an original action in mandamus in which the relatrix seeks a writ directing the respondents to compensate her for the period of time she was illegally deprived of her employment with the state of Ohio, to reinstate her accumulated sick leave, and to credit her for the weeks of annual vacation to which she is entitled.

The facts of the case necessary to a consideration of the prayer of the petition are derived from allegations contained in the pleadings, petition and answer, a stipulation and affidavit filed June 29, 1971, and a supplemental stipulation filed July 9, 1971.

Relatrix, Marjorie J. Hardin, began work for the Public Utilities Commission on September 1, 1948, and worked until November 22, 1966, having been notified that her services were terminated. At the time of dismissal her position was Engineering Aide III. The dismissal was appealed and reached this Court of Appeals, which found the decision of the State Personnel Board of Review, dismissing her appeal, to be in error. The case was remanded and the board ordered the relatrix to be reinstated, which was done on June 1, 1969. Relatrix now seeks wages she would have earned had she not been dismissed, less what she did in fact earn during the interim of her employment with the Public Utilities Commission, and sick and vacation allowances.

Marjorie Hardin would have earned, from November 22, 1966, through May 31, 1969, the sum of $16,307.12 (stipulated). In the interval, she earned from F & R Lazarus Company, $8,007.03, and from Helena Rubenstein Cosmetic Company, $446.54, a total of $8,453.57. The net wages lost are $7,853.55.

This action is, at least, unusual in that relatrix resorts to an extraordinary proceeding in mandamus to recover lost wages and to secure certain credits, none of which may be accomplished unless there is a clear legal duty imposed upon the Public Utilities Commission by law to do those things which the relatrix hopes to have this court require of that body. The matter of the use of a writ of mandamus to recover wages is noted first, since it seems to present the most problems.

Case law is voluminous in Ohio. Perhaps not more so than another state since it is expected that state governments are all confronted with that age-long battle between the spoils system and established civil service tenures. The conflict appears on the state level as well as in the local subdivisions, in all of which discharged and suspended employees seek to be reinstated in their jobs and recover lost wages.

Some rather early cases deserve to be noted. They encourage the use of mandamus to secure reinstatement, which idea persists, and some even permit the use of the action to recover wages. In reinstatement, mandamus is generally accepted as proper, assuming irregularity in removal. In one case, State ex rel. Desprez v. Board of County Commrs. of Hancock County (1933), 47 Ohio App. 1, 189 N.E. 665, the court held that an 'employee was not required to appeal to civil service commission before applying for mandamus for reinstatement.' An early case, Toledo v. Osborn (1926), 23 Ohio App. 62, 155 N.E. 250, decided by the Sixth District Court of Appeals, allowed the recovery of wages lost by the mandamus route. It is of special interest because the court held as follows:

'5. Payment of salary of employee in classified service, which is fixed and determined, may be compelled by mandamus to compel issuance of warrant.'

Further, the trial court allowed a recovery based on evidence showing the amount lost in wages from which the amount earned in other employment was deducted in mitigation.

A bit of theory appears at page 67, 155 N.E. at page 252, as follows:

'* * * as the act of discharge was contrary to the provisions of that section (G.C. 486-17a), and therefore a nullity, it follows that the plaintiff was as much assistant operator for the high-pressure pumping station after the attempt to discharge was made as before, and no cause of action for damages against the city of Toledo could arise out of the void act of its commissioner of water in dismissing the plaintiff.'

And then the court adds:

'The wrongful act committed was in keeping him out of his position and depriving him of the emoluments thereof, for which the remedy was one by way of mandamus.'

Another case recognized the use of the writ when wages were fixed and determined. In Newcomerstown v. State ex rel. Blatt (1930), 36 Ohio App. 434, 173 N.E. 309, the court said:

'Where village marshal's salary was illegally reduced, mandamus to compel issuance of warrant for payment of salary fixed and determined was proper remedy.'

In State ex rel. Kook v. Civil Service Comm. of Wooster (1934), 26 Ohio Law Abst. 36, the court followed the same route, holding that a municipal civil service commission 'may be compelled by mandamus to certify pay vouchers for a patrolman to the auditor for payment.'

Two decisions by the Supreme Court interrupted the trend permitting mandamus to be used to secure a restoration of job status and a recovery of wages. Those most significant decisions are in Williams v. State ex rel. Gribben (1933), 127 Ohio St. 398, 188 N.E. 654, and State ex rel. White v. Cleveland (1936), 132 Ohio St. 111, 5 N.E.2d 331. Both decisions held that mandamus will not lie when payment of lost wages is sought. In Williams, the court held that 'Mandamus will not lie to enforce the payment of a claim unliquidated and indefinite in amount.' White followed the same rule.

Both decisions noted an earlier decision in Cleveland v. Luttner (1915), 92 Ohio St. 493, 111 N.E. 280, in which the Supreme Court held that police officers could recover their salaries less amounts they otherwise earned. In Williams, the court said of Luttner, 127 Ohio St. page 401, 188 N.E. page 656, '* * * we now hold that such question can be considered only in an action at law.'

It must be emphasized that Luttner, Williams, and White, deal with civil service employees of municipalities. Cities are subject to actions at law for the recovery of money, sounding in contract and otherwise, which fact distinguishes these situations from those in which an improperly removed employee of the state who attempted to recover in an action at law would likely be confronted with the sovereign immunity doctrine, which may explain decisions by this Court of Appeals, then the Second District, in two cases. The first one, State ex rel. Fitzgerald v. Leasure (1939), 30 Ohio Law Abst. 252, came shortly after Williams. The court relied upon and followed Williams in a suit instituted by a deposed branch manager in the Ohio State Employment Service. The Court said the amount claimed as wages was unliquidated and indefinite.

A year later, State ex rel. Greenlun v. Beightler (1940), 64 Ohio App. 295, 28 N.E.2d 935, was decided. Again, a state employee was involved. The court was well aware of the decision of the Supreme Court in Williams, since it had been reversed. Two comments of the court are worthy of attention. The suffering employee urged that there was no remedy at law for improperly discharged state civil service employees. A comment of the court in response to that argument (page 299, 28 N.E.2d page 936) reads as follows:

'* * * While this argument is persuasive, we are constrained to the view that if any correction of the pronouncement is required that it should be made by the Supreme Court and not by ours.'

And then, at page 300, 28 N.E.2d at page 937, the court concludes:

'With some reluctance we are impelled to the conclusion that the judgment of the trial court must be reversed, so far as it directs payment of back salary.'

Many cases followed the decision in Williams and White, a substantial number of which were concerned with the employees of cities. Examples of this group are State ex rel. Curtis v. DeCorps (1938), 134 Ohio St. 295, 16 N.E.2d 459; State ex rel. Giovanello v. Lowellville (1942), 139 Ohio St. 219, 39 N.E.2d 527; State ex rel. Lyons v. Ness (1942), 139 Ohio St. 309, 39 N.E.2d 849; and State ex rel. Welsh v. Hoffman (1941), 68 Ohio App. 171, 40 N.E.2d 204. Counties were involved in State ex rel. Cox v. Hooper (1940), 137 Ohio St. 222, 28 N.E.2d 598, and State ex rel. Barborak v. Hunston (1962), 173 Ohio St. 295, 181 N.E.2d 894. In Cox, the court said, as it had in city cases, that 'if litigation be unavoidable, a simple action at law will suffice.'

A school board case, in which teacher tenure was the concern, produced a Court of Appeals decision ordering a writ to reinstate teachers. The court, in State ex rel. Kohr v. Hooker (1958), 106 Ohio App. 1, 152 N.E.2d 788, named the salary at which the teachers were to be reinstated, but also held that 'No alternative writ as to payment of salary will be granted.'

State employee cases would seem to present a different problem than that presented by local government units, although, one state employee case, State ex rel. Conway v. Taylor (1939), 136...