Harvey v. Brumback
| Decision Date | 30 November 1960 |
| Citation | 177 N.E.2d 70,113 Ohio App. 45 |
| Parties | , 17 O.O.2d 45 HARVEY, Appellant, v. BRUMBACK, Mayor, et al., Appellees. |
| Court | Ohio Court of Appeals |
Syllabus by the Court
1. Each village functioning as a municipal corporation under the general laws of the state shall have 'appointed by the mayor with the advice and consent of the legislative authority of the village' a marshal officially designated as chief of police. Section 737.15, Revised Code.
2. The appointment of a chief of police, under authority of Section 737.15, Revised Code, must be for a probationary period of six months' continuous service, and unless final appointment is made at the end of the probationary period, through the medium of a recommendation of the mayor, and 'with the concurrence of the legislative authority,' the probationary appointment terminates. Section 737.17, Revised code.
3. The mayor of a village is empowered to discharge a probationary chief of police at the end of the probationary period if a final appointment has not been made under authority of Section 737.17, Revised Code.
4. Sections 733.35 to 733.39, inclusive, of the Revised Code, providing for the removal of a chief of police of a village, do not apply to the removal of a probationary chief of police who has not received a final appointment.
Joseph C. Zieba, Lorain, for appellant.
Moses Krislov, Cleveland, for appellee Harold Brumback, Mayor.
R. J. Martinek, Amherst, for appellee village of Vermilion-on-the-Lake.
This is an action for a declaratory judgment, commenced in the Court of Common Pleas of Lorain County by Robert Harvey, in which he seeks 'a * * * declaration affirming his status as chief of police of the village of Vermilion-on-the-Lake, Ohio.'
The facts are stipulated substantially as follows:
1. The defendant village of Vermilion-on-the-Lake, Ohio, is a municipal corporation, without charter, and operates under the general laws of Ohio.
2. The defendant Harold Brumback is the mayor of the co-defendant village.
3. On September 2, 1958, the mayor, with the advice and consent of the village council, made a probationary appointment of the plaintiff, Robert Harvey, to the office of chief of police of the village.
4. On April 6, 1959, which date was shortly after the end of the probationary period of the police chief, the village council requested the mayor to transmit to it a record of the police chief's service, with his recommendations thereon for final appointment. The mayor in reply thereto instructed the council that the chief had performed his services in a satisfactory way, but would withhold his recommendation until the next council meeting.
5. On May 4, 1959, the mayor, 'without transmitting to the legislative authority of the village a record of * * * [the chief's] service, without making a recommendation to the legislative authority, and refusing to give any reason therefor, announced verbally that he was dismissing the plaintiff, Robert Harvey, as chief of police of the village and [was] appointing a new action chief of police.'
6. Council requested of the mayor an explanation of his conduct 'and sought by motion to bring the matter to a legislative vote.' The mayor refused to give any reason to the council for his dismissal of the chief of police, and refused to permit a motion to be made.
7. The council members thereupon individually rejected the action of the mayor.
8. The dismissed chief of police attempted to perform his police duties after his dismissal, but was prevented from doing so by the mayor.
9. On September 14, 1959, the council, by resolution, reaffirmed its stand against the action of the mayor in dismissing the police chief, and 'reaffirmed the plaintiff as chief of police of said village.'
The plaintiff in his pleading charges that the mayor's actions 'have been arbitrary, capricious, and an abuse of statutory authority, without due process of law and in violation thereof.' He then requests a ruling 'that the action of defendant Mayor Brumback in discharging the plaintiff as chief of police * * * is improper.' He then prays 'for a judicial determination and declaration affirming his status as chief of police * * *, and an adjudication preventing the mayor * * * from interfering with plaintiff's performance of his duties, and for recovery of plaintiff's costs * * * and such further * * * relief as the court can grant.'
Upon the issues made by the pleadings of the defendants and the plaintiff's amended petition, and, pursuant to trial, the Court of Common Pleas entered a judgment that the plaintiff's term of office 'as chief of police under probationary appointment was terminated' on May 4, 1959, and a judgment 'in favor of the defendants herein, and against the plaintiff, Robert Harvey' for the costs.
From this judgment an appeal on questions of law and fact has brought the case to this court.
This facts heretofore stated, as stipulated and contained in a transcript of the record, are before this court, and in addition thereto we have admitted in evidence an ordinance passed by the village council on September 12, 1960, which ordinance 'ratifies and concurs in the decision of mayor Harold Brumback in dismissing Robert Harvey as police chief of said village as of May 4, 1959, after serving his probationary period.'
The ordinance further provides that 'said Robert Harvey is entitled to compensation up to and including May 4, 1959.'
From the facts heretofore stated, it is observed that this court has before it the same evidence as did the Common Pleas Court, except only that, since the trial and judgment in the lower court, the village council did change its attitude in respect to the chief of police by enacting, on September 12, 1960, the ordinance mentioned above, ratifying and affirming the dismissal of the officer.
In the trial in this court, the following stipulation, agreed upon by counsel for all parties, was presented:
'It is stipulated by...
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Golem v. Village of Put-in-Bay
...a probationary term but is not finally appointed has no reasonable expectation of continued employment.") (citing Harvey v. Brumback, 113 Ohio App. 45, 177 N.E.2d 70 (1960)). Plaintiff's property interest stemmed, however, from the Manual, to which both parties agreed. See Ludwig v. Board o......
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Bedinghaus v. Village of Moscow
...same result would no doubt be reached here. The Lorain County Court of Appeals reached a contrary holding in Harvey v. Brumback (1960), 113 Ohio App. 45, 17 O.O.2d 45, 177 N.E.2d 70. The court there held that the police chief, neither finally appointed nor removed by the mayor and council p......
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Matulin v. Village of Lodi
...a probationary term but is not finally appointed has no reasonable expectation of continued employment. See Harvey v. Brumback, 113 Ohio App. 45, 177 N.E.2d 70 (1960). One who has not completed this period surely cannot have greater Most importantly, no Ohio state courts have interpreted se......
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Dillingham v. Woodlawn, C-910638
...the employee" means that the mayor lacks the authority to do either without the support of council. In Harvey v. Brumback (1960), 113 Ohio App. 45, 17 O.O.2d 45, 177 N.E.2d 70, the court, interpreting R.C. 737.17, held that a probationary employee's six-month probationary period expires aut......