Noernberg v. City of Brook Park

• Decision Date: 02 July 1980
• Docket Number: No. 79-1427,79-1427
• Citation: 63 Ohio St.2d 26,406 N.E.2d 1095,17 O.O.3d 16
• Parties: , 17 O.O.3d 16 NOERNBERG, Appellee, v. CITY OF BROOK PARK et al., Appellants.
• Court: Ohio Supreme Court

Page 26

63 Ohio St.2d 26

406 N.E.2d 1095, 17 O.O.3d 16

NOERNBERG, Appellee, v. CITY OF BROOK PARK et al., Appellants.

No. 79-1427.

Supreme Court of Ohio.

July 2, 1980.

Syllabus by the Court

A Court of Common Pleas has no jurisdiction over the indefinite suspension of a city civil service employee when the employee fails to file an available administrative appeal, even though the legal basis for the suspension is subsequently nullified.

Appellee, Jay Noernberg, was a firefighter with the city of Brook Park in March of 1975. Employees of Brook Park were required, under Section 10.02(e) of the city charter, to reside in the city unless they received permission to move outside the city due to hardship as determined by the city Civil Service Commission. On March 31, 1975, appellee requested permission to move outside the city, which permission was denied by the commission on April 9, 1975. Thereafter, the commission conducted a hearing on the matter on April 15, 1975, and affirmed its initial denial of appellee's request. Appellee's request was apparently based on a need for greater living space due to a belief that additional persons would soon be residing with appellee, and appellee's inability to acquire appropriate housing within Brook Park.

On April 25, 1975, appellee appealed the decision of the commission to the Court of Common Pleas pursuant to R.C. Chapter 2506. While this appeal was pending, appellee notified the fire chief that as of April 3, 1976, his residence would be located in Olmsted Falls. As a result, Chief Conrad suspended appellee from his job "until further notice," on April 26, 1976. The city Safety Director concurred with the suspension order, and appellee's suspension notice informed him of his right of appeal to the Civil Service Commission. Appellee did not appeal the suspension order, pursuant to Rule IX of the "Rules and Regulations for City Civil Service Commission."

The Court of Common Pleas began its hearing on appellee's appeal of the hardship decision by the Civil Service Commission on June 1, 1976, and took new evidence pursuant to R.C. 2506.03. On June 15, 1976, the court found that a hardship did in fact exist, reversed the determination of the commission, and ordered that appellee be reinstated with back pay during the period of his suspension.

Upon appeal by the city, the Court of Appeals, on February 9, 1978, affirmed the decision of the Court of Common Pleas with regard to the hardship finding, but reversed the trial court's reinstatement of appellee with back pay. The Court of Appeals stated:

"In ordering appellee's reinstatement with back pay the court erred since it did not have jurisdiction to adjudicate the merits of the suspension order. As indicated in this record, apparently only an appeal from the commission's decision of April 15, 1975 had been perfected. The court therefore acquired jurisdiction only of the merits of the April 15, 1975 decision. Cf. In re Locke, supra ((1972), 33 Ohio App.2d 177, 294 N.E.2d 230).

"Because the court was without jurisdiction to order the reinstatement with back pay of appellee, its order must be vacated by this Court of Appeals."

Subsequently, the trial court again ordered appellee to be reinstated, this time with back pay only from the time of the court's finding of hardship. Again, the case was appealed to the Court of Appeals, but on this occasion was affirmed on August 30, 1979, wherein the appellate court stated:

" * * * In the instant case, the decision to suspend Mr. Noernberg was based on the commission's earlier decision that Mr. Noernberg had not shown 'sufficient hardship' to allow him to move from the city when he did. When the Court of Common Pleas reversed the commission's findings as to Mr. Noernberg's hardship status, the commission's findings could have no further effect. Following this rationale to its logical conclusion, the suspension of Mr. Noernberg for moving from the city became a nullity in law when the Court of Common Pleas determined that he had established sufficient hardship permitting him to move. The effect of the Court of Appeals' reversal of the trial court's findings that Mr. Noernberg was to be reinstated with back pay, is that he is not entitled to back pay from April 26, 1976, to June 16, 1976 (sic), the date of the trial court's decision.

"The distinction made by appellant with respect to the two administrative actions fails to consider that each action emanated from one issue: Could Mr. Noernberg move from the city on the basis of 'hardship'? In focusing only on what appellant terms the 'second' action, the prior disposition of the 'first' action, in which the trial court held, and was affirmed, that Mr. Noernberg had a right to move, is wholly ignored. As such, the distinction proposed by the appellant has the effect of exalting form over substance."

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Ticktin, Baron, Kabb & Co., L. P. A., and Russell Z....