State ex rel. Baran v. Fuerst

• Decision Date: 05 December 1990
• Docket Number: No. 89-1176,89-1176
• Citation: 55 Ohio St.3d 94,563 N.E.2d 713
• Parties: The STATE, ex rel. BARAN, Appellant, v. FUERST, Clerk of Common Pleas Court, Cuyahoga County, Appellee.
• Court: Ohio Supreme Court

Page 94

55 Ohio St.3d 94

563 N.E.2d 713

The STATE, ex rel. BARAN, Appellant, v. FUERST, Clerk of Common Pleas Court, Cuyahoga County, Appellee.

No. 89-1176.

Supreme Court of Ohio.

Submitted Aug. 29, 1990.

Decided Dec. 5, 1990.

In January 1986, relator-appellant, William E. Baran, began working for respondent-appellee, Gerald E. Fuerst, Clerk of Common Pleas Court, Cuyahoga County. Baran maintained records for the court and accepted filing fees.

In December 1987, Baran was indicted for violating R.C. 2925.11 (drug abuse). Following Baran's indictment, the clerk filed an order with the State Personnel Board of Review stating that effective December 23, 1987 Baran was indefinitely suspended pending favorable outcome of trial. The clerk maintained that Baran was incompetent to continue performing duties for the court because of the nature and severity of the indictment, coupled with his job responsibilities. According to Baran, he timely appealed this order.

In January 1988, Baran was indicted for violating R.C. 2925.03 (trafficking in drugs). In March 1988, the board issued a procedural order continuing Baran's appeal. The order indicates that the clerk requested the continuance to reevaluate Baran's discipline in light of the second indictment, and to perhaps supplement the original order. In commenting on the matter of supplementation, the administrative law judge cautioned that if material were added to the original order, then the clerk " * * * must rescind the indefinite suspension, pay the employee for his time off, restore him to his employment, and thereafter prepare, furnish, and file such discipline as the employer deems appropriate."

Subsequently, the clerk filed an order with the board stating that effective April 4, 1988, Baran was removed from his position as posting clerk because he was guilty of incompetency, failure of good behavior, immoral conduct and criminal conduct. The clerk alleged that Baran obtained, possessed, or used cocaine on October 12, 1987; sold, or offered to sell, cocaine on September 22, October 7 and 14, 1987; sold, or offered to sell, LSD on November 5, 1987; and sold, or offered to sell, Psilocybin on November 17, 1987. The clerk asserted that Baran was incompetent to continue performing duties for the court because of the nature, severity and pattern of this behavior, coupled with his job responsibilities. According to Baran, he timely appealed this order.

After filing the removal order, the clerk submitted a motion " * * * to withdraw the designation of Suspension from the originally-filed Order." The board adopted the withdrawal stating that "[b]eing fully advised in the premises, the Board hereby orders that the attached brief and motion concerning this withdrawal, incorporated herein by reference and made a part of the case file in this appeal, be ADOPTED." The only brief attached to the board's order is that of Baran, in which he specifically requested that any withdrawal be conditioned upon his restoration, with back pay, for the period of suspension.

In November 1988, Baran entered a plea of guilty to the November 5, 1987 drug trafficking charge. The remaining counts were nolled. He was sentenced to three years' incarceration.

In January 1989, the administrative law judge recommended that the removal order be affirmed. He found that Baran's conduct constituted grounds for removal under R.C. 124.34, and that Baran's employment with the clerk lasted until he was removed on April 4, 1988. The board adopted the administrative law judge's recommendation.

When Baran was not restored and given back pay, he filed a complaint in mandamus with the Eighth District Court of Appeals. He requested that a writ issue compelling the clerk to restore him to his former or equivalent position for the period of suspension, being December 23, 1987 through April 4, 1988, award him all back pay plus interest for this period, pay or credit him with other related employment benefits for this period, and award him costs and reasonable attorney fees. He alleged, inter alia, that he was in the classified service, that under Ohio law he was entitled to employment and back pay for the period of suspension, that the clerk contravened the board's order and Ohio law, and that he had no plain and adequate remedy in the ordinary course of the law.

The clerk moved to dismiss the complaint arguing that Baran had no clear legal right to his employment and that the clerk had no clear legal duty to perform the requested act. The clerk maintained that R.C. 124.34 conditioned Baran's civil service tenure upon his good behavior, that trafficking in drugs did not comport with this requirement, and that the suspension order, even if technically defective, was cured by the motion to withdraw and the order of removal. The clerk also argued that because Baran's conviction related to a drug trafficking incident on November 5, 1987, and because conviction dated back to the date of the offense, Baran was incompetent to hold public office thereafter. In addition, the clerk asserted that the board had not ordered Baran's reinstatement for the period of suspension.

Baran responded that the motion to dismiss should be denied because the complaint stated a claim upon which relief could be granted. He maintained that the board had ordered his reinstatement and had awarded him back pay, that he could not be disciplined based on an indictment, that the Ohio Administrative Code does not provide for an indefinite suspension, that the order of removal did not cure the illegal suspension order, and that the order of removal violated Ohio Adm.Code 124-3-03(B), because it changed the basis for disciplinary action and added new material. Baran also filed a motion to strike certain matters and evidence that were presented in the motion to dismiss as being outside the pleadings.

The appellate court granted the clerk's motion to dismiss, stating, in part, that "[r]elator does not dispute the accuracy of respondent's assertion that relator pled guilty to a crime which occurred on November 5, 1987, prior to the date of the suspension order. As a consequence, relator does not have a clear legal right to the relief which he requests."

Baran's motion to strike, motion for an extension of time, and application for reconsideration were denied.

The matter is now before this court on an appeal as of right.

Paul Mancino, Jr. and Edward Galaska, for appellant.

John T. Corrigan, Pros. Atty., and Michael P. Butler, for appellee.

PER CURIAM.

Baran contends that the court of appeals erred in dismissing his complaint. For the reasons that follow, we agree.

Baran first argues that the judgment entered below is invalid because only two judges disposed of the motion to dismiss. He maintains that pursuant to R.C. 2501.012(A), three judges must decide a case. In part, this statute provides that "[i]n the eighth district, any three judges shall comprise the court of appeals in the hearing and disposition of cases * * *." See, also, Section 3(A), Article IV of the Ohio Constitution, which provides, in part, that " * * * [i]n districts having additional judges, three judges shall participate in the hearing and disposition of each case." To support his assertion that three judges did not participate, Baran relies on the fact that the entry dismissing his complaint reflects the names of only two judges.

We find that Baran has failed to present sufficient evidence to support his assertion that only two judges participated in the case below. All that he offers by way of proof is the journal entry and...