State ex rel. Borsuk v. City of Cleveland, 71-168

• Decision Date: 05 January 1972
• Docket Number: No. 71-168,71-168
• Citation: 28 Ohio St.2d 224,277 N.E.2d 419
• Parties: , 57 O.O.2d 464 The STATE ex rel. BORSUK, Appellee, v. CITY OF CLEVELAND et al., Appellants.
• Court: Ohio Supreme Court

Page 224

28 Ohio St.2d 224

277 N.E.2d 419, 57 O.O.2d 464

The STATE ex rel. BORSUK, Appellee, v. CITY OF CLEVELAND et al., Appellants.

No. 71-168.

Supreme Court of Ohio.

Jan. 5, 1972.

Syllabus by the Court

1. An administrative board or agency, including a municipal civil service commission, has jurisdiction to reconsider its decisions until the actual institution of a court appeal thereform or until expiration of the time for appeal, in the absence of specific statutory limitation to the contrary.

2. Where the employment of a police officer in the classified service of a municipality is terminated, and, upon a hearing requested by the employee before the Civil Service Commission, the commission disaffirms such termination and that order becomes final upon the exhaustion of the remedy of appeal, a writ of mandamus will issue to compel reinstatement of the employee by the municipality.

Robert J. Borsuk, appellee Herein, passed an examination for the position of patrolman in the Division of Police, Department of Public Safety of the city of Cleveland. Upon certification of his name to the appointing authority, he was advised on September 15, 1965, of his appointment as a patrolman, effective September 16, 1965. He was administered the appropriate oath of office on September 15, 1965.

On September 15, 1966, relator was advised in writing by the Director of Public Safety, a respondent-appellant herein, that his employment was terminated. Simultaneously therewith, the director forwarded a letter to the Civil Service Commission advising it that relator's employment had been terminated, as of September 15, 1966, because of unsatisfactory service during his probationary period. On September 19, 1966, relator was advised by the Civil Service Commission that the termination of his employment was approved by the commission.

On September 29, 1966, relator requested a hearing before the Civil Service Commission on the termination of his employment. At the same time, relator filed a notice of appeal to the Court of Common Pleas of Cuyahoga County, the appeal being subsequently dismissed by relator. Upon a hearing before the commission on October 3, 1966, the commission determined that relator had served one day more than the one-year probationary period and rescinded its former order of approval of the termination, substituting therefor an order disapproving the termination of relator's employment.

On October 7, 1966, the Director of Public Safety requested a rehearing by the Civil Service Commission. On October 11, 1966, the Director of Public Safety filed a notice of appeal to the Court of Common Pleas of Cuyahoga County from the October 3, 1966, decision of the commission. On October 17, 1966, the commission refused a rehearing on the ground that it lacked jurisdiction because of the appeal to court by the Director of Public Safety and the earlier appeal or relator.

At the hearing before the Common Pleas Court on the appeal of the Director, the parties agreed to submit an initial issue of whether the court had jurisdiction to entertain an appeal by an appointing authority. The court, on April 15, 1969, entered a judgment that the court was without jurisdiction, ordered the appeal dismissed, and further ordered that relator be reinstated to his former position. The judgment was affirmed on May 11, 1970, by the Court of Appeals and a motion to certify the record was overruled by this court on September 24, 1970.

Section 131, Chapter 27 of the Charter of the city of Cleveland, provides, in part, that at the end of the probationary period, the appointing officer shall transmit to the commission a record of the employee's service certifying that such service has been satisfactory or unsatisfactory, and if such service is unsatisfactory the employee may, with the approval of the commission, be removed.

Section 121, Chapter 25 of the Charter of the city of Cleveland, provides for an appeal to the Civil Service Commission by any person in the classified service who has been dismissed. The commission is authorized to 'affirm, disaffirm or modify' the judgment of the director of the department involved and it is provided further that the 'judgment of the commission in the matter shall be final.'

On November 2, 1970, Borsuk filed this mandamus action in the Court of Appeals, alleging that respondents, city of Cleveland, the Mayor and the Director of Public Safety, although requested, had refused to reinstate him to his position. Relator sought an order requiring respondents to reinstate him to his position of patrolman in the Cleveland Police Department and for his wages due him as an emolument of his office. The court entered judgment granting the relief sought. Respondents appeal as a matter of right to this court.

Barragate & Barragate and Phillip C. Barragate, Cleveland, for appellee.

Clarence L. James, Jr., director of law, Jay L. Loeb and William D. Moore, Cleveland, for appellants.

STEPHENSON, Justice.

Appellants assert, in substance, that the court below erred in issuing the writ of mandamus for the reason that relator did not show a clear right to the relief sought.

This assertion is supported by an argument that since the Common Pleas Court held, in the appeal by respondents from the Civil Service Commission order, that the court had no jurisdiction of the appeal, the court should have dismissed the appeal and was without authority to order reinstatement. It is then argued that since the judgment could go no further than to order a dismissal for lack of jurisdiction, the Civil Service Commission retained jurisdiction to entertain the request for rehearing filed by respondents, and, until the commission ruled, the Civil Service Commission order disapproving of...