State ex rel. Brenders v. Hall, 94-275

• Decision Date: 29 March 1995
• Docket Number: No. 94-275,94-275
• Citation: 71 Ohio St.3d 632,646 N.E.2d 822
• Parties: The STATE ex rel. BRENDERS v. HALL et al.
• Court: Ohio Supreme Court

Page 632

71 Ohio St.3d 632

646 N.E.2d 822

The STATE ex rel. BRENDERS v. HALL et al.

No. 94-275.

Supreme Court of Ohio.

Submitted Jan. 24, 1995.

Decided March 29, 1995.

Relator, James T. Brenders, and respondent, Timothy J. Hall, are police officers of the Police Department of Brook Park, Ohio. On August 23, 1993, Brenders and Hall took the police lieutenant promotional examination given by respondent, Brook Park Civil Service Commission ("commission").

Hall received the highest grade of the candidates for the police lieutenant position, and Brenders received the second highest grade. Hall's higher grade was the result of having one more correct answer than Brenders. On August 27, 1993, Brenders challenged, inter alia, question 11 of the promotional examination. The question provided:

"During a police search of an area, suspects will most frequently hide

"(a) under houses, bushes, etc.

"(b) behind large objects

"(c) inside small recessed areas

"(d) on the roofs of houses, sheds, etc."

Brenders answered "a" to question 11, and Hall answered "d," the latter being the correct response according to the answer key. In his challenge, Brenders claimed that the best answer was actually "a." If question 11 were voided, Brenders and Hall would receive the same score, and Brenders would be entitled to the police lieutenant position because he has more seniority than Hall. Rule VI(3) of the Rules and Regulations of the Brook Park Civil Service Commission.

The commission referred Brenders's challenges to International Personnel Management Association ("IPMA"), the company that prepared the examination, for its review. IPMA reviewed Brenders's challenges and noted that answer "d" to question 11 of the promotional examination was supported by an excerpt from Principles of Police Patrol by N.F. Iannone. On September 20, 1993, the commission rejected Brenders's challenges "based upon the documentation received from IPMA supporting their answers to the questions challenged." Brenders attempted to "appeal" the commission's denial of his challenge with the commission, but the commission informed him that it was not a proper appeal. On October 6, 1993, the commission certified the names of Hall, Brenders, and two other candidates on the eligible list for police lieutenant, with Hall ranked first and Brenders second. Hall was appointed police lieutenant based upon his score on the promotional examination.

Brenders instituted this action in quo warranto against Hall, the city of Brook Park, its civil service commission and its police department, seeking Hall's ouster from, and Brenders's appointment to, the position of Brook Park Police Lieutenant.

Randall M. Perla and Scott D. White, for relator.

Duvin, Cahn, Barnard & Messerman and Kenneth B. Stark, for respondents.

PER CURIAM.

Brenders asserts in his sole proposition of law that the office of lieutenant in the Brook Park Police Department is being unlawfully held by Hall, and should be rightfully held by him, because the promotional examination was not competitive.

"A person claiming to be entitled to a public office unlawfully held and exercised by another may bring an action therefor by himself or an attorney at law, upon giving security for costs." R.C. 2733.06. A police officer of a municipal corporation is a public officer and occupies a public office. State ex rel. Mikus v. Hirbe (1965), 5 Ohio App.2d 307, 34 O.O.2d 490, 215 N.E.2d 430, affirmed (1966), 7 Ohio St.2d 104, 36 O.O.2d 85, 218 N.E.2d 438. In order for a writ of quo warranto to issue, a relator must establish (1) that the office is being unlawfully held and exercised by respondent, and (2) that relator is entitled to the office. State ex rel. Paluf v. Feneli (1994), 69 Ohio St.3d 138, 141, 630 N.E.2d 708, 710; State ex rel. Delph v. Barr (1989), 44 Ohio St.3d 77, 541 N.E.2d 59, syllabus. Where proceedings before a municipal civil service commission are not quasi-judicial, a relator in a quo warranto action has no adequate remedy by appeal, and a consideration of the merits is required. State ex rel. McArthur v. DeSouza (1992), 65 Ohio St.3d 25, 599 N.E.2d 268.

Section 10, Article XV of the Ohio Constitution provides that "[a]ppointments and promotions in the civil service of * * * cities, shall be made according to merit and fitness, to be ascertained, as far as practicable, by competitive examinations." R.C. 124.31(B) provides that "[a]ll examinations for promotions shall be competitive and in writing." R.C. 124.44 provides that "[n]o position above the rank of patrolman in a police department shall be filled by any person unless he has first passed a competitive promotional examination" and "[a]fter such examination has been held and an eligible list established, the commission shall forthwith certify to the appointing officer the name of the person receiving the highest rating." Under Section 10.02 of the Brook Park City Charter (1986 replacement), the commission "shall provide by rule for ascertainment of merit and fitness as the basis for appointment and promotion * * *."

Relator claims that the police lieutenant promotional examination was not "competitive," where one of the questions lacked objective support and was inconsistent with the assigned study materials. The word "competitive," is not defined in the Ohio Constitution or the Revised Code. In the absence of a specific statutory definition, words used in a statute must be interpreted in their usual, normal, or customary meaning. R.C. 1.42; State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn. (1994), 69 Ohio St.3d 217, 220, 631 N.E.2d 150, 153. A "competitive civil service examination" has been defined as an "[e]xamination which conforms to measures or standards which are sufficiently objective to be capable of being challenged and reviewed by other examiners of equal ability and experience." Black's Law Dictionary (6 Ed.1990) 284; State ex rel. Delph v. Greenfield (1991), 71 Ohio App.3d 251, 262, 593 N.E.2d 369, 376.

In determining the breadth of the term "competitive," it should be emphasized that the "fundamental purpose of civil service laws and rules is to establish a merit system, whereby selections for appointments in certain branches of the public service may be made upon the basis of demonstrated relative fitness, without regard to political considerations, and to safeguard appointees against unjust charges of misconduct and inefficiency, and from being unjustly discriminated against for religious or political reasons or affiliations. * * * " Curtis v. State ex rel. Morgan (1923), 108 Ohio St. 292, 140 N.E. 522, paragraph four of the syllabus; State ex rel. Zone v. Cleveland (1986), 23 Ohio St.3d 1, 6, 23 OBR 1, 5, 490 N.E.2d 600, 604-605. The civil service laws may not be invoked where no discrimination is claimed and no charges have been made involving misconduct, inefficiency, or other delinquency. Curtis, supra.

In State ex rel. King v. Emmons (1934), 128 Ohio St. 216, 221, 190 N.E. 468, 471, this court stated:

"What, then, is meant by 'competitive examination?' In a competitive examination, the candidates match their qualifications, each against the others, and the final determination is made by rating and comparison. It is open to all who are eligible. In contrast, a non-competitive examination is one in which the examining authority selects at pleasure such candidates as he may choose and subjects them to examination as he deems necessary." See, also, Almassy v. Los Angeles Cty. Civ. Serv. Comm. (1949), 34 Cal.2d 387, 398, 210 P.2d 503, 510.

In the case at bar, Brenders claims that the examination was not competitive because one out of the one hundred forty-five questions was improper. However, the fact that one question may have been improper does not in and of itself compromise the fundamental purpose of the civil service laws. There is no evidence that the commission or Hall engaged in misconduct that gave Hall an unfair advantage over Brenders. Cf. State ex rel. Hanley v. Roberts (1985), 17 Ohio St.3d 1, 7, 17 OBR 1, 6, 476 N.E.2d 1019, 1024, at fn. 8, where the court opined that "[w]here any applicant has taken an examination 'substantially the same' as one taken previously, and his competitors have not taken the previous examination, such applicant certainly would enjoy an unfair advantage and the second examination becomes less 'competitive.' " Additionally, there is no evidence that the commission closed the examination to eligible applicants or selected Hall over Brenders based on anything other than the examination. Courts should not be "drawn into preparing, revising and correcting questions in Civil Service examinations, supervising the examinations, and finally rating the papers." Blumenthal v. Morton (1948), 273 A.D. 497, 503, 78 N.Y.S.2d 302, 307 (Dore, J., dissenting).

New York was the first state to make the civil service merit and fitness requirement part of its Constitution, in an effort to ensure that "competence, rather than cronyism, * * * determine civil service appointments." McGowan v. Burstein (1988), 71 N.Y.2d 729, 733, 530 N.Y.S.2d 64, 65, 525 N.E.2d 710, 711. New York courts have noted that while municipal civil service commissions...