State ex rel. Brown v. East Cleveland Civil Service Commission

• Decision Date: 30 May 1979
• Docket Number: No. 78-1486,78-1486
• Citation: 392 N.E.2d 1260,58 Ohio St.2d 232
• Parties: , 12 O.O.3d 235 The STATE ex rel. BROWN, Appellee, v. EAST CLEVELAND CIVIL SERVICE COMMISSION et al., Appellants.
• Court: Ohio Supreme Court

Page 232

58 Ohio St.2d 232

392 N.E.2d 1260, 12 O.O.3d 235

The STATE ex rel. BROWN, Appellee, v. EAST CLEVELAND CIVIL SERVICE COMMISSION et al., Appellants.

No. 78-1486.

Supreme Court of Ohio.

May 30, 1979.

On July 22, 1977, appellee, Isaiah Brown, an assistant custodian employed by the East Cleveland Board of Education, was suspended from his position without pay. Appellee filed an appeal from his suspension with the East Cleveland Civil Service Commission, which refused to hear his appeal.

By letter dated September 17, 1977, the East Cleveland Board of Education notified appellee of the termination of his employment. Appellee appealed his dismissal to the East Cleveland Civil Service Commission, but the commission refused to hear his appeal on the grounds that it did not have jurisdiction of the matter.

Subsequently, appellee filed a complaint for a writ of mandamus in the Court of Appeals for Cuyahoga County seeking an order compelling the East Cleveland Civil Service Commission and its members, appellants herein, to hear his appeals from his suspension and ultimate termination. On October 18, 1978, the Court of Appeals allowed the writ of mandamus.

This cause is now before this court pursuant to an appeal as of right.

Lucas, Prendergast, Albright, Gibson, Newman & Gee and W. Joseph Strapp, Columbus, for appellee.

Henry B. Fischer, director of law, Euclid, and Warner Jackson, Cleveland, for appellants.

PER CURIAM.

It is well settled that in order for a writ of mandamus to be issued, the relator must show, Inter alia, that he enjoys a clear legal right to the relief for which he prays. State ex rel. Niles v. Bernard (1978), 53 Ohio St.2d 31, 33, 372 N.E.2d 339.

Appellee contends, and the Court of Appeals held, that he was a classified civil service employee, pursuant to R.C. 124.11(B), entitled to specific procedural rights and notices upon termination from employment which the East Cleveland Board of Education failed to provide.

R.C. 124.11(B) provides, in relevant part, that:

"The classified service shall comprise all persons in the employ of the state * * * and city school districts thereof, not specifically included in the unclassified service. * * * "

Appellants argue that the Court of Appeals erred in issuing the writ of mandamus on the grounds that appellee did not prove that he had been appointed from an eligibility list or had taken a competitive or non-competitive examination.

This same argument was presented by the respondents in the case of State ex rel. Alford v. Willoughby (1979), 58 Ohio St.2d 221, 390 N.E.2d 782, decided this day. In Alford, this court reversed the judgment of the Court of Appeals dismissing a complaint in mandamus filed by non-teaching employees of the Willoughby-Eastlake Board of Education against respondent civil service commissions on the grounds that the commissions had not established testing procedures or maintained eligibility lists as required by R.C. Chapter 124. This court held, at page 226, 390 N.E.2d at page 786, that the respondents "should not be permitted to assert their own neglect of duty in this regard to deny the relators their statutory protection within civil service."

Such facts are not present in the instant cause. The parties have stipulated that the East Cleveland Civil Service Commission has conducted competitive or non-competitive examinations, as requested, and that appellee has failed to take either of such examinations. A similar situation existed in a number of the cases discussed in State ex rel. Alford, supra, which supports appellants' position State ex rel. Lynch v. Taylor (1940), 136 Ohio St. 417, 26 N.E.2d 207; State ex rel. Baker v. Wichert (1953), ...