State ex rel. Cater v. N. Olmsted

Decision Date18 May 1994
Docket NumberNo. 92-1073,92-1073
Citation69 Ohio St.3d 315,631 N.E.2d 1048
PartiesThe STATE ex rel. CATER, Appellant and Cross-Appellee, v. CITY OF NORTH OLMSTED et al., Appellees and Cross-Appellants.
CourtOhio Supreme Court

James Cater, appellant and cross-appellee, petitioned the Cuyahoga County Court of Appeals for a writ of mandamus to compel Thomas Stroh's reinstatement as Chairman of the North Olmsted Civil Service Commission ("commission"). Cater filed his suit as a taxpayer action against the city of North Olmsted, Mayor Edward Boyle, and members of the city council (collectively, "North Olmsted"), appellees and cross-appellants.

Stroh was appointed to the civil service commission in 1986 to finish an unexpired term ending December 31, 1991. He became chairman in 1989, when two or three entry-level patrolman vacancies existed in the North Olmsted Police Department, and more vacancies were expected.

The commission's rules and regulations required certification of the top three candidates on the eligibility list for a first vacancy on the police force, and, for any subsequent vacancy, the commission typically certified one additional name to be considered with the two previously certified, but unsuccessful candidates. Thus, in 1989, the commission certified three candidates to the city police chief for consideration. In September of that year, the chief asked for additional candidates so he could complete background investigations and expedite the selection process. The chief promised to consider the candidates three at a time, in accordance with the commission's rules and regulations.

By January 4, 1990, however, just four candidates had been certified, and only one vacancy had been filled. The civil service commission agreed to certify two more candidates, but newly elected Mayor Boyle still objected to the length of time the process was taking. Time became an even greater concern when, at a commission meeting on January 25, 1990, the police chief announced his retirement, and Boyle announced proposed legislation to create three or four new patrolman positions.

In January 1990, the commission was composed of Stroh, Robert Wendt, and Henry Robinson, who had just been appointed by Boyle. Apparently, these commissioners were not convinced of their authority to release more than one additional candidate's name per vacancy, and they solicited the city law director's advice and approval. The commission received this approval in a letter dated February 27, 1990, wherein the law director advised that the entire eligibility list was a public record under Rule II(A)(1) of the North Olmsted Civil Service Regulations. The law director also observed:

"[I]n order to facilitate their efforts in completing the application process expeditiously, the appointing authority should be given the list of qualifying candidates."

In March 1990, the city's eligibility list expired. To establish a new eligibility list, the commission administered a written aptitude examination to one hundred fifty-one applicants for the position of patrolman. Eighty-five applicants achieved a passing score. The commission then scheduled a physical agility test, the other qualification for the eligibility list, to be given on May 19, 1990. The thirty-five candidates who scored highest on the written test were invited to participate.

On April 9, 1990, the city personnel director asked the commission in writing for a list ranking the applicants who had passed the written examination, and he reiterated this request at an April 26, 1990 commission meeting. The police chief who succeeded the retiring chief also asked for this information on that day. These requests were made to expedite the selection process and, in particular, to allow new officers to attend a September 1990 police training session.

The commission did not comply with these requests, although on May 1, 1990 it provided the new police chief a list of the top twenty scorers in random order. The commission did not supply a complete list ranking the passing candidates because Commissioners Stroh and Wendt believed that an eligibility list, being based on both written and physical agility test results, would not "exist" until the agility test results were received. Since this concededly public record had not yet been prepared, these commissioners concluded that the commission had no obligation to disclose anything. Stroh and Wendt were also concerned that the "integrity" of the selection process might be compromised if they released a list of candidates according to their written test scores.

On May 3, 1990, Boyle asked the commission in writing for "a listing of all successful candidates from the most recent Police Officers test[,] * * * [to] list the raw scores[,] and [to give] an indication of those people asked to participate in the Agility test of May 19, 1990." In response, the commission's secretary apparently forwarded (1) the list of top twenty written test scorers in random order that had been given to the police chief, (2) an alphabetical list of the top twenty written test scorers, which had also been provided to the police chief, but by "mistake," (3) a list of the top thirty-five scorers on the written test who were to take the physical agility test, (4) a list of candidates who had passed the written test and been placed on a waiting list, and (5) a list of candidates who had failed the written test.

None of these lists, however, identified how candidates scored in relation to one another. Stroh and Wendt refused to release this information, and, in a May 11, 1990 letter to Boyle, they explained:

"[S]ince the commission ruled that only * * * [the new police chief] was to have the names of the potential candidates and the ruling was made in an effort to accommodate the pressing need of reserving spaces for potential candidates in the various police academies, the commission determined that he alone was to receive these names prior to a list being established. The commission further ruled that no list is established until a completion and passing of the physical agility test."

On May 15, 1990, Boyle notified Stroh orally and in writing that he was being suspended from the civil service commission pursuant to Section 6, Article VI of the North Olmsted City Charter. In the letter, Boyle advised Stroh that he could appeal the suspension at a city council meeting to be held that evening. Boyle also told Stroh the reasons for this action:

"Through your recalcitrant actions during 1989 and 1990, with full knowledge of the North Olmsted Civil Service Commission Rules and Regulation [sic ], Ohio Revised Code, and the legal opinion of the North Olmsted Director of Law, you have deprived this City of adequate police protection.

"On several occasions you have refused to provide public records to the Chief of Police, Mayor, Director of Public Safety and the Director of Personnel. By your actions, North Olmsted has been unable to fill vacancies in the Police Department, thus rendering them incapable, through manpower shortage, of providing the mandated level of security to the City."

Boyle suspended Wendt about the same time and invited him to appeal at the May 15 city council meeting. Wendt did not appear. After refusing a continuance, Stroh attended the meeting and argued against his suspension. The council voted five to two in favor of Stroh's suspension; two elected and three appointed members made up the majority, and two other elected members voted against Stroh's suspension.

On May 23, 1990, Stroh wrote to the city council to explain again why he would not release a list ranking the candidates who had passed the written aptitude test. Stroh also demanded reinstatement. On June 5, 1990, Stroh met with Boyle, but still refused to disclose a list ranking the candidates and their written test scores. On June 12, 1990, Boyle gave Stroh formal notice that he had been relieved of his duties on the civil service commission. Wendt was permitted to retain his commission seat, in part because he had agreed to help administer the physical agility test.

Stroh did not appeal his suspension and removal. Boyle purportedly appointed Alex Kovelan to serve Stroh's unexpired term on or about August 13, 1990. On August 21, Boyle announced to city council Kovelan's appointment to fill the vacancy created by Stroh's termination. Kovelan was apparently not sworn in until November 1990.

On August 16, 1990, Cater, a friend and political ally of Stroh's, complained to Boyle about Stroh's removal and asked for his reinstatement. Boyle refused, and the law director advised Cater, in effect, that he would not institute a taxpayer action to gain Stroh's reinstatement. Cater filed this action in the court of appeals two months later, on October 23, 1990.

On April 14, 1992, the court of appeals determined that Stroh had not been removed in accordance with charter procedures, which allowed only elected council members to vote on the suspension. However, the court refused to reinstate Stroh, holding that (1) a list of the aptitude test scores existed and should have been released as a matter of public record, and (2) Stroh's failure to release them was cause for his removal under the city charter. Thus, the court granted a writ of mandamus and ordered payment of any compensation lost due to Stroh's termination. The court did not reach Cater's claims that Stroh's rights to due process and equal protection were violated, and it denied his request for attorney fees.

The cause is before this court upon an appeal and cross-appeal as of right.

Weiler & Weiler, Kevin P. Weiler and Cheri L. Westerburg, Brecksville, for appellant and cross-appellee.

Michael R. Gareau, Director of Law, and James M. Dubelko, North Olmsted, for appellees and cross-appellants.

PER CURIAM.

For a writ of mandamus to issue, Cater must establish that North Olmsted has a clear legal duty to...

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