State ex rel. Connole v. Cleveland Bd. of Edn., No. 64879
| Court | United States Court of Appeals (Ohio) |
| Writing for the Court | NAHRA |
| Citation | 87 Ohio App.3d 43,621 N.E.2d 850 |
| Docket Number | No. 64879 |
| Decision Date | 06 April 1993 |
| Parties | , 86 Ed. Law Rep. 362 The STATE ex rel. CONNOLE et al. v. CLEVELAND BOARD OF EDUCATION et al. |
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v.
CLEVELAND BOARD OF EDUCATION et al.
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Mary A. Lentz and Thomas P. Gill, Cleveland, for relators.
George Crisci, Cleveland, for respondents.
NAHRA, Presiding Judge.
On January 6, 1993, the relators, William A. Connole, Jr., Timothy Donelon, Sean P. Gallagher, John F. Gill, Arnold L. Mitchell and Denis P. Sweeney, Jr., commenced this mandamus action against the respondents, the Board of Education of the Cleveland City School District ("the board") and the individual board members: Lawrence Lumpkin, James Lumsden, Susan Leonard, Leon Laurence, Stanley Tolliver, James Carney and Gary Kucinich. The relators, who were permanent classified civil service employees for the board in such positions as steamfitter and plumber, allege that on October 29, 1992, they were laid off by respondents ostensibly for lack of funds. The relators were noticed on October 30, 1992, that they would be terminated as of November 6. The gravamen of the complaint is that the respondents violated R.C. 124.321 by not filing the required statement of rationale and supporting[621 N.E.2d 851] documentation for the lack of funds before sending the layoff notices. Therefore, the relators argue that mandamus lies to compel the respondents to reinstate them immediately to their positions with back pay and all other benefits. The respondents moved to dismiss because the relators had or have an adequate remedy at law. The parties have fully briefed this issue, and for the following reasons this court grants the motion to dismiss.
R.C. 124.328 provides in pertinent part as follows: "An employee may appeal a layoff * * * to the state personnel board of review. The appeal shall be filed or postmarked no later than ten days after receipt of the notice of layoff or after the date the employee is displaced." R.C. 124.40 specifies that the "municipal civil service commission shall exercise all other powers and perform all other duties with respect to the civil service of such city, city school district * * *, as prescribed in this chapter and conferred upon * * * the state personnel board of review with respect to the civil service of the state." Similarly, Section 8.50 of the Rules of the Civil Service Commission of the city of Cleveland provides laid-off employees with the right of appeal. See, also, R.C. 124.34, which allows employees to appeal to the state personnel board of review for cases of removal, reduction or suspension of more than three days. Again the time period for filing
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the appeal is ten days. Thus, Ohio law provides public employees with the opportunity to appeal layoffs. In the present case an appeal to the Cleveland Civil Service Commission would have been the appropriate vehicle.The courts of Ohio have consistently ruled that such appeals provide an adequate remedy for civil servants who allege they have been wrongfully laid off. Moreover, this remedy precludes mandamus. In State ex rel. Shine v. Garofalo (1982), 69 Ohio St.2d 253, 23 O.O.3d 251, 431 N.E.2d 680, syllabus, the Ohio Supreme Court held: "An employee in the classified civil service who alleges she has been removed from her employment has a plain and adequate remedy in the ordinary course of the law by way of appeal to the State Personnel Board of Review under R.C. 124.34, even though her employer fails to file an order of removal with the board of review." Significantly, the Ohio Supreme Court in Shine overruled a previous decision, State ex rel. Alford v. Willoughby (1979), 58 Ohio St.2d 221, 12 O.O.3d 229, 390 N.E.2d 782, which held that the employer's filing of the removal order with the civil service commission was a jurisdictional prerequisite for an appeal; if no removal order was filed, then the employee could bring a mandamus action to review his termination. In holding that such a filing was not jurisdictional, the court considered the effect of regulations issued after Alford as well as...
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...State ex rel. Shafer v. Ohio Turnpike Comm. , 159 Ohio St. 581, 113 N.E.2d 14 (1953) ; State ex rel. Connole v. Cleveland Bd. of Edn. , 87 Ohio App.3d 43, 621 N.E.2d 850 (1993) ; State ex rel. Dayton-Oakwood Press v. Dissinger , 32 Ohio Law Abs. 308 (1940). The Supreme Court of Ohio has als......
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...Shafer v. Ohio Turnpike Comm., 159 Ohio St. 581, 113 N.E.2d 14 (1953); State ex rel. Connole v. Cleveland Bd. of Edn., 87 Ohio App.3d 43, 621 N.E.2d 850 (1993); State ex Dayton-Oakwood Press v. Dissinger, 32 Ohio Law Abs. 308, 1940 Ohio App. LEXIS 1173 (1940). The Supreme Court of Ohio has ......
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