State ex rel. Dwyer v. City of Middletown, CA87-10-139

• Decision Date: 25 July 1988
• Docket Number: No. CA87-10-139,CA87-10-139
• Citation: 557 N.E.2d 788,52 Ohio App.3d 87
• Parties: The STATE, ex rel. DWYER, Appellant, v. CITY OF MIDDLETOWN et al., Appellees. *
• Court: Ohio Court of Appeals

Page 87

52 Ohio App.3d 87

557 N.E.2d 788

The STATE, ex rel. DWYER, Appellant, v. CITY OF MIDDLETOWN et al., Appellees. ^*

No. CA87-10-139.

Court of Appeals of Ohio, Twelfth District, Butler County.

July 25, 1988.

Syllabus by the Court

1. A writ of mandamus is an appropriate remedy to obtain reinstatement where an appointing authority breaches the terms of an agreement it makes with a civil service employee which causes that employee to submit his resignation.

2. An investigation report prepared for city officials concerning the alleged wrongdoing of a public employee is a "public record," within the meaning of R.C. 149.43(A), subject to disclosure, and any agreement to refuse to disclose the substance of this report is an illegal contractual provision.

3. A "resignation" is a formal renouncement or relinquishment of office made with the intention of relinquishing the office and accompanied by an act of relinquishment.

4. A civil service employee's resignation, which is to become effective in the future, can be withdrawn before its effective date even though it has been accepted by the appointing authority.

Roger B. Turrell & Associates Co., L.P.A., and Roger B. Turrell, Dayton, for appellant.

Sheldon A. Strand, Law Director, Middletown, Porter, Wright, Morris & Arthur and Paul R. Berninger, Cincinnati, for appellees.

PER CURIAM.

This is an appeal by relator-appellant, Russell L. Dwyer, from the judgment of the Court of Common Pleas of Butler County which dismissed his complaint for a writ of mandamus against the respondent-appellee, the city of Middletown.

The record before this court indicates that appellant, a career police officer, had been the chief of police for appellee for twelve years when, on the morning of June 15, 1987, he was summoned to the office of the then city manager William Burns and informed, in the presence of two police sergeants, that charges had been filed against him. He was immediately escorted from the city building without being permitted to speak to his wife, who was then a police officer, or to pick up his coat from his office.

Following Burns' summary action against him, appellant sought and received an order of the Court of Common Pleas of Butler County which assured him of due process in connection with the anticipated hearing on the accusations made by Burns. However, prior to public disclosure of the substance of the charges and any hearing on them, appellant and appellee reached an agreement providing for appellant's resignation. ¹ The agreement provided in part as follows:

"1. The Employee agrees to submit herewith his resignation from his position with the City as Chief of the Division of Police effective October 31, 1987 and the City agrees to withdraw any and all charges previously filed against the employee."

The agreement further provided, inter alia, that appellant would be relieved of duty with pay until the effective date of his resignation; that he would receive the sum of $10,000 for his expenses in connection with this matter; that he did not admit any wrongdoing; that he was to be allowed his accrued vacation pay and standard severance benefits; that he would be given his personal belongings still in appellee's possession; that appellee would release no information concerning the events leading to appellant's resignation except in response to a court order; that appellant's wife could continue her employment with appellee as a police officer and could transfer to any position for which she was qualified under R.C. Chapter 124; and that appellant would give appellee a release and would drop his pending lawsuit against Burns.

In accordance with the terms of the agreement, appellant tendered his resignation and appellee withdrew its charges against him. However, on or about September 25, 1987 (approximately thirty-five days before it was to become effective), appellant notified Burns of his intention to withdraw his resignation. That withdrawal letter notwithstanding, appellant was not restored to his position as chief of police.

Claiming appellee had breached the terms of its agreement with him, thereby entitling him to withdraw his resignation and be reinstated as chief of police, appellant, on October 2, 1987, filed a complaint for mandamus against Burns and appellee. That complaint sought a writ of mandamus ordering appellee to restore appellant to duty as chief of police together with full back pay. A hearing on appellant's complaint was scheduled for October 16, 1987, but was later changed to October 26, 1987. ²

On October 26, 1987, a hearing on appellant's complaint was held and testimony was received. Appellant presented six witnesses in order to show that appellee had breached paragraphs six and seven of its July 2 agreement with him. ³ However, after appellant rested, appellee's motion to dismiss was granted when the court found appellee had not breached, or at least had not materially breached, the agreement between them. This appeal followed.

In his brief before this court, appellant lists twelve assignments of error. Four of these assignments of error address the admission or exclusion of evidence at appellant's hearing while eight pertain to legal findings and rulings made by the court which led to its eventual decision to dismiss appellant's case.

For his first assignment of error, appellant alleges:

"The trial court erred to the prejudice of Relator-Appellant [Dwyer] in sustaining Respondent-Appellees' [City] Motion for Dismissal of the action."

As we read appellant's first assignment of error, it presents a twofold argument. First, if appellant proved appellee breached the terms of its July 2 agreement with him, he was entitled to mandamus relief. Second, the trial court's ruling notwithstanding, the record shows appellant proved appellee breached the agreement and therefore it should have issued the writ.

In order to be entitled to mandamus, a relator must demonstrate three things: (1) a clear legal right to the relief prayed for; (2) that the respondent is under a clear legal duty to perform the act requested; and (3) that the relator has no adequate remedy at law. State, ex rel. Westchester Estates, Inc., v. Bacon (1980), 61 Ohio St.2d 42, 15 O.O.3d 53, 399 N.E.2d 81, paragraph one of the syllabus; Fluckinger v. Civil Service Comm. (Nov. 30, 1983), Butler App. No. CA83-02-016, unreported, 1983 WL 6323; State, ex rel. Bentley v. Middletown City School Dist. (1984), 20 Ohio App.3d 223, 20 OBR 270, 485 N.E.2d 768.

Appellant argues he is entitled to mandamus relief because of the Ohio Supreme Court's decision in Williams v. State, ex rel. Gribben (1933), 127 Ohio St. 398, 188 N.E. 654. Appellee, on the other hand, asserts appellant is not now and has never been entitled to mandamus because he had an adequate remedy at law (in the form of an R.C. 124.34 appeal to the city's civil service commission) when he decided appellee had breached the terms of its agreement with him.

In Williams, supra, two civil servants in Columbus' division of building regulations filed an action in mandamus to force the city to reinstate them to their former positions after they had executed written resignations. Evidence adduced during a hearing revealed the employees had executed blank resignations at the request of their superiors in connection with a planned reduction in force which was supposed to lead to their rehiring. However, following the acceptance of the resignations and the director of the department of public safety's submission of the former employees' names for reinstatement, the local civil service authority refused to rehire them and instead appointed others to take their places. After the employees applied to the civil service commission for reinstatement but were denied it, they filed a mandamus action claiming their resignations were procured through threats and coercion, contrary to representations made upon their execution and in violation of the city's civil service provisions.

In a unanimous decision, the Ohio Supreme Court held the former employees were entitled to be restored to their civil service positions because they had been wrongfully persuaded to tender their resignations and the city had refused to restore the former employees to their positions in a manner consistent with the letter and spirit of the city's civil service statutes. ⁴

Appellant's argument based upon Williams that mandamus is the appropriate form of relief is strengthened by a 1985 Ohio Supreme Court decision. In State, ex rel. Carter v. Cleveland Bd. of Edn. (1985), 17 Ohio St.3d 105, 17 OBR 224, 477 N.E.2d 1134, two classified civil servants, who happened to be bus drivers, were removed from their positions for tardiness, absenteeism, and insubordination. Both filed appeals of their removal but both reached agreements with the Cleveland Board of Education before their appeals were heard. The settlement agreements provided the bus drivers would submit their resignations on two in futuro conditions: (1) that the board of education would not oppose their claims for unemployment benefits; and (2) that they were found to be qualified to receive unemployment benefits. When the two bus drivers applied for but were denied unemployment compensation, they filed a mandamus action against the board, claiming it had violated the settlement agreement by opposing their claims for unemployment. By way of remedy, the bus drivers asked to be reinstated to their former positions because their conditional resignations were void once the board breached its agreement with them.

The Court of Appeals for Cuyahoga County dismissed the mandamus action. The Ohio Supreme Court thereupon reversed, holding that when the bus drivers settled their R.C. 124.34 civil service appeals prior to a hearing, they had no right of appeal and therefore no adequate remedy at law when the settlement agreement was later breached.

In light of Williams, supra, and State, ex rel....