State ex rel. Harris v. Haynes

• Decision Date: 19 March 1952
• Docket Number: No. 32498,32498
• Citation: 105 N.E.2d 53,47 O.O. 139,157 Ohio St. 214
• Parties: , 47 O.O. 139 STATE ex rel. HARRIS, Chief of Police, v. HAYNES, Mayor, et al.
• Court: Ohio Supreme Court

Page 214

157 Ohio St. 214

105 N.E.2d 53, 47 O.O. 139

STATE ex rel. HARRIS, Chief of Police, v. HAYNES, Mayor, et al.

No. 32498.

Supreme Court of Ohio.

March 19, 1952.

Syllabus by the Court.

1. Where a mayor files with the city civil service commission what purports to be an order of removal of a chief of police and reasons therefor, and furnishes a copy thereof to such chief, and the chief within ten days after such order of removal files a motion with the commission raising the question whether his removal could be so accomplished, and the commission promptly renders a decision approving such action of the mayor, a writ of mandamus will not be issued to compel the reinstatement of such chief of police.

2. In such an instance, assuming the facts are such that the proceedings for his removal should comply with Section 486-17a, General Code, and the proceedings actually taken for his removal did not comply therewith, the remedy of such chief of police is by appeal to the Common Pleas Court pursuant to the provisions of Section 4086-17a, General Code.

3. Where a party had a remedy by appeal, whether he exercised that remedy or not, he cannot ordinarily have the extraordinary remedy of mandamus to secure the same rights which he could have secured by such appeal.

4. At the end of the probationary period provided for in Section 486-13, General Code, an appointing authority has the right to remove an appointee whose service has been unsatisfactory to such appointing authority. Such right of removal is subject only to the approval of the civil service commission.

5. Any rights of the chief of police of a city to salary, for a period during which he was not paid because excluded from office by reason of a void suspension, may be asserted in an action at law against the city; and such chief is, therefore, not entitled to a writ of mandamus to enforce such rights.

On September 20, 1950, the relator, Harris, was certified as having received the highest grade upon a competitive civil service examination for chief of police of Newark. Thereupon, he was suspended by Mayor Haynes for 30 days on grounds later found by the Common Pleas Court to be unjustified.

Thereafter, on November 9, 1950, Mayor Haynes appointed Harris as chief of police.

On January 4, 1951, Mayor Haynes wrote a letter to Harris reading as follows:

'Your conduct of office as chief of police has not been satisfactory to me and to many other people. Therefore, I am giving you an opportunity to resign from 'chief' and revert to 'sergeant' in the police department, or I shall file charges for removal from the department.

'You are hereby suspended for fifteen days, to arrive at your conclusion. This suspension shall be without pay should you not decide to comply with the demotion.'

No copy of this letter was sent to the Newark civil service commission.

On January 8, 1951, Harris instituted this original action of mandamus in this court to secure his salary and the privileges of his office as against the January 4, 1951, action of the mayor; and he also filed with the civil service commission of the city a writing, styled 'Explanation,' setting up that the mayor's action was void because no breach of duty on Harris' part was assigned against him which might be the basis of an appeal to the commission, that the mayor's action was for political and frivolous reasons, and that by its terms he was not afforded a hearing, nor was a time for hearing set; and requesting that, if, despite these defects, the action was not void, he be given a hearing.

The commission accepted this document but set no time for a hearing.

Harris was precluded from working and was denied any pay for a 15-day period beginning January 4. At the end of the 15-day period, no charges having been drawn up against him, Harris resumed the duties of chief of police and continued to act as chief until February 8, 1951.

On February 7, 1951, Mayor Haynes sent a letter to the civil service commission of Newark reading as follows:

'The service of James D. Harris, chief of police of the city of Newark, Ohio, are terminated as of February 8, 1951, at the end of the three-month probationary period, for the reason that his services were unsatisfactory in the following particulars:

'1. Lack of executive ability to properly direct the department.

'2. Does not plan the operation of the department and the assignment of men to particular duties and hours of duty in a way that affords proper protection to the citizens of the city.

'3. Devotes his time to detailed personal performance of the duties of subordinates, rather than the management and direction of the department.

'4. Lacks tact in relationship with the men working under him.

'5. Does not command the confidence and respect of the men in the department which in turn has resulted in a breakdown of morale of the department.

'I therefore recommend that the commission affirm my dismissal of Mr. Harris as chief of police, at the end of his probationary services.'

On February 12, 1951, Harris filed with the civil service commission a motion to quash and hold for naught Mayor Haynes' order purporting to dismiss him and to accord to him all the privileges and emoluments of the office of chief of police and requesting a hearing upon that motion to quash; and, in the alternative, requesting that, if the commission did not uphold the motion to quash and consider it as a dismissal order, he be given a reasonable time to prepare an explanation thereto as contemplated by Section 486-17a, General Code, and afforded a hearing thereon to test the validity of that order.

In his memorandum in support of these motions, Harris pointed out that he had been illegally dismissed and precluded from serving 15 days during his probationary period and therefore should be given a hearing on his dismissal, under Section 486-13, General Code; that, if the commission chose to ignore that dismissal of 15 days and assume that he had a full probationary period, then his purported dismissal on February 8 came in fact on the 93rd day after the date of his appointment on November 8 so that he was entitled to a hearing on the charges under Section 486-17a, General Code. Harris further stated that the charges of Mayor Haynes were drawn up in bad faith and were frivolous, and proffered documents and called attention to other facts tending to support that charge.

On February 15, the commission adopted a resolution approving the dismissal by the mayor of Harris as chief of police, overruling Harris' motion to quash, overruling his motion for a hearing on that motion, overruling his alternative motion for a hearing, and providing that he retain his rank as sergeant. At that time the commission also adopted an opinion indicating that its action was taken pursuant to Section 486-13, General Code, and the decision of this court in State ex rel. Clements v. Babb, Chief, 150 Ohio St 359, 82 N.E.2d 737, and indicating that that action was based on the determination that Harris had served a full three-month probationary period.

By reason of amendments to his pleadings, relator has increased the scope of the relief originally sought in this action so that this action is now one to secure by a writ of mandamus not only the salary for the 15-day period in January 1951, but also reinstatement as chief of police and the difference between the salary which he did receive as a sergeant after February 8, 1951, and the salary of the chief of police.

Robert Denzler Holmes, Columbus, for relator.

Walter U. Bolton, City Sol., and Glenn Kreider, Newark, for respondents.

TAFT, Judge.

The relator contends that, because his 15-day suspension in January was void, he did not have the full three-month probationary period provided for by Section 486-13, General Code, and therefore could not be dismissed from office as chief of police except pursuant to Sections 486-17 and 486-17a, General Code.

He contends further that, if it should be held that he did have an opportunity to serve his full three-month probationary period, then the end of that probationary period was February 5 and thereafter the mayor could not dismiss him as chief of police, as he endeavored to do on February 7, without following the procedure provided for in Section 486-17 and 486-17a, General Code.

As we view the law applicable to this case, it is not necessary for this court to determine whether the efforts made by Mayor Haynes to suspend relator in January for 15 days did or did not represent a void suspension. Likewise, we do not believe it is necessary to determine whether, as contended by relator, the three-month probationary period was only 90 days and not the 93 days included in the period of three months running from and including November 9, 1950, to and not including February 8, 1951.

Section 486-13, General Code, provides so far as material in this case:

'All original and promotional appointments shall be for a probationary period of not to exceed three months to be fixed by the rules of the commission, and no appointment or promotion shall be deemed finally made until the appointee has satisfactorily served his probationary period. At the end of the probationary period the appointing officer shall transmit to the commission a record of the employee's service, and if such service is unsatisfactory, the employee may, with the approval of the commission, be removed or reduced without restriction; but dismissal or reduction may be made during...