State ex rel. McArthur v. DeSouza, 91-864

• Decision Date: 14 October 1992
• Docket Number: No. 91-864,91-864
• Citation: 65 Ohio St.3d 25,599 N.E.2d 268
• Parties: The STATE ex rel. McARTHUR v. DeSOUZA et al.
• Court: Ohio Supreme Court

Page 25

65 Ohio St.3d 25

599 N.E.2d 268

The STATE ex rel. McARTHUR v. DeSOUZA et al.

No. 91-864.

Supreme Court of Ohio.

Submitted July 29, 1992.

Decided Oct. 14, 1992.

Relator, William A. McArthur, was appointed to the position of patrolman with the Elyria Police Department in June 1983. Prior to that time, he served with the Lorain County Sheriff's Department as a deputy sheriff for a period of nine years and nine months. Both positions were in the classified civil service.

On April 9, 1990, relator, along with respondent Mark A. DeSouza ("DeSouza") and others, took a written examination for promotion within the police department to the rank of sergeant. Relator passed the written examination and was ranked eighth on the promotion eligibility list. DeSouza was ranked fourth. Relator's rank was based upon his raw score on the written examination plus seniority credit for his service with the Elyria Police Department. He was not given seniority credit for his prior service with the Lorain County Sheriff's Department. Had relator received such credit, he would have ranked fourth on the eligibility list, ahead of DeSouza.

On May 4, 1990, relator filed a written protest with the Elyria Civil Service Commission ("commission"), pursuant to its Rule 5.8(a), requesting that he be granted seniority credit for his prior county service. Relator, along with DeSouza and his attorney, addressed this issue before the commission at its May 9, 1990 meeting. The minutes of that meeting reflect that "[t]he Commission listened to Mr. DeSouza and [his attorney] and also from [relator] in regards to the question raised," and that the commission would "take the matter under advisement until the protest period is over and an official promotion list is prepared." At its next meeting, held June 21, 1990, the commission certified the existing eligibility list, on which relator was ranked eighth, but did not rule directly upon relator's protest. Relator took no action in response to the commission's certification.

The first three individuals on the eligibility list had been promoted to the rank of sergeant by March 1991, at which time relator learned of another vacancy in that position. On March 28, 1991, he filed a complaint for declaratory judgment and injunctive relief in the Court of Common Pleas of Lorain County, alleging that he was entitled to seniority credit for his prior service with the sheriff's department, and requested that the city civil service commission be enjoined from certifying DeSouza. On April 8, 1991, the court denied relator's motion for a temporary restraining order and dismissed relator's complaint. ¹ DeSouza was appointed to the rank of sergeant on April 15, 1991.

Relator filed this original action in quo warranto on April 26, 1991, seeking DeSouza's ouster from, and his appointment to, the rank of sergeant. Respondents city of Elyria; city of Elyria Civil Service Commission; and Timothy Coey, Safety Service Director (collectively "the city"), each filed an answer on May 29, 1991; and DeSouza filed his answer on June 7, 1991. This cause is before us upon the basis of these pleadings, the evidence filed by relator on July 5, 1991, and the briefs of the parties.

Gareau & Dubelko Co., L.P.A., Michael R. Gareau and James M. Dubelko, North Olmsted, for relator.

Riley, Koury, Resar & Brill and Patrick D. Riley, Lorain, for respondent Mark A. DeSouza.

Terry S. Schilling, City Sol., and Gino Pulito, Elyria, for respondents City of Elyria, City of Elyria Civil Service Com'n, and Timothy Coey, Safety Service Director.

PER CURIAM.

It is settled that an action in quo warranto will not lie where there exists an adequate remedy by way of appeal. State ex rel. Steyer v. Szabo (1962), 174 Ohio St. 109, 21 O.O.2d 366, 186 N.E.2d 839; State ex rel. Hanley v. Roberts (1985), 17 Ohio St.3d 1, 17 OBR 1, 476 N.E.2d 1019. Respondents claim that the commission's certification of the promotional eligibility list on June 21, 1990 effectively denied relator's protest, and that relator's proper remedy was to appeal that determination under R.C. 2506.01. That statute provides that "[e]very final order, adjudication, or decision of any * * * commission * * * of any political subdivision of the state may be reviewed by the court of common pleas of the county in which the principal office of the political subdivision is located * * *."

However, in Fortner v. Thomas (1970), 22 Ohio St.2d 13, 51 O.O.2d 35, 257 N.E.2d 371, we construed Section 4(B), Article IV of the Ohio Constitution (" * * * [C]ourts of common pleas shall have * * * such powers of review of proceedings of administrative officers and agencies as may be provided by law."), as providing for review of quasi-judicial proceedings only.

In M.J. Kelley Co. v. Cleveland (1972), 32 Ohio St.2d 150, 61 O.O.2d 394, 290 N.E.2d 562, paragraph two of the syllabus, we stated that "[p]roceedings of administrative officers and agencies are not quasi-judicial where there is no requirement for notice, hearing and the opportunity for the introduction of evidence." Accord DeLong v. Bd. of Edn. (1973), 36 Ohio St.2d 62, 65 O.O.2d 213, 303 N.E.2d 890; State ex rel. Rieke v. Hausrod (1979), 59 Ohio St.2d 48, 13 O.O.3d 35, 391 N.E.2d 736.

Commission Rule 5.8(a), ² under which relator filed the protest of his examination grade, provides in part:

" * * * An applicant shall have the right to inspect his own papers and inform himself as to the markings given him on each subject or question and to submit in writing for the Commission's consideration any objection or protest he may wish to make concerning the grades given him. Such objection or protest must be made within ten days after an applicant has been notified of his grade. No grades given in any examination shall be changed after the preparation of an eligible list except after the consideration of reasons submitted in writing by the applicant objecting to the grade given to him, and a report thereon by the Commission; provided, however, that the Chairman may correct clerical errors of examiners or employees at any time before the expiration of such eligible lists."

Clearly, this rule does not require notice, hearing or the opportunity to introduce evidence upon filing a protest to an examination grade and, thus, does not contemplate a quasi-judicial proceeding. Accordingly, we find that the commission's effective denial of relator's protest was not appealable under R.C. 2506.01, that he has no adequate remedy at law, and that this action in quo warranto will lie. We turn now to the merits of this case.

R.C. 2733.06 authorizes a private individual to bring an action in quo warranto and provides:

"A person claiming to be entitled to a public office unlawfully held and exercised by another may bring an action therefor by himself or an attorney at law, upon giving security for costs."

"A police officer of a municipal corporation is a public officer, and as such he occupies a public office * * *." State ex rel. Mikus v. Hirbe (1965), 5 Ohio App.2d 307, 34 O.O.2d 490, 215 N.E.2d 430, paragraph two of the syllabus, affirmed (1966), 7 Ohio St.2d 104, 36 O.O.2d 85, 218 N.E.2d 438. Thus, for a writ in quo warranto to issue in this proceeding, relator must show (1) that he is entitled to the office, and (2) that the office is being unlawfully held and exercised by respondent DeSouza. State ex rel. Heer v. Butterfield (1915), 92 Ohio St. 428, 111 N.E. 279, paragraph one of the syllabus; State ex rel. Hanley v. Roberts, supra; State ex rel. Delph v. Barr (1989), 44 Ohio St.3d 77, 541 N.E.2d 59, syllabus.

Relator's claim that he is entitled to the office and that DeSouza holds it unlawfully is founded upon the commission's failure to grant him seniority credit for his prior service with the Lorain County Sheriff's Department. Under Section 16.05 of the Elyria Charter, the computation of seniority credit is governed by R.C. 124.31, which provides in part "(B) All examinations for promotions shall be competitive and in writing. In promotional examinations, efficiency and seniority in service shall be added to the examination grade, but no credit for seniority, efficiency, or any other reason...