State ex rel. Mikus v. Hirbe

• Decision Date: 06 July 1966
• Docket Number: 40174,Nos. 40124,40142-40145,40173,s. 40124
• Citation: 7 Ohio St.2d 104,36 O.O.2d 85,218 N.E.2d 438
• Parties: , 36 O.O.2d 85 The STATE ex rel. MIKUS, Pros. Atty., Appellant, v. HIRBE, Appellee. The STATE ex rel. MIKUS, Pros. Atty., Appellant, v. MALINOVSKY, Appellee. The STATE ex rel. MIKUS, Pros. Atty., Appellant, v. METELSKY, Appellee. The STATE ex rel. MIKUS, Pros. Atty., Appellant, v. SOLOMON, Appellee. The STATE ex rel. MIKUS, Pros. Atty., Appellant, v. HOLOMUZKI, Appellee. The STATE ex rel. MIKUS, Pros. Atty., Appellant, v. SZABO, Appellee. The STATE ex rel. MIKUS, Pros. Atty., Appellant, v. PALERMO, Appellee.
• Court: Ohio Supreme Court

Page 104

7 Ohio St.2d 104

218 N.E.2d 438, 36 O.O.2d 85

The STATE ex rel. MIKUS, Pros. Atty., Appellant, v. HIRBE, Appellee.

The STATE ex rel. MIKUS, Pros. Atty., Appellant, v. MALINOVSKY, Appellee.

The STATE ex rel. MIKUS, Pros. Atty., Appellant, v. METELSKY, Appellee.

The STATE ex rel. MIKUS, Pros. Atty., Appellant, v. SOLOMON, Appellee.

The STATE ex rel. MIKUS, Pros. Atty., Appellant, v. HOLOMUZKI, Appellee.

The STATE ex rel. MIKUS, Pros. Atty., Appellant, v. SZABO, Appellee.

The STATE ex rel. MIKUS, Pros. Atty., Appellant, v. PALERMO, Appellee.

Nos. 40124, 40142-40145, 40173, 40174.

Supreme Court of Ohio.

July 6, 1966.

Syllabus by the Court

Where the appointees have taken competitive promotional examinations given in order to fill vacancies in the police department of a city, where the statutes relative to civil service are applicable, where the appointees have taken such examinations in good faith and have done everything on their part to comply with the applicable statutes, and where they have satisfactorily completed their probationary periods, they can be removed from their offices only for cause pursuant to Section 143.27 of the Revised Code, and the failure of the municipal civil service commission to take efficiency ratings into account in grading the examinations will not frustrate the appointees' efforts to secure the benefits of the civil service laws, Chapter 143 of [218 N.E.2d 440] the Revised Code. (State, ex rel. Byrd, v. Sherwood, Dir., 140 Ohio St. 173, 42 N.E.2d 889, and Kluth v. Andrus, Dir., 157 Ohio St. 279, 105 N.E.2d 579 followed; State, ex rel. Ethell, v. Hendricks, 165 Ohio St. 217, 135 N.E.2d 362, and In re Removal of Taylor, Chief of Police, 172 Ohio St. 394, 176 N.E.2d 214, distinguished.)

In the seven cases at bar, the Prosecuting Attorney of Lorain County brought actions in quo warranto in the Court of Appeals for Lorain County to test by what authority the seven respondents hold their new positions in the Police Department of the city of Lorain, Ohio. The respondents were appointed to their respective positions (all above the rank of patrolman) after they had been certified by the Lorain Civil Service Commission as having either placed first or received a grade sufficiently high for placement on the eligibility list in a competitive promotional examination given for the purpose of filling the respective vacancies. The relator claims that the Lorain Civil Service Commission did not take efficiency ratings into account in determining which examinees should be certified. Thus, relator prays that respondents be ousted, that the examination be declared a nullity and that a new examination be held.

It is stipulated in each of the seven cases that the Lorain Civil Service Commission did not take an efficiency rating into account in grading the promotional examinations, that it has never heretofore taken efficiency ratings into account in grading promotional examinations, and that it has never received any efficiency ratings from the Police Department of Lorain. It is also stipulated that the respondents did not know what factors the commission included or excluded in grading the examinations. Finally, it is stipulated that each of the respondents has satisfactorily completed his probationary period.

The Court of Appeals heard the cases on their merits and denied the writs. (5 Ohio App.2d 307, 215 N.E.2d 430) The causes are before this court on appeals as of right.

Paul J. Mikus, Pros. Atty., and Nicholas R. Curci, Lorain, for appellant.

Lucas, Prendergast, Albright & Warren, John A. Brown, Columbus, Joseph A. Ujhelyi and E. G. Koury, Lorain, for appellees.

HERBERT, Judge.

In grading a promotional examination to fill a position above the rank of patrolman in a police department of a noncharter city, such as Lorain, where the statutes relative to civil service are applicable, the municipal civil service commission must consider the following factors: (1) the grade received on the written examination, (2) the seniority credit and (3) the efficiency credit, State ex rel. Ethell v. Hendricks, 165 Ohio St. 217, 135 N.E.2d 362; Section 143.24, Revised Code.

The Lorain Civil Service Commission was derelict in its duty in ignoring the third factor. The respondents neither knew of nor participated in that dereliction. They have satisfactorily completed their probationary periods.

The question thus presented is whether the respondents who took the written examination in good faith, who were certified by the Lorain commission and who were appointed to their positions where they have satisfactorily served should be peremptorily ousted because of a dereliction of duty on the part of the Lorain commission, which was unknown to the respondents.

In State ex rel. Byrd v. Sherwood, Dir., 140 Ohio St. 173, 42 N.E.2d 889, this court held that where one is regularly appointed to a position in the classified service from a list of persons whose names had been duly certified to the appointing officer, but where an unauthorized representative of the civil service commission persuaded other persons whose names appeared on the list of eligibles to waive their rights of priority, which served to benefit the appointee, nevertheless such appointee who had satisfactorily...