State ex rel. Moyer v. Montgomery Cty. Bd. of Commrs.

• Decision Date: 29 March 1995
• Docket Number: No. CA,CA
• Citation: 656 N.E.2d 1366,102 Ohio App.3d 257
• Parties: The STATE ex rel. MOYER, Appellant, v. MONTGOMERY COUNTY BOARD OF COMMISSIONERS et al., Appellees. * 14556.
• Court: Ohio Court of Appeals

Page 257

102 Ohio App.3d 257

656 N.E.2d 1366

The STATE ex rel. MOYER, Appellant, v. MONTGOMERY COUNTY BOARD OF COMMISSIONERS et al., Appellees. ^*

No. CA 14556.

Court of Appeals of Ohio,

Second District, Montgomery County.

Decided March 29, 1995.

Dwight A. Washington, Dayton, for appellant.

Mathias H. Heck, Jr., Pros. Atty., and John Krumholtz, Asst. Pros. Atty., Dayton, for appellees.

FREDERICK N. YOUNG, Judge.

Relator, Donald P. Moyer, instituted a mandamus action in the Montgomery County Common Pleas Court against his employer, the Montgomery County Board of Commissioners, and each of the individual members of the board: Charles J. Curran, Donna Moon, and Don Lucas (collectively, "the county"). Moyer sought to have the trial court direct the county to comply with an order issued by the State Personnel Board of Review ("SPBR"), which required the county to reinstate Moyer with back pay to the position of power plant supervisor. Upon finding that Moyer had an adequate remedy at law, the trial court granted the county's motion for summary judgment and denied Moyer's request for a writ of mandamus. Moyer now appeals from that judgment.

In June 1992, Moyer was employed by the county as a power plant supervisor at its North Incinerator. On June 3, 1992, Moyer made racially derogatory remarks during a supervisory meeting, for which he received a written reprimand dated that same day.

On September 1, 1992, Moyer received a letter notifying him that he was being demoted to the position of incinerator operator with a corresponding reduction in pay, effective September 2, 1992, at the close of the business day. The letter cited the racial slurs made by Moyer on June 3, 1992, as the reason for the reduction in position and pay. The letter further informed Moyer that the June 3, 1992 written reprimand was "not an official document, * * * was never a part of [his] official personnel record[,] * * * [and] was given to [him] contrary to Montgomery County policy and without proper authorization."

Moyer appealed his reduction in position and pay to the SPBR. A hearing date was set for February 2, 1993, and was later continued, at Moyer's request, until April 29, 1993.

On March 9, 1993, the county abolished the power plant supervisor position, formerly held by Moyer, which had been left unfilled following his demotion.

On April 29, 1993, a hearing was held before an administrative law judge ("ALJ"), who issued a report and recommendation on the matter on July 28, 1993. ¹ On August 24, 1993, the SPBR adopted the recommendation of the ALJ, and disaffirmed the county's order demoting Moyer. ² It ordered that Moyer be reinstated to his former position of power plant supervisor, and that the reinstatement be made retroactive to September 3, 1992, the date on which Moyer's demotion had taken practical effect. It was further ordered that Moyer receive the difference in pay between the positions of incinerator operator and power plant supervisor from the date of his wrongful demotion to the date of his actual reinstatement.

Despite the SPBR's August 24, 1993 reinstatement order, the county refused to reinstate Moyer to the power plant supervisor position. Consequently, on October 20, 1993, Moyer filed a complaint for a writ of mandamus wherein he sought to have the trial court (1) reinstate him to his position as power plant supervisor, (2) issue a writ of mandamus directing the county to comply with the SPBR's order (requiring the county to reinstate him to the position of power plant supervisor), and (3) award him reasonable attorney fees. In its answer, the county averred that Moyer had not been reinstated to the power plant supervisor position because that job had been abolished on March 9, 1993. It further averred that the position of incinerator operator (to which Moyer had been previously demoted) was "the proper position of employment upon abolishment of the Power Plant Supervisor position." ³

On February 22, 1984, the county moved for summary judgment. In the memorandum in support of its motion, the county acknowledged that it owed Moyer the difference in pay between the positions of incinerator operator and power plant supervisor from September 3, 1992, the date of the wrongful demotion, to March 9, 1993, the date the power plant supervisor position was abolished. However, it insisted that Moyer was not entitled to the writ of mandamus because (1) Moyer had no clear legal right to the power plant supervisor position since it no longer existed, (2) the county had no clear legal duty to reinstate Moyer to the power plant supervisor position since that position had been abolished, and (3) Moyer had forgone a plain and adequate remedy in the ordinary course of law, namely, an appeal of the abolishment of the power plant supervisor position to the SPBR.

On April 8, 1994, the trial court granted the county's motion for summary judgment. After noting that the power plant supervisor position had been abolished and that the county had conceded that it owed Moyer the difference in pay between the positions of incinerator operator and power plant supervisor from the date of the disaffirmed demotion to the date of the job abolishment, the court determined that "Moyer [was] seek[ing] a writ of Mandamus ordering the County to reestablish the Power Plant Supervisor position and to place him in that post." The court proceeded to rule that a writ of mandamus was unavailable to Moyer since he had a clear and adequate remedy at law, i.e., an appeal of the abolishment of the power plant supervisor position to the SPBR pursuant to R.C. 124.03(A).

Moyer filed a motion for reconsideration which was denied. He then filed a timely appeal with this court.

After listening to the parties' oral arguments, and reading and considering the arguments raised in their appellate briefs, this court decided that it was necessary to afford the parties an opportunity to file supplemental briefs on the following issues:

"Assuming arguendo that a R.C. 124.03 appeal does not provide Moyer with a plain and adequate remedy at law:

"1. Is the March 9, 1993, job abolishment valid so as to preclude: (a) Moyer from having a clear legal right to reinstatement to the power plant supervisor position as called for by the SPBR's August 24, 1993, order or (b) the county from having a clear legal duty to reinstate Moyer as called for by the SPBR order?

"2. If we find as a matter of law, that the job abolishment is invalid, is there any reason why this court should not grant summary judgment to Moyer pursuant to such decisions as State ex rel. Lowery v. Cleveland (1993), 67 Ohio St.3d 126 ; State ex rel. Cuyahoga Cty. Hosp. v. Bur. of Workers' Comp. (1986), 27 Ohio St.3d 25, 28 [27 OBR 442, 444, 500 N.E.2d 1370, 1373]; and State ex rel. Houk v. Ross (1973), 34 Ohio St.2d 77 [63 O.O.2d 119, 296 N.E.2d 266], paragraph one of the syllabus?"

The county filed its supplemental brief on February 3, 1995, and Moyer responded with his supplemental brief ten days later. This matter is now ready for decision.

In his sole assignment of error, Moyer argues:

"The trial court erred to [his] prejudice in granting summary judgment to [the county] when such relief was contrary to law."

Civ.R. 56(C) provides, in pertinent part, that:

"Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. * * * A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor."

Moyer's single assignment of error consists of three parts. We shall discuss each in turn.

In the first part of his assignment of error, Moyer contends that R.C. 124.03(A) did not provide him with a plain and adequate remedy at law and that he was not obliged to file such an appeal in lieu of mandamus relief. For the reasons which follow--which are different from the ones cited by Moyer--we agree with this contention.

"It is well-settled that in order to obtain a writ of mandamus a relator must show that he has a clear legal right to the relief requested, that respondent has a clear legal duty to perform the requested act, and that there is no adequate remedy at law." State ex rel. Cartmell v. Dorrian (1984), 11 Ohio St.3d 177, 179, 11 OBR 491, 492-493, 464 N.E.2d 556, 559 ("Cartmell II "), citing State ex rel. Westchester v. Bacon (1980), 61 Ohio St.2d 42, 15 O.O.3d 53, 399 N.E.2d 81, paragraph one of the syllabus. "It is [also] firmly established that the writ of mandamus will not issue ' * * * where the relator has or had available a clear, plain and adequate remedy in the ordinary course of the law.' " (Emphasis added.) State ex rel. Berger v. McMonagle (1983), 6 Ohio St.3d 28, 30, 6 OBR 50, 51-52, 451 N.E.2d 225, 227, quoting State ex rel. Sibarco Corp. v. Berea (1966), 7 Ohio St.2d 85, 88, 36 O.O.2d 75, 77-78, 218 N.E.2d 428, 430. The question of whether a relator has an adequate remedy at law must, of course, be answered in relation to the wrong which the relator seeks to have redressed.

In this case, the trial court found that Moyer was seeking a writ of mandamus ordering the county to reestablish the power plant supervisor position. However, a careful reading of Moyer's mandamus complaint plainly demonstrates that Moyer was actually seeking to have the trial court direct the county to comply with an order issued by the SPBR which mandated his reinstatement with back pay to the power...