State ex rel. Myers v. Chiaramonte, 75-756

• Decision Date: 19 May 1976
• Docket Number: No. 75-756,75-756
• Citation: 46 Ohio St.2d 230,348 N.E.2d 323
• Parties: , 75 O.O.2d 283 The STATE ex rel. MYERS et al., Appellees, v. CHIARAMONTE, Superintendent, Ohio State Highway Patrol, et al., Appellants.
• Court: Ohio Supreme Court

Page 230

46 Ohio St.2d 230

348 N.E.2d 323, 75 O.O.2d 283

The STATE ex rel. MYERS et al., Appellees, v. CHIARAMONTE, Superintendent, Ohio State Highway Patrol, et al., Appellants.

No. 75-756.

Supreme Court of Ohio.

May 19, 1976.

Syllabus by the Court

1. Where there is no manifest legislative intent that a general provision of the Revised Code prevail over a special provision, the special provision takes precedence.

2. R.C. 5503.03 confers upon the Superintendent of the Ohio State Highway Patrol the duty to divide the state into districts, and the right to transfer members of the patrol from one district to another.

3. On an appeal as a matter of right from a judgment of a Court of Appeals in a mandamus action, the Supreme Court will review the judgment of the Court of Appeals, as if the action had been filed originally in the Supreme Court, to determine whether the respondent is under a clear legal duty to perform an official act. (State, ex rel. Pressley, v. Indus. Comm., 11 Ohio St.2d 141, 228 N.E.2d 631, approved and followed.)

Appellees, Donnard Myers and Daniel Aleshire, are members of the Ohio State Highway Patrol. Appellants are the Superintendent of the Ohio State Highway Patrol, the Director of Administrative Services for the State of Ohio, and the Director of the Ohio Department of Highway Safety.

On Friday, September 20, 1974, appellees were summoned to appear at District Six Headquarters of the Ohio State Highway Patrol, at which time they were verbally informed that, effective Monday, September 23, 1974, they were being permanently transferred from their assignment at the Granville Highway Patrol Post to other parts of the state. Appellees complain that they were not given an opportunity to contest the impending transfers.

On December 9, 1974, appellees filed an action in mandamus in the Court of Appeals for Franklin County protesting their transfers. The relief sought by appellees was: (1) An order returning them to their original duty post; and (2) an order directing the appellant Superintendent of the Ohio State Highway Patrol to give written notice of request to transfer and permit the Director of Administrative Services to either approve or disapprove such request or, in lieu thereof, to provide them with a written statement of charges and proceed to hearing if such transfer is viewed as a penalty. In addition, appellees sought monetary damages and costs.

On January 6, 1975, appellants filed a motion to dismiss the action. On February 4, 1975, the Court of Appeals, in a written decision, overruled the motion. In so doing, the court held it was without jurisdiction to determine either the issue of whether the transfers should have been made, or the claim for pecuniary relief, and, accordingly, set the cause for resolution solely upon the question of the applicability of R.C. 124.33 to the permanent transfer of officers of the Ohio State Highway Patrol.

On February 14, 1975, appellants filed their answer to appellees' complaint for a writ of mandamus in which they denied, inter alia, the allegation that the transfer of appellees was a penalty.

Oral argument was held on June 3, 1975, and, on July 8, 1975, the Court of Appeals rendered its decision granting appellees the requested writ of mandamus. Judgment was entered accordingly on August 4, 1975.

On August 7, 1975, appellants filed a notice of appeal in the Court of Appeals, which notice of appeal was subsequently filed in this court on August 18, 1975.

Also, on August 7, 1975, appellants filed a motion for stay of execution in the Court of Appeals pending decision in this court, and, on August 25, 1975, the Court of Appeals denied the motion.

On September 3, 1975, appellants filed a motion for stay of execution in this court, which motion was granted on October 8, 1975.

The cause is now before this court upon appeal as of right.

Tyack, Scott & Colley and Robert W. Suhr, Columbus, for appellees.

William J. Brown, Atty. Gen., Joseph E. Scuro, Jr., George Lord and Rodney B. Teague, Columbus, for appellants.

CELEBREZZE, Justice.

The primary issue presented by this appeal is whether the provisions of R.C. 124.33 apply to permanent transfers of members of the Ohio State Highway Patrol from one district to another.

At first glance, that issue appears capable of resolution in a relatively straightforward and uncomplicated manner.

R.C. 124.33 is a part of Ohio's Civil Service Act set forth in Chapter 124 of the Revised Code. In this regard, R.C. 124.01 defines, inter alia, the following terms:

'(A) 'Civil service' includes all offices and positions of trust or employment in the service of the state * * *.

'(B) 'State service' includes all such offices and positions in the service of the state* * *.

'(C) 'Classified service' means the competitive classified civil service of the state * * *.

'(D) 'Appointing authority' means the officer, commission, board, or body having the power of appointment to, or removal from, positions in any office, department, commission, board or institution.

'* * *

'(F) 'Employee' means any person holding a position subject to appointment, removal, promotion, or reduction by an appointing officer.

'* * *.'

Pursuant to the provisions of R.C. 124.01, the operation of the state highway patrol, manned by state employees, appears to be subject to the civil service laws of this state, including the provisions of R.C. 124.33.

In the Court of Appeals, the parties stipulated ^* that appellees 'hold positions in the classified service of the state of Ohio.' The Court of Appeals, relying in part upon this stipulation, and in part upon R.C. 124.01 and 124.11, held that appellees were classified civil service employees. R.C. 124.11 divides the civil service of the state into the unclassified service and the classified service. R.C. 124.11(A) enumerates the positions which are in the unclassified service, while R.C. 124.11(B) provides that '(t)he classified service shall comprise all persons in the employ of the state * * * not specifically included in the unclassified service * * *.'

R.C. 124.33 provides, in pertinent part:

'An employee holding a position in the classified service of the state may be temporarily transferred from his original position to a similar position, for a period not to exceed thirty days, or for a longer period not to exceed ninety days if agreed to by the employee and employer.

'* * *

'Any employee who is temporarily transferred from his original position to a similar position in excess of twenty miles from his place of residence shall be reimbursed, by the appointing authority requesting the transfer, for all actual and necessary expenses incurred during such temporary transfer.

'An appointing authority may, with the approval of the director of administrative services, permantly transfer an employee in the classified service of the state from his original position to a similar position in another office, department, or institution. For purposes of this section, a permanent transfer is any transfer in excess of thirty days unless the employee and the employer agree to a longer period not to exceed ninety days. The appointing authority requesting the permanent transfer shall notify the employee and the director in writing of the request to transfer. If the director determines that the transfer is not necessary for the efficient operation of the office, department, or institution, he shall not approve the transfer and shall notify the appointing authority and the employee in writing that the transfer is not approved. If he finds that the transfer is necessary for the efficient operation of the office, department, or institution, he shall notify the appointing authority and the employee involved in the request for transfer, in writing, that the transfer is approved, including in such notification a statement whether the transfer will require a permanent change of residence for the employee.

'* * * 'If the employee does not wish to be transferred or he feels that the director's decision regarding the need for a permanent change of residence has been unfair, he may within ten days after receipt of such notice appeal the transfer to the state personnel board of review, but pending determination of such appeal shall not refuse such transfer.

'In such an appeal the appointing authority of the office, department, or institution receiving the employee shall be required to show that the permanent transfer is necessary for the efficient operation of the office, department, or institution. If the state personnel board of review finds that the transfer is necessary for the efficient operation of the office, department, or institution, and the employee is transferred, the appointing authority of the office, department, or institution receiving the employee shall reimburse such employee for the actual and necessary expenses of moving to his new location and shall pay the employee a per diem allowance not to exceed thirty days for living expenses until his residence can be moved to the new location.

'If the state personnel board of review finds that the transfer is not necessary for the efficient operation of the office, department, or institution, and if the employee has moved to the new location pending his appeal, the appointing authority of the receiving office, department, or institution shall pay the actual and necessary expenses of the employee of moving to the new location and actual and necessary expenses for returning the employee to his previous location.'

Salaries of state highway patrol personnel are established by R.C. 124.14 and 124.15.

Appellants have continuously maintained that R.C. Chapter 5503, which provides for the establishment of the state highway patrol and for the appointment and duties of the members therof, controls disposition of the instant appeal.

R.C. 5503.01 provides, in pertinent part:

'The superintendent, with the approval of the director may...