State ex rel. Northern Ohio Patrolmen's Benev. Ass'n v. Wayne County Sheriff's Dept.

• Decision Date: 09 April 1986
• Docket Number: No. 2114,2114
• Parties: , 27 O.B.R. 213 NORTHERN OHIO PATROLMEN'S BENEVOLENT ASSOCIATION et al., v. WAYNE COUNTY SHERIFF'S DEPARTMENT et al.
• Court: Ohio Court of Appeals

Page 175

27 Ohio App.3d 175

500 N.E.2d 404, 27 O.B.R. 213

[The STATE, ex rel.] NORTHERN OHIO PATROLMEN'S BENEVOLENT ASSOCIATION et al., v. WAYNE COUNTY SHERIFF'S DEPARTMENT et al.

No. 2114.

Court of Appeals of Ohio, Ninth District, Wayne County.

April 9, 1986.

Syllabus by the Court

1. Although an employee in the classified civil service whose suspension has been disaffirmed by the State Personnel Board of Review may maintain an action in mandamus to recover compensation due him for the period during which he was wrongfully excluded from his employment, the employer, in response to the complaint for a writ of mandamus, may raise the affirmative defense that the board abused its discretion in disaffirming the suspension. Thus the court may decline to issue the requested writ when it finds that the employer has no clear legal duty to comply with the board's order of disaffirmance, either because the board's decision is contrary to law or because there is no evidence in the record to support the board's decision.

2. A deputy sheriff in the classified civil service may not, in his capacity as director of the local patrolmen's association, issue a press release endorsing one candidate for public office over another, for such conduct falls within the ambit of partisan political activity proscribed by R.C. 124.57.

Paul S. Lefkowitz, Cleveland, for relators.

John S. Jones, Columbus, for respondents.

MAHONEY, Presiding Judge.

Relators, Northern Ohio Patrolmen's Benevolent Association ("NOPBA") and Wayne County Deputy Sheriff Charles Hardman, seek a writ of mandamus ordering respondents, Wayne County Sheriff's Department and Sheriff Loran Alexander, to comply with the April 16, 1985 order of the State Personnel Board of Review disaffirming Hardman's ten-day suspension without pay from the sheriff's department. We deny the writ.

Charles Hardman, in addition to working as a deputy sheriff in the Wayne County Sheriff's Department, serves as a director of the NOPBA. On October 16, 1984, the NOPBA sponsored a "Meet the Candidates Night" for its members. Local candidates, whose party affiliations had been identified in notices of the meeting, addressed the membership. Following the candidates' presentations, the membership voted to endorse one candidate for each office. Specifically, the NOPBA voted unanimously to endorse incumbent Sheriff Alexander's challenger. The NOPBA then issued a press release announcing the endorsements. Hardman signed the release in his capacity as director of the NOPBA. The Akron Beacon Journal published the endorsement on October 26, 1984.

On December 31, 1984, Sheriff Alexander suspended Hardman for ten days without pay for engaging in political activity proscribed by R.C. 124.57, Ohio Adm.Code 123:1-46-02 and Section 7.12 of the Wayne County Personnel Policy Manual.

Hardman appealed his suspension to the board of review. Following a hearing, an administrative law judge, on March 27, 1985, recommended that Hardman's suspension be affirmed. She concluded that Hardman's affixing his name to an endorsement of candidates for partisan political office was tantamount to the proscribed political activity of campaigning.

Upon review, the board of review rejected the administrative law judge's recommendation. In its opinion, dated April 16, 1985, the board reasoned that "[a]ppellant should not be punished for doing his job as director of the NOPBA [and that] [h]e did not do what was done as an individual." Accordingly, the board disaffirmed Hardman's suspension.

Hardman demanded that respondents comply with the order of the board. They refused, and relators commenced this action. The relators seek an order requiring respondents to comply with the board's order and to compensate Hardman for his lost wages.

Relators, in support of the request that a writ of mandamus be allowed, contend that the respondents have a clear legal duty to comply with the board's order to disaffirm Hardman's suspension and that the relators have no plain and adequate remedy in the ordinary course of the law.

The Ohio Supreme Court has held that a classified employee whose suspension has been disaffirmed by the board of review may unquestionably maintain an action in mandamus to recover compensation due him for the period during which he was wrongfully excluded from his employment. State, ex rel. Hamlin, v. Collins (1981), 65 Ohio St.2d 63, 418 N.E.2d 398 , modified on other grounds (1984), 9 Ohio St.3d 117, 459 N.E.2d 520. The employer, in response to the complaint for a writ of mandamus, may raise the affirmative defense that the board of review abused its discretion in disaffirming the suspension. State, ex rel. Ogan, v. Teater (1978), 54 Ohio St.2d 235, 375 N.E.2d 1233 , paragraph three of the syllabus. Thus, a court will decline to issue a writ where it finds that the employer has no clear legal duty to comply with a board of review order, either because the board's decision is contrary to law or because there is no evidence in the record to...