State ex rel. Ohio Civil Service Employees Association v. Nancy K. Randolph Case

• Decision Date: 09 November 1982
• Docket Number: CA 6037,82-LW-4352
• Parties: STATE EX REL. OHIO CIVIL SERVICE EMPLOYEES ASSOCIATION, ET AL. Relators v. NANCY K. RANDOLPH, ET AL. Respondents CASE
• Court: Ohio Court of Appeals

STATE EX REL. OHIO CIVIL SERVICE EMPLOYEES ASSOCIATION, ET AL. Relators v. NANCY K. RANDOLPH, ET AL. Respondents

No. CA 6037.

82-LW-4352 (2nd)

Court of Appeals of Ohio, Second District Montgomery

November 9, 1982

LEE C FALKE, Prosecuting Attorney, BARBARA GORMAN and WILLIAM H WOLFF, SR., Assistant Prosecuting Attorneys, Suite 300, 41 N Perry Street, Dayton, Ohio 45402 Attorneys for Respondents.

JONATHAN DOWNES, Attorney at Law, Ohio Department of Administrative Services, 30 East Broad Street, 28th Floor, Columbus, Ohio 43215 Attorney for Respondent.

ROBERT W. SAUTER, Attorney at Law, 225 East Broad Street, Columbus, Ohio 43215 Attorney for Relators.

DAVID H. BEAVER, Assistant Attorney General, 30 East Broad Street, 16th Floor, Columbus, Ohio 43215 Attorney for Respondents.

OPINION

WILSON J.

Relators, Ohio Civil Service Employees Association and fifteen named individuals seek a Writ of Mandamus to compel Respondents, the Montgomery County Commissioners and the Director of the Montgomery County Welfare Department, to request that the Respondent, Director of the Ohio Department of Administrative Services conduct competitive promotional examinations for vacant positions within the classified civil service at the Montgomery County Welfare Department. The relators, additionally seek a Writ of Mandamus to compel the Director of the Ohio Department of Administrative Services to conduct said promotional examinations.

Having survived a motion to dismiss, the Relators cause is now before us on its merits. Most of the relevant facts have been stipulated.

The Ohio Civil Service Employees Association is "a not for profit" Ohio Corporation, with its members consisting of Civil Service Employees, and the individual relators herein. Said individuals are, and have been at all relevant times®1¯ permanent civil service employees within the classified service of the Montgomery County Welfare Department, and with the exception of Janice Reynolds, have been certified employees since January 4, 1976.®2¯

Footnote 1 Kathy Brogan, Doris Getzinger, Ruty Wysor, Susan Harowski, Sally Brewer, Marcell Dezarn and Janice Reynolds are no longer employed by the Montgomery County Welfare Department.

Footnote 2 Janice Reynolds has been certified since August 30, 1976.

As members of a class of permanent certified civil service employees, the individual relators, are entitled to hold their positions and be promoted on the basis of merit, efficiency, character conduct and seniority, free from favoritism or preference, as mandated by Chapter 124 of the Ohio Rev. Code, and Article XV, Section 10 of the Ohio Constitution.

Since January 4, 1976 numerous vacancies have existed in the classified service at said Welfare Department, including but not limited to the following positions: Income Maintenance Aid; Income Maintenance Worker; Clerical Supervisor; Clerical Specialist, Social Service Worker; Stenographer; Typist; Training Officer; Clerk; Social Program Administrator; Family Service Supervisor, Income Maintenance Supervisor; Office Manager; Data Entry Operator; Data Processor; Account Clerk; Office Machine Operator; Volunteer Service Coordinator; Investigator; Social Service Aid; County Welfare Administrator; Business Administrator; Management Analyst; Personnel Officer; Conract Evaluation Negotiator; Secretary; and Accountant.

Since January 4, 1976, the individual relators have applied for one or more of the aforementioned vacancies, but neither they, nor any other permanent classified civil service employees at the Welfare Department, have been appointed to any such vacant positions by the County Commissioners®3¯ or the Director of the Welfare Department®4¯, as the "appointing authority," by selecting an appointee from an eligibility list developed as a result of a competitive promotional exam®5¯ conducted by the Director of the Department of Administrative Services®6¯.

Footnote 3 The Montgomery County Commissioners are the appointing authority for the individual relators and all the employees of the Montgomery County Welfare Department, including the Director. At the time the within cause commenced the Commissioners were Ray Wolfe, Oscar Page and Paula J. MacIllwaine. The current Board consists of Paula J. MacIllwaine, Charles Horn and E. George Ferguson.

Footnote 4 Nancy K. Randolph, the Director of the Montgomery County Welfare Department when suit was filed herein, has been succeeded in office by Mary Hanes.

Footnote 5 A competitive promotional exam is a test that is open only to persons employed in the state civil service system, in specified classifications, and who qualify for the examination by meeting the minimum qualifications for the classification tested. The exam determines eligibility for promotion to a higher classification, and is only applicable to individuals within the specified department for which the examination is being given. R.C. 124.31; AC. 123: 1-47-01(A)(38).

Footnote 6 So. also, Richard K. Jackson the Director of the Ohio Department of Administrative Services has been succeeded by William D. Kelp. Chapter 124 of the Ohio Revised Code mandates that said Director shall prepare, conduct and grade all Civil Service examinations for positions in the classified service; prepare eligibility lists containing the names of individuals qualified for appointment to said positions; certify the individuals chosen by the appointing authority from the appropriate eligibility lists; prescribe, amend and enforce Administrative Rules implementing the powers, duties and functions thereby vested.

During said period, no competitive promotional examinations have been conducted by the Director of Administrative Services to fill any vacant positions at the Welfare Department, nor has said Director received any request by the "appointing authority" to conduct a competitive promotional exam.

As to the filling of vacant positions within the Montgomery County Welfare Department, respondents give first preference to the use of R.C. 124.26(B)®7¯ to certify provisional employees®8¯: second preference is the implementation of R.C. 124.26(C) to effect an appointment, usually by promotion, to a vacant position; and the third preference is the use of an eligibility list developed from an "open-competitive examination®9¯ pursuant to R.C. 124.26(A), except where a certified employee can carry certification to a vacant position through an internal posting procedure®10¯.

Footnote 7 R.C. 124.26 provides in pertinent part:

(A) Except as provided in divisions (B) and (C) of this section, from the returns of the examinations the director of administrative services shall prepare an eligible list of the persons whose general average standing upon examinations for such grade or class is not less than the minimum fixed by the rules of the director, and who are otherwise eligible; and such persons shall take rank upon the eligible list as candidates in the order of their relative excellence as determined by the examination without reference to priority of the time of examination. In the event two or more applicants receive the same mark in an open competitive examination, priority in the time of filing the application with the director shall determine the order in which their names shall be placed on the eligible list; provided, that applicants eligible for veteran's preference under section 124.23 of the Revised Code shall receive priority in rank on the eligible list over nonveterans on the list with a rating equal to that of the veteran. Ties among veterans shall be determined by priority of filing the application. In the event of two or more applicants receiving the same mark on a promotional examination, seniority shall determine the order in which their names shall be placed on the eligible list. The term of eligibility of each list shall be fixed by the director at not less than one nor more than two years. When an eligible list is reduced to three names or less, a new list may be prepared. The director may consolidate two or more eligible lists of the same kind by the rearranging of eligibles names therein, according to their grades.

(B) A person serving as a provisional employee who completes at least six months of service or his probationary period, whichever is longer, and passes an examination for the class or grade in which he holds his position shall be appointed as a permanent employee in the position before the director of administrative services prepares an eligible list.

(C) A permanent, certified employee who passes an examination for a grade or class in which a position is vacant shall be appointed to the position before the director of administrative services prepares an eligible list. If more than one permanent, certified employee passes the examination for the vacant position, the director shall prepare an eligible list consisting only of permanent, certified employees who have received a mark on the examination of not less than the minimum fixed by the director, in the same manner as provided under division (A) of this section. No permanent, certified employee shall, under this division, be appointed to a vacant position or placed on an eligible list for a vacant position in any department, office, or other governmental unit that is not the unit in which he was serving at the time of the examination.

Footnote 8 R.C. 124.30 discusses provisional employment. It states in pertinent part:

Positions in the classified service may be filled without competition as follows:

(A) Whenever there are urgent reasons for filling a vacancy in any position in the classified service and the director of administrative services is unable to certify to the appointing authority, upon requisition by the latter, a list of persons

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