State ex rel. Paluf v. Feneli

• Decision Date: 27 April 1994
• Docket Number: No. 93-279,93-279
• Parties: The STATE ex rel. PALUF et al., Appellees, v. FENELI, Appellant.
• Court: Ohio Supreme Court

Page 138

69 Ohio St.3d 138

630 N.E.2d 708

The STATE ex rel. PALUF et al., Appellees, v. FENELI, Appellant.

No. 93-279.

Supreme Court of Ohio.

Submitted Feb. 22, 1994.

Decided April 27, 1994.

Dale C. Feneli, respondent-appellant, appeals from a judgment entered by the Court of Appeals for Cuyahoga County in favor of Timothy G. Paluf and Virginia Swanson, Mayor of Highland Heights, Ohio, relators-appellees. The court of appeals granted a writ of quo warranto based upon its determination that Feneli unlawfully held and exercised the position of city law director and that Paluf was entitled to that office.

Appellant filed a complaint for a writ of quo warranto which challenged the Highland Heights City Council's refusal to confirm Swanson's appointment of Paluf to the position of city law director as well as the city council's enactment of an ordinance appointing Feneli to that position. The complaint, as subsequently amended, also requested the issuance of a writ of mandamus directing the city council to confirm Paluf as law director. Appellant and the city council members filed an answer denying that appellees were entitled to the requested extraordinary relief.

The parties subsequently filed cross-motions for summary judgment, and the evidence adduced the following, pertinent facts. On October 18, 1966, the city of Highland Heights adopted a charter. The charter provides for a mayor-council form of municipal government with its general powers divided between the mayor and the city council. Section 5.05, Article V of the charter provides that the mayor is the executive head of the city. The mayor is responsible to the electors for the operation of all departments or divisions and possesses the general power to "appoint, promote, transfer, reduce or remove any officer or employee" of the municipality. Id. Section 5.05, Article V of the charter further provides that "[i]n the event of a vacancy occurring in a position subject to the appointment power of the Mayor, the Mayor must exercise such appointment power within thirty (30) days from the date on which the Mayor receives official notification of the vacancy or within thirty (30) days after refusal of confirmation by City Council; otherwise, Council may fill the vacancy by majority vote."

The director of law position is governed by Section 6.02, Article VI of the charter:

"The Director of Law shall be the head of the Law Department. He shall be provided a Prosecutor and such assistants and special counsel as the City Council may from time-to-time deem necessary and desirable. The Law Director, Prosecutor and any such assistants shall be appointed by the Mayor, subject to confirmation by four (4) members of Council and shall thereafter serve at the pleasure of the Mayor. Every second year, commencing in the year 1976, the Mayor shall either reappoint the Director of Law or make a new appointment, each of which shall be subject to confirmation by a majority vote of the members of Council. * * * The Director of Law * * * shall perform such other duties consistent with the office as the Mayor or the Council may request. No person shall act as Director of Law unless duly admitted to practice law in the State of Ohio." (Emphasis added.)

On February 18, 1991, Highland Heights City Council Resolution No. 24-1991 became effective. It established terms, conditions, and compensation for the law director position. Section 8 of the ordinance provided:

"The terms and conditions of this Resolution shall be effective until December 31, 1991 or until the appointment of a successor Law Director. However, either party may terminate this agreement by providing to the other thirty (30) days written notice of such intent to terminate."

On December 10, 1991, the city council enacted Codified Ordinance No. 41-1991. Section 115.08(k) of the ordinance specifies that any appointee's name must be submitted to the clerk of the city council at least ten days prior to the meeting at which the appointment is to be considered.

Both Feneli and Paluf have been duly admitted to practice law in Ohio. Feneli was admitted to practice law in 1975 and worked as an assistant law director for the cities of University Heights and Olmsted Falls, Ohio, from 1976 until 1980. Paluf was admitted to the practice of law in 1978, and from 1978 to 1985, he assisted Thomas G. Longo, who served as the assistant law director for the cities of Solon and Bedford, Ohio. In that capacity, Paluf drafted legislation and revised a city charter. Paluf also researched zoning issues and served as acting prosecutor in the Bedford Municipal Court. Since 1985, Paluf has been engaged in private practice in the areas of personal injury, workers' compensation, probate, domestic relations, and criminal defense. Additionally, he has served almost four years as a member of the Highland Heights Civil Service Commission, with one and a half of those years as chairman. He described his municipal law experience as neither a "major amount" nor a "very little amount."

In 1980, Feneli was appointed law director by the former mayor of Highland Heights. When Swanson was elected mayor in 1987, she reappointed Feneli and subsequently reappointed him for another two-year term in 1989. In late December 1991, Swanson informally notified Feneli that he would not be reappointed city law director. By letter dated January 2, 1992, Swanson formally notified Feneli that she was terminating him from his city law director position pursuant to Highland Heights Resolution No. 24-1991, Section 8. The letter stated that Feneli would continue as law director for thirty additional days. On January 7, 1992, Swanson formally appointed Paluf as law director. Paluf contacted some city council members and met with three of them at a local restaurant. On January 14, 1992, the city council refused to confirm Paluf. A January 17, 1992 letter from Swanson to Feneli reiterated that his last date as law director would be February 2, 1992.

On February 4, 1992, Swanson again appointed Paluf as city law director. In a letter dated February 7, 1992 from Brent E. Lawler, the city council president, to Paluf, Lawler requested Paluf's attendance at a February 11, 1992 council meeting to interview him for the city law director position. Following the interview, the city council passed Codified Ordinance No. 14-1992, which specified that a vacancy in the law director position existed on December 31, 1991 and that Swanson's second "attempted" appointment of Paluf on February 4, 1992 was void. The city council appointed Feneli as law director pursuant to Section 5.05, Article V of the city charter. Swanson vetoed the ordinance on February 20, 1992, but the city council overrode the veto on March 10, 1992. One of the asserted grounds for council's refusal to confirm either appointment of Paluf was his "lack of experience."

The court of appeals granted Paluf's motion for summary judgment and issued a writ of quo warranto in his favor establishing his entitlement to the Highland Heights law director position. Other issues raised by the parties, including appellees' mandamus action and the applicability of discretionary standards, were determined to be moot because of the court's ruling.

This cause is before the court upon an appeal as of right.

Philip J. Korey, Cleveland, for appellees.

Louis H. Orkin and Judith Carlin, Beachwood, for appellant.

PER CURIAM.

Appellant in his first proposition of law asserts that the court of appeals erred in granting the writ of quo warranto to Paluf. In order for a writ of quo warranto to issue, a relator must establish (1) that the office is being unlawfully held and exercised by respondent, and (2) that relator is entitled to the office. State ex rel. Delph v. Barr (1989), 44 Ohio St.3d 77, 541 N.E.2d 59, syllabus; State ex rel. Randles v. Hill (1993), 66 Ohio St.3d 32, 34, 607 N.E.2d 458, 460.

The court of appeals determined that the Highland Heights Charter provided that the selection of a law director was an executive act vested in the mayor, subject to confirmation by the city council only to assure compliance with the sole qualification specified in the charter, i.e., that the law director be admitted to practice law in Ohio. The court of appeals based its determination upon State ex rel. Halak v. Skorepa (1983), 6 Ohio St.3d 97, 6 OBR 135, 451 N.E.2d 777, State ex rel. Corrigan v. Noble (1986), 26 Ohio St.3d 84, 26 OBR 72, 497 N.E.2d 84, and Cuyahoga Falls v. Robart (1991), 58 Ohio St.3d 1, 567 N.E.2d 987, as well as the interpretative maxim expressio unius est exclusio alterius. Appellant contends that the foregoing authorities are inapplicable and that the lower court's interpretation contravenes the intent of the city charter as well as the separation of powers doctrine.

Municipalities, pursuant to the powers granted by Section 3, Article XVIII of the Ohio Constitution (the Home Rule Amendment), " 'have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.' " Geauga Cty. Bd. of Commrs. v. Munn Rd. Sand & Gravel (1993), 67 Ohio St.3d 579, 582, 621 N.E.2d 696, 699. The phrase "not in conflict with general laws" does not modify the "powers of local self-government" language of the Constitution; therefore, Section 3, Article XVIII of the Ohio Constitution empowers municipalities to enact requirements for employees which differ from those set forth within the Revised Code. See, e.g., Fenton v. Enaharo (1987), 31 Ohio St.3d 69, 70-71, 31 OBR 183, 184, 509 N.E.2d 67, 68-69.

This case involves the interpretation of the Highland Heights Charter. In interpreting a charter, the following principles should be emphasized:

"The provisions of a home rule charter derive their authority from the Ohio Constitution itself, which is the source and, together with the Constitution of...