State ex rel. Pell v. City of Westlake

• Decision Date: 30 December 1980
• Docket Number: No. 80-487,80-487
• Citation: 415 N.E.2d 289,64 Ohio St.2d 360
• Parties: , 18 O.O.3d 514 The STATE ex rel. PELL, Appellant, v. CITY OF WESTLAKE et al., Appellees.
• Court: Ohio Supreme Court

Page 360

64 Ohio St.2d 360

415 N.E.2d 289, 18 O.O.3d 514

The STATE ex rel. PELL, Appellant, v. CITY OF WESTLAKE et al., Appellees.

No. 80-487.

Supreme Court of Ohio.

Dec. 30, 1980.

Dennis F. Butler and John P. Butler, Cleveland, for appellant.

Bernard J. Niehaus, Director of Law, Cleveland, for appellees.

PER CURIAM.

The threshold question is whether appellant is the sole person eligible for the promotion to the position of sergeant. We begin the analysis by recognizing that the charter of a city, as approved by the residents of that city, represents the framework within which the city government must operate. Cleveland ex rel. Neelon v. Locher (1971), 25 Ohio St.2d 49, 266 N.E.2d 831.

In this case, Section 12(d) of Article IV of the Charter of Westlake ² requires the civil service commission to act in accordance with the "general law" of this state, where that general law does not conflict with the charter itself. The relevant general law here is R.C. 124.44, ³ which, in the case of a promotion, orders a civil service commission to certify to the appointing authority the person with the highest score on the qualifying examination. Furthermore, the provisions of this section have been specifically adopted by the Westlake Civil Service Commission in Section 1 of its own Rule XVIII. ⁴ Although the charter and the commission's rule are in direct conflict with Westlake's Ordinance No. 137.06, ⁵ which instructs the commission to certify the three highest individuals on the qualification list, the provisions of the charter must prevail over the ordinance, as indicated above. Thus, the appellant in this case is clearly entitled to be certified to his appointing authority as being entitled to the next vacancy which occurs in the position of sergeant, and the commission is under a legal duty to so certify the appellant to the respondent-mayor.

We turn to the next question, namely, whether there is presently a "vacancy" in the grade of sergeant in the Westlake Police Department. Westlake Ordinance No. 137.01 provides for the table of organization for the police department and includes four sergeants. It is undisputed that there are presently only three sergeants on the Westlake Police force.

State ex rel. Finn v. Garfield Heights, supra, 34 Ohio St.2d 5, 295 N.E.2d 197, instructs that a "vacancy" entitling a person to a promotion to a higher grade in a municipal police or fire department does not exist, in the context of a right to a writ of mandamus to compel the promotion, unless the city council has appropriated money sufficient to fund the promotion. ⁶

Historically, as here, city councils adopt appropriations for salaries for police departments by a single line item with one lump sum figure. Such an appropriation ordinance does not contain a specifically earmarked sum for any specific number of policemen or any specific number of officers, or any specific breakdown as to the allocation of the officers' rank or any other designated purpose. However, the Court of Appeals adopted the argument of the city, which is that absent a specific express appropriation by council to fund the particular promotion, mandamus is not available. We reject that position. To place such a burden on an individual police officer, otherwise eligible for promotion, would constitute a pro tanto repeal of the constitutional mandate that promotions in the civil service shall be according to merit and fitness. Section 10 of Article XV of the Constitution of Ohio.

Likewise, we reject the proposition that the budget request papers of the administration (relator's Exhibit No. 4) are controlling on the issue of the availability of funds for the particular promotion in dispute. The amount appropriated for police salaries is on its face sufficient to fund the appellant's promotion. (See fn. 1.) To deny mandamus because of administration testimony that its budget request did not contemplate this particular promotion would allow a mayor to avoid any personally obnoxious, but otherwise meritorious and fit, promotion as objectively determined by competitive examination.

In sum, finding (1) that there exists a vacancy in the position of sergeant in the Westlake Police Department, and (2) that appellant is the sole person eligible for promotion to that position, and (3) that the city's allegation of an inadequate appropriation is unsupported, we hold that appellant has demonstrated that he is entitled to the promotion and that the mayor has a clear legal duty to order the appointment of appellant to the rank of sergeant. ⁷ No legal remedy exists which would prove to be adequate to enforce this duty other than the present action. Appellant has established the prerequisites to maintain an action for a writ of mandamus. State ex rel. Brown v. Cleveland (1979), 58 Ohio St.2d 232, 233, 392 N.E.2d 1260; State ex rel. Clark v. Krause (1977), 52 Ohio St.2d 201, 203, 371 N.E.2d 533.

We reverse the judgment of the Court of Appeals and order that the writ be allowed.

Judgment reversed and writ allowed.

PAUL W. BROWN, SWEENEY, LOCHER and DOWD, JJ., concur.

CELEBREZZE, C. J., WILLIAM B. BROWN and HOLMES, JJ., dissent.

WILLIAM B. BROWN, Justice, dissenting.

In my judgment, the threshold question is whether there was a vacancy for the position of sergeant in fiscal year 1979. Because I believe that the instant cause is governed by State ex rel. Finn v. Garfield Heights (1973), 34 Ohio St.2d 5, 295 N.E.2d 197, and because it is of no consequence that the sergeant's position was already in existence, I would find that council did not appropriate the funds for appellant's promotion. Therefore, there was no vacancy.

CELEBREZZE, C. J., and HOLMES, J., concur in the foregoing dissenting opinion.

1 The evidence consists of a stipulation of fact and the depositions of the mayor, the police chief and the finance director for the city of Westlake. In 1978, the police chief submitted a budget request for the police department for the year 1979. The finance director testified that the police chief miscalculated; that the chief should have submitted a report for salaries of $602,538.66, based upon the existing composition of the...