State ex rel. Polen v. Wymer, 73-197
| Decision Date | 24 October 1973 |
| Docket Number | No. 73-197,73-197 |
| Citation | 36 Ohio St.2d 24,302 N.E.2d 889 |
| Parties | , 65 O.O.2d 96 The STATE ex rel. POLEN, Appellant, v. WYMER, Appellee. |
| Court | Ohio Supreme Court |
Syllabus by the Court
Where a candidate is certified as having scored the highest grade in a promotional civil service examination that was not graded in full conformity with civil service law, and where it does not appear that the candidate so certified knew of or participated in the irregular grading, he will not be replaced by one bringing an action in quo warranto who failed to take affirmative action to prevent the certification and permanent appointment.
This is an action in quo warranto instituted in the Court of Appeals by a claimant for the position of assistant chief of the fire department of the city of Findlay, Ohio. Most of the facts are stipulated and not subject to dispute.
On May 20, 1971, the Civil Service Commission of Findlay, having been notified of a vacancy in one of the three positions of assistant fire chief, administered a competitive promotional civil service examination to relator, Polen, respondent, Wymer, and a third party. The highest scores in the test were achieved by:
Wymer Polen
Raw score on written exam 87% 87.0%
Seniority credit 10% 10.0%
Efficiency credit 10% 9.8%
----- ------
Total 107% 106.8%
Accordingly, on May 28, 1971, the commission certified the respondent to the acting Service Safety Director of the city as having attained the highest score on the examination. On June 14, 1971, respondent was notified by the acting director of his appointment to the position of assistant fire chief. The difference in efficiency credit was obviously the determinative factor in the grading.
Within five days after relator received notice of the examination grading, he appealed, pursuant to R.C. Section 143.341, to the Civil Service Commission, complaining of the illegal and improper use of the efficiency credits in computing the grades.
There is no assertion, direct or indirect, that respondent achieved his score by illegal means. In fact, it is stipulated that both relator and respondent took the examination in good faith. Both attempted to comply with the applicable parts of the statutes, and neither had prior knowledge of the procedures the commission used to compute the scores. That appeal, to which respondent was not a party, was denied on June 22, 1971. On July 2, 1971, relator appealed the ruling of the commission to the Court of Common Pleas, which rendered its decision on January 19, 1972. The court held that the efficiency credits had been improperly applied, and it directed the commission to recompute the grades for the examination solely upon the basis of the written examination and the seniority credits.
The new total resulted in a tie score. Relator claims that such a tie should result in his being certified. He cites as support the provision of R.C. 143.342 that: 'In the event two or more examinees receive the same grade, seniority in the fire department service shall determine the order of their names.' Since it is stipulated that relator began his service with the department on March 16, 1951, and that the respondent began his service on May 1, 1956, relator contends that he, not respondent, should have been certified. Even though the appointing authority was notified on March 13, 1972, that the recomputation of the grades resulted in a tie, it took no action to remove respondent from his position.
Meanwhile, respondent, whose appointment to the position of assistant fire chief became effective on June 10, 1971, completed his probationary period; and on December 15, 1971-a month before the decision of the Common Pleas Court was rendered-he received a permanent appointment to the position. It should be noted that respondent was not made a party to the appeals, to either the commission or to the Common Pleas Court.
After the appointing authority had failed to act, relator filed this action in quo warranto in the Court of Appeals, alleging that he was entitled to the position under the provision of R.C. 143.342 cited, supra. The Court of Appeals denied the writ, concluding that:
'* * * in the present case the error of the board in certification is subject to correction, may be and has been corrected, but this does not affect the tenure rights of one appointed originally under the erroneous certification through no fault or connivance of his own, but who has satisfactorily passed his probationary period and attained his permanent appointment before any challenge is directed to his holding the position in question.'
The cause is now before this court pursuant to an appeal as of right.
Russell E. Rakestraw, Findlay, for appellant.
Hinton, Noble & Bryant and Carl W. Hinton, Findlay, for appellee.
Respondent contends that (1) an appointee...
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