State ex rel. Proctor v. Board of Ed. of Alliance Public School Dist.

• Decision Date: 10 May 1978
• Parties: , 14 O.O.3d 418 The STATE, ex rel. PROCTOR et al. v. BOARD OF EDUCATION OF ALLIANCE PUBLIC SCHOOL DISTRICT et al.
• Court: Ohio Court of Appeals

Page 396

60 Ohio App.2d 396

398 N.E.2d 805, 14 O.O.3d 418

The STATE, ex rel. PROCTOR et al. v. BOARD OF EDUCATION OF ALLIANCE PUBLIC SCHOOL DISTRICT et al.

Court of Appeals of Ohio, Fifth District, Stark County.

May 10, 1978.

Syllabus by the Court

Non-teaching employees of a city school district are included within the provisions of R.C. 124.34 and any change in employment must be made pursuant to this statute, notwithstanding the fact that original contracts of employment were drawn according to the law covering unclassified workers.

Lucas, Prendergast, Albright, Gibson, Brown & Newman, Columbus, for relators.

Robert G. Lavery, Alliance, for respondents.

DOWD, Judge.

This is an original action in mandamus brought by two relators previously employed as school custodians by respondent Board of Education of the Alliance City School District. The relators seek a writ of mandamus from this court restoring them to their positions or, alternatively, a writ of mandamus ordering respondent Alliance Civil Service Commission to hear the appeal filed by the relators in May 1977 after the respondent board of education voted, pursuant to R.C. 3319.081, not to renew the contracts previously granted to the relators. Additionally, the relators seek a writ of mandamus ordering the Alliance Civil Service Commission to perform the duties imposed upon it by R.C. Chapter 124 with respect to the non-teaching employees of the Alliance City School District.

The facts are not in dispute, having been presented by stipulation. The relators, Proctor and Erisey, were first employed as school custodians in August and February 1974 respectively. Thereafter, on July 1, 1975, the relators each entered into a written contract agreeing to continue serving as custodians with the respondent board until the contract termination date of June 30, 1977. The written form of the contract indicates that the contracts were issued pursuant to the provisions of R.C. 3319.081.

Respondent board of education notified Proctor and Erisey, by a letter dated April 26, 1977, of the board's intention not to re-employ them at the expiration date of the two year contract.

The relators appealed the board's action to the Alliance Civil Service Commission on May 2, 1977. The Alliance Civil Service Commission refused to hear the appeal and by a letter, over the signature of the president of the Alliance Civil Service Commission, stated the following:

"It is the opinion of the commission that under Ohio Revised Code 124.34, the Alliance Civil Service Commission does not have jurisdiction over school personnel. It is our opinion that you have not held a position under Chapter 124 of the Ohio Revised Code since your appointment did not result from a list established by the Civil Service Commission."

The Alliance Civil Service Commission does not now conduct and never had conducted competitive examinations for non-teaching employees of the Alliance City School District and does not now prepare and never has prepared, maintained, or provided the board of education with eligibility lists for non-teaching school employees from which appointments are made.

The Alliance board of education does not require applicants for positions of employment as non-teaching school employees to pass competitive examinations conducted by the Alliance Civil Service Commission, nor does it appoint non-teaching school employees from a civil service eligibility list.

Neither the board of education nor the civil service commission has adopted any resolution specifically exempting the relators or any other non-teaching employee of the Alliance City School District from the classified civil service. The Alliance Civil Service Commission is a municipal civil service commission appointed pursuant to R.C. 124.40 and is charged with all the responsibility generally conferred upon a municipal civil service commission by R.C. Chapter 124.

With respect to non-certified personnel (non-teaching employees) of a city school district, such as school custodians, several propositions of law are well established.

First and foremost, such non-teaching employees are members of the civil service subject generally to the provisions of R.C. Chapter 124. ¹

The civil service is divided in two categories, the classified and the unclassified. The statute reads as follows:

"R.C. 124.11 Unclassified and classified service. * * *

"(B) The classified service shall comprise all persons in the employ of the state and the several counties, cities, city health districts, general health districts, and city school districts thereof, not specifically included in the unclassified service * * *."

Those members of the civil service who are part of the classified service enjoy many rights with respect to promotions, suspensions or removal from their employment. With respect to suspension or removal, the employer must have cause and his action in suspending or removing a member of the classified service is subject to review.

The members of the "unclassified service" as defined by R.C. 124.11(A) are not so protected, normally because of the sensitive nature of their employment. However, non-teaching employees of city school districts do not fall within the unclassified service. Thus, they are members of the classified service. State, ex rel. Barborak, v. Hunston (1962), 173 Ohio St. 295, 299, 181 N.E.2d 894; Karrick v. Bd. of Education (1963), 174 Ohio St. 467, 190 N.E.2d 256; Ohio Assn. of Public School Employees v. Bd. of Education (1971), 28 Ohio St.2d 58, 275 N.E.2d 610.

As a direct consequence, the provisions of R.C. 3319.081 do not apply to non-teaching employees of a City school district. ²

R.C. 3319.081 provides, in relevant part, as follows:

" * * * (I)n all school districts Wherein the provisions of Chapter 124 of the Revised Code do not apply, the following employment contract system shall control for employees whose contracts of employment are not otherwise provided by law: * * *." (Emphasis added.)

Rather, with respect to the removal of a non-teaching employee in a city school district, the provisions of R.C. 124.34 control. Thus, the April 1977 action of the Alliance City School Board of Education not to rehire the relators was a nullity. As a board of education of a City school district, the respondent board had no power to so act. Nor did the fact that the relators executed the two year contracts confer upon the board the power to "non-renew." A city board of education does not acquire a power of removal over a member of the classified civil service by means not recognized by statute. Rather, once the non-teaching employee of the city school district has served his probationary period, his subsequent removal must be accomplished pursuant to the provisions of R.C. 124.34.

Furthermore, the fact that the respondent civil service commission has been inactive with respect to conducting competitive examinations for non-teaching employees and does not maintain eligibility lists for the appointment of non-teaching school employees does not justify in law the practice of the Alliance City School Board in employing limited contracts for such positions pursuant to inapplicable provisions of R.C. 3319.081.

The problem of inactivity by a city civil service commission was addressed in State, ex rel. Stough, v. Bd. of Education (1977), 50 Ohio St.2d 47, 48, 362 N.E.2d 266, 268, where the court stated:

"Further, the argument raised by the board that subjectmatter jurisdiction does not attach until the commission has taken...