State ex rel. Rose v. Ohio Dept. of Rehab. & Corr.

• Decision Date: 23 May 2001
• Docket Number: No. 00-1559.,00-1559.
• Citation: 746 NE 2d 1103,91 Ohio St.3d 453
• Parties: THE STATE EX REL. ROSE v. OHIO DEPARTMENT OF REHABILITATION AND CORRECTION.
• Court: Ohio Supreme Court

91 Ohio St.3d 453

746 NE 2d 1103

THE STATE EX REL. ROSE v. OHIO DEPARTMENT OF REHABILITATION AND CORRECTION.

No. 00-1559.

Supreme Court of Ohio.

Submitted February 27, 2001.

Decided May 23, 2001.

John S. Jones, for relator.

Betty D. Montgomery, Attorney General, Jack W. Decker and Christina M. Wendell, Assistant Attorneys General, for respondent.

Per Curiam.

On April 12, 1999, respondent, Ohio Department of Rehabilitation and Correction ("ODRC"), hired relator, Bonnie R. Rose, as a Food Service Manager 1 at the London Correctional Institution. This is a classified civil service position, but it is not covered by any collective bargaining agreement. On October 7, 1999, one day before the conclusion of her one-hundred-eighty-day probationary period, ODRC, through its appointing authority, London Correctional Institution Warden Lawrence Mack, removed Rose pursuant to R.C. 124.27. Warden Mack determined that Rose's service was not satisfactory. ODRC provided Rose with neither a removal order under R.C. 124.34 nor a predisciplinary conference. On October 12, 1999, Rose appealed her removal to the State Personnel Board of Review ("SPBR"). ODRC moved to dismiss Rose's appeal, contending that SPBR lacked jurisdiction to consider a classified civil service employee's removal during the employee's probationary period. On February 4, 2000, SPBR determined that it had jurisdiction to consider appeals by classified employees from removals or reductions during the probationary period and denied the ODRC dismissal motion. Rose v. Ohio Dept. of Rehab. & Corr. (Feb. 4, 2000), SPBR No. 99-REM-10-0325, unreported. SPBR further concluded that because ODRC failed to follow the requirements of R.C. 124.34 in removing Rose from employment, ODRC must reinstate her to the position of Correction Food Service Manager 1, effective October 7, 1999, with back pay and benefits from that date, subject to setoffs in mitigation of damages. ODRC did not appeal the SPBR order to the common pleas court.

In March 2000, the Attorney General issued an opinion concluding, contrary to the SPBR decision in Rose, that the SPBR does not have jurisdiction to hear an appeal from the removal of a probationary employee for unsatisfactory service and that R.C. 124.27 imposes no requirement to file an order of removal under R.C. 124.34 for these employees. Ohio Atty.Gen.Ops. No. 2000-017.

In June 2000, the SPBR, in Johnson v. Dept. of Rehab. & Corr. (June 23, 2000), SPBR No. 00-REM-05-0161, unreported, found the opinion of the Attorney General to be persuasive, abandoned its previous ruling in Rose, and held that the board lacked jurisdiction to consider appeals from the reduction or removal of an employee during probationary employment in the state civil service. Despite the February 4, 2000 SPBR decision, ODRC has refused to reinstate Rose and provide her back pay and benefits.

In August 2000, Rose filed this action for a writ of mandamus to compel ODRC to comply with the SPBR order by reinstating Rose to her position as Food Service Manager 1 and providing her with back pay and benefits. After ODRC filed an answer in which it raised as affirmative defenses that SPBR abused its discretion in disaffirming Rose's removal and that it lacked jurisdiction to issue the February 4, 2000 order that Rose seeks to enforce, we granted an alternative writ and ordered the submission of evidence and briefs. State ex rel. Rose v. Ohio Dept. of Rehab. & Corr. (2000), 90 Ohio St.3d 1441, 736 N.E.2d 903. This cause is now before the court for a consideration of the merits.

Res Judicata

ODRC asserts that Rose is not entitled to the requested extraordinary relief in mandamus because SPBR had no jurisdiction over Rose's appeal and abused its discretion in deciding the merits of the appeal. Rose counters that because ODRC failed to appeal the SPBR decision ordering her reinstatement and awarding her back pay and benefits, res judicata precludes ODRC from collaterally attacking the decision in this mandamus proceeding.

Res judicata provides that a final judgment rendered upon the merits, without fraud or collusion, by a court of competent jurisdiction, is conclusive of rights, questions, and facts in issue for parties and their privies in the same or any other judicial tribunal. In re Guardianship of Lombardo (1999), 86 Ohio St.3d 600, 604, 716 N.E.2d 189, 193. Res judicata applies in civil service cases. State ex rel. Stough v. Norton City School Dist. Bd. of Edn. (1977), 50 Ohio St.2d 47, 50, 4 O.O.3d 116, 118, 362 N.E.2d 266, 269, overruled on other grounds, Ohio Assn. of Pub. School Emp., Chapter No. 471 v. Twinsburg (1988), 36 Ohio St.3d 180, 522 N.E.2d 532; State ex rel. Bingham v. Riley (1966), 6 Ohio St.2d 263, 35 O.O.2d 424, 217 N.E.2d 874.

Res judicata, however, presupposes a judgment entered by a court of competent jurisdiction or, in terms of its application to civil service orders, within the jurisdiction of the SPBR or the Civil Service Commission. Stough, 50 Ohio St.2d at 48, 4 O.O.3d at 117, 362 N.E.2d at 268. In Stough, res judicata did not preclude a claim that a civil service commission lacked jurisdiction over the subject matter of the case.

Therefore, ODRC may challenge in this mandamus action the subject-matter jurisdiction of SPBR to address the merits of Rose's appeal from her probationary removal.

Moreover, res judicata does not bar ODRC from claiming that SPBR abused its discretion in deciding the merits of the order disaffirming Rose's removal, because ODRC could not have appealed the SPBR order. State ex rel. Ogan v. Teater (1978), 54 Ohio St.2d 235, 244, 8 O.O.3d 217, 222, 375 N.E.2d 1233, 1239 (appointing authority permitted to raise defense that board abused its discretion in disaffirming a layoff when the appointing authority had no right of appeal from the order of the SPBR); State ex rel. Pennington v. Ross (1980), 63 Ohio St.2d 58, 60, 17 O.O.3d 36, 37, 407 N.E.2d 7, 8; State ex rel. Carver v. Hull (1994), 70 Ohio St.3d 570, 574, 639 N.E.2d 1175, 1180, fn. 2.

Rose, however, contends that ODRC could have appealed the SPBR order under R.C. 124.34(B), which provides: "In cases of removal or reduction in pay for disciplinary reasons, either the appointing authority or the officer or employee may appeal from the decision of the state personnel board of review or the commission to the court of common pleas of the county in which the employee resides in accordance with the procedure provided by section 119.12 of the Revised Code." (Emphasis added.) The phrase "disciplinary reasons" is not defined by statute and consequently must be read in context and construed according to the rules of grammar and common usage. State ex rel. Rose v. Lorain Cty. Bd. of Elections (2000), 90 Ohio St.3d 229, 231, 736 N.E.2d 886, 888; R.C. 1.42. "Disciplinary" relates to discipline, and "discipline" means "[p]unishment intended to correct or instruct; esp., a sanction or penalty imposed after an official finding of misconduct." Black's Law Dictionary (7 Ed. Garner Ed.1999) 476; see, also, Webster's Third New Internatl. Dictionary (1971) 644. As used in R.C. 124.34, the phrase "`removal * * * for disciplinary reasons' imports a concept of punitive treatment of a reformational nature designed to correct or punish for failure to accept, obey or comply with an established system or set of rules and regulations." Turner-Brannock v. Ohio Bur. of Emp. Serv. (1984), 15 Ohio App.3d 134, 137, 15 OBR 226, 229, 472 N.E.2d 1131, 1134; McVay v. Warren Cty. Bd. of Commrs. (May 26, 1987), Warren App. No. CA86-11-072, unreported, 1987 WL 11594.

Applying the foregoing definition of "disciplinary" here, it is evident that Rose's removal was not for "disciplinary reasons," i.e., it was not based on misconduct by Rose. See McVay, supra (dismissal of probationary employee for poor work performance not a removal for disciplinary reasons under R.C. 124.34). Instead, R.C. 124.27 required only that Rose's performance as a probationary employee be unsatisfactory in order to justify her removal during her probationary period. Since the removal was not for disciplinary reasons, ODRC could not appeal the SPBR order disaffirming the removal of Rose. See Myers v. Clinebell (May 14, 1999), Sandusky App. No. S-98-048, unreported, 1999 WL 300620.

Therefore, because ODRC raises a jurisdictional claim and, independently, because it could not appeal the SPBR order under R.C. 124.34, res judicata does not preclude it from collaterally attacking the SPBR order in this mandamus proceeding. Contrary to Rose's contentions on appeal, this will not foreclose an appellate remedy to employees in cases in which the SPBR or civil service commission finds that it lacks jurisdiction over the removal of employees because the removal is for nondisciplinary reasons. These employees could still appeal under R.C. 119.12 to the Franklin County Court of Common Pleas. See Turner-Brannock, 15 Ohio App.3d at 137, 15 OBR at 229, 472 N.E.2d at 1134; McVay, supra; Koren v. Ashtabula Cty. Commrs. (Mar. 31, 1999), Ashtabula App. No. 98-A-0042, unreported, 1999 WL 262156. ODRC, however, does not have this appellate alternative. R.C. 119.12; R.C....