State ex rel. Streitfeld v. White

• Decision Date: 07 November 1972
• Citation: 291 N.E.2d 766,33 Ohio App.2d 47
• Parties: , 62 O.O.2d 104 STATE ex rel. STREITFELD, Relator, v. WHITE et al., Respondents.
• Court: Ohio Court of Appeals

Page 47

33 Ohio App.2d 47

291 N.E.2d 766, 62 O.O.2d 104

STATE ex rel. STREITFELD, Relator, v. WHITE et al., Respondents.

Court of Appeals of Ohio, Tenth District, Franklin County.

Nov. 7, 1972.

Syllabus by the Court

1. When, in connection with a threat of removal, either before or after he receives notice of the removal order, a state employee in the classified civil service offers to resign at a subsequent date, but the employer proceeds with the removal and the employee appeals, resulting in an order rendered after the effective date of the resignation finding the removal invalid, such action indicates a rejection of the resignation by the employer and a withdrawal by the employee, and the resignation never becomes effective.

2. Where a state employee has been improperly excluded from his position, he is entitled to be compensated for calculable wages lost by reason thereof, less the amount, if any, earned in other employment, and to be credited with his previously accumulated and calculable sick leave, and such is enforceable by mandamus. (Hardin v. Johnson, 30 Ohio App.2d 19, 281 N.E.2d 194, followed.)

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

William J. Brown, Atty. Gen., and John T. Conroy, Columbus, for respondents.

REILLY, Judge.

This is a mandamus action whereby relator, in his complaint, prays 'that a writ of mandamus issue to the respondents directing them to compensate relator for the period of time he has been illegally deprived of his state employment in the amount of $5,834.50 for the months of March, April, and May, 1972, and for such other and further relief to which relator may be entitled.' Respondents move for a summary judgment or a dismissal of the case.

The parties stipulate the following facts:

'1. Franklin H. Streitfeld, relator, was employed by the Bureau of Vocational Rehabilitation and classified as a Public Health Physician II.

'2. On February 25, 1972, Denver L. White gave relator a removal order, effective February 28, 1972.

'3. Relator appealed the removal order to the State Personnel Board of Review and on May 10, 1972, that Board issued an order disaffirming the order of removal, which order is attached hereto and made a part hereof.

'4. After February 25, 1972, relator did not return to work at the Bureau of Vocational Rehabilitation at any time.

'5. Relator was paid through March 10, 1972.

'6. The documents which are marked Exhibits A and B attached to the answer of respondent, were signed by the relator on the dates marked on the exhibits.

'7. The relator, from the date of his termination on February 28, 1972, through August 3, 1972, had no other employment, although he made efforts to obtain other employment with various state agencies, and other private and governmental units.

'8. Relator was ready and willing to go back to work as a Public Health Physician II with the Bureau of Vocational Rehabilitation at all times after February 28, 1972.'

The state personnel board of review's order, in pertinent part, reads as follows:

'We should first point out that while this removal proceeding was brought under Section 143.27 of the Revised Code, it was brought on the 33rd day of the appellant's probationary period. Such (sic) a removal is authorized by Section 143.20 of the Revised Code. It has been a long-standing policy of this Board that when an employee in the classified civil service is removed during the first half of his probationary period, the grounds alleged for removal must be extremely substantial, for the sole and simple reason that a probationary employee, being new, would not be expected to be as efficient as employees with longer service or might not yet be fully familiar with his duties and rules and regulations relating thereto.

'In the instant case, the grounds for removal alleged were, if proven, sufficiently substantial to justify removal. The burden of proof required of the appointing authority in a removal proceeding is by a preponderance of the evidence-and that evidence must be substantial, reliable, and probative. The proof of the specifications offered by the appointing authority here fell far short of meeting that burden. It was obvious that the major factor in the failure to meet this burden was the fact that one of appointing authority's key witnesses did not testify as expected, but testified almost contrary to the allegations of the removal order. Aside from the change from the expected testimony itself, however, there was no indication to the Board that such testimony was anything but voluntary and truthful.

'The Board therefore has no alternative but to disaffirm the removal order. In doing so, the Board points, out that the record is abundantly clear that subsequent to actual receipt of the removal order, the appellant submitted his resignation from his position, effective some two weeks later. Since he had already been served with his copy of the removal order, this action cannot be construed as an attempt to avert a removal. Neither can it be considered as an involuntary...