Turner v. Cleveland City School Dist. Bd. of Edn.

• Decision Date: 03 January 1995
• Docket Number: No. 66994,66994
• Parties: , 101 Ed. Law Rep. 404 TURNER, Appellee, v. CLEVELAND CITY SCHOOL DISTRICT BOARD OF EDUCATION, Appellant. *
• Court: Ohio Court of Appeals

Page 666

99 Ohio App.3d 666

651 N.E.2d 511, 101 Ed. Law Rep. 404

TURNER, Appellee, v. CLEVELAND CITY SCHOOL DISTRICT BOARD OF EDUCATION, Appellant. ^*

No. 66994.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Decided Jan. 3, 1995.

Schwarzwald & Rock, Eben O. McNair IV and Todd M. Smith, Cleveland, for appellee.

Wanda Rembert Arnold and George S. Crisci, Cleveland, for appellant.

JAMES D. SWEENEY, Judge.

Defendant-appellant Cleveland City School District Board of Education ("board") appeals from the administrative decision of the trial court which, on cross-motions for summary judgment, reversed and remanded the decision of the city of Cleveland's Civil Service Commission ("commission"), thereby reinstating the name of plaintiff-appellee Dennis Turner ("Turner") to an eligibility list for promotion to the position of custodian. ¹ For the reasons adduced below, we reverse.

A review of the record on appeal indicates that Turner is employed by the board as an assistant custodian, and is covered by the collective bargaining agreement existing between the board and the union representing Turner. Turner applied for and passed the June 23, 1990 examination for the position of custodian with the tenth highest score out of the twenty-nine applicants, and was placed on the July 9, 1990 eligibility list. ² Thereafter, Turner received notification that his name had been certified by the commission to the board for consideration for the position of custodian. Turner successfully interviewed at several schools with openings for the position of custodian. Following those interviews, Turner met with Alvin Evans ("Evans"), Director of the board's Classified Personnel Division, on December 18, 1991, at which time Evans informed Turner that he would not be considered for the custodian position and was unfit because of two felony convictions on Turner's criminal record. ³ One of those convictions, carrying a concealed weapon, was listed by Turner on the examination application. The second conviction, forgery, was not listed by Turner on the examination application. This missing forgery conviction was discovered by the board during a routine background check of Turner's application after the examination application had been made. ⁴ Thus, Evans made the decision to pass over Turner for promotion because of (1) the inaccurate examination application and (2) the fact that Turner had been convicted for an offense of violence in 1989. At the time of Evans's action in mid-December 1991, Turner was second on the list of the top three remaining eligible applicants.

Turner appealed this decision to the commission. After a full hearing, the commission upheld the board's decision to pass over Turner. Turner next appealed to common pleas court on May 6, 1992, pursuant to R.C. 2506.01 et seq., which, without opinion by status form entry, concluded that the board was without authority to remove Turner's name from the eligibility list for promotion to custodian and reversed and remanded the case to the commission "for an order consistent with the finding." This appeal followed presenting four assignments of error.

I

"The common pleas court erred in not dismissing plaintiff's administrative appeal as moot because the eligibility list upon which he claims entitlement to an appointment has expired."

The board premises this assignment on the fact that the eligibility list in question expired no later than July 9, 1992, approximately two months after Turner filed his administrative appeal with the trial court. In addressing this assignment, we recognize the following language by Judge Krupansky, with Judges Dyke and Patton concurring, in Wagner v. Cleveland (1988), 62 Ohio App.3d 8, 13, 574 N.E.2d 533, 536-537, a case which similarly dealt with the removal of applicants' names from an eligibility list and the issue of mootness where the eligibility list, for entry onto the Cleveland police force, had expired prior to the trial court's judgment:

"Actions become moot when resolution of the issues presented is purely academic and will have no practical effect on the legal relations between the parties. See Central Motors Corp. v. Pepper Pike (1983), 9 Ohio App.3d 18, 9 OBR 19, 457 N.E.2d 1178; In re Bartlett [ (1958) ] (1959), 108 Ohio App. 93, 9 O.O.2d 150, 161 N.E.2d 76; Culver v. Warren (1948), 84 Ohio App. 373, 39 O.O. 506, 83 N.E.2d 82; and Davies v. Columbia Gas & Elec. Corp. (1946), 47 Ohio Law Abs. 225, 70 N.E.2d 655. See, also, State v. Berndt (1987), 29 Ohio St.3d 3, 29 OBR 173, 504 N.E.2d 712.

" * * *

"The common pleas court's authority to grant plaintiffs relief, viz., returning plaintiffs' names to the list ended July 31, 1987 when the list expired. Simply stated, the subject matter of the court's order was moot when the court granted plaintiffs their requested relief, no live controversy existed between the parties in regard to the reinstatement of plaintiffs' names onto the expired eligibility list. There...