Yarosh v. Becane
| Decision Date | 02 July 1980 |
| Docket Number | 79-879,Nos. 79-88,s. 79-88 |
| Citation | 63 Ohio St.2d 5,406 N.E.2d 1355 |
| Parties | , 17 O.O.3d 3 YAROSH, Sheriff, Appellee, v. BECANE et al., Appellants. YAROSH, Sheriff, Appellant, v. JURICH et al., Appellees. |
| Court | Ohio Supreme Court |
Syllabus by the Court
1. A sheriff's power to hire and fire deputies pursuant to R.C. 325.17 is subject to the civil service rules contained in R.C. Chapter 124.
2. The State Personnel Board of Review has jurisdiction over appeals from removals of public employees if it determines that such employees are in the classified service, regardless of how they have been designated by their appointing authorities.
3. A deputy is in a fiduciary relationship with a sheriff when the duties the deputy is required to perform for the sheriff are duties that the sheriff could not be expected to delegate to the average deputy with knowledge of proper police procedure for that task.
4. A deputy is in an administrative relationship with a sheriff when the duties the deputy is required to perform for the sheriff are such that the sheriff must rely on the deputy's personal judgment and leadership abilities.
5. A deputy who is not appointed to a position in the classified service due to the neglect of a sheriff to initiate the proper appointment procedure pursuant to R.C. 124.27 is, at the very least, a provisional employee in the classified service at the time of his appointment, and after two years of such service attains permanent status pursuant to R.C. 124.271. Once a deputy attains permanent status, a sheriff cannot remove him without following the procedures for such removals under R.C. 124.34.
Michael Yarosh was elected sheriff of Mahoning County in November, 1976. Following his election, Yarosh terminated the employment of a number of deputy sheriffs in his department. Fourteen of the deputies are involved in the case at bar.
All these deputies had been hired by Yarosh's predecessor, Ray T. Davis, and none had taken a competitive or noncompetitive examination through the Department of Administrative Services for their positions. Davis had never made a request to the Director of Administrative Services for provisional appointment under R.C. 124.30. There had been some testing by the department itself for promotional purposes.
Twelve of the deputies Jane Becane and Heather Davis, radio dispatchers, Paula Goryanic, a dispatcher-matron, Patsy J. Continenza, William Jones, and Robert Marsch, detectives, Floyd Crater, Jr., a detective-lieutenant, Tony W. Caplen, Jr., a lieutenant, and Frank J. Hunt, Robert G. Maggianetti, Jack Moss, and Ray R. Wallace, sergeants in the traffic division were informed by letters dated December 27, 1976, that their employment as deputies was terminated effective January 2, 1977.
The other two deputies, Louis Jurich, Jr., and Lawrence Albright, patrolmen, were informed of their removals on the forms prescribed by the Department of Administrative Services for terminating employees in the classified service. Albright was charged with conduct unbecoming an officer and failure to properly perform his work duties. Jurich was charged with insubordination, abuse of sick leave and disrespect to a fellow officer. They testified that they received notice of their removals, which were effective January 7, 1977, on or about January 10th. In addition, no evidence was presented showing that these notices were filed with the Department of Administrative Services.
All 14 deputies appealed to the State Personnel Board of Review. The appeals were consolidated and a hearing was held on July 27, 1977. It was stipulated in all but Jurich's and Albright's cases that the procedure for terminating an employee in the classified service as required under R.C. Chapter 124 was not followed.
At the hearing each deputy testified as to his or her duties. It was established that many of the deputies handled money or property belonging to others in the course of an investigation or as a result of an arrest. A few of the deputies, in overseeing the jail, dispensed some medication and food to prisoners based on orders from superiors. The sergeants, lieutenants, and detectives testified that they supervised other deputies' actions, often because they were the highest ranking officer participating in an investigation on the scene of a crime or an accident. Some of these deputies also passed on orders to subordinates from the captains in the sheriff's office.
At the hearing, Yarosh also attempted to establish good cause for Albright's and Jurich's removals. Albright admitted to a conviction, along with another deputy, in a federal civil rights case. Jurich admitted that he had been suspended previously. No other evidence relevant to the dismissals for cause was admitted, although Yarosh did attempt to introduce some further evidence of Albright's misconduct which was excluded.
The board adopted the recommendations of the hearing examiner that the deputies be found to be members of the classified service and ordered that they be reinstated to their former positions. In Albright's and Jurich's cases, the board found that Yarosh had not produced sufficient evidence to remove the deputies. In the other 12 cases, the failure to follow the procedure mandated by R.C. Chapter 124 was determinative.
Sheriff Yarosh filed notices of appeal in all the cases. Two of these were filed in the Court of Common Pleas of Trumbull County, the residence of Jurich and Goryanic. The other 12 notices were filed in the Court of Common Pleas of Mahoning County. The courts reversed in a joint opinion, ruling that because the deputies had not taken examinations or been formally appointed as provisional employees in the classified service, they were not entitled to the procedural rights accorded employees in the classified service under R.C. Chapter 124.
On appeal, the Court of Appeals for Trumbull County, in separate decisions, reversed the removals of Goryanic and Jurich, holding that the deputy sheriff positions are in the classified service, that the administration of examinations was the responsibility of the sheriff, and that consequently the sheriff, Yarosh, could not assert failure to take examinations against the deputies. The court found that the failure to show by sufficient evidence cause for Jurich's removal and the failure to follow proper procedure in terminating Goryanic voided their terminations.
The Court of Appeals for Mahoning County affirmed the Court of Common Pleas for the other 12 cases, finding that the State Personnel Board of Review had jurisdiction to determine if the deputies were in the classified service. The court remanded the case to the board to determine which positions were in the classified service (the court held that the position of dispatcher was classified) but held that regardless of the outcome, the deputies could not assert rights as employees in the classified service because they had not taken examinations or been appointed pursuant to R.C. 124.30. The court also held that even if the deputies are in the classified service, Albright's case should be remanded to the board because the board did not give Sheriff Yarosh a proper opportunity to present his case against Albright.
The cause which was before the Court of Appeals for Mahoning County is now before the court upon the allowance of a motion to certify the record in case No. 79-88. The Court of Appeals for Trumbull County, in case No. 79-879, finding its decisions to be in conflict with the decision of the Court of Appeals for Mahoning County, certified the records of the Jurich and Goryanic cases to this court for review and final determination.
Vincent E. Gilmartin, Pros. Atty., and John A. Kicz, Youngstown, for appellee in No. 79-88 and appellant in No. 79-879.
Lucas, Prendergast, Albright, Gibson, Newman & Gee, James E. Melle and Robert J. Walter, Columbus, for appellants in No. 79-88 and appellees in No. 79-879.
All the deputies were hired by the sheriff pursuant to R.C. 325.17. Sheriff Yarosh argues that because R.C. 325.17 gives the sheriff authority to hire and fire deputies, such hiring and firing is not required to be made as would normally be required for a civil service position.
The power to hire and fire deputies however is subject to Section 10, Article XV of the Ohio Constitution which states:
The General Assembly has enforced Section 10, Article XV, by enacting R.C. Chapter 124. This Chapter provides a civil service system which is designed to fill positions based on merit and fitness ascertained, as far as practicable, by examination. The sheriff's power to hire and fire deputies pursuant to R.C. 325.17 is subject to the civil service rules contained in R.C. Chapter 124.
R.C. 124.11 divides the civil service into the classified and unclassified service. Positions in the classified service are those for which merit and fitness can be determined by examination. Employees in the classified service can only be removed for good cause and only after the procedures enumerated in R.C. 124.34 and the rules and regulations thereunder are followed. Positions in the unclassified service require qualities that the General Assembly has deemed are not determinable by examination. Employees in the unclassified service do not receive the protections afforded employees in the classified service.
The deputies involved in the case at bar were considered to be unclassified by Sheriff Yarosh. Sheriff Davis also apparently considered the positions to be unclassified due to his failure to appoint deputies based on the results of examinations. Sheriff Yarosh argues that the State Personnel Board of Review has...
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