Kluth v. Andrus (91 Ohio App. 1, 1951)

Thompson, J.

This cause came to this court on appeal on questions of law by defendant-appellant, Patton, from a judgment of the Common Pleas Court granting a permanent injunction to plaintiff Kluth in accordance with the prayer of his petition. Defendants are the director of public safety of Rocky River, the members of the civil service commission of that city, and the intervening defendant, Martin P. Patton.

The facts admitted by' the pleadings are that under date of June 23, 1949, plaintiff Kluth and defendant Patton, being then sergeants of police, took a promotional civil service examination given by the city of Rocky River for appointment as lieutenant of police; that on August 16, 1949, Kluth, having been certified as receiving the highest rating in the examination, was appointed lieutenant; that subsequently, on October 31, 1949, the defendant Patton instituted an action in the Common Pleas Court of Cuyahoga County (being Case No. 608225) against the civil service commission of Rocky River and other city officials, as defendants, claiming he had not been properly graded nor given proper credits in his examination by the civil service commission; and that after hearing, the Common Pleas Court on' February 13, 1950, in said action between Patton and the civil service commission, ordered the latter to make up the eligible list for the position of lieutenant, either by regrading the examination previously given under date of June 23, 1949, excluding certain performance record portions of the test, or by making up such eligible list by a further examination. The court, at the same time, issued an order to the civil service commission to vacate the appointment of Kluth as lieutenant, although Kluth had not been made a party to the action. The commission complied by vacating the appointment and restoring Kluth to his former position of sergeant.

Subsequently, on March 27, 1950, pursuant to snch court order, the civil service commission of Rocky River gave a new examination in accordance with the second alternative offered by the trial court, and Kluth, plaintiff herein, took the examination under protest, and Patton, defendant herein, took the examination at the same time. On April 28, 1950, plaintiff Kluth was notified that defendant Patton rated first in the examination taken the previous month. Plaintiff thereupon, on May 2, 1950, instituted the present action, praying that a temporary restraining order be issued and that upon final hearing a permanent injunction be granted, restraining defendant, the safety director of Rocky River, from removing plaintiff and from appointing defendant Patton as lieutenant, and praying further that a mandatory injunction be granted ordering the civil service commission to withdraw its certification of Patton for the reason that no vacancy existed in the position, and for the further reason that the examination of March 27, 1950, was illegal and void.

The defendant Patton filed an amended answer in which he admitted that he and plaintiff Kluth took the civil service promotional examination on June 23, 1949, and claimed that he was fraudulently graded lower than plaintiff Kluth by the then civil service commission. He also set forth that he had filed a mandamus action (Case No. 608225) in which he asserted that he had named all necessary parties defendant. He set forth further the order of the Common Pleas Court in the action referred to, vacating the appointment of plaintiff and ordering the civil service commission to regrade its previous examination of June 23, 1949, by excluding certain so-called performance records or to grant a new examination.

Plaintiff’s reply denied that all necessary parties were included in defendant’s previous mandamus action, the fact being that Kluth had, at no time, been made a party to that action.

Plaintiff’s reply asserted that in the examination of March 27, 1950, defendant Patton appeared to receive the highest grade but that plaintiff was not given proper credits and ratings. Plaintiff, asserted further that he was then, and had been since August 16, 1949, the holder of the position of lieutenant of police, in the city of Rocky River.

Defendants, members of the civil service commission, filed an answer stating they had taken office as members of such commission in 1950 and had, therefore, not participated in the giving of the promotional examination in 1949; they asserted that they gave the examination in March 1950, pursuant to the court order; and asserted that both plaintiff and defendant Patton, as a result of such examination, claimed the right to be certified for the position of lieutenant and further prayed the determination of the court as to which of the parties, Kluth or Patton, was entitled to be certified to the appointment of lieutenant of police of Rocky River.

The matter came on for hearing in the trial court and at the conclusion of the opening statements of counsel for the parties, plaintiff moved for a finding and judgment in his favor on the pleadings and opening statements of counsel. Defendant Patton made a similar motion for a finding and judgment in his favor.

The trial court granted plaintiff’s motion. The opinion of the trial court, rendered on July 27, 1950, is published (Kluth v. Andrus, 42 Ohio Opinions, 406, 58 Ohio Law Abs., 230, 94 N. E. [2d], 823), and a reference thereto is made for a more detailed statement of the facts in this case. In this court briefs were filed in behalf of the various parties and also a brief amicus curiae of Duggan, chief of the fire department of the city of Rocky River.

The question presented in this case is the interpretation of certain civil service provisions of' the Ohio statutes, and particularly the question of the rights obtained by a member of the police department, under the classified civil service, who has secured an appointment under Section 486-13, General Code, and who has served meritoriously for longer than the three-month probationary period specified in Section 486-13, General Code. More precisely, the question is whether a member of the police department in the classified civil service, who has served the required probationary period of three months in an office to which he had been appointed as result of a promotional competitive examination, can be removed therefrom for any reason other than cause as provided in Sections 486-17a and 486-17&, General Code.

In this inquiry, the pertinent facts are that plaintiff Kluth was appointed lieutenant of police under date of August 16, 1949, as the result of a promotional examination, that he held this position at least until the court order of February 13, 1950, and that the court order vacating his position was based on no claim or charge of fraud, or any other misconduct on his part, but solely because of a claimed incorrect grading by the civil service commission. It is submitted in behalf of plaintiff that, having served more than the three-month probationary period, he acquired “tenure” under Section 486-17a, General Code, and that he can be removed only under and by virtue of that section.

It becomes important, therefore, to examine the precise language of the two sections referred to, to the extent applicable to this case.

Section 486-13, General Code, with reference to appointments under the classified civil service provides, in part, as follows:

“All original and promotional appointments shall be for a probationary period of not to exceed three months to be fixed by the rules of the commission, and no appointment or promotion shall be deemed finally made until the appointee has satisfactorily served his probationary period. At the end of the probationary period the appointing officer shall transmit to the commission a record of the employee’s service, and if such service is unsatisfactory, the employee may, with the approval of the commission, be removed or reduced without restriction; but dismissal or reduction may be ma,de during such period as is provided for in Sections 486-17 and 486-17a of the General Code. * * ®”

Section 486-17, General Code, forbidding reductions, layoffs and suspensions for religious or political reasons, does not here concern us. Neither does Section 486-176, which applies to reductions in case of lack of funds.

Section-486-17a, General Code, provides as follows:

‘ ‘ The tenure of every officer, employe or subordinate in the classified service of the state, the counties, cities and city school districts thereof, holding a position under the provisions of this act, shall be during good behavior and efficient service; but any such officer, employe or subordinate may be removed for incompet-eney, inefficiency, dishonesty, drunkenness, immoral conduct, insubordination, discourteous treatment of the public, neglect of duty, violation of the provisions of this act or the rules of the commission, or any other failure of good behavior, or any other acts of misfeasance, malfeasance or nonfeasance in office.

“In all cases of removal the appointing authority shall furnish such employe or subordinate with a copy of the order of removal and his reasons for the same, and give such officer, employe or subordinate a reasonable time in which to make and file an explanation. Such order with the explanation, if any, of the employe or subordinate shall be filed with the commission. Any such employe or subordinate so removed may appeal from the decision or order of such appointing authority to the state or municipal commission, as the case may be, within ten days from and after the date of such removal, in which event the commission shall forthwith notify the appointing authority and shall hear, or appoint a trial board to hear, such appeal within thirty days from and after its filing with the commission, and it may affirm, disaffirm or modify the judgment of the appointing authority, and the commission’s decision shall be final; provided, however, that in the case of the removal of a chief of police or chief of the fire department or any member of the police or fire departments of a municipality an appeal may be had from the decision of the municipal commission to the court of common pleas of the county in -which such municipality is situated to determine the sufficiency of the cause of removal. Such appeal shall be taken within ten days from the finding of the commission. ’ ’

In addition to the foregoing sections, Section 486-15a, General Code, dealing with promotions in the civil service in the case of patrolmen and firemen is to be kept in mind. The portion of that section significant for present purposes is as follows:

“No position above the grade or rank of patrolman or regular fireman in the police or fire department shall be filled by original appointment. Vacancies in positions above the rank or grade of patrolman or regular fireman in a police or fire department shall be filled by promotion from among persons holding positions in a grade or rank lower than the position to be filled. Appointments to such vacancies shall be limited to members of the respective departments. No position above the grade or rank of patrolman or regular fireman in a police or fire department shall be filled by any person unless he shall have first passed a competitive promotional examination. * * *”

In the light of the sections quoted, had plaintiff Kluth, by service of more than three months in his position, acquired tenure? We believe that he had acquired such tenure and that he could, therefore, be discharged only for cause and under procedure provided by Section 486-17o or Section 486-17&, General Code. We find no action taken under those sections on the part of the city authorities in this case. We realize the implications in this holding and have borne in mind, in reaching it, the fact that the vacation of Kluth’s appointment was pursuant to what the municipal civil service commission believed to be a valid order. Recognizing that instances may arise whereby a civil service commission would be required under court order to vacate an appointment, and whereunder another court would be required on the basis of res adjudicaba to accept such ruling, we do not find that Patton’s original action resulted in an order of such nature. The defendant Patton argued forcefully in this court that the decision in case No. 608225 required such action by the civil service commission and ac-' ceptance of it by the trial court, but in that suit Kluth was not a party and Kluth’s status could not be affected by a case in which he was not made a party or given opportunity to be heard. The findings of the trial court in the Patton case could not be res adjudicóla as to Kluth or others not parties to that action. This principle appears to us so fundamental and so thoroughly recognized that we merely cite the following authorities: 23 Ohio Jurisprudence, 836, Section 527, and Auglaize Box Board Co. v. Hinton, 100 Ohio St., 505, 126 N. E., 881.

We believe it clear, therefore, that in the present action in which Kluth sought an adjudication of his status and an assertion of his rights, the trial court was not only not bound by the previous suit on the part of Patton, but properly inquired-into the circumstances of that action, since counsel submitted to the. trial court in this cause the files in Case No. 608225. Under the facts of the pending case, Kluth not having been a party to -the previous action and there being no claim that he was a participant in any fraud in connection with his promotional civil service examination, his rights could not be adjudicated, by a ruling in a case in which he was not represented; furthermore, he had acquired a vested right under the civil service sections of the Code of which he could not be deprived, except in a manner provided by law. Having held a promotional position for more than the probationary period of three months, his occupancy had ripened into a special right recognized, by statute; a right not to be taken away except under procedure and for cause specified in the statute. (Section 486-17