460 N.E.2d 704 | Ohio Ct. App. | 1983
Appellant, Verna Carroll, appeals from an order of the court of common pleas affirming the decision of the *109 State Personnel Board of Review which in turn had affirmed the order of her employer, the Ohio Bureau of Employment Services, which terminated her employment.
Appellant twice received notification from her employer to report to a physician's office for a medical examination. Because on both occasions she failed to appear for the examinations, she was discharged for insubordination.
Although appellant's brief fails to include assignments of error as required by the Rules of Appellate Procedure, we will consider the assignment of error to be that the court of common pleas erred in finding that the order of the State Personnel Board of Review was supported by reliable, probative and substantial evidence, and was in accordance with law.
In directing appellant to report for medical examinations, her employer relied upon Ohio Adm. Code
"Physical Examination. An appointing authority may require an employee to take an examination, conducted by a licensed physician, to determine his physical or mental capability to perform the duties of his position. If found not qualified, the employee may be placed on sick leave or disability leave, in accordance with rule
In adopting the rule, the Director of Administrative Services noted that he was relying upon R.C.
"Each employee, whose salary * * * is paid * * * by the state, * * * shall be entitled for each completed eighty hours of service to sick leave of four and six-tenths hours with pay. Employees may use sick leave, upon approval of the responsible administrative officer of the employing unit, for absence due to personal illness, pregnancy, injury, exposure to contagious disease which could be communicated to other employees, and to illness, injury, or death in the employee's immediate family. Unused sick leave shall be cumulative without limit. * * * The appointing authority of each employing unit shall require an employee to furnish a satisfactory written, signed statement to justify the use of sick leave. If medical attention is required, a certificate stating the nature of the illness from a licensed physician shall be required to justify the use of sick leave. * * * This section shall be uniformly administered as to employees in each agency of the state government by the director of administrative services. * * *"
Appellant argues that the rule, in permitting an appointing authority to require an employee to submit to a medical examination, exceeds the rulemaking authority of the Director of Administrative Services.
Pursuant to R.C.
The effect of the rule, then, is to vest the public employer with powers not granted him by the General Assembly — to order medical examinations to determine the physical or mental capacity of an employee to perform his job, and to require an employee to use his sick leave. The purpose of administrative rulemaking is to facilitate the administrative agency's placing into effect the policy declared by the General Assembly in the statutes to be administered by the agency. In other words, administrative agency rules are an administrative means for the accomplishment of a legislative end. See State, ex rel. Curtis, v. DeCorps (1938),
The General Assembly delegated to the Director of Administrative Services the power to promulgate rules which would assist in the implementation of legislative policy as declared in R.C. Chapter 124. In pursuing that grant of power, the director may not issue rules which are unreasonable or are in clear conflict with statutory enactments covering the same subject matter. State, ex rel. DeBoe, v. Indus. Comm. (1954),
Because the director was without authority to promulgate the rule, the directions issued to appellant to appear for the examinations, because they were issued pursuant to the rule, were illegal. It follows that failure to obey an illegal order cannot constitute insubordination.
The trial court based its decision on Coleman v. WesternReserve Psychiatric Habilitation Center (Jan. 8, 1981), Cuyahoga App. Nos. 42239 and 42375, unreported. The facts in that case were similar to those in the case before us. The employee argued that Ohio Adm. Code
The order of the State Personnel Board of Review not being in accordance with law, the court of common pleas erred in affirming the order. Accordingly, the assignment of error is sustained, the judgment of the court of common pleas is reversed, and this cause is remanded to the court of common pleas with instructions to enter judgment consistent with this opinion.
Appellees, Department of Administrative Services and State Personnel Board of Review, filed a motion seeking their dismissal as parties to this appeal. Both were named as parties before the court of common pleas, both were served, and both filed a brief. Although they raised in their briefs the propriety of their *111 being parties to the appeals, neither filed a motion in the court of common pleas seeking their dismissal and neither filed a notice of appeal or cross-assignment of error complaining of the trial court's failure to dismiss them as parties. The issue of their dismissal not having been properly raised below, we are not in a position to consider the issue on appeal. The motion is overruled.
Motion to dismiss overruled.
Judgment reversed and cause remanded with instructions.
STRAUSBAUGH and MCCORMAC, JJ., concur.