412 N.E.2d 421 | Ohio Ct. App. | 1979
The Bellefontaine Civil Service Commission, on January 5, 1979, rendered its decision affirming the "judgment of the appointing authority" after a hearing as to the suspension and removal of William W. Martin, appellant, from his position as a city fireman of a non-charter city. Appeal from that decision was taken by Martin to the Court of Common Pleas of Logan County which, on February 6, 1978, affirmed the "judgment of the Bellefontaine Civil Service Commission."
Although there is some authority that indicates an appeal from a decision of suspension and removal to the Court of Common Pleas might lie under the provisions of R. C.
First Assignment of Error: "The Bellefontaine Civil Service *172
Commission erred in affirming the suspension since it was not in compliance with either Section
As relates to this assignment of error, it appears from the transcript of hearing before the Bellefontaine Civil Service Commission that in the early morning hours of October 26, 1977, appellant and others placed a substance believed to be firefighting foam into a newly erected public fountain in the city of Bellefontaine; that the incident was then investigated by several police officers of the city; that the services of the city electrician were required to shut off the fountain's mechanism; that the services of street department employees were required in cleanup efforts; that at 8:30 a.m. the same day appellant was contacted by the chief of the fire department and directed to report to the mayor's office; that appellant said he could not at that time; that when appellant did not report he was contacted by the mayor who told him he wanted to see appellant as soon as possible; that again appellant did not appear; that the mayor thereupon instructed the service director to suspend appellant; that charges of criminal damaging and endangering property were filed against appellant in relation to the incident in the Bellefontaine Municipal Court on October 26, 1977; that on October 27, 1977, appellant was notified by letter from the fire chief that he was suspended from duty pending further investigation; that on November 4, 1977, appellant filed an appeal of that suspension to the city civil service commission; and that hearing was had on the appeal by the civil service commission resulting, on January 5, 1978, in its decision which was thereafter appealed.
It is appellant's contention that suspension of municipal fire department employees in the classified service is governed by both R. C.
R. C.
"The tenure of every * * * employee in the classified service of * * * cities * * * shall be during good behavior * * * and no such * * * employee shall be * * * suspended * * * except * * * for incompetency, inefficiency, dishonesty, drunkenness, immoral conduct, insubordination, discourteous treatment of the public, neglect of duty * * * or any other failure of good behavior or any other acts of misfeasance, malfeasance, or nonfeasance in office. * * *
"In any case of * * * suspension of more than five working days * * * the appointing authority shall furnish such employee with a copy of the order of * * * suspension * * * which order shall state the reasons therefor. Such order shall be filed with the * * * commission * * *.
"* * *
"In the case of the suspension for any period of time * * * or removal of * * * any member of the * * * fire department of a city * * * the appointing authority shall furnish such * * * member of a department with a copy of the order of suspension * * * which order shall state the reasons therefor. Such order shall be filed with the municipal * * * civil service commission. Within ten days following the filing of such order such * * * member of a department may file an appeal, in writing, with the municipal * * * civil service commission. In the event such an appeal is filed, the commission shall forthwith notify the appointing authority and shall 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. * * *" (Emphasis added.) *174
It will be observed that although the quoted provisions of R. C.
R. C.
Again, the matter of who is the "appointing authority" depends upon reference to other statutory sections to determine, in application to this case, the municipal officer having the power of appointment to, or removal from, positions in the municipal fire department.
R. C.
It thus appears from these sections that the power of appointment lies solely with the director of public safety, with the chief of the fire department having the power under R. C.
It is thus our opinion, comparable to that of the court inSnider v. Martins Ferry, supra (
There being no final order of suspension by the director of public safety existing at the time appellant filed his appeal of his suspension on November 4, 1977, there was thus no order of suspension appealable to the civil service commission by appellant; hence, that commission had no jurisdiction to entertain the appeal, and its decision affirming the order of suspension *176 was void. To that degree, the first assignment of error is well taken.
Second Assignment of Error: "The commission erred in affirming the removal since it was not in compliance with the procedural requirements of Section
Third Assignment of Error: "The commission erred in affirming the removal order for the reason that it was manifestly against the weight of the evidence."
Fourth Assignment of Error: "The commission erred in failing to set aside the removal order for the reason that such order is not based on grounds prescribed by statute."
We consider the second, third and fourth assignments of error, all dealing with removal, together. It appears from the record that although the chief of the fire department suspended appellant on October 27, 1977, "pending investigation and trial" "based on charges filed against you, concerning action of misconduct with the city Fountain on October 26, 1977," the director of public safety (service-safety director) did not follow up on this suspension and render judgment thereon as prescribed by R. C.
As we have heretofore determined, the November 4, 1977, appeal to the civil service commission was premature, and no appeal was taken subsequent to that date, "in writing," as prescribed by R. C.
"Re: William Martin
"Firefighter — City of Bellefontaine
"Gentlemen:
"We, as counsel for the Ohio Civil Service Employees Association, have been requested by one of its members Mr. William Martin to represent him before the Civil Service Commission *177 in the appeal of his suspension and removal from his position as firefighter with the City of Bellefontaine.
"Mr. Martin has notified us that a hearing was scheduled for December 2, 1977 in this matter. We respectfully request that a continuance be granted for at least two or three weeks so that we can properly prepare the Appellant's defense in this matter."
In our opinion and judgment this is no more than what it purports to be, a letter entering the firm's appearance as counsel for appellant and seeking a continuance of a hearing assigned, originally, on the suspension appeal.
The appeal filed in writing by appellant on November 4, 1977, was premature as to the suspension because the suspension was not finalized. It was likewise premature and ineffective as to the removal because the removal had not occurred, nor did the writing, by its terms, purport to pertain to such removal. Further, there was no appeal in writing filed with the civil service commission after the removal. Consequently, there was never, at any time, an appeal in writing to the civil service commission of the removal.
An appeal in writing filed with the municipal civil service commission, as prescribed by the last paragraph of R. C.
We conclude that the second, third and fourth assignments of error are not well taken on the specific grounds set forth therein, but each is well taken as it pertains to the general authority of the civil service commission to affirm the removal order.
Fifth Assignment of Error: "The commission erred in refusing to reconsider the matter or in the alternative, for refusing to grant the request for separate findings of fact and conclusions of law."
We find this assignment of error not well taken for there is no provision in law requiring the municipal civil service commission either to reconsider the matter or to grant a request for separate findings of fact and conclusions of law. *178
Accordingly, although we have found no error prejudicial to appellant on the specific grounds set forth in the assignments of error, we have found that the jurisdiction of the civil service commission was not invoked and that it had no authority, therefore, to proceed on the appeal of either the suspension or removal of appellant, or to affirm same. The assignments of error have been framed by appellant with reference to the action of the civil service commission and not with reference to the action of the Court of Common Pleas in affirming same. Nevertheless, since the civil service commission had no jurisdiction, the only proper order the commission could make was to dismiss the "appeal(s)" as it, or they, related to the suspension and the removal.
The Court of Common Pleas should have found the same prejudicial error as we have found in the improper exercise of jurisdiction by the civil service commission and should have either modified the order of the civil service commission by dismissing the purported appeals or remanded the matter to the commission with instructions to render an order of dismissal (R. C.
Judgment reversed.
COLE and MILLER, JJ., concur. *179