58 Ohio St. 2d 67 | Ohio | 1979
The single issue before this court is whether R. C. 124.34 provides an appointing authority the right to appeal an order of the State Personnel Board of Review, modifying an employee’s removal order to a suspension order, to the Court of Common Pleas.
“In any case of reduction, suspension of more than five working dags, or removal, the appointing authority shall furnish such employee with a copy of the order of reduction, suspension, or removal, which order shall state the reasons therefor. Such order shall be filed with the director of administrative services and state personnel board of review, or the commission, as may be appropriate.
“Within ten days following the filing of such order, the employee may file an appeal, in writing, with the state ■personnel board of review or the commission. In the event such an appeal is filed, the board or 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 board or commission, and it may affirm, disaffirm, or modify the judgment of the appointing authority.
“In cases of removal or reduction in pay for disciplinary .reasons, cither the appointing authority or the officer •or employee may appeal from the decision of the state personnel board of revieio or the commission to the court of •common pleas of the county in which the employee resides in accordance with the procedure provided by section 119.-12 of the Revised Code.” (Emphasis added.)
Appellant Reinier refers to the third paragraph above, and states that the appointing authority can only appeal to the Court of Common Pleas “[i]n cases of removal or reduction in pay.” He then argues that since the board modified the appointing authority’s order from a removal to a suspension, the case became a “suspension case” and that, therefore, it was not appealable. The ap-pellees concede that only “cases of removal or reduction in pay” are appealable to the Court of Common Pleas; however, they maintain that since the original order was a removal order, this was a “case of removal” and that, therefore, it was appealable.
The Court of Appeals of the Third District resolved
“Although the appeals to the Board hére originally involved removal from employment the Board in its decision, except as to five persons, modified each order of removal to an order of 90 day suspension starting on the ■affective date of the removal order with reinstatement to the employee’s position on the day following the completion of the suspension. The order of modification thus became constructively and by operation of law the order of the appointing authority and the only order remaining in the respective case of the affected employee. Such orders of suspension not constituting ‘cases of removal or reduction in pay for disciplinary reasons’ there existed no authority either under the constitution or under statute for a suspended employee to appeal the decision of the board to the court of common pleas of the county of his residence and that court of common pleas was, therefore, without jurisdiction to entertain his appeal although in each of these appeals the court of common pleas proceeded to act.” (Emphasis added.)
The Court of Appeals for Morrow County has also' adopted this position in Shaffer v. Denton (Aug. 5, 1976, No. CA-527), unreported.
.A contrary position has been-taken by the Court of Appeals for Franklin County not only in the present cause, but also in another recent decision from that court. In the case of In re Stanley (1978), 56 Ohio App. 2d 1, the Court of Appeals for Franklin County, at pages 2-3, stated as follows on this issue:
“The issue before us is whether the right to appeal— that is, the nature of the case as one of removal or reduction in pay for disciplinary reasons — is determined by the initial action of the appointing authority or by the action of the civil service commission upon appeal to it. The trial court apparently found that the nature of the case is determined by the order of the civil service commission, rath*71 er than by the order of the appointing authority, relying upon Anderson v. Minter (1972), 32 Ohio St. 2d 207.
‘■'The Anderson case has no application herein, inasmuch as the original action by the appointing authority was a suspension for a period of five days or less, and the Supreme Court held that, under such circumstances, the ■employee has no right of appeal to the state personnel hoard of review or municipal civil service commission in accordance with the express terms of R. C. 143.27 (now E. C. 124.34).
“The determination that the character of a case— whether it involves removal or concerns reduction — from the action of the appointing authority is mandated by that portion of R. G. 124.34 which confers a right of appeal upon the appointing authority, as well as the employee, in cases of removal or reduction in pay for disciplinary reasons.
■ “Otherwise, there could never be an effective appeal by an appointing authority, since it is only when the action of the civil service commission is either to reverse or modify the action,of the appointing authority, that such a/n appeal could be taken, and the order of the civil service commission would not he that of removal or reduction in pay hut, instead, would be an order of reinstatement with or without a period of suspension. Although not expressly deciding the issue, this result is indicated by State, ex rel. Bingham, v. Riley (1966), 6 Ohio St. 2d 263, and State, ex rel. Stough, v. Bd. of Edn. (1977), 50 Ohio St. 2d 47.” (Emphasis added.).
The rationale of the Stanley case focuses on the fact that E. -C. 123.34 confers upon .both the employee and the appointing authority the right to appeal a removal case or a reduetion-in-pay case to the Court of Common Pleas. As the Stanley■ court pointed out above, this: right of appeal would be meaningless to the appointing authority, if the decision of the board were to determine the nature of the ease. Obviously, the appointing authority will not appeal a decision of the board which affirms one of -his orders. However, he will want to appeal an order of the board
A review of this court’s decisions reveals that this issue has not been decided by this court; yet, certain cases, are worthy of discussion. The case that the Court of Com-mo'n Pleas relied upon in dismissing the appeal, State, ex rel. Osborn, supra (46 Ohio St. 2d 41), is distinguishable from the cause at bar because in Osborn, the issue was whether the Director of the Ohio Department of Transportation had the right to appeal the State Personnel Board of Review’s order disaffirming the Director’s layoff order. The Osborn case was not concerned with the application of R. 0. 124.34, which is the central issue in the instant cause.
We distinguished Osborn for this same reason in Jackson v. Chapman (1978), 54 Ohio St. 2d 282. In Jackson, we held that the Director of Transportation had the right to appeal the State Personnel Board of Review’s disáffirmance of his removal order, pursuant to R. 0. 124.34. The logic of appellant’s position here conflicts with that holding. Appellant argues that the board’s modification of the removal order to a suspension order made the case a suspension case. In that respect, he quotes the Diebler court’s statement that “[t]he order of modification thus became constructively and by operation of law the order of the appointing authority * * Diebler, supra (49 Ohio App. 2d 303), at page 309. A logical extension of that interpretation would mean that where the board disaffirms a removal order, the ease is no longer a removal case, and no appeal lies. However, in Jackson, supra, we held that an
It is oar determination that the appellant’s interpretation of R. C. 124.3'4 not only conflicts with oar decision in Jackson, bat that it also is contrary to the rale of statutory construction that each provision in a statute should he given effect. The General Assembly provided both the employee and the appointing authority with a right of appeal to the Court of Common Pleas, and our interpretation of R. C. 124.34 should not ma,ke the appeal right meaningless to the appointing authority. Therefore, we hold that where the State Personnel Board of Review modifies an appointing authority’s removal order to a suspension order, the case remains a “case of removal” within the meaning of R. C. 124.34 and, therefore, an appeal lies to the Court of Common Pleas under that statute.
For the foregoing reasons, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
