State ex rel. McArthur v. DeSouza (1992), Ohio St.3d - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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The State ex rel. William A. McArthur v. Mark A. DeSouza
et al.
[Cite as State ex rel. McArthur v. DeSouza (1992),
Ohio St.3d .]
Civil service -- R.C. 124.31, construed -- Term "years of
service" in R.C. 124.31 includes service earned with other
political subdivisions.
(No. 91-864 -- Submitted July 29, 1992 -- Decided October
14, 1992.)
In Quo Warranto.
Relator, William A. McArthur, was appointed to the
position of patrolman with the Elyria Police Department in June
1983. Prior to that time, he served with the Lorain County
Sheriff's Department as a deputy sheriff for a period of nine
years and nine months. Both positions were in the classified
civil service.
On April 9, 1990, relator, along with respondent Mark A.
DeSouza ("DeSouza") and others, took a written examination for
promotion within the police department to the rank of
sergeant. Relator passed the written examination and was
ranked eighth on the promotion eligibility list. DeSouza was
ranked fourth. Relator's rank was based upon his raw score on
the written examination plus seniority credit for his service
with the Elyria Police Department. He was not given seniority
credit for his prior service with the Lorain County Sheriff's
Department. Had relator received such credit, he would have
ranked fourth on the eligibility list, ahead of DeSouza.
On May 4, 1990, relator filed a written protest with the
Elyria Civil Service Commission ("commission"), pursuant to its
Rule 5.8(a), requesting that he be granted seniority credit for
his prior county service. Relator, along with DeSouza and his
attorney, addressed this issue before the commission at its May
9, 1990 meeting. The minutes of that meeting reflect that
"[t]he Commission listened to Mr. DeSouza and [his attorney]
and also from [relator] in regards to the question raised," and
that the commission would "take the matter under advisement
until the protest period is over and an official promotion list

is prepared." At its next meeting, held June 21, 1990, the
commission certified the existing eligibility list, on which
relator was ranked eighth, but did not rule directly upon
relator's protest. Relator took no action in response to the
commission's certification.
The first three individuals on the eligibility list had
been promoted to the rank of sergeant by March 1991, at which
time relator learned of another vacancy in that position. On
March 28, 1991, he filed a complaint for declaratory judgment
and injunctive relief in the Court of Common Pleas of Lorain
County, alleging that he was entitled to seniority credit for
his prior service with the sheriff's department, and requested
that the city civil service commission be enjoined from
certifying DeSouza. On April 8, 1991, the court denied
relator's motion for a temporary restraining order and
dismissed relator's complaint.1 DeSouza was appointed to the
rank of sergeant on April 15, 1991.
Relator filed this original action in quo warranto on
April 26, 1991, seeking DeSouza's ouster from, and his
appointment to, the rank of sergeant. Respondents city of
Elyria; city of Elyria Civil Service Commission; and Timothy
Coey, Safety Service Director (collectively "the city"), each
filed an answer on May 29, 1991; and DeSouza filed his answer
on June 7, 1991. This cause is before us upon the basis of
these pleadings, the evidence filed by relator on July 5, 1991,
and the briefs of the parties.

Gareau & Dubelko Co., L.P.A., Michael R. Gareau and James
M. Dubelko for relator.
Riley, Koury, Resar & Brill and Patrick D. Riley for
respondent Mark A. DeSouza.
Terry S. Schilling, City Solicitor, and Gino Pulito, for
respondents city of Elyria; city of Elyria Civil Service
Commission; and Timothy Coey, Safety Service Director.

Per Curiam. It is settled that an action in quo warranto
will not lie where there exists an adequate remedy by way of
appeal. State ex rel. Steyer v. Szabo (1962), 174 Ohio St.
109, 21 O.O.2d 366, 186 N.E.2d 839; State ex rel. Hanley v.
Roberts (1985), 17 Ohio St.3d 1, 17 OBR 1, 476 N.E.2d 1019.
Respondents claim that the commission's certification of the
promotional eligibility list on June 21, 1990 effectively
denied relator's protest, and that relator's proper remedy was
to appeal that determination under R.C. 2506.01. That statute
provides that "[e]very final order, adjudication, or decision
of any * * * commission * * * of any political subdivision of
the state may be reviewed by the court of common pleas of the
county in which the principal office of the political
subdivision is located * * *."
However, in Fortner v. Thomas (1970), 22 Ohio St.2d 13, 51
O.O.2d 35, 257 N.E.2d 371, we construed Section 4(B), Article
IV of the Ohio Constitution (" * * * [C]ourts of common pleas
shall have * * * such powers of review of proceedings of
administrative officers and agencies as may be provided by
law."), as providing for review of quasi-judicial proceedings
only.

In M.J. Kelley Co. v. Cleveland (1972), 32 Ohio St.2d 150,
61 O.O.2d 394, 290 N.E.2d 562, paragraph two of the syllabus,
we stated that "[p]roceedings of administrative officers and
agencies are not quasi-judicial where there is no requirement
for notice, hearing and the opportunity for the introduction of
evidence." Accord DeLong v. Bd. of Edn. (1973), 36 Ohio St.2d
62, 65 O.O.2d 213, 303 N.E.2d 890; State ex rel. Rieke v.
Hausrod (1979), 59 Ohio St.2d 48, 13 O.O.3d 35, 391 N.E.2d 736.
Commission Rule 5.8(a), 2 under which relator filed the
protest of his examination grade, provides in part:
"* * * An applicant shall have the right to inspect his
own papers and inform himself as to the markings given him on
each subject or question and to submit in writing for the
Commission's consideration any objection or protest he may wish
to make concerning the grades given him. Such objection or
protest must be made within ten days after an applicant has
been notified of his grade. No grades given in any examination
shall be changed after the preparation of an eligible list
except after the consideration of reasons submitted in writing
by the applicant objecting to the grade given to him, and a
report thereon by the Commission; provided, however, that the
Chairman may correct clerical errors of examiners or employees
at any time before the expiration of such eligible lists."
Clearly, this rule does not require notice, hearing or the
opportunity to introduce evidence upon filing a protest to an
examination grade and, thus, does not contemplate a
quasi-judicial proceeding. Accordingly, we find that the
commission's effective denial of relator's protest was not
appealable under R.C. 2506.01, that he has no adequate remedy
at law, and that this action in quo warranto will lie. We turn
now to the merits of this case.
R.C. 2733.06 authorizes a private individual to bring an
action in quo warranto and provides:
"A person claiming to be entitled to a public office
unlawfully held and exercised by another may bring an action
therefor by himself or an attorney at law, upon giving security
for costs."
"A police officer of a municipal corporation is a public
officer, and as such he occupies a public office * * *." State
ex rel. Mikus v. Hirbe (1965), 5 Ohio App.2d 307, 34 O.O.2d
490, 215 N.E.2d 430, paragraph two of the syllabus, affirmed
(1966), 7 Ohio St.2d 104, 36 O.O.2d 85, 218 N.E.2d 438. Thus,
for a writ in quo warranto to issue in this proceeding, relator
must show (1) that he is entitled to the office, and (2) that
the office is being unlawfully held and exercised by respondent
DeSouza. State ex rel. Heer v. Butterfield (1915), 92 Ohio St.
428, 111 N.E. 279, paragraph one of the syllabus; State ex rel.
Hanley v. Roberts, supra; State ex rel. Delph v. Barr (1989),
44 Ohio St.3d 77, 541 N.E.2d 59, syllabus.
Relator's claim that he is entitled to the office and that
DeSouza holds it unlawfully is founded upon the commission's
failure to grant him seniority credit for his prior service
with the Lorain County Sheriff's Department. Under Section
16.05 of the Elyria Charter, the computation of seniority
credit is governed by R.C. 124.31, which provides in part:
"(B) All examinations for promotions shall be competitive

and in writing. In promotional examinations, efficiency and
seniority in service shall be added to the examination grade,
but no credit for seniority, efficiency, or any other reason
shall be added to an examination grade unless the applicant
achieves at least the minimum passing score on the examination
without counting such extra credit. Credit for seniority shall
equal, for the first four years of service, one per cent of the
total grade attainable in the promotion examination, and, for
each of the fifth through fourteenth years of service,
six-tenths per cent of the total grade attainable." (Emphasis
added.)
Relator contends that the term "years of service" should
be construed to include his years of prior service with the
county sheriff's department and relies upon State ex rel. Bigam
v. Hainen (1948), 150 Ohio St. 371, 38 O.O. 222, 82 N.E.2d 734,
and State ex rel. Ebersole v. Hurst (1960), 111 Ohio App. 76,
12 O.O.2d 325, 165 N.E.2d 235, to support his position. In
Bigam, we noted that the term "years of service" was used
broadly in the statute and construed it to include all of
relator's service in a municipal fire department, regardless of
the rank in which it was earned. In Ebersole the Court of
Appeals for Hamilton County, relying on our language in Bigam,
construed the term "years of service" to include all of
relator's service earned within various departments of a
municipality.3 We reaffirm our broad construction of the term
"years of service" in this proceeding and hold that it also
includes service earned with other political subdivisions.
This construction is consistent with the scope of state
civil service laws, which define "civil service" and
"classified service" in terms of state, county, and city
employment. R.C. 124.01. The city argues, however, that the
commission's rules, which define these terms in the context of
city employment, are controlling. This argument is without
merit. In State ex rel. Bardo v. Lyndhurst (1988), 37 Ohio
St.3d 106, 109, 524 N.E.2d 447, 450, citing State ex rel. Votaw
v. Matia (1932), 43 Ohio App. 279, 12 Ohio Law Abs. 414, 183
N.E. 122, affirmed on other grounds (1932), 125 Ohio St. 598,
183 N.E. 533, we stated that "[w]hile the express language of a
charter may abrogate or nullify a state civil service law, such
a result cannot be accomplished by a charter provision
delegating authority to a municipal commission to nullify the
law by adoption of a rule." In this case, the city charter
does not define the terms at issue and does not delegate any
rulemaking authority to the commission. While the commission's
authority to promulgate rules is derived from R.C. 124.40 (see
fn. 2), that authority is limited to rules which are consistent
with state law. Thus, because the definitions contained in the
rules conflict with R.C. 124.01, they cannot control. R.C.
124.40; Bardo, supra. Accordingly, we construe the term "years
of service" in R.C. 124.31 consistent with the statutory
definitions contained in R.C. 124.01, and find that relator's
prior county service should be included in computing his
seniority credit under R.C 124.31.
Relator's prior service with the county would have given
him the highest ranking on the eligibility list which existed
at the time the vacancy in the rank of sergeant occurred in

March 1991. R.C. 124.44 provides that "[i]f there is a[n]
[eligibility] list, the commission shall, where there is a
vacancy, immediately certify the name of the person having the
highest rating, and the appointing authority shall appoint such
person within thirty days from the date of such
certification." Thus, we conclude that relator is entitled to
be appointed to the rank of sergeant and that DeSouza holds and
exercises that position unlawfully. Accordingly, we allow
relator's writ and order DeSouza's ouster from, and relator's
appointment to, the position of sergeant with the Elyria Police
Department.
Writ allowed.
Moyer, C.J., Sweeney, Holmes, Douglas, Wright, H. Brown
and Resnick, JJ., concur.

FOOTNOTE
1 The Ninth District Court of Appeals subsequently reversed
the trial court's decision on procedural grounds, but, on
December 6, 1991, relator voluntarily dismissed his complaint
in the court of common pleas.
2 The city of Elyria is a charter municipality. Article XVI
of the charter creates a civil service commission and Section
16.05, "Powers, Duties and Functions," provides that "[t]he
provisions of the laws of the State of Ohio regarding
selection, promotion, demotion, discipline, and removal of
employees within the classified service of the City * * * shall
be applicable under this Charter unless such provisions
conflict with the provisions of this Charter." The charter
makes no provision to contest a civil service examination
grade, nor does it expressly grant the commission rulemaking
authority to do so. However, by the language of Section 16.05,
it is clear that the commission has such authority under R.C.
124.40, which allows municipal civil service commissions to
promulgate rules governing promotions which are not
inconsistent with state law. Because state law neither
authorizes nor prohibits an applicant from contesting his
promotional examination grade, Commission Rule 5.8(a) is not
inconsistent and thus controls.
3 The General Assembly has since amended the statute at
issue in Bigam and Ebersole (former G.C. 486-10 and R.C.
143.341, the applicable provisions of which are now contained
in R.C. 124.45, promotion of firemen) to read: "Credit for
seniority shall be based only on service in the municipal or
civil service township fire department * * *." R.C. 124.44,
promotions in police department, was not similarly amended and
seniority credit for police promotions remains governed by the
general "years of service" language applicable to all civil
service employees in R.C. 124.31. If the General Assembly or
the city of Elyria had wished to extend the same treatment to
police officers, each could have done so by amending R.C.
124.44 or the city charter, respectively. The decision not to
do so evidences their intent that the broader provisions of
R.C. 124.31 should apply to promotions within municipal police
departments.