State ex rel. Brenders v. Hall - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
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The State ex rel. Brenders v. Hall et al.
[Cite as State ex rel. Brenders v. Hall (1995), Ohio St.3d .]
Civil service -- Promotional examination for police lieutenant
-- Action in quo warranto seeking appointment to position
-- Claim that examination was not "competitve" because one
out of one hundren forty-five questions was improper --
Court will not substitute its opinion for that of the
municipal civil service commission, when.
(No. 94-275 -- Submitted January 24, 1995 -- Decided March
29, 1995.)
In Quo Warranto.
Relator, James T. Brenders, and respondent, Timothy J.
Hall, are police officers of the Police Department of Brook
Park, Ohio. On August 23, 1993, Brenders and Hall took the
police lieutenant promotional examination given by respondent,
Brook Park Civil Service Commission ("commission").
Hall received the highest grade of the candidates for the
police lieutenant position, and Brenders received the second
highest grade. Hall's higher grade was the result of having
one more correct answer than Brenders. On August 27, 1993,
Brenders challenged, inter alia, question 11 of the promotional
examination. The question provided:
"During a police search of an area, suspects will most
frequently hide
"(a) under houses, bushes, etc.
"(b) behind large objects
"(c) inside small recessed areas
"(d) on the roofs of houses, sheds, etc."
Brenders answered "a" to question 11, and Hall answered
"d," the latter being the correct response according to the
answer key. In his challenge, Brenders claimed that the best
answer was actually "a." If question 11 were voided, Brenders
and Hall would receive the same score, and Brenders would be
entitled to the police lieutenant position because he has more
seniority than Hall. Rule VI(3) of the Rules and Regulations
of the Brook Park Civil Service Commission.
The commission referred Brenders's challenges to
International Personnel Management Association ("IPMA"), the

company that prepared the examination, for its review. IPMA
reviewed Brenders's challenges and noted that answer "d" to
question 11 of the promotional examination was supported by an
excerpt from Principles of Police Patrol by N.F. Iannone. On
September 20, 1993, the commission rejected Brenders's
challenges "based upon the documentation received from IPMA
supporting their answers to the questions challenged."
Brenders attempted to "appeal" the commission's denial of his
challenge with the commission, but the commission informed him
that it was not a proper appeal. On October 6, 1993, the
commission certified the names of Hall, Brenders, and two other
candidates on the eligible list for police lieutenant, with
Hall ranked first and Brenders second. Hall was appointed
police lieutenant based upon his score on the promotional
examination.
Brenders instituted this action in quo warranto against
Hall, the city of Brook Park, its civil service commission and
its police department, seeking Hall's ouster from, and
Brenders's appointment to, the position of Brook Park Police
Lieutenant.

Randall M. Perla and Scott D. White, for relator.
Duvin, Cahn, Barnard & Messerman and Kenneth B. Stark, for
respondents.

Per Curiam. Brenders asserts in his sole proposition of
law that the office of lieutenant in the Brook Park Police
Department is being unlawfully held by Hall, and should be
rightfully held by him, because the promotional examination was
not competitive.
"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." R.C. 2733.06. A police officer of a municipal
corporation is a public officer and 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, affirmed (1966), 7 Ohio St.2d 104,
36 O.O.2d 85, 218 N.E.2d 438. In order for a writ of quo
warranto to issue, a relator must establish (1) that the office
is being unlawfully held and exercised by respondent, and (2)
that relator is entitled to the office. State ex rel. Paluf v.
Feneli (1994), 69 Ohio St.3d 138, 141, 630 N.E.2d 708, 710;
State ex rel. Delph v. Barr (1989), 44 Ohio St.3d 77, 541
N.E.2d 59, syllabus. Where proceedings before a municipal
civil service commission are not quasi-judicial, a relator in a
quo warranto action has no adequate remedy by appeal, and a
consideration of the merits is required. State ex rel.
McArthur v. DeSouza (1992), 65 Ohio St.3d 25, 599 N.E.2d 268.
Section 10, Article XV of the Ohio Constitution provides
that "[a]ppointments and promotions in the civil service of ***
cities, shall be made according to merit and fitness, to be
ascertained, as far as practicable, by competitive
examinations." R.C. 124.31(B) provides that "[a]ll
examinations for promotions shall be competitive and in
writing." R.C. 124.44 provides that "[n]o position above the
rank of patrolman in a police department shall be filled by any
person unless he has first passed a competitive promotional

examination" and "[a]fter such examination has been held and an
eligible list established, the commission shall forthwith
certify to the appointing officer the name of the person
receiving the highest rating." Under Section 10.02 of the
Brook Park City Charter (1986 replacement), the commission
"shall provide by rule for ascertainment of merit and fitness
as the basis for appointment and promotion ***."
Relator claims that the police lieutenant promotional
examination was not "competitive," where one of the questions
lacked objective support and was inconsistent with the assigned
study materials. The word "competitive" is not defined in the
Ohio Constitution or the Revised Code. In the absence of a
specific statutory definition, words used in a statute must be
interpreted in their usual, normal, or customary meaning. R.C.
1.42; State ex rel. Cassels v. Dayton City School Dist. Bd. of
Edn. (1994), 69 Ohio St.3d 217, 220, 631 N.E.2d 150, 153. A
"competitive civil service examination" has been defined as an
"[e]xamination which conforms to measures or standards which
are sufficiently objective to be capable of being challenged
and reviewed by other examiners of equal ability and
experience." Black's Law Dictionary (6 Ed.1990) 284; State ex
rel. Delph v. Greenfield (1991), 71 Ohio App.3d 251, 262, 593
N.E.2d 369, 376.
In determining the breadth of the term "competitive," it
should be emphasized that the "fundamental purpose of civil
service laws and rules is to establish a merit system, whereby
selections for appointments in certain branches of the public
service may be made upon the basis of demonstrated relative
fitness, without regard to political considerations, and to
safeguard appointees against unjust charges of misconduct and
inefficiency, and from being unjustly discriminated against for
religious or political reasons or affiliations. ***" Curtis
v. State ex rel. Morgan (1923), 108 Ohio St. 292, 140 N.E. 522,
paragraph four of the syllabus; State ex rel. Zone v. Cleveland
(1986), 23 Ohio St.3d 1, 6, 23 OBR 1, 5, 490 N.E.2d 600,
604-605. The civil service laws may not be invoked where no
discrimination is claimed and no charges have been made
involving misconduct, inefficiency, or other delinquency.
Curtis, supra.
In State ex rel. King v. Emmons (1934), 128 Ohio St. 216,
221, 190 N.E. 468, 471, this court stated:
"What, then, is meant by 'competitive examination?' In a
competitive examination, the candidates match their
qualifications, each against the others, and the final
determination is made by rating and comparison. It is open to
all who are eligible. In contrast, a non-competitive
examination is one in which the examining authority selects at
pleasure such candidates as he may choose and subjects them to
examination as he deems necessary." See, also, Almassy v. Los
Angeles Cty. Civ. Serv. Comm. (1949), 34 Cal.2d 387, 398, 210
P.2d 503, 510.
In the case at bar, Brenders claims that the examination
was not competitive because one out of the one hundred
forty-five questions was improper. However, the fact that one
question may have been improper does not in and of itself
compromise the fundamental purpose of the civil service laws.
There is no evidence that the commission or Hall engaged in

misconduct that gave Hall an unfair advantage over Brenders.
Cf. State ex rel. Hanley v. Roberts (1985), 17 Ohio St.3d 1, 7,
17 OBR 1, 6, 476 N.E.2d 1019, 1024, at fn. 8, where the court
opined that "[w]here any applicant has taken an examination
'substantially the same' as one taken previously, and his
competitors have not taken the previous examination, such
applicant certainly would enjoy an unfair advantage and the
second examination becomes less 'competitive.'" Additionally,
there is no evidence that the commission closed the examination
to eligible applicants or selected Hall over Brenders based on
anything other than the examination. Courts should not be
"drawn into preparing, revising and correcting questions in
Civil Service examinations, supervising the examinations, and
finally rating the papers." Blumenthal v. Morton (1948), 273
A.D. 497, 503, 78 N.Y.S.2d 302, 307 (Dore, J., dissenting).
New York was the first state to make the civil service
merit and fitness requirement part of its Constitution, in an
effort to ensure that "competence, rather than cronyism, ***
determine civil service appointments." McGowan v. Burstein
(1988), 71 N.Y.2d 729, 733, 530 N.Y.S.2d 64, 65, 525 N.E.2d
710, 711. New York courts have noted that while municipal
civil service commissions are vested with wide discretion in
preparing and grading examinations for civil service positions,
they must comport with the constitutional provision that
promotions in the civil service shall be made according to
merit ascertained by competitive examinations. See, e.g.,
Blumenthal, supra. As to multiple-choice promotional
examinations, the court in Blumenthal held, 273 A.D. at
500-501, 78 N.Y.2d at 305:
"A 'best' answer is something different from an acceptable
answer. It is a relative matter and assumes, by the very
employment of the word 'best,' that there are alternatives of
relative merit of which one is the best. As a civil service
examination is intended to test relative merit, the kind of
examination employed here, calculated to determine and test the
discernment and judgment of the candidates in making a
selection of the best of several alternatives, is peculiarly
appropriate. The entire virtue of such an examination,
however, lies in the existence of an objectively best answer.
It is obvious that if more than one answer to a question is
accepted as best, an action which is antithetical, there is a
denial of a rating based on relative merit.
"It can hardly be argued, therefore, that if a question is
susceptible of a single best answer it is permissible to accept
as best other answers which are not relatively as good. To
give the Commission discretion to do so would be to tolerate a
subjective standard or measure which is not permitted. The
Commission should certainly be expected and required,
therefore, to select the single best answer whenever it is
objectively possible to do so. ***"
State courts will generally not intervene in municipal
civil service commission matters in the absence of an abuse of
discretion. See Vaughn, Principles of Civil Service Law
(1976), Section 3.5[4]. In Ohio, the administration of
competitive examinations is a primary function of municipal
civil service commissions. See 1 Gotherman & Babbitt, Ohio
Municipal Law (2 Ed.1992) 167, Section T 10.09. As in other

states, Ohio courts have held that municipal civil service
commissions possess broad discretion regarding competitive
promotional examinations. See, e.g., Local No. 67, Internatl.
Assn. of Firefighters v. Columbus (Nov. 17, 1987), Franklin
App. No. 86AP-428, unreported, Underwood v. Bellefontaine
(1939), 64 Ohio App. 205, 18 O.O. 70, 28 N.E.2d 663. In
extraordinary writ cases, courts will not substitute their
judgment for that of the municipal civil service commission
when the commission properly exercised its discretion. See
State ex rel. Ohio Assn. of Pub. School Emp. v. Girard Civ.
Serv. Comm. (1976), 45 Ohio St.2d 295, 297, 74 O.O.2d 463, 464,
345 N.E.2d 58, 60.
Although question 11 of the Brook Park police lieutenant
promotional examination is perhaps not a paragon of civil
service test drafting, the commission did not abuse its broad
discretion in relying on the test preparer's citation of the
following excerpt from Principles of Police Patrol to support
the accepted response to the question:
"*** Criminals have a saying that police officers look
everywhere but up, and so they frequently hide on roofs of
sheds, patios, coverings of barbeques, etc."
An abuse of discretion implies an attitude that is
unreasonable, arbitrary, or unconscionable. See Rock v. Cabral
(1993), 67 Ohio St.3d 108, 112, 616 N.E.2d 218, 222. The
foregoing excerpt from an examination source book supports the
commission's decision to reject Brenders's protest. Since
there is adequate authority for the answer given by Hall as the
"best answer," this court "may not substitute its opinion for
that of the [commission] because a difference of opinion may
exist as to which answer is the 'most acceptable.'***" Gulotta
v. Falk (1959), 9 App.Div.2d 580, 189 N.Y.S.2d 615, 617.
Accordingly, Brenders has failed to establish either that
the office of Brook Park police lieutenant is being unlawfully
held by Hall or that he is entitled to Hall's position.
Brenders's request for a writ of quo warranto is denied.1
Writ denied.
Douglas, Wright, Resnick, F.E. Sweeney and Pfeifer, JJ.,
concur.
Moyer, C.J., and Cook, J., concur in part and dissent in
part.

FOOTNOTES:
1 Respondents' main argument against Brenders's claim for
extraordinary relief, which they raised in their brief on the
merits rather than via a motion to strike, is that most, if not
all, of Brenders' submitted evidence is inadmissible and thus
not properly before the court. Contrary to Brenders's
contention in his reply brief, evidence submitted under the
Supreme Court Rules of Practice in an original action in this
court should comport with the Rules of Evidence. See Staff
Note to Evid.R. 101(A) (Evidence Rules may be applicable to "a
proceeding in the Supreme Court, as where the Court hears an
action on original jurisdiction based on an extraordinary
writ"); State ex rel. Taft v. Franklin Cty. Court of Common
Pleas (1992), 63 Ohio St.3d 190, 192-193, 586 N.E.2d 114, 116
(court granted respondents' motion to strike exhibits in
prohibition action where they were to be held not properly

authenticated). Brenders claims, inter alia, that since
respondents city of Brook Park, its civil service commission,
and its police department provided him with those exhibits in
an attempted civil service appeal of the commission's decision,
they waived any objection to their authentication or
admissibility in this action. Nevertheless, based upon our
disposition of Brenders's claims, even assuming, arguendo, the
propriety of his submitted evidence, Brenders's action in quo
warranto fails.
State ex rel. Brenders v. Hall et al.
Cook, J., concurring in part and dissenting in part.
Although I concur with the court's opinion, I believe it
illustrates the absence of good ground to support this action
for an extraordinary writ. I would, sua sponte, find the
filing of this action to be a violation of Civ.R. 11 and impose
sanctions of $500 on counsel for relator. Had opposing counsel
moved before judgment for an award of fees, I would have
granted the sanction of payment of the respondents' reasonable
attorney fees.
Moyer, C.J., concurs in the foregoing opinion.