State ex rel. Fenwick v. Finkbeiner - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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The State ex rel. Fenwick, Appellee v. Finkbeiner, Mayor,
Appellant.
[Cite as State ex rel. Fenwick v. Finkbeiner (1995),
Ohio
St.3d .]
Prohibition -- Court of appeals errs in granting writ of
prohibition to Toledo Director of Health and Environment
who was to be dismissed by newly elected mayor under
Section 69 of the city's charter, when.
(No. 94-708 -- Submitted April 18, 1995 -- Decided July 5,
1995.)
Appeal from the Court of Appeals for Lucas County, No.
L-93-367.
In 1990 and 1991, purporting to act under R.C. 3709.051
and Section 102 of its charter,2 the city of Toledo enacted
ordinances creating a city Department of Health and
Environment, an advisory Health Commission, and a Director of
Health and Environment to replace the statutory board of health
otherwise required by R.C. 3709.05. Toledo Municipal Code
139.01, 139.02, and 149.01. Appellee, Joseph W. Fenwick, was
appointed Director of Health and Environment on March 26,
1993. In December 1993, appellant, Carlton S. Finkbeiner, then
Mayor-elect of Toledo, informed appellee either that he would
dismiss him (appellee's version) or not reappoint him
(appellant's version) as director. Section 69 of the Toledo
Charter3 permits the mayor to remove departmental directors at
will. Subsequently, appellee sought a writ of prohibition in
the court of appeals, alleging that the aforementioned
provisions of the Toledo Municipal Code violate the state
Constitution and laws, and that any attempt by appellant to
remove him would also be unlawful.
The court of appeals found the ordinances void ab initio,
that Toledo had exceeded the scope of authority granted by R.C.
3709.05, and that appellee was a member of the classified state
service who could only be dismissed for cause pursuant to R.C.
124.34. It allowed a writ of prohibition. Appellant appealed
as a matter of right.

Nathan & Roberts, R. Michael Frank and W. David Arnold,
for appellee.
John G. Mattimoe, Director of Law, Mark S. Schmollinger,
General Counsel, and Robert G. Young, Senior Attorney, for
appellant.
Malcolm C. Douglas, urging reversal for amici curiae, Ohio
Municipal League and Ohio Municipal Attorneys Association.

Per Curiam. Because we find that appellee has an adequate
remedy at law we reverse the judgment of the court of appeals.
In his first proposition of law, appellant argues that the
court of appeals had no authority to issue a writ of
prohibition because appellee's dismissal is not a judicial or
quasi-judicial act and because appellee has adequate remedies
at law, although appellant does not specify the remedies that
are adequate. Appellee argues that prohibition is appropriate,
or alternatively, that mandamus or quo warranto is appropriate.
"The prerequisites for issuing a writ of prohibition are
(1) that the respondent is about to exercise judicial or
quasi-judicial authority, (2) the authority is unauthorized by
law, and (3) denying the writ will result in injury for which
no other adequate remedy exists in the ordinary course of
law." Ohio Dept. of Adm. Serv. v. State Emp. Relations Bd.
(1990), 54 Ohio St.3d 48, 53, 562 N.E.2d 125, 130. The court
of appeals found appellant was about to engage in
quasi-judicial authority by terminating appellee. We concede,
without deciding, that dismissal of an employee may be
considered a quasi-judicial act under some circumstances. In
State ex rel. Nolan v. ClenDening (1915), 93 Ohio St. 264, 112
N.E. 1029, an early prohibition case, we allowed the writ,
prohibiting a state administrative tribunal with authority to
remove certain officers for specified causes from removing the
relator for a different cause. However, Nolan makes it clear
that the decision is predicated on the lack of an adequate
remedy. 93 Ohio St. at 272, 112 N.E. at 1031. Thus, the
determinative issue in this case, as in Nolan, is the
availability of adequate legal remedies.
In Yarosh v. Becane (1980), 63 Ohio St. 2d 5, 17 O.O.3d 3,
406 N.E.2d 1355, we held at paragraph two of the syllabus:
"The State Personnel Board of Review has jurisdiction over
appeals from removals of public employees if it determines that
such employees are in the classified service, regardless of how
they have been designated by their appointing authorities."
(Emphasis added.)
Under R.C. 124.40, the municipal civil service commission
has the same authority with respect to city health district
employees. In State ex rel. Weiss v. Indus. Comm. (1992), 65
Ohio St. 3d 470, 605 N.E.2d 37, we refused to issue a writ of
mandamus to reinstate an employee who claimed to have been
wrongly transferred from the classified to the unclassified
civil service, and then dismissed the complaint, finding that
appeal under R.C. 124.34 was an adequate remedy at law. See,
also, State ex rel. Gillivan v. Bd. of Tax Appeals (1994), 70
Ohio St. 3d 196, 638 N.E.2d 74.
Just as we have held that the statutory appeals process is
adequate to deny a writ of mandamus seeking to reinstate an
employee, so we hold that such process is adequate to deny a

writ of prohibition seeking comparable relief. However, the
availability of adequate remedies is irrelevant if the lower
tribunal is without jurisdiction whatsoever to act and the lack
of jurisdiction is patent and unambiguous. Ohio Dept. of Adm.
Serv, supra, 54 Ohio St. 3d at 51, 562 N.E.2d at 128-129,
citing State ex rel Adams v. Gusweiler (1972), 30 Ohio St. 2d
326, 59 O.O.2d 387, 285 N.E.2d 22 (tribunal lacked any
jurisdiction whatsoever), and State ex rel. Safeco Ins. Co. of
Am. v. Kornowski (1974), 40 Ohio St. 2d 20, at 22, 69 O.O.2d
90, at 91, 317 N.E.2d 920, at 921 (lack of jurisdiction was
patent and unambiguous).
In Gusweiler, we specifically distinguished cases in which
the inferior tribunal had at least basic statutory jurisdiction
to proceed in the case. 30 Ohio St.2d at 329, 59 O.O.2d at
389, 285 N.E.2d at 24.
Section 69 of the Toledo Charter grants appellant basic
authority to remove appellee. Moreover, any lack of authority
is far from patent and unambiguous. Therefore, the
availability of alternative remedies must be considered, and we
find that the appeal process provided by R.C. Chapter 124 is an
adequate remedy. In so holding, we express no opinion as to
the validity of Toledo's ordinances or appellant's ultimate
authority to dismiss appellee.
Appellee's claim that his action is alternatively
appropriate in mandamus or quo warranto is unpersuasive. We
have held in Weiss and Gillivan, supra, that mandamus is not
available to reinstate an employee because the appeal procedure
provided by R.C. Chapter 124 is an adequate remedy. Therefore,
it is not available to cause retention of an employee faced
with dismissal where the rights claimed by the employee include
access to R.C. Chapter 124's appeal procedure. Appellee's quo
warranto claim is that appellant is usurping the duties and
functions of the board of health. However, a quo warranto
claim may be brought by someone other than the Attorney General
or a prosecuting attorney only when that person claims title to
the office. State ex rel. Annable v. Stokes (1970), 24 Ohio
St.2d 32, 53 O.O.2d 18, 262 N.E. 2d 863. Appellee makes no
claim of title to be the successor to the office of the board
of health. Quo warranto has no application to these facts.
Moreover, as this case was not argued as a mandamus or quo
warranto action in the court of appeals, we find no basis in
law to convert it on appeal.
The judgment of the court of appeals is reversed.
Judgment reversed.
Moyer, C.J., F.E. Sweeney, Pfeifer and Cook, JJ., concur.
Wright, J., concurs in judgment only.
Douglas and Resnick, JJ., not participating.

FOOTNOTES:
1 Former R.C. 3709.05 stated in part:
"Unless an administration of public health different from
that specifically provided in this section is established and
maintained under authority of its charter, * * * the
legislative authority of each city constituting a city health
district shall establish a board of health, composed of five
members appointed by the mayor and confirmed by the legislative
authority, to serve without compensation."

2 Section 102 of the Toledo Charter states:
"Change in Departments and Divisions. The Council may
change, abolish, combine, and rearrange the departments and
divisions of the City government and combine and distribute the
functions and duties thereof upon the written request of the
Mayor."
3 Section 69 of the Toledo Charter states in part:
"Removals by the Mayor. The Mayor's staff, all Directors
and Commissioners of City departments and all chief
administrative officers of any other City agencies shall serve
at the pleasure of the Mayor and may be removed at the will of
the Mayor."