The opinion
[Cite as State ex rel. Mun. Constr. Equip. Operators' Labor Council v. Cleveland, 2013-Ohio-374.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98516
STATE, EX REL. MUNICIPAL CONSTRUCTION
EQUIPMENT OPERATORS’ LABOR COUNCIL
RELATOR
vs.
CITY OF CLEVELAND
RESPONDENT
JUDGMENT:
WRIT DENIED
Writ of Mandamus
Motion Nos. 459720 and 459886
Order No. 460663
RELEASE DATE: February 6, 2013
ATTORNEY FOR RELATOR
Stewart D. Roll
55 Public Square, Suite 1950
Cleveland, Ohio 44113
ATTORNEYS FOR RESPONDENT
Barbara A. Langhenry
Director of Law
By: James C. Cochran
Assistant Director of Law
601 Lakeside Avenue
City Hall - Room 106
Cleveland, Ohio 44114-1077
TIM McCORMACK, J.:
{¶1} Relator, Municipal Construction Equipment Operators’ Labor Council, is
the exclusive labor representative for construction equipment operators employed by
respondent, the city of Cleveland. Relator avers that one of its members, Jeffrey Milum,
was discharged for other than good cause. Relator requests that this court issue a writ of
mandamus compelling respondent’s civil service commission (the “commission”) to
appoint a neutral referee to conduct a hearing at which Milum may challenge his
discharge.
{¶2} Relator filed a “dispositive motion,” attached to which are matters outside
the pleading. As a consequence, we treat the “dispositive motion” as a motion for
summary judgment. Respondent has also filed a motion for summary judgment. For
the reasons stated below, we grant respondent’s motion for summary judgment and deny
relator’s “dispositive motion.”
{¶3} “The requisites for mandamus are well established: (1) the relator must
have a clear legal right to the requested relief, (2) the respondent must have a clear legal
duty to perform the requested relief, and (3) there must be no adequate remedy at law.”
State ex rel. Goodgame v. Russo, 8th Dist. No. 97347, 2012-Ohio-92, ¶ 2, fn.1. Relator
fails to meet any of the three criteria for relief in mandamus.
{¶4} Milum began his employment with respondent in 2009. He was classified
as a temporary appointee.
{¶5} On March 6, 2012, the commission offered an open competitive test for
construction equipment operators Class A and Class B. Milum ranked 10th out of 23
candidates for Class A and 13th out of 28 candidates for Class B. Respondent appointed
the person who was second on the list to the Class A position.
{¶6} On April 20, 2012, respondent sent a notice of pre-disciplinary conference
to relator’s president alleging that Milum ranked number ten on the civil service test.
The conference was held on April 23, 2012. On the same date, relator’s counsel wrote
the secretary for the commission and observed that respondent’s explanation at the
conference for Milum’s discharge was the requirement of the charter and the rules of the
commission that respondent choose a candidate who is among the top three on the
eligibility list.
{¶7} On April 27, 2012, respondent’s director of the Department of Public
Utilities wrote Milum stating that, after the civil service test was administered and graded,
he was ineligible to remain in his temporary position under the charter and the rules of the
commission. The effective date of Milum’s termination was April 27, 2012.
{¶8} On May 22, 2012, relator’s counsel wrote the secretary for the commission
renewing his demand for a hearing and indicating that he would “be filing a lawsuit” to
compel the commission to follows its rules. On June 1, 2012, the secretary for the
commission, Lucille Ambroz, wrote relator’s counsel and informed him that the
Department of Public Utilities rescinded the notice of discharge and sent Milum a letter
explaining that he was dismissed from his temporary appointment because he did not
score high enough on the civil service test. She also informed relator’s counsel that the
commission would permit Milum and counsel to appear before the commission on June
22, 2012, “in order to further argue for the reinstatement of your client’s former position
of employment.”
{¶9} Relator’s counsel filed this action on June 13, 2012.
{¶10} Respondent has filed a transcript of the June 22, 2012 hearing. Neither
Milum nor relator’s counsel appeared at the hearing and the commission voted to deny
Milum’s request for a disciplinary hearing.
{¶11} Relator observes that the April 23 pre-disciplinary conference was held in
accordance with Cleveland Civil Service Rule 9.20. 1 Also on that date, relator
submitted a written demand to Ambroz for a hearing before a referee in accordance with
1
9.20 Pre-Disciplinary Conference
A. When any disciplinary action is contemplated as to an officer or
employee in the classified service, the appointing authority or the
secretary of a board or commission in the City service, shall give such
officer or employee oral or written notice of the action contemplated
and an opportunity to respond. The appointing authority shall notify
the Civil Service Commission of any pre-disciplinary conference which
results in disciplinary charges being brought against an officer or
employee pursuant to Rule 9.21 or 9.22.
B. When in the opinion of a superior, the conduct of the officer or
employee is such as to require that he/she be relieved of duty
immediately, such officer or employee may be relieved from duty by
oral order, provided that such officer or employee be notified of the
reason(s) for the superior’s actions as soon as possible and promptly
afforded an opportunity to respond to the charge(s) against him/her. In
all such instances, such opportunity shall be provided the officer or
employee within three (3) working days after being relieved from duty.
Cleveland Civil Service Rule 9.22.2 In this action, relator requests this court to compel
respondent and the commission to appoint a neutral referee to hear Milum’s challenge to
his discharge.
{¶12} Respondent argues, however, that Milum was not discharged for
disciplinary reasons. Rather, he was a temporary appointee who was always subject to
discharge after respondent certified an eligibility list. “In the absence of an appropriate
eligible list, any place in the classified service may be filled temporarily, without test, but
no such temporary appointment shall continue after the establishment of a suitable
9.22 Notice of Suspension for More Than Ten (10) Scheduled Work
2
Days, Discharge, or Reduction in Rank
When, after following the procedures set forth in Rule 9.20, an
appointing authority decides that the officer or employee is to be
discharged, suspended pending discharge, suspended for more than ten
(10) scheduled work days, or reduced in rank or compensation, the
appointing authority shall promptly notify said officer or employee in
writing of such decision, setting forth the charges and the
specifications therefore. The charging letter shall further inform the
officer or employee that he/she must advise the Civil Service
Commission if he/she desires to have a disciplinary hearing before a
referee to be selected by the Commission, and that the Commission
must receive such request for a hearing in writing within ten (10)
working days of the date of the charging letter. At the same time such
written notice is delivered to the officer or employee, a duplicate copy
thereof shall be sent to the Civil Service Commission. Failure to
request a hearing within the required ten (10) working days will cause
such charges to stand uncontested, and in such cases the Commission
shall submit the uncontested charging letter to the Director of the
employee’s department for review.
eligible list * * * .” Cleveland Civil Service Rule 6.70 (“Temporary Appointments”).
See also Charter of the City of Cleveland, § 128(f) and (g) and 130.3
{¶13} The unrefuted evidence presented by respondent demonstrates that Milum
was a temporary employee who participated in a competitive test but was not among the
three persons standing highest on the eligibility list. Clearly, under the rules of the
commission and the authorizing provisions of the charter, respondent was obliged to
choose among the top three applicants.
§ 128 Required Provisions of Rules [of the Civil Service Commission]
3
The rules of the Civil Service Commission shall among other things,
provide:
***
(f) For the certification to the appointing authority, from the
appropriate eligible list to fill a vacancy in the competitive class, of the
three persons standing highest on such list, or of the person or persons
on such list when it contains three names or less.
(g) For temporary employment without test, in the absence of an
eligible list. But no such temporary employment shall continue after
the establishment of a suitable eligible list.
130 Eligible Lists; Temporary Appointments
Eligible lists created by the Commission shall remain in force not
longer than two years. In the absence of an appropriate eligible list,
any place may be filled temporarily, without test, for the period limited
by the civil service rules, but not exceeding one year. During such
period the Commission shall hold the necessary tests for filling any
such place permanently. With the consent of the Commission, persons
may be temporarily employed for transitory work without test, but no
such employment shall continue for more than sixty days, or be
renewed.
{¶14} We are not persuaded by relator’s demand that respondent conduct
proceedings consistent with a disciplinary discharge. Although respondent initially
provided a notice of pre-disciplinary conference, three days later — at the conference —
respondent informed Milum and relator’s counsel of the basis for his discharge. Even
on the notice of pre-disciplinary conference, respondent stated that the basis for Milum’s
discharge was his rank on the eligibility list. That is, the basis for Milum’s discharge
was not the kind of disciplinary action contemplated by Cleveland Civil Service Rules
9.20 and 9.22.
{¶15} Given these facts, we cannot conclude that relator has demonstrated that
Milum has a clear legal right to a hearing before a neutral referee.
{¶16} Likewise, the charter and rules of the commission required respondent to
select an applicant from among the top three on the eligibility list. Relator has,
therefore, not demonstrated that respondent and the commission have a clear legal duty to
provide Milum with a hearing before a neutral referee.
{¶17} We also note that the commission did hold a hearing and provided Milum
and relator’s counsel an opportunity to argue for Milum’s reinstatement. Yet, both
Milum and his counsel did not attend.
{¶18} In State ex rel. Henderson v. Maple Hts. Civ. Serv. Comm., 63 Ohio St.2d
39, 406 N.E.2d 1105 (1980), Henderson’s employment as a part-time city bus driver
ceased and he sought a hearing before the civil service commission. The commission
refused to grant the hearing and informed Henderson’s counsel through a letter from the
commission’s counsel. Henderson brought an action in mandamus to compel the
commission to hold a hearing as well as to compel the mayor and transit director to
reinstate his employment with back pay.
A denial by the respondent civil service commission of jurisdiction
of this controversy represented a final appealable order. When the
commission refused relator’s request for a hearing, relator should have
appealed to the Court of Common Pleas. Having failed to do so, and,
thereby having failed to pursue his appellate remedies in the ordinary course
of law, he cannot now collaterally attack this jurisdictional determination.
See State, ex rel. Stough, v. Bd. of Edn. (1977), 50 Ohio St. 2d 47, and
State, ex rel. Bingham, v. Riley (1966), 6 Ohio St. 2d 263.
Id. at 41.
{¶19} In State ex rel. Lane v. Pickerington, 130 Ohio St.3d 225, 2011-Ohio-5454,
957 N.E.2d 29, the city’s law director determined that the personnel appeals board did not
have jurisdiction to hear the relator’s appeal of his dismissal and declined the request for
a hearing. The supreme court observed that there was no evidence that the personnel
appeals board had issued a final appealable order or that the letter from the law director
was issued on behalf of the board. “In Henderson, however, there was no question that
the civil service commission itself refused to hear the discharged employee’s appeal and
that the commission’s legal counsel merely communicated the commission’s own
decision to the employee.” Id. at 228.
{¶20} In this action, the commission itself not only acted, it scheduled a hearing
and notified relator’s counsel that he and Milum would be permitted to appear before the
commission and argue for Milum’s reinstatement. The commission held a hearing but
neither Milum nor relator’s counsel attended. The commission acted at the end of the
hearing to deny Milum’s request for a disciplinary hearing.
{¶21} As demonstrated by Henderson and reinforced more recently by Lane,
Milum had an opportunity to appeal the commission’s decision. “[H]e cannot now
collaterally attack” the commission’s determination. Henderson, supra. Milum had an
adequate remedy in the ordinary course of the law and may not now secure relief in
mandamus. State ex rel. Jaffal v. Calabrese, 105 Ohio St.3d 440, 2005-Ohio-2591, 828
N.E.2d 107, ¶ 5.
{¶22} Accordingly, respondent’s motion for summary judgment is granted and
relator’s “dispositive motion” is treated as relator’s motion for summary judgment and is
denied. Relator to pay costs. This court directs the clerk of court to serve all parties
notice of this judgment and its date of entry upon the journal as required by Civ.R. 58(B).
{¶23} Writ denied.
TIM McCORMACK, JUDGE
MELODY J. STEWART, A.J., CONCURS;
MARY EILEEN KILBANE, J., DISSENTS