The opinion
Christley, Presiding Judge,
dissenting.
Although I agree with the majority that the declaratory judgment complaint should not have been dismissed, I cannot concur in its analysis of appellant’s appeal under R.C. Chapter 2506. In my opinion, the common pleas court did not err in dismissing the appeal because the actions of the board do not constitute the type of “decision” which can be appealed under the statute. Accordingly, I respectfully dissent in part.
In interpreting R.C. 2506.01, the Ohio Supreme Court has held that the decisions of administrative officers and agencies are appealable only to the common pleas court when they emanate from quasi-judicial proceedings.
M.J. Kelley Co. v. Cleveland
(1972), 32 Ohio St.2d 150 , 61 O.O.2d 394 , 290 N.E.2d 562 . In
Kelley,
the court further held that a proceeding is not quasi-judicial when
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“there is no requirement for notice, hearing, and the opportunity for introduction of evidence.”
Id.
at paragraph two of the syllabus.
The
Kelley
holding has also been applied to decisions of township boards of trustees. For example, in
State ex rel. Mileff v. Mifflin Twp.
(Aug. 30, 1988), Franklin App. No. 88AP-108, unreported, 1988 WL 92419 , reversed on other grounds in (1990), 49 Ohio St.3d 269 , 551 N.E.2d 978 , the relator, a township fire fighter, brought an action in mandamus, requesting that he be reinstated as a township employee. In deciding whether the writ would lie, the Tenth Appellate District held that the relator could not have appealed his dismissal under R.C. 2506.01 because the board’s decision had not emanated from a quasi-judicial proceeding. In reaching this conclusion, the court noted that the relator had not been afforded a hearing on the matter and had not been given notice of the charges. See, also,
Local No. 2134, Internatl. Assn. of Firefighters v. Bd. of Marion Twp. Trustees
(1986), 33 Ohio App.3d 204 , 514 N.E.2d 1386 .
In addition to the decisions of township trustees, it has also been held that the
Kelley
holding is applicable to decisions involving unclassified employees who are employed by political subdivisions which have a civil service system. In
Schack v. Geneva Civ. Serv. Comm.
(1993), 86 Ohio App.3d 689 , 621 N.E.2d 788 , this court first noted that as an unclassified employee, Schack held his job at the pleasure of the appointing power. We then held that since he was not entitled to notice or a hearing before being placed on probation, Schack could not maintain an appeal under R.C. 2506.01.
Although he worked in a township which did not have a civil service system, appellant’s position with the township was similar to that of an unclassified employee. As the majority notes, appellant admitted that he was an employee at will. As a result, appellant could be suspended without the benefit of notice, a hearing, or the opportunity to present evidence. Under these circumstances, he was not entitled to bring an appeal from the board’s decision under R.C. 2506.01.
As part of its analysis, the majority emphasizes that in
Alberini v. Warren Twp. Bd. of Trustees
(Nov. 17, 1989), Trumbull App. No. 4083, unreported, 1989 WL 140177 , we did not state that an appeal under R.C. Chapter 2506 could not be brought by an employee at will who had been dismissed. However, that specific point was not before us in that case. The Warren Township Board of Trustees in
Alberini
simply never moved the common pleas court to dismiss for lack of jurisdiction, and the court accordingly decided the case on the merits. On appeal, this court was limited to the specific issue decided by the common pleas court.
Although the dismissal of appellant’s appeal may appear to be a harsh result, it follows from the nature of his employment with the township. Moreover, this result does not leave appellant without a remedy. See
State ex rel. Mileff v. Mifflin Twp.
(1992), 65 Ohio St.3d 400 , 604 N.E.2d 740 . However, since the
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township was not required to follow the basic requirements of due process prior to suspending him, an appeal under R.C. 2506.01 could not be maintained. Thus, unlike the majority, I would affirm the dismissal of his appeal. However, as to • the declaratory judgment action, I agree with the majority’s reversal.