Nuspl v. City of Akron

575 N.E.2d 447, 61 Ohio St. 3d 511, 1991 Ohio LEXIS 2079

• Court: Ohio Supreme Court
• Decided: August 21, 1991
• Docket: Nos. 90-763 and 90-2159
• Status: Published

Opinions

Sweeney, J.

Appellants assert that since an appeal from a decision of a civil service commission to a court of common pleas is not expressly prohibited by R.C. 2506.01 or any other statute, an appeal of the commission’s decision is permitted. Appellants further submit that Section 5(2), Rule 2 of the Akron Civil Service Rules does not prohibit an appeal to the court of common pleas, and that, therefore, an appeal of a decision of the civil service commission is permitted under R.C. 2506.01 based on this court’s reasoning in Sutherland-Wagner v. Brook Park Civil Service Comm. (1987), 32 Ohio St.3d 323, 512 N.E.2d 1170.

Appellees submit that Section 5(2), Rule 2 provides appellants with their exclusive remedy under law, and that Sutherland-Wagner, supra, is readily distinguishable from the instant causes because that case involved a disciplinary suspension, unlike the ineligibility determinations rendered herein.

R.C. 2506.01 provides as follows:

“Every final order, adjudication, or decision of any officer, tribunal, authority, board, bureau, commission, department, or other division 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 as provided in Chapter 2505. of the Revised Code, except as modified by this chapter.

“The appeal provided in this chapter is in addition to any other remedy of appeal provided by law.

“A ‘final order, adjudication, or decision’ means an order, adjudication, or decision that determines rights, duties, privileges, benefits, or legal relationships of a person, but does not include any order, adjudication, or decision from which an appeal is granted by rule, ordinance, or statute to a higher administrative authority if a right to a hearing on such appeal is provided, or any order, adjudication, or decision that is issued preliminary to or as a result of a criminal proceeding.” (Emphasis added.)

Section 5(2), Rule 2 of the Akron Civil Service Rules provides as follows:

“Any person who, by order of the Personnel Director, is denied permission to compete in any examination or whose examination is disqualified, may, within five (5) days after postmark of notice, rejection or disqualification, appeal in writing, to the Commission, for a review of such ruling. The Commission shall afford such appellant an opportunity to be heard in his own behalf.”

In ruling on Nuspl’s appeal, the appellate court opined: “We read nothing in Sutherland-Wagner which opens the door to R.C. 2506.01 appeals from any decision of local Civil Service Commissions for which no appeal is provided under R.C. 124.34 or the local rules.”

In our view, the court of appeals below misconstrued our decision in Sutherland-Wagner, supra. In Sutherland-Wagner, we essentially stated that use of R.C. 2506.01 was not precluded by R.C. 124.34¹ because (1) R.C. 124.34 did not prohibit an R.C. 2506.01 appeal, and (2) the appeal provided by R.C. 2506.01 is, by its express terms, additional to any other remedy provided by law. Id. at 325, 512 N.E.2d at 1172. Moreover, our opinion in Sutherland-Wagner relied on Walker v. Eastlake (1980), 61 Ohio St.2d 273, 275, 15 O.O.3d 273, 275, 400 N.E.2d 908, 909-910, wherein this court stated: “It is abundantly clear that an appeal is available from a final order of a commission of a political subdivision of the state unless another statute, enacted subsequent to the enactment of R.C. 2506.01, clearly prohibits the use of this section.”

Appellees and the court of appeals below attempt to distinguish Sutherland-Wagner on the ground that it involved a disciplinary action, whereas the instant causes involve non-disciplinary actions. Under the circumstances herein, we find such a distinction to be wholly irrelevant. The defendantappellee in Sutherland-Wagner also attempted to make a similar distinction with regard to the Walker decision. We rejected such distinction because of the simple fact that R.C. 2506.01 provides an aggrieved party an additional avenue of relief that is not expressly prohibited by a subsequently enacted statute.

A review of R.C. 124.34 reveals that nothing within its language prohibits the type of appeals undertaken herein. Likewise, Section 5(2), Rule 2 does not foreclose a further appeal from the decision of the Akron Civil Service Commission upon review of the order of the personnel director.

Therefore, we reaffirm our prior decision in Sutherland-Wagner, supra, and hold that where neither the local civil service rules nor state law prohibits an appeal from the decision of a civil service commission declaring a person ineligible to take a civil service examination, such decision may be appealed to the court of common pleas pursuant to R.C. 2506.01. ²

Lastly, appellees contend that R.C. 2506.01 contemplates the allowance of appeals of proceedings of a “quasi-judicial” nature, and that the proceeding permitted by Section 5(2), Rule 2 does not contain the components necessary to qualify as a “quasi-judicial” proceeding.

In M.J. Kelley Co. v. Cleveland (1972), 32 Ohio St.2d 150, 61 O.O.2d 394, 290 N.E.2d 562, this court held in the second paragraph of the syllabus:

“Proceedings of administrative officers and agencies are not quasi-judicial where there is no requirement for notice, hearing and the opportunity for introduction of evidence.”

Section 5(2), Rule 2 states in relevant part that “[t]he Commission shall afford such appellant an opportunity to be heard in his own behalf.”

Implicit in the foregoing provision are the requirements of notice to the appellant, and the opportunity for the appellant to state his or her case in a hearing, which would necessarily involve the introduction of evidence by way of exhibits and/or testimony. Thus, it is clear that the procedure set forth in the Akron Civil Service Rules is of the “quasi-judicial” nature contemplated in Kelley, supra.

Accordingly, we reverse the judgments of the court of appeals and remand the causes to the trial courts for further proceedings in accordance with this opinion.

Judgments reversed and causes remanded.

Douglas, H. Brown and Resnick, JJ., concur. Moyer, C.J., Holmes and Wright, JJ., dissent.

1 . R.C. 124.34 states in pertinent part:

“The tenure of every officer or employee in the classified service of the state and the counties, civil service townships, cities, city health districts, general health districts, and city school districts thereof, holding a position under this chapter of the Revised Code, shall be during good behavior and efficient service and no such officer or employee shall be reduced in pay or position, suspended, or removed, except as provided in section 124.32 of the Revised Code, and for incompetency, inefficiency, dishonesty, drunkenness, immoral conduct, insubordination, discourteous treatment of the public, neglect of duty, violation of such sections or the rules of the director of administrative services or the commission, or any other failure of good behavior, or any other acts of misfeasance, malfeasance, or nonfeasance in office. * * *

“In any case of reduction, suspension of more than three working days, or removal, the appointing authority shall furnish such employee with a copy of the order of reduction, suspension, or removal, which order shall state the reasons therefor. Such order shall be filed with the director of administrative services and state personnel board of review, or the commission, as may be appropriate.

“Within ten days following the filing of such order, the employee may file an appeal, in writing, with the state personnel board of review or the commission. In the event such an appeal is filed, the board or commission shall forthwith notify the appointing authority and shall hear, or appoint a trial board to hear, such appeal within thirty days from and after its filing with the board or commission, and it may affirm, disaffirm, or modify the judgment of the appointing authority.

“In cases of removal or reduction in pay for disciplinary reasons, either the appointing authority or the officer or employee may appeal from the decision of the state personnel board of review or the commission to the court of common pleas of the county in which the employee resides in accordance with the procedure provided by section 119.12 of the Revised Code.

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2 . In so holding, we necessarily reject the decisions rendered in Marinchek v. Brunswick Civil Service Comm. (1984), 20 Ohio App.3d 247, 20 OBR 309, 485 N.E.2d 790; and Zazo v. Akron (1987), 44 Ohio App.3d 1, 540 N.E.2d 733.