State ex rel. DeVito v. Bacci

396 N.E.2d 1035, 60 Ohio St. 2d 63, 14 Ohio Op. 3d 237, 1979 Ohio LEXIS 498

• Court: Ohio Supreme Court
• Decided: November 21, 1979
• Docket: No. 79-536
• Status: Published

Opinion

Per Curiam.

Relator claims that he continues in office because Schulman cannot be “appointed and qualified”

* to succeed him until his appointment is consented to by Cleveland City Coluncil.

Section 1 of Cleveland City Ordinance 1139-72, in pertinent part, states:

“Appointments to the Board of Trustees of the Cleveland Regional Sewer District made by the Mayor of the city of Cleveland shall be subject to the consent of the Cleveland City Council.” Thus, relator contends that the board has a clear legal duty to accept him as a member.

In Kucinich et al. v. Cleveland Regional Sewer District et al. (Cuyahoga Co. Ct. App. No. 40217, Decided May 24, 1979), unreported, however, the Court of Appeals affirmed a November 29,1978, judgment of the Court of Common Pleas holding that, despite Ordinance 1139-72, the Mayor of the city of Cleveland is the sole appointing authority for the city’s representatives on the board and that council confirmation or affirmance is not necessary. DeVito, admittedly, was one of the active members of the board of trustees at the time this suit was commenced. Thus, relator DeVito and respondents herein are bound by that judgment. See State, ex rel. Hofstetter, v. Kronk (1969), 20 Ohio St. 2d 117; Hicks v. De La Cruz (1977), 52 Ohio St. 2d 71. Since the board does not have a clear legal duty to accept relator as a member, his complaint for a writ of mandamus must be denied.

Intervenors Schulman and Corsi have, however, established prima facie title to the office of member of the board of trustees since they were lawfully appointed to that office by the Mayor of the city of Cleveland. The writ is allowed as to Schulman and Corsi.

Judgment accordingly.

Celebrezze, C. J., Herbert, W. Brown, P. Brown, Sweeney, Locher and Holmes, JJ., concur.

R. C. 3.01 provides that “[a] person holding an office of public trust shall continue therein until his successor is elected or appointed and qualified, unless otherwise provided in the constitution or laws of this state.”