State ex rel. Fenske v. McGovern

464 N.E.2d 525, 11 Ohio St. 3d 129, 11 Ohio B. 426, 1984 Ohio LEXIS 1118
CourtOhio Supreme Court
DecidedJune 13, 1984
DocketNo. 83-919
StatusPublished
Cited by86 cases

This text of 464 N.E.2d 525 (State ex rel. Fenske v. McGovern) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Fenske v. McGovern, 464 N.E.2d 525, 11 Ohio St. 3d 129, 11 Ohio B. 426, 1984 Ohio LEXIS 1118 (Ohio 1984).

Opinion

Whiteside, J.

The threshold issue before this court is whether mandamus is an appropriate remedy, respondents contending that relator has adequate remedies at law by way of an action for money only, an action for declaratory judgment or an action for injunctive relief.

As to injunctive relief, necessarily it would be mandatory in nature since relator seeks to compel respondents to perform an alleged clear legal duty. The extraordinary remedy of mandatory injunction available in the court of common pleas is not a plain and adequate remedy in the ordinary course of law precluding exercise of the original jurisdiction in mandamus conferred upon the courts of appeals by Section 3, Article IV of the Ohio Constitution. See the sixth paragraph of the syllabus of State, ex rel. Pressley, v. Indus. Comm. (1967), 11 Ohio St. 2d 141 [40 O.O.2d 141].

[131]*131The availability of an action for declaratory judgment does not bar the issuance of a writ of mandamus if the relator demonstrates a clear legal right thereto, although the availability of declaratory judgment may be considered by the court as an element in exercising its discretion whether a writ should issue. State, ex rel. Dollison, v. Reddy (1978), 55 Ohio St. 2d 59, 60 [9 O.O.3d 67]; State, ex rel. Bennett, v. Lime (1978), 55 Ohio St. 2d 62, 63 [9 O.O.3d 69]. Here, assuming relator otherwise demonstrates a clear legal right to the requested writ, declaratory judgment would not be a complete remedy, unless coupled with ancillary relief in the nature of mandatory injunction since relator seeks to compel respondents auditor and treasurer to perform a specific act incumbent upon their offices. Accordingly, under the circumstances involved, the availability of declaratory judgment would not be an appropriate basis to deny a writ to which relator is otherwise entitled.

Although it would be possible for relator to bring an action for money judgment for the amounts allegedly presently due him for longevity pay, future actions would be necessary if respondents continued in the future to refuse to make similar payment, and the result of such an action would be to obtain a money judgment which would have to be enforced in some fashion to compel respondents auditor and treasurer to perform the ministerial duties of making the payment if they did not do so voluntarily, which conceivably could require an action in mandamus to compel respondents to perform the same acts to make payment of the money judgment that relator seeks to have them compelled to perform as a clear legal duty arising from Section 153.13 of the Codified Ordinances of the city of Brook Park. See State, ex rel. Ballard, v. Harrison (1909), 81 Ohio St. 98, and State, ex rel. Turner, v. Bremen (1927), 116 Ohio St. 294.

This court has repeatedly held that a reinstated public employee may maintain an action in mandamus to recover compensation due him for the time he was wrongfully excluded from employment provided the amount is established with certainty. Monaghan v. Richley (1972), 32 Ohio St. 2d 190 [61 O.O.2d 425]; State, ex rel. Martin, v. Columbus (1979), 58 Ohio St. 2d 261 [12 O.O.3d 268], paragraph one of the syllabus; State, ex rel. Hamlin, v. Collins (1981), 65 Ohio St. 2d 63, 64 [19 O.O.3d 259]; State, ex rel. Crockett, v. Robinson (1981), 67 Ohio St. 2d 363, 365 [21 O.O.3d 228]; and State, ex rel. Guerrero, v. Ferguson (1981), 68 Ohio St. 2d 6, 7 [22 O.O.3d 98]. Appellees contend these cases should be distinguished because they involve compensation for periods of wrongful deprivation of employment, rather than the wrongful deprivation of part of the compensation to which an employee is entitled by virtue of his employment, such as involved herein. We find no distinction. If an employee has a clear legal right to compensation, and the respondent has a clear legal duty to make payment of that compensation, mandamus is an appropriate remedy to compel the respondent to perform the duty of making payment of the compensation to which the employee has a clear legal right. Under such circumstances, payment of the compensation by respondents auditor and treasurer would be performance of a ministerial [132]*132duty imposed upon them by law such as was involved in State, ex rel. Reynoldsburg, v. Banks (1974), 37 Ohio St. 2d 56 [66 O.O.2d 159]. See, also, State, ex rel. Horvitz Co., v. Riebe (1975), 47 Ohio App. 2d 339 [1 O.O.3d 399]. The ministerial act of making payment of money due a public employee may be compelled by mandamus where the public employee has a clear legal right to payment of the compensation, and the respondent public officer has a clear legal duty to perform the ministerial task of making such payment. Accordingly, there is no plain and adequate remedy at law which precludes relator’s maintenance of this action in mandamus.

Since the court of appeals granted the motion to dismiss the complaint, the issue is whether the complaint alleges a clear legal right of relator to longevity pay pursuant to Section 153.13 of the Codified Ordinances of the city of Brook Park, which at the time of relator’s reinstatement read as follows:

“Commencing January 1, 1973, and thereafter until duly changed, and where not otherwise provided for under Specific Sections of the Codified Ordinances, each full-time employee of the City shall be entitled to longevity pay as a bonus to his annual salary, to be calculated as follows:

“For each five consecutive years of full-time continuous service, the amount of Two Hundred Dollars ($200.00) to a maximum of One Thousand Dollars ($1,000.00).”

Under this provision, relator, who had ten consecutive years of full time continuous service, would be entitled to a bonus of four hundred dollars per year.1

Relator is now a full-time employee and has had ten consecutive years of full-time continuous service, although there was a break in his service after the completion of such ten years. There is nothing in Section 153.13 prior to a 1978 amendment2 suggesting that an employee who has a break in his continuous service forfeit the longevity-pay credit he has accumulated prior to such break in service. Thus, upon resumption of service, the employee retains any longevity-pay rights which he may have had prior to his break in service [133]*133but must commence a new five-year continuous period for longevity-pay purposes. In short, the complaint alleges a clear legal right to longevity pay. Upon its face, the ordinance clearly provides that the longevity-pay bonus be paid to any full-time employee who has had one or more five-year periods of continuous full-time service. There is no provision for forfeiture of a previously earned bonus for a five-year continuous period of fall-time service because of a break in service. Upon reinstatement, relator was entitled to the longevity-pay bonus, unless there is some other defense, factual or otherwise, that repondents may raise by answer.

Respondents essentially contend that any right that relator had to litigate his entitlement to the longevity pay bonus was exhausted by the declaratory judgment action filed in the court of common pleas. We disagree. There is nothing suggesting that this issue was determined adversely to relator in the declaratory judgment action. Rather, it appears that the issue was not even raised, much less litigated.

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Cite This Page — Counsel Stack

Bluebook (online)
464 N.E.2d 525, 11 Ohio St. 3d 129, 11 Ohio B. 426, 1984 Ohio LEXIS 1118, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-fenske-v-mcgovern-ohio-1984.