Yarosh v. Becane

406 N.E.2d 1355, 63 Ohio St. 2d 5, 17 Ohio Op. 3d 3, 1980 Ohio LEXIS 763
CourtOhio Supreme Court
DecidedJuly 2, 1980
DocketNos. 79-88 and 79-879
StatusPublished
Cited by43 cases

This text of 406 N.E.2d 1355 (Yarosh v. Becane) 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
Yarosh v. Becane, 406 N.E.2d 1355, 63 Ohio St. 2d 5, 17 Ohio Op. 3d 3, 1980 Ohio LEXIS 763 (Ohio 1980).

Opinions

Celebrezze, C. J.

All the deputies were hired by the sheriff pursuant to R. C. 325.17. Sheriff Yarosh argues that because R. C. 325.17 gives the sheriff authority to hire and fire deputies, such hiring and firing is not required to be made as would normally be required for a civil service position.

[9]*9The power to hire and fire deputies however is subject to Section 10, Article XV of the Ohio Constitution which states:

“Appointments and promotions in the civil service of the state, the several counties, and cities, shall be made according to merit and fitness, to be ascertained, as far as practicable, by competitive examinations. Laws shall be passed providing for the enforcement of this provision.”

The General Assembly has enforced Section 10, Article XV, by enacting R. C. Chapter 124. This Chapter provides a civil service system which is designed to fill positions based on merit and fitness ascertained, as far as practicable, by examination. The sheriffs power to hire and fire deputies pursuant to R. C. 325.17 is subject to the civil service rules contained in R. C. Chapter 124.

R. C. 124.11 divides the civil service into the classified and unclassified service. Positions in the classified service are those for which merit and fitness can be determined by examination. Employees in the classified service can only be removed for good cause and only after the procedures enumerated in R. C. 124.34 and the rules and regulations thereunder are followed. Positions in the unclassified service require qualities that the General Assembly has deemed are not determinable by examination. Employees in the unclassified service do not receive the protections afforded employees in the classified service.

The deputies involved in the case at bar were considered to be unclassified by Sheriff Yarosh. Sheriff Davis also apparently considered the positions to be unclassified due to his failure to appoint deputies based on the results of examinations. Sheriff Yarosh argues that the State Personnel Board of Review has no jurisdiction to hear appeals of removals of employees deemed unclassified by their appointing authorities.

Pursuant to R. C. 124.03(A), the State Personnel Board of Review has the power to “[h]ear appeals, as provided by law, of employees in the classified state service from final decisions of appointing authorities or the director of administrative services relative to reduction in pay or position, job abolishments, layoff, suspension, discharge, assignment or reassignment to a new or different position classification; the board may affirm, disaffirm, or modify the decisions of the appointing authorities [10]*10or the director of administrative services, as the case may be, and its decision is final.” The board is empowered to hear appeals from removal orders of employees in the classified service under R. C. 124.34.

The object of the civil service system is to provide stability of employment in the public sector. An essential element of the system is review of removals by the board. Such review offers the employee a chance to be heard in a relatively simple and expeditious proceeding.

An appointing authority cannot deny employees this right of review merely by declaring them to be unclassified. The board has jurisdiction over appeals from removals of public employees if it determines that such employees are in the classified service, regardless of how they have been designated by their appointing authorities. In the case at bar the board determined that the deputies were in the classified service.

R. C. 124.11(B) defines the classified service as all positions not specifically in the unclassified service. R. C. 124.11(A) enumerates the positions in the unclassified service.

In R. C. 124.11(A), the General Assembly listed many positions for which testing is not practicable. In R. C. 124.11(A)(9), the legislature enacted a catch-all provision which includes in the unclassified service the following:

“The deputies and assistants of elective or principal executive officers authorized to act for and in the place of their principals, or holding a fiduciary relation to such principals and those persons employed by and directly responsible to elected county officials and holding a fiduciary or administrative relationship to such elected county officials, and the employees of such county officials whose fitness would be impracticable to determine by competitive examination***.”

R. C. 124.11(A)(9) recognizes that there are certain positions in the public service in which intangible personal qualities are essential prerequisites to appointment. Such qualities are impossible to ascertain by examination. Deputies or assistants who are employed by and are directly responsible to an elected county official and who are in a fiduciary or administrative relationship with that official are in such positions.

Sheriff Yarosh contends that the deputies in question are unclassified because they were directly responsible to him and [11]*11were in a fiduciary or administrative relationship with him. If the deputies are unclassified, the procedural and substantive safeguards of R. C. 124.34 would not be available to them and the terminations would be valid. The deputies, however, were neither in a fiduciary nor administrative relationship with the sheriff.

Pursuant to R. C. 311.05, a sheriff is responsible for the neglect of duty or misconduct in office of his deputies. Nonetheless, as this court clearly stated in In re Termination of Employment (1974), 40 Ohio St. 2d 107, deputy sheriffs are not in fiduciary relationships with their sheriffs by virtue of R. C. 311.05. We stated, at page 115, that all deputy sheriff positions “are positions of great importance and responsibility, but they do not impose the duties required of a fiduciary such as a trustee, a lawyer, an accountant, or a guardian. A ‘fiduciary relationship’ is one in which special confidence and trust is reposed in the integrity and fidelity of another and there is a resulting position of superiority or influence, acquired by virtue of this special trust.”

A deputy is in a fiduciary relationship with a sheriff when the duties the deputy is required to perform for the sheriff are duties that the sheriff could not be expected to delegate to the average deputy with knowledge of proper police procedure for that task. In such cases special trust and confidence is required. If the duties are such that the average deputy with knowledge of the proper procedure can be expected to perform them, fitness for the position may be determined by examining the deputy’s knowledge of the procedure.

Routine police work is not fiduciary in nature. Discretion may have to be exercised, but it is discretion which any qualified deputy would be expected to exercise. For example, routine police work often involves the determination of probable cause in making searches and seizures. Any deputy having knowledge of this requirement is expected to make a proper decision. The prerequisite knowledge is examinable and an examination thereon is sufficient to qualify a person for the position.

Where no discretion is involved and where tasks are clearly routine, a fiduciary relationship clearly does not exist. In the case at bar, for example, observation of prisoners, feeding [12]*12them, and administering medication to them, clearly are non-discretionary tasks which cannot be used to establish a fiduciary relationship.

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Cite This Page — Counsel Stack

Bluebook (online)
406 N.E.2d 1355, 63 Ohio St. 2d 5, 17 Ohio Op. 3d 3, 1980 Ohio LEXIS 763, Counsel Stack Legal Research, https://law.counselstack.com/opinion/yarosh-v-becane-ohio-1980.