Opinion
No. 77490.
Date of Journalization: March 6, 2000.
PETITIONS FOR WRIT OF MANDAMUS AND WRIT OF QUO WARRANTO, (Motion No. 14455).
For Relator: Albert C. Sammon, Esq., James P. Sammon, Esq., SAMMON BOLMEYER CO., LPA, 614 Superior Avenue, N.W., 1160 Rockefeller Building, Cleveland, Ohio 44113-1311.
For Respondents: Gary A. Ebert, Esq., Andrew D. Bemer, Esq., SEELEY, SAVIDGE EBERT CO., LPA, 800 Bank One Center, 600 Superior Avenue, East, Cleveland, Ohio 44114-2655.
JOURNAL ENTRY AND OPINION
Relator, Joseph Smith, has filed a complaint for a writ of mandamus in an attempt to compel the respondents, the City of Bay Village, T. Richard Martin (President of the Bay Village City Council), Thomas Jelepis (Mayor of the City of Bay Village), Bay Village City Council, Robert Kloepfer (member of Bay Village City Council), Donald F. Zwilling (member of Bay Village City Council), Becky L. Olson (member of Bay Village City Council), Debra Sutherland (member of Bay Village City Council), Robert J. Lambert (member of Bay Village City Council), Thomas B. Brugh (member of Bay Village City Council), and Gary A. Ebert (Director of Law for the City of Bay Village) to allow the relator to assume his seat as an elected member of the Bay Village Council, Ward One. In addition, the relator seeks a writ of quo warranto on the basis that respondent Becky L. Olson unlawfully holds and exercises control over the office of member of Bay Village Council, Ward One, the office to which the relator was duly elected. The respondents have filed a joint motion to dismiss per Civ.R. 12(B)(6)(B)(6). On February 25, 1999, this court sua sponte converted the respondents' motion to dismiss into a motion for summary judgment pursuant to Civ.R. 56. For the following reasons, we grant the respondents' motion for summary judgment.
Prior to November 2, 1999, the relator was employed as a public school teacher by the Avon Lake City School District. The relator has continued his employment as a public school teacher with the Avon Lake City School District. On November 2, 1999, the relator was elected to the office of member of the Bay Village Council, Ward One, defeating the incumbent respondent Becky L. Olson. On November 10, 1999, respondent Gary A. Ebert advised respondent Bay Village Council that the relator was not qualified to serve as a member of the Bay Village Council since the Bay Village Charter contains a provision which states that a member of council shall not hold any other public office or public employment except as otherwise provided in the charter or city ordinances. On November 29, 1999, the Cuyahoga County Board of Elections certified the relator's election to the office of member of the Bay Village Council, Ward One. On January 3, 2000, the Bay Village Council unanimously voted to prevent the relator from taking his seat as a member of council. On January 11, 2000, the relator filed his complaint for a writ of mandamus and a writ of quo warranto.
R.C. 2731.01 provides that mandamus is "a writ, issued in the name of the state to an inferior tribunal, a corporation, board, or person, commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station." In order for this court to issue a writ of mandamus, the relator must demonstrate that the relator possesses a clear legal right to the relief requested, the respondent possesses a clear legal duty to perform the requested act, and the relator possesses no plain and adequate remedy in the ordinary course of the law. State ex rel. Rogers v. Taft (1992), 64 Ohio St.3d 193; State ex rel. Hodges v. Taft (1992), 64 Ohio St.3d 1; State ex rel. Klein v. Cuyahoga County Board of Elections (1995), 102 Ohio App.3d 124.
The relator contends that he possesses a legal right to take his seat as a duly elected member of the Bay Village Council, Ward One. We find to the contrary. The City of Bay Village is a home-rule municipality and, as such, has adopted a charter which includes specific qualifications and restrictions applicable to any member of the Bay Village Council. Cf. State Personnel Bd. of Review v. Bay Village Civil Service Comm. (1986), 28 Ohio St.3d 214; Bindas v. Andrich (1959), 165 Ohio St. 441. Article II, Section 2.2 of the Bay Village Charter defines the qualifications that apply to all members of the Bay Village Council and provides that:
Each member of Council, including the President of Council, shall have been for at least one (1) year prior to his election or appointment, and during his term of office shall continue to be, a resident of the Municipality and a qualified elector thereof. He shall not hold any other public office or public employment except as otherwise provided in this Charter or ordinance, and that of Notary Public or a membership in the State Militia, or the reserve corps of the United States.
(Emphasis added.)
Article II, Section 2.2 of the Bay Village Charter clearly provides that a member of council may not hold any other public office or any other public employment separate and apart from the office of member of council. The restriction against holding dual public office or dual public employment has been examined by the Supreme Court of Ohio on several occasions and found to be a valid and lawful restriction. State ex rel. Platz v. Mucci (1967), 10 Ohio St.2d 60. See, also, State ex rel. Vana v. Maple Heights City Council (1990), 54 Ohio St.3d 91; State ex rel. City of Garfield Heights v. Nadratowski (1976), 46 Ohio St.2d 441; State ex rel. Highland Heights v. Kee (1975), 42 Ohio St.2d 234; Bennett v. Celebrezze (1986), 34 Ohio App.3d 260; State ex rel. Russell v. Martin (July 13, 1989), Cuyahoga App. No. 55522, unreported. The Supreme Court of Ohio has further established that a public school teacher is a public employee. State ex rel. Kabert v. Shaker Heights City School Dist. Bd. of Edn. (1997), 78 Ohio St.3d 37; State ex rel. Rollins v. Cleveland Hts.-University Hts. Bd. of Edn. (1988), 40 Ohio St.3d 123; State ex rel. Brown v. Milton-Union Exempted Village Bd. of Edn. (1988), 40 Ohio St.3d 21.
In the case sub judice, the relator has failed to establish that he possesses a legal right to sit as a member of the Bay Village Council. Although duly elected by the voters of the city of Bay Village, the relator fails to meet the qualification restrictions of the Bay Village Charter which provides in no uncertain terms that a member of council may not hold any other public employment or office. The fact that the relator is currently employed as a public employee, vis-a-vis his position as a public school teacher under contract to the Avon Lake City School District, prevents the relator from becoming a member of the Bay Village City Council. The respondents are thus entitled to judgment as a matter of law. Cf. Welco Industries, Inc. v. Applied Co. (1993), 67 Ohio St.3d 344; Davis v. Loopco Industries (1993), 66 Ohio St.3d 64.
Relator's complaint for a writ of quo warranto must also fail. A proceeding in quo warranto is employed to challenge the authority of a claimant asserting a right and title to a public office. R.C. 2733.01; State ex rel. Cain v. Kay (1974), 38 Ohio St.2d 15. In addition, a party seeking a writ of quo warranto must establish the right to the public office at issue.
Article II, Section 2.1 of the Bay Village Charter provides in pertinent part that "* * * members of Council shall be elected, one from each of four (4) wards, shall assume office on the first day of January following their election, and service for a term of two (2) years, or until their successors are elected and qualified. * * *." (Emphasis added.) At the January 3, 2000 meeting of the Bay Village Council, it was unanimously determined that respondent Becky L. Olson would continue to serve as a member of the Bay Village Council, Ward One, until a properly qualified member of council was elected. Coupled with the fact that the relator was not qualified to assume the office of member of Bay Village Council, quo warranto does not lie to challenge the right of respondent Becky L. Olson to hold the elected office of member of Bay Village Council, Ward One. R.C. 2733.06; State ex rel. Halak v. Cebula (1977), 49 Ohio St.2d 291; State ex rel. Flask v. Collins (1947), 148 Ohio St. 45. Respondent Becky L. Olson lawfully holds the position of member of Bay Village Council, Ward One, until a duly qualified candidate is elected by the voters of the City of Bay Village. Thus, we decline to issue a writ of quo warranto on behalf of the relator.
Accordingly, we find that there exists no genuine issues of material fact and that as a matter of law, the respondents are entitled to summary judgment. Respondents' motion for summary judgment is granted. Costs to relator.
JUDGMENT: WRITS DENIED.
TIMOTHY E. McMONAGLE. J., CONCURS. TERRENCE O'DONNELL, P.J., CONCURS WITH SEPARATE CONCURRING OPINION.
___________________________________ MICHAEL J. CORRIGAN, JUDGE
I concur with the conclusion reached by the majority in arriving at a resolution of this case; however, I write to address a point of law presented by counsel for relator not addressed in the majority opinion.
Specifically, relator argues that R.C. 102.01(B) defines a "public official or employee" and excludes teachers from that definition. Further, counsel bolsters the argument by referencing R.C. 3517.01(B)(13), which defines "public official or employee" as in R.C. 102.01.
An examination of R.C. 102.01, which deals with Public Officers — Ethics, reveals that R.C. 102.01 states:
As used in Chapter 102. of the Revised Code:
* * *
(B) * * * "Public official or employee" does not include a person who is a teacher, instructor, professor, or any other kind of educator whose position does not involve the performance of, or authority to perform, administrative or supervisory functions. (Emphasis added.)
However, the disclaimer at the beginning of this code section indicates the limited application for which the definition is to be applied: for purposes indicated in Chapter 102. of the code dealing with the financial disclosure and other income reporting requirements that apply to other public officials and employees but are not applicable to teachers unless they have duties that fall within the administrative or supervisory functions.
In like fashion, R.C. 3517.01(B)(13), which defines "public offices and employees" as done in R.C. 102.01, refers to campaign and political parties and places restrictions on public officers, none of which apply to teachers.
This is why the case before us appears to be somewhat of a paradox.
In the several cases reported from the Ohio Supreme Court as cited in the majority opinion, State ex rel. Platz v. Mucci (1967), 10 Ohio St.2d 60 and State ex rel. City of Garfield Heights v. Nadratowski (1976), 46 Ohio St.2d 441, for example, the court's decisions appear to conflict with the seemingly plain language of the Revised Code.
In Platz, the court considered the quo warranto action of a Wickliffe resident, elected to the Wickliffe City Council, who, like Smith, taught school in a city outside Wickliffe. The council refused to seat him because of a city charter provision strikingly similar and virtually identical to that now used by the City of Bay Village in its charter.
The court denied the quo warranto writ and stated in its opinion:
A statute prohibiting a city councilman from holding office in or being employed by and paid wages or salary by any other unit of government which raises its operating budget by public taxation has been held to have a valid public purpose. See Doyle v. Dearborn, 370 Mich. 236, 121 N.W.2d 473.
It appears that the classification in the instant case has a reasonable basis.
And, in State ex rel. Garfield Heights v. Nadratowski, 46 Ohio St.2d 441, where the court considered the matter of a Garfield Heights school teacher who had been elected to, but denied the opportunity to serve on, city council due to a similar charter restriction on other public employment, the court stated at 443:
Disposition of this case is made upon the basis of State, ex rel. Platz, v. Mucci (1967), 10 Ohio St.2d 60, on both the question of whether a public school teacher is in public employment and whether a charter provision prohibiting a member of council from holding "other public office or public employment" is constitutional. Thus, we hold that a public school teacher receiving a salary supported by tax moneys is in other public employment, and the creation of a class prohibited as to "public employment" has a reasonable basis so as to be within the equal protection clause of the federal Constitution.
Hence, the apparent contradiction between the statute and the case authority is just that: an apparent contradiction. A school teacher is in public employment but, for the limited statutory purpose of filing campaign reports or making financial disclosures required by the Ethics Commission, as required by Chapter 3517. and Chapter 102. of the Revised Code, teachers, other than those in administrative or supervisory positions, are excluded.
The dispositive section of the code, R.C. 3307.01(B), defines "teachers" to include:
* * * any person paid from public funds and employed in the public schools of the state under any type of contract described in § 3319.08 of the Revised Code * * *
Accordingly, for the reasons stated, I concur with the judgment entered in this case.