Opinion
No. 85-1640
Decided December 24, 1986.
Mandamus — Municipal corporations — Police — Number of deputy chiefs within discretion of Columbus safety director, when.
IN MANDAMUS.
The facts in this original action in mandamus are uncontroverted.
On January 14, 1984, after approximately thirty-four years of service, relator, Bo Smith, retired in good standing as deputy chief in the Division of Police of the city of Columbus. Thereafter, on December 20, 1984, he wrote to the Executive Secretary of the Columbus Civil Service Commission stating, "I respectfully request that my name be placed upon the reinstatement/re-appointment list for the Division of Police." This letter was received by the commission's Executive Secretary on December 24, 1984 or within the required one-year period from resignation date, as specified in Rule VIII(C)(1) of the Rules and Regulations of the Columbus Municipal Civil Service Commission, for placement "* * * at the top of the eligible list for the classification from which the employee resigned * * *." This rule further specifies that "* * * [i]n filling vacancies, the appointing authority may consider such names. * * * No name reinstated to the eligible list shall remain on the eligible list for a period of more than one year."
The civil service commission responded to relator's request by letter dated January 29, 1985, which stated in part:
"This letter is in response to your request to be reinstated to the eligible list for Police Deputy Chief.
"In accordance with Rule VIII(C)[1] your name will be reinstated to the eligible list for Police Deputy Chief. This will allow your name to be considered by the appointing authority for a one (1) year period should any vacancies occur. * * *"
At the time of relator's retirement he was one of five deputy chiefs under the organizational structure of the division of police established by Division Directive No. 3.02 effective January 1, 1981 and as revised, effective November 11, 1983. This directive was again revised effective February 3, 1984. Such revision reorganized and reduced the subdivisions commanded by deputy chiefs from five to four, so that only four deputy chiefs were called for in the division of police.
It is agreed that for a one-year period from January 29, 1985 when relator's name was reinstated to the eligible list for deputy chief, the civil service commission did not certify any names from the deputy chief eligible list to the safety director, as appointing authority, nor did the appointing authority notify the commission of any such vacancy up to the filing of the agreed facts herein.
Relator contends that Section 2 of Columbus Municipal Ordinance No. 2300-84, approved December 17, 1984, establishes five deputy chief positions; that only four of such positions have been filled; and that since his name is the only name on the eligibility list for such positions he has a right to appointment to the deputy chief position which he vacated and which remains unfilled. Specifically, relator seeks an order requiring the civil service commission to certify the eligibility list for deputy police chief to the safety director as appointing authority, and for such appointing authority to fill such vacancy by appointment of relator thereto.
Wolery Wolery Co., L.P.A., and John J. Wolery, for relator.
Ronald J. O'Brien, city attorney, and Donald R. Keller, for respondents.
Resolution of this case involves the construction of Columbus Municipal Ordinance No. 2300-84. The preamble to this ordinance states that it is "[t]o establish a new Authorized Strength Ordinance for various Divisions or Departments of the City * * *." Section 1 of the ordinance lists authorized strength totals as to each department, board and office of the city after first stating that such numbers are the "maximum" per unit. Continuing, Section 1 states that "[n]o appointing authority shall appoint personnel in excess of the maximum permitted by this ordinance unless authorized by ordinance of Council."
Section 2 of Ordinance No. 2300-84 then provides in pertinent part:
"Such of the positions within the Division of Police as the Director of Public Safety and the Police Chief shall designate, shall be within the uniformed ranks, * * * provided there shall not be * * * in excess of, as a normal complement five (5) Police Deputy Chiefs nor as a temporary complement in excess of six (6) Police Deputy Chiefs at any one time."
In spite of the foregoing "maximum" and "in excess of" language, relator argues that the ordinance is a mandate of strength rather than a strength authorization. However, that argument by relator is contrary to a basic tenet of statutory construction as to determination of legislative intent: "* * * [I]f such intent is clearly expressed therein, the statute may not be restricted, constricted, qualified, narrowed, enlarged or abridged; * * * and in the absence of any definition of the intended meaning of words or terms used in a legislative enactment, they will, in the interpretation of the act, be given their common, ordinary and accepted meaning in the connection in which they are used." Wachendorf v. Shaver (1948), 149 Ohio St. 231 [36 O.O. 554], paragraph five of the syllabus.
Relator further argues that the 1984 reorganization of the police division is a usurpation of the legislative function because Section 14 of the Charter of the city of Columbus provides that "* * * council shall by ordinance determine the number of officers and employes in each department of the city government." We find that Ordinance No. 2300-84 provides for maximum totals including those designated as police sergeants, police lieutenants, police captains and police deputy chiefs, but makes no attempt to ascribe to such positions any duties or functions. The ordinance complies with the foregoing charter provision. The organizational structure of the police division is the responsibility of the Department of Public Safety and its director. Section 101 of the Columbus Charter ascribes to such director "* * * all powers and duties connected with and incident to the appointment, regulation, and government of his department * * *." Pursuant to this charter provision, it was within the discretion of the safety director to determine, as he did here, the number of deputy chiefs of the police division within the maximum prescribed.
For the foregoing reasons, relator has not established a clear legal right to the relief prayed for and the writ of mandamus is hereby denied.
Writ denied.
CELEBREZZE, C.J., SWEENEY, LOCHER, HOLMES, C. BROWN, DOUGLAS and WRIGHT, JJ., concur.