Opinion
No. 75-600
Decided March 24, 1976.
Civil service — Part-time employees — In classified service — Duty of civil service commission — R.C. Chapter 124.
APPEAL from the Court of Appeals for Trumbull County.
This is an action, which originated in the Court of Appeals, seeking a writ of mandamus against the Civil Service Commission and the Board of Education of the city of Girard, Ohio.
Other than teaching, supervisory and administrative personnel, the board of education directly employs persons in the departments of buildings and grounds, food service, and transportation. Most of these positions are part time. With respect to all positions in the food service and transportation departments, and custodial helpers in the buildings and grounds department, the civil service commission does not give applicants civil service examinations, nor does it maintain eligibility lists for the use of the board of education in hiring applicants for these positions. In addition, no promotional examinations are given by the civil service commission for positions of employment in any of the three departments. Appellants seek to have a writ of mandamus issue ordering the board of education and the civil service commission to comply with the requirements of R.C. Chapter 143 (now R.C. Chapter 124) generally, and particularly as regards the testing and hiring of these non-teaching personnel.
The Court of Appeals denied the writ, finding, as to the commission, that appellants have an adequate remedy at law by way of appeal to the State Personnel Board of Review pursuant to R.C. 124.40. The writ was denied as to the board of education, essentially for the reason that the board's compliance with R.C. Chapter 124 was dependent upon the compliance of the commission.
The cause is presently before this court pursuant to an appeal as a matter of right.
Messrs. Lucas, Prendergast, Albright, Gibson, Brown Newman, Mr. Peter J. Gee and Mr. W. Joseph Strapp, for appellants.
Mr. Paul A. Burns, for appellees.
The principal question raised in this appeal is whether a position is in the unclassified civil service for the sole reason that the position is part time. This court finds that it is not.
R.C. 124.11 divides the civil service into the classified and the unclassified service. R.C. 124.11(B) states:
"The classified service shall compromise all persons in the employ of the state and the several counties, cities, city health districts, general health districts, and city school districts thereof, not specifically included in the unclassified service * * *." (Emphasis added.)
All of the positions in question in this appeal are held by persons who are directly in the "employ" of the Girard city school district. They are, therefore, classified civil service employees unless they are specifically included in the unclassified service.
R.C. 124.11 reads, in part, as follows:
"(A) The unclassified service shall comprise the following positions, which shall not be included in the classified service, and which shall be exempt from all examinations required by this chapter.
"* * *
"(12) * * * [S]uch unskilled labor positions as the director of administrative services or any municipal civil service commission may find it impracticable to include in the competitive classified service; provided such exemptions shall be by order of the commission or the director, duly entered on the record of the commission or the director with the reasons for each such exemption * * *." (Emphasis added.)
Appellees contend that the above statutory language makes it "* * * obvious that the state General Assembly never intended that part-time employees be placed in the classified service."
That conclusion is not obvious to this court, nor does it comport with the plain language of the statute. The statute makes no reference whatsoever to part-time employees. Moreover, the statutory language of R.C. 124.11(A)(12) clearly is not self-executing.
The record in this case shows that there is no order of the civil service commission finding it impracticable to include these positions in the competitive classified service, together with reasons therefor, duly entered on the record of that commission as required by R.C. 124.11(A)(12).
This court will not substitute its judgment for that of the civil service commission in a properly entered order. However, in the absence of an order by the commission, pursuant to R.C. 124.11(A)(12), the statute itself (R.C. 124.11[B]) places these positions in the classified service. Of course, today's finding does not preclude the commission from exercising the R.C. 124.11(A)(12) option with respect to particular unskilled labor positions in the future.
Appellants also seek the institution of promotional examinations for positions in the three departments.
R.C. 124.31 requires promotions in the classified service to be based upon merit, "to be ascertained as far as practicable by promotional examinations * * *." Whether promotional examinations are practicable for these positions is a question of discretion which is vested initially in the commission, not in the courts. It is appropriate, however, to require the commission to exercise the discretion conferred on it by R.C. 124.31.
With respect to the classified service positions with the board of education, R.C. Chapter 124 places a clear legal duty on the commission to maintain eligibility lists and to prescribe rules and regulations implementing R.C. Chapter 124.
The other remedy of an appeal to the State Personnel Board of Review pursuant to R.C. 124.40 found by the Court of Appeals is clearly inadequate in this case. The Court of Appeals' decision finding that mandamus is improper is reversed for the reasons stated in State, ex rel. Pressley, v. Indus. Comm. (1967), 11 Ohio St.2d 141, 228 N.E.2d 631.
For the foregoing reasons, the judgment of the Court of Appeals is reversed.
Judgment reversed and writ allowed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.