Opinion
No. 35969
Decided November 12, 1959.
Civil service — Removal of employee for absence without leave — Notice of removal order — Rule of commission constructive notice — Mandamus to require reinstatement denied.
APPEAL from the Court of Appeals for Wayne County.
By this action in mandamus relatrix seeks to be reinstated to a classified state civil service position to which she had been appointed and from which she was later removed. It appears from the record that relatrix had applied for and was granted sick leave from July 1 to July 16, 1957. She returned to work on July 16, at which time she was discharged from the care of her attending physician, and worked through July 19. The following two days, July 20 and 21, were her regular days off. Thereafter she remained absent without notifying her employer, the appointing officer for the position she occupied, of her physical condition or whereabouts until August 19, at which time, by letter, she notified her employer that she was still under a physician's care.
An automatic resignation of relatrix was entered on August 1, 1957, in accordance with Section 7 of Rule XI of the Ohio Civil Service Commission, which provides in part: "Absence from duty without leave for ten consecutive days shall be deemed a resignation from the service by the absentee upon report of such absence by the appointing authority and the resignation shall be entered upon the records of the commission." Relatrix was not notified of this entry.
In the answer it is alleged that by letter dated November 23, 1957, an attorney for relatrix requested her restoration to duty as of December 2, 1957, but that respondent was without authority to make such restoration.
The Court of Appeals, where this action originated, overruled relatrix's motion for judgment on the pleadings ( State, ex rel. Barcroft, v. Stover, 106 Ohio App. 513) and, in a later hearing on the merits, denied the writ.
An appeal from the judgment of the Court of Appeals brings the cause to this court for review.
Mr. Don E. Flath and Mr. Jack Roesch, for appellant.
Mr. Mark McElroy, attorney general, and Mr. Walter M. Shea, for appellee.
Relatrix contends that Section 7 of Rule XI of the Ohio Civil Service Commission, to the extent that it is invoked without notice, is invalid, and that the fact that the declaration that relatrix automatically resigned was made without notice and hearing rendered it void.
Constructive notice of the rule above quoted is advance notice to a civil service employee that absence without leave for ten consecutive days will result in an automatic resignation. There is nothing in Section 143.27, Revised Code, relative to removals for cause, requiring notice in a case involving resignation.
Relatrix, who absented herself without leave from July 22 until December 2, the date she requested re-employment, not having established a duty specially enjoined by law upon respondent to reinstate her, the Court of Appeals was not in error in overruling her motion for judgment on the pleadings and in denying the writ.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS, BELL, HERBERT and PECK, JJ., concur.