State ex rel. Chapman v. Lesser

Donahue, J. The first question presented by the record in this case is as to the validity of the order of the civil service commission of the city of Jackson, Ohio, permanently suspending Fred — 398 — erick W. Bertsch from the office of chief of the fire department of that city. On the 15th day of June, 1915, the mayor of Jackson suspended Mr. Bertsch from office and forthwith certified that fact, together with the causes for such suspension, to the civil service commission, and that commission within five days from the date of the receipt of the charges proceeded to hear the same and rendered a final judgment thereon, ordering that the suspension of Bertsch be made permanent. There is no complaint made as to the regularity of the proceedings, but it is claimed that the charge on which Bertsch was permanently suspended is not included within the terms of the statute authorizing the mayor to suspend the chief of the fire department, and that the civil service commission has no authority to make the suspension permanent upon any charge except such charge as would authorize the mayor to suspend. Charge No. 1, which was sustained by the civil service commission upon the evidence, is a charge of gross neglect of duty, whether so designated or not. The commission in its finding upon the fifth charge, “neglect of duty,” found that “in a measure, the first charge included the fifth;” but even if the commission had found that the first charge did not include gross neglect of duty the fact would still remain that that charge comes within the meaning of the term as used in the statute, and therefore authorized the permanent suspension of the chief of the fire department. — 399 — The civil service commission also found “the seventh charge — other good and sufficient reasons — is not sustained by the evidence,” but it is very clear that if charge No. 1 does not come within the meaning of the term “gross neglect of duty,” as used in the statute, it does come within the term “any other reasonable and just cause.” The mere failure of the civil service commission to recognize that fact does not invalidate its judgment. The commission having found the facts in reference to the charges filed against Mr. Bertsch, it is the province of the court to determine whether the facts so found constitute any legal ground for the removal of the officer. The conclusion necessarily follows that the suspension by the mayor was legal, for the reasons stated in the charges; that the judgment of the civil service commission sustaining these charges and ordering that the suspension be made permanent was a valid and final judgment; and that there then became and was a vacancy in the office of chief of the fire department of the city of Jackson. If it be conceded that the civil service commission has authority upon motion to rescind and set aside any final judgment made by it, it is evident that in this case it refused to do so, although perhaps no formal order was made to that effect. The motion of Bertsch to reconsider and reverse and set aside its findings was filed with the commission on the 3d day of August, 1915, and on the 20th day of September, 1915, the commission ordered a civil service examination to be held for chief of the fire department. This was a declara — 400 — tion by the commission that it refused to rescind its orders, and that there was then a vacancy in the position of chief of the fire department, to be filled according to law. This examination was held, and the relator took this examination, receiving a grade of 90.7. His name was certified to the mayor, who on the 18th day of December, 1915, appointed him as fire chief of the city of Jackson, and notified the civil service commission in writing that he had made such appointment. This exhausted the jurisdiction of the mayor and the civil service commission, and closed the transaction so far as they were concerned. It is undoubtedly the duty of the civil service commission to certify a list containing the names of at least three persons eligible to appointment, where that number of persons have taken the examination and received the minimum grade fixed by the commission, and it is perhaps true that the appointing authority may demand that three names shall be certified to it upon an eligible list before it is required to make an appointment, even if further examinations are necessary to be held in order to secure such a list, yet it is not necessary to the validity of an appointment to require such a list to be certified. The appointment of Chapman was a legal and valid appointment, and there was no vacancy in that office when the second notice of Bertsch was filed with the civil service commission. While it is of no legal importance, yet it is apparent that Bertsch did not rely upon his motion — 401 — filed August 3, 1915, but on the 7th day of January, 1916, filed a new and separate motion with the then civil service commission of the city, asking that the final judgment against him be rescinded, because the commission was without jurisdiction, because its finding was not sustained by the evidence, because charge No. 1 did not constitute a violation of the state or municipal civil service laws or rules, or of the General Code of Ohio, and because the action of the commission was illegal. It was this motion that was heard by the civil service commission on the 24th day of January, 1916, and an order made reinstating him as chief of the fire department, notwithstanding the city of Jackson then had a chief of the fire department duly and legally appointed under civil service rules. Certainly the civil service laws of this state do not justify such “fast and loose” proceedings on the part of the civil service commission. If this commission had sustained the first motion of Bertsch, before a permanent appointment had been made by the mayor of the city under its authority and direction, this court would probably not interfere notwithstanding the statute provides that the commission’s judgment upon the charges filed by the mayor on suspending an officer shall be final; but certainly its jurisdiction is exhausted when it overrules this motion, proceeds to hold an examination and certifies to the mayor a list of persons eligible to be appointed, which list the mayor accepts, although it contains but one name, and makes an appointment therefrom. — 402 — If, after that has been done, the same or a subsequent civil service commission can rescind the original order permanently suspending the officer, and reinstate him, then by the same course of reasoning it can a few months later rescind its order rescinding the original order, and so on indefinitely, to the hurt and final destruction of the public service. Nor can this proceeding be justified under the provisions of the civil service laws, Section 486-16, General Code (103 O. L., 706), for that section expressly provides that the person must be separated from the service without delinquency or misconduct on his part, and that he may be reinstated within one year from the date of such separation to a vacancy in the same or similar office or position in the same department. The chief of the fire department was separated from the service on account of delinquency and misconduct on his part as found by the civil service commission on the hearing of the charges filed against him by the mayor, and its judgment in that respect is final. At the time the civil service commission attempted to reinstate him in office there was no vacancy in the same and therefore he could not be reinstated, for the rights of the relator had then intervened. The relator having been lawfully appointed is entitled to hold that office until he is lawfully removed. Writ allowed. Nichols, C. J., Johnson, Wanamaker, New-' man and Matthias, JJ., concur. Jones, J., not participating.