
    The State, ex rel. Rogers, Dir. of Pub. Utilities, v. Green et al., Civil Service Comm. of City of Cleveland.
    (Decided August 19, 1935.)
    
      
      Mr. Esra Z. Shapiro, director of law, and Mr. Charles W. White, for relator.
    
      Messrs. Phillips S Falsgraf, for respondents.
   Lieghley, P. J.

Relator, Wm. J. Rogers, brought an original action in mandamus in this court praying that a writ issue commanding respondents as members of and constiuting the Civil Service Commission of the city of Cleveland to cause the proper certification of certain payrolls in accordance with the provisions of the Charter and rules established thereunder.

Section 135 of the Charter provides that the Treasurer shall not pay nor shall the Commissioner of Accounts issue a voucher in payment for services of any person holding a position in the classified service unless the payroll shall bear the certificate of the Civil Service Commission that the person named therein has been appointed or employed and is performing services in accordance with the Civil Service provisions of the Charter and the rules established thereunder.

It is admitted that the Mayor and Directors of the several Departments constitute the Board of Control. Also, that it is the duty of this Board by authority of Section 191 of the Charter to fix the number and salary or compensation of the employees of the Department involved in this litigation.

On March 28th, 1935, said Board by resolution provided for thirty water meter repairmen at an hourly rate of compensation.

On and prior to April 15th, 1935, ten persons were working as water meter repairmen who were duly appointed from eligible lists established as a result of competitive tests. Also at the same time twenty-one persons were employed in the same Department performing the same duties but employed as laborers in the unclassified' service. Complaint was made to the Civil Service Commission that these twenty-one individuals were performing the duties of a position in the classified service. The commission investigated and found the complaint true and ordered that the names of such persons be not certified on future payrolls for that reason.

Section 130 of the Charter, so far as pertinent, reads as follows:

“Eligible lists created by the commission shall remain in force not longer than two years. In the absence of an appropriate eligible list, any place may be filled temporarily, without test, for the period limited by the civil service rules, but not exceeding ninety days. During such period the commission shall hold the necessary tests for filling any such place permanently. * * *”

It is admitted that on April. 15th, 1935, there was no layoff or eligible list of water meter repairmen, nor has the Civil Service Commission conducted any test for such a list since. On the first day of May, 1935, the relator appointed the same twenty-one persons as temporary water meter repairmen pending the establishment of an eligible list. The respondents were duly notified of said temporary appointments. Said temporary appointees have since been performing the duties of water meter repairmen and the relator has certified their names on the semi-monthly payrolls since said date staggered with the classified employees with substantial reduction in hours of labor for all. It is these payrolls which the Civil Service Commission has refused to certify. To compel their certification is the object of the writ of mandamus sought in this action.

The Agreed Statement of Facts incorporates Section 196 of the Charter in part as follows:

“Except in case of extraordinary emergencies, not to exceed eight hours shall constitute a day’s work and not to exceed forty-eight hours a week’s work, for any city employee of the City of Cleveland in the classified service thereof, * * *. The Council shall by ordinance, provide for the enforcement of the provisions of this section.”

Council has enacted no ordinance on the subject. And there is no provision in the Charter or by ordinance prescribing what shall constitute a minimum day’s work or week’s work. The ten water meter repairmen duly and regularly employed in the classified service from eligible lists and the twenty-one temporary appointees in the same Department are now and have ever since January 7th, 1935, been employed on a twenty-eight hour weekly basis by alternately working three eight hour days one week and four eight hour days the next week.

The Board of Control fixed the number of employees in the meter repair department at thirty and fixed the compensation. The Civil Service Commission had not in readiness a list of persons qualified by test to furnish upon request. for appointment to fill the twenty vacancies created by the Board of Control by resolution. The temporary appointments were made by relator to fill these vacancies. The relator claims he was acting within his legal rights upon authority of Section 130 and Section 191 of the Charter.

We would be inclined to agree with the claims of relator but for one contingency. The employees appointed from eligible lists were given only three and one-half days work per week on the average as a result of this staggering of temporary employees with them in the performance of the required work of the Department. Thirty employees working twenty-eight hours per week are engaged eight hundred and forty hours. If these ten were given work for forty-four or forty-eight hours per week not more than eight or nine temporary employees were required to do the work of the Department.

May the Board of Control by resolution create jobs arbitrarily to the prejudice of classified employees for the purpose of staggering the work of the Department and include in the plan classified employees thereby reducing their hours far below normal employment?

The respondents deny this right.

First, respondents claim that mandamus is not the proper remedy. It is the duty of the commission to certify a payroll that contains only names which are properly thereon and performance of this duty may be compelled by mandamus. So that, the inquiry is whether or not these names are properly on this payroll. 7 Ohio Jurisprudence, 612, “Civil Service” Section 112.

They also claim the Charter gives them certain rule making powers.

Sections 127 and 128 (g) of the Charter of the City of Cleveland read as follows:

“Civil Service Rules — How Made.

“Sec. 127. The Civil Service Commission shall make, promulgate, and when necessary may amend, rules for the appointment, promotion, transfer, layoff, reinstatement, suspension and removal of city officials and employees in the classified service. Before any such rules or amendments shall become effective they shall be printed and an opportunity given for a public hearing thereon to be held after reasonable notice thereof has been given by the Commission. The Commission shall report its proceedings to the Mayor upon his request, and shall make a report to the Mayor at the beginning of each fiscal year.”

“For What Rules Must Provide.

“Sec. 128. The rules of the Civil Service Commission shall among other things provide * * * (g) For temporary employment without test, in the absence of an eligible list. But no such temporary employment shall continue after the establishment of a suitable eligible list. * * * The Commission shall adopt other rules, not inconsistent with the foregoing provisions of this section as may be necessary and proper for the enforcement of the merit system, and to provide for the procedure of the Commission.”

In pursuance of the authority claimed to be conferred by these sections, the Civil Service Commission adopted the following rule:

“Rule 6, Section 4: Provisional or Temporary Appointments: Whenever there are urgent reasons for filling a vacancy and the Commission is unable, upon requisition, to certify a list of persons eligible for appointment after a competitive examination, the appointing officer may nominate a qualified person for provisional appointment. Such provisional appointment shall continue in force only until a regular appointment can be made from an eligible list which shall be prepared by the Commission within 90 calendar days thereafter.”

As we view it, the provisions of Section 128 of the Charter are not exclusive or rigid limitations on the rule making power of the commission. But we do not agree that the section sanctions a usurpation of jurisdiction not otherwise conferred. Davis et al., Civil Service Comm., v. State, ex rel. Kennedy, Dir. of Public Service, 127 Ohio St., 261, 187 N. E., 867.

The right of appointment of temporary appointees is specifically lodged in certain Directors of Departments in the absence of eligible lists. The determination of the need of such is for the administration through its appointing officers. Whether additional work exists requiring additional help to take care of the duties of a municipal department rests for decisión with the heads of departments. Not until lists are available has the Civil Service Commission any right or duty to assert dominion or authority over temporary appointments. Whenever and as soon as such eligible lists are existent, the commission has a controlling right to see that the Civil Service laws are respected and one of the weapons to secure compliance is a refusal to certify payrolls.

Neither has the Civil Service Commission any right to assert any control over or inquiry into the qualifications of temporary appointees until it is prepared to present a list of persons whose qualifications have been ascertained by tests. Without tests, the appointing officer may well claim his judgment to be as good as that of the Civil Service Commission. His is the responsibility for the competency of his appointees until an eligible list is available according to law. Then the responsibility for fitness and merit shifts.

So that, it is apparent that we are not wholly in accord with the claims of either party to this case. We do not think that Section 130 and Section 191 of the Charter compel the issuance of the writ prayed for. Nor do we think that Sections 127 and 128 of the Charter as authority for the rule nor Rule 6, Section 4, passed in pursuance thereof a sufficient basis for a denial thereof. Rule 6, Section 4, can not divest the respective appointing officers of their prerogative until a list of eligible qualified persons are supplied by the Civil Service Commission nor is the urgency of the situation subject to its review.

It was urged that the appropriating or budget authority had not supplied or provided sufficient funds for the conduct of necessary examinations to prepare eligible lists when and as required. However that may be, that neglect or omission could not operate to add to nor take from the authority and right of the relator or the respondents herein to assert their full legal rights and jurisdiction conferred by law without qualification by reason thereof. If their neglect, omission or refusal be actionable, the remedy must be invoked in another and different lawsuit.

Article 15, Section 10 of the Ohio Constitution reads:

“Appointments and promotions in the civil service of the state, the several counties, and cities, shall be made according to merit and fitness, to be ascertained, as far as practicable, by competitive examinations. Laws shall be passed providing for the enforcement of this provision.”

One who is qualified to meet the standard of merit and fitness prescribed by law is entitled to some special consideration over one who has not stood the test of competitive examination or there is merely form and no substance in the whole scheme and program.

The man who has qualified as required by Civil Service law has a right to work. Eight hours is the regular and recognized period constituting a day’s work. Likewise, forty-four or forty-eight hours a week’s work. It is recognized by relator in staggering the work among the, employees interested in this case. These ten qualified permanent employees had the right to work and perform the duties in their classified service for the regular recognized period per week.

No emergency existed justifying the procedure attacked herein and no authority reposed in the appointing officer or the Board of Control to create positions except to the extent that in its judgment was required to perform the work in the Department in excess of the jobs of these permanent employees.

Civil service and the urge upon citizens to qualify for civil service employment would be easily destroyed, if indiscriminate staggering of employees may be legally done as in this case, however meritorious in these times the spread of employment may be. If the performance of eight hundred and forty hours work may be staggered among thirty employees resulting in reducing the working time of ten permanent appointees in the classified service to twenty-eight hours per week, — if this be lawful, — then the Board of Control is legally authorized to stagger the work among eighty-four employees and reduce .the work of these ten to ten hours per week.

These ten men by virtue of their place and position in the service are and were entitled to work and have a right to work to the exclusion of temporary employees so long as there was and is work to do in the Department. They had a right to work approximately the maximum time recognized by the Charter. The relator recognized the eight hour day. Temporary appointments have to do with work in excess- of the work for these ten permanent appointees or emergency situations or seasonable occupations. Temporary appointments may not be used to effect a partial layoff of these ten men. A partial layoff is a condition not recognized or mentioned in Civil Service law.

There is such a thing as seniority rights in the administration of Civil Service law. When the work slackens, Section 127 of the Charter authorizes a layoff list as do the authorized rules of the commission to which list shall be transferred the names of those most recently appointed in the classified service in the department. It is conceived that those longest in the department needed for existing duties continue by reason of their senior rights. When the work increases beyond the amount which the classified employees may normally perform, then the right to temporary appointments arises in the absence of a qualified list, but this right may not be so exercised as to prejudice the rights of the regular employees in the service.

For the reason that there is no authority in law for staggering the work of a Municipal Department by the appointment of temporary appointees to the prejudice of men working therein in the classified service appointed from eligible lists, we think the Civil Service Commission was within its rights in refusing certification, and the writ of mandamus is denied.

Writ denied.

Levine and Terrell, JJ., concur in the judgment.  