
    No. 638
    STATE ex rel Barrett v. CLEVELAND (City)
    Ohio Appeals, Eighth District, Cuyahoga County
    No. 4838.
    Decided June 11, 1923
    This opinion, has not been published except in Abstract.
    MUNICIPAL LAW — (1) Mandamus to restore fireman to his position — (2) Who may suspend or remove fireman.
    Attorneys — Day, Isaacs & Day, for Barrett; J. P. Lamb and G. W. Perry, for City of Cleveland.
   LEVINE, J.

Epitomized Opinion

Barrett was member of Cleveland Fire Department from 1913 to 1921. On March 16, 1921, Granger, First Assistant Fire Marshal, suspended Barrett on written charges that Barrett had gossiped and made a false report about Granger. Granger certified in writing to Sprotsy, Director -of Public Safety, the cause of the suspension. March 23, 1921, Barrett appeared before Sprotsy to answer the charges '.and objected to the proceedings on the ground that Granger had no power or authority to suspend him. The hearing proceeded and Sprotsy dismissed Barrett from the Department. Later on appeal the Civil Service Commission affirmed the sentence.

It was admitted that Wallace, Chief -of Fire Department, wás not ill, out of the city, on a furlough or leave of absence or incapacitated from performing his duties on the day Barrett was suspended. Under the City Charter, the Fire Chief is given exclusive control of stationing, transfering and suspending ■firemen, but must certify in writing the cause of suspension to the Director of Public Safety. Rule 50 of the Cleveland Fire Department provides in the absence of Chief, his assistant shall have same .powers and authority as Chief. The Court of Appeals in reversing Common Pleas Court and ordering Barrett restored to duty as member of Fire Department held:

1. The phrase “in the absence of the Chief” contemplates absence on an occasion demanding immediate exercise of the powers of Chief. The suspension of a member of Fire Department does not call for such immediate exercise of such power. By the Charter the Chief is given exclusive .right to suspend and he is therefore the sole person vested with this right.

2. If a fireman is suspended, the Chief and he alone must certify in writing to the Director of Public Safety the cause of the suspension. The Assistant Chief has not- the power or duty to do it.

3. The Director of Public Safety has no authority to remove a member of Fire Department unless he •has _ been suspended by Chief and the latter has certified charges to him. Sprotsy was therefore without jurisdiction to hear charges against Barrett. 77 OS. 532.

4. The rules of Fire Department are for benefit of Department to insure proper and effective administration and are not intended to satisfy the whim, caprice or individual grievances, real or imaginary, of any officer thereof. The rule against making a false report must be construed to mean a report relating to work of the Department rather than to personality or character of any superior officer. The rule against gossiping must be construed to mean gossiping about affairs of Department and not about other matters. Granger’s claim is for alleged slander.  