
    Johnson, Director, Montgomery County Welfare Dept. et al., v. State of Ohio, Dept. of Administrative Services et al.
    (No. 77-458
    Decided September 9, 1977.)
    Court of Common Pleas of Montgomery County.
    
      
      Mr. Chris R. Van Schailc, prosecuting attorney, for plaintiffs.
    
      Mr. George E. Lord, assistant attorney general, for defendants.
   Rice, J.

The captioned cause came on to be heard, at trial upon the merits, before the court sitting as the trier of fact, upon the pleadings, the testimony of the parties and their witnesses, and the arguments and post-trial memoranda of counsel. The plaintiffs, Minnie Johnson, Director of the Montgomery County Welfare Department, and the Board of County Commissioners of Montgomery County, Ohio, commenced this action for declaratory judgment on March 2, 1977, contending (and seeking a court order to such effect) that, by virtue of R. C. 329.01, this court should declare that the position of Director of the Montgomery County Welfare Department is in the unclassified civil service of the state of Ohio. The effect of such a decision by this court would be to preclude the necessity of the present director, the plaintiff, Minnie Johnson, from qualifying for said position by competitive examination, pursuant to the statutory process encompassed in R. C. 124.30.

The defendants, the state of Ohio, Department of Administrative Services, and the state of Ohio, Department of Public Welfare, contend that the Director of the Montgomery County Welfare Department is a classified civil service employee, that R. C. 329.01 et seq. are inapplicable to the issue in the captioned cause, and that the civil service status of said position is governed by the general statutory scheme set forth in R. C. 124.11.

For the reasons set forth below, this court holds, as a matter of law, that the Director of the Montgomery County Welfare Department is a classified civil service employee by virtue of R. C. 124.11 and the general classification scheme contained therein. Therefore, said position is one for which an appointee must qualify by competitive examination conducted pursuant to the statutory process set forth in R. C. 124.30.

Upon its own motion, pursuant to Civ. R. 52, this court sets forth its Findings of Fact separate from its Conclusions of Law.

A. FINDINGS OF FACT

1. The following facts were stipulated to by .and between the parties prior to commencement of trial upon the merits:

a. The Plaintiff, Minnie Johnson, is the Director of the Montgomery County Welfare Department, having been appointed to said position on June 4, 1976, by virtue of a resolution passed by the plaintiff, the Board of County Commissioners of Montgomery County, Ohio.

b. The plaintiff, the Board of County Commissioners of Montgomery County, Ohio, is a public agency created pursuant to the laws of the state of Ohio, said board consisting of the plaintiffs, Ray Wolfe, Oscar Page and Paula Macllwaine.

c. The Montgomery County Welfare Department is a county welfare department created by the Board of County Commissioners pursuant to R. C. 329.01. The plaintiff, Minnie Johnson, was appointed to her position as Director of the Montgomery County Welfare Department, by the board of county commissioners pursuant to said statutory section.

d. Up to the date of trial (July 11, 1977), the plaintiff, Minnie Johnson, had not taken the competitive- examination required by R. C. 124.30, for the filing of a position in the classified civil service.

e. Since the plaintiffs contend that the position of Director of the Montgomery County Welfare Department is a position in the unclassified civil service, thereby rendering it unnecessary for the plaintiff, Minnie Johnson, to take the competitive examination required by R. C. 124.-30, to fill her position, whereas both defendants, the state Department of Administrative Services and the state Department of Public Welfare, consider the position of director of a eounty welfare department to be in the classified civil service, rendering it mandatory that one appointed to such position, pursuant to R. C. 329.01, be certified by the taking of a competitive examination referred to in R. C. 124.30, the parties agree that an actual justiciable controversy exists as to the interpretation of B. C. 329.01 and 329.02.

2. In addition to the foregoing stipulations of fact, the following facts were proven, by a preponderance of the evidence, as the result of hearing upon the merits of the captioned cause:

a. The Montgomery County Welfare Department administers a great many programs involving the receipt and expenditure of federal funds, to-wit: Aid to Dependent Children, The United States Department of Agriculture Pood Stamp Program, Medicaid, General Belief, etc. In her prior position as Deputy Director of the Miami Valley Eegional Planning Commission, the plaintiff, Minnie Johnson, was likewise responsible for the administration of many programs involving the receipt and expenditure of federal monies. Her prior position was as a member of the unclassified civil service.

b. The board of county commissioners supervises many programs through which federal monies are both received and expended. The directors of these programs are, to a large degree, in the unclassified civil service. Several of these program directors were originally in the classified civil service but, upon request to the Ohio Department of Administrative Services, said positions were “de-classi-fied”; in other words, removed from the classified service.

c. Ohio follows the merit system of employment in its public offices. There are in existence several federal regulations requiring the merit basis system of appointment in offices administering programs dealing with public welfare funds.

d. The distinguishing criteria between the classified and unclassified civil service, in the position of director of a county welfare department, appears to be, insofar as the state of Ohio is concerned, whether or not the position under discussion performs any policy-making function. Insofar as the director of a county welfare department is concerned, it is the state’s contention that said welfare director must operate within guidelines set by the state of Ohio and, therefore, does not exercise a substantial amount of policy-making discretion.

e. There is present a county welfare department in each of Ohio’s eighty-eight counties. In only one of said counties is the director of the county welfare department not considered, by the county officials themselves, to be in the classified service or, for that matter, whose director was appointed to his or her position without a competitive examination required by R. C. 124.30. That sole exception is Montgomery County, Ohio, whose director is the plaintiff, Minnie Johnson.

B. CONCLUSIONS OF LAW

1. R. C. 124.11 sets forth the general statutory distinction between the classified and the unclassified civil-service. In addition, said statutory section sets forth which positions are to be denominated as classified and which are to be called unclassified.

2. Under R. C. 124.11(B), the position of director of a county welfare department is one which is within the classified civil service, since it is not specifically included in the unclassified civil service.

3. R. C. 124.11 is not the final arbiter of whether a given position is in the classified or unclassified civil service. Rather, where there is language elsewhere in the Revised Code, expressly designating a certain position as being in either the classified or unclassified service or where there is language wherein the court can imply such legislative designation, then that language controls as to the classified or unclassified nature of the position.

4. R. C. 329.01 et sec/., the statutory authority under which the Montgomery County Welfare Department was created and its director appointed, does not specifically place the position of director of the county welfare department in either classified or unclassified civil service.

5. The legislative history of R. C. 329.01, 329.02 and 124.11 (and its predecessor R. C. 143.08) clearly shows that the position of 'director of a county welfare department is in the classified civil service.

C. DISCUSSION

The purpose of the competitive classified civil service is to prevent discrimination in the employment, promotion and discharge of public employees. 9 Ohio Jurisprudence 2d 318, Civil Service, Section 3, and cases cited therein?. State, ex rel. Buchman, v. Munson (1943), 141 Ohio St. 319. R. C. Chapter 124 and its predecessors (R. C. Chapter 143 and 0. C. 486-1) were created to achieve that purpose by providing for the implementation of a merit system in creating the civil service system of the state of Ohio. Snch laws preserve or, at the very least, attempt to preserve the integrity of pnblic service by removing, to a great degree, Ithe ultimate power of employment from the political process, thus insulating said power from abuse by our elected public officials.

1. R. C. 124.11 is the general statutory scheme designating those positions in the classified or unclassified civil service. The position of director, county welfare department, is not included in the unclassified service by virtue of R. C. 124.11(A) (1)-(16). Said position is, therefore, in the classified civil service by virtue of R. C. 124.11(B).

Ohio’s civil service laws are codified in R. C. Chapter 124. Provided therein are, generally, the requirements for appointment to the classified civil service by means of competitive examination, similar requirements for promotion within the service, and an administrative process for removal from the service. Not all civil service personnel are within the classified service. The laws designate some positions as having unclassified status, exempt from the appointment and promotional requirements and from the discharge process guarantees available to those personnel within the classified status.

Civil service employees within the state of Ohio are designated as being in either the classified or unclassified service by R. C. 124.11, which reads, in pertinent part, as follows:

“The civil service of the state and the several counties * *' * shall be divided into the unclassified service and the classified service.
“(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.
ft* • »
“(B) The classified service shall comprise all persons in the employ of the state and the several connties * * * not specifically included in the unclassified service * * (Emphasis added.)

R. C. 124.11(A) contains therein sixteen classes of positions which shall be included in the unclassified service. Plaintiffs contend that the director is specifically excluded from the classified civil service by virtue of Section 124.-11(A)(9) which provides, in pertinent part, as follows:

“(9) The deputies and assistants of elective or principal executive officers authorized to act for and in place of their principals, or holding a fiduciary relation to such principals and those persons employed by and directly responsible to elected county officials and holding a fiduciary or administrative relationship to such elected county officials, and the employees of such county officials whose fitness would be impracticable to determine by competitive examination, provided, that this subdivision shall not affect those persons in county employment, in the classified service as of September 19, 1961. Nothing in this subdivision applies to any position in a county department of welfare created pursuant to sections 329.01 to 329.10 of the Revised Code.” (Emphasis added.)

The above quoted Subsection (A)(9) of R. C. 124.11, by including, “* * * those persons employed by and directly responsible to elected county officials and holding a[n] * * * administrative relationship to such elected county officials,” is the only subsection under R. C. 124.11(A) into which the director of a county welfare department could fit. Said subsection, however, specifically, excludes any position in a county welfare department from the unclassified civil service positions created by Subsection (A)(9). The word “any” means exactly what it says, to-wit: That, in the case of a county welfare department, no employee, be it the director, any of the director’s assistants or the lowest paid investigator or file clerk, is within the unclassified civil service. Since the position of the director of the county welfare department is not included in the unclassified civil service by any of the sixteen subsections to R. C. 124.11(A), it follows, as a matter of course, that the position of director must be within the classified civil service, by virtue of E. C. 124.11(B) which states, inter alia, that the “classified civil service shall comprise all persons * * * not specifically included in the unclassified service [within E. C. 124.11(A) (1)-(16)].”

E C. 124.11 has been held to mean exactly what it says, in that the statute speaks with mandatory as opposed to directory language. In other words, any position not included in the unclassified service is, by process of elimination, a classified position. State, ex rel. Barborak, v. Hunston (1962), 173 Ohio St. 295.

2. E. C. 124.11 is not the final arbiter of whether a given position is in the classified or unclassified civil service.

While the mandatory language of E. C. 124.11 normally would imply that said section is the exclusive determinant of the classified or unclassified status of a civil service position, said section is, in actuality, only the general statutory scheme to that effect. 9 Ohio Jurisprudence 2d, Civil Service, Sections 45, 48. It has been held that where there is language elsewhere in the Eevised Code expressly designating a certain position as being in either the classified or unclassified service, or where there is language therein from which the court can imply such legislative designation, then that language controls as to the classified or unclassified status of the position. State, ex rel. Fesler, v. Green (1931), 40 Ohio App. 400. For example, the court, in Fesler, supra, held that, inter alia, when the board of county commissioners is given both the power to appoint and the power to discharge an employee, then said employee, by implication, may be held to be in the unclassified service.

Therefore, unless some other provision of the Eevised Code specifically includes or excludes the position of director of the county welfare department from either the classified or unclassified service, the general statutory scheme, as established in E. C. 124.11 will control and will be applied by this court.

3. E. C. 329.01 et seq., contain no language from which this court could conclude, expressly, that the director of the county welfare department is in the unclassified service.

The position of county director of welfare is created pursuant to E. C. 329.01, wherein it provides, in pertinent part, as follows:

“The department shall consist of a county director of welfare appointed by the board, and such assistants and other employees as are necessary for the efficient performance of the welfare service of the county. * * *”

The powers and duties of said director are described in E. C. 329.02, wherein it is also provided as follows:

“* * * The assistants and other employees of the department shall be in the classified civil service, and may not be placed in or removed to the unclassified service.”

There is no express language in E. C. Chapter 329 placing the director of the county welfare department in the unclassified civil service.

4. There is language in E. C. 329.02 which could imply that a director of a county welfare department is in the unclassified civil service.

The above quoted language from E. C. 329.02 could, however, place the position of director in the unclassified civil service; the argument being that, since the statute states that the assistants and other employees of the department shall be in the classified civil service, with no mention of the director of said department, the implication is clear that the director is to be treated otherwise and is to be, therefore, a member of the unclassified sendee.

5. The legislative history of E. C. 329.01, 329.02 and 124.11 (and its predecessor E. C 143.08) clearly shows that the position of director of a county welfare department is in the classified civil service.

In addition to the foregoing language from E. C. 329.-02, which could imply that only the assistants and other employees of the department shall be in the classified civil service, the plaintiffs bring up the additional point that the original version of H. B. No. 140, whereby G. C. 2511-1 and 2511-2 (predecessor to E. C. 329.01 and 329.02) were enacted, contained language expressly including the position of director, county welfare department, in the classified service. Since this express language was deleted from the statute prior to enactment, the plaintiffs contend that this deletion is an expression of legislative intent from which this court could imply that the position under study is in the classified service. It is, of course, a general rule of statutory interpretation that the mention of one thing implies the exclusion of another. 50 Ohio Jurisprudence 2d, Statutes, Section 188. The rule of expressio unius est exclusio alterius, however, is to he applied by the court only when determining the legislative intent, not as a means to defeat same. Wachendorf v. Shaver (1948), 149 Ohio St. 231; State, ex rel. Jackman, v. Court of Common Pleas (1967), 9 Ohio St. 2d 159; 50 Ohio Jurisprudence 2d, Statutes, Section 188.

In the captioned cause, the legislative history of the pertinent statutory enactments clearly shows that the legal maxim of expressio unius may not be applied as a means of placing the position of director of the county welfare department in the unclassified service. In support of such a conclusion, the court makes the following, non-exclusive, observations:

a. The present E. C. 329.01 and 329.02 became effective on October 1, 1953, the effective date of the then new Ohio Eevised Code. The language of E. C. 329.02, to the effect that the “assistants and other employees of the department shall be in the classified civil service * * was both a part of original E. C. 329.02 and of its General Code predecessor, Section 2511-2, effective September 9, 1943.

b. The original version of H. B. No. 140, placing the director in the classified service, from which the General Code predecessors (Sections 2511-1 and 2511-2) to E. C. 329.01 and 329.02 were enacted, was drafted in 1943.

c. On September 19,1961, pehaps as a means of avoiding any possible confusion over the civil service status or classification of the director of a county welfare department, the Ohio Legislature enacted an amendment to E. C. 143.08(A)(9) (the immediate predecessor to E. C. 124.11 [A] [9]) which, for the first time, brought language into the statute to the effect that “Nothing in this subdivision applies to any position in a county department of welfare created pursuant to sections 329.01 and 329.10 of the Bevised Code.” (Emphasis added.) This provision was re-enacted, in its entirety, into the recodification of E. C. 143.08(A)(9) into Section 124.11(A)(9).

d. Therefore, regardless of the possible variety of interpretations implicit in either the legislative history of B. C. 329.01 and 329.02 or in the omission of the word “director” in B. C. 329.02, when speaking of the necessity for assistants and other employees to he members of the classified civil service, the clear intent of the Legislature, as evidenced in the September 19, 1961, amendment to the immediate predecessor of B. C. 124.11(A)(9) is to clear up the possible confusion as to the director’s civil service status and to clearly and expressly state that nothing in Subdivision (A)(9) applies to any position in the county welfare department created by B. C. Chapter 329. Since the word “any” means just what is says, it is clear that all employees, not just the assistants and the other employees, but also the director, himself or herself, must be a member of the classified service.

e. It is interesting to note that some sixteen years have passed since the Ohio Legislature has expressed its legislative intent in the September 19, 1961, amendment to the predecessor of B. C. 124.11(A) (9). Yet, the. Legislature has failed, in any particular, to amend that section (in spite of a recodification of many of the provisions of B. C. Chapter 143 into Chapter 124). Bather, the Legislature re-enacted, verbatim, the language added on September 19, 1961, to B. C. 143.08(A)(9) recodified into B. C. 124.11(A)(9). Additionally, the Legislature has failed, in the intervening sixteen years, to amend, in any way, the pertinent provisions of B. C. 329.01 and 329.02 to expressly include the position of director within the unclassified service. The import of this failure to amend is clear — the Legislature, content that it had laid to rest all possible areas of confusion as to the civil service status of a director of a county welfare department by its 1961 amendment, has not seen fit to act further. Had the Legislature had second thoughts, had it wished to include a director within the unclassified civil service, it would have been a relatively easy matter to delete the language in B. C. 124.11(A) (9), added to its predecessor in 1961, which took from the unclassified service any position in the county welfare department, created pursuant to B. C. Chapter 329, and, or, to amend B. C. 329.01 and 329.02 to specifically include a director within the unclassified civil service.

6. Diligent research has revealed that the courts of Ohio have not spoken (at least in a reported opinion) to the precise issue raised herein concernig the civil service status of the director of a county welfare department. However, at least two opinions of the Attorney General of the state of Ohio have considered this precise issue and have reached the same conclusion as has the court herein. In 1943 Ohio Atty. Gen. Ops. 492, No. 6335, the Attorney General concluded that “the position of county director of welfare created under the provisions of Section 2511-1, General Code [the predecessor to B. C. 329.01] is in the classified civil service.” Further, in 1946 Ohio Atty. Gen. Ops. 787, No. 1397, the Attorney General held that, “a County Director of Welfare is not an ‘assistant’ within the meaning of Section 486-8(a), (8), of the General Code of Ohio [a predecessor to present B. C. 124.11(A)], and may not therefore he claimed exempt from the classified service.” Moreover, in 1963 Ohio Atty. Gen. Ops. 613, No. 620, the Attorney General held that, “the board of county commissioners may discharge the county welfare director and appoint a successor if the provisions of Section 143.27 Bevised Code [the predecessor to B. C. 124.34] are followed.” This latter decision, by stating that a county welfare director can be discharged only if the provisions of that statutory section dealing with the removal of employees in the classified civil service are followed, inferentially holds that the director of a county welfare department is in the classified civil service. Moreover, since directors of county welfare departments, pursuant to this opinion of the Ohio Attorney General, cannot be fired except through procedures to be followed in the case of classified civil service workers generally, it is clear that the person occupying the position of director of a county welfare department cannot be hired and discharged by the county commissioners at will. Therefore, said position does not meet one aspect of the test set forth in State, ex rel. Fesler, v. Green, supra, which holds that when the hoard of county commissioners is given both the power to appoint and the power to discharge, then said employee may be held to be in the unclassified service.

While opinions of the Attorney General do not have the binding precedential effect of a court decision, such opinions are given some weight by courts in “sailing uncharted waters,” in ruling on matters of first impression before the courts of this state. Therefore, these three opinions of the Ohio Attorney General will be given some weight, particularly in view of the fact that they seem to corroborate or agree with the opinion of this court rendered herein. It should also be bom in mind, in giving some weight to these Ohio Attorney General’s opinions, that the Legislature has had many years, following the publishing of these opinions, to amend the pertinent statutes, should the Legislature have deemed itself in disagreement with the Attorney General’s holding that the director of a county welfare department is in the classified civil service.

7. The defendants contended, and introduced evidence in support of said contention, that the various federal laws, under which funds were received, administered and expended by the director, required said director to be elected by a merit system (i. e., to be in the classified service). In view of the court’s decision in the instant cause, holding the position of director of a county welfare department to be in the classified service, said contention on the part of the defendants is rendered moot and will, therefore, not be ruled upon.

D. CONFERENCE. CALL BATE SET TO DETERMINE BATE OF TEE TAKING OF THE EXAMINATION.

Since this court has determined that the position of director of a county welfare department is in the classified service, it follows that the Director of the Montgomery County Welfare Department is precluded from qualification for said position without the taking of a competitive examination, pursuant to the statutory processes outlined in E. C. 124.30. The present director of the department, the plaintiff, Minnie Johnson, was appointed to her position as director by the county commissioners, operating under the basic premise that no competitive examination was necessary, pursuant to their belief that the director was a member of the unclassified civil service. Pursuant to this court’s decision, the present director will be disqualified from retaining her position on a permanent basis, unless and until she is able to qualify for her position by means of the taking of a competitive examination. Therefore, it would seem to be a matter of the most elementary fairness for the present director to be able to take such an examination, particularly in view of the fact that her original appointment was made under the incorrect basic premise that no competitive examination was necessary, provided that she otherwise qualifies to take said examination. Therefore, counsel listed below will take note that a brief conference will be had, by telephone, at 8:55 A. M. on Monday, September 19, 1977, in order to determine whether or not the competitive examination required by Section 124.30 might be set far enough into the future to allow the present director of the Montgomery County Welfare Department, the plaintiff, Minnie Johnson, to take the competitive examination in order to attempt to qualify for the position that she now holds by appointment by the board of county commissioners PROVIDED she qualifies in all other respects for appointment to said position.

WHEREFORE, based upon the aforesaid, this court concludes that the position of Director of the Montgomery County Welfare Department is one which is in the classified service and that, therefore, one cannot qualify for appointment to said position as director of a county welfare department, pursuant to R. C. 329.01, unless and until said prospective employee has qualified for said position by competitive examination, pursuant to the statutory process encompassed in R. C. Section 124.30. To that extent, judgment is hereby entered in favor of the defendants and against the plaintiffs herein.

Judgment accordingly.  