JOURNAL ENTRY AND OPINION
TIM McCORMACK, J.
{¶1} Relator, Municipal Construction Equipment Operators' Labor Council, is the exclusive labor representative for construction equipment operators employed by respondent, the city of Cleveland. Relator avers that one of its members, Jeffrey Milum, was discharged for other than good cause. Relator requests that this court issue a writ of mandamus compelling respondent's civil service commission (the "commission") to appoint a neutral referee to conduct a hearing at which Milum may challenge his discharge.
{¶2} Relator filed a "dispositive motion," attached to which are matters outside the pleading. As a consequence, we treat the "dispositive motion" as a motion for summary judgment. Respondent has also filed a motion for summary judgment. For the reasons stated below, we grant respondent's motion for summary judgment and deny relator's "dispositive motion."
{¶3} "The requisites for mandamus are well established: (1) the relator must have a clear legal right to the requested relief, (2) the respondent must have a clear legal duty to perform the requested relief, and (3) there must be no adequate remedy at law." State ex rel. Goodgame v. Russo, 8th Dist. No. 97347, 2012-Ohio-92, ¶ 2, fn.1. Relator fails to meet any of the three criteria for relief in mandamus.
{¶4} Milum began his employment with respondent in 2009. He was classified as a temporary appointee.
{¶5} On March 6, 2012, the commission offered an open competitive test for construction equipment operators Class A and Class B. Milum ranked 10th out of 23 candidates for Class A and 13th out of 28 candidates for Class B. Respondent appointed the person who was second on the list to the Class A position.
{¶6} On April 20, 2012, respondent sent a notice of pre-disciplinary conference to relator's president alleging that Milum ranked number ten on the civil service test. The conference was held on April 23, 2012. On the same date, relator's counsel wrote the secretary for the commission and observed that respondent's explanation at the conference for Milum's discharge was the requirement of the charter and the rules of the commission that respondent choose a candidate who is among the top three on the eligibility list.
{¶7} On April 27, 2012, respondent's director of the Department of Public Utilities wrote Milum stating that, after the civil service test was administered and graded, he was ineligible to remain in his temporary position under the charter and the rules of the commission. The effective date of Milum's termination was April 27, 2012.
{¶8} On May 22, 2012, relator's counsel wrote the secretary for the commission renewing his demand for a hearing and indicating that he would "be filing a lawsuit" to compel the commission to follows its rules. On June 1, 2012, the secretary for the commission, Lucille Ambroz, wrote relator's counsel and informed him that the Department of Public Utilities rescinded the notice of discharge and sent Milum a letter explaining that he was dismissed from his temporary appointment because he did not score high enough on the civil service test. She also informed relator's counsel that the commission would permit Milum and counsel to appear before the commission on June 22, 2012, "in order to further argue for the reinstatement of your client's former position of employment."
{¶9} Relator's counsel filed this action on June 13, 2012.
{¶10} Respondent has filed a transcript of the June 22, 2012 hearing. Neither Milum nor relator's counsel appeared at the hearing and the commission voted to deny Milum's request for a disciplinary hearing.
{¶11} Relator observes that the April 23 pre-disciplinary conference was held in accordance with Cleveland Civil Service Rule 9.20.1 Also on that date, relator submitted a written demand to Ambroz for a hearing before a referee in accordance with Cleveland Civil Service Rule 9.22.2 In this action, relator requests this court to compel respondent and the commission to appoint a neutral referee to hear Milum's challenge to his discharge.
{¶12} Respondent argues, however, that Milum was not discharged for disciplinary reasons. Rather, he was a temporary appointee who was always subject to discharge after respondent certified an eligibility list. "In the absence of an appropriate eligible list, any place in the classified service may be filled temporarily, without test, but no such temporary appointment shall continue after the establishment of a suitable eligible list * * *." Cleveland Civil Service Rule 6.70 ("Temporary Appointments"). See also Charter of the City of Cleveland, § 128(f) and (g) and 130.3
{¶13} The unrefuted evidence presented by respondent demonstrates that Milum was a temporary employee who participated in a competitive test but was not among the three persons standing highest on the eligibility list. Clearly, under the rules of the commission and the authorizing provisions of the charter, respondent was obliged to choose among the top three applicants.
{¶14} We are not persuaded by relator's demand that respondent conduct proceedings consistent with a disciplinary discharge. Although respondent initially provided a notice of pre-disciplinary conference, three days later — at the conference — respondent informed Milum and relator's counsel of the basis for his discharge. Even on the notice of pre-disciplinary conference, respondent stated that the basis for Milum's discharge was his rank on the eligibility list. That is, the basis for Milum's discharge was not the kind of disciplinary action contemplated by Cleveland Civil Service Rules 9.20 and 9.22.
{¶15} Given these facts, we cannot conclude that relator has demonstrated that Milum has a clear legal right to a hearing before a neutral referee.
{¶16} Likewise, the charter and rules of the commission required respondent to select an applicant from among the top three on the eligibility list. Relator has, therefore, not demonstrated that respondent and the commission have a clear legal duty to provide Milum with a hearing before a neutral referee.
{¶17} We also note that the commission did hold a hearing and provided Milum and relator's counsel an opportunity to argue for Milum's reinstatement. Yet, both Milum and his counsel did not attend.
{¶18} In State ex rel. Henderson v. Maple Hts. Civ. Serv. Comm., 63 Ohio St.2d 39, 406 N.E.2d 1105 (1980), Henderson's employment as a part-time city bus driver ceased and he sought a hearing before the civil service commission. The commission refused to grant the hearing and informed Henderson's counsel through a letter from the commission's counsel. Henderson brought an action in mandamus to compel the commission to hold a hearing as well as to compel the mayor and transit director to reinstate his employment with back pay.
A denial by the respondent civil service commission of jurisdiction of this controversy represented a final appealable order. When the commission refused relator's request for a hearing, relator should have appealed to the Court of Common Pleas. Having failed to do so, and, thereby having failed to pursue his appellate remedies in the ordinary course of law, he cannot now collaterally attack this jurisdictional determination. See State, ex rel. Stough, v. Bd. of Edn. (1977), 50 Ohio St.2d 47, and State, ex rel. Bingham, v. Riley (1966), 6 Ohio St.2d 263.
Id. at 41.
{¶19} In State ex rel. Lane v. Pickerington, 130 Ohio St.3d 225, 2011-Ohio-5454, 957 N.E.2d 29, the city's law director determined that the personnel appeals board did not have jurisdiction to hear the relator's appeal of his dismissal and declined the request for a hearing. The supreme court observed that there was no evidence that the personnel appeals board had issued a final appealable order or that the letter from the law director was issued on behalf of the board. "In Henderson, however, there was no question that the civil service commission itself refused to hear the discharged employee's appeal and that the commission's legal counsel merely communicated the commission's own decision to the employee." Id. at 228.
{¶20} In this action, the commission itself not only acted, it scheduled a hearing and notified relator's counsel that he and Milum would be permitted to appear before the commission and argue for Milum's reinstatement. The commission held a hearing but neither Milum nor relator's counsel attended. The commission acted at the end of the hearing to deny Milum's request for a disciplinary hearing.
{¶21} As demonstrated by Henderson and reinforced more recently by Lane, Milum had an opportunity to appeal the commission's decision. "[H]e cannot now collaterally attack" the commission's determination. Henderson, supra. Milum had an adequate remedy in the ordinary course of the law and may not now secure relief in mandamus. State ex rel. Jaffal v. Calabrese, 105 Ohio St.3d 440, 2005-Ohio-2591, 828 N.E.2d 107, ¶ 5.
{¶22} Accordingly, respondent's motion for summary judgment is granted and relator's "dispositive motion" is treated as relator's motion for summary judgment and is denied. Relator to pay costs. This court directs the clerk of court to serve all parties notice of this judgment and its date of entry upon the journal as required by Civ.R. 58(B).
{¶23} Writ denied.
MELODY J. STEWART, A.J., CONCURS; MARY EILEEN KILBANE, J., DISSENTS.
