Esselburne v. Ohio Department of Agriculture

I concur with the conclusion of the majority opinion that the decision of the Franklin County Court of Common Pleas be reversed and that the case be remanded to that court for the purpose of remanding the case to the State Personnel Board of Review for further proceedings resulting in a determination of the controlling factual issues involved in this case.

I agree with most of the reasoning in the majority opinion which, in my opinion, is a comprehensive discussion of the pertinent law applicable to this case. However, I specifically dissent from its holding that in every case that a person holding an office or position in the classified service may not be replaced by an unclassified employee against his will pursuant to R.C. 124.11(A)(8), and that the only way to accomplish this, under the facts of the instant case, is to reclassify such position pursuant to R.C. Chapter 124. In my opinion, the first holding of the majority opinion would depend on the duties that such classified employee held at the time that he or she was requested to be replaced pursuant to R.C. 124.11(A)(8).

The majority opinion bases its decision on State, ex rel.Townsend, v. Berning (1939), 135 Ohio St. 31 [13 O.O. 318], which concerned the removal of a tax clerk who had been duly appointed and had tenure in the competitive classified civil service, pursuant to the exemption provision in R.C. 124.11(A)(8). In that case, the court stated that the duties of a tax clerk were of a routine, clerical nature and that there were tax clerks in the same office in the classified service performing duties similar to those performed by subject tax clerk.

The only information in the record as to Esselburne's duties is that the title of his position is Attorney 2 and that he reported to the deputy director and chief counsel of the Ohio Department of Agriculture. A logical inference from the title "Attorney 2" is that appellant was doing legal work for the Ohio Department of Agriculture.

Among the employees who are properly regarded as "assistants" pursuant to R.C. 124.11(A)(8) are assistant law directors. State, ex rel. Ryan, v. Kerr (1932),42 Ohio App. 19, affirmed (1932), 126 Ohio St. 26; 14 Ohio Jurisprudence 3d (1979) 620, Civil Servants and Other Public Officers and Employees, Section 31.

Assistant law directors are included under the provisions of R.C. 124.11 (A)(11). However, the provisions of the Cleveland City Charter did not contain any express provisions placing assistant law directors in the unclassified service such as is done by R.C. 124.11(A)(11) and the issue in the Ryan case was whether assistant law directors of the city of Cleveland were included in the classified service under the provisions of the Cleveland City Charter. Many of the facts of the Ryan case can be distinguished from the facts of instant case, but I submit that the Ryan case is the only case that is pertinent to the status of an attorney as a civil service employee as compared to other civil service employees.

In the Ryan case, the court pointed out that attorneys are required to take bar examinations by the Supreme Court of Ohio before they can practice law in Ohio and stated that they could see no purpose in requiring assistant law directors to undergo a civil service examination to establish their legal qualifications.

The court of appeals in the Ryan case stated at 28, in pertinent part:

"We conclude that the position of assistant law director is of such confidential relation and the duties imposed upon him are of such importance that it is in the interest of the public welfare that the appointing power, to wit, the law director, shall exercise such disciplinary supervision as he deems necessary. * * *"

It is the law of Ohio that no person shall be permitted to practice as an attorney unless he has been admitted to the bar by order of the Ohio Supreme Court. R.C. 4705.01. It is a matter of general knowledge that the Ohio Supreme Court requires a graduate of a law school to pass an examination before he or she will be permitted to practice law.

In my opinion, the duties of an attorney do not fit in the general understanding of the word "routine" as applied to civil service employees. Furthermore, there is no evidence in the record of the instant case that there are other "Attorney 2" employees in the classified service of the Ohio Department of Agriculture that are performing duties similar to those performed by Esselburne. In my opinion, the facts in the instant case can be distinguished from the facts of the Berning case.

In my opinion, the position of "Attorney 2" probably comes within the provision of "assistants" pursuant to R.C.124.11(A)(8).