State ex rel. Cater v. City of North Olmsted

[This opinion has been published in Ohio Official Reports at 

69 Ohio St.3d 315

.]




  THE STATE EX REL. CATER, APPELLANT AND CROSS-APPELLEE, V. CITY OF
         NORTH OLMSTED ET AL., APPELLEES AND CROSS-APPELLANTS.
            [Cite as State ex rel. Cater v. N. Olmsted, 

1994-Ohio-488

.]
Mandamus to compel reinstatement as chairman of North Olmsted Civil Service
        Commission—Removal of Chairman procedurally flawed but reinstatement
        refused, when.
        (No. 92-1073—Submitted March 1, 1994—Decided May 18, 1994.)
APPEAL and CROSS-APPEAL from the Court of Appeals for Cuyahoga County, No.
                                           60689.
                                  __________________
        {¶ 1} James Cater, appellant and cross-appellee, petitioned the Cuyahoga
County Court of Appeals for a writ of mandamus to compel Thomas Stroh's
reinstatement as Chairman of the North Olmsted Civil Service Commission
("commission"). Cater filed his suit as a taxpayer action against the city of North
Olmsted, Mayor Edward Boyle, and members of the city council (collectively,
"North Olmsted"), appellees and cross-appellants.
        {¶ 2} Stroh was appointed to the civil service commission in 1986 to finish
an unexpired term ending December 31, 1991. He became chairman in 1989, when
two or three entry-level patrolman vacancies existed in the North Olmsted Police
Department, and more vacancies were expected.
        {¶ 3} The commission's rules and regulations required certification of the
top three candidates on the eligibility list for a first vacancy on the police force,
and, for any subsequent vacancy, the commission typically certified one additional
name to be considered with the two previously certified, but unsuccessful
candidates. Thus, in 1989, the commission certified three candidates to the city
police chief for consideration. In September of that year, the chief asked for
                             SUPREME COURT OF OHIO




additional candidates so he could complete background investigations and expedite
the selection process. The chief promised to consider the candidates three at a time,
in accordance with the commission's rules and regulations.
        {¶ 4} By January 4, 1990, however, just four candidates had been certified,
and only one vacancy had been filled. The civil service commission agreed to
certify two more candidates, but newly elected Mayor Boyle still objected to the
length of time the process was taking. Time became an even greater concern when,
at a commission meeting on January 25, 1990, the police chief announced his
retirement, and Boyle announced proposed legislation to create three or four new
patrolman positions.
        {¶ 5} In January 1990, the commission was comprised of Stroh, Robert
Wendt, and Henry Robinson, who had just been appointed by Boyle. Apparently,
these commissioners were not convinced of their authority to release more than one
additional candidate's name per vacancy, and they solicited the city law director's
advice and approval. The commission received this approval in a letter dated
February 27, 1990, wherein the law director advised that the entire eligibilty list
was a public record under Rule II(A)(1) of the North Olmsted Civil Service
Regulations. The law director also observed:
        "[I]n order to facilitate their efforts in completing the application process
expeditiously, the appointing authority should be given the list of qualifying
candidates."
        {¶ 6} In March 1990, the city's eligibility list expired. To establish a new
eligibility list, the commission administered a written aptitude examination to one
hundred fifty-one applicants for the position of patrolman. Eighty-five applicants
achieved a passing score. The commission then scheduled a physical agility test,
the other qualification for the eligibility list, to be given on May 19, 1990. The
thirty-five candidates who scored highest on the written test were invited to
participate.




                                          2
                                 January Term, 1994




         {¶ 7} On April 9, 1990, the city personnel director asked the commission in
writing for a list ranking the applicants who had passed the written examination,
and he reiterated this request at an April 26, 1990 commission meeting. The police
chief who succeeded the retiring chief also asked for this information on that day.
These requests were made to expedite the selection process and, in particular, to
allow new officers to attend a September 1990 police training session.
         {¶ 8} The commission did not comply with these requests, although on May
1, 1990 it provided the new police chief a list of the top twenty scorers in random
order.    The commission did not supply a complete list ranking the passing
candidates because Commissioners Stroh and Wendt believed that an eligibility list,
being based on both written and physical agility test results, would not "exist" until
the agility test results were received. Since this concededly public record had not
yet been prepared, these commissioners concluded that the commission had no
obligation to disclose anything. Stroh and Wendt were also concerned that the
"integrity" of the selection process might be compromised if they released a list of
candidates according to their written test scores.
         {¶ 9} On May 3, 1990, Boyle asked the commission in writing for "a listing
of all successful candidates from the most recent Police Officers test[,]
* * * [to] list the raw scores[,] and [to give] an indication of those people asked to
participate in the Agility test of May 19, 1990." In response, the commission's
secretary apparently forwarded (1) the list of top twenty written test scorers in
random order that had been given to the police chief, (2) an alphabetical list of the
top twenty written test scorers, which had also been provided to the police chief,
but by "mistake," (3) a list of the top thirty-five scorers on the written test who were
to take the physical agility test, (4) a list of candidates who had passed the written
test and been placed on a waiting list, and (5) a list of candidates who had failed the
written test.




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                              SUPREME COURT OF OHIO




       {¶ 10} None of these lists, however, identified how candidates scored in
relation to one another. Stroh and Wendt refused to release this information, and,
in a May 11, 1990 letter to Boyle, they explained:
       "[S]ince the commission ruled that only * * * [the new police chief] was to
have the names of the potential candidates and the ruling was made in an effort to
accommodate the pressing need of reserving spaces for potential candidates in the
various police academies, the commission determined that he alone was to receive
these names prior to a list being established. The commission further ruled that no
list is established until a completion and passing of the physical agility test."
       {¶ 11} On May 15, 1990, Boyle notified Stroh orally and in writing that he
was being suspended from the civil service commission pursuant to Section 6,
Article VI of the North Olmsted City Charter. In the letter, Boyle advised Stroh
that he could appeal the suspension at a city council meeting to be held that evening.
Boyle also told Stroh the reasons for this action:
       "Through your recalcitrant actions during 1989 and 1990, with full
knowledge of the North Olmsted Civil Service Commission Rules and Regulation
[sic], Ohio Revised Code, and the legal opinion of the North Olmsted Director of
Law, you have deprived this City of adequate police protection.
       "On several occasions you have refused to provide public records to the
Chief of Police, Mayor, Director of Public Safety and the Director of Personnel.
By your actions, North Olmsted has been unable to fill vacancies in the Police
Department, thus rendering them incapable, through manpower shortage, of
providing the mandated level of security to the City."
       {¶ 12} Boyle suspended Wendt about the same time and invited him to
appeal at the May 15 city council meeting. Wendt did not appear. After refusing
a continuance, Stroh attended the meeting and argued against his suspension. The
council voted five to two in favor of Stroh's suspension; two elected and three




                                           4
                                 January Term, 1994




appointed members made up the majority, two other elected members voted against
Stroh's suspension.
        {¶ 13} On May 23, 1990, Stroh wrote to the city council to explain again
why he would not release a list ranking the candidates who had passed the written
aptitude test. Stroh also demanded reinstatement. On June 5, 1990, Stroh met with
Boyle, but still refused to disclose a list ranking the candidates and their written test
scores. On June 12, 1990, Boyle gave Stroh formal notice that he had been relieved
of his duties on the civil service commission. Wendt was permitted to retain his
commission seat, in part because he had agreed to help administer the physical
agility test.
        {¶ 14} Stroh did not appeal his suspension and removal. Boyle purportedly
appointed Alex Kovelan to serve Stroh's unexpired term on or about August 13,
1990. On August 21, Boyle announced to city council Kovelan's appointment to
fill the vacancy created by Stroh's termination. Kovelan was apparently not sworn
in until November 1990.
        {¶ 15} On August 16, 1990, Cater, a friend and political ally of Stroh's,
complained to Boyle about Stroh's removal and asked for his reinstatement. Boyle
refused, and the law director advised Cater, in effect, that he would not institute a
taxpayer action to gain Stroh's reinstatement. Cater filed this action in the court of
appeals two months later, on October 23, 1990.
        {¶ 16} On April 14, 1992, the court of appeals determined that Stroh had
not been removed in accordance with charter procedures, which allowed only
elected council members to vote on the suspension. However, the court refused to
reinstate Stroh, holding that (1) a list of the aptitude test scores existed and should
have been released as a matter of public record, and (2) Stroh's failure to release
them was cause for his removal under the city charter. Thus, the court granted a
writ of mandamus and ordered payment of any compensation lost due to Stroh's




                                           5
                                  SUPREME COURT OF OHIO




termination. The court did not reach Cater's claims that Stroh's rights to due process
and equal protection were violated, and it denied his request for attorney fees.
         {¶ 17} The cause is before this court upon an appeal and cross-appeal as of
right.
                                    __________________
         Weiler & Weiler, Kevin P. Weiler and Cheri L. Westerburg, for appellant
and cross-appellee.
         Michael R. Gareau, Director of Law, and James M. Dubelko, for appellees
and cross-appellants.
                                    __________________
         Per Curiam.
         {¶ 18} For a writ of mandamus to issue, Cater must establish that North
Olmsted has a clear legal duty to act as he demands, that he has a clear legal right
to this relief, and that he has no other adequate remedy in the ordinary course of the
law. State ex rel. Berger v. McMonagle (1983), 

6 Ohio St.3d 28, 29

, 6 OBR 50,
51, 

451 N.E.2d 225, 226

.
         {¶ 19} Cater argues that (1) a list of aptitude test scores had not been
compiled and the civil service commission had no duty to create one under the
public record laws, (2) even if the commission owed this duty, Stroh's failure to
release the test scores was a mistake of law and not cause for his removal, and (3)
the denial of attorney fees was an abuse of discretion.1 North Olmsted cross-
appeals, arguing that (1) this cause is not actionable as a taxpayer suit, (2) Stroh's
removal was procedurally proper, and (3) Cater delayed unreasonably in filing this
action by waiting until Stroh could no longer appeal his removal and after
appointment of his successor. For the reasons that follow, we affirm.


1. Cater refers to, but does not develop, his constitutional claims or devote propositions of law to
them. Accordingly, we do not resolve these issues.




                                                 6
                                 January Term, 1994




                                     Test Scores
        {¶ 20} Under Rules II(A)(1) and (2)(b) of the North Olmsted Civil Service
Commission Rules and Regulations, police candidates must pass a written aptitude
examination and a physical agility test to be placed on the eligibility list. Cater
concedes that the eligibility list and the underlying test scores are public records.
Section 4, Article VI of the North Olmsted Charter and R.C. 149.43. In the court
of appeals, he argued that North Olmsted officials asked the commission for an
eligibilty list before the physical agility test had been administered and, thus, before
one of the two component test results existed. Cater maintained that no eligibility
list could be compiled without the physical agility test scores and, further, that Stroh
had no duty to release a list until the commission received those results.
        {¶ 21} The court of appeals did not find a duty to release the eligibility list;
instead, it made a factual finding that the commission had compiled a "raw," or
preliminary list ranking the police candidates according to their aptitude exam
scores and held that the raw list was also a "public record" as defined by R.C.
149.43(A)(1) ("any record kept by any public office," with some exceptions not
relevant here). Cater disputes this finding, complaining that this record does not
contain direct evidence of a raw list.
        {¶ 22} The existence of a raw list may have been inferred from testimony
that such lists had been provided to North Olmsted officials and the public in the
past. Regardless, the record before us shows that each candidate's score had been
written on his or her application, and the applications had been arranged according
to rank. This proof establishes that the civil service commission possessed a multi-
page record reflecting the results of the police aptitude exam, even if this
information was not formally reduced to a list of one or more pages.
        {¶ 23} Still, Stroh and the commission did not release the applications in
response to North Olmsted's request for a list of the information they contained.
Thus, Cater now contends that when the commission was asked for a list ranking




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                             SUPREME COURT OF OHIO




the applicants who had passed the aptitude test, no such list existed, and Stroh had
no obligation to make one. In essence, Cater argues that public information
responsive to a public record request need not be disclosed if it is not recorded in
the format requested.
       {¶ 24} Cater's argument is based on State ex rel. Fant v. Mengel (1992), 

62 Ohio St.3d 455

, 

584 N.E.2d 664

, State ex rel. Scanlon v. Deters (1989), 

45 Ohio St.3d 376

, 

544 N.E.2d 680

, and State ex rel. Cincinnati Post v. Schweikert (1988),

38 Ohio St.3d 170

, 

527 N.E.2d 1230

, which held that compliance with public record
laws does not require the creation of new documents to satisfy requests for public
information. In Fant, a writ of mandamus to compel access to public records was
denied because the requested information had not been recorded at all. In Scanlon,
a writ of mandamus was denied because the requested information was available
more completely and conveniently from another government source.                 In
Schweikert, a writ of mandamus was allowed because the requested information
had been incorporated into a report that was held to be a public record.
       {¶ 25} Fant, Scanlon, and Schweikert do not discuss the specificity with
which public records must be requested, yet Cater interprets them to say that public
information may be denied if the public does not guess correctly the format in
which such information is kept. We disagree. To demand such perfection in public
record requests does not foster the broad access favored by State ex rel. Natl.
Broadcasting Co. v. Cleveland (1988), 

38 Ohio St.3d 79

, 

526 N.E.2d 786

.
Moreover, the right to review public records containing the information on which
reports or other compilations subject to public disclosure are based is inherent in
Schweikert, providing the records are not available elsewhere as per 

Scanlon, supra, at 379

, 

544 N.E.2d at 683

.
       {¶ 26} Furthermore, we agree with North Olmsted that Cater is "quibbling"
to distinguish between the documents containing the aptitude test scores and a list
of this information. The commission invited the thirty-five candidates who had




                                         8
                                January Term, 1994




scored highest on the aptitude exam to participate in the physical agility test, thus
effectively creating the list sought by the city. Moreover, the commission was
obligated to create such a list regardless, as Section 4, Article VI of the charter
requires the commission to "keep a record of its proceedings and examination,
which shall be open to public inspection."
       {¶ 27} Based on the foregoing, North Olmsted's arguments have merit,
while Cater's position disserves the policy favoring disclosure of public records and
is not supported by his authority. We, therefore, affirm the court of appeals'
findings that the aptitude test scores were public record and that the commission,
under Stroh's direction, had a duty to release them.
                         Justification for Stroh's Removal
       {¶ 28} Section 6, Article VI of the city charter, the only provision cited for
relieving civil service commissioners of their duties, states:
       "The Mayor may at any time suspend any Commissioner for inefficiency,
neglect of duty, malfeasance, misfeasance or nonfeasance in office, * * * provided,
however, that such suspension shall not become final without the concurrence of
two-thirds of the elected members of the Council."
       {¶ 29} Cater argues that North Olmsted had no cause to suspend and
remove Stroh. The court of appeals agreed that Stroh's refusal to produce the
aptitude test scores was a well-intentioned, though ill-conceived, attempt to
"preserve the integrity of the hiring process." Cater contends that Stroh is therefore
not guilty of misfeasance, malfeasance, nonfeasance, or neglect of duty under the
charter.
       {¶ 30} But having found that Stroh had a duty, as chairman of the civil
service commission, to disclose the aptitude test scores, we must also find that his
refusal constituted nonfeasance. "Nonfeasance," according to State ex rel. Neal v.
Ohio Civ. Serv. Comm. (1947), 

147 Ohio St. 430, 434

, 

34 O.O. 356, 357

, 

72 N.E.2d 69, 71

, is "'the omission of an act which a person ought to do,'" and Stroh did not




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                              SUPREME COURT OF OHIO




observe the public records laws. The duty to disclose these records, whether
generated by the city charter or statute, is not subject to any requirement of intent,
such that Stroh was relieved of compliance to the extent he believed himself to be
acting lawfully. Accord State ex rel. Randles v. Hill (1993), 

66 Ohio St.3d 32

, 

607 N.E.2d 458

 (inadvertence or mistake no excuse for noncompliance with open
meetings law). For this reason, North Olmsted has no duty to reinstate Stroh.
                                    Attorney Fees
        {¶ 31} R.C. 733.61 provides:
        "If the court hearing a case under section 733.59 of the Revised Code is
satisfied that the taxpayer had good cause to believe that his allegations were well
founded, or if they are sufficient in law, it shall make such order as the equity of
the case demands. In such case the taxpayer shall be allowed his costs, and, if
judgment is finally ordered in his favor, he may be allowed, as part of the costs, a
reasonable compensation for his attorney."
        {¶ 32} Cater mainly complains that the court of appeals abused its
discretion by failing to review the equities of this case. His complaint is unjustified.
Before denying attorney fees, the court of appeals referred to its previous discussion
of the equities, where it had explained:
        "[T]he equities reveal[] a substantial balance of good intentions and sincere
efforts of fault and blame. The evidence indicates Mr. Stroh was motivated to
preserve the integrity of the hiring process, but he did not comply with Ohio
statutory law and perhaps jeopardized the safety of the community. Moreover, the
problems in staffing the police force had been pending for months. Although his
interpretation of the rules was incorrect, it was not irrational, and at least one
member of the Council agreed with him. [North Olmsted officials] misinterpreted
the Charter and gave Mr. Stroh little time to prepare his defense. Nevertheless he
fully presented his position and was satisfied with it."




                                           10
                                January Term, 1994




       {¶ 33} These are not the equities Cater argues are at work here. He
emphasizes his success in enforcing the charter removal provisions, the need to
hold public officials accountable and ensure their compliance with local laws, the
cost to individual taxpayers who sue for such compliance, the possible influence of
partisan politics, and the need to discourage public officials from future infractions.
       {¶ 34} Attorney fees are allowable when a tangible or intangible benefit is
bestowed on the public, including the prevention of illegal government activity.
Billington v. Cotner (1974), 

37 Ohio St.2d 17, 19

, 

66 O.O.2d 9, 10

, 

305 N.E.2d 805, 807

; State ex rel. Hirshler v. Frazier (1980), 

63 Ohio St.2d 333, 335

, 

17 O.O.3d 418, 419

, 

410 N.E.2d 1253, 1254-1255

. However, attorney fees in a
taxpayer action are entirely within the trial court's discretion, 

id. at 335

, 

17 O.O.3d at 419

, 

410 N.E.2d at 1254

, and here, the court of appeals plainly "exercise[d] its
discretion in considering the allowance of attorney fees." State ex rel. White v.
Cleveland (1973), 

34 Ohio St.2d 37

, 

63 O.O.2d 79

, 

295 N.E.2d 665

, paragraph
three of the syllabus; State ex rel. Gravill v. Fuerst (1986), 

24 Ohio St.3d 12

, 13-
14, 24 OBR 10, 11, 

492 N.E.2d 809, 810

. This is sufficient to avoid reversal, unless
the court's decision was plainly wrong, which does not appear from this record.
Accord Harrison v. Judge (1992), 

63 Ohio St.3d 766, 772

, 

591 N.E.2d 704, 708

.
       {¶ 35} The denial of attorney fees, therefore, is affirmed.
                           Actionability as Taxpayer Suit
       {¶ 36} North Olmsted argues that the purpose of Cater's suit was not, as he
claims, to enforce the public's right to proper execution of its charter removal
provisions requiring a two-thirds vote of elected council members. The city charges
that Cater instead intended to gain Stroh's reinstatement, and that this private
motive is not actionable under R.C. 733.59. The city also suggests that appeal or
quo warranto is the appropriate remedy here.
       {¶ 37} Cater lacked standing either to appeal Stroh's removal or to pursue
quo warranto, even as a taxpayer. State ex rel. Annable v. Stokes (1970), 

24 Ohio 11

                             SUPREME COURT OF OHIO




St.2d 32, 

53 O.O.2d 18

, 

262 N.E.2d 863

; R.C. 733.58 and 733.59. Moreover, we
have said that when no other adequate remedy exists, "[m]andamus is the proper
remedy to restore a party to the possession of an office from which he has been
illegally removed." State ex rel. Moyer v. Baldwin (1908), 

77 Ohio St. 532

, 

83 N.E. 907

, at paragraph one of the syllabus.
       {¶ 38} The court of appeals found taxpayer standing based on Cleveland ex
rel. Neelon v. Locher (1971), 

25 Ohio St.2d 49, 52

, 

54 O.O.2d 189, 191

, 

266 N.E.2d 831, 834

, which, while not involving a taxpayer suit, recognized the public's interest
in mandamus actions to force compliance with charter provisions:
       "If the members of a legislative body can ignore, with impunity, the
mandates of a constitution or a city charter, then it is certain that the faith of the
people in constitutional government will be undermined and eventually eroded
completely."
       {¶ 39} North Olmsted argues that Cleveland should be distinguished. The
city anticipates its next argument and claims that it did not refuse to comply with
an unambiguous charter provision, as was the case in Cleveland. North Olmsted
also emphasizes its countervailing concerns—enforcing public records laws and
providing adequate police protection—which Cleveland did not involve.
       {¶ 40} In State ex rel. Caspar v. Dayton (1990), 

53 Ohio St.3d 16, 20

, 

558 N.E.2d 49, 53

, we held that municipal policemen suing for recognition of their own
statutory vacation benefits had not brought a viable taxpayer action because they
had not attempted to enforce a public right. Caspar applied State ex rel. White v.
Cleveland, supra, at 40, 

63 O.O.2d at 81

, 

295 N.E.2d at 668

, which recognized
taxpayer claims in mandamus actions as a means to protect public rights:
       "In the present action, it is clear that R.C. 149.43 establishes a public right
to the inspection and copying of public records and imposes upon municipal
corporations the duty to permit same.




                                         12
                                January Term, 1994




        "It is also clear that appellant City of Cleveland refused to comply with that
mandatory duty, forcing appellees to maintain an action in mandamus to compel
the enforcement of such duty. In so doing, the appellees, regardless of any private
or personal benefit, have enforced a right of action on behalf of and for the benefit
of the general public. This action is, therefore, properly catagorized as a 'taxpayer's
action.'"
        {¶ 41} Here, Cater asserts the public's right to the services of a public
official who is purportedly performing in accordance with charter provisions. This
represents action taken on behalf of the public, and is a sufficient basis upon which
to institute a taxpayer action, notwithstanding that Cater's motives may not have
been purely philanthropic. Accordingly, the court of appeals' finding that Cater had
standing to pursue his claim as a taxpayer action was not error.
                                Propriety of Removal
        {¶ 42} Next, North Olmsted asks for reversal of the finding that Stroh's
removal was procedurally flawed. The court of appeals held that the removal was
not supported by "the concurrence of two-thirds of the elected members of the
Council," as required by Section 6, Article VI of the charter. The record establishes
that four of the seven city council members were elected, and those four voted in a
tie as to Stroh's removal, which did not establish the requisite two-thirds
concurrence.
        {¶ 43} Basically, North Olmsted argues that Section 6, Article VI of the
charter should be read without the word "elected" because it does not reflect the
framers' true intent. The city urges consideration of the charter as a whole to
determine this intent, and it cites various instances when council action requires a
two-thirds concurrence and other times when a majority vote of all council
members is necessary. Because "no discernible pattern" emerges, North Olmsted
concludes that the word "elected" is just "loose language." The city also complains




                                          13
                             SUPREME COURT OF OHIO




that giving effect to the word "elected" will cause "extreme results," including the
denial of voting privileges to appointed representatives of city wards.
        {¶ 44} The court of appeals rejected these arguments on the authority of
State ex rel. Gerhardt v. Krehbiel (1974), 

38 Ohio St.2d 90

; 

67 O.O.2d 92

, 

310 N.E.2d 251

, Cleveland Elec. Illum. Co. v. Cleveland (1988), 

37 Ohio St.3d 50

, 

524 N.E.2d 441

, and Fuldauer v. Cleveland (1972), 

32 Ohio St. 2d 114

, 

61 O.O.2d 374

,

290 N.E.2d 546

. We concur.
        {¶ 45} The syllabus in Gerhardt states:
        "Where a municipal charter prescribes the manner for the removal of
municipal officers, any attempt by the municipality's legislative body to remove an
officer in a manner at variance or in conflict with the charter's directives is a
nullity."
        {¶ 46} In Cleveland Elec. 

Illum., supra,

 at paragraph three of the syllabus,
we said:
        "In matters of construction, it is the duty of this court to give effect to the
words used, not to delete words used or to insert words not used. (Columbus-
Suburban Coach Lines v. Pub. Util. Comm. [1969], 

20 Ohio St.2d 125, 127

, 

49 O.O.2d 445, 446

, 

254 N.E.2d 8, 9

, followed.)"
        {¶ 47} In 

Fuldauer, supra, at 118

, 

61 O.O.2d at 376

, 

290 N.E.2d at 549

, we
said that the feasibility or wisdom of charter provisions is "not a matter for our
consideration."
        {¶ 48} These cases provide ample justification for the court of appeals'
interpretation of Section 6, Article VI of the North Olmsted Charter. Accordingly,
the court of appeals did not err in finding that the city failed to comply with the
charter in removing Stroh.
                                       Laches
        {¶ 49} Finally, North Olmsted maintains that Cater delayed unreasonably
in filing this action by waiting to do so until October 23, 1990—five months after




                                          14
                                 January Term, 1994




Stroh's May 15 suspension, four months after the formal notice of his removal on
June 12, at least three months after his administrative appeal period ended, and two
months after Kovelan's appointment. The city also argues that the delay caused
prejudice because Boyle waited the months after June 12, expecting some challenge
to Stroh's removal, and appointed Kovelan only when none came. Kovelan, North
Olmsted claims, was also prejudiced because he received the appointment.
       {¶ 50} The elements of a laches defense are (1) unreasonable delay or lapse
of time in asserting a right, (2) absence of an excuse for such delay, (3) knowledge,
actual or constructive, of the injury or wrong, and (4) prejudice to the other party.
State ex rel. N. Olmsted Firefighters Assn. v. N. Olmsted (1992), 

64 Ohio St.3d 530, 536-537

, 

597 N.E.2d 136

, 142. A successful laches defense requires the person for
whose benefit the doctrine will operate to show that he has been materially
prejudiced by the delay of the person asserting the claim. State ex rel. Madden v.
Windham Exempted Village School Dist. Bd. of Edn. (1989), 

42 Ohio St.3d 86, 90

,

537 N.E.2d 646, 649-650

. In mandamus actions, courts have discretion to find
laches regardless of whether the writ is barred by the statute of limitations. State
ex rel. Moore v. Sanders (1981), 

65 Ohio St.2d 72, 75

, 

19 O.O.3d 264, 265-266

,

418 N.E.2d 1339, 1341

.
       {¶ 51} The court of appeals did not find unreasonable delay because (1)
Cater filed this action two months after the denial of his requests for Stroh's
reinstatement and pursuit of a taxpayer action, and (2) Cater made the latter request,
which we have said is a jurisdictional prerequisite for taxpayer suits under R.C.
733.59, State ex rel. Citizens for a Better Portsmouth v. Sydnor (1991), 

61 Ohio St.3d 49, 54

, 

572 N.E.2d 649, 652

, within three days after Kovelan's appointment.
The court did not find material prejudice because it suspected that Kovelan had not
been sworn in and, thus, that his appointment did not become effective, until one
month or so after Cater filed his suit.




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                             SUPREME COURT OF OHIO




       {¶ 52} North Olmsted complains that Cater acquiesced until Kovelan's
appointment was complete, and this made Stroh's reinstatment impossible, as the
city charter did not provide for Kovelan's removal. The city cites State ex rel.
Spellacy v. Jaster (1936), 

131 Ohio St. 214

, 

5 O.O. 557

, 

2 N.E.2d 268

, and State ex
rel. Stoer v. Raschig (1943), 

141 Ohio St. 477

, 

26 O.O. 56

, 

49 N.E.2d 56

, in which
writs of mandamus to compel civil service employees' reinstatements were denied,
at least in part, because each employee's position had already been filled or
abolished. See, also, State ex rel. Moore v. Sanders, supra, 

65 Ohio St.2d at 75

, 

19 O.O.3d at 266

, 

418 N.E.2d at 1341

, and State ex rel. Leis v. Black (1975), 

45 Ohio App.2d 191, 196

, 

74 O.O.2d 270, 273

, 

341 N.E.2d 853, 857

 (prejudice to nonparties
considered in denying mandamus relief). But, see, State ex rel. Moyer v. Baldwin,
supra (city detective restored to employment despite repeal of ordinance creating
his office, enactment of second ordinance creating two new offices, and
appointments).
       {¶ 53} Cater's taxpayer action must be distinguished from these cases. As
a taxpayer faced with the prospect of suing on the public's behalf, he no doubt hoped
to avoid duplicating whatever efforts Stroh had made to individually contest the
government action taken against him. Thus, Cater's delay until after Stroh's appeal
period and the mayor's refusal to reconsider the removal is reasonable. The
additional two months it took Cater to file suit, given this chronology, does not
seem excessive.
       {¶ 54} Moreover, the city's argument that it prejudicially changed its
position by appointing Kovelan overlooks that an appointment is void if made
before a vacancy existed, State ex rel. Norman v. Viebranz (1985), 

19 Ohio St.3d 146

, 19 OBR 369, 

483 N.E.2d 1176

, and that Kovelan's appointment was
susceptible to challenge through quo warranto despite any absence of the city
charter to similarly provide. See State ex rel. Wilson v. Gulvas (1992), 

63 Ohio St.3d 600

, 

589 N.E.2d 1327

. In view of the holding that Stroh was improperly




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                                 January Term, 1994




removed from the civil service commission, his office did not become legally
vacant until the appropriate elected city council members concurred, per the city
charter, or Stroh's term ended without his reappointment. The purported prejudice
to the city due to Cater's delay, therefore, is illusory.
                                      Conclusion
        {¶ 55} Based on the foregoing, we hold that North Olmsted had cause to
remove Stroh as chairman of the civil service commission due to his failure to
provide the aptitude test scores as requested, but that his removal was procedurally
flawed. Moreover, we agree with the court of appeals' findings that the test scores
were matters of public record and that this cause is actionable as a taxpayer suit.
Finally, we concur in the rejection of North Olmsted's laches defense and in the
denial of attorney fees. The court of appeals' judgment, therefore, is affirmed.
                                                                Judgment affirmed.
        MOYER, C.J., A.W. SWEENEY, WRIGHT, RESNICK, F.E. SWEENEY and
PFEIFER, JJ., concur.
        DOUGLAS, J., concurs in judgment only.
                                __________________




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