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Firefighter decision is reversed on appeal



Published: Tue, June 21, 2005 @ 12:00 a.m.



Now, the complaint gets dismissed.

WARREN -- An April 2004 decision for the Liberty Civil Service Commission, which thwarted a Liberty Township firefighter's effort to be named a captain, has been reversed by an appeals court.

The decision, however, doesn't mean that Mike Rappach gets the job.

Rappach appealed the April 2004 Trumbull County Common Pleas Court decision. That decision affirmed the Liberty Township Civil Service Commission's refusal to appoint him a certified employee in the vacant position of fire department captain.

The 11th District Court of Appeals, however, ruled that the trial court lacked jurisdiction to consider Rappach's argument regarding his appointment as captain. The common pleas court is now being told to dismiss Rappach's appeal of the lower court's decision.

In September 2001, Rappach, a 28-year department veteran, took the written promotional exam for the captain's post. In October 2001, the commission advised Rappach that he failed to pass.

Unfair questions

Rappach objected to the exam results by challenging the fairness of one of the questions. In September 2002, the commission informed Rappach his challenge was denied.

Rappach then filed his appeal in common pleas court.

On May 21, 2002, Rappach received a memo from fire Chief Michael A. Durkin appointing him "acting captain" until the vacancy is filled.

Rappach alleged that he was and is a provisional captain of the department and that he had recently passed the second of two promotional examinations given for the vacant captain's position.

Rappach sought judgment against the commission, declaring that he be appointed as a certified employee in the vacant captain's position before the commission prepares an eligibility list.

In April 2004, the trial court entered judgment in favor of the commission, denying Rappach's claim regarding the results of the promotional exam and request for appointment as captain.

Ruling challenged

In his appeal, Rappach only challenged the trial court's ruling in regard to his appointment as captain. He said the trial court was wrong to enter a judgment in the commission's favor.

The review of proceedings of administrative officers and agencies are not appealable to the common pleas court, the appeals court said.

In this case, the failure to appoint Rappach as captain was not a "final order, adjudication, or decision" of the Civil Service Commission resulting from quasi-judicial proceedings. "The commission has simply failed to perform an act that Rappach believes it is obligated to perform," the appeals court said.

Accordingly, the common pleas court has no jurisdiction to hear Rappach's appeal of this issue.

The correct action to enforce a public official's performance of a legal duty, the opinion said, is mandamus -- a writ issued by a superior court commanding the performance of a specified official act or duty.

Concurring in the opinion are Judges Donald R. Ford and Cynthia Wescott Rice.




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