State ex rel. Mileff v. Mifflin Twp.

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State: Ohio

Court: Supreme Court

Docket No: 1991-1465

Case Date: 12/11/1992

Plaintiff: State ex rel. Mileff

Defendant: Mifflin Twp.

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The State ex rel. Mileff, Appellee, v. Mifflin Township et
al., Appellants.

[Cite as State ex rel. Mileff v. Mifflin Twp. (1992),
Ohio St.3d .]
Public employment -- Veterans' rights -- Under R.C. 5903.01 and

5903.03, a public employee has ninety days from being

relieved from military duty, including duty as a

reservist, to apply for reemployment with his public

employer.

(No. 91-1465 -- Submitted November 10, 1992 -- Decided
December 11, 1992.)

Appeal from the Court of Appeals for Franklin County, No.
88AP-108.

Richard Mileff, appellee, filed a complaint for a writ of
mandamus in the Court of Appeals for Franklin County to compel
appellant Mifflin Township to reemploy him as a fire fighter,
restore his seniority, and award him back pay.

Mileff, who was employed as a permanent, full-time fire
fighter by Mifflin Township commencing July 30, 1981, received
a leave of absence to enter active military duty on December
13, 1982. Mileff enlisted in the Air Force and served as a
fire protection specialist. Mileff applied for an early
release under the Palace Chase program. He received an
honorable discharge from active duty on April 18, 1986, but was
obliged to serve in the ready reserve until August 6, 1987.

The Air Force assigned Mileff to reserve duty at Homestead
Air Force Base near Miami, Florida. Since he and his wife
hoped to live in Florida, he obtained a job as a fire fighter
with the Cape Coral, Florida Fire Department. He moved to Cape
Coral and commuted to Homestead for reserve duty. Mileff
attended weekend training sessions once a month at Homestead
and drilled for eight hours on both Saturday and Sunday. He
actually fulfilled his reserve obligation in February 1987.

Nevertheless, Mileff decided to return to Ohio and, in a
letter dated August 7, 1986, requested the Mifflin Township
Fire Department to reemploy him in his former position. The
fire department treated his letter as an application for
employment and informed him that it had not chosen him for

testing or interview. Mileff pressed the township trustees for
reemployment, and appellant Mifflin Township Trustee James M.
Abraham, arranged for the fire department to employ him as a
new employee with seniority, but subject to probation. Mileff
began work on April 7, 1987, but was terminated, during his
probation, on September 29, 1987.

Mileff filed the instant complaint seeking reemployment,
seniority, and back pay. The court of appeals, on the
respondents' motion to dismiss for failure to state a claim,
granted a limited writ of mandamus ordering respondents to
provide Mileff with a hearing concerning his termination. On
appeal to this court, we, in State ex rel. Mileff v. Mifflin
Twp. (1990), 49 Ohio St.3d 269, 551 N.E.2d 978, reversed the
appellate court's judgment and instructed that court to permit
appellants to file an answer and, then, to conduct further
proceedings.

On remand, the court of appeals, after conducting further
proceedings, again directed appellants to hold a hearing on
Mileff's termination. The court ruled that appellants had
granted Mileff a leave of absence from employment and could not
remove him, under R.C. 505.38, until they held this hearing.
The court suggested, without expressing an opinion, that
Mileff's failure to seek reemployment within ninety days
following his discharge from active duty might form a basis for
his dismissal from employment.

The cause is before this court upon an appeal as of right.

Richard M. Wallar, for appellee.

Michael Miller, Prosecuting Attorney, William J. Owen and
Donald M. Collins, Assistant Prosecuting Attorneys, for
appellants.

Per Curiam. Appellants argue that Mileff failed to apply
for reemployment within ninety days of his discharge from
active duty and, consequently, was not entitled to
reemployment. As to the limited writ requiring appellants to
hold a hearing, appellants maintain that, having failed to
apply timely for reemployment, Mileff no longer was a permanent
employee entitled to a hearing.

R.C. 5903.02 requires a public employer to grant a leave
of absence to a public employee who is inducted or otherwise
enters military duty. R.C 5903.03 states:

"A public employee who leaves a position, * * * whether
voluntarily or involuntarily, to perform military duty * * * is
separated or discharged under honorable conditions, makes
application for reemployment within ninety days after he is
relieved from military duty * * *, and is still physically
qualified to perform the duties of such position, shall be
restored to such position if it exists and is not held by a
person with greater seniority, or to a position of like
seniority, status, and pay. * * *" (Emphasis added.)

R.C. 5903.01(F) defines "military duty" as:

"* * * [T]raining and service performed by a member of the
Ohio national guard or Ohio naval militia, or by an inductee,
enlistee, reservist, or any entrant into a temporary reserve
component of the armed forces of the United States, and time
spent in reporting for and returning from such service and

training, or if a rejection occurs, from the place of reporting
therefor." (Emphasis added.)

Thus, under R.C. 5903.01 and 5903.03, a public employee
has ninety days from being relieved from military duty,
including duty as a reservist, to apply for reemployment with
his public employer. This contrasts with appellants' position
that the time to apply for reemployment runs from the
employee's discharge from active duty.

Appellants, in arguing their position, ignore the
definition of "military duty" contained in R.C. 5903.01 and,
instead, rely on the federal statutes controlling the
reemployment of veterans. Under Section 2021(a), Title 38,

U.S. Code, a veteran must make application for reemployment
within ninety days after he is relieved from active training
and service. However, Section 2021(c), Title 38, U.S. Code
states:

"The rights granted by subsections (a) and (b) of this
section to persons who left the employ of a State or political
subdivision thereof and were inducted into the Armed Forces
shall not diminish any rights such persons may have pursuant to
any statute or ordinance of such State or political subdivision
establishing greater or additional rights or protections."

Thus, Ohio may, as it has in this case, grant public
employees the greater right of applying for reemployment within
ninety days after being released from reserve duty, not just
release from active duty. See 1986 Ohio Atty.Gen.Ops. No.
86-050, at 2-270. Moreover, veterans' rights statutes are
"* * * to be liberally construed for the benefit of those * * *
who serve their country." Fishgold v. Sullivan Dry Dock &
Repair Corp. (1946), 328 U.S. 275, 285, 66 S.Ct. 1105, 1111,
90 L.Ed. 1230, 1240; accord Coffy v. Republic Steel Corp.
(1980), 447 U.S. 191, 196, 100 S.Ct. 2100, 2104, 65 L.Ed.2d 53,

59.

Mileff applied for reemployment on August 7, 1986, which
was before he was relieved from duty as a reservist in February
1987. This application was timely. Mileff, consequently, had
a clear legal right to reemployment, appellants had a clear
legal duty to reemploy him, and Mileff, having no adequate
remedy at law, is entitled to a writ in mandamus.

Accordingly, we modify the court of appeals' judgment and
grant a writ ordering appellants to reemploy Mileff with
seniority dating from July 30, 1981, R.C. 5903.02, and to award
him appropriate back pay from August 7, 1986, until the date of
his reinstatement.

Judgment modified
and writ granted.
Moyer, C.J., Sweeney, Holmes, Douglas, Wright, H. Brown
and Resnick, JJ., concur.

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