It is apparent from a recitation of the facts in these cases that there can be only one "superior" under the law. I do not believe that the Board of County Commissioners is the "superior" of the employees of the Franklin County Welfare Department or of the Franklin County Home or County Home Hospital.
It should be noted that under Section 4117.04, Revised Code, the failure to report, or the absence, must be "without the approval of his superior" before the public employee is on strike. There is nothing in the record of this case to show the intention of the welfare director. He did not sign or send the notice in case No. 9165 or No. 9166 that they were on strike. He did not participate in the hearing required under Section4117.04, Revised Code.
The powers and duties of the county welfare director are as set out in Section 329.02, Revised Code. The pertinent parts are quoted in the opinion of the majority. Emphasis should be on "the county director of welfare shall *Page 77 have full charge of the county department of welfare." (Emphasis ours.) Also, "The director * * * shall appoint all necessary assistants * * *." It should be noted that this department was created by the Legislature, not the board of county commissioners. Section 329.01, Revised Code.
In the hiring or firing of an employee of the county welfare department, such can only be done with the approval of the county commissioners, but the initiation of the hiring or firing must be by the director. Surely the county commissioners do not have any power other than that of approval or disapproval. To permit the board of county commissioners to interfere with the operation of such a department was not the intent of the Legislature. See opinions of Attorney General (1966) No. 66-186, also (1963) No. 620, and (1958) No. 1978.
Since the welfare director did not send notices or participate in the hearing of the board of county commissioners, I would reverse the judgment of the Common Pleas Court and hold the action of the county commissioners a nullity in cases numbers 9165 and 9166.
In cases numbers 9167 and 9168, there was no hearing held by the director of welfare or the superintendent of the county home, although notices required by Section 4117.04, Revised Code, were sent. Those cases should be remanded for a hearing in compliance with Chapter 4117. See Markowski v. Backstrom,10 Ohio Misc. 139.
GUERNSEY, J., of the Third Appellate District, sitting by designation in the Tenth Appellate District. *Page 78