concurring in part and dissenting in part. I respectfully concur in part and dissent in part to the opinion of the majority. Section 2(B)(2)(d), Article IV of the Ohio Constitution provides the authority to this court to review and affirm, modify or reverse judgments rendered by courts of appeals. I concur with the majority in affirming the court of appeals in allowing a writ of mandamus ordering the appellant, board of education, to reinstate appellee to his prior position. I dissent as to the limited effect of the majority opinion and the complete lack of any discussion or decision regarding the pay and benefits to which appellee is entitled for the period of time that his wrongful discharge has been in effect.
The court of appeals held that “Schneider has failed to submit evidence sufficient to establish his claims to back pay and benefits with certainty. Such a dearth of evidence not only makes it impossible for this court to calculate the amount of the sums allegedly owed, but whether they are owing at all. Consequently, this court declines to issue a writ of mandamus requiring the recovery of compensation. * * *” Because I believe that the court of appeals was wrong in not including, in the writ it issued, an order to the appellant to calculate the pay and benefits due appellee, and because the majority herein compounds that error, I dissent in this regard. Appellee is entitled to a writ which compels the board to calculate and pay the amounts due appellee. Obviously, it is not the job of the court of appeals, or the job of this court, to determine what is due. All the facts and figures, including any setoff for what appellee may have earned in the interim, are in the possession of (or could be obtained by) the board.
In Monaghan v. Richley (1972), 32 Ohio St. 2d 190, 61 O.O. 2d 425, 291 N.E. 2d 462, this court set forth the rule regarding wrongfully discharged public employees who seek to recover back pay: “An action in mandamus is maintainable by a reinstated public employee to recover compensation due him for the period of time during which he was wrongfully excluded from his employment, provided the amount recoverable is established with certainty.” Id. at syllabus. In setting forth this rule from Monaghan, this court, in State, ex rel. Hamlin, v. Collins (1984), 9 Ohio St. 3d 117, 118, 9 OBR 342, 343, 459 N.E. 2d 520, 522, said “* * * that the amount of compensation recoverable was that which the employee would have received had he not been wrongfully dismissed, reduced by the amount he earned, or in the exercise of due diligence could have earned in appropriate employment, during the discharge period.”
The record before us clearly reveals that on December 14,1981, the North Olmsted Civil Service Commis*284sion (“NOCSC”) found that appellee was a “classified” employee. NOCSC further found that appellee had been wrongfully discharged and that appellee was to be reinstated with full pay retroactive to the date of his discharge less any income he had earned from other sources during his discharge period. From the time (December 14, 1981) NOCSC ordered reinstatement and back pay to appellee to the filing of appellant’s brief in this court (June 26, 1987)1 and to consideration by this court on July 27, 1985, nearly seven years have gone by. During these seven years, the appellant has scrambled to deny appellee reinstatement and back pay and today this court rewards appellant for its intransigence. Fortunately, the wording found in Monaghan and Hamlin indicates that since appellee is now a reinstated employee, he can proceed in mandamus to recover the back pay due him, if any. If appellee chooses to do so, the long procedure will once again begin and I would bet the farm that the first motion appellee sees from appellant will be one for dismissal based upon res judicata, in that this court could have ordered in today’s opinion what the law requires — reinstatement and a back pay award.
During this protracted fight, appellee’s legal fees must be substantial. What solace will it be to him when his lawyer tells him that maybe in another seven years he can obtain an order for back pay — if, of course, he (appellee) is still alive and able to afford the additional legal expense. Then, at the conclusion of that period of time he will be told that his attorney fees are not recoverable and, of course, the appellant has been all along using tax money to engage in this protracted litigation.
Given all this, what incentive is there for a school board, not so inclined, to abide by the law and treat its employees fairly? The answer is obvious. With no penalty, the foul is free!
Accordingly, I would order that a writ of mandamus issue to the appellant compelling the board to reinstate appellee to his previous position and to compute back pay due, if any, from the date of discharge in 1981 until the date of reinstatement.
Appellee’s brief was filed in this court on July 27, 1987.