Benevolent Emps. of the Hamilton Cty. Sheriff v. State Emp. Relations Bd.Benevolent Emps. of the Hamilton Cty. Sheriff v. State Emp. Relations Bd.
Rendered on December 13, 2012
Michael DeWine, Attorney General, and Lisa M. Critser, for State Employment Relations Board.
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Kathleen H. Bailey, for The Hamilton County Sheriff.
APPEAL from the Franklin County Court of Common Pleas.
FRENCH, J.
{¶ 1} Appellants, the Hamilton County Sheriff (“Sheriff” or “Employer“) and the State Employment Relations Board (“SERB“) (collectively, “appellants“), appeal the judgment of the Franklin County Court of Common Pleas reversing a Directive by SERB, which withdrew an order for conciliation.
I. BACKGROUND
{¶ 2} On April 15, 2009, SERB certified appellee, Benevolent Employees of the Hamilton County Sheriff (“Union“), as the exclusive bargaining representative for certain individuals employed by the Sheriff. On March 11, 2010, SERB approved an Amendment of Certification that changed the title of one position included within the bargaining unit. The description of the certified bargaining unit specified the positions included within the unit, as follows:
Account Clerk 1, Account Clerk 2, Administrative Secretary 1 * * *, Application Analyst 1, Business Service Officer 1, Clerk 2, Computer Programmer/Analyst, Computer Operator, Correction Classification Specialist, Corrections Instructor, Court Data Entry Operator 2, Data Entry Operator 2 (spt), Identification Technician, Inventory Purchasing Specialist, Mechanic 2, Mechanic 3, Personal Aide 1, Process Officer 2, Receptionist 2, Secretary 2 * * *, Network Administrator 2, Social Service Specialist, Station Engineer, Statistics Clerk, Training Assistant, Data Entry 1 and Data Entry 2.
All supervisory, management level, professional, confidential, seasonal, casual and fiduciary employees, members of the existing Laundry and Maintenance, Enforcement Officers, Enforcement Supervisors, Corrections Officers and Corrections Supervisors bargaining units, employees who cannot be combined with this unit because of
Revised Code 4117.06 (including full-time deputy sheriffs appointed underRevised Code 311.04 ), all other employees not listed above as “Included” in the unit, and students.
(Emphasis added.)
{¶ 3} On June 22, 2010, the Union filed a Notice to Negotiate for a collective bargaining agreement and, on behalf of the parties, the Union requested a fact-finding panel pursuant to
{¶ 4} On December 20, 2010, the Sheriff filed a motion for immediate withdrawal of the conciliation order, arguing that the employees within the bargaining unit are not statutorily eligible for conciliation. The Union opposed the Sheriff‘s motion and submitted evidence to demonstrate that the employees in the bargaining unit were “deputy sheriffs” and “members of a police department,” eligible for conciliation pursuant to
{¶ 5} The Union filed a timely appeal of SERB‘s January 26, 2011 Directive to the Franklin County Court of Common Pleas pursuant to
II. ASSIGNMENTS OF ERROR
{¶ 6} Appellants present the following assignments of error for review:
[I.] The common pleas court erred by finding it had jurisdiction over the subject matter of this case because [SERB] has exclusive jurisdiction pursuant to
R.C. 4117.06(A) and [SERB‘s] Directive dated January 26, 2011 was not a final appealable order.[II.] The common pleas court erred by reversing [SERB‘s] Directive dated January 26, 2011, and remanding the matter to [SERB] for conciliation because the Directive was reasonable and not in conflict with the explicit language of
R.C. Chapter 4117 .
A. First Assignment of Error
{¶ 7} In their first assignment of error, appellants argue that the trial court erred by determining that it possessed jurisdiction to hear the Union‘s appeal. As in the trial court, appellants maintain that
{¶ 8} A court of common pleas has power to review proceedings of administrative agencies and officers only to the extent granted by law. AT&T Communications of Ohio, Inc. v. Lynch, 132 Ohio St.3d 92, 2012-Ohio-1975, ¶ 8, citing
{¶ 9} SERB‘s adjudications are generally subject to judicial review pursuant to
{¶ 11} Appellants argue that the determination of whether a bargaining unit must use conciliation depends entirely upon the composition of the bargaining unit and is, therefore, an unappealable issue arising under
{¶ 12} This court has had many opportunities to consider the contours of
{¶ 14} SERB argues that this court‘s decision in Cardinal Joint Fire Dist. v. Ohio State Emp. Relations Bd., 10th Dist. No. 05AP-264, 2005-Ohio-4355, is more instructive than Univ. of Toledo for purposes of this case. SERB maintains that Cardinal compels the determination that its Directive here dealt directly with unit appropriateness and falls squarely within the scope of
{¶ 15} Cardinal stemmed from SERB‘s determination of the appropriate bargaining unit for full-time firefighters employed by the Cardinal Joint Fire District (“Cardinal“). In 1998, when Cardinal employed only part-time firefighters, SERB certified Ohio Council 8, AFSCME (“AFSCME“), as the exclusive bargaining representative of firefighters employed by Cardinal. Thereafter, in 2002, Cardinal began employing full-time firefighters. AFSCME did not request that SERB amend the
{¶ 16} CPFA argued to this court that the trial court erred by not dismissing the appeals for lack of jurisdiction because, pursuant to
{¶ 17} Here, as in Univ. of Toledo, the parties do not seek to alter or amend the description of the certified bargaining unit by adding or deleting job classifications. There is no dispute as to the positions that fall within the bargaining unit. Those positions are clearly set forth in the amended certification. Nor is there a dispute as to
{¶ 18} The trial court reasoned that a determination of whether bargaining-unit members were “deputy sheriffs” is akin to a determination of whether individuals are “public employees” subject to
{¶ 19} In OCSEA, this court held that the trial court erred by concluding that it lacked subject matter jurisdiction. We stated as follows:
The board decided below, in part, that assistant public defenders were fiduciary employees and therefore, not public employees subject to the Ohio Public Employees’ Collective Bargaining Act. In reaching this conclusion, the board applied
R.C. 4117.01(C)(9) which excludes from the definition of public employee those persons acting in a fiduciary capacity. The board then concluded it was unnecessary to reach the issues relating to the appropriate bargaining unit.Clearly, the board made no determination under
R.C. 4117.06(A) .
{¶ 20} SERB maintains that, pursuant to
{¶ 21} SERB‘s Directive here did not involve the appropriateness of the bargaining unit, did not involve alteration to the bargaining unit description, and did not impact the composition of the bargaining unit. SERB‘s Directive involved nothing more than whether the undisputed members of the bargaining unit were entitled to conciliation based on their disputed status as deputy sheriffs. Whether the members are eligible for conciliation does not involve a question of unit appropriateness, and
{¶ 22} Appellees also argue that the trial court lacked jurisdiction over this appeal because SERB‘s Directive was a ministerial act, rather than an adjudicatory act, did not arise out of a quasi-judicial proceeding, and was not a final order. Under
{¶ 23} SERB‘s Directive was a determination by the highest authority of the agency and constituted a determination of the rights of the employees within the bargaining unit to proceed with conciliation. Nevertheless, SERB maintains that its issuance and withdrawal of the conciliation order were ministerial acts and, therefore, were not adjudications. A ministerial act is an act performed in a given state of facts, in a prescribed manner, in obedience to a legal mandate, and without regard to or the exercise of the actor‘s own judgment about the propriety of the act. State ex rel. Trauger v. Nash, 66 Ohio St. 612, 618 (1902). SERB maintains that the issuance and/or withdrawal of a conciliation order is obligated by a given state of facts and that it maintains no discretion with respect to that decision. Although SERB may lack discretion whether or not to order conciliation when the statutory requirements of
{¶ 24} SERB also argues that this appeal does not stem from a quasi-judicial proceeding.
Hold hearings pursuant to this chapter and, for the purpose of the hearings and inquiries, administer oaths and affirmations, examine witnesses and documents, take testimony and receive evidence, compel the attendance of witnesses and the production of documents by the issuance of subpoenas, and delegate these powers to any members of [SERB] or any administrative law judge employed by [SERB] for the performance of its functions[.]
SERB contends that
{¶ 25} Under
{¶ 26} Finally, appellants argue that SERB‘s Directive was not a final order under
{¶ 27} Having rejected each of appellants’ jurisdictional arguments, we conclude that the trial court did not err by determining it had subject matter jurisdiction to decide this appeal. Accordingly, we overrule appellants’ first assignment of error.
B. Second Assignment of Error
{¶ 28} We now turn to appellants’ second assignment of error, by which they contend that the trial court erred by reversing SERB‘s Directive because the Directive was reasonable and did not conflict with
{¶ 29} On appeal to this court, the standard of review is more limited. Unlike the court of common pleas, a court of appeals does not determine the weight of the evidence. See Rossford Exempted Village School Dist. Bd. of Edn. v. State Bd. of Edn.,
{¶ 30} The issue of whether conciliation is required in this case depends upon whether members of the bargaining unit are “deputy sheriffs” or “members of a police department.” Because a full-time deputy sheriff fulfills the statutory definition of a “member of a police department” in
{¶ 31} The Sheriff‘s General Order 100, effective May 8, 1991, states that “[a]ll personnel employed by [the Sheriff] shall be administered, and sign, an oath of office as a Deputy Sheriff.” It also provides that all “[p]ositions within the [Hamilton County Sheriff‘s Department], regardless of title or classification, will be established in one of the following categories: Sworn Law Enforcement Deputy[;] Sworn Corrections Deputy[;] Sworn Civilian Deputy.” (Emphasis added and deleted.) The Sheriff‘s policy was, therefore, that all employees were deputy sheriffs, regardless of their job classifications.
[T]he sheriff may appoint, in writing, one or more deputies. At the time of the appointment, the sheriff shall file the writing upon which the appointment is made with the clerk of the court of common pleas, and the clerk of the court shall enter it upon the journal of the court.
{¶ 32} In opposition to the Sheriff‘s motion to withdraw the order of conciliation, the Union submitted evidence in an attempt to demonstrate that the employees within
This day appeared in open Court, Simon L. Leis, Jr., Sheriff of Hamilton County, Ohio, and presents the name(s) of personnel who are duly appointed Deputy Sheriff to perform and have authority to fulfill the job duties as set forth in the classification and Job Description.
The forms further state that the ”[a]ppointed Deputy Sheriff(s) have executed an Oath of Office and have been duly sworn.” (Emphasis added.) Some of the forms predate the certification of the bargaining unit, while others post-date the certification. Thus, there is no indication in the record that the Sheriff altered its policy regarding the appointment of employees as deputy sheriffs as a result of the exclusionary language in the bargaining-unit certification.
{¶ 33} While they do not contest the evidence filed by the Union, appellants argue that the bargaining unit description precludes the finding that any member of the bargaining unit is a deputy sheriff, entitled to conciliation. The Union, on the other hand, maintains that the exclusionary language in the bargaining-unit description should be read to preclude the addition of other sworn deputies, but that it does not invalidate the deputy-sheriff status of employees who held positions expressly included in the bargaining unit.
{¶ 34} Upon review of the evidence presented to SERB, the trial court found that the members of the bargaining unit had been validly appointed as deputy sheriffs in compliance with both
{¶ 35} Like SERB, the trial court based its determination, not on an interpretation of
{¶ 36} In addition to the evidence discussed above, the Union submitted an affidavit from one of its attorneys, Stephen S. Lazarus. Mr. Lazarus stated that the Union was aware that SERB had previously determined that members of this bargaining unit were deputy sheriffs, that the Employer did not express a contention that the exclusionary language it proposed to include in the certification would preclude
{¶ 37} The trial court found ambiguity in the language excluding from the bargaining unit “employees who cannot be combined with this unit because of
{¶ 38} SERB‘s reading of the exclusionary language, as flatly excluding deputy sheriffs from the bargaining unit, is nonsensical. First, the employees whose job classifications are set forth in the description of the bargaining unit are undisputedly part of the bargaining unit and need not “be combined with” it. Further, nothing in
{¶ 39} For these reasons, we discern no abuse of discretion in the trial court‘s determination that SERB‘s Directive was not supported by reliable, probative, and
IV. CONCLUSION
{¶ 40} Having overruled both of appellants’ assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
TYACK and SADLER, JJ., concur.