State ex rel. Internatl. Assn. of Fire Fighters, Local 1536, AFL-CIO v. SakacsState ex rel. Internatl. Assn. of Fire Fighters, Local 1536, AFL-CIO v. Sakacs
Civil law—
(No. 2022-0988—Submitted May 3, 2023—Decided August 29, 2023.)
APPEAL from the Court of Appeals for Lake County, No. 2021-L-103, 2022-Ohio-2201.
STEWART, J.
{¶ 1} When a vacancy occurs in a promoted-rank position in a fire department and no list of eligible candidates for that position exists, the position must be filled through the competitive promotional-examination process. See
Facts and Procedural History
{¶ 2} The city of Wickliffe’s Department of Public Safety includes its Division of Fire, which is served by a fire chief, four captains, three lieutenants, and various grades of fire fighters. These employees are members of the competitive-classified civil service and are subject to the civil-service competitive-examination process for appointments and promotions. The fire chief, unlike other members of the Division of Fire, is not a bargaining-unit employee who is subject to the collective-bargaining agreement between appellee the city of Wickliffe (“the city”) and appellant, the International Association of Fire Fighters, Local 1536, AFL-CIO (“Local 1536”).
{¶ 3} Appellee James G. Powers is currently employed as the city’s fire chief. He has been a member of the city’s Division of Fire for over 30 years and was promoted to the rank of chief after 16 years of service.
{¶ 4} On January 6, 2020, Powers retired from the position of fire chief. That day, appellee Mayor John Barbish1 submitted paperwork to
{¶ 5} The next day, January 7, the mayor rehired Powers to serve as the city’s fire chief and swore him in to the position. The reason for Powers’s retirement and his immediately being rehired was to allow him to receive pension benefits while remaining employed as the fire chief.
{¶ 6} On February 7, 2020, Local 1536 sent an email to appellee Wickliffe Civil Service Commission (“the commission”) expressing its belief that Powers’s retirement created a vacancy in the position of fire chief. The commission disagreed. In a responsive letter to Local 1536, the commission’s chairman stated: “Although the term ‘retire/rehire’ is commonly used in reference to this action, it is actually not the case. * * * There was no resignation from the City, or from the position of Chief. There is continuous service and no break in payroll administration, thus no vacancy was created.”
{¶ 7} At the February 10, 2020 city-council meeting, the mayor presented an emergency ordinance to the council. Emergency Ordinance No. 2020-10, titled “An Ordinance Authorizing Compensation for the position of Chief of Fire of the City of Wickliffe, Ohio; and Declaring an Emergency,” authorized the city’s finance director to “compensate the person performing the duties of Chief of Fire” at the rate of $97,965.00 per year. During the meeting, the mayor
{¶ 8} In a May 2020 letter from its legal counsel to the city’s law director, Local 1536 expressed its view that Powers’s retirement had created a vacancy in the position of fire chief. In addition, Local 1536 demanded that the city immediately conduct a competitive promotional examination to fill the vacancy. The city’s law director did not act on Local 1536’s demand. In September 2020, Local 1536’s legal counsel sent a letter to the city’s law director demanding that the law director prosecute the mayor under
{¶ 9} Local 1536 subsequently filed a complaint in the Lake County Court of Common Pleas against the city, the mayor, and the commission (collectively, “Wickliffe”), seeking a declaratory judgment, a permanent injunction, and a writ of mandamus, claiming that Wickliffe’s failure to fill the vacancy in the position of fire chief through the competitive promotional-examination process upon Powers’s retirement violated civil-service laws and deprived eligible captains of the opportunity to ascend to the position of fire chief. Local 1536 also sought attorney fees and punitive damages. Powers intervened in the action.
{¶ 11} Local 1536 appealed the trial court’s judgment to the Eleventh District, raising three assignments of error. 2022-Ohio-2201, 192 N.E.3d 548. In its first assignment of error, Local 1536 asserted that the trial court had failed to properly apply the law regarding whether a vacancy had occurred. Id. at ¶ 16. In its second and third assignments of error, Local 1536 asserted that the trial court had erred in granting Wickliffe’s motion for partial judgment on the pleadings regarding its claims for attorney fees and punitive damages. Id. at ¶ 14-15.
{¶ 12} In a split decision, the Eleventh District overruled Local 1536’s first assignment of error and affirmed the trial court’s judgment on that basis. Id. at ¶ 32-36. The court of appeals concluded that Powers’s retirement did not create a vacancy. Id. at ¶ 24. In arriving at its decision, the Eleventh District first analyzed
{¶ 13} Next, the Eleventh District analyzed
{¶ 14} Local 1536 appealed, and we accepted the following propositions of law for review:
Proposition of Law No. 1: Vacancy, for competitive promotional examination purposes, occurs immediately upon the retirement of a classified civil servant in the promoted ranks, since retirement constitutes a permanent separation of employment regardless of intent, requiring the vacancy to be filled through the statutorily-mandated competitive promotional examination process.2
Proposition of Law No. 2: Applicable law concerning the reinstatement of a classified civil servant in the promoted ranks of a fire department prohibits an individual who voluntarily resigned from the position of fire chief to be reinstated to any position above the rank of a regular firefighter and, in any event, an individual’s voluntary resignation, regardless of purpose, constitutes an immediate vacancy from office, requiring any reinstatement thereafter to follow the mandated Civil Service process set forth in the Ohio Revised Code.
See 168 Ohio St.3d 1418, 2022-Ohio-3752, 196 N.E.3d 852. We find merit in Local 1536’s first proposition of law. We reverse the judgment of the court of appeals on that basis and remand the case to that court for it to consider Local 1536’s assignments of error that the court deemed moot.
Analysis
{¶ 15} We review de novo a decision granting summary judgment. State ex rel. Manley v. Walsh, 142 Ohio St.3d 384, 2014-Ohio-4563, 31 N.E.3d 608, ¶ 17. Summary judgment is proper when an examination of all relevant materials filed in the action reveals that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
R.C. 124.48 and our precedent
{¶ 17}
Whenever a vacancy occurs in a promoted rank in a fire department and no eligible list for that rank exists, the appointing authority shall certify the fact to the civil service commission. The civil service commission, within sixty days of the vacancy, shall conduct a competitive promotional examination. After the examination has been held, an eligible list shall be established, and the civil service commission shall certify to the appointing authority the name of the person on the list receiving the highest grade. Upon the certification, the appointing authority shall appoint the person so certified within ten days.
When an eligible list exists and a vacancy occurs in a position for which the list was established, the appointing authority shall certify the fact to the civil service commission. The person
standing highest on the list shall be certified to the appointing authority, and that person shall be appointed within ten days.
“Vacancy” is not defined for purposes of
{¶ 18} In determining the ordinary meaning of the term “vacancy,” we look to dictionary definitions. See Athens v. McClain, 163 Ohio St.3d 61, 2020-Ohio-5146, 168 N.E.3d 411, ¶ 30. “Vacancy” has a variety of definitions. Black’s Law Dictionary defines “vacancy” as
1. The quality, state, or condition of being unoccupied, esp. in reference to an office, post, or piece of property. 2. The time during which an office, post, or piece of property is not occupied. 3. An unoccupied office, post, or piece of property; an empty place. • Although the term sometimes refers to an office or post that is temporarily filled, the more usual reference is to an office or post that is unfilled even temporarily. * * * 4. A job opening; a position that has not been filled.
Id. at 1862 (11th Ed.2019). These definitions support Local 1536’s reading of
{¶ 20} The same is true here. On January 6, 2020, the position of fire chief became vacant when Powers retired. The mayor rehired Powers on January 7, 2020. But a person cannot be rehired for a position that is not vacant. As the court of appeals’ dissenting judge succinctly stated: “[T]o be rehired necessarily implies an existing vacancy which would trigger the statutorily mandated promotional process to fill the retired incumbent’s position.” 2022-Ohio-2201, 192 N.E.3d 548, at ¶ 46 (Rice, J., dissenting). We conclude that under the plain language of
{¶ 21} Powers contends, however, that a vacancy did not occur, because he did not intend to permanently relinquish the position. In Powers’s view, “the critical aspect of a ‘vacancy’ is the permanence associated with the public officer’s act in leaving his position of employment.” Powers states that he retired for the sole purpose of receiving his pension and that because he retired for that specific purpose, his retirement did not create a vacancy under
{¶ 22} The problem with Powers’s argument is that it misconstrues the plain language of
The city’s charter does not dictate a contrary result
{¶ 23} In its merit brief to this court, Wickliffe argues that the city’s charter authorizes the mayor’s appointment of Powers as fire
{¶ 24} Article XVIII, Section 3 of the Ohio Constitution (the “Home Rule Amendment”) provides that “municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.” Article XVIII, Section 7 states that “[a]ny municipality may frame and adopt or amend a charter for its government and may, subject to the provisions of section 3 of this article, exercise thereunder all powers of local self-government.” We have stated that “the intention of the Home Rule Amendment was to eliminate statutory control over municipalities by the General Assembly.” Cincinnati Bell Tel. Co. v. Cincinnati, 81 Ohio St.3d 599, 605, 693 N.E.2d 212 (1998). Consequently, “a charter city has all powers of local self-government except to the extent that those
{¶ 25} The provision at issue, Article VI, Section VI-3 of the city’s charter, provides that the civil service examination “shall not be required for the appointment of * * * any head of a department.” Id., https://codelibrary.amlegal.com/codes/wickliffe/latest/wickliffe_oh/0-0-0-1385#JD_CharterArticleVI (accessed Aug. 3, 2023) [https://perma.cc/EX7B-KBAW]. Wickliffe maintains that the fire chief is the head of a department under Section VI-3 of the city’s charter and therefore the position need not be filled using the competitive promotional-examination process. Wickliffe’s interpretation of this charter provision ignores other parts of the charter. Specifically, Article V, Section V-4 of the city’s charter states that “[t]he Director of Public Safety shall be the head of the Division of Police, Division of Fire, Division of Building Engineering and Inspection, and the Division of
Conclusion
{¶ 26} The Eleventh District Court of Appeals erred in concluding that Powers’s retirement as fire chief did not create a vacancy in the position under
Judgment reversed and cause remanded.
KENNEDY, C.J., and FISCHER, DEWINE, DONNELLY, BRUNNER, and DETERS, JJ., concur.
Diemert & Associates Co., L.P.A., Joseph W. Diemert Jr., Thomas M. Hanculak, and Mark V. Guidetti, for appellant.
Frost Brown Todd, L.L.C., Alexander L. Ewing, and Charles B. Galvin; and Employment Law Partners, L.L.C., and Stuart G. Torch, for appellee James G. Powers.
Hanna, Campbell & Powell, L.L.P., and John D. Latchney, for appellees city of Wickliffe, city of Wickliffe Civil Service Commission, and Mayor Joseph Sakacs.
Livorno & Arnett Co., L.P.A., and Henry A. Arnett, urging reversal for amicus curiae Ohio Association of Professional Fire Fighters.
Fraternal Order of Police of Ohio, Inc., and Gwen E. Callender, urging reversal for amicus curiae Fraternal Order of Police of Ohio, Inc.
Fishel, Downey, Albrecht & Riepenhoff, L.L.P., and Marc A. Fishel, urging affirmance for amicus curiae Ohio Public Employers Labor Relations Association.