STATE OF OHIO ex rel. OHIO PATROLMEN’S BENEVOLENT ASSOCIATION, et al., Relators, - vs - CITY OF WARREN, OHIO, et al., Respondents.
CASE NO. 2015-T-0017
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT TRUMBULL COUNTY, OHIO
December 16, 2019
[Cite as State ex rel. Ohio Patrolmen‘s Benevolent Assn. v. Warren, 2019-Ohio-5046.]
CYNTHIA WESTCOTT RICE, J.
Original Action for Writ of Mandamus.
Petition: Dismissed.
Daniel J. Leffler, Ohio Patrolmen’s Benevolent Association, 10147 Royalton Road, Suite J, P.O. Box 338003, North Royalton, Ohio 44133 (For Relators).
Todd M. Raskin, Frank H. Scialdone and David M. Smith, Mazanec, Raskin & Ryder, Co., L.P.A., 100 Franklin’s Row, 34305 Solon Road, Cleveland, Ohio 44139 (For Respondents).
CYNTHIA WESTCOTT RICE, J.
{¶1} This original action in mandamus is presently before this court for final determination of a petition for writ of mandamus, filed by relators Ohio Patrolmen’s Benevolent Association and five union members who are currently employed by the city police department against respondents, the City of Warren, Ohio, (“City”) its Civil Service Commission, and its Director of Service and Safety. In a previous judgment, this court concluded the City had a legal duty to fill vacancies in its police department
{¶2} Our review of relators’ mandamus petition and respondents’ answer demonstrates the following basic facts are not in dispute. The City does not have a city charter; therefore, it must abide by the various provisions in the
{¶3} In November 2014, the City enacted a new “authorized strength” ordinance in which it sought to abolish three positions within the police department. Specifically, the ordinance provided that the number of captains would be decreased from three to two, the number of lieutenants from six to five, and the number of sergeants from ten to nine. By the terms of the resolution, the reduction in staffing levels did not occur at the time the ordinance was passed, but was to be effective by attrition, i.e., upon the retirement of the incumbent officers.
{¶4} Because the reduction was not effective upon passage of the ordinance, none of the respondents took any overt acts to reduce the department’s manpower by
{¶5} Martin Gargas is presently a lieutenant with the police department. Pursuant to the certified eligibility list for the rank of captain, Gargas is the only lieutenant who is qualified to be promoted to rank of captain in light of Captain Roberts’ retirement.
{¶6} Michael Merritt is presently a sergeant with the police department. At the time of Captain Roberts’ retirement, there was no existing certified eligibility list in regard to a promotion from the rank of sergeant to lieutenant. Initially, the City announced that a promotional examination would be scheduled for the position of lieutenant. In turn, Merritt filed an application to take the exam and bought the required materials. The examination, however, was cancelled prior to the scheduled date.
{¶7} Edward Hetmanski, Jeffrey Orth, and Benjamin Harrell are police officers with the department at this time. Pursuant to the certified eligibility list for the position of sergeant, Hetmanski and Orth are the top two qualified candidates to be promoted to the rank of sergeant in light of Captain Roberts’ and Sergeant Burzynski’s respective
{¶8} Since no members of the department were subject to layoffs after the passage of the November 2014 “authorized strength” ordinance, the Patrolmen’s Benevolent Association took the position that the new ordinance was not enforceable, and that the two retirements had created vacancies in the positions of captain, lieutenant, and sergeant. Hence, when respondents did not fill the vacancies through promotions, the association and the five current policemen, Lieutenant Gargas, Sergeant Merritt, Officer Hetmanski, Officer Orth, and Officer Harrell, filed the instant petition for writ of mandamus. In relation to Gargas, Hetmanski, Orth, and Harrell, the mandamus petition sought a writ requiring respondents to order promotions pursuant to the existing eligibility lists for captains and sergeants. Additionally, the petition requested backpay and other benefits Gargas, Hetmanski, and Orth would have already received if the promotions had been timely issued. As to Merritt, the petition sought a writ requiring respondents to conduct a promotional examination for the position of lieutenant.
{¶9} After answering the petition, respondents moved this court for judgment on the pleadings under
{¶10} In conjunction with their response to respondents’ 12(C) motion, the association and the five policemen, relators, have also moved for partial summary judgment on the issue of whether vacancies presently exist in the ranks of the police department. According to relators, four vacancies exist because respondents are not permitted to use the retirements of Captain Roberts and Sergeant Burzynski as an indirect way of reducing the number of policemen on the force. Citing
{¶11} In requesting partial summary judgment, relators did not attach any evidentiary materials to their motion. Instead, they have based their argument upon the factual assertions which were first alleged in their petition and then admitted in respondents’ answer. Thus, as there are no disputes regarding the pertinent facts, the resolution of the motion for judgment on the pleadings and the summary judgment motion will turn entirely upon whether, as a matter of law, there were vacant positions in the city police department created by the City ordinance passed in November of 2014.
{¶12} “Normally, the authority to create and fund the ranks of the police department rests in the legislative authority of the city. See State ex rel. McClure v. George (1945), 145 Ohio St. 187, * * *; Atwood v. Judge (1977), 63 Ohio App.2d 94, * * *.
{¶13} A review of the relevant case law establishes that when a city does not have a charter, disputes as to the existence of a vacancy in the police department usually turn upon the application of two statutes in
{¶14} No position above the rank of patrol officer in the police department shall be filled by original appointment. Vacancies in positions above the rank of patrol officer in a police department shall be filled by promotion from among persons holding positions in a rank lower than the position to be filled. No position above the rank of patrol officer in a police department shall be filled by any person unless the person has first passed a competitive promotional examination. Promotions shall be by successive ranks insofar as practicable, and no person in a police department shall be promoted to a position in a higher rank who has not served at least twelve months in the next lower rank. * * * If a vacancy occurs in a position above the rank of patrol officer in a police department, and there is no eligible list for such rank, the municipal * * * civil service commission shall, within sixty days of that vacancy, hold a competitive promotional examination. After the examination has been held and an eligible list established, the commission shall forthwith certify to the appointing officer the name of the person on the list receiving the highest rating. Upon the certification, the appointing officer shall appoint the person so certified within thirty days from the date of the certification. If there is a list, the commission shall, when there is a vacancy, immediately certify the name of the person on the list having the highest rating, and the appointing authority shall appoint that person within thirty days of the certification.
{¶16} When it becomes necessary in a police or fire department, through lack of work or funds, or for causes other than those outlined in
section 124.34 of the Revised Code , to reduce the force in such department, the youngest employee in point of service shall be first laid off. Should a position in the police or fire department once abolished or made unnecessary be found necessary to be re-created or re-established within three years of the date of abolishment, or should a vacancy occur through death, resignation, or any other cause within three years from the date of the abolishment of the position or layoff, the oldest employee in point of service of those laid off shall be entitled to the to the position, providing he was at the date of his separation a regular and permanent employee. * * * When a position above the rank of patrolman in the police department * * * is abolished, and the incumbent has been permanently appointed, he shall be demoted to the next lower rank and the youngest officer in point of service in the next lower rank shall be demoted, and so on down until the youngest person in point of service has been reached, who shall be laid off.
{¶17} There is nothing in either of these statutes that prohibit the City from accomplishing a reduction in force by attrition. In fact, attrition is the least disruptive means of all possible methods to reduce the force. No officer was laid off, and no officer needed to be demoted. One would think this approach would be welcomed by all the parties involved.
{¶18} Respondents contend the City was required to comply with
{¶19} On appeal from a judgment in favor of the two sergeants, the city argued before the appellate court that it should not be obligated to follow the “layoff” procedure of
{¶20} The purpose of the civil service system is to provide a ‘stable framework of public offices upon which a workable civil service system may be constructed’ while ‘avoiding the traditional spoils system (* * *) and (* * *) providing a method of fair employee selection and promotion based upon merit and fitness.’ McCarter v. Cincinnati (1981), 3 Ohio App.3d 244, 248.
R.C. 124.37 provided the stable and predictable procedure to be followed when the city decided to abolish the higher ranking police positions for lack of work. The results of adherence to this procedure, layoffs, may be harsh in some instances, but [the policemen] must accept those consequences and plan accordingly and only insist that the city play by the same rule.
{¶21} The machinations employed by the city in the instant case disrupted the stability and predictability of the civil service system
{¶22} The concerns set forth in Hungler as to strict compliance with the statute do not exist under the facts of our case. In Hungler, the city illegally delayed the mandatory promotion process to “reorganize its police department” after a vacancy had occurred. Through a convoluted series of demotions/repromotions, the city was able to eliminate two lieutenant positions; in doing so, however, officers who held top ranking positions on the promotion-eligible lists were delayed or denied their entitlement. In that case, the vacancies that existed were deliberately not filled in order to abolish the two lieutenant positions. Here, there was no vacancy to trigger the mandatory promotion procedure in
{¶23} Additionally, we do not read Hungler as a blanket rejection of the practice of abolishment by attrition; to wit: the court does not specifically hold attrition is forbidden. We recognize the First Appellate District consistently referred to and validated the “reorganization” methodology as a form of abolishment by attrition in Hungler v. Cincinnati, 1st Dist. Hamilton No. C-840507, 1985 WL 8908 (July 3, 1985),
{¶24} Relators also rely upon the Court’s decision in Zavisin v. City of Loveland, 44 Ohio St.3d 158 (1989). In that case, the retirement of a lieutenant created a vacancy in the police department. Since an eligibility list for the rank of lieutenant did not exist, the city’s civil service commission should have scheduled a competitive promotional examination; however, the commission did not take any steps to produce an eligibility list. Then, approximately 50 days following the retirement, the city passed an ordinance abolishing the lieutenant position. As a result, an officer in the rank immediately below lieutenant filed an action to enjoin the enforcement of the ordinance and compel the commission to schedule the required examination.
{¶25} The officer/plaintiff in Zavisin prevailed at the trial level, but the appellate court reversed, holding that the city could abolish the lieutenant position without following the “layoff” procedure in
{¶26} In the final portion of its analysis, the Zavisin court rejected the contention that a violation of
{¶27} [The city officials] further contend that no employee is harmed if the vacancy is abolished without first being filled by appointment pursuant to
R.C. 124.44 . On the contrary, seniority rights are affected thereby. An officer permanently appointed to the vacant position pursuant toR.C. 124.44 , whose position is later abolished in conformance withR.C. 124.37 , resulting in his demotion, has the right to be reappointed to that position should it be recreated within three years or should another vacancy occur within three years of his demotion due to the abolishment of the position. Therefore, we hold that the procedure set forth inR.C. 124.44 is mandatory upon the occurrence of a vacancy in a position above patrolman, and that the vacant position must be filled by appointment before it is abolished pursuant toR.C. 124.37 , which presupposes the existence of an incumbent. Zavisin, supra, at 161-162.
{¶28} Once again, the concerns expressed by the court in Zavisin simply do not apply where the reduction is accomplished through attrition. There is no concern
{¶29} When the first officer, Captain Roberts, retired from the department, there was no vacancy in the force. Vacancy, for purposes of
{¶30} Because there was no vacancy,
{¶31} There is nothing in the wording of
{¶32} When construing the language of a statute, courts are obligated to avoid absurd or ridiculous results. Nozik v. Sanson, 8th Dist. Cuyahoga Nos. 69948 & 70189, 1996 WL 613643, *5 (Oct. 24, 1996), citing In re Appeal of Little Printing Co., Inc., 4 Ohio St.3d 214 (1983). Considering the lack of any reference in
{¶33} A writ of mandamus will not lie unless the relator can show, inter alia, that it has a clear legal right to the requested relief. State ex rel. Mill Creek Metro. Park Dist. Bd. of Commrs. v. Tablack, 86 Ohio St.3d 293, 295 (1999). Pursuant to the foregoing discussion, we conclude that relators are unable to satisfy this element under the undisputed facts of this case. Since there were no vacant positions in the City’s police department, respondents were not required to follow the promotion procedure in
{¶34} Relators’ motion for summary judgment is denied, and respondents’ motion for judgment on the pleadings is hereby granted as relators have not set forth a clear legal right to the relief requested and no clear duty on the part of respondents to provide the remedy. Relators’ petition for writ of mandamus is therefore dismissed.
MATT LYNCH, J., concurs,
THOMAS R. WRIGHT, P.J., dissents with a Dissenting Opinion.
_____________________
STATE OF OHIO ex rel. OHIO PATROLMEN’S BENEVOLENT ASSOCIATION, et al., Relators, - vs - CITY OF WARREN, OHIO, et al., Respondents.
CASE NO. 2015-T-0017
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT TRUMBULL COUNTY, OHIO
December 16, 2019
[Cite as State ex rel. Ohio Patrolmen‘s Benevolent Assn. v. Warren, 2019-Ohio-5046.]
THOMAS R. WRIGHT, P.J., dissents with a Dissenting Opinion.
{¶35} I dissent.
{¶36} The function of the courts is to apply statutes as written and leave the writing to the legislature. Ohio Constitution, Article II, Section 1 (“legislative power of the state * * * [is] vested in a General Assembly consisting of a senate and house of
{¶37} “‘When interpreting a statute, a court‘s paramount concern is legislative intent.’ Risner v. Ohio Dept. of Natural Resources, Ohio Div. of Wildlife, 144 Ohio St.3d 278, 2015-Ohio-3731, 42 N.E.3d 718, ¶ 12. ‘“To discern legislative intent, we first consider the statutory language, reading all words and phrases in context and in accordance with rules of grammar and common usage.”’ See Holland v. Gas Ents. Co., 4th Dist. Washington No. 14CA35, 2015-Ohio-2527, 2015 WL 3918014, ¶ 14, quoting Ohio Neighborhood Finance, Inc. v. Scott, 139 Ohio St.3d 536, 2014-Ohio-2440, 13 N.E.3d 1115, ¶ 22, citing
{¶38} Paramount to disposition is the construct that “‘[w]e apply * * * statute[s] as written * * *, and we refrain from adding or deleting words when [a] statute‘s meaning is clear and unambiguous.’ Risner at ¶ 12.” (Emphasis added) Id.; accord Owen v. United Ohio Ins., 11th Dist. Lake No. 2005-L-194, 2006-Ohio-5170, ¶ 27. This concept is often expressed as “expressio unius est exclusio alterius,” to express or include one thing implies the exclusion of the other. In re Estate of Cvanciger, 11th Dist. Lake No. 2014-L-095, 2015-Ohio-4318, 42 N.E.3d 783, ¶ 34.
{¶39} When a city does not have a charter, as here, vacancy in the police department turns upon the application of two statutes. The first,
{¶40} “When it becomes necessary in a police or fire department, through lack of work or funds, or for causes other than those outlined in
section 124.34 of the Revised Code , to reduce the force in such department, the youngest employee in point of service shall be first laid off. * * * When a position above the rank of patrolman in the police department * * * is abolished, and the incumbent has been permanently appointed, he shall be demoted to the next lower rank and the youngest officer in point of service in the next lower rank shall be demoted, and so on down until the youngest person in point of service has been reached, who shall be laid off.”
{¶41} This statute says what is says and doesn’t say what it doesn’t say. It says reduction in a police department shall be accomplished through layoff and demotions. It doesn’t say that reduction may be accomplished through attrition.
{¶42} Instead of applying relevant rules of statutory construction, the majority justifies its result with the rationale that reduction through attrition is less disruptive and not prohibited. While the former may be, that’s for the legislature to decide. But as to the latter,
{¶43} And because the ordinance reducing the force by attrition conflicts with
{¶44} Moreover, this state’s highest court has twice held that the statutory procedure must be employed in reducing the size of a police force regardless of the reason for the reduction. In Hungler, the court found the failure to abide by
{¶45} Relators maintain that Lieutenant Gargas, Officer Hetmanski, and Officer Orth are entitled to fill the vacancies due to their performances on the two 2013 promotional examinations. They also provide a calculation as to the amount of back pay each is entitled to receive. Respondents do not contest relators’ calculations. Nevertheless, they assert that no back pay can be awarded because the three policemen were either no longer eligible for promotion or would not have been allowed to serve in the new position.
Lieutenant Martin Gargas
{¶46} Captain Timothy Roberts’ retirement created a vacancy for captain. In May 2013, the Warren Civil Service Commission certified an eligibility list for that position. Under Article 34 of the 2014 contract between the city and the union, an eligibility list remains in effect for two years. There is no dispute that Lieutenant Gargas was first in line to be promoted from lieutenant to captain.
{¶47} Not challenging any of the foregoing, respondents maintain that Lieutenant Gargas is not entitled to back pay because, even if he were promoted to captain in January 2015, he would have immediately been demoted back to lieutenant due to lack of adequate funding. Respondents further argue that an award of back pay would be speculative because it is unclear when Gargas would have been demoted.
{¶48} However, none of the stipulations state that Lieutenant Gargas would have been immediately demoted to his former position of lieutenant. Thus, respondents’ argument cannot be considered.
{¶49} Based upon the differences in the pay rates between lieutenant and captain, Gargas is entitled to receive $46,199.76 in back pay through December 1, 2018. Respondents do not contest this calculation.
Sergeant Michael Merritt
{¶50} In light of Lieutenant Gargas’ promotion to captain, a vacancy has been created at the position of lieutenant. As of January 2015, the city did not have a certified eligibility list for lieutenant. Thus, pursuant to
{¶51} There is no dispute that Sergeant Merritt is eligible to take the promotional examination for lieutenant. Therefore, although he is not entitled to back pay, he is entitled to a writ compelling respondents to hold the examination.
Officer Ed Hetmanski
{¶52} The retirement of Sergeant John Burzynski created a vacancy for sergeant. In June 2013, the Warren Civil Service Commission certified Officer Hetmanski as fourth on the eligibility list. The top three officers were promoted to sergeant during the seven-month period ending in January 2014. As a result, Officer Hetmanski was first in line to be promoted to sergeant when Sergeant Burzynski left the force in January 2015.
{¶53} While not contesting that Officer Hetmanski had risen to the top of the June 2013 eligibility list, respondents contend he was no longer eligible for promotion because that list was no longer effective as of the date of Burzynski’s retirement. In
{¶54} “From the returns of examinations for positions in the service of the state, the director of administrative services or the director’s designee shall prepare an eligibility list of the persons whose general average standing upon examinations for the class or position is not less than the minimum fixed by the rules of the director, and who are otherwise eligible. * * *
{¶55} “An eligibility list expires upon the filling or closing of the position. An expired eligibility list may be used to fill a position of the same classification within the same appointing authority for which the list was created. But, in no event shall an expired list be used more than one year past its expiration date.”
{¶56} Based upon the one-year limit in
{¶57} However, the first sentence of
{¶58} Instead,
{¶59} The sergeant eligibility list, therefore, remained effective until June 2015. Because Sergeant Burzynski retired in January 2015, Officer Hetmanski had a clear legal right to promotion to sergeant.
{¶60} Based upon the differences in the pay rates between an officer and a sergeant, as delineated in the stipulations, Officer Hetmanski is entitled to receive $24,028.42 in back pay through December 1, 2018. Respondents do not challenge this calculation. Respondents wrongfully refused to promote Officer Hetmanski to the position of police sergeant, and he has a clear legal right to the promotion and back pay.
Officer Jeffrey Orth
{¶61} Since another police sergeant will be promoted to lieutenant after the city holds the promotional examination, a second sergeant vacancy will be created. In June 2013, the Warren Civil Service Commission certified an eligibility list for the position of sergeant. Although Officer Orth was fifth at the time the list was certified, the four officers who ranked ahead of him, including Officer Hetmanski, have either been promoted or are entitled to be promoted. Therefore, Officer Orth is next in line to be promoted once the second sergeant vacancy exists.
{¶62} Regarding Officer Orth, respondents raise the same argument that they did as to Officer Hetmanski, i.e., that the June 2013 eligibility list for police sergeant
{¶63} Given the differences in the pay rates between an officer and a sergeant, Officer Orth is entitled to receive $9,885.53 in back pay through December 1, 2018. Respondents do not challenge this calculation. Therefore, since respondents wrongfully failed to promote Officer Orth to the position of sergeant, he has a clear legal right to the promotion and back pay.
Officer Benjamin Harrell
{¶64} At the time the sergeant eligibility list was certified in June 2013, Officer Harrell was sixth, immediately behind Officers Hetmanski and Orth. As a result, if a third sergeant position vacancy had arisen prior to expiration of the eligibility list in June 2015, Officer Harrell would have been next in line to be promoted. However, there is no evidence that a third sergeant vacancy occurred. Thus, Officer Harrell is not entitled to relief.
{¶65} In summation, as to Lieutenant Gargas, Officer Hetmanski, and Officer Orth, each has demonstrated a clear legal right to promotion and back pay. Mandamus is the appropriate proceeding to obtain the promotions and back pay. Relators’ back pay is predicated upon the rates set forth in the stipulations and have therefore been proven to an adequate certainty.
{¶66} Sergeant Merritt has established that he has a clear legal right to take a promotional examination for the position of lieutenant and that respondents have a clear legal duty to conduct the examination. Officer Harrell is not entitled to relief.
{¶67} In light of the foregoing, I would enter judgment in favor of relators and against respondents on the mandamus claim. I would issue a writ of mandamus under which respondents are required to: (1) promote Lieutenant Martin Gargas to captain and pay him back wages in the amount of $46,199.76, plus any additional amount that has accrued since December 1, 2018; (2) promote Officer Ed Hetmanski to sergeant and pay him back wages in the amount of $24,028.42, plus any additional amount that has accrued since December 1, 2018; (3) promote Officer Jeffrey Orth to sergeant and pay him back wages in the amount of $9,885.53, plus any additional amount that has accrued since December 1, 2018; and (4) immediately hold a promotional examination for police lieutenant. I would also order prejudgment interest on the damage awards.