THE STATE EX REL. OHIO PATROLMEN‘S BENEVOLENT ASSOCIATION ET AL., APPELLANTS, v. THE CITY OF WARREN ET AL., APPELLEES.
Slip Opinion No. 2020-Ohio-5372
SUPREME COURT OF OHIO
November 25, 2020
Submitted June 2, 2020. No. 2019-1766. APPEAL from the Court of Appeals for Trumbull County, No. 2015-T-0017, 2019-Ohio-5046.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Ohio Patrolmen‘s Benevolent Assn. v. Warren, Slip Opinion No. 2020-Ohio-5372.]
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
Mandamus—Civil-service law—
{¶ 1} Appellants Edward J. Hetmanski, Jeffrey Orth, Benjamin T. Harrell, Michael Merritt, and Martin M. Gargas, who are members of bargaining units represented by appellant Ohio Patrolmen‘s Benevolent Association, seek a writ of mandamus ordering that the officers be promoted (or allowed to sit for a competitive promotional examination) pursuant to state civil-service law, plus compensatory relief including back pay. Appellees, the city of Warren, the city‘s director of service and safety, and the city‘s civil-service commission (collectively, “the city“), declined to offer the officers promotions or exams because the city had passed an authorized-strength ordinance to abolish the positions at issue upon the retirement of their former occupants. Because the relief is sought for the individual officers, we will refer to the association and the individual appellants collectively as “the officers.”
{¶ 2} The officers assert that state civil-service statutes prohibit abolishment of upper-rank police positions by attrition, requiring instead that promotions occur upon the retirement of officers in those ranks. In accord with this theory, the officers argue that the city must first promote the individual officers; only after doing so would the city, according to the officers, have the power to abolish the positions at issue.
{¶ 3} The Eleventh District Court of Appeals granted the city‘s motion for judgment on the pleadings, and the officers have appealed. We now affirm.
I. BACKGROUND
{¶ 4} The city of Warren‘s police force is composed of officers holding the following ranks: chief, captain, lieutenant, sergeant, and patrol officer.1 Under a 1987 authorized-strength ordinance, as amended in 1996, the force consisted of 1 chief, 3 captains, 6 lieutenants, 10 sergeants, and 59 patrol officers.
{¶ 5} In November 2014, the city passed a new authorized-strength ordinance. The 2014 ordinance prescribed reductions in the upper ranks of the police department “by means of attrition” from three captains to two, from six lieutenants to five, and from ten sergeants to nine.
{¶ 6} In December 2014, a police captain retired, and in January 2015, a police lieutenant retired. Instead of promoting from the next lower rank pursuant to
{¶ 7} The officers filed a petition for a writ of mandamus against the city in the Eleventh District Court of Appeals in February 2015. Lieutenant Gargas, who was next in line for promotion to captain at the time the former captain retired, sought his promotion to captain, plus compensatory relief in the form of “benefits, seniority, and/or back pay.” Officer Hetmanski likewise sought promotion to sergeant, plus compensatory relief similar to that sought
{¶ 8} The city answered the complaint and filed a motion for judgment on the pleadings. Thereafter, the officers filed a motion for partial summary judgment asking for summary relief on the main legal question: whether abolishment by attrition violates state civil-service law.
{¶ 9} On February 17, 2017, the court of appeals granted partial summary judgment for the officers. The court found that the two retirements created vacancies as a matter of law and that the city had a legal duty to fill the vacancies under
on the pleadings. The court did not address the issues of specific relief, including entitlement to, and amount of, back pay.
{¶ 10} The city appealed to this court, but after briefing, we remanded the case for lack of a final, appealable order. 151 Ohio St.3d 1521, 2018-Ohio-557, 91 N.E.3d 754.
{¶ 11} On remand, the parties agreed to have the case decided without trial based on stipulations, joint exhibits, and briefing. The case was assigned to a reconstituted three-judge panel, which reached the conclusion opposite to that reached by the original panel. The new panel denied the officers’ motion for partial summary judgment, granted the city‘s motion for judgment on the pleadings, and dismissed the petition. The officers have appealed.2
II. ANALYSIS
{¶ 12} In this appeal, we consider the effect of the city‘s 2014 authorized-strength ordinance in light of two state civil-service statutes as we have applied them in our case law. Article XV, Section 10 of the Ohio Constitution provides that “[a]ppointments and promotions in the civil service of the state, the several counties, and cities, shall be made according to merit and fitness, to be ascertained, as far as practicable, by competitive examinations,” and it requires the General Assembly to pass laws “providing for the enforcement of this provision.” The statutes that we focus on in this appeal,
{¶ 13} This appeal contests the grant of judgment on the pleadings, presents a stipulated set of facts, and calls solely for the correct interpretation and application of statutes. Accordingly, our standard of review is de novo. State ex rel. DiFranco v. S. Euclid, 138 Ohio St.3d 367, 2014-Ohio-538, 7 N.E.3d 1136, ¶ 13; New Riegel Local School Dist. Bd. of Edn. v. Buehrer Group Architecture & Engineering, Inc., 157 Ohio St.3d 164, 2019-Ohio-2851, 133 N.E.3d 482, ¶ 8. And it is settled that mandamus is an appropriate action for wrongful failure to promote, State ex rel. Hipp v. N. Canton, 75 Ohio St.3d 221, 222, 661 N.E.2d 1090 (1996), as well as for back pay and compensatory relief, State ex rel. Manley v. Walsh, 142 Ohio St.3d 384, 2014-Ohio-4563, 31 N.E.3d 608, ¶ 25.
A. R.C. 124.44 and 124.37 and the decision on appeal
{¶ 14} The city‘s 2014 ordinance lists the police-force ranks and the number of positions in each rank. Using the terms “attrition” and “abolishment,” the ordinance states that the number of positions “shall continue to be reduced” in the specified ranks. It is undisputed that the ordinance contemplates abolishment of one captain, one lieutenant, and one sergeant position upon the next retirement of an officer of each rank. See Webster‘s Ninth New Collegiate Dictionary 115 (1989) (defining “attrition” as “a reduction in numbers usu. as a result of resignation, retirement, or death“).
{¶ 15}
list.
{¶ 16}
{¶ 17} In the decision on appeal, the court of appeals concluded that “nothing in [
{¶ 18} The court of appeals found that both of those cases involved the occurrence of a vacancy that triggered
{¶ 19} Additionally, the court concluded that
B. R.C. 124.37 and 124.44 do not prohibit upper-rank positions from being abolished by attrition
{¶ 20} We restate the question before us as follows: May a city council, without violating
{¶ 21} The officers contend that
{¶ 22} In addressing this issue, we find that the following two sentences of
When it becomes necessary in a police or fire department, through lack of work or funds, or for causes other than those outlined in [
R.C. 124.34 , relating to removal for misconduct], 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.
{¶ 23} The officers reason that the statute, by linking a reduction of force to a layoff with the word “shall,” requires that any abolishment of an upper-rank police position triggers the demotion-and-layoff procedure. And because there must logically be an “incumbent” in the position in order to demote that person, a retirement must trigger the promotion provision of
{¶ 24} The city counters that the difficulty with the officers’ interpretation of
{¶ 25} We think the city‘s reading of the statute is the better one. To begin, the
occur: the employee with the least amount of service “shall be first laid off.” (Emphasis added.)
{¶ 26} The officers’ contention that positions may be abolished only through demotion also reads too much into the statute. The statute says, “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 * * *.” (Emphasis added.)
C. Hungler and Zavisin do not dictate a contrary result
{¶ 27} The officers rely on Hungler, 25 Ohio St.3d 338, 496 N.E.2d 912, and Zavisin, 44 Ohio St.3d 158, 541 N.E.2d 1055. In those cases, we invalidated attempted abolishments that did not follow
{¶ 28} Hungler involved a demotion/repromotion scheme to abolish two lieutenant positions. A lieutenant was set to be promoted to captain, which would have created a vacancy at the lieutenant position. To prevent a promotion to that position, the city abolished a different lieutenant position before the vacancy occurred and demoted the incumbent to sergeant for a day. Then when the lieutenant vacancy came open, the demoted lieutenant was repromoted to the vacant lieutenant spot. The city utilized the same process when a second vacancy occurred in the lieutenant position. The elimination of the two lieutenant positions and repromotion of their incumbents blocked the promotions of the sergeants who had been next in line for promotion to lieutenant.
{¶ 29} We rejected the city‘s actions on two grounds. First, we credited the trial court‘s finding that the scheme had not been authorized by the appointing authority. And although the scheme sought to reduce the number of lieutenant positions to 37, it was undisputed that at the relevant time, “the complement of police lieutenants, as authorized by the Cincinnati City Council, was set at thirty-nine.” Hungler at 339. Second, although
{¶ 30} In Zavisin, 44 Ohio St.3d 158, 541 N.E.2d 1055, the retirement of a lieutenant had created a vacancy. Instead of conducting an examination, determining eligibility, and promoting to fill the position, the city of Loveland—acting after the retirement but within the 60-day period allowed for conducting an exam—passed an ordinance purporting to abolish the position. Id. at 159. Thus, the city‘s legislative body had acted to abolish the lieutenant position but only after the vacancy had unequivocally occurred pursuant to
{¶ 31} When, as in this appeal, factually distinct cases are cited, we must be “cautious not to pluck a few statements” from them and “apply them overly literally, without remembering their context.” Penrod v. Ohio Dept. of Adm. Servs., 113 Ohio St.3d 239, 2007-Ohio-1688, 864 N.E.2d 79, ¶ 26. The present case is not controlled by Hungler, because the city council in this case enacted the force-reduction ordinance to deauthorize the positions upon the retirement of the former officers. And the present case is not controlled by Zavisin, because, in that case, the legislative deauthorization occurred after the retirement, meaning that the lieutenant position was still authorized and became legally vacant under
{¶ 32} The officers contend that our statement in Zavisin at 160—“[w]hen a position in a police department has been both established and occupied by appointment, a vacancy in that position automatically occurs upon the retirement of the incumbent“—means that the city‘s 2014 ordinance cannot as a matter of law prevent the vacancies from occurring. In other words, the officers argue that the ordinance cannot disestablish a position until the promotion has occurred.
{¶ 33} The flaw in this argument is that neither
retirement of its incumbent. Once the incumbent‘s position has been validly disestablished, then a vacancy simply does not occur upon his retirement.
{¶ 34} Additionally, the officers cite State ex rel. Bednar v. N. Canton, 69 Ohio St.3d 278, 281, 631 N.E.2d 621 (1994), for the proposition that “[b]y itself, an ordinance limiting the force to a certain number of lieutenants does not sufficiently indicate an intent to alter the mandatory appointment procedures set forth in
{¶ 35} Accordingly, we reject the officers’ argument that Hungler and Zavisin dictate the disposition of this appeal. We therefore affirm the judgment of the court of appeals.
III. CONCLUSION
{¶ 36} For the foregoing reasons, we deny the motion for oral argument and affirm the judgment of the court of appeals.
Judgment affirmed.
O‘CONNOR, C.J., and DEWINE, DONNELLY, and STEWART, JJ., concur.
KENNEDY, J., dissents, with an opinion joined by FRENCH and FISCHER, JJ. (who both would grant the motion for oral argument).
FRENCH and FISCHER, JJ., would grant the motion for oral argument.
KENNEDY, J., dissenting.
{¶ 37} Appellee city of Warren does not have a city charter and therefore must follow state civil-service statutes set forth in
BACKGROUND
{¶ 38} On November 25, 2014, the Warren City Council passed ordinance No. 12570/14, an “emergency measure” that repealed ordinance No. 9819/87, which had set the number of personnel in the police department by position. The preamble of ordinance No. 12570/14 says that the director of public service and safety seeks to reorganize the department for efficient operation and to reduce the number of supervisors by abolishing the positions of one captain, one lieutenant, and one sergeant. The preamble then states, “WHEREAS, the abolishment of these position[s] shall occur by attrition.” The ordinance sets forth the following revised breakdown of positions: one police chief, three captains, six lieutenants, 10 sergeants, 59 police officers, and 12 communication coordinators. The ordinance adds, “By means of attrition, the number of authorized Captains shall continue to be reduced from three (3) to two (2)[,] * * * the number of authorized Lieutenants shall continue to be reduced from six (6) to five (5)[, and] * * * the number of authorized Sergeants shall continue to be reduced from then (10) to nine (9).” The ordinance does not define “attrition,” but as the majority states, the ordinary
meaning is “a
{¶ 39} Soon after the passage of the ordinance, a captain and a sergeant resigned, and their positions were not filled. Appellants Edward J. Hetmanski, Jeffrey Orth, Benjamin T. Harrell, Michael Merritt, and Martin M. Gargas missed out on promotions or opportunities to take a promotion examination that would have resulted from the retirement of superiors but for the ordinance. Appellant Ohio Patrolmen‘s Benevolent Association represents the bargaining units of the officers. Appellants seek a writ of mandamus to put the officers in the positions they would have been promoted to or would have competed for had the city followed the applicable statutory processes.
ANALYSIS
{¶ 40} Although the city is subject to the civil-service statutes in the Revised Code, including
R.C. 124.37
{¶ 41} Other cities have attempted in other ways to avoid the dictates of
{¶ 42}
When it becomes necessary in a police or fire department, * * * 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.
{¶ 43} This court has left no doubt that the process prescribed in
The plain words of the statute make clear that where a city decides to abolish a higher ranking police position because of lack of work, there shall be a demotion of the incumbent accompanied by a series of additional demotions in the lower ranks ultimately
resulting in the layoff of the least senior member of the police department.
{¶ 44} The process prescribed by
{¶ 45} In Hungler, this court stated that ”
{¶ 46} In this case, the city announced in ordinance No. 12570/14 that “the Director of Public Service and Safety has deemed it desirable and necessary for reorganization for efficient operation” of the department that certain positions be abolished and that “the abolishment of these position[s] shall occur by attrition.” The undeniable purpose of the city‘s ordinance was to abolish positions. In Zavisin
v. Loveland, 44 Ohio St.3d 158, 161, 541 N.E.2d 1055 (1989), noting this court‘s statement in Hungler regarding the necessity of using
R.C. 124.44
{¶ 47} Although at its heart this case is about a reduction in force of the Warren police department, it started with a vacancy. Therefore,
No positions 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. Promotion 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 or civil service township 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 from the date of the certification.
We should apply the plain language of R.C. 124.37 and 124.44 to this case
{¶ 48} When Timothy Roberts retired as a captain on December 28, 2014, Lieutenant Martin Gargas was the only person eligible for promotion to the vacant position. But the city argues that immediately upon Roberts‘s retirement, the position was abolished. The actual language of the ordinance is: “By means of attrition, the number of authorized Captains shall continue to be reduced from three (3) to two (2) * * *.” The city has provided no details in the ordinance or in its brief regarding the exact mechanics of how the abolition of a position occurs while someone still occupies it or why once that incumbent leaves, his or her position does not become vacant, at least for a brief time. “When a position in a police department has been both established and occupied by appointment, a vacancy in
that position automatically occurs upon the retirement of the incumbent.” Zavisin at 160.
{¶ 49} In Zavisin, this court held that a city could not declare a position abolished once it had become vacant; the city had attempted to abolish the position after the incumbent had retired and before the expiration of the 60-day period the city had to administer a civil-service examination to find a replacement. The city attempted to abolish the position 54 days after the incumbent‘s retirement. That is a situation different from the one here, but that does not change the fact that a vacancy in a position occurs immediately upon the retirement of the incumbent.
{¶ 50} Ordinance No. 12570/14 does not identify a time when abolishment of the specified positions would occur; the preamble says simply that abolishment “shall
{¶ 51} The city seems to seek to create a wedge in time between an incumbency and a vacancy in which its own ordinance would reside to control personnel disposition. There is no such notch in time.
provided in
{¶ 52} In support of our decision in Zavisin, this court cited State ex rel. Barnes v. Kirsch, 1st Dist. Butler App. No. CA78-0700064 (Sept. 19, 1979). In Barnes, due to budget restrictions, the city manager of Hamilton instituted an attrition policy by which reductions in the city workforce would be achieved by not filling vacancies as they arose. The policy provided, “The interpretation of the present attrition policy is that the authorized employee complement is automatically reduced whenever a vacancy occurs in a position. This is automatic and no further action or written communication is necessary.” But the First District Court of Appeals held that the fact that a position was abolished whenever a vacancy occurred was inconsistent with
{¶ 53} In a subsequent decision, the First District explained Barnes as follows:
The basis of our decision was that the statute prevails over a municipal policy. Under the written policy, a vacancy resulted in
the position ceasing to exist. Under
R.C. 124.48 , a vacancy resulted in an appointment of the top man on the eligible list. We held that the statute must control, pursuant to the city‘s charter, and that there could be no “automatic” attrition.
McCarter, 3 Ohio App.3d at 247, 444 N.E.2d 1053, fn. 5. Similarly, here, the
{¶ 54} Regardless, the aim of the city‘s ordinance can be achieved through the use of
[A]n officer permanently appointed to [a] vacant position pursuant to
R.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.
44 Ohio St.3d at 161-162, 541 N.E.2d 1055.
{¶ 55} The right to reappointment is a valuable right protected by the statute. Even if the officer were demoted from the position briefly after having been promoted, he or she would have a right to that position if it were to reopen in the following three years. But the majority‘s construction of the statute results in the loss of those rights by a would-be successor to the position abolished by attrition. As in Hungler, the city here “adversely affected appellants’ seniority rights by delaying or denying their promotions. In essence, the city, by abolishing these positions in an unlawful manner, was tinkering with the civil service promotional system [under
{¶ 56} If the city were to employ those two statutes, fill the vacancies under
The city‘s policy thwarts state civil-service law
{¶ 57}
This coincidence indicates an attempt by the city to avoid the predictable and orderly statutory processes for filling vacancies and reducing force levels. And this was not without consequences for the officers involved in this case: the city‘s action nullifies their important reappointment rights set forth in
{¶ 58} Further, position abolishment done prospectively by attrition removes the appointing authority from what can sometimes be a difficult job; it can reduce the force from afar rather than having to deal with the process of demoting actual incumbents. It leaves open the possibility of manipulation, to avoid the promotion of a particular person by prospectively abolishing the position before the position is ripe to be filled. On balance, it plunges personnel decisions into darkness, contrary to our civil-service laws, which are designed to keep personnel decisions above board and appointing authorities answerable for their decisions.
CONCLUSION
{¶ 59} For the foregoing reasons, I would reverse the judgment of the court of appeals and grant the writ sought by appellants. Lieutenant Gargas should be promoted to captain. Because the promotion of Gargas to captain would create a vacancy in the lieutenant position and the city did not have an eligibility list for that position at the time, the city should be ordered to hold a promotional examination for that position. The retirement of Sergeant John Burzynski created a vacancy for sergeant, for which Officer Hetmanski was first in line for promotion; Hetmanski should be promoted to sergeant. The promotion of one sergeant to lieutenant would create another opening at the sergeant level, and that position should be filled by the person next in line for promotion, Officer Orth. Because Orth was already promoted to sergeant in the interim on July 14, 2016, he would be due back pay for the time between that date and the date when he should have been promoted. I would remand the matter to the court of appeals for it to determine the amount of back pay due to the individual appellants.
{¶ 60} Accordingly, I dissent.
FRENCH and FISCHER, JJ., concur in the foregoing opinion.
Daniel J. Leffler and Danielle M. Chaffin, for appellants.
Mazanec, Raskin & Ryder Co., L.P.A., Todd M. Raskin, Frank H. Scialdone, and David M. Smith, for appellees.