Atwood v. Judge, Director

• Decision Date: 23 December 1977
• Citation: 409 N.E.2d 1022,63 Ohio App.2d 94,17 O.O.3d 289
• Parties: , 17 O.O.3d 289 ATWOOD et al., Appellees, v. JUDGE, DIRECTOR, Appellant. 1
• Court: Ohio Court of Appeals

Page 94

63 Ohio App.2d 94

409 N.E.2d 1022, 17 O.O.3d 289

ATWOOD et al., Appellees, v. JUDGE, DIRECTOR, Appellant. ¹

Court of Appeals of Ohio, Seventh District, Columbiana County.

Dec. 23, 1977.

Syllabus by the Court

1. The fact that a statutory city has ordinances specifying the number and classifications of policemen and fire fighters does not prevent the director of public safety from temporarily laying off such employees without prior approval from the city council where it is necessary to do so for financial reasons.

2. In the absence of an ordinance pertaining to the laying off of civil service employees, including fire fighters and policemen, for lack of funds, the director of public safety of a non-charter city, under the direction of the mayor, has the authority to lay off such employees, in accordance with law, for a lack of funds.

3. Although the authority to lay off municipal civil service employees for a lack of funds belongs to the executive branch of government in accordance with applicable city ordinances and state statutes, a city council can subsequently change such administrative decision by amending the appropriation ordinance by changing the priorities of laying off employees or curtailing services.

4. By statute, a municipal corporation is expressly prohibited from making any appropriation or expenditures of money except in the manner provided in R.C. Chapter 5705.

5. Appropriations by a city council cannot exceed the total amount of the certificate of estimated revenue of the county budget commission.

6. Pursuant to R.C. 733.13, no municipal appropriation can be overdrawn.

7. A city auditor has the responsibility of certifying additional city revenues to the county budget commission for the purpose of obtaining an amended official certificate of estimated revenue showing such additional revenues. J. Michael Kapp, East Liverpool, for appellees.

David Buzzard, City Sol., for appellant.

LYNCH, Judge.

Defendant, the Director of Public Service-Safety of East Liverpool, is appealing the February 14, 1977, judgment entry of the trial court which permanently enjoined him from (1) laying off any fire fighters from the East Liverpool Fire Department, (2) laying off any policeman from the East Liverpool Police Department, or (3) from issuing any order or causing any orders to be issued denying any fire fighter or policemen their just and due payment pursuant to the contract entered into with the city of East Liverpool and the patrolmen and fire fighters on the 22nd day of April 1976.

By letter mailed May 27, 1976, defendant notified seven fire fighters and six policemen, all of which are plaintiffs, that due to the financial condition of the city of East Liverpool they were to be laid off effective June 1, 1976, and that they would be rehired pursuant to the rules and regulations of the Civil Service Commission of the city of East Liverpool, when operational funds became available.

On June 1, 1976, plaintiffs filed their complaint for a temporary and permanent injunction and the trial court granted a temporary restraining order.

On June 2, 1976, defendant filed a motion to dismiss the complaint pursuant to Civil Rule 12(B)(1) and (6) because the plaintiff employees of the city of East Liverpool had not appealed defendant's layoff order to the East Liverpool Civil Service Commission. This motion was argued before the trial court on June 3, 1976, and was overruled on June 15, 1976.

On June 3, 1976, a hearing was held on plaintiffs' motion for a temporary injunction and continued until June 16, 1976, for further testimony. The June 1, 1976, temporary restraining order was continued in force and effect.

On June 16, 1976, the trial court received additional evidence and continued the case until June 23, 1976, when the case was completed.

On July 6, 1976, the trial court granted the preliminary injunction against defendant.

On February 1, 1977, the final hearing in this case was held, but no additional evidence was introduced. The hearing consisted of arguments of counsel for both sides. The judgment entry was filed February 14, 1977.

The city of East Liverpool does not have a charter; therefore, it is a statutory city subject to the general laws of the state of Ohio for administrative purposes.

The trial court found in his February 14, 1977, judgment entry that the defendant, as Director of Safety-Service of the city of East Liverpool, by his conduct and action unlawfully attempted to legislate and to amend Section 145.01, Section 147.01 and Chapter 146 of the codified ordinances of the city of East Liverpool which was the sole function and responsibility of the city council and that defendant violated the provisions of the United States Constitution and the Constitution of Ohio as to the separation of powers between the legislative and executive branch of government.

The trial court further found that defendant's action was arbitrary and capricious and in excess of his power and duty as set out by R.C. 737.02 and constituted a gross abuse of discretion; that the financial condition of the city of East Liverpool did not warrant the layoffs and that had such layoffs been effected they would have dangerously injured the health, safety and welfare of the residents of the city of East Liverpool.

R.C. 737.02 provides, in pertinent part, as follows:

"Under the direction of the mayor, the director of public safety shall be the executive head of the police and fire departments * * *. He shall have all powers and duties connected with and incident to the appointment, regulation, and government of such departments except as otherwise provided by law. * * * "

R.C. 737.05 provides, in pertinent part, as follows:

"The police department of each city shall be composed of a chief of police and such other officers, patrolmen, and employees as the legislative authority thereof provides by ordinance."

R.C. 737.08 provides, in pertinent part, as follows:

"The fire department of each city shall be composed of a chief of the fire department and such other officers, fire fighters, and employees as provided by ordinance, * * * ".

Set out below are pertinent Codified Ordinances of the City of East Liverpool:

"Section 145.01. The regular Police Department of the city shall be composed of: One Chief, One Captain, Four Lieutenants and 25 patrolmen.

"Section 147.01. The regular Fire Department of the city shall be composed of: One Chief, Three Assistant Chiefs, Three Lieutenants and 27 firemen."

Chapter 146 of the ordinances established a Juvenile Police Bureau in the Police Department.

The evidence established that in 1976 East Liverpool had twenty to twenty-one thousand residents living in an area of approximately four and one-half square miles. The city is built on hills. The way the town is laid out, the east end is completely isolated from the rest of the town. Pleasant Heights is another area which is isolated from the rest of the town.

The council negotiated a contract dated April 22, 1976, with plaintiff East Liverpool Fire Fighters Union Local # 24, I.A.F.F. and the East Liverpool Police Department providing for salaries and other benefits from January 1, 1976, until December 31, 1977, for all members of the East Liverpool fire and police departments. On April 5, 1976, the Council passed Ordinance No. 13 which authorized and directed defendant to execute the contract. Defendant executed the contract and it was approved by the Mayor on April 6, 1976.

Mayor H. A. Tullis, who assumed office January 1, 1976, testified that before the layoffs in question were made he consulted the finance committee of city council, the Director of Public Service-Safety, the Auditor and the Solicitor. He stated that the chairman of the finance committee told him how much money was left for salaries to operate each department of the city for the rest of the fiscal year; that on the basis of projected or anticipated income of the city his best estimate was that there would be no money left to pay anybody on the city payroll after September 30, 1976, and that he told defendant that the only thing they could do was to curtail employment because if they waited until October, there would be no money left to pay anybody on the city payroll.

James Lowe, finance chairman of Council, verified that he gave the Mayor and defendant an estimate of what was anticipated for salaries in each and every department and an estimate of what could be left at a certain date; that excluding sewer, water and hospital revenues the anticipated remaining revenues for 1976 totaled $2,124,422 and the 1976 appropriation totaled approximately $2,121,957 which did not include the raises for all city employees which totaled approximately $220,000; that he advised the Mayor that there would be a salary overrun by the end of the year if the city were to continue its current level of spending of approximately $57,000 in the fire department and $41,000 in the police department; and that he had several discussions with defendant and told him that there would be no more money appropriated for wages and that defendant had to operate with the funds that he had.

Defendant has been Director of Public Service-Safety since January 20, 1976, and at one time worked for the sewerage department for three years as an operator's helper. He had no bookkeeping or accounting training or experience prior to assuming his present position. Most of his work as Director of Public Service-Safety had been with the street department and the incinerator. Before laying off the policemen and firemen, he checked with the city Auditor to find out what was left for wages for the rest of the year in the police and fire departments as compared to the appropriations for such departments. The annual salary of the policemen and fire fighters who were laid off amounted to $10,065 per year which is approximately $838.75 per month. Laying off six policemen for 7 months would...