Davis v. Hocking Cty. Sheriff

• Citation: 76 Ohio App.3d 843,603 N.E.2d 406
• Decision Date: 26 February 1992
• Docket Number: No. 91CA2,91CA2
• Parties: DAVIS, Appellant, v. HOCKING COUNTY SHERIFF, Appellee. *
• Court: United States Court of Appeals (Ohio)

Page 843

76 Ohio App.3d 843 603 N.E.2d 406 DAVIS, Appellant,
v.
HOCKING COUNTY SHERIFF, Appellee. ^* No. 91CA2. Court of Appeals of Ohio, Fourth District, Hocking County. Decided Feb. 26, 1992.

Edwin C. Johnson, Logan, for appellant.

Downes & Hurst and Mark A. Fishel, Columbus, for appellee.

Page 844

STEPHENSON, Presiding Judge.

This is an appeal from a judgment entered by the Hocking County Court of Common Pleas, which affirmed an order of the State Personnel Board of Review ("SPBR") dismissing on jurisdictional grounds an appeal by Raymond E. Davis of his removal from employment as a deputy sheriff by James P. Jones, the Sheriff of Hocking County. The following error is assigned:

[603 N.E.2d 407] "The court erred in affirming the decision of the State Personnel Board of Review dismissing the appeal of appellant."

The factual background of this appeal is basically undisputed. Appellant was employed as a deputy sheriff in the Hocking County Sheriff's Department. On May 9, 1990, appellant was removed from his position of deputy sheriff for, inter alia, failure of good behavior, neglect of duty, violation of department rules and conduct unbecoming an officer. An attachment to the removal order set forth specific alleged acts justifying removal.

At the time of his removal there was in effect a collective bargaining agreement between the Hocking County Sheriff's Department and the International Brotherhood of Teamsters, Public Employees of Ohio, Local 450 entered into pursuant to authority granted by R.C. Chapter 4117. Appellant was a member of the bargaining unit and within the coverage of the agreement. Article 12 provided for a grievance procedure and, in various subsections, set forth the procedures for processing a grievance, including final and binding arbitration. It is also undisputed that given the definition in Section 12.2, Article 12 of a grievance "as a dispute or controversy arising from only the misapplication or misinterpretation or compliance with the specific and express written provisions of this Agreement," and that Section 31.3, Article 31 provides that the tenure of bargaining unit employees shall "continue with good behavior and efficient service" and that an employee may be discharged for "just cause," the grievance procedure would be applicable.

Included in the collective bargaining agreement is Section 12.3(e), Article 12, which reads as follows:

"The existence of this Grievance Procedure, hereby established, shall not be deemed to require any employee to pursue the remedies herein provided and shall not impair or limit the right of any employee to pursue any other remedies available under law, except that any employee who pursues any other available remedy, other than provided by this procedure, shall automatically have waived and forfeited any remedies provided by this procedure."

Appellant timely appealed his removal, pursuant to authority granted in R.C. 124.34, to the SPBR, which has jurisdiction granted by R.C. 124.03.

Page 845

Appellee filed a motion to dismiss, asserting SPBR lacked jurisdiction by reason of R.C. 4117.10(A), which reads, inter alia, as follows:

"An agreement between a public employer and an exclusive representative entered into pursuant to Chapter 4117. of the Revised Code governs the wages, hours, and terms and conditions of public employment covered by the agreement. If the agreement provides for a final and binding arbitration of grievances, public employers, employees, and employee organizations are subject solely to that grievance procedure and the state personnel board of review or civil service commissions have no jurisdiction to receive and determine any appeals relating to matters that were the subject of a final and binding grievance procedure. Where no agreement exists or where an agreement makes no specification about a matter, the public employer and public employees are subject to all applicable state or local laws or ordinances pertaining to the wages, hours, and terms and conditions of employment for public employees."

An administrative law judge of the SPBR filed a report and a recommendation that the appeal be dismissed by the board for lack of jurisdiction. The hearing officer interpreted the contract language of reservation to allow the employee to pursue any other remedies available under law by stating as follows:

"It is urged on behalf of the appellant in this matter that Article 12, Section 12.3(e), does not limit the right of Appellant Davis to pursue any other remedies available under law. This contention is correct. However, this provision expressly refers to 'remedies available under law,' and because of the...