East Cleveland Firefighters, Local 500 v. Civil Service Commission of East Cleveland
| Decision Date | 19 December 2000 |
| Docket Number | 00-LW-6008,77367 |
| Parties | EAST CLEVELAND FIREFIGHTERS, LOCAL 500, Plaintiff-appellant v. CIVIL SERVICE COMMISSION OF EAST CLEVELAND, et al, Defendants-appellees CASE |
| Court | Ohio Court of Appeals |
Civil appeal from Court of Common Pleas, Case No. 345,347.
For Plaintiff-Appellant: JOSEPH W. DIEMERT, JR., 1360 S.O.M. Center Road, Cleveland, Ohio 44124.
For Defendant-Appellee: HELEN FORBES FIELDS, IVAN L. HENDERSON SCOTT H. SCHOOLER, Forbes, Fields & Associates, Rockefeller Building, #700, 614 Superior Avenue, N.W., Cleveland, Ohio 44113-1332.
This is an appeal from an order of Judge Burt W. Griffin granting the motion for summary judgment of appellees City of East Cleveland Civil Service Commission ("ECCSC") and Mayor Emmanuel Onunwor (collectively the "Commission") on the complaint for declaratory judgment and writ of mandamus of appellant East Cleveland Fire Fighters Local 500, International Association of Fire Fighters (the "Union"). The Union claimed that the Commission unlawfully certified and promoted Bobby Jenkins to the position of Fire Chief in violation of the City Charter, City ordinance and state statute and sought have the judge order the Commission to remove him from that office and conduct a competitive promotional examination to create an eligibility list from which the Mayor would be required to promote. We affirm that part of the order on the relief in mandamus, reverse that part granting summary judgment for the Commission, and enter judgment for the Union.
The facts are not in dispute. In May 1996, Fire Chief Paul B. Blockson, III, notified the president of the ECCSC that several vacancies had occurred or would shortly occur within certain promoted ranks in the fire department. He asked the ECCSC to begin the process of promotional testing within the department in accordance with City ordinance and commission rules. On June 12, 1996, he provided the Human Resource Director and ECCSC secretary, Wanda Deadwyler, with a list of those fire fighters eligible to take one of the promotional tests, i.e., those fire fighters who had served at least twelve months in the next lower rank from the promoted rank. He followed this June letter with an August 5, 1996 letter to the ECCSC president; he again stressed the importance of beginning the promotional examination process as soon as possible since certain notice requirements and other matters would delay the compilation of a list of persons eligible for promotion until October or November, 1996. Shortly thereafter, Blockson retired, and Deputy Chief LaValle Dorsey was appointed as Acting Fire Chief.
On September 24, 1996, Dorsey forwarded his memorandum to then-Mayor Wallace B. Davis, notifying him of both actual and projected vacancies in the positions of Fire Chief, Deputy Chief, Captain and Lieutenant. He suggested that it would be in the city's best interest to conduct promotional examinations for all of these ranks to promote stability within the department, facilitate scheduling, and maintain the fire inspection and prevention programs. Two days later, he sent a list of candidates eligible to take the promotional examinations "by virtue of having served at least one (1) year in the rank immediately below the rank of the position being sought."
For the position of Fire Chief, he named three eligible candidates: himself and Deputy Chief Jerry C. Kirchner, and Robert L. Bearden. For the position of Deputy Chief, he named three eligible candidates: Captain Patrick A. McDonough, Paul A. Lowry, and Bobby R. Jenkins. On January 16, 1997, after Deputy Chief Bearden retired, Dorsey updated the list to include himself and Kirchner as the only candidates eligible to take the Fire Chief examination.
Finally, on April 22, 1997, the ECCSC issued a notice for promotion to the position of Fire Chief, set the date of the examination for June 18 and 19, 1997 and provided a application deadline of April 25, 1997. Kirchner and Dorsey submitted their applications before the filing deadline.
On June 2, 1997, the ECCSC issued notice of the postponement of the Fire Chief promotional examination to Kirchner and Dorsey, indicating that the test was being postponed because of "some legal issues that need to be discussed with the City's Law Department." On June 25, 1997, the commission then issued notice of a promotional examination for the ranks of Deputy Chief, Captain, and Lieutenant and set September 13, 1997 for the test.
Apparently Dorsey was removed as Acting Fire Chief and, at some point before the release of the results of the September examinations, Captain Bobby Jenkins was appointed to the position of Acting Fire Chief. On October 30, 1997, the ECCSC, in accordance with Section 123.09(d) of the city administrative code, posted the eligibility lists for the positions of Deputy Chief, Captain, and Lieutenant, identifying Jenkins as the only eligible candidate for Deputy Chief. Jenkins forwarded these lists to Mayor Davis and, six days later, Deadwyler certified the Deputy Chief eligibility list to the mayor.
On November 10, 1997, the ECCSC allegedly held a meeting during which Jenkins asked it to waive the requirement that an individual must serve one year in the rank of Deputy Chief before being eligible to take the Fire Chief's examination. Although the minutes of that meeting are not part of the record, the ECCSC allegedly granted that request.
On November 11, 1997, Jenkins received his official promotion to the position of Deputy Fire Chief. Three days later, the ECCSC issued a second notice of the Fire Chief promotional examination, set the dates of the examination for December 17 and 18, 1997, but retained the previous April 25, 1997, deadline for the filing of applications.
That same day the notice was posted, Kirchner and Dorsey notified Jenkins that they were going to file a grievance against him, the ECCSC, and the city under the collective bargaining contract with regard to the December 1997 Fire Chief promotional test. On November 18, 1997, Jenkins responded to the letter, indicating that the grievance was denied because they had cited no specific violation of any provision of the union contract, statute, or local regulation. On that same date, almost seven months after the posted, April 1997, filing deadline, Jenkins filed his application to take the Fire Chief's examination. On December 7 and 8, respectively, Kirchner and Dorsey withdrew their applications to take the examination.
By letter dated December 10, 1997, Ed Scott, the Union president, asked the ECCSC to notify the Local when it "will open the test up [in accordance with state law] to the next lower ranks until you get candidates willing to take the test[.]" Nothing in the record reflects that the Commission responded to this request.
On December 16, 1997, the Union and Nathaniel Richardson, a member holding the position of Captain, filed suit against the ECCSC and Mayor Davis and moved to enjoin the Fire Chief promotional examination until the examination was opened to those holding the rank of Captain. On December 17th and 18th, the ECCSC administered the examination to Jenkins only. The hearing on the request for temporary restraining order was reset by stipulation to December 22nd, and the motion was denied on that date.
On December 29, 1997, the ECCSC certified Jenkins for the position of Fire Chief, and Mayor Davis promoted him to that rank the same day.
On October 6, 1998, upon leave granted, the Union filed an amended complaint and requested relief in the form of a writ in mandamus or declaratory judgment. Richardson was dropped as a plaintiff, and Mayor Onunwor, who had replaced Mayor Davis, and the ECCSC were named defendants. The Union averred that when the ECCSC certified Jenkins as eligible to take the Fire Chief examination and certified him as eligible for the promotion, it violated the Ohio Revised Code, the East Cleveland City Charter and ordinances, and ECCSC rules and regulations. It claimed that because there were less than two persons in the rank of Deputy Chief who were eligible and willing to compete in the Fire Chief's examination, statute required that the examination should have been opened to all fire fighters holding the next lower rank (that of Captain) who were eligible and willing to compete. It asserted that, because the mayor illegally promoted Jenkins to the position of Fire Chief, Jenkins must be removed from that position and the ECCSC must conduct a competitive promotional examination allowing participation of all legally eligible fire fighters in the next lower rank who are willing to compete. The Union asked the judge to declare the rights of the parties and require the ECCSC both to remove Jenkins from office and to administer a new Fire Chief examination.
On December 4, 1998, the Union filed a motion for summary judgment, arguing that Jenkins was not eligible to take the Fire Chief promotional examination because his application was submitted beyond the April 25, 1997 deadline and because he had not held the position of Deputy Chief for at least one year. It also asserted that the ECCSC was not in a position to "waive" the one-year service requirement contained in the city ordinances. In addition, the Union claimed that the ECCSC was required by state law to open the examination to eligible and willing fire fighters in the next lower rank below Deputy Chief because there were less than two individuals, presently classified as Deputy Chief, who were eligible and willing to compete. It argued that, when the ECCSC did not open the examination as required, Jenkins' promotion was illegal.
On December 7, 1998, the Commission filed its motion for summary judgment, arguing that...
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