Fraternal Order of Police Youngstown Lodge No. 28 v. Hunter

• Citation: 49 Ohio App.2d 185,360 N.E.2d 708,3 O.O.3d 252
• Parties: , 3 O.O.3d 252 FRATERNAL ORDER OF POLICE YOUNGSTOWN LODGE NO. 28 et al., Appellees, v. HUNTER, Mayor, et al., Appellants. *
• Decision Date: 16 April 1975
• Court: United States Court of Appeals (Ohio)

Page 185

49 Ohio App.2d 185

360 N.E.2d 708, 3 O.O.3d 252

FRATERNAL ORDER OF POLICE YOUNGSTOWN LODGE NO. 28 et al., Appellees, v. HUNTER, Mayor, et al., Appellants. ^*

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

April 16, 1975.

Syllabus by the Court

1. A rule promulgated by the civil service commission of a municipality, which makes any officer or employee not residing within the city limits after a specific date subject to dismissal, is invalid when applied to those employed before the enactment date.

2. A rule promulgated by the civil service commission of a municipality, which makes any officer or employee not residing within the city limits after a specific date subject to dismissal, is valid when applied to employees hired after the enactment date, where it is shown that the city has a compelling governmental interest in creating such a restriction.

Green, Schiavoni, Murphy & Haines, Youngstown, for appellees.

William J. Jiggins, Joseph E. Vouros and Donald DeSalvo, Youngstown, for appellants.

DONOFRIO, Judge.

This is an appeal by the defendants, Jack C. Hunter, Mayor, city of Youngstown, and the youngstown Civil Service Commission, hereinafter referred to as appellants.

Appellee Carmen Agnone, a maintenance employee of the Youngstown Municipal Airport in the classified service of the city of Youngstown, and the Fraternal Order of Police, Lodge No. 28, filed a complaint seeking to have the court declare the rights of civil service employees with regard to Rule IV, Section 9(F), of the Youngstown Civil Service Commission; asking the court to issue a temporary restraining order against those who would terminate the employment of any employee who failed to execute an affidavit regarding his residence; and, for a second cause of action, praying for a declaratory judgment as to appellees' rights and duties as to residency under the applicable laws of the state and rules and regulations of the Youngstown Civil Service Commission; and for a finding and declaratory judgment that the rule of a Civil Service Commission requiring residency of a tenured Civil Service employee is invalid.

After a hearing on the temporary restraining order, such was granted, and on April 11, 1973, the matter was brought to trial before the court.

The rule at issue, which was adopted January 20, 1972, provides as follows:

'Any officer or employee not residing within the city limits of Youngstown, except as otherwise provided in Rule IV, Section 5, is subject to dismissal from service of the city.'

The trial court found that there being no rule as to residency prior to January 20, 1972, those employees of the city of Youngstown who entered the classified service prior to January 20, 1972, were not required by the rule of the Youngstown Civil Service Commission to maintain residency in the city of Youngstown; therefore, such rule was not enforceable against any employee entering the classified service prior to January 20, 1972.

The court also found that the rule was unconstitutional and void for the reason that it was retroactive in its operation, and further that the constitutionality of the rule depended on whether or not it was a reasonable rule, and that any regulation which serves to restrict the exercise of a constitutional right of freedom of movement across frontiers, unless shown to promote a compelling governmental interest, is unconstitutional. The court found that the defendants did not produce any evidence of any kind from which the court could determine the reasonableness of the rule, and that since no evidence was produced to support the reasonableness of the rule, the court said that the burden of the defendants was not sustained in showing the compelling governmental interest that required a classified employee to be a resident of the city of Youngstown as opposed to his right to exercise his choice of a place to live. The court found, in the absence of any evidence, that under the constitution of the United States the rule attempting to be enforced was an unconstitutional interference with the rights of employees. It found Rule IV, Section 9(F), of the Civil Service Commission to be unconstitutional and void for the following reasons:

'1. It is retroactive in its operation.

'2. It is unreasonable because it violates the rights of the individual guaranteed by the Fifth Amendment of the Constitution of the United States.'

It is from this holding and order of the trial court that appellants bring this appeal.

Appellants assign five errors, the first of which states as follows:

'The trial court erred in finding that Section 733.68, Ohio Revised Code, does not apply to a police officer.'

R.C. 733.68, states, in pertinent part:

'* * * (E)ach officer of a municipal corporation * * * shall be an elector of the municipal corporation * * *.'

At the trial below, the appellants argued that a police officer was an officer of the municipal corporation, and, therefore, must be an elector of that municipal corporation. The court was correct in rejecting the appellants' argument.

An examination of R.C. 733.68 indicates that the term 'officer' as used in that section denotes elected officials and appointees other than police officers. In State v. Byomin (1958), 106 Ohio App. 393, 154 N.E.2d 823, the court, regarding R.C. 733.68, stated at page 397, 154 N.E.2d at page 826, as follows:

' We do not believe this section applies to police officers of a village or to a deputy marshal. The officer designated in this section refers to others than police officers * * *.'

We find no error in the court's ruling regarding appellants' first assignment of error, and this assignment of error is, therefore, overruled.

Appellants' second assignment of error states as follows:

'The trial court erred in its finding that Youngstown Revised Code of Ordinances, Section 32.04 has no application to the issue at Bar notwithstanding its former decision in Kissos et al. v. City of Youngstown, et al.'

The thrust of appellants' second assignment of error is that the court erred in the instant case in construing Youngstown Revised Code of Ordinances Section 32.04 as being in conflict with the rules of the Civil Service Commission of the city of Youngstown. Further, appellants' contention is that the Youngstown City Council has the power and authority to require residency as a condition of employment and provide dismissal for the failure to comply with residency requirements. This question was previously adjudicated by the trial court in another case known as Kissos et al. v. City of Youngstown, Mahoning County Common Pleas Court Case No. 195308. In the Kissos case and the instant case, the court's reasoning as to the city ordinance conflicting with the civil service rule and its authorities for such reasoning are as follows: The lower court held that the Youngstown City Charter precludes city Council from prescribing qualifications for employment and grounds for termination of employment.

Section 52 of the Youngstown Charter provides in pertinent part as follows:

'All of the provisions of the Revised Code of the State of Ohio relating to Municipal Civil Service are hereby adopted and made a part of this Charter * * *.'

The citizenry of Youngstown, by approving that provision, expressed a desire to adopt the state civil service laws. It is well-settled that when a municipal charter adopts by general reference the state laws on any subject, the laws become a part of the charter.

In Reed v. City of Youngstown (1962), 173 Ohio St. 265, 181 N.E.2d 700, the syllabus states as follows:

'1. Because of section 52 of the Youngstown charter, the general statutes of the state relating to municipal civil service, as existing at any particular time, represent a part of the Youngstown charter at that time even though those statutes may be identified as parts of the Revised Code.

'2. No ordinance can conflict with the provisions of a city charter and be effective.

'3. An ordinance requiring retirement of classified civil service employees of a city at 65 years of age conflicts with provisions in a city charter to the effect that the tenure of every employee in the classified service of a city shall be during good behavior and efficient service.' (Emphasis added.)

In State, ex rel. Gerhardt v. Krehbiel (1974), 38 Ohio St.2d 90, 310 N.E.2d 251, the syllabus states as follows:

'Where a municipal charter prescribes the manner for removal of municipal officers, any attempt by the municipality's legislative body to remove an officer in a manner at variance or in conflict with the charter's directives is a nullity.'

Appellees point out that the state statute governing the tenure of civil service employees provides that tenure shall be 'during good behavior and efficient service.' Significantly, this does not mandate a residency requirement. The Youngstown City Charter adopted the state statute in regard to civil service employees, thus permits only the Civil Service Commission to provide for rules and regulations that govern tenure and termination of employment. Appellees also point out that there is no significant difference between an ordinance which fixes a mandatory retirement age and one which imposes residency requirements. Each improperly attempts to add another condition for which a civil servant can be terminated. Each attempts to add a third qualifier to the statutory 'during good behavior and efficient service'; consequently, each conflicts with R.C. 143.27 as adopted in the Youngstown City Charter.

We hold that the trial court properly concluded that the Youngstown City Ordinance imposing residency was in conflict with the City Charter and was consequently invalid. Appellants' second assignment of error is overruled.

Passing over the appellants' fourth assignment of error momentarily, since this assignment is the heart of the instant case, we come now to appellants' fifth assignment of error, which states as...