McAlpin v. Shirey

• Decision Date: 25 June 1997
• Docket Number: No. C-960629,C-960629
• Parties: McALPIN, Appellant, v. SHIREY et al., Appellees.
• Court: Ohio Court of Appeals

Page 68

121 Ohio App.3d 68

698 N.E.2d 1051

McALPIN, Appellant, v. SHIREY et al., Appellees.

No. C-960629.

Court of Appeals of Ohio First District, Hamilton County.

Decided June 25, 1997.

Hardin & Hill and Donald E. Hardin, Cincinnati, for appellant.

Fay D. Dupuis, City Solicitor, and Roshani De Soyza Hardin, Assistant City Solicitor, Cincinnati, for appellees.

PER CURIAM.

On April 13, 1995, appellant, Walter F. McAlpin, Jr., filed a notice of appeal with appellee, the Civil Service Commission of the city of Cincinnati, regarding his demotion to police captain following the abolishment of an assistant police chief position in the Cincinnati Police Division. After a hearing, the commission denied the appeal. Appellant filed an appeal with the Hamilton County Court of Common Pleas, which denied his motion to present additional evidence and affirmed the commission's decision. Appellant then filed a timely appeal with this court. We affirm the decision of the common pleas court.

The evidence at the hearing before the commission showed that prior to March 1995, the police division had five fully funded positions at the rank of assistant police chief. However, in January 1995, one assistant police chief announced his retirement. Since a vacancy existed in that position, the commission was required to hold a competitive promotional exam within sixty days of the vacancy pursuant to R.C. 124.44.

In response to the assistant police chief's retirement, the city's safety director discussed reorganizing the police division with the city manager, appellee John Shirey. The reorganization plan called for reducing the number of bureaus from five to four and correspondingly eliminating an assistant police chief position. The safety director notified the acting police chief that the vacated assistant police chief position was to be abolished so that the candidates for the position would have notice of the abolishment before the test was taken. On February 24, 1995, the candidates were advised that the vacant position was being eliminated. The test was administered on February 28, 1995, as scheduled, and appellant ranked number one on the promotion eligible list that resulted from the examination.

On April 3, 1995, the safety director sent the commission a statement of rationale for the abolishment of the position. Because of the abolishment, appellant was promoted to assistant police chief for one day and then demoted the following day, pursuant to the procedure set forth in R.C. 124.37.

Appellant presents two assignments of error for review. In his first assignment of error, he states that the common pleas court erred in affirming the decision of the commission and in misinterpreting the provisions of R.C. 124.321 and 124.37. He argues that the assistant police chief position was wrongfully abolished when the appointing authority failed to show that the abolishment was necessary and failed to file a statement of rationale prior to sending notice of the abolishment. He also argues that the common pleas court erred in refusing to allow him leave to present additional evidence. In his second assignment of error, appellant states that the common pleas court erred in affirming the decision of the commission because the city did not prove by a preponderance of the evidence any increase in efficiency resulting from the abolishment of the position. Since these assignments of error are closely related, we consider them together. We find that they are not well taken.

We begin by discussing our standard of review. A decision of a municipal civil service commission is appealable pursuant to R.C. 2506.01 et seq. Nuspl v. Akron (1991), 61 Ohio St.3d 511, 513-515, 575 N.E.2d 447, 448-449. See, also, Resek v. Seven Hills (1983), 9 Ohio App.3d 224, 225-226, 9 OBR 395, 396-399, 459 N.E.2d 566, 568-569. A reviewing court must give due deference to the agency's resolution of evidentiary conflicts and should uphold the agency's decision if it is supported by a preponderance of substantial, reliable, and probative evidence. R.C. 2506.04; Community Concerned Citizens, Inc. v. Union Twp. Bd. of Zoning Appeals (1993), 66 Ohio St.3d 452, 456, 613 N.E.2d 580, 584; Budd Co. v. Mercer (1984), 14 Ohio App.3d 269, 273-274, 14 OBR 298, 302-304, 471 N.E.2d 151, 156. On issues of law, the reviewing court conducts a de novo review and will reverse the agency's decision if it is contrary to law. Cincinnati Bengals, Inc. v. Papania (1993), 92 Ohio App.3d 785, 787, 637 N.E.2d 330, 331.

First, appellant argues that R.C. 124.321 and 124.37 should be construed together. R.C. 124.321 deals with reductions in work force, including abolishment of positions, and applies to civil service positions generally. R.C. 124.37 deals with removals, reappointments and demotions due to reductions in force in police and fire departments. Both the commission and the common pleas court held that only R.C. 124.37 applied in this case.

A fundamental rule of statutory construction states that statutes relating to the same subject matter should be construed together, if possible, and harmonized to carry out the legislative intent. State ex rel. Thurn v. Cuyahoga Cty. Bd. of Elections (1995), 72 Ohio St.3d 289, 294, 649 N.E.2d 1205, 1209; Jones v. Multi-Color Corp. (1995), 108 Ohio App.3d 388, 396, 670 N.E.2d 1051, 1056-1057. Further, general and specific provisions should be construed, if possible, to give effect to both, unless an irreconcilable conflict exists. R.C. 1.51; State ex rel. Herder v. Shock (1977), 55 Ohio App.2d 116, 121, 9 O.O.3d 268, 271-272, 379 N.E.2d 608, 612.

After careful review, we conclude that R.C. 124.321 and 124.37 are not in conflict and can be construed together. See State ex rel. Hipp v. N. Canton (1996), 75 Ohio St.3d 221, 223, 661 N.E.2d 1090, 1092-1093; Shock, supra, at 121-122, 9 O.O.3d at 271-272, 379 N.E.2d at 612-613; Anthony v. E. Liverpool (Aug. 17, 1982), Columbiana App. No. 81-C-57, unreported, 1982 WL 6174. R.C. 124.37, the specific provision relating to fire and police forces, covers demotions and layoffs due to a reduction in force, but not the reduction itself. R.C. 124.321, the general provision, covers the actual reductions in force. Its provisions can be followed in implementing the decision to abolish a position within the police force without conflicting with the procedure set forth in R.C. 124.37, which must be followed for the demotions and layoffs which would follow the abolishment. See Hungler v. Cincinnati (1986), 25 Ohio St.3d 338, 25 OBR 392, 496 N.E.2d 912; Smith v. Cincinnati (1993), 85 Ohio App.3d 13, 619 N.E.2d 46.

In this case, there is no dispute that the proper promotion, demotion and layoff procedures set forth in R.C. 124.37 were followed. Compare Hungler, supra, at 344, 25 OBR at 397-398, 496 N.E.2d at 917 (city's failure to follow R.C. 124.37 disrupted the stability of the civil service system and affected seniority rights). Appellant argues that both R.C. 124.37 and 124.321 require that reductions in force must be "necessary," and that the city presented no proof that the abolishment of the fifth assistant police chief position was necessary.

R.C. 124.37 states the layoff procedure to be followed "[w]hen it becomes necessary in a police or fire department, through lack of work or funds, or for causes other than those outlined in section 124.34 of the Revised Code [disciplinary actions], to reduce the force in such department." R.C. 124.321 provides:

"(A) Whenever it becomes necessary for an appointing authority to reduce its work force the appointing authority shall lay off employees or abolish their positions in accordance with sections 124.321 to 124.327 of the Revised Code and the rules of the director of administrative services.

"* * *

"(D) Employees may be laid off as a result of abolishment of positions. Abolishment means the permanent deletion of a position or positions from the organization or structure of an appointing authority due to lack of continued need for the position. An appointing authority may abolish positions as a result of a reorganization for the efficient operation of the appointing authority, for reasons of economy, or for lack of work. The determination of the need to abolish positions shall indicate the lack of continued need for positions within an appointing authority. Appointing authorities shall themselves determine whether any position should be abolished and shall file a statement of rationale and supporting documentation with the director of administrative services prior to sending the notice of abolishment."

We find no cases interpreting the word "necessary" as used in either statute. However, the Ohio Supreme Court has stated that "the power to create a position in the civil service includes the power to abolish it. * * * This is particularly true where the purpose of such abolishment is economy or the increased efficiency of the public service." Weston v. Ferguson (1983), 8 Ohio St.3d 52, 53, 8 OBR 523, 524, 457 N.E.2d 818, 819. An appointing authority has the power to abolish civil service positions pursuant to a plan of reorganization as long as the abolishment is done in good faith. Id. at 53-53, 8 OBR at 523-524, 457 N.E.2d at 819-820. In discussing the statement-of-rationale requirement in R.C. 124.321(D), the Tenth District Court of Appeals has stated:

" 'The statute does not assure that the decision made by an appointing authority to abolish a position will reflect the best judgment available, for policy decisions of this nature are within the sound discretion of the appointing authority. Instead, the statute limits the appointing authority's discretion to the extent that the abolishment must be the product of some rational decision, and that facts must exist upon which the decision may be logically grounded.' " Fragassi v. Lorain Cty Bd. of Commrs. (Mar. 14, 1995), Franklin App. Nos. 94APE07-950, 94APE07-951, 94APE07-952, and 94APE07-953,...