Missig v. Cleveland Civ. Serv. Comm., 2010 Ohio 2595 (Ohio App. 6/10/2010)

• Decision Date: 10 June 2010
• Docket Number: No. 91699.,91699.
• Citation: Missig v. Cleveland Civ. Serv. Comm., 2010 Ohio 2595 (Ohio App. 6/10/2010), 2010 Ohio 2595, No. 91699. (Ohio App. Jun 10, 2010)
• Parties: Anthony E. Missig, Plaintiff-Appellant, v. C/O Cleveland Civil Service Commission, et al., Defendants-Appellees.
• Court: Ohio Court of Appeals

Page 1

2010 Ohio 2595

Anthony E. Missig, Plaintiff-Appellant, v. C/O Cleveland Civil Service Commission, et al., Defendants-Appellees.

No. 91699.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Released: June 10, 2010.

Civil Appeal from the Cuyahoga County Court of Common Pleas, Case No. CV-637924.

Reversed and remanded.

Page 2

Daniel A. Powell, Joseph W. Diemert, Jr., Thomas M. Hanculak, Joseph W. Diemert, Jr. & Associates, 1360 S.O.M. Center Road, Cleveland, Ohio 44124-2189, for Appellant.

Robert J. Triozzi, Director of Law, By: Theodora M. Monegan, Chief Assistant Law Director, Steven Moody, Assistant Director of Law, 601 Lakeside Avenue, Room 106, Cleveland, Ohio 44114-1077, Attorneys for Appellees.

Before: Jones, J., Cooney, P.J., and Celebrezze, J.

JOURNAL ENTRY AND OPINION

LARRY A. JONES, J.

Page 3

{¶ 1} This cause is before this court on remand from the Ohio Supreme Court. See Missig v. Cleveland Civ. Serv. Comm., 123 Ohio St.3d 239, 2009-Ohio-5256, 915 N.E.2d 642. This court's judgment was reversed on the authority of Lima v. State, 122 Ohio St.3d 155, 2009-Ohio-2597, 909 N.E.2d 616.

{¶ 2} In Lima, the Ohio Supreme Court held that: (1) R.C. 9.481¹ was validly enacted pursuant to the general welfare clause of the state constitution (governing wages, hours, and employee health, safety, and welfare); and (2) the home-rule provision of the state constitution could not impair the legislature's power to enact legislation pursuant to the general welfare clause.

{¶ 3} We now consider whether appellant, Anthony E. Missig's termination of his employment as Battalion Chief with the City's Division of Fire, due to violations of Cleveland City Charter Section 74(a), more commonly known as the residency requirement, was valid.

Law and Analysis

{¶ 4} In Lima, the court, faced with an obvious conflict between the Akron and Lima residency requirements and R.C. 9.481, considered whether the statute was enacted pursuant to Section 34, Article II of the Ohio Constitution. Lima at _9. The court recognized that if it found in the affirmative, it would then be

Page 4

required to decide whether R.C. 9.481 would prevail over ordinances enacted pursuant to Section 3, Article XVIII of the Ohio Constitution. Id. With regard to the first prong of its analysis, the Lima court compared R.C. 9.481 to the statute considered in Am. Assn. of Univ. Professors, Cent. State Univ. Chapter v. Cent. State Univ., 87 Ohio St.3d 55, 1999-Ohio-248, 717 N.E.2d 286. The Lima court held that "as in Am. Assn. of Univ. Professors, the General Assembly believed that `the public interest necessitated legislative intervention. It enacted a law, therefore, to address and modify the existing concern.' 87 Ohio St.3d at 61, 717 N.E.2d 286. R.C. 9.481 provides for the comfort and general welfare of public employees by ensuring that they will be able to choose the municipality in which they reside. We hold that R.C. 9.481 was enacted pursuant to the authority granted in Section 34, Article II." Lima at _14.

{¶ 5} Section 34, Article II of the Ohio Constitution mandates that no other constitutional provision can impair or limit the General Assembly's ability to make laws pursuant to that section. Id. at _15. "This prohibition, of course, includes the `home rule' provision contained in Section 3, Article XVIII." Id. The Lima court held that R.C. 9.481 is constitutional, and thus municipalities cannot require their employees to reside in a particular municipality. Id. at _17.

{¶ 6} R.C. 9.481 was passed in January 2006 with an effective date of May 1, 2006. The record demonstrates that Safety Director Martin Flask did not terminate Missig for violation of the residency requirement until July 10, 2007, well after the statute's effective date.

Page 5

{¶ 7} In light of the foregoing and the recent decision in Lima, upholding the constitutionality of the statute prohibiting political subdivisions from imposing residency requirements on employees as a condition of employment, we hold that appellant's termination was improper.

{¶ 8} Accordingly, based on the Ohio Supreme Court's decision in Lima, this court now reverses the trial court decision and hereby orders that Anthony E. Missig be fully reinstated to his previous position.

{¶ 9} This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion.

It is ordered that appellant recover of appellees costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Cooney, P.J., and Celebrezze, Jr., J., Concur.

1. R.C. 9.481(B)(1) states that "no political subdivision shall require any of its employees, as a condition of employment, to reside in any specific area of the state." See, Lima v. State, 122 Ohio St.3d 155, 2009-Ohio-2597, 909 N.E.2d 616.