Morgan v. City of Cincinnati

• Decision Date: 13 August 1986
• Docket Number: No. 85-1592,85-1592
• Citation: 25 OBR 337,25 Ohio St.3d 285,496 N.E.2d 468
• Parties: , 25 O.B.R. 337 MORGAN et al., Appellants, v. CITY OF CINCINNATI, Appellee.
• Court: Ohio Supreme Court

Page 285

25 Ohio St.3d 285

496 N.E.2d 468, 25 O.B.R. 337

MORGAN et al., Appellants, v. CITY OF CINCINNATI, Appellee.

No. 85-1592.

Supreme Court of Ohio.

Aug. 13, 1986.

Syllabus by the Court

Where a civil service employee shows that a promotion to which he was entitled was delayed as the result of actions taken by a municipality in violation of R.C. 124.44, that employee is entitled to recover back pay and seniority for the period of the delay. (State ex rel. Gibbons v. Cleveland [1984], 9 Ohio St.3d 216, 459 N.E.2d 892, limited.)

Appellants, Robert L. Morgan and Michael L. Hines, are classified civil service employees and sworn members of the Police Division of appellee, city of Cincinnati. Morgan and Hines brought the instant action, alleging that each had been delayed in his promotion to the rank of police captain due to actions taken knowingly and in bad faith by appellee's safety director. Each sought restoration of lost seniority and back pay.

The relevant facts, as stipulated, are as follows:

On November 8, 1975, a vacancy in the rank of police captain was created as the result of the incumbent's resignation. Four days later, a request to fill the vacancy was transmitted to appellee's safety director for forwarding to the civil service commission. At the time, there was no existing eligible list from which to make a promotion to the vacant position. Therefore, by R.C. 124.44, the civil service commission would have been required to hold a competitive examination for the rank of captain within sixty days of the vacancy, January 7, 1976. When the request to fill the vacancy was made, appellants Morgan and Hines each had sufficient time in grade as police lieutenants to qualify to take a timely administered competitive promotional examination for the rank of police captain. However, on November 12, 1975, two police lieutenants who did not have sufficient time in grade to so qualify sent a joint request to delay the examination until after March 10, 1976, so that they could establish the requisite time in grade requirements. As requested, the competitive examination was delayed until March 18, 1976, or one hundred thirty-one days after the vacancy occurred. As a result of the delay, the two previously ineligible lieutenants became eligible to take the exam, along with, inter alia, Morgan and Hines, who would have been eligible to take a timely administered examination.

On May 27, 1976, the civil service commission posted the promotional eligibility list which resulted from the delayed examination. Prior to that date, two additional vacancies had occurred in the rank of police captain, so that three vacancies were immediately available. Jeffrey L. Butler, one of the lieutenants who would have been ineligible to take a timely administered examination, ranked second on the eligibility list; appellant Morgan ranked fourth, and appellant Hines ranked fifth. Both appellants were eventually promoted to the rank of police captain as additional vacancies occurred. However, as stipulated:

"40. Had the competitive promotional examination for the classification (rank) of Police Captain been administered within sixty (60) days of the vacancy created by the November 8, 1975 retirement * * * Jeffrey L. Butler [who placed second on the eligibility list] could not have been certified for promotion to the rank of Police Captain * * *.

"41. If plaintiff Morgan [who placed fourth on the eligibility list] had received promotion to the rank of Police Captain on May 30, 1976, the date Jeffrey L. Butler was promoted to the rank of Police Captain, he would have been entitled to increased earnings totalling * * * [$244.59] and his date of appointment as a Police Captain for seniority purposes would have been May 30, 1976. * * *

"42. If Plaintiff Hines had received promotion to the rank of Police Captain on July 8, 1976, the date Robert L. Morgan was promoted to the rank of Police Captain, he would have been entitled to increased earnings totalling * * * [$2,651.88] and his date of appointment as a Police Captain for seniority purposes would have been July 8, 1976 * * *."

The trial court found that "[t]he facts in the instant case are identical to those in * * * [McCarter v. Cincinnati (1981), 3 Ohio App.3d 244, 444 N.E.2d 1053, which involved the same competitive examination as the instant appeal and in which the court found plaintiff McCarter's promotion to the rank of police captain to have been delayed as the result of bad faith] and based upon that case, the plaintiffs would be entitled to the relief they seek; however, in the interim the law has changed. The Ohio Supreme Court in State ex rel. Gibbons v. Cleveland (Feb. 22, 1984), 9 Ohio St.3d 216, 459 N.E.2d 892 held that a police officer has 'no legal right to the salary and benefits incidental to a rank' prior to his appointment to that rank, 'regardless of the reasons for the failure to make the appointment * * *.' " The court of appeals affirmed, also finding State ex rel. Gibbons, supra, dispositive of the action.

The cause is now before this court upon the allowance of a motion to certify the record.

Swain & Hardin Co., L.P.A., and Donald E. Hardin, Cincinnati, for appellants.

Richard A. Castellini, City Solicitor, and Jerry F. Luttenegger, Cincinnati, for appellee.

CLIFFORD F. BROWN, Justice.

As their sole proposition of law, appellants insist that "[w]hen a municipality denies permanent civil service employees statutory promotional rights as the result of an action taken in bad faith by an official of the municipality, those employees are entitled to awards of retroactive back pay and seniority as a matter of public policy." We will first deal with whether any finding of bad faith was made in the instant cause, then proceed to the merits of this particular appeal. We will conclude with a discussion of the statute of limitations.

I

As a preliminary matter, we note appellee's contention that no actual finding of bad faith appears within the record in the case at bar. Of course, it is basic appellate law that "[a] reviewing court cannot add matter to the record before it, which was not part of the trial court's proceedings * * *." State v. Ishmail (1978), 54 Ohio St.2d 402, 377 N.E.2d 500 , paragraph one of the syllabus. However, upon our review of the record in the instant case, we conclude that the trial court made a finding of bad faith sufficient to permit consideration of the instant appeal on its merits.

In paragraph forty-four of their complaint, appellants specifically alleged that the appellee, "acting through the Safety Director, its employee and agent, acted in bad faith by knowingly ignoring the November 12, 1975 request to fill the existing vacancy, actually concealing the existence of the November 8, 1975 vacancy in the rank of Police Captain for a period in excess of sixty (60) days after the creation of the vacancy; and continuing to conceal the vacancy until enough time had passed to delay the promotional examination for the rank of Police Captain until Lieutenant[s] Butler and McDonald were both eligible to take the promotional examination." The complaint also referred to the appellate decision in McCarter, alleging that McCarter's factual basis was the same as alleged in paragraphs one through forty-four of the instant complaint. The appellate level McCarter opinion was attached to the complaint as Appendix A; Appendix B, a letter from appellants' attorney to the city of Cincinnati Personnel Officer, quoted at length from the trial court's findings in Mc ter, including the above-quoted language which the appellants adopted from the trial court's findings of fact and conclusions of law.

Although the parties' stipulations do not refer directly to the trial court opinion in McCarter, the parties' Stipulation 38 as to exhibits agrees to the admission of the letter which became Appendix B to the complaint, and which, as quoted above, recited the McCarter trial court finding of bad faith.

In any event, this court is free to take judicial notice of the McCarter trial court's finding of bad faith in interpreting the language of both opinions below, which clearly agree that the facts in the instant cause are identical to those in McCarter. Indeed, appellee's assertion that no finding of bad faith appears in the record before us today would appear disingenuous at best.

II

Turning to the issue presented by this appeal, appellants argue that classified civil service promotions delayed as the result of actions taken in bad faith by a municipality should result in an exception to the facially unequivocal language we used in State ex rel. Gibbons v. Cleveland (1984), 9 Ohio St.3d 216, 217, 459 N.E.2d 892: "Appellants argue that no legal right to back pay can be established before an appointment has occurred, regardless of the reasons for the failure to appoint. We agree." (Emphasis added and footnote omitted.)

In Gibbons, we explained that "mandamus does not lie to compel the granting of benefits conferred by the civil service laws unless it has been established that the employee was appointed to the civil service position in question. State ex rel. Lynch v. Taylor (1940), 136 Ohio St. 417 [26 N.E.2d 207, 16 O.O. 577]; State ex rel. Baker v. Wichert (1953), 159 Ohio St. 50 [110 N.E.2d 771, 50 O.O. 26]; State ex rel. Brown v. East Cleveland (1979), 58 Ohio St.2d 232 [392 N.E.2d 1260, 12 O.O.3d 235]; State ex rel. Pennington v. Ross (1980), 63 Ohio St.2d 58 [407 N.E.2d 7, 17 O.O.3d 36]," id., and that, "[s]imilarly, when a civil service appointment has been compelled by way of mandamus, no concomitant order of back pay was included for the period of time before the employee received his appointment. State ex rel. Pell v. Westlake (1980), 64 Ohio St.2d 360 [415 N.E.2d 289, 18 O.O.3d 514]; State ex rel. Wolcott v. Celebrezze (1943), 141 Ohio St. 627 [49 N.E.2d 945, 26 O.O. 194]," id. at 218, 459 N.E.2d 892. Each of the foregoing cases is...