Sentinel Police Association and Arthur Harmon, Burnett E. Williams, Jerry Kyles, George Edmonds, Lonnie Michael Cotton, Freddie F. Stonestreet, Ronald Twitty, and Leynorice Johnson v. City of Cincinnati, 96-LW-1301
| Decision Date | 17 April 1996 |
| Docket Number | C-940610,96-LW-1301 |
| Parties | SENTINEL POLICE ASSOCIATION and ARTHUR HARMON, BURNETT E. WILLIAMS, JERRY KYLES, GEORGE EDMONDS, LONNIE MICHAEL COTTON, FREDDIE F. STONESTREET, RONALD TWITTY, and LEYNORICE JOHNSON, Plaintiffs-Appellees, v. CITY OF CINCINNATI, Defendant-Appellee, and QUEEN CITY LODGE NO. 69, FRATERNAL ORDER OF POLICE, Defendant-Appellant. APPEAL |
| Court | Ohio Court of Appeals |
Civil Appeal From: Hamilton County Court of Common Pleas
Alphonse A. Gerhardstein, Esq., No. 0032053, 1409 Enquirer Building, 617 Vine Street, Cincinnati, Ohio 45202, for Plaintiffs-Appellees,
Fay D. Dupuis, City Solicitor, No. 0020782, and Julie F. Bissinger, Esq., No. 0012055, Room 214, City Hall, 801 Plum Street, Cincinnati, Ohio 45202, for Defendant-Appellee City of Cincinnati,
Hardin & Hill, Donald E. Hardin, Esq., No. 0022095, and Stephen S. Lazarus, Esq., No. 0041368, Suite 520, The Grand Baldwin, 655 Eden Park Drive, Cincinnati, Ohio 45202, for Defendant-Appellant Queen City Lodge No. 69, Fraternal Order of Police.
Appellant Queen City Lodge No. 69, Fraternal Order of Police ("FOP"), appeals the trial court's refusal to enjoin permanently the promotions of certain members of the Cincinnati Police Division. Although the record reflects that the trial court erred in one of the respects cited in the FOP's assignments of error, that error was not prejudicial in the context of how the case was ultimately decided below, and so the judgment of the trial court is affirmed.
This case stems from an affirmative action consent decree entered into by the parties in 1987. The validity of the consent decree is not at issue in this case. Rather, the facts central to the appeal are the following. In a memorandum dated April 12, 1994, Cincinnati Safety Director William Gustavson ("the safety director") recommended the addition of one captain to the current complement. The additional captain would oversee and coordinate the activities of the Police Park Section and the Police Traffic Section. In the memorandum, which was directed to the Law and Public Safety Committee of the Cincinnati City Council, the safety director stated that the cost of the additional captain could be absorbed through position vacancy savings and management efficiencies. The safety director acknowledged that in subsequent budget years, the Cincinnati City Council ("city council") would have to increase the personnel budget of the police department to fund the new position. Also, the addition of a captain would trigger the "double-fill" provision[1] of the consent decree.
In a report dated April 25, 1994, the safety director recommended the additional position to the full city council. The April 12 memorandum was incorporated into this report. The city council unanimously "approved and filed"[2] the report on April 26, 1994. The same day, City Manager John Shirey increased the complement for captain from fifteen to sixteen. A vacancy was created, and Lieutenant Dennis Rees was promoted to captain as the highest ranking qualified candidate on the promotional eligible list. The list was due to expire on April 26, 1994, at 11:59 p.m. Lieutenant Ronald Twitty, as the highest ranking minority officer on the promotional eligible list, was also promoted pursuant to the double-fill provision. On May 11, 1994, the city council passed an emergency ordinance, No. 157-1994, to reaffirm its actions taken on April 26. The ordinance stated that "the authorization contained herein is hereby declared to be effective retroactively to April 26, 1994, simultaneously with the approved and filed motion adopted on that date[.] * * *" In order to fill the vacancies left by the promotions of Rees and Twitty, Kenneth Finan and Michael Jones, the highest ranking officers on the promotional eligible list that had expired on April 26, 1994, were promoted to lieutenant on May 19, 1994. On the same day, Rees, Twitty, Finan, and Jones took their oaths of office, despite the efforts of the FOP to enjoin the ceremony. The FOP requested that the promotions of Rees, Twitty, Finan, and Jones be permanently enjoined from occurring. The trial court denied the FOP's motion for a permanent injunction, and the FOP filed this appeal.
Because the first and third assignments of error are related, we will consider them together. In its first assignment of error, the FOP asserts that the trial court erred in determining that the city council was not required to pass an ordinance to change the complement of sworn positions.
R.C. 737.05 states, in pertinent part:
The police department of each city shall be comprised of a chief of police and such other officers, patrolmen, and employees as the legislative authority thereof provides by ordinance.
Similarly, Cincinnati Administrative Code Article IV, Section 3, provides in part:
There is hereby established within the Department of Safety, a police force. The police force shall consist of a chief of police and such assistants, officers and employees as may be authorized by or pursuant to ordinance.
The FOP argues that because city council had only "approved and filed" the report of the safety director before the promotional eligible lists had expired, the promotions are invalid. According to the FOP, city council must pass an ordinance to change the size of the complement. Appellees, however, argue that passage of an ordinance is not necessary to change the complement.
Id. at 18, 619 N.E.2d at 50. Appellees' reliance on Smith is not well placed. Smith did not deal directly with the requirement of an ordinance to change the complement. In fact, in two places in the recitation of facts, this court referred to "the appellees" changing the complement without stating how that change was accomplished. Id. at 17, 619 N.E.2d at 49. Without a clearer statement in the decision, we conclude that Smith does not stand for the proposition that the city may change complements without passing ordinances.
The city further relies on McCarter v. Cincinnati (1981), 3 Ohio App.3d 244, 248, 444 N.E.2d 1053, 1057, in which this court stated the following:
The position was clearly and unquestionably "established" by the city manager acting within the powers conferred on him by the City Charter. The absence of an ordinance fixing the number of captains in the police division is immaterial. Once established, the position continued in the existence until duly abolished or eliminated.
However, the McCarter case dealt with the retirement of an officer, not an increase in the complement strength. Therefore, the decision is inapposite to the case at bar.
We conclude that R.C. 737.05 and Cincinnati Administrative Code Article IV, Section 3, clearly require that the city pass an ordinance to change the complement. The trial court erred in concluding otherwise. However, because the trial court also concluded that the ordinance passed on May 11, 1994, corrected any deficiencies, the error cited in the FOP's first assignment did not, standing alone, give rise to prejudice, and so we turn our attention to the third assignment of error.
In its third assignment of error, the FOP states that the trial court erred in determining that the ordinance passed on May 11, 1994, could retroactively cure council's failure to pass an ordinance on April 26, 1994. The FOP argues that Ordinance No. 157-1994 is an ex post facto law, prohibited by Article I, Section 10, Ohio Constitution. However, the prohibition against ex post facto laws applies only to the criminal laws. See, generally, Calder v. Bull (1798), 3 Dallas 386. Ordinance No. 157-1994 is in no way a criminal ordinance, so its passage did not violate Article I, Section 10, Ohio Constitution.
Article II, Section 28, Ohio Constitution, applies to this case. That section provides as follows:
The general assembly shall have no power to pass retroactive laws, or laws impairing the obligation of contracts; but may, by general laws, authorize courts to carry into effect, upon such terms as shall be just and equitable, the manifest intention of parties, and officers, by curing omissions, defects, and errors, in instruments and proceedings, arising out of their want of conformity with the laws of this state.
See also, Goshorn v. Purcell (1860), 11 Ohio St. 641; Village of Moscow v. Moscow Village Council (1984), 29 Ohio Misc.2d 15, 504 N.E.2d 1227. The manifest...
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