State ex rel. Bardo v. City of Lyndhurst

• Decision Date: 08 June 1988
• Docket Number: No. 86-504,86-504
• Citation: 524 N.E.2d 447,37 Ohio St.3d 106
• Parties: The STATE, ex rel. BARDO, Appellant, v. CITY OF LYNDHURST et al., Appellees.
• Court: Ohio Supreme Court

Page 106

37 Ohio St.3d 106

524 N.E.2d 447

The STATE, ex rel. BARDO, Appellant, v. CITY OF LYNDHURST et al., Appellees.

No. 86-504.

Supreme Court of Ohio.

Submitted Dec. 8, 1987.

Decided June 8, 1988.

Butler, Clarke & Feighan, Dennis F. Butler and Joseph E. Feighan, Jr., Cleveland, for appellant.

Jacque M. Haines, Law Director, Cleveland, for appellees.

PER CURIAM.

In order for the extraordinary writ of mandamus to issue, this court "must find that the relator has a clear legal right to the relief prayed for, that the respondent is under a clear legal duty to perform the requested act, and that relator has no plain and adequate remedy at law." State, ex rel. Westchester Estates, Inc., v. Bacon (1980), 61 Ohio St.2d 42, 15 O.O.3d 53, 399 N.E.2d 81, paragraph one of the syllabus.

I

In this case, the determinations of relator's right to the promotion and respondents' duties to promote him require the resolution of a conflict between the civil service commission's rules ² and R.C. 124.44, ³ as to the procedural requirements governing promotions of police officers. Essentially, relator argues that respondents are required by R.C. 124.44 to certify and promote the highest-rated person on the current eligibility list when a vacancy occurs. The respondents contend that the city's home rule charter supersedes the statutory provisions, allowing the commission's rules to apply and the commission to certify someone other than the top-rated person on the eligibility list.

The Home Rule Amendment to the Ohio Constitution, Section 3, Article XVIII, provides:

"Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws."

Municipalities exercise the powers of local self-government to the fullest by adopting a charter pursuant to Section 7, Article XVIII of the Ohio Constitution, which section provides:

"Any municipality may frame and adopt or amend a charter for its government and may, subject to the provisions of section 3 of this article, exercise thereunder all powers of local self-government."

The appointment of officers within a city's police force is an exercise of "local self-government" within the meaning of those words as used in the Ohio Constitution. State, ex rel. Canada v. Phillips (1958), 168 Ohio St. 191, 5 O.O.2d 481, 151 N.E.2d 722. The general rule is that in matters of local self-government, if there is a conflict between a charter provision and a statute, the charter provision prevails. State, ex rel. Devine v. Hoermle (1959), 168 Ohio St. 461, 7 O.O.2d 284, 156 N.E.2d 131; State, ex rel. Allison, v. Jones (1960), 170 Ohio St. 323, 10 O.O.2d 417, 164 N.E.2d 417.

The rule of charter supremacy applies only where the conflict appears by the express terms of the charter and not by mere inference. State, ex rel. Ryan, v. Kerr (1932), 42 Ohio App. 19, 12 Ohio Law Abs. 292, 181 N.E. 546, affirmed (1932), 126 Ohio St. 26, 183 N.E. 535. In the absence of express language in a charter showing that it conflicts with the statutes, it is the duty of the courts to harmonize the provisions of the charter with the provisions of the statute relating to the same matter. State, ex rel. Votaw, v. Matia (1932), 43 Ohio App. 279, 12 Ohio Law Abs. 414, 183 N.E. 122, affirmed on other grounds (1932), 125 Ohio St. 598, 183 N.E. 533. While the express language of a charter may abrogate or nullify a state civil service law, such a result cannot be accomplished by a charter provision delegating authority to a municipal commission to nullify the law by adoption of a rule. Id. at 281, 12 Ohio Law Abs. at 415, 183 N.E. at 123.

Civil service commissions acting under home rule charters may be authorized to adopt such rules as may be necessary and proper for the enforcement of the merit system. State, ex rel. Rogers, v. Green (1935), 130 Ohio St. 323, 4 O.O. 355, 199 N.E. 173. Nevertheless, some form of charter authorization is necessary to enable municipalities to adopt ordinances or administrative rules that will prevail over statutory provisions in case of conflict. See State, ex rel. Petit, v. Wagner (1960), 170 Ohio St. 297, 10 O.O.2d 344, 164 N.E.2d 574; Morris v. Roseman (1954), 162 Ohio St. 447, 55 O.O. 255, 123 N.E.2d 419.

The two Lyndhurst Charter provisions relevant to this issue are Section 5 of Article IV and Section 5 of Article V.

Section 5, Article IV sets forth the executive powers of the mayor:

"The Mayor shall be the chief executive officer of the City. He shall supervise the administration of the City's affairs and shall exercise control of all departments and divisions. He shall be the chief conservator of the peace within the City and shall see that all laws and ordinances are enforced therein. He shall be responsible for the preparation and submission of the annual estimate of receipts and expenditures, and of appropriation measures, and shall at all times keep the Council fully advised as to the financial condition and needs of the City. He shall see that all terms and conditions imposed in favor of the City or its inhabitants in any franchise or contract to which the City is a party are faithfully kept and performed. Subject to the other provisions of this Charter and of the Laws of Ohio, the Mayor shall have the power to appoint, promote, transfer, reduce or remove any officer or employee of the City except (a) those required by this Charter to be elected, or (b) those whose terms of office are fixed by this Charter, other than the Director of Law and the Director of Finance. * * * " (Emphasis added.)

Section 5, Article V sets forth the duties of the commission:

"The Civil Service Commission shall provide by rule for the ascertainment of merit and fitness as the basis for appointment and promotion in the service of the City as required by the Constitution of Ohio, and for appeals from the action of the Mayor in any case of transfer, reduction or removal. The action of the Commission on any such appeal shall be final except as otherwise provided by the Laws of Ohio. * * *" (Emphasis added.)

Relator contends that Section 5, Article V gives the commission rulemaking authority only as to the limited matters of ascertainment of merit and fitness for appointment and promotion. Since the charter does not delegate rule-making authority over any other civil service matters, and because the mayor's powers to promote under Section 5, Article IV are subject to the laws of Ohio, relator argues that there is no conflict between the charter and the requirements of R.C. 124.44. Thus, as the highest-rated person on the eligibility list in effect when the vacancy occurred, relator contends he was entitled to be promoted when a vacancy existed at the lieutenant's position, and the respondents had the clear legal duty to promote him.

The respondents argue that Section 5, Article V delegates to the commission comprehensive authority to adopt rules regarding all civil service matters. Since that grant of rule-making authority does not require the commission to act in accordance with the laws of Ohio except with regard to the finality of appeals from certain mayoral actions, there is a conflict between the charter and the statutory civil service requirements. Thus, it is argued, under the rule of charter supremacy, the commission's rules supersede R.C. 124.44, and therefore relator had no legal entitlement to the promotion.

Relator's reliance on State, ex rel. Pell, v. Westlake (1980), 64 Ohio St.2d 360, 18 O.O.3d 514, 415 N.E.2d 289, is misplaced. That case is distinguishable on its facts. The charter provisions at issue in State, ex rel. Pell contained clear and unambiguous language which required the civil service commission to conduct its affairs in accordance with general law as to all matters not in conflict with other charter provisions. The Lyndhurst Charter provision contains no comparable provisions. Instead, the delegation of commission powers refers only to compliance with the requirements of the Ohio Constitution.

The respondents rely on State, ex rel. Canada, supra, in support of their contention that the commission's rule should prevail. Respondents argue that Canada establishes the general proposition that a city with a home rule charter may adopt any rules for "appointment and promotion," which will prevail over conflicting state statutes. However, the rule upheld in Canada was expressly set forth in the charter. Canada did not examine the issue of a commission's authority to adopt rules in the absence of clear and express charter language delegating rule-making authority.

State, ex rel. Ryan, supra, held that express charter language is required in order to supersede conflicting statutory civil service provisions. State, ex rel. Votaw, supra, held that abrogation or nullification of a state civil service law cannot be accomplished by a charter provision delegating rule-making authority to the civil service commission.

We believe that the holdings of State, ex rel. Ryan and State, ex rel. Votaw are consistent with the purpose of the home rule provisions of the Ohio Constitution. Although the Constitution gives municipalities the authority to adopt home rule, local self-government, the exercise of those powers by the adoption of a charter should clearly and expressly state the areas where the municipality intends to supersede and override general state statutes. Accordingly, we hold that express charter language is required to enable a municipality to exercise local self-government powers in a manner contrary to state civil service statutes.

Because the Lyndhurst Charter

does not contain a clear and express exercise of home rule powers specifically authorizing the commission to adopt rules with regard to certification of names from promotion lists, neither the charter nor the commission's rules supersede the requirements...