State ex rel. Bednar v. N. Canton

• Decision Date: 11 May 1994
• Docket Number: No. 93-628,93-628
• Citation: 631 N.E.2d 621,69 Ohio St.3d 278
• Parties: The STATE EX REL. BEDNAR, Appellee and Cross-Appellant, v. City of NORTH CANTON et al., Appellants and Cross-Appellees.
• Court: Ohio Supreme Court

Page 278

69 Ohio St.3d 278

631 N.E.2d 621

The STATE EX REL. BEDNAR, Appellee and Cross-Appellant, v. City of NORTH CANTON et al., Appellants and Cross-Appellees.

No. 93-628.

Supreme Court of Ohio.

Submitted March 1, 1994.

Decided May 11, 1994.

Greg Bednar, appellee and cross-appellant, was a police officer in the city of North Canton. On or about July 5, 1990, he was certified second on the eligibility list for the position of lieutenant after having taken an examination certified by the North Canton Civil Service Commission. That eligibility list was extended until July 5, 1992. On or about June 4, 1991, the person certified first on the eligibility list was promoted to lieutenant, leaving Bednar first on the eligibility list. On or about June 2, 1992, a lieutenant retired from the force. Thereafter Bednar's name was certified to the "appointing authority" for promotion, but the mayor did not appoint Bednar to the position because he believed that the vacancy could be filled at his discretion.

Bednar filed a complaint for a writ of mandamus in the Court of Appeals for Stark County seeking to compel the city and its officials, appellants and cross-appellees (the "city"), to appoint him to the lieutenant's position and also seeking back pay to June 2, 1992 and attorney fees. The court of appeals allowed the writ of mandamus compelling Bednar's appointment, but denied his request for back pay and attorney fees.

The cause is before the court upon an appeal and cross-appeal as of right.

Schulman, Mestel & Burick Co., L.P.A., and Allen Schulman, Jr., Canton, for appellee and cross-appellant.

Roetzel & Andress and Thomas A. Treadon, Canton, for appellants and cross-appellees.

PER CURIAM.

For the following reasons, we affirm the judgment of the court of appeals in part and reverse it in part.

R.C. 124.44 states in part:

"Whenever a vacancy occurs in the position above the rank of patrolman in a police department, * * * [and there is an eligibility] list * * * the [civil service] commission shall, where there is a vacancy, immediately certify the name of the person having the highest rating, and the appointing authority shall appoint such person within thirty days from the date of such certification."

Bednar relies on this statute to mandate his appointment. The city contends that its home rule authority under Section 3, Article XVIII, Ohio Constitution, and implemented by Section 1.02 of its charter and Ordinance No. 21-92, permits it to deviate from R.C. 124.44. According to the city, Section 1.02 of the charter states:

"The municipality shall have all powers of local self-government and home rule and all powers possible for a municipality to have under the Constitution of the State of Ohio. The municipality shall have all powers that now or hereafter may be granted to municipalities by the laws of the State of Ohio. All such powers shall be exercised in the manner prescribed in this charter, or if not prescribed therein, in such manner as shall be provided by ordinance of council."

Ordinance No. 21-92 provides in part:

" 'Authorized Manpower:

"That the total number of persons to be employed by the Police Department and the classifications set forth herein of the Police Department of the City of North Canton, Ohio, be, and it shall not exceed the following:

" * * *

"Police Lieutenant 6[']"

The city also relies on State ex rel. E. Cleveland Assn. of Firefighters v. E. Cleveland (1988), 40 Ohio St.3d 222, 533 N.E.2d 282. In that case, home rule authority prevailed over R.C. 124.46, which required the appointment of the examinee with the highest examination grade in case of a vacancy in the rank of lieutenant on the fire department. We held that East Cleveland's " * * * express charter language enables the city to exercise local self-government powers in a manner contrary to state civil service statutes. Charter of the city of East Cleveland, Sections 28-31." Id. at 224, 533 N.E.2d at 284.

In the instant case, the court of appeals found that Ordinance No. 21-92 lacked the specificity that was required by State ex rel. Bardo v. Lyndhurst (1988), 37 Ohio St.3d 106, 524 N.E.2d 447. In fact, Bardo required specificity in the charter itself to invoke home rule authority:

"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. [43 Ohio App.] at 281, 12 Ohio Law Abs. at 415, 183 N.E. at 123." 37 Ohio St.3d at 109, 524 N.E.2d at 450.

However, the East Cleveland Charter, which we found sufficient to authorize the ordinance that superseded the state statute in that case, is more specific than Section 1.02 of the North Canton Charter, quoted above, only insofar as it reserves home rule authority specifically directed to the classified service:

"SECTION 30. APPOINTMENTS AND REMOVALS.

" * * *

"Except as herein otherwise provided, ordinances shall be passed to fix the powers and duties of the Civil Service Commission and to prescribe rules and regulations governing the classified service."

Thus, the East Cleveland and North Canton Charters differ in that the former reserved home rule authority specifically directed to ordinances affecting the classified service whereas the latter reserved such authority generally directed to all powers of local self-government.

Appointment of police officers is a " 'matter of local self-government' " delegated to all municipal corporations by Section 3, Article XVIII, Ohio Constitution. State ex rel. Canada v. Phillips (1958), 168 Ohio St. 191, 194, 5 O.O.2d 481, 483, 151 N.E.2d 722, 725, and paragraph one of the syllabus. Since a municipal corporation's authority over matters of local self-government derives directly from the Constitution, we find it competent for the people of a municipal corporation to reserve to their legislative authority any residual home rule powers not exercised directly in the charter. Such a reservation makes practical sense. Many "matters of local self-government" are, in fact, matters of detail and procedure that are out of place in a charter, which is comparable to a local constitution. Perrysburg v. Ridgway (1923), 108 Ohio St. 245, 253, 140 N.E. 595, 597.

Moreover, we perceive no legal difference between a specific reservation of such power, as in the East Cleveland Charter, and a general reservation, as in the North Canton Charter. Accordingly, we hold that Section 1.02 of the North Canton Charter sufficiently reserved home rule authority to permit enactment of an ordinance at variance with R.C. 124.44, and we limit Bardo, supra, to cases involving delegation of authority to municipal civil service commissions. Cf. Treska v. Trumble (1983), 4 Ohio St.3d 150, 4 OBR 394, 447 N.E.2d 1283 (state statute [R.C. 124.32] prescribing layoff procedures prevails over conflicting ordinance of noncharter municipality).

The question remains whether Ordinance No. 21-92 does, in fact, contradict R.C. 124.44. The ordinance merely states that the police department shall not exceed six lieutenants; R.C. 124.44 prescribes mandatory procedure to be followed when a vacancy occurs in the rank of lieutenant. East Cleveland involved such an ordinance, but we permitted variation from the statute in part because of another ordinance that plainly stated:

"The City Manager shall have full authority to leave positions vacant or to combine the duties of two positions under a single employee whenever he deems it in the best interest of the City." 40 Ohio St.3d at 224, 533 N.E.2d at 285, fn. 2.

By itself, an ordinance limiting the force to a certain number of lieutenants does not sufficiently indicate an intent to alter the mandatory appointment procedures set forth in R.C. 124.44. See Zavisin v. Loveland (1989), 44 Ohio St.3d 158, 541 N.E.2d 1055, in which we held in the syllabus:

"The procedure for promotion provided in R.C. 124.44 is mandatory upon the occurrence of a vacancy in a position above police patrolman, and the vacant position must be filled by appointment before it is abolished pursuant to R.C. 124.37, which presupposes the existence of an incumbent."

In the instant case, it appears from the second sentence of Section 1.02 of the North Canton Charter that state law prevails when the charter and ordinances are silent. Ordinance No. 21-92 does not contradict the appointment procedures prescribed by R.C. 124.44, and, according to Zavisin, such procedures are "mandatory upon the occurrence of a vacancy." Therefore, in the instant case Bednar was entitled to be appointed pursuant to such statute, and the decision of the court of appeals so holding is affirmed.

On cross-appeal, Bednar first claims that he is also entitled to back pay with interest, regardless of whether the city acted in bad faith. However, if bad faith is required, he argues that the city is guilty of bad faith. The court of appeals denied back pay, and thus interest, finding no bad faith by the city.

Bednar cites cases in which a public employee is reinstated following a wrongful dismissal, in which we have allowed a mandamus action for back pay, "provided the amount recoverable is established with certainty." State ex rel. Martin v. Columbus (19...