State ex rel. Fern v. Cincinnati
| Decision Date | 24 June 2005 |
| Docket Number | No. C-040570.,C-040570. |
| Citation | 161 Ohio App.3d 804,832 N.E.2d 106,2005 Ohio 3168 |
| Parties | STATE of Ohio ex rel. FERN, Appellee, v. CITY OF CINCINNATI et al., Appellants. |
| Court | Ohio Supreme Court |
Gary R. Lewis and Gary R. Lewis Co., L.P.A., for appellee.
Julie McNeil, Cincinnati City Solicitor, and Richard Ganulin, Assistant City Solicitor, for appellants.
{¶ 1} Defendants-appellants, the city of Cincinnati, Cincinnati City Manager Valerie Lemmie, and the Cincinnati Civil Service Commission (collectively, "the city"), appeal the trial court's grant of summary judgment in favor of plaintiff-appellee Michael Fern. We reverse.
{¶ 2} Fern, a Cincinnati police sergeant, took a promotional exam for Cincinnati Police lieutenant. After receiving the results, Fern challenged the grading of the exam. The Civil Service Commission refused Fern's request for a hearing, stating that under this court's decision in Steers v. Cincinnati,1 challenges to specific exam questions by candidates were not permitted. Fern then filed an original action for a writ of mandamus and also appealed the commission's ruling to the common pleas court. The trial court granted summary judgment to Fern and retroactively promoted him to police lieutenant.
{¶ 3} We agree with the trial court that Steers does not control the outcome of this case. Furthermore, we hold that Steers is no longer good law and overrule it. We hold that the Civil Service Commission can and should address the merits of a challenge by a police examinee to a police promotional exam. But because it is the commission's role to address such challenges, and because the trial court did not have before it the complete examinations of all applicants who took the promotional exam with Fern, we reverse the trial court's order granting summary judgment.
{¶ 4} We remand the case to the Civil Service Commission for it to consider the merits of Fern's challenge of two specific questions on the exam. And should the commission makes any changes to the answer key for the exam, we order the commission to regrade all examinees' scores and to produce a new promotion list that reflects the changes for all examinees.
{¶ 5} In 2003, Fern, a Cincinnati police sergeant, took the promotional exam for the position of lieutenant, along with at least 45 other examinees. The exam was administered and graded by the Cincinnati Civil Service Commission. The resulting promotional eligibility list showed that Fern had placed ninth on the exam.
{¶ 6} After reviewing his examination and answer key, Fern told the commission that he believed his test had been inaccurately graded. Specifically, Fern challenged the commission's answers for five exam questions.
{¶ 7} The commission told Fern that his test results would not be changed, so Fern filed an appeal with the commission. Rather than holding a hearing, the commission simply informed Fern that, under the Steers case, challenges to specific exam questions by candidates were not permitted. Believing that it lacked jurisdiction to consider the appeal, the commission simply denied it.
{¶ 8} Fern appealed the commission's decision to the common pleas court. Unsure of whether the commission's decision was a final, appealable order, Fern also filed an original action for a writ of mandamus in the common pleas court.
{¶ 9} At this point, despite its assertion that, under Steers, it could not consider any challenges to specific exam questions, the commission did just that. Margaret Key, a senior human-resource analyst employed in the commission's human-resources department, reviewed the five questions in dispute. She determined that for two questions, two answers could be correct and gave Fern credit for two additional correct responses. Upon further review, Key determined that a third question in dispute also had two correct answers. Therefore, the commission gave Fern credit for three of the five disputed questions.
{¶ 10} In an affidavit, Key asserted that she regraded the promotional exam for all examinees, taking into account the multiple correct answers on the three questions. Key determined that after the changes, Fern would have ranked fifth on the promotion-eligibility list. Because only four sergeants were promoted from this particular eligibility list before its expiration, the commission determined that Fern still did not qualify for promotion.
{¶ 11} At the hearing on both parties' summary-judgment motions, the trial court apparently determined that Steers did not control the outcome and that Steers did not prevent the city from addressing Fern's challenge to the exam. The bulk of the hearing was spent discussing the merits of the two remaining disputed questions.
{¶ 12} Fern asserted that a finding that he had either one of the two disputed questions correct would make him eligible for promotion. The city disagreed with that assertion, arguing that Fern's calculations selectively adjusted his own score without regrading the exam for all examinees. The city urged the court to remand the case to the commission to allow it to consider the merits of Fern's challenge and to regrade the exams for all examinees should any further changes be made.
{¶ 13} Stating that it would be a "waste of time" to remand the case to the commission, the trial court agreed with Fern that one of the remaining disputed questions was unclear. The court then granted Fern's summary-judgment motion and promoted him to police lieutenant, retroactively and with full back pay.
{¶ 14} When Fern first challenged his grade on the promotional exam, the city's position was that under Steers, challenges to specific exam questions by candidates were not permitted. Steers is a 1992 decision by this court that, upon examination, is no longer good law.
{¶ 15} Steers involved the Cincinnati Police promotional exam for lieutenant given in 1987. After administering the exam, the commission conducted hearings, referred to as "gripe sessions," that allowed examinees the opportunity to voice their protests about the examination. As a result of these hearings, the commission made various changes to the examination, including the deletion of 20 questions and the allowance of multiple answers to three other questions.2
{¶ 16} Daniel Steers, an examinee, saw the commission's changes reduce his standing on the promotion-eligibility list from first or second to 15th place. Steers sued the city and the commission, arguing that the commission's actions were unconstitutional and unreasonable. Steers sought a declaratory judgment and an order enjoining the appointment of certain police officers. The trial court granted summary judgment for Steers, and this court affirmed.3
{¶ 17} In Steers, we began our analysis by noting that the Ohio statutes pertaining to the civil service controlled the powers of the commission unless the city's charter provided otherwise.4 For that assertion, we relied on the Ohio Supreme Court's discussion in State ex rel. Bardo v. Lyndhurst.5
{¶ 18} In Bardo, the Ohio Supreme Court stated the general rule that "in matters of local self-government, if there is a conflict between a charter provision and a statute, the charter provision prevails."6 The Bardo court then refined the general rule, stating, 7
{¶ 19} In Steers, we discussed that the commission had promulgated Section 6, Rule XI, which set forth procedures for objecting to promotional examinations administered to the police and fire departments. We then noted that R.C. 124.45, which pertains to promotional exams for firefighters, provided that examinees could protest the grading of their exams within five days, while R.C. 124.44, pertaining to police-officer promotional exams, had no corresponding provision concerning an examinee's ability to protest the police exam. We then stated that the city and the commission had failed to cite any authority within the city's charter that authorized the commission to adopt Rule XI.
{¶ 20} As a result, the commission rule that detailed how a police officer should challenge his grade on a promotional exam was deemed unconstitutional and apparently struck down in reliance on Bardo.8 The trial court later ordered the commission to restore 17 questions to the promotional exam.9 It also ordered the commission to regrade the exam "based on the original answer grid, without regard for any action taken by the Cincinnati Civil Service Commission as a result of `gripe sessions,'" and to establish a new promotion-eligibility list.10
{¶ 21} Since the Steers case, the city's position when faced with a challenge to a police promotional exam from an examinee has been that it is not permitted to consider the challenge for lack of jurisdiction. The result is that even when presented with blatant evidence of errors in the questions or the grading of an exam, the city cannot rectify its mistakes and adjust examinees' scores.
{¶ 22} In this case, the city is put in the unenviable position of relying on Steers to prevail, yet practically conceding that Steers should be overruled. As the losing party in Steers, the city no doubt does not favor the continuation of a decision that has essentially tied its hands in how it can conduct its police promotional exams.
{¶ 23} On the other hand, Fern does not advocate the overruling of Steers. He argues instead that Steers can be distinguished. Fern contends that Steers prohibited only ...
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