State ex rel. Int'l Ass'n of Fire Fighters v. Barbish
| Decision Date | 27 June 2022 |
| Docket Number | 2021-L-103 |
| Citation | 192 N.E.3d 548 |
| Parties | STATE of Ohio EX REL. the INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, Local 1536, AFL-CIO, Relator-Appellant, v. John BARBISH, in His Official Capacity as Mayor and Director of Public Safety, et al., Respondents-Appellees, James G. Powers, Intervenor-Appellee. |
| Court | Ohio Court of Appeals |
Joseph W. Diemert, Jr., Thomas M. Hanculak, and Mark V. Guidetti, Diemert & Associates Co., LPA, 1360 SOM Center Road, Cleveland, OH 44124 (For Relator-Appellant).
John D. Latchney, Hanna Campbell & Powell, LLP, 3737 Embassy Parkway, Suite 100, Akron, OH 44333 (For Respondents-Appellees).
Alexander L. Ewing and Charles B. Galvin, Frost Brown Todd LLC, 9277 Centre Pointe Drive, Suite 300, West Chester, OH 45069, and Stuart G. Torch, Elfvin, Klingshirn, Royer & Torch, LLC, 4700 Rockside Road, Suite 530, Independence, OH 44131 (For Intervenor-Appellee).
{¶1} Relator-appellant, International Association of Fire Fighters, Local 1536, appeals from the judgments of the Lake County Court of Common Pleas, granting partial judgment on the pleadings and summary judgment in favor of respondents-appellees, John Barbish, the City of Wickliffe Civil Service Commission, and the City of Wickliffe, and intervenor-appellee, James Powers. For the following reasons, we affirm the decision of the lower court.
{¶2} On September 21, 2020, Local 1536 filed a Complaint for Declaratory Judgment, Permanent Injunction, and Petition for Writ of Mandamus against Barbish, the City of Wickliffe Civil Service Commission, and the City of Wickliffe, which was subsequently amended. The Complaint alleged that the Wickliffe Fire Chief, James Powers, retired on January 6, 2020, and was rehired the next day by Mayor Barbish. Local 1536 sent letters to the city alleging this violated civil service laws requiring that Powers’ vacancy be filled through a competitive promotional examination process. Local 1536 contended that the failure to follow this process deprived eligible fire captains from being considered for the position. It requested a declaratory judgment that the vacancy created when Powers retired and any resulting vacancies must be filled by a competitive examination process in compliance with the law and that Powers does not properly hold the position of fire chief. It sought a permanent injunction prohibiting non-competitive means for filling vacancies within the Division of Fire. It also requested a writ of mandamus ordering the mayor to declare a vacancy, administer an examination, and make an appointment to fill the vacancy.
{¶3} Barbish and Wickliffe filed an Answer on October 5, 2020. On November 13, 2020, Powers filed a Motion to Intervene, which was granted by the trial court.
{¶4} On February 5, 2021, Barbish and Wickliffe filed a Motion for Partial Judgment on the Pleadings, seeking dismissal of the Petition for Writ of Mandamus due to the existence of an adequate remedy at law, and dismissal of the claims for punitive damages and attorney's fees.
{¶5} The parties filed joint stipulations of fact on February 26, 2021. The stipulations established, in pertinent part, the following facts:
{¶6} The Division of Fire is part of the Wickliffe Department of Public Safety, which includes a Chief of Fire, four captains, three lieutenants and various grades of firefighters. The Chief of Fire controls the day-to-day administration of the Division of Fire. These employees, including the chief, are members of the competitive classified civil service who are subject to the civil service competitive examination process for appointments and promotions. The chief is not a "bargaining unit" employee subject to the collective bargaining agreement between the city and Local 1536. The collective bargaining agreement has a "management rights clause" which states that the employer retains the right to "determine the basis for selection, retention and promotion of employees to or for positions not within the bargaining unit established" by the bargaining agreement.
{¶7} Powers retired from his employment as the Chief of Fire on January 6, 2020. Mayor Barbish and the city submitted paperwork to the Ohio Police and Fire Pension Fund verifying that Powers retired on January 6 and was rehired by Barbish on January 7, 2020. He was sworn in by Barbish on January 7. The decision to allow Powers "to retire and be immediately rehired was not made based on any alleged or actual delinquency or misconduct on the part of Mr. Powers; not due to any alleged or actual injury or * * * disability of Mr. Powers." On January 6, 2020, Barbish issued a memorandum to the city's finance director, directing her to assist Powers with his pension and also directing Powers receive a retirement package with sick time at his pre-retirement rate, totaling over $50,000, that all benefits and compensation will remain the same as prior to his retirement, and setting a new salary of 10 percent less than his 2020 salary at the rate of $97,965. On February 10, 2020, Barbish presented an emergency ordinance to city council which authorized the finance director to compensate the person performing duties of fire chief at the rate of $97,965 per year. At the council meeting, Barbish represented that Powers’ retirement and rehiring was "an administrative change" and Powers "did not vacate the position." The ordinance was adopted. No process was initiated under the civil service rules as is required when there is a vacancy for the Fire Chief position. Local 1536 sent a February 7, 2020 e-mail to the Civil Service Commission expressing its belief there was a vacancy, with which the Commission disagreed. Local 1536 sent a letter to the Law Director on May 18, 2020, stating that the vacancy should be filled via a competitive promotional examination and a separate September 8 letter requesting prosecution of Barbish for refusing to declare a vacancy. No such action was taken. Powers remained in the Fire Chief position as of the date of the stipulations.
{¶8} The parties also stipulated that approximately four captains employed by the Wickliffe Fire Department are eligible to take the promotional exam and approximately three lieutenants would be eligible to take the exam to replace a promoted captain.
{¶9} On April 5, 2021, Barbish and the city filed a Motion for Summary Judgment. It argued, inter alia, that there was a "contractual right to self-determine" the basis for retaining Powers as chief and that there was not a true opening or vacancy to fill. Powers’ Motion for Summary Judgment similarly alleged a lack of a vacancy given his retirement and rehire on the next day. On the same date, Local 1536 filed its Motion for Summary Judgment. It alleged it was entitled to summary judgment since all promotions within fire service and a vacancy in the position of fire chief must be effectuated through competitive examination.
{¶10} In a June 14, 2021 Opinion and Journal Entry, the lower court granted the request for partial judgment on the pleadings as to punitive damages and attorney's fees, finding these were not recoverable. It denied the request on the claim for writ of mandamus, finding it to be more appropriately addressed through the motion for summary judgment.
{¶11} The court issued an August 26, 2021 Opinion and Judgment Entry granting appellees’ motions for summary judgment and denying Local 1536's motion. It concluded that there had been no vacancy in the fire chief position and, thus, the requirements to fill such vacancy were never triggered.
{¶12} Local 1536 timely appeals and raises the following assignments of error:
{¶13} "[1.] The Trial Court erred in granting Appellee's Motion for Summary Judgment and for denying Appellant's Motion for Summary Judgment because no question of material fact existed and Appellant was entitled to judgment as a matter of law.
{¶14} "[2.] The Trial Court erred in granting Appellees’ Motion for Partial Judgment on the Pleadings denying recovery of punitive damages.
{¶15}
{¶16} In its first assignment of error, Local 1536 argues that the lower court erred in its ruling on summary judgment because it failed to properly apply the law as to whether there was a vacancy that was subject to the competitive promotion process.
{¶17} Pursuant to Civil Rule 56(C), summary judgment is proper when (1) the evidence shows "that there is no genuine issue as to any material fact" to be litigated, (2) "the moving party is entitled to judgment as a matter of law," and (3) "it appears from the evidence * * * that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence * * * construed most strongly in the party's favor."
{¶18} A trial court's decision to grant summary judgment is reviewed by an appellate court under a de novo standard of review. Grafton v. Ohio Edison Co. , 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). "A de novo review requires the appellate court to conduct an independent review of the evidence before the trial court without deference to the trial court's decision." Peer v. Sayers , 11th Dist. Trumbull No. 2011-T-0014, 2011-Ohio-5439, 2011 WL 5028693, ¶ 27.
{¶19} As an initial matter, we note that Barbish and Wickliffe argue in their appellees’ brief that Local 1536 lacked standing to bring a mandamus claim on behalf of the potentially aggrieved firefighters who may be entitled to a promotion. The question of standing involves whether the party who brought the claim "has alleged such a personal stake in the outcome of the controversy, as to ensure that the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution." State ex rel. Ohio Academy...
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