State ex rel. Kenney v. City of Toledo

• Decision Date: 04 May 2018
• Docket Number: No. L–17–1149,L–17–1149
• Citation: 103 N.E.3d 836,2018 Ohio 1737
• Parties: STATE, EX REL. Donald KENNEY, Jr., et al., Appellees/Cross–Appellants v. CITY OF TOLEDO, Appellant/Cross–Appellee
• Court: Ohio Court of Appeals

103 N.E.3d 836

2018 Ohio 1737

STATE, EX REL. Donald KENNEY, Jr., et al., Appellees/Cross–Appellants

v.CITY OF TOLEDO, Appellant/Cross–Appellee

No. L–17–1149

Court of Appeals of Ohio, Sixth District, Lucas County.

Decided: May 4, 2018

Catherine H. Killam, and R. Kevin Greenfield, Toledo, for appellees/cross-appellants.

Dale R. Emch, Law Director, Toledo, and Adam W. Loukx, for appellant/cross-appellee.

DECISION AND JUDGMENT

MAYLE, P.J.

{¶ 1} Appellant/cross-appellee, the city of Toledo, appeals the May 23, 2017 judgment of the Lucas County Court of Common Pleas denying the city's motion for summary judgment, granting summary judgment to appellees/cross-appellants, Donald Kenney Jr., Michael Murphy, Derrick Diggs, George Taylor, and Diana Ruiz Krause (collectively "relators"), on their claim that they are entitled to payments for pension pick-ups, and issuing a writ of mandamus ordering the city to pay relators' pension pickups. Relators filed a cross-appeal of the trial court's denial of their motion for summary judgment and denial of a writ of mandamus on their claim that they are entitled to payments for health insurance premiums. For the following reasons, we affirm.

I. Background and Facts

{¶ 2} Relators were Deputy Police Chiefs with the Toledo Police Department during the period from September 3, 2009, to March 15, 2012. Unlike Police Captains and other command officers, Deputy Police Chiefs are not represented by the Toledo Police Command Officers' Association ("TPCOA").

{¶ 3} During that same time period, a collective bargaining agreement ("CBA") between Toledo and the TPCOA required the city to make two payments relevant to this appeal: (1) the CBA required Toledo to pay (i.e., to "pick up") the entire employee portion (10 percent) of Police Captains' pension contribution to the Ohio Police & Fireman's Disability and Pension Fund, and (2) the CBA required Toledo to pay specified portions of Police Captains' health insurance premiums.

{¶ 4} Under Toledo Municipal Code 2101.70(a), "Police Deputy Chiefs shall automatically receive any pension pick-ups, lump sums, and allowances on the same basis as those provided to Police Captains as part of the Captains' total compensation." Essentially, this dispute centers on whether Toledo Municipal Code 2101.70(a) requires Toledo to pay relators, as Deputy Police Chiefs, the same pension pick-ups and health insurance premiums that were owed to Police Captains under the CBA during the relevant time period.

{¶ 5} Until September 3, 2009, Toledo paid the entire 10 percent share of pension pick-ups for both relators and Police Captains. The city reduced its pension pick-ups for relators to 3 percent beginning on September 3, 2009, because the then-mayor, Michael Bell, declared that Deputy Police Chiefs were exempt employees not subject to the CBA. At that time, Toledo continued to pay the full 10 percent pension pick-up for Police Captains.

{¶ 6} On March 30, 2010, however, Toledo City Council passed Ordinance 103–10, which "declar[ed] the existence of exigent circumstances compelling immediate action" due to the "unforeseen and unforeseeable" sharp decline in the city's general fund revenues. To address this "fiscal crisis," Ordinance 103–10 unilaterally changed certain benefits that Toledo provided to TPCOA members under the CBA, as well as some benefits that Toledo provided to city employees, effective April 1, 2010. Relevant here, the ordinance completely eliminated pension pick-ups for both Police Captains and Deputy Police Chiefs, and increased the amount that Police Captains and Deputy Police Chiefs were required to contribute to the cost of their health insurance. Although these "exigent circumstance" measures were repealed in May 2011, Toledo did not pay relators' pension pick-ups or health insurance premiums on the same basis as TPCOA members until May 12, 2012.

{¶ 7} Ordinance 103–10 sparked a protracted legal battle between Toledo and the TPCOA, including a federal action by the TPCOA against the city alleging that Toledo had violated 42 U.S.C. 1983, Toledo Police Command Officers' Assn. v. Toledo , Case No. 3:12–CV–00787 (N.D. Ohio); another action in Lucas County Common Pleas Court in which the TPCOA successfully received an order compelling Toledo to arbitrate the "exigent circumstances" dispute, which was later upheld by this court in Toledo Police Command Officers' Assn. v. Toledo , 6th Dist. Lucas, 2014-Ohio-4119, 20 N.E.3d 308 ; and yet another action stemming from an unfair labor practice charge that the TPCOA filed against Toledo with the State Employment Relations Board ("SERB"), which was appealed to the Lucas County Common Pleas Court and, ultimately, this court in Toledo Police Command Officers Assn. v. State Employment Relations Board , 6th Dist. Lucas No. L-13-1074, 2014-Ohio-4341, 2014 WL 4824268. In that case, we affirmed the trial court's decision that Toledo had not bargained with the TPCOA in good faith as required by R.C. 4117 and the city was not entitled to unilaterally modify the CBA, that the exigencies cited in Ordinance 103–10 were foreseeable at the time the parties negotiated the CBA, and that the midterm changes should be rescinded, the parties returned to the status quo ante, and TPCOA members should receive equitable relief for the losses they sustained.

{¶ 8} Toledo appealed our decision in case No. L–13–1074 to the Supreme Court of Ohio, but the parties settled their dispute before the Supreme Court decided whether it would accept jurisdiction. Under the settlement agreement, dated November 18, 2014, Toledo agreed to dismiss its appeal to the Supreme Court and pay the full amount of back pension pick-ups and health insurance premiums to TPCOA members. In return, the TPCOA agreed that it would not pursue any arbitration against the city related to the dispute or seek "any costs, interest, attorneys' fees, or further damages in connection with this matter or any other actions relating to the City's ‘exigent circumstances’ decision," and that it would dismiss the pending action against Toledo in federal court.

{¶ 9} On January 27, 2015, Toledo City Council passed Ordinance 40–15 that provided "[t]hat payment of $1,272,165.60 in settlement of the claims against the City of Toledo is hereby approved." The city then made payment to the TPCOA members as specified in the settlement agreement and Ordinance 40–15.

{¶ 10} Kenney claims that while the TPCOA and the city litigated their "exigent circumstances" dispute in various courts and forums, he had multiple conversations with the then-mayor, Michael Collins, and "on each such occasion, [he] assured me that if the outcome was favorable to the Union, the Deputy Chiefs would automatically get whatever the Police Captains got, and I shared his assurances with my fellow Deputy Chiefs." So, after Toledo settled the matter with the TPCOA and made the required payments to the Police Captains, Kenney made a demand to the city for similar payments to Deputy Police Chiefs. The city refused to make such payments, ¹ and relators filed the underlying mandamus action on July 13, 2015.

{¶ 11} In their petition for a writ of mandamus, relators seek a writ compelling the city to pay each of them an amount that includes the 7 percent pension pickups that relators paid from September 3, 2009, to March 31, 2010, and the 10 percent pension pickups that they paid from April 1, 2010, to March 15, 2012. They also seek reimbursement for the portion of their health insurance premiums that they paid from April 1, 2010, to March 15, 2012.

{¶ 12} Both sides moved for summary judgment. The trial court denied the city's motion. It also denied the portion of relators' motion seeking judgment on the issue of health insurance co-premiums because the court found that Toledo Municipal Code 2101.70(a) does not contemplate payment of health insurance premiums. On the issue of pension pick-ups, the trial court granted summary judgment to relators, finding that relators have a clear legal right to receive pension pick-ups in parity with Police Captains for the relevant timeframes, and the city has a clear legal duty to pay the pension pickups.

{¶ 13} Both sides have appealed the trial court's order. The city argues that the trial court erred when it found that it owed relators back pension pick-ups, while relators contend that the trial court erred by not including health insurance premiums in the amount the city owes them.

{¶ 14} In its brief, the city sets forth three assignments of error:

1. THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING SUMMARY JUDGMENT TO THE PLAINTIFF/CROSS–APPELLANT WHERE THE CITY HAD NO CLEAR AND UNAMBIGUOUS DUTY UNDER TOLEDO MUNICIPAL CODE 2101.70(a) TO PAY THEM PENSION PICK–UP CONTRIBUTIONS AFTER SETTLING LITIGATION WITH THE TOLEDO POLICE COMMAND OFFICERS ASSOCIATION.

2. THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING SUMMARY JUDGMENT TO THE PLAINTIFF/CROSS–APPELLANT REQUIRING THE CITY TO PAY MONIIES [sic] TO THEM UNDER THE "BASE ANNUAL SALARIES" PROVISION OF THE TOLEDO MUNICIPAL CODE WHERE THE CLAIM WAS BARRED BY THE STATUTE OF LIMITATIONS.

3. THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING SUMMARY JUDGMENT TO THE PLAINTIFF/CROSS–APPELLANT WHERE THERE WAS AN ISSUE OF FACT AS TO WHETHER THE DOCTRINE OF LACHES BARRED SOME OR ALL OF THEIR CLAIMS.

{¶ 15} Relators set forth one assignment of error in their cross-appeal:

On this uncontested record, the trial court erred in its determination that T.M.C. § 2101.32 and not § 2101.70(a) controlled the insurance co-premiums the City could charge deputy police chiefs, resulting in their being charged a higher co-premium than police captains were required to pay as part of their total compensation.

II. Law and Analysis

{¶ 16} An appellate court reviews summary judgment de novo, employing the same standard as the trial court. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996) ; Lorain Natl. Bank v. Saratoga Apts., 61 Ohio App.3d 127, 129, ...