State ex rel. Ohio Patrolmen's Benevolent Ass'n v. City of Warren, 2015-T-0017

Citation150 N.E.3d 451,2019 Ohio 5046
Decision Date09 December 2019
Docket NumberNO. 2015-T-0017,2015-T-0017
Parties STATE of Ohio EX REL. OHIO PATROLMEN'S BENEVOLENT ASSOCIATION, et al., Relators, v. CITY OF WARREN, Ohio, et al., Respondents.
CourtUnited States Court of Appeals (Ohio)

CYNTHIA WESTCOTT RICE, J.

{¶1} This original action in mandamus is presently before this court for final determination of a petition for writ of mandamus, filed by relators Ohio Patrolmen's Benevolent Association and five union members who are currently employed by the city police department against respondents, the City of Warren, Ohio, ("City") its Civil Service Commission, and its Director of Service and Safety. In a previous judgment, this court concluded the City had a legal duty to fill vacancies in its police department through promotions. The matter was appealed to the Supreme Court of Ohio and the Court determined the judgment was not a final, appealable order because the issue of damages in the form of backpay had not been resolved. Accordingly, the original judgment was interlocutory and, after further consideration of the issue, we conclude the City had no legal duty to fill the positions because they were properly abolished by ordinance and thus there was no vacancy to fill. We therefore hold relators' petition is denied and the matter dismissed.

{¶2} Our review of relators' mandamus petition and respondents' answer demonstrates the following basic facts are not in dispute. The City does not have a city charter; therefore, it must abide by the various provisions in the Ohio Revised Code governing civil service, including R.C. 124.44, which governs promotions. Throughout the years, the City has enacted ordinances that delineate the "authorized strength" of its police department. In a 1996 ordinance, the department's manpower was set at the following levels: 1 police chief; 3 captains; 6 lieutenants; 10 sergeants; and 59 police officers.

{¶3} In November 2014, the City enacted a new "authorized strength" ordinance in which it sought to abolish three positions within the police department. Specifically, the ordinance provided that the number of captains would be decreased from three to two, the number of lieutenants from six to five, and the number of sergeants from ten to nine. By the terms of the resolution, the reduction in staffing levels did not occur at the time the ordinance was passed, but was to be effective by attrition, i.e., upon the retirement of the incumbent officers.

{¶4} Because the reduction was not effective upon passage of the ordinance, none of the respondents took any overt acts to reduce the department's manpower by three positions; i.e., the City did not layoff any member of the staff. Then in late December 2014 Captain Timothy Roberts retired from the police force. And, in early January 2015, Sergeant John Burzynski retired. Relators claim this invoked the provisions of R.C. 124.44 that would require filling "vacancies" within a mandatory 30-day period. The respondents contend that the "authorized strength" of the department had been reduced prior to the retirement of Captain Roberts and Sgt. Burzynski, therefore there was not a "vacancy" to be filled at the time of their retirements. According to respondents, as a result of the two retirements, the size of the department was simply reduced by two based on the City's previously enacted ordinance establishing the reduced "authorized strength."

{¶5} Martin Gargas is presently a lieutenant with the police department. Pursuant to the certified eligibility list for the rank of captain, Gargas is the only lieutenant who is qualified to be promoted to rank of captain in light of Captain Roberts' retirement.

{¶6} Michael Merritt is presently a sergeant with the police department. At the time of Captain Roberts' retirement, there was no existing certified eligibility list in regard to a promotion from the rank of sergeant to lieutenant. Initially, the City announced that a promotional examination would be scheduled for the position of lieutenant. In turn, Merritt filed an application to take the exam and bought the required materials. The examination, however, was cancelled prior to the scheduled date.

{¶7} Edward Hetmanski, Jeffrey Orth, and Benjamin Harrell are police officers with the department at this time. Pursuant to the certified eligibility list for the position of sergeant, Hetmanski and Orth are the top two qualified candidates to be promoted to the rank of sergeant in light of Captain Roberts' and Sergeant Burzynski's respective retirements. Furthermore, Harrell is the third ranked candidate on the existing list, and would be eligible for promotion to sergeant if another "vacancy" developed prior to the expiration of the existing list in June 2015.

{¶8} Since no members of the department were subject to layoffs after the passage of the November 2014 "authorized strength" ordinance, the Patrolmen's Benevolent Association took the position that the new ordinance was not enforceable, and that the two retirements had created vacancies in the positions of captain, lieutenant, and sergeant. Hence, when respondents did not fill the vacancies through promotions, the association and the five current policemen, Lieutenant Gargas, Sergeant Merritt, Officer Hetmanski, Officer Orth, and Officer Harrell, filed the instant petition for writ of mandamus. In relation to Gargas, Hetmanski, Orth, and Harrell, the mandamus petition sought a writ requiring respondents to order promotions pursuant to the existing eligibility lists for captains and sergeants. Additionally, the petition requested backpay and other benefits Gargas, Hetmanski, and Orth would have already received if the promotions had been timely issued. As to Merritt, the petition sought a writ requiring respondents to conduct a promotional examination for the position of lieutenant.

{¶9} After answering the petition, respondents moved this court for judgment on the pleadings under Civ.R. 12(C). Essentially, respondents contend that, even if all factual allegations in the petition are assumed to be true, they assert they have no legal duty to order promotions because there are no vacant positions in the police department. According to respondents, once the November 2014 ordinance abolishing the three positions was duly enacted, the City could allow the size of the police force to decrease through simple attrition and was not obligated to take any overt steps to immediately enforce the ordinance.

{¶10} In conjunction with their response to respondents' 12(C) motion, the association and the five policemen, relators, have also moved for partial summary judgment on the issue of whether vacancies presently exist in the ranks of the police department. According to relators, four vacancies exist because respondents are not permitted to use the retirements of Captain Roberts and Sergeant Burzynski as an indirect way of reducing the number of policemen on the force. Citing R.C. 124.37, relators assert that, once the decision was made to abolish three positions, the City was required to initially layoff three police officers, grant promotions within the department in light of the retirements, and then recall at least two of the laid-off officers to bring the police force back to full strength. In effect, relators argue that the City was not permitted to effectuate the reduction in "authorized strength" by attrition, but rather, was required to immediately lay off three officers and then rehire at least two officers after the promotions were accomplished.

{¶11} In requesting partial summary judgment, relators did not attach any evidentiary materials to their motion. Instead, they have based their argument upon the factual assertions which were first alleged in their petition and then admitted in respondents' answer. Thus, as there are no disputes regarding the pertinent facts, the resolution of the motion for judgment on the pleadings and the summary judgment motion will turn entirely upon whether, as a matter of law, there were vacant positions in the city police department created by the City ordinance passed in November of 2014.

{¶12} "Normally, the authority to create and fund the ranks of the police department rests in the legislative authority of the city. See State ex rel. McClure v. George (1945), 145 Ohio St. 187 ; Atwood v. Judge (1977), 63 Ohio App.2d 94 . The Ohio Supreme Court has held that a position in the police or fire department is created only when the number of positions in that rank is increased by ordinance and council makes a specific appropriation to fund the position. State ex rel. Pell v. Westlake (1980), 64 Ohio St.2d 360 ; State ex rel. Finn v. Garfield Hts. (1973), 34 Ohio St.2d 5 . The power to create a civil service position includes the power to abolish it.

Weston v. Ferguson (1983), 8 Ohio St.3d 52 ." Smith v. Cincinnati , 85 Ohio App.3d 13, 17, 619 N.E.2d 46 (1st Dist.1993).

{¶13} A review of the relevant case law establishes that when a city does not have a charter, disputes as to the existence of a vacancy in the police department usually turn upon the application of two statutes in R.C. Chapter 124. The first statute, R.C. 124.44, expressly governs promotions in police departments:

{¶14} No position above the rank of patrol officer in the police department shall be filled by original appointment. Vacancies in positions above the rank of patrol officer in a police department shall be filled by promotion from among persons holding positions in a rank lower than the position to be filled. No position above the rank of patrol officer in a police department shall be filled by any person unless the person has first passed a competitive promotional examination. Promotions shall be by successive ranks insofar as practicable, and no person in a police department shall be promoted to a position in a higher rank who has not served at least twelve months in the next lower rank. * * * If a vacancy occurs in a position
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4 cases
  • State ex rel. Int'l Ass'n of Fire Fighters v. Barbish
    • United States
    • United States Court of Appeals (Ohio)
    • 27 Junio 2022
    ...or other permanent absence of the former incumbent.’ " State ex rel. Ohio Patrolmen's Benevolent Assn. v. Warren, 2019-Ohio-5046, 150 N.E.3d 451, ¶ 29 (11th Dist.), quoting State ex rel. Mylott v. McKelvey , 151 Ohio App.3d 673, 2003-Ohio-328, 785 N.E.2d 759, ¶ 12 (7th Dist.).{¶24} Local 15......
  • State ex rel. Ohio Patrolmen's Benevolent Ass'n v. City of Warren
    • United States
    • United States State Supreme Court of Ohio
    • 25 Noviembre 2020
    ...all possible methods to reduce the force" inasmuch as "[n]o officer was laid off, and no officer needed to be demoted." 2019-Ohio-5046, 150 N.E.3d 451, ¶ 17. In so holding, the court distinguished the two decisions the officers primarily relied on: Hungler v. Cincinnati , 25 Ohio St.3d 338,......
  • State ex rel. Internatl. Ass'n of Fire Fighters v. Barbish
    • United States
    • United States Court of Appeals (Ohio)
    • 27 Junio 2022
    ...or other permanent absence of the former incumbent.'" State ex rel. Ohio Patrolmen's Benevolent Assn. v. Warren, 2019-Ohio-5046, 150 N.E.3d 451, ¶ 29 (11th Dist), quoting State ex rel. Mylott v. McKelvey, 151 Ohio App.3d 673, 2003-Ohio-328, 785 N.E.2d 759, ¶ 12 (7th Dist.). {¶24} Local 1536......
  • State v. State Emp't Relations Bd.
    • United States
    • United States Court of Appeals (Ohio)
    • 13 Diciembre 2021
    ...District Court of Appeals decision, State ex rel. Ohio Patrolmen's Benevolent Assoc. v. City of Warren , 11th Dist., 2019-Ohio-5046, 150 N.E.3d 451, which was later affirmed by the Supreme Court of Ohio, 162 Ohio St.3d 176, 2020-Ohio-5372, 164 N.E.3d 440. City's reliance on Warren is mispla......

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