State ex rel. Ohio Patrolmen's Benevolent Ass'n v. City of Warren
| Decision Date | 25 November 2020 |
| Docket Number | No. 2019-1766,2019-1766 |
| Citation | 164 N.E.3d 440,162 Ohio St.3d 176 |
| Parties | The STATE EX REL. OHIO PATROLMEN'S BENEVOLENT ASSOCIATION et al., Appellants, v. The City of WARREN et al., Appellees. |
| Court | Ohio Supreme Court |
Daniel J. Leffler and Danielle M. Chaffin, Beachwood, for appellants.
Mazanec, Raskin & Ryder Co., L.P.A., Todd M. Raskin, Frank H. Scialdone, and David M. Smith, Cleveland, for appellees.
{¶ 1} Appellants Edward J. Hetmanski, Jeffrey Orth, Benjamin T. Harrell, Michael Merritt, and Martin M. Gargas, who are members of bargaining units represented by appellant Ohio Patrolmen's Benevolent Association, seek a writ of mandamus ordering that the officers be promoted (or allowed to sit for a competitive promotional examination) pursuant to state civil-service law, plus compensatory relief including back pay. Appellees, the city of Warren, the city's director of service and safety, and the city's civil-service commission (collectively, "the city"), declined to offer the officers promotions or exams because the city had passed an authorized-strength ordinance to abolish the positions at issue upon the retirement of their former occupants. Because the relief is sought for the individual officers, we will refer to the association and the individual appellants collectively as "the officers."
{¶ 2} The officers assert that state civil-service statutes prohibit abolishment of upper-rank police positions by attrition, requiring instead that promotions occur upon the retirement of officers in those ranks. In accord with this theory, the officers argue that the city must first promote the individual officers; only after doing so would the city, according to the officers, have the power to abolish the positions at issue.
{¶ 3} The Eleventh District Court of Appeals granted the city's motion for judgment on the pleadings, and the officers have appealed. We now affirm.
{¶ 4} The city of Warren's police force is composed of officers holding the following ranks: chief, captain, lieutenant, sergeant, and patrol officer.1 Under a 1987 authorized-strength ordinance, as amended in 1996, the force consisted of 1 chief, 3 captains, 6 lieutenants, 10 sergeants, and 59 patrol officers.
{¶ 5} In November 2014, the city passed a new authorized-strength ordinance. The 2014 ordinance prescribed reductions in the upper ranks of the police department "by means of attrition" from three captains to two, from six lieutenants to five, and from ten sergeants to nine.
{¶ 6} In December 2014, a police captain retired, and in January 2015, a police lieutenant retired. Instead of promoting from the next lower rank pursuant to R.C. 124.44, the city deemed the two positions abolished under the 2014 ordinance.
{¶ 7} The officers filed a petition for a writ of mandamus against the city in the Eleventh District Court of Appeals in February 2015. Lieutenant Gargas, who was next in line for promotion to captain at the time the former captain retired, sought his promotion to captain, plus compensatory relief in the form of "benefits, seniority, and/or back pay." Officer Hetmanski likewise sought promotion to sergeant, plus compensatory relief similar to that sought by Gargas. After the filing of this action, Officer Orth was promoted to sergeant on July 14, 2016; he seeks compensatory benefits for the city's failure to timely promote him. Sergeant Merritt seeks the opportunity to sit for an examination to be able to succeed Lieutenant Gargas when Gargas advances to captain. As a result of the promotions of others, Officer Harrell would be next in line for promotion to sergeant.
{¶ 8} The city answered the complaint and filed a motion for judgment on the pleadings. Thereafter, the officers filed a motion for partial summary judgment asking for summary relief on the main legal question: whether abolishment by attrition violates state civil-service law.
{¶ 9} On February 17, 2017, the court of appeals granted partial summary judgment for the officers. The court found that the two retirements created vacancies as a matter of law and that the city had a legal duty to fill the vacancies under R.C. 124.44 ; at the same time, the court denied the city's motion for judgment on the pleadings. The court did not address the issues of specific relief, including entitlement to, and amount of, back pay.
{¶ 10} The city appealed to this court, but after briefing, we remanded the case for lack of a final, appealable order. 151 Ohio St.3d 1521, 2018-Ohio-557, 91 N.E.3d 754.
{¶ 11} On remand, the parties agreed to have the case decided without trial based on stipulations, joint exhibits, and briefing. The case was assigned to a reconstituted three-judge panel, which reached the conclusion opposite to that reached by the original panel. The new panel denied the officers' motion for partial summary judgment, granted the city's motion for judgment on the pleadings, and dismissed the petition. The officers have appealed.2
{¶ 12} In this appeal, we consider the effect of the city's 2014 authorized-strength ordinance in light of two state civil-service statutes as we have applied them in our case law. Article XV, Section 10 of the Ohio Constitution provides that "[a]ppointments and promotions in the civil service of the state, the several counties, and cities, shall be made according to merit and fitness, to be ascertained, as far as practicable, by competitive examinations," and it requires the General Assembly to pass laws "providing for the enforcement of this provision." The statutes that we focus on in this appeal, R.C. 124.44 and 124.37, have been enacted pursuant to that mandate. As the city concedes in its brief, "[i]n non-charter cities like Warren, Ohio R.C. 124.44, governs promotions in police departments."
{¶ 13} This appeal contests the grant of judgment on the pleadings, presents a stipulated set of facts, and calls solely for the correct interpretation and application of statutes. Accordingly, our standard of review is de novo. State ex rel. DiFranco v. S. Euclid , 138 Ohio St.3d 367, 2014-Ohio-538, 7 N.E.3d 1136, ¶ 13 ; New Riegel Local School Dist. Bd. of Edn. v. Buehrer Group Architecture & Eng., Inc. , 157 Ohio St.3d 164, 2019-Ohio-2851, 133 N.E.3d 482, ¶ 8. And it is settled that mandamus is an appropriate action for wrongful failure to promote, State ex rel. Hipp v. N. Canton , 75 Ohio St.3d 221, 222, 661 N.E.2d 1090 (1996), as well as for back pay and compensatory relief, State ex rel. Manley v. Walsh , 142 Ohio St.3d 384, 2014-Ohio-4563, 31 N.E.3d 608, ¶ 25.
{¶ 14} The city's 2014 ordinance lists the police-force ranks and the number of positions in each rank. Using the terms "attrition" and "abolishment," the ordinance states that the number of positions "shall continue to be reduced" in the specified ranks. It is undisputed that the ordinance contemplates abolishment of one captain, one lieutenant, and one sergeant position upon the next retirement of an officer of each rank. See Webster's Ninth New Collegiate Dictionary 115 (1989) (defining "attrition" as "a reduction in numbers usu. as a result of resignation, retirement, or death").
{¶ 15} R.C. 124.44 governs the promotion of police officers. Two features of this statute, which we will sometimes refer to as the "promotion statute," are crucial in this case. First, "[v]acancies 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." Id. Second, when a "vacancy occurs" and no eligibility list has been established, the local civil-service commission has 60 days within which it "shall" hold a competitive promotional examination to establish such a list, so that the promotion can be made from the list. Id. "Vacancy" is not defined for purposes of R.C. 124.44. See R.C. 124.01 ().
{¶ 16} R.C. 124.37 addresses removals, reappointments, and demotions in police and fire departments, and we will sometimes refer to it as the "removal statute." Under R.C. 124.37, if an upper-rank position is abolished, its incumbent is demoted to the next lower rank and so on until the most recently hired patrol officer is laid off.
{¶ 17} In the decision on appeal, the court of appeals concluded that "nothing in [ R.C. 124.44 and 124.37 ] prohibit[s] the City from accomplishing a reduction in force by attrition" and that "attrition is the least disruptive means of 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, 496 N.E.2d 912 (1986), and Zavisin v. Loveland , 44 Ohio St.3d 158, 541 N.E.2d 1055 (1989).
{¶ 18} The court of appeals found that both of those cases involved the occurrence of a vacancy that triggered R.C. 124.44, requiring a promotion that each city had refused to offer. 2019-Ohio-5046, 150 N.E.3d 451, at ¶ 22, 25, 28. But the court held that unlike those cases, the present case involves "attrition" in the sense of automatic abolishment upon the former officers' retirement, preventing a vacancy from occurring in the first place. Id. at ¶ 30, 33. Accordingly, the court reasoned, the promotion statute itself required no promotion from the lower ranks.
{¶ 19} Additionally, the court concluded that R.C. 124.37 did not require any demotions or layoffs because there was no incumbent in each position that was abolished. By contrast, the dissenting judge interpreted R.C. 124.37 as controlling any abolishment of a police-force position above the patrol-officer rank, thereby concluding that abolishment by attrition violates the statute. Id. at ¶ 41-42 (Wright, P.J., dissenting).
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