Thomas E. Walter, City of Norton, Chief of Police v. Tim Crawford, Mayor, 93-LW-3445

• Decision Date: 09 June 1993
• Docket Number: 93-LW-3445,15942
• Parties: THOMAS E. WALTER, City of Norton, Chief of Police, Plaintiff-Appellant v. TIM CRAWFORD, Mayor, et al., Defendants-Appellees C.A.
• Court: Ohio Court of Appeals

THOMAS E. WALTER, City of Norton, Chief of Police Plaintiff-Appellant v. TIM CRAWFORD, Mayor, et al Defendants-Appellees

No. 15942.

93-LW-3445 (9th)

Court of Appeals of Ohio, Ninth District Summit

June 9, 1993

APPEAL FROM JUDGMENT ENTERED IN THE COMMON PLEAS COURT COUNTY OF SUMMIT, OHIO CASE NO. CV 92 03 1038.

DECISION

This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:

REECE J.

On December 20, 1991, petitioner-appellant, Thomas E. Walters was terminated from his position as the chief of police for the city of Norton by respondent-appellee, Tim Crawford, the mayor of the city. The reason given for the termination was Walters' failure to meet the residency requirements as a city employee. Walters timely appealed his termination to the Norton Civil Service Commission. A hearing was conducted over three days in January, 1992.

On February 15, 1992, the Commission issued its factual findings and conclusion. While ordering Chief Walters reinstated, the Commission denied him salary for the period from December 20 1991 to February 19, 1992. On Monday, March 16, 1992, Walters filed a notice of appeal from the commission's order in the Summit County Court of Common Pleas. That same day Walters' counsel mailed a copy of the notice of appeal to the Norton Civil Service Commission. This notice was received by the Commission on March 18, 1992, thirty-two days after its order.

On March 30, 1992, Crawford moved the court to dismiss Walters' appeal. Crawford argued, as he does in this appeal, that in failing to serve a notice of appeal upon the Norton Civil Service Commission within thirty days of its order, Walters' appeal was untimely. On August 28, 1992, the court, finding that Walters' notice was not timely filed with the Commission, dismissed the appeal for lack of subject matter jurisdiction.

Walters appeals from this ruling asserting the following assignment of error and sub-issues.

Assignment of Error

"The lower court erred in granting appellee's motion to dismiss where appellant had properly perfected his appealpursuant to the requirements of Revised Code Section 124.34.

"A. Methods of perfecting appeals are not so absolute as to bar acquiring jurisdiction where there is substantial compliance with the applicable Revised Code section, and the only imperfection asserted is the failure to file a notice of appeal with a commission.

"B. In a case of first impression, the reviewing court may look to persuasive authority for guidance in reaching a decision on the merits.

"C. Equities demand that a case be heard, on its merits, where no substantial prejudice will result therefrom."

Under R.C. 124.34 a chief of police may appeal any suspension, demotion or termination of employment to the municipal civil service commission. The decision of the commission may then be appealed to the court of common pleas. R.C. 124.34 provides that "[s]uch appeal shall be taken within thirty days from the finding of the commission."

Walters Contends that because R.C. 124.34 does not specifically state that the notice of appeal must be filed with the commission within thirty days of its order, his appeal was properly perfected when the notice of appeal was timely filed with the court. However, Walters fails to recognize that appeals from the orders of administrative agencies are governed generally by R.C. Chapter 2506. R.C. 2506.01 states:

"Every final order, adjudication, or decision of any officer, tribunal, authority, board, bureau, commission, department, or other division Of any political subdivision of the state may be reviewed by the court of common pleas of the County in which the principal office of the political subdivision is located as provided in Chapter 2505 of the Revised Code, except as modified by this chapter." (Emphasis added).

Thus, administrative appeals are conducted pursuant to the procedural requirements of Chapter 2505. In perfecting an appeal, R.C. 2505.04 provides that:

"(a)n appeal is perfected when a written notice of appeal is filed, ***in the case of an administrative-related appeal, with the administrative officer, agency, board, department, tribunal,commission, or other instrumentality involved." (Emphasis added).

We acknowledge that, pursuant to R.C. 2505.03(B), the general procedural rules of R.C. Chapter 2505 do not apply when they conflict with specific provisions of "Chapter 119. or other sections of the Revised Code." See Thomas v. Webber (1968), 15 OhioSt.2d 177, paragraph one of the syllabus. But, we find nothing in R.C. 124.34 indicating an intent to override the procedures of R.C. Chapter 2505. R.C. 124.34 sets only the time limit, thirty days, in which to perfect an appeal from a civil service commission. Nowhere does it mention where such notices of appeal are to be filed.

Accordingly, to perfect an appeal from a civil service commission to a court of common pleas, the notice of appeal must,...