Toledo Police Patrolmen's Assn., Local 10, IUPA v. Toledo

• Decision Date: 06 May 1994
• Docket Number: No. L-92-381,L-92-381
• Citation: 94 Ohio App.3d 734,641 N.E.2d 799
• Parties: , 1994 SERB 4-78 TOLEDO POLICE PATROLMEN'S ASSOCIATION, LOCAL 10, IUPA, et al., Appellants, v. CITY OF TOLEDO et al., Appellees. *
• Court: Ohio Court of Appeals

Page 734

94 Ohio App.3d 734

641 N.E.2d 799, 1994 SERB 4-78

TOLEDO POLICE PATROLMEN'S ASSOCIATION, LOCAL 10, IUPA, et al., Appellants, v. CITY OF TOLEDO et al., Appellees. ^*

No. L-92-381.

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

Decided May 6, 1994.

Ted Iorio and Christine Reardon, Toledo, for appellants.

Geoffrey Davis and Fritz Byers, Toledo, for appellees.

[1994 SERB 4-78] GLASSER, Judge.

This is an appeal from a judgment of the Lucas County Court of Common Pleas which granted appellee city of Toledo's motion for summary judgment and denied appellant Toledo Police Patrolmen's Association's ("TPPA") motion for summary judgment. Appellants also appeal several other orders of the trial court as set forth in their assignments of error.

The pertinent facts of this case are as follows. The TPPA is the exclusive representative of Toledo police officers below the rank of sergeant. The TPPA and the city are signatories to a collective bargaining agreement ("contract"), two provisions of which are at issue on appeal. The compulsory participation provision requires that an officer participate in and answer questions concerning an internal affairs investigation as follows:

"Before an employee may be charged with any violation of the Divisional Rules and Regulations for a refusal to answer questions or to participate in an investigation, he shall be advised that his refusal to answer questions or participate in such investigation may be made the basis of such a charge."

The confidentiality provision states that any information obtained in an internal affairs investigation shall remain confidential as follows:

"Any officer brought before the Internal Affairs Unit for investigation has the right, upon request, to have present an attorney. Any information divulged at said interview shall remain confidential."

However, pursuant to judicial interpretation of R.C. 149.43 (Ohio Public Records Act), police department internal affairs documents have been deemed public records for purposes of the statute and are therefore available to the public. ¹ The city became involved in several suits in which it was required to release, and allow access to, records of the [1994 SERB 4-79] Toledo Police Department Internal Affairs Section. ² The TPPA filed a grievance against the release in April 1987, claiming it violated the contract, and filed an unfair labor practice charge with the State Employment Relations Board in July 1987 based upon the city's refusal to arbitrate the grievance. The unfair labor practice charge did not address the subject of the grievance itself (i.e., the release of documents). The State Employment Relations Board dismissed the charge in May 1989, finding no probable cause to believe that an unfair labor practice had been committed.

The TPPA then brought suit in the Lucas County Common Pleas Court on December 6, 1989, against the city, the chief of police, and its city manager. An amended complaint was filed December 20, 1989, which dropped a claim that the internal affairs documents were exempt from public disclosure. The amended complaint requested, inter alia, a declaratory judgment that the city had breached the contract by releasing documents generated through internal affairs investigations, and a permanent injunction prohibiting the compelled participation of police officers in the investigations.

The TPPA now appeals various findings from three different orders of the trial court. The first is a July 13, 1990 order granting, in part, the city's motion to dismiss, which, in effect, did away with the city's request for declaratory judgments. The second is a September 8, 1992 order on cross-motions for summary judgment, which, in effect, denied injunctive relief to the TPPA, and the last is an order denying the TPPA's motion for relief from judgment regarding the rulings on the motions for summary judgment of September 8, 1992. The TPPA assigns five errors to the various orders of the trial court, as follows:

"ASSIGNMENT OF ERROR NO. 1: The Trial Court erred in holding that it could not rule upon Appellants' breach of contract claim until after the contractual grievance procedure had been followed, as the Appellants had exhausted all contractual remedies prior to invoking the Trial Court's jurisdiction in the case at bar. [This error is found in the July 13, 1990 Opinion and Judgment Entry.]"

"ASSIGNMENT OF ERROR NO. 2: The Trial Court erred in failing to provide Appellant TPPA with a declaratory judgment affirming the contractual quid pro quo regarding Internal Affairs interrogations, and thereby deprived the TPPA of its only remedy at law to secure enforcement of the collective bargaining agreement. [This error is found at the Trial Court's July 13, 1990 Opinion and Judgment Entry at 12.]"

"ASSIGNMENT OF ERROR NO. 3: The Trial Court erred in denying Appellant Toledo Police Patrolmen's Association's Motion for Summary Judgment, in that the TPPA was entitled to judgment as a matter of law. [This error is found in the September 8, 1992 Order of the Trial Court.] The Trial Court further erred in denying Appellant TPPA's Motion for Relief from Judgment and for Stay of Execution following the entry of summary judgment. [This error is found in the October 30, 1992 order of the Trial Court.] Specifically, in both Orders, the Trial Court erred in holding that the TPPA's position required either alteration of the collective bargaining agreement or, conversely, disregard of Ohio's Public Record law, O.R.C. section 149.43."

"ASSIGNMENT OF ERROR NO. 4: The Trial Court erred in basing its holding upon the inaccurate conclusion that negotiations for a successor collective bargaining agreement, which took place during the pendency of the case below, imposed an obligation upon Appellant TPPA to seek alteration of the collective bargaining agreement. The Court further erred in holding upon such premise that the Appellant TPPA 'agreed to' the compelled participation in Internal Affairs investigations. [This error is found in the September 8 and October 30, 1992 Orders of the Trial Court.]"

"ASSIGNMENT OF ERROR NO. 5: The Trial Court erred in dismissing the December 7, 1989 Temporary Restraining Order, and in failing to order a permanent injunction against compelled participation in Internal Affairs interrogations. [This error is found in the September 8 and October 30, 1992 Orders of the Trial Court.]"

After scrupulous review of the voluminous record, perusal of the appellate briefs, and original research of the issues, and for the following reasons, we affirm the trial court's decisions.

Essentially the TPPA, in its second, third and fourth assignments of error, is requesting this court to declare that police officer members of the TPPA are no longer obligated to answer questions or participate in internal affairs investigations because the city can no longer guarantee that "any information divulged at said interview [will] remain confidential." Specifically, the TPPA would like this court to find that the city breached the contract by releasing such information.

We start with the maxim that "the law is supreme, and no contract between individuals can make it lawful to do that which the statute positively commands shall not be done." Robbins v. Hennessey (1912), 86 Ohio St. 181, 194-195, 99 N.E. 319, 322. Where performance of a contractual promise is rendered impossible by the law, nonperformance is excused. See, generally, Annotation (1962), 84 A.L.R.2d 43, Section 7.

In the instant case, the confidentiality provision of the contract conflicts with R.C. 149.43 and its judicial application in that the statute declares public records be "made available for inspection to any person." 149.43(B). "Public records," for purposes of [1994 SERB 4-80] 149.43, includes the internal affairs and civil service records of law enforcement agencies. State ex rel. Toledo Blade Co. v. Telb (1990), 50 Ohio Misc.2d 1, 552 N.E.2d 243; State ex rel. Dispatch Printing Co. v. Wells (1985), 18 Ohio St.3d 382, 18 OBR 437, 481 N.E.2d 632. Therefore, the city's promise to maintain the confidentiality of such records is rendered impossible by the law, nonperformance by the city is excused, and there is no breach of the contract.

Next, the TPPA asks this court to declare that the promise to participate in the investigations in an honest and forthright manner was specifically bargained for the obligation of confidentiality so as to be quid pro quo. This court does not find evidence in the record that the provisions were actually bargained in exchange for each other. Granted, both provisions are found in the same subsection of the contract and both deal with the internal affairs investigation of an employee, but there is no affirmative evidence in the record linking the two. This is in stark contrast to Textile Workers Union of Am. v. Lincoln Mills (1957), 353 U.S. 448, 455, 77 S.Ct. 912, 917, 1 L.Ed.2d 972, 979-980, cited in the TPPA's brief, where the...