Zavisin v. City of Loveland

• Citation: 541 N.E.2d 1055,44 Ohio St.3d 158
• Decision Date: 02 August 1989
• Docket Number: No. 88-1097,88-1097
• Parties: ZAVISIN, Appellant, v. CITY OF LOVELAND, et al., Appellees.
• Court: United States State Supreme Court of Ohio

Page 158

44 Ohio St.3d 158

541 N.E.2d 1055

ZAVISIN, Appellant, v. CITY OF LOVELAND, et al., Appellees.

No. 88-1097.

Supreme Court of Ohio.

Submitted May 3, 1989.

Decided Aug. 2, 1989.

Syllabus by the Court

The procedure for promotion provided in R.C. 124.44 is mandatory upon the occurrence of a vacancy in a position above police patrolman, and the vacant position must be filled by appointment before it is abolished pursuant to R.C. 124.37, which presupposes the existence of an incumbent.

This case arose from a civil service dispute. Michael E. Zavisin, plaintiff-appellant, a police officer employed by the city of Loveland, a defendant-appellee herein, brought this action when a position of lieutenant was abolished on the retirement of one of three police lieutenants.

More specifically, on September 11, 1986, a vacancy was created in the police department of the city of Loveland when Lieutenant Robert Hayden retired. It is undisputed that prior to that date, the Loveland Police Department consisted of a chief of police, three lieutenants and seven patrol officers. Appellant was a patrol officer.

The Civil Service Commission of the city of Loveland did not maintain an eligibility list for positions within the rank of police lieutenant and at no time within the sixty days of the occurrence of the vacancy was a civil service promotional examination held for the position of police lieutenant. Instead, on the fifty-fourth day the vacant position of police lieutenant was abolished by ordinance No. 1986-69. Appellant asserts the request to abolish the position came from the city manager who contended that the police department needed to be reorganized.

The city of Loveland is a charter city which is subject to the civil service statutes of the state of Ohio, including R.C. 124.37 and 124.44.

At all times, appellant was qualified to sit for the examination for the position of police lieutenant.

On November 10, 1986, appellant filed a complaint for declaratory and injunctive relief seeking to enjoin the enforcement of Ordinance No. 1986-69. Appellant further sought to require the city of Loveland to offer a competitive examination for the vacancy created by the lieutenant's retirement and to promote the appropriate person to the vacant position.

Upon motion for summary judgment by both parties, the Court of Common Pleas of Clermont County granted summary judgment in favor of appellant, finding that appellees failed to follow R.C. 124.37 and 124.44 in abolishing the position of lieutenant. It ordered the civil service commission to hold a promotional examination for the position of police lieutenant, permit appellant to sit for the examination if still qualified to do so, and upon certification of the results of the promotional examination, make the proper appointment to the position according to law.

The court of appeals reversed, holding that since the position had no incumbent, the procedure for abolishing the position in R.C. 124.37 was inapplicable.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Baden, Jones, Scheper & Crehan Co., L.P.A., and David H. Landis, Hamilton, for appellant.

Lindhorst & Dreidame, Leo J. Breslin, Cincinnati, Steven E. Martin and Vernon Stiver, Loveland, for appellees.

ALICE ROBIE RESNICK, Justice.

The question before this court is the interrelationship between R.C. 124.44, ¹ which provides the procedure for promotion of police patrolmen, and R.C. 124.37, ² which sets forth the procedure for removals, reappointments and demotions in police and fire departments. Specifically the issue is whether upon a vacancy in a position above the rank of patrolman, must the vacancy be filled pursuant to R.C. 124.44 or may the vacant position be abolished within the sixty-day period?

When a position in a police department has been both established and occupied by appointment, a vacancy in that position automatically occurs upon the retirement of the incumbent. McCarter v. Cincinnati (1981), 3 Ohio App.3d 244, 3 OBR 276, 444 N.E.2d 1053, paragraph one of the syllabus, cited with approval in State, ex rel. Bardo v. Lyndhurst (1988), 37 Ohio St.3d 106, 112, 524 N.E.2d 447, 453. Thus, there was a vacancy in the position of police lieutenant in the Loveland Police Department on September 11, 1986.

Appellant contends that the procedure in R.C. 124.44 is mandatory upon a vacancy and that the position must be filled by appointment before it is abolished because R.C. 124.37 presupposes the existence of an incumbent.

Appellees construe R.C. 124.37 to read that if the position is currently filled, i.e., has an incumbent, then there must be demotions through the ranks pursuant to R.C. 124.37, but if the position is not currently filled, i.e., is vacant, then R.C. 124.37 is inapplicable and the position can be abolished without first having to be filled by appointment pursuant to R.C. 124.44.

"The purpose of the civil service system is to provide a 'stable framework of public offices upon which a workable civil service system may be constructed' while 'avoiding the traditional spoils system * * * and * * * providing a method of fair employee selection and promotion based upon merit and fitness.' McCarter v. Cincinnati (1981), 3 Ohio App.3d 244, 248 . * * * " Hungler v. Cincinnati (1986), 25 Ohio St.3d 338, 344, 25 OBR 392, 397, 496 N.E.2d 912, 917.

Appellees' argument is basically one of efficiency--that it would be futile to make an appointment to a position that is going to be abolished. However, in Hungler we rejected this argument, stating that "[u]nder the guise of efficiency, cities could effectively read R.C. 124.37 out of the code." Id. at 344, 25 OBR at 397, 496 N.E.2d at 917, fn. 2. We further acknowledged that the results of adherence to this procedure may be harsh in some instances, but the parties must accept those consequences and "play by the same rule." Id. at 344, 25 OBR at 397, 496 N.E.2d at 917. Thus, we stated that "R.C. 124.37 provided the stable and predictable procedure to be followed when the city decided to abolish the higher ranking police positions for lack of work." ID. SEE, ALSO, ³ Vogeler v. Cincinnati (1984), 16 Ohio App. 3d 393, 16 OBR 462, 476 N.E.2d 676; State, ex rel. Barnes v. Kirsch (Sept. 19, 1979), Butler App. No. CA78-07-0064, unreported. No exceptions or alternative procedures are provided in legislation for this common fact pattern. Therefore "[t]he abolishment of a classified civil service position above the rank of patrolman in the police department for lack of work or funds, or for causes other than those outlined in R.C. 124.34, must be accomplished in conformance with R.C. 124.37." Hungler, supra, 25 Ohio St.3d at 344, 25 OBR at 397, 496 N.E.2d at 917.

Appellees further contend that no employee is harmed if the vacancy is abolished without first being filled by appointment pursuant to R.C. 124.44. On the contrary, seniority rights are affected thereby. An officer permanently appointed to the vacant position pursuant to R.C. 124.44, whose position is later abolished in conformance with R.C. 124.37, resulting in his demotion, has the right to be reappointed to that position should it be recreated within three years or should another vacancy occur within three years of his demotion due to the abolishment of the position. Therefore, we hold that the procedure set forth in R.C. 124.44 is mandatory upon the occurrence of a vacancy in a position above patrolman, and that the vacant position must be filled by appointment before it is abolished pursuant to R.C. 124.37, which presupposes the existence of an incumbent.

Since the city of Loveland did not abolish the lieutenant's position in accordance with R.C. Chapter...