ZUPP v. COLUMBUS Mun. CIVIL Serv. Comm'n

• Decision Date: 10 June 2010
• Docket Number: 09AP-897.,No. 09AP-895,09AP-895
• Citation: 2 Ohio 2614,187 Ohio App.3d 614,933 N.E.2d 281
• Parties: ZUPP et al., Appellants, v. COLUMBUS MUNICIPAL CIVIL SERVICE COMMISSION, Appellee. Smalls et al., Appellants, v. Columbus Municipal Civil Service Commission, Appellee.
• Court: Ohio Court of Appeals

187 Ohio App.3d 614

933 N.E.2d 281

2010 Ohio 2614

ZUPP et al., Appellants,

v.COLUMBUS MUNICIPAL CIVIL SERVICE COMMISSION, Appellee.

Smalls et al., Appellants,

v.Columbus Municipal Civil Service Commission, Appellee.

Nos. 09AP-895, 09AP-897.

Court of Appeals of Ohio,Tenth District, Franklin County.

Decided June 10, 2010.

COPYRIGHT MATERIAL OMITTED.

Thompson Hine L.L.P., William C. Moul, and Samir B. Dahman, Columbus, for appellants.

Richard C. Pfeiffer Jr., Columbus City Attorney, and Alan P. Varhus, Assistant City Attorney, for appellee.

PEGGY L. BRYANT, Judge.

{¶ 1} Appellants, John Zupp and Cynthia Smalls, appeal from a judgment of the Franklin County Court of Common Pleas affirming a decision of the Municipal Civil Service Commission for the City of Columbus that denied appellants the opportunity to avoid layoff from their classified civil service positions with the city by displacing, or “bumping,” less senior city employees. Because appellants have enforceable “bumping” rights pursuant to a commission rule governing layoffs, we reverse the common pleas court's judgment.

I. Procedural History

{¶ 2} The facts are undisputed in this case. Appellants are members of a collective bargaining unit that the Columbus Municipal Association of Government Employees, Communications Workers of America, Local 4502 (“CMAGE”) represents. CMAGE entered into a collective bargaining agreement with the city pursuant to R.C. Chapter 4117. Article 22 of the CMAGE contract sets forth the agreement of the city and CMAGE on the subject of “Layoffs,” stating in full: “The Civil Service Commission is responsible for the establishment and enforcement of the rules governing layoffs. Both the City and the Union agree to strictly adhere to the Rules in effect on August 24, 2005.”

{¶ 3} Municipal Civil Service Commission Rule XII(C), as the commission adopted and published it on August 24, 2005, provides that in the event of layoffs, seniority will determine who is to be laid off in a job classification that is being reduced. More specifically, the rule provides that a classified employee who is being removed from his or her position pursuant to a layoff is entitled to avoid layoff by “bumping” a less senior employee holding a position in the same or a lower class series or job family as the more senior employee. Rule XII(C)(3).

{¶ 4} In 2008, appellants held full-time classified civil service positions with the city, but the city notified them that they were to be laid off. To avoid layoff, appellants sought to bump less senior employees holding lower-paid positions in their respective class series, but the only employees subject to appellants' bumping were members of a collective bargaining unit that the American Federation of State, County, and Municipal Employees (“AFSCME”) represented. The city determined that the provisions of AFSCME's collective bargaining agreement with the city prohibited appellants from “bumping” the less senior AFSCME employees. The executive director of the commission formalized the decision in a “Layoff Certification List” issued on August 29, 2008, that certified appellants for layoff.

{¶ 5} Appellants appealed the executive director's decision to the commission. Following an evidentiary hearing on the matter, the commission denied appellants' appeal. In its decision, the commission acknowledged that at the time of appellants' layoff, appellants had more seniority than employees holding positions in a lower class series than appellants. The commission further recognized that it had adopted rules that, on their face, would afford appellants the opportunity to bump the employees with less seniority in order to avoid layoff. The commission nonetheless determined that Article 15 of the city's collective bargaining agreement with AFSCME modified the city's Rule XII(C)(3) by providing that “[n]on-bargaining unit employees shall have no bumping rights into an AFSCME bargaining unit classification.” Applying that provision, the commission concluded the following: (1) appellants had no “bumping opportunity” in their situation because the only employees subject to being “bumped” were members of the AFSCME bargaining unit, and (2) the commission rules, as the AFSCME contract provision modified them, prevented appellants from displacing the AFSCME classified employees.

{¶ 6} Pursuant to R.C. 2506.01, appellants appealed the commission's decision to the common pleas court. The common pleas court agreed with the commission's determination that Article 15 of the AFSCME collective bargaining agreement prevailed over and modified the commission's promulgated rule governing employee “bumping rights” as they relate to layoffs. The court concluded that the change to the commission's rule “was not a change that necessitated publishing as would be required in the course of a normal amendment to a rule” but, rather, was “self-effectuating” under R.C. 4117.10(A) when the city entered into the collective bargaining agreement with AFSCME.

{¶ 7} The common pleas court similarly rejected appellants' alternative argument that appellants are “bargaining unit employees and therefore fall within those who may bump under the AFSCME contract.” The court concluded that “[w]hile Appellants are obviously employees covered by a bargaining agreement, they are not within the literal or contemplated coverage of the AFSCME agreements.”

{¶ 8} The court accordingly denied appellants' appeal and journalized its decision in a September 2, 2009 judgment entry.

II. Assignments of Error

{¶ 9} Appellants assign four errors on appeal:

Assignment of Error 1:

The Common Pleas Court erred in holding in its Decision that a municipal civil service commission rule, which is incorporated into a collective bargaining agreement between the municipal employer and labor organization A, and which protects the municipal employees covered by that collective bargaining agreement from layoff by the municipal employer, can be amended or preempted by a collective bargaining agreement between that same municipal employer and labor organization B, the latter being a labor organization which does not represent the municipal employees protected from layoff on the face of the subject civil service commission rule.

Assignment of Error 2:

The Common Pleas Court erred in concluding in its Decision that Article 15 of the collective bargaining agreement between AFSCME and the City of Columbus was intended or can be interpreted as amending Appellee's Rules, so as to preclude Appellants from exercising bumping rights to avoid layoff.

Assignment of Error 3:

The Court of Common Pleas erred in its Decision by finding (assuming) that the collective bargaining agreement provision (Article 15 of the collective bargaining agreement between AFSCME and the City of Columbus), upon which Appellee relies as having amended its rules, was bargained before Appellants obtained “bargaining status,” before Appellants' exclusive representative (CMAGE/CWA) was certified by the State Employment Relations Board, and before CMAGE enjoyed a collective bargaining relationship with the City of Columbus.

Assignment of Error 4:

The Common Pleas Court erred in its Decision by relying upon its erroneous finding, as set forth in Assignment of Error 3, above, to support its legal conclusion that the Civil Service Commission Rule and contract provision upon which Appellants rely was amended or preempted by the collective bargaining agreement between AFSCME and the City of Columbus.

III. Subject-Matter Jurisdiction of Common Pleas Court

{¶ 10} Preliminarily, we address the commission's claim, raised for the first time on appeal, that the common pleas court lacked subject-matter jurisdiction under R.C. 2506.01 to hear appellants' appeal.

{¶ 11} Subject-matter jurisdiction addresses the power of the court to adjudicate the merits of a case and is a necessary predicate for a court to hear and decide a case upon the merits. See, e.g., Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992, ¶ 11; Morrison v. Steiner (1972), 32 Ohio St.2d 86, 61 O.O.2d 335, 290 N.E.2d 841, paragraph one of the syllabus. Subject-matter jurisdiction cannot be waived and may be challenged at any time. Civ.R. 12(H)(3); Pratts; State ex rel. Bond v. Velotta Co. (2001), 91 Ohio St.3d 418, 419, 746 N.E.2d 1071.

{¶ 12} R.C. 2506.01 grants authority to the common pleas court to review final decisions of administrative officers and agencies, such as a municipal civil service commission. See, e.g., Nuspl v. Akron (1991), 61 Ohio St.3d 511, 575 N.E.2d 447; Haught v. Dayton (1973), 34 Ohio St.2d 32, 63 O.O.2d 49, 295 N.E.2d 404; Royster v. Circleville Civ. Serv. Comm. (Apr. 5, 1996), 4th Dist. No. 95CA19, 1996 WL 174995. In order for a final decision of an administrative agency to be appealable under R.C. 2506.01, the agency's decision must be the product of “quasi-judicial proceedings.” Section 4(B), Article IV, Ohio Constitution; M.J. Kelley Co. v. Cleveland (1972), 32 Ohio St.2d 150, 61 O.O.2d 394, 290 N.E.2d 562, paragraph one of the syllabus; Fortner v. Thomas (1970), 22 Ohio St.2d 13, 51 O.O.2d 35, 257 N.E.2d 371, paragraph one of the syllabus. An administrative proceeding is not “quasi-judicial” unless it involves an exercise of discretion and includes a “requirement for notice, hearing and the opportunity for introduction of evidence.” M.J. Kelley Co. at 150, 61 O.O.2d 394, 290 N.E.2d 562; State ex rel. Scherach v. Lorain Cty. Bd. of Elections, 123 Ohio St.3d 245, 2009-Ohio-5349, 915 N.E.2d 647, ¶ 15; State ex rel. Upper Arlington v. Franklin Cty. Bd. of Elections, 119 Ohio St.3d 478, 2008-Ohio-5093, 895 N.E.2d 177, ¶ 16; State ex rel. Wright v. Ohio Bur. of Motor Vehicles (1999), 87 Ohio St.3d 184, 186, 718 N.E.2d 908 (all determining that proceedings of administrative officers and agencies are not quasi-judicial unless the proceeding is required to resemble a judicial trial).

{¶ 13} Although the commission...