Summary
In Harsney v. Allen (1953), 160 Ohio St. 36, 50 O.O. 492, 113 N.E.2d 86, we addressed the issue of whether the Chief of Police for the city of Youngstown may detail a police radio operator to the duties and functions of a patrolman, without the consent of the civil service commission, also under a similar provision of that city's charter.
Summary of this case from Akron Firefighters v. RomanoskiOpinion
No. 33319
Decided June 10, 1953.
Municipal corporations — Home rule — Charter of Youngstown — Chief of police — Power and control of members of police force — Stationing and transferring without impairing civil service status — Radio operator assigned to patrol duty — Injunction to restrain assignment not available.
Under the plain and unambiguous language of Section 48 of the Home-Rule Charter of the City of Youngstown, the chief of police of that city has exclusive control of the stationing and transfer of all patrolmen and other officers and employees constituting the police force, and where, without impairing the status and emoluments of a police radio operator who is a member of the police force, such chief assigns to such operator the duties and functions of a patrolman, injunction will not lie to restrain such chief in so exercising such control.
APPEAL from the Court of Appeals for Mahoning county.
On February 4, 1952, Theodore Harsney, hereinafter designated plaintiff, instituted an action in the Court of Common Pleas of Mahoning County against Edward J. Allen, Jr., Chief of the Department of Police of the City of Youngstown, hereinafter designated defendant.
In his petition plaintiff alleges that defendant is the duly appointed, qualified, and acting Chief of the Department of Police of the City of Youngstown; that plaintiff is, and since the ninth day of August 1941, has been, a member of the Department of Police of such city by reason of his certification and appointment under the civil service law of Ohio; that on November 15, 1941, he took a special promotional competitive civil service examination for the position of radio operator in the Department of Police and successfully passed the same; that his name was certified to the appointing authority, and on March 26, 1941 (the evidence shows this date was March 26, 1942), plaintiff was especially appointed by the appointing authority to the position of radio operator; and that since that time he has been serving in such capacity.
Plaintiff alleges further that on January 16, 1952, defendant ordered plaintiff to leave the position of radio operator, to become a patrolman in the Department of Police, and to discharge the duties thereof.
Plaintiff alleges further that the position of radio operator has never been abolished, and that he is still carried on the salary ordinance of the city of Youngstown as a radio operator. He prays that defendant be enjoined from interfering with plaintiff's rights and status as a radio operator and from compelling plaintiff to leave such position and to discharge the duties of a patrolman, and for such other relief to which he may be entitled.
Defendant demurred to plaintiff's petition and his demurrer was overruled. He thereafter filed an answer admitting most of the allegations of plaintiff's petition and setting up four defenses.
The first defense is a general denial as to all matters in plaintiff's petition not admitted in the answer.
The second defense is that plaintiff took his examination for the position of radio operator before he had been a patrolman for at least one year, in violation of the statutes of Ohio and the rules and regulations of the civil service commission of the city of Youngstown.
The third defense is that the salaries of police radio operators and patrolmen are the same, which, in effect, abolishes the position of police radio operator and puts it in the status of patrolman.
The fourth defense is that the Home-Rule Charter of the City of Youngstown gives defendant the right and authority to transfer plaintiff from the work of police radio operator to that of a patrolman.
A hearing was had in the Court of Common Pleas upon the petition, the answer, and the evidence introduced in this cause, and that court found that the second and third defenses in the answer are not valid ones from which no appeal was taken, but that the fourth defense is valid and complete.
The court adjudged that defendant is empowered under Section 48 of the Home-Rule Charter of the City of Youngstown to exclusively control the stationing and transfer of patrolmen and all other officers and employees constituting the police force, but that defendant does not have the power to change the designation of the position of an employee from that fixed by council and to which position such employee, through civil service laws, has been appointed.
Defendant was enjoined from any action which would change such designation. With that exception, the court denied the prayer of plaintiff's petition and entered judgment accordingly.
Appeal was taken by plaintiff to the Court of Appeals, which affirmed the judgment of the Court of Common Pleas.
The cause is before this court upon the allowance of a motion to certify the record.
Mr. William E. Lewis, for appellant.
Mr. P. Richard Schumann and Mr. Israel Freeman, for appellee.
Since defendant did not appeal from the judgment which restrained him from interfering with plaintiff's civil service status as a police radio operator, the sole question before us is whether employees occupying certain positions in the police department of Youngstown may be detailed by the chief of police to other positions in the department without the consent of the civil service commission.
Section 4374, General Code, provides:
"The police department of each city shall be composed of a chief of police and such other officers, patrolmen and employees as council shall, from time to time, provide by ordinance."
Section 4372, General Code, provides:
"The chief of police shall have exclusive control of the stationing and transfer of all patrolmen and other officers and employees in the department, under such general rules and regulations as the director of public safety prescribes."
It is to be noted that there is no classification in the statute of position of radio operator, but that classification is made in the salary ordinance of the city of Youngstown, which provides, inter alia, for four police radio operators and 176 patrolmen, each with a salary of $3,540 per year.
Youngstown is a home-rule charter city, and section 48 of its charter reads in part:
"The chief of police shall be the head of the Department of Police and shall have exclusive control of the stationing and transfer of all patrolmen and other officers and employees constituting the police force.
"The police force shall be composed of a chief, and such officers, patrolmen and other employees as may be provided by ordinance of the council."
If that provision of the charter is valid, the chief of police, in plain and unambiguous language, is given full and exclusive authority to assign to any officer or employee, who is a member of the police force, the performance of any police function.
There is no office of director of public safety under the provisions of Youngstown's city charter, and the duties pertaining to such office are performed by the chief of police as the "head of the Department of Police."
Under Sections 3 and 7, Article XVIII of the Ohio Constitution, municipalities have the authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary, and other similar regulations as are not in conflict with general laws, and any municipality may frame and adopt or amend a charter for its government and exercise thereunder all powers of local self-government.
The organization and regulation of its police force, as well as its civil service functions, are within a municipality's powers of local self-government. As to civil service functions, see State, ex rel. Lentz et al., Civil Service Commission, v. Edwards, 90 Ohio St. 305, 107 N.E. 768.
In the case of Lapolla v. Davis, 55 Ohio Law Abs., 490, it was held that the provision in the Youngstown charter placing the position of police chief in the unclassified service is paramount to Section 486-8, General Code, which places that position in the classified service subject to competitive examination. A motion to certify the record in that case was overruled by this court and an appeal as of right dismissed ( 151 Ohio St. 550, 86 N.E.2d 615).
In the present case plaintiff retains his status as a police radio operator, he has the same pay whether working as a police officer in that capacity or as a patrolman, and he has all the rights which that status gives him to take promotional examinations or any other privileges, but, since he is one of the employees constituting the police force, the chief of police has the right to assign to him police duties different from those which he has been performing.
The record shows that the transfer was made because plaintiff had been suspended four days for insubordination, the order of which suspension the civil service commission affirmed, and because he had made a mistake in checking an automobile license for police authorities outside the city of Youngstown.
Whether the chief of police should have control and power over the employees in his department, which the charter of the city of Youngstown gives him, is a question for the people of Youngstown, and unless and until they see fit to amend their charter it is impossible to see how the language of section 48 thereof can have any other meaning than that which we have ascribed to it.
The judgment of the Court of Appeals affirming the judgment of the Court of Common Pleas is affirmed.
Judgment affirmed.
WEYGANDT, C.J., TAFT, HART and ZIMMERMAN, JJ., concur.
MIDDLETON and MATTHIAS, JJ., dissent.