Opinion
NO. 2015-T-0017
12-09-2019
STATE of Ohio EX REL. OHIO PATROLMEN'S BENEVOLENT ASSOCIATION, et al., Relators, v. CITY OF WARREN, Ohio, et al., Respondents.
{¶1} This original action in mandamus is presently before this court for final determination of a petition for writ of mandamus, filed by relators Ohio Patrolmen's Benevolent Association and five union members who are currently employed by the city police department against respondents, the City of Warren, Ohio, ("City") its Civil Service Commission, and its Director of Service and Safety. In a previous judgment, this court concluded the City had a legal duty to fill vacancies in its police department through promotions. The matter was appealed to the Supreme Court of Ohio and the Court determined the judgment was not a final, appealable order because the issue of damages in the form of backpay had not been resolved. Accordingly, the original judgment was interlocutory and, after further consideration of the issue, we conclude the City had no legal duty to fill the positions because they were properly abolished by ordinance and thus there was no vacancy to fill. We therefore hold relators' petition is denied and the matter dismissed.
{¶2} Our review of relators' mandamus petition and respondents' answer demonstrates the following basic facts are not in dispute. The City does not have a city charter; therefore, it must abide by the various provisions in the Ohio Revised Code governing civil service, including R.C. 124.44, which governs promotions. Throughout the years, the City has enacted ordinances that delineate the "authorized strength" of its police department. In a 1996 ordinance, the department's manpower was set at the following levels: 1 police chief; 3 captains; 6 lieutenants; 10 sergeants; and 59 police officers.
{¶3} In November 2014, the City enacted a new "authorized strength" ordinance in which it sought to abolish three positions within the police department. Specifically, the ordinance provided that the number of captains would be decreased from three to two, the number of lieutenants from six to five, and the number of sergeants from ten to nine. By the terms of the resolution, the reduction in staffing levels did not occur at the time the ordinance was passed, but was to be effective by attrition, i.e., upon the retirement of the incumbent officers.
{¶4} Because the reduction was not effective upon passage of the ordinance, none of the respondents took any overt acts to reduce the department's manpower by three positions; i.e., the City did not layoff any member of the staff. Then in late December 2014 Captain Timothy Roberts retired from the police force. And, in early January 2015, Sergeant John Burzynski retired. Relators claim this invoked the provisions of R.C. 124.44 that would require filling "vacancies" within a mandatory 30-day period. The respondents contend that the "authorized strength" of the department had been reduced prior to the retirement of Captain Roberts and Sgt. Burzynski, therefore there was not a "vacancy" to be filled at the time of their retirements. According to respondents, as a result of the two retirements, the size of the department was simply reduced by two based on the City's previously enacted ordinance establishing the reduced "authorized strength."
{¶5} Martin Gargas is presently a lieutenant with the police department. Pursuant to the certified eligibility list for the rank of captain, Gargas is the only lieutenant who is qualified to be promoted to rank of captain in light of Captain Roberts' retirement.
{¶6} Michael Merritt is presently a sergeant with the police department. At the time of Captain Roberts' retirement, there was no existing certified eligibility list in regard to a promotion from the rank of sergeant to lieutenant. Initially, the City announced that a promotional examination would be scheduled for the position of lieutenant. In turn, Merritt filed an application to take the exam and bought the required materials. The examination, however, was cancelled prior to the scheduled date.
{¶7} Edward Hetmanski, Jeffrey Orth, and Benjamin Harrell are police officers with the department at this time. Pursuant to the certified eligibility list for the position of sergeant, Hetmanski and Orth are the top two qualified candidates to be promoted to the rank of sergeant in light of Captain Roberts' and Sergeant Burzynski's respective retirements. Furthermore, Harrell is the third ranked candidate on the existing list, and would be eligible for promotion to sergeant if another "vacancy" developed prior to the expiration of the existing list in June 2015.
{¶8} Since no members of the department were subject to layoffs after the passage of the November 2014 "authorized strength" ordinance, the Patrolmen's Benevolent Association took the position that the new ordinance was not enforceable, and that the two retirements had created vacancies in the positions of captain, lieutenant, and sergeant. Hence, when respondents did not fill the vacancies through promotions, the association and the five current policemen, Lieutenant Gargas, Sergeant Merritt, Officer Hetmanski, Officer Orth, and Officer Harrell, filed the instant petition for writ of mandamus. In relation to Gargas, Hetmanski, Orth, and Harrell, the mandamus petition sought a writ requiring respondents to order promotions pursuant to the existing eligibility lists for captains and sergeants. Additionally, the petition requested backpay and other benefits Gargas, Hetmanski, and Orth would have already received if the promotions had been timely issued. As to Merritt, the petition sought a writ requiring respondents to conduct a promotional examination for the position of lieutenant.
{¶9} After answering the petition, respondents moved this court for judgment on the pleadings under Civ.R. 12(C). Essentially, respondents contend that, even if all factual allegations in the petition are assumed to be true, they assert they have no legal duty to order promotions because there are no vacant positions in the police department. According to respondents, once the November 2014 ordinance abolishing the three positions was duly enacted, the City could allow the size of the police force to decrease through simple attrition and was not obligated to take any overt steps to immediately enforce the ordinance.
{¶10} In conjunction with their response to respondents' 12(C) motion, the association and the five policemen, relators, have also moved for partial summary judgment on the issue of whether vacancies presently exist in the ranks of the police department. According to relators, four vacancies exist because respondents are not permitted to use the retirements of Captain Roberts and Sergeant Burzynski as an indirect way of reducing the number of policemen on the force. Citing R.C. 124.37, relators assert that, once the decision was made to abolish three positions, the City was required to initially layoff three police officers, grant promotions within the department in light of the retirements, and then recall at least two of the laid-off officers to bring the police force back to full strength. In effect, relators argue that the City was not permitted to effectuate the reduction in "authorized strength" by attrition, but rather, was required to immediately lay off three officers and then rehire at least two officers after the promotions were accomplished.
{¶11} In requesting partial summary judgment, relators did not attach any evidentiary materials to their motion. Instead, they have based their argument upon the factual assertions which were first alleged in their petition and then admitted in respondents' answer. Thus, as there are no disputes regarding the pertinent facts, the resolution of the motion for judgment on the pleadings and the summary judgment motion will turn entirely upon whether, as a matter of law, there were vacant positions in the city police department created by the City ordinance passed in November of 2014.
{¶12} "Normally, the authority to create and fund the ranks of the police department rests in the legislative authority of the city. See State ex rel. McClure v. George (1945), 145 Ohio St. 187 ; Atwood v. Judge (1977), 63 Ohio App.2d 94 . The Ohio Supreme Court has held that a position in the police or fire department is created only when the number of positions in that rank is increased by ordinance and council makes a specific appropriation to fund the position. State ex rel. Pell v. Westlake (1980), 64 Ohio St.2d 360 ; State ex rel. Finn v. Garfield Hts. (1973), 34 Ohio St.2d 5 . The power to create a civil service position includes the power to abolish it. Weston v. Ferguson (1983), 8 Ohio St.3d 52 ." Smith v. Cincinnati , 85 Ohio App.3d 13, 17, 619 N.E.2d 46 (1st Dist.1993).
{¶13} A review of the relevant case law establishes that when a city does not have a charter, disputes as to the existence of a vacancy in the police department usually turn upon the application of two statutes in R.C. Chapter 124. The first statute, R.C. 124.44, expressly governs promotions in police departments:
{¶14} No position above the rank of patrol officer in the police department shall be filled by original appointment. Vacancies in positions above the rank of patrol officer in a police department shall be filled by promotion from among persons holding positions in a rank lower than the position to be filled. No position above the rank of patrol officer in a police department shall be filled by any person unless the person has first passed a competitive promotional examination. Promotions shall be by successive ranks insofar as practicable, and no person in a police department shall be promoted to a position in a higher rank who has not served at least twelve months in the next lower rank. * * * If a vacancy occurs in a position above the rank of patrol officer in a police department, and there is no eligible list for such rank, the municipal * * * civil service commission shall, within sixty days of that vacancy, hold a competitive promotional examination. After the examination has been held and an eligible list established, the commission shall forthwith certify to the appointing officer the name of the person on the list receiving the highest rating. Upon the certification, the appointing officer shall appoint the person so certified within thirty days from the date of the certification. If there is a list, the commission shall, when there is a vacancy, immediately certify the name of the person on the list having the highest rating, and the appointing authority shall appoint that person within thirty days of the certification.
{¶15} The second pertinent statute, R.C. 124.37, governs removals, reappointments, and demotions in police departments:
{¶16} When it becomes necessary in a police or fire department, through lack of work or funds, or for causes other than those outlined in section 124.34 of the Revised Code, to reduce the force in such department, the youngest employee in point of service shall be first laid off. Should a position in the police or fire department once abolished or made unnecessary be found necessary to be re-created or re-established within three years of the date of abolishment, or should a vacancy occur through death, resignation, or any other cause within three years from the date of the abolishment of the position or layoff, the oldest employee in point of service of those laid off shall be entitled to the to the position, providing he was at the date of his separation a regular and permanent employee. * * * When a position above the rank of patrolman in the police department * * * is abolished, and the incumbent has been permanently appointed, he shall be demoted to the next lower rank and the youngest officer in point of service in the next lower rank shall be demoted, and so on down until the youngest person in point of service has been reached, who shall be laid off.
{¶17} There is nothing in either of these statutes that prohibit the City from accomplishing a reduction in force by attrition. In fact, attrition is the least disruptive means of all possible methods to reduce the force. No officer was laid off, and no officer needed to be demoted. One would think this approach would be welcomed by all the parties involved.
{¶18} Respondents contend the City was required to comply with R.C. 124.37. In applying R.C. 124.37 to cases involving the abolishment of positions in city police departments, relators argue the statutory procedure must always be employed (except in cases of misconduct) in reducing the size of the force. In support, they cite Hungler v. City of Cincinnati , 25 Ohio St.3d 338, 496 N.E.2d 912 (1986). In Hungler , certain city officials decided, as part of a complex reorganization of the police department, to abolish two lieutenant positions. Accordingly, when the city promoted a lieutenant to captain pursuant to a court order, it did not promote a sergeant to the vacant lieutenant spot. Instead, the city followed a "demotion-promotion" procedure, under which the least senior lieutenant was demoted to sergeant for one day, and then re-promoted back to lieutenant. Pursuant to this procedure, the number of lieutenants was reduced by one, and no person in the lowest rank was ever laid off. When the city followed this procedure a second time, the two "non-promoted" sergeants brought an action for a declaratory judgment and injunctive relief.
{¶19} On appeal from a judgment in favor of the two sergeants, the city argued before the appellate court that it should not be obligated to follow the "layoff" procedure of R.C. 124.37 when it ultimately intends to abolish the positions by attrition. Id. at 343, 496 N.E.2d 912. The appellate court accepted this argument, holding that any violation of the statute was not prejudicial. Id. However, the Supreme Court reversed the appellate court's ruling and reinstated the trial court's judgment, concluding that the failure to abide by R.C. 124.37 would defeat the basic purpose of the civil service system. After quoting the statute, the Hungler court stated:
{¶20} 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 . 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. The results of adherence to this procedure, layoffs, may be harsh in some instances, but [the policemen] must accept those consequences and plan accordingly and only insist that the city play by the same rule.
{¶21} The machinations employed by the city in the instant case disrupted the stability and predictability of the civil service system upon which [the policemen] relied. Although the city expresses its concern for the seniority system, the demotion-promotion shell game used to abolish the two lieutenant's positions was in contravention of R.C. 124.37 and adversely affected [the policemen's] seniority rights by delaying or denying their promotions. In essence, the city, by abolishing these positions in an unlawful manner, was tinkering with the civil service promotional system as well as R.C. 124.37. The 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. Because the city did not accomplish the abolishment of these two lieutenant's positions in accordance with R.C. 124.37, the elimination of those positions was unlawful and therefore
void." (Footnotes omitted.) Id. at 343-344, 496 N.E.2d 912.
{¶22} The concerns set forth in Hungler as to strict compliance with the statute do not exist under the facts of our case. In Hungler , the city illegally delayed the mandatory promotion process to "reorganize its police department" after a vacancy had occurred. Through a convoluted series of demotions/repromotions, the city was able to eliminate two lieutenant positions; in doing so, however, officers who held top ranking positions on the promotion-eligible lists were delayed or denied their entitlement. In that case, the vacancies that existed were deliberately not filled in order to abolish the two lieutenant positions. Here, there was no vacancy to trigger the mandatory promotion procedure in R.C. 124.44. And, to the extent the abolition of the positions was a certain eventuality, there was no disruption to the stability and predictability of the system on which relators rely.
{¶23} Additionally, we do not read Hungler as a blanket rejection of the practice of abolishment by attrition; to wit: the court does not specifically hold attrition is forbidden. We recognize the First Appellate District consistently referred to and validated the "reorganization" methodology as a form of abolishment by attrition in Hungler v. Cincinnati , 1st Dist. Hamilton No. C-840507, 1985 WL 8908 (July 3, 1985), the case ultimately reversed by the Ohio Supreme Court. "Attrition," however, refers to "[a] reduction in numbers usually as a result of resignation, retirement, or death." Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/attrition (accessed Sept. 3, 2019). The facts of that case reveal that the city demoted a lieutenant to sergeant and, the following day, promoted a lieutenant to captain, while re-promoting the former lieutenant to his previous post. In doing so, a lieutenant's position was abolished. This practice is not a form of attrition and, more importantly, the "reorganization" clearly violated R.C. 124.44 because there was a vacancy, left by the new captain, that was abolished without being filled. If there is a vacancy, the statutory procedures for promotion must be followed. Where no vacancy exists, as is the case in this matter, it is not possible to promote even if there are promotion-eligible candidates.
{¶24} Relators also rely upon the Court's decision in Zavisin v. City of Loveland , 44 Ohio St.3d 158, 541 N.E.2d 1055 (1989). In that case, the retirement of a lieutenant created a vacancy in the police department. Since an eligibility list for the rank of lieutenant did not exist, the city's civil service commission should have scheduled a competitive promotional examination; however, the commission did not take any steps to produce an eligibility list. Then, approximately 50 days following the retirement, the city passed an ordinance abolishing the lieutenant position. As a result, an officer in the rank immediately below lieutenant filed an action to enjoin the enforcement of the ordinance and compel the commission to schedule the required examination.
{¶25} The officer/plaintiff in Zavisin prevailed at the trial level, but the appellate court reversed, holding that the city could abolish the lieutenant position without following the "layoff" procedure in R.C. 124.37. In reinstating the trial court's judgment for the officer, the Supreme Court of Ohio first concluded that, for purposes of R.C. 124.44, there was a "vacancy" in the city's police force: "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." Id. at 160, 541 N.E.2d 1055. Second, the Court rejected the city's argument that the legislature did not intend for R.C. 124.37 to apply under the facts of that case because it would be futile to appoint a new lieutenant under R.C. 124.44, only to then demote him under R.C. 124.37 when the position was abolished. Quoting Hungler , the Zavisin court stated that the city's "futility" argument would have the effect of eliminating R.C. 124.37 from the Revised Code. Id. at 161, 541 N.E.2d 1055. The Zavisin court then restated the basic holding in Hungler ; i.e., unless an exception in R.C. 124.34 applies, the abolishment of a position on a city's police force must be done in accordance with R.C. 124.37 because that is the only way to ensure a stable and predictable civil service system. Id.
{¶26} In the final portion of its analysis, the Zavisin court rejected the contention that a violation of R.C. 124.37 could be non-prejudicial:
{¶27} [The city officials] 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. Zavisin, supra , at 161-162, 541 N.E.2d 1055.
{¶28} Once again, the concerns expressed by the court in Zavisin simply do not apply where the reduction is accomplished through attrition. There is no concern whatsoever regarding a "right to reappointment" because no one gets demoted. Moreover, in Zavisin , unlike the facts of this case, the abolishment of the lieutenant position did not occur until after the incumbent lieutenant had retired. The Zavisin syllabus expressly states 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." In Zavisin , there was clearly a vacant position as a result of a retirement. In this matter, by the time of the two retirements, the two positions had already been eliminated by ordinance. Therefore, there are no incumbents to the disputed positions and no vacancies. For this reason, there is nothing in Zavisin supporting relators' contention that the City was required to layoff three officers at the time the ordinance was passed.
{¶29} When the first officer, Captain Roberts, retired from the department, there was no vacancy in the force. Vacancy, for purposes of R.C. 124.37, occurs "when a position that has been established and occupied becomes vacant by reason of the death, retirement, dismissal, promotion, or other permanent absence of the former incumbent." State ex rel. Mylott v. McKelvey , 151 Ohio App.3d 673, 676, 2003-Ohio-328, 785 N.E.2d 759 (7th Dist.2003). The City had already modified the strength of the department prior to the retirements. The modification took effect on the dates of the retirements. Accordingly, there was no vacancy to fill. Relators are unable to point to any law or rule that would stop the City from reducing the size of its force via ordinance.
{¶30} Because there was no vacancy, R.C. 124.44 was not triggered. There was no reason to promote a lieutenant to the captain's position to then eliminate the position and follow the mandatory demotion process outlined in R.C. 124.37. The use of attrition via ordinance simply streamlined the process and avoided the potential confusion of the teeterboard promotion/demotion process.
{¶31} There is nothing in the wording of R.C. 124.37 or 124.44 that prohibits the City of Warren from accomplishing a reduction in force by attrition. Reduction by attrition is clearly the least disruptive method of all possible means of eliminating positions on a police force. That is, reducing the size of the force by attrition eliminates the need to layoff or demote any of the officers, thereby bringing continuity and stability to the entire department.
{¶32} When construing the language of a statute, courts are obligated to avoid absurd or ridiculous results. Nozik v. Sanson , 8th Dist. Cuyahoga Nos. 69948 & 70189, 1996 WL 613643, *5 (Oct. 24, 1996), citing In re Appeal of Little Printing Co., Inc. , 4 Ohio St.3d 214, 448 N.E.2d 152 (1983). Considering the lack of any reference in R.C. 124.37 to reduction by attrition and the serious disruption to the force layoffs and demotions cause, relators' position creates a ridiculous result: promotion followed by an immediate demotion. Even if there are promotion-eligible officers entitled to a vacant position, pursuant to statute, their entitlement would invariably be frustrated by the nonsensical application of R.C. 124.37 in cases such as this. As soon as such officers are promoted, they would immediately be demoted to their previous position. In this respect, respondents use of the ordinance to eliminate the positions, prior to the retirements accomplished the same results, without the absurd bureaucratic maneuverings mandated by R.C. 124.37. Put plainly, the process used by respondents caused no harm and required less energy and resources than the process relator's support.
{¶33} A writ of mandamus will not lie unless the relator can show, inter alia, that it has a clear legal right to the requested relief. State ex rel. Mill Creek Metro. Park Dist. Bd. of Commrs. v. Tablack , 86 Ohio St.3d 293, 295, 714 N.E.2d 917 (1999). Pursuant to the foregoing discussion, we conclude that relators are unable to satisfy this element under the undisputed facts of this case. Since there were no vacant positions in the City's police department, respondents were not required to follow the promotion procedure in R.C. 124.44 or the "demotion" procedure in R.C. 124.37. By implication, because we conclude relators had no right to promotion and respondents were not concomitantly obligated to promote them, we conclude the issue of backpay is rendered moot.
{¶34} Relators' motion for summary judgment is denied, and respondents' motion for judgment on the pleadings is hereby granted as relators have not set forth a clear legal right to the relief requested and no clear duty on the part of respondents to provide the remedy. Relators' petition for writ of mandamus is therefore dismissed.
MATT LYNCH, J., concurs,
THOMAS R. WRIGHT, P.J., dissents with a Dissenting Opinion.
THOMAS R. WRIGHT, P.J., dissents with a Dissenting Opinion.
{¶35} I dissent.
{¶36} The function of the courts is to apply statutes as written and leave the writing to the legislature. Ohio Constitution, Article II, Section 1 ("legislative power of the state * * * [is] vested in a General Assembly consisting of a senate and house of representatives"). This overarching principle is accomplished via a myriad of elementary rules of statutory construction.
{¶37} " ‘When interpreting a statute, a court's paramount concern is legislative intent.’ Risner v. Ohio Dept. of Natural Resources, Ohio Div. of Wildlife, 144 Ohio St.3d 278, 2015-Ohio-3731, 42 N.E.3d 718, ¶ 12. ‘ "To discern legislative intent, we first consider the statutory language, reading all words and phrases in context and in accordance with rules of grammar and common usage." ’ See Holland v. Gas Ents. Co., 4th Dist. Washington No. 14CA35, 2015-Ohio-2527, 2015 WL 3918014, ¶ 14, quoting Ohio Neighborhood Finance, Inc. v. Scott, 139 Ohio St.3d 536, 2014-Ohio-2440, 13 N.E.3d 1115, ¶ 22, citing R.C. 1.42." State ex rel. Flaiz v. MERSCORP, Inc. , 11th Dist. Geauga No. 2016-G-0079, 2017-Ohio-7126, 95 N.E.3d 614, ¶ 19, appeal not allowed, 152 Ohio St.3d 1409, 2018-Ohio-723, 92 N.E.3d 880.
{¶38} Paramount to disposition is the construct that " ‘[w]e apply * * * statute[s] as written * * *, and we refrain from adding or deleting words when [a] statute's meaning is clear and unambiguous.’ Risner at ¶ 12." (Emphasis added) Id. ; accord Owen v. United Ohio Ins. , 11th Dist. Lake No. 2005-L-194, 2006-Ohio-5170, 2006 WL 2796281, ¶ 27. This concept is often expressed as "expressio unius est exclusio alterius," to express or include one thing implies the exclusion of the other. In re Estate of Cvanciger , 11th Dist. Lake, 2015-Ohio-4318, 42 N.E.3d 783, ¶ 34.
{¶39} When a city does not have a charter, as here, vacancy in the police department turns upon the application of two statutes. The first, R.C. 124.44, expressly governs promotions. The second, R.C. 124.37, governs removals, reappointments, and demotions:
{¶40} "When it becomes necessary in a police or fire department, through lack of work or funds, or for causes other than those outlined in section 124.34 of the Revised Code, to reduce the force in such department, the youngest employee in point of service shall be first laid off. * * * When a position above the rank of patrolman in the police department * * * is abolished, and the incumbent has been permanently appointed, he shall be demoted to the next lower rank and the youngest officer in point of service in the next lower rank shall be demoted, and so on down until the youngest person in point of service has been reached, who shall be laid off."
{¶41} This statute says what is says and doesn't say what it doesn't say. It says reduction in a police department shall be accomplished through layoff and demotions. It doesn't say that reduction may be accomplished through attrition.
{¶42} Instead of applying relevant rules of statutory construction, the majority justifies its result with the rationale that reduction through attrition is less disruptive and not prohibited. While the former may be, that's for the legislature to decide. But as to the latter, R.C. 124.37 does prohibit reduction by attrition when viewed through the circumscribing lens that we refrain from adding word to statutes and that the inclusion of one thing (layoff and demotion) is to the exclusion of another (attrition).
{¶43} And because the ordinance reducing the force by attrition conflicts with R.C. 124.37, the ordinance is null and void. Hungler v. City of Cincinnati , 25 Ohio St.3d 338, 344, 496 N.E.2d 912 (1986). This means that because Warren did not follow the statutorily prescribed method, there are vacancies to be filled. {¶44} Moreover, this state's highest court has twice held that the statutory procedure must be employed in reducing the size of a police force regardless of the reason for the reduction. In Hungler , the court found the failure to abide by R.C. 124.37 defeats the basic purpose of the civil service system because that statute provides the stable and predictable procedure to be followed when a city decides to abolish a higher-ranking police position for lack of work. And because the city in Hungler did not accomplish the abolishment of the positions in accordance with R.C. 124.37, the elimination of those positions was unlawful and void. Id. at 343-344, 496 N.E.2d 912 ; accord Zavisin v. City of Loveland , 44 Ohio St.3d 158, 541 N.E.2d 1055 (1989).
{¶45} Relators maintain that Lieutenant Gargas, Officer Hetmanski, and Officer Orth are entitled to fill the vacancies due to their performances on the two 2013 promotional examinations. They also provide a calculation as to the amount of back pay each is entitled to receive. Respondents do not contest relators' calculations. Nevertheless, they assert that no back pay can be awarded because the three policemen were either no longer eligible for promotion or would not have been allowed to serve in the new position.
Lieutenant Martin Gargas
{¶46} Captain Timothy Roberts' retirement created a vacancy for captain. In May 2013, the Warren Civil Service Commission certified an eligibility list for that position. Under Article 34 of the 2014 contract between the city and the union, an eligibility list remains in effect for two years. There is no dispute that Lieutenant Gargas was first in line to be promoted from lieutenant to captain.
{¶47} Not challenging any of the foregoing, respondents maintain that Lieutenant Gargas is not entitled to back pay because, even if he were promoted to captain in January 2015, he would have immediately been demoted back to lieutenant due to lack of adequate funding. Respondents further argue that an award of back pay would be speculative because it is unclear when Gargas would have been demoted.
{¶48} However, none of the stipulations state that Lieutenant Gargas would have been immediately demoted to his former position of lieutenant. Thus, respondents' argument cannot be considered.
{¶49} Based upon the differences in the pay rates between lieutenant and captain, Gargas is entitled to receive $46,199.76 in back pay through December 1, 2018. Respondents do not contest this calculation.
Sergeant Michael Merritt
{¶50} In light of Lieutenant Gargas' promotion to captain, a vacancy has been created at the position of lieutenant. As of January 2015, the city did not have a certified eligibility list for lieutenant. Thus, pursuant to R.C. 124.44, respondents have a clear legal duty to hold a promotional examination for that position.
{¶51} There is no dispute that Sergeant Merritt is eligible to take the promotional examination for lieutenant. Therefore, although he is not entitled to back pay, he is entitled to a writ compelling respondents to hold the examination.
Officer Ed Hetmanski
{¶52} The retirement of Sergeant John Burzynski created a vacancy for sergeant. In June 2013, the Warren Civil Service Commission certified Officer Hetmanski as fourth on the eligibility list. The top three officers were promoted to sergeant during the seven-month period ending in January 2014. As a result, Officer Hetmanski was first in line to be promoted to sergeant when Sergeant Burzynski left the force in January 2015.
{¶53} While not contesting that Officer Hetmanski had risen to the top of the June 2013 eligibility list, respondents contend he was no longer eligible for promotion because that list was no longer effective as of the date of Burzynski's retirement. In making this argument, respondents acknowledge that Rule 7, Section 3 of the city's Civil Service Rules and Regulations expressly provides that eligibility lists remain in effect for two years. They submit, therefore, that Rule 7, Section 3 is of no force because it directly conflicts with R.C. 124.26, which provides:
{¶54} "From the returns of examinations for positions in the service of the state, the director of administrative services or the director's designee shall prepare an eligibility list of the persons whose general average standing upon examinations for the class or position is not less than the minimum fixed by the rules of the director, and who are otherwise eligible. * * *
{¶55} "An eligibility list expires upon the filling or closing of the position. An expired eligibility list may be used to fill a position of the same classification within the same appointing authority for which the list was created. But, in no event shall an expired list be used more than one year past its expiration date."
{¶56} Based upon the one-year limit in R.C. 124.26, respondents contend that the June 2013 sergeant eligibility list expired in June 2014 and could not be invoked by Officer Hetmanski in January 2015.
{¶57} However, the first sentence of R.C. 124.26 states that the statute applies to "the returns of examinations for positions in the service of the state * * *." R.C. 124.01(K) expressly provides that "service of the state" does not include "offices and positions of trust or employment with state-supported colleges and universities, counties, cities, city health districts, city school districts, general health districts, or civil service townships of the state * * *." Because city employment does not fall within the service of the state, the one-year limit in R.C. 124.26 does not apply to the sergeant eligibility list.
{¶58} Instead, R.C. 124.44 governs and it does not place time limits on eligibility lists. Furthermore, R.C. 124.40 gives municipal civil service commissions the authority to enact and enforce rules governing, inter alia, promotions for positions within the city civil service. Accordingly, in the absence of a conflicting state statute, the two-year limit of Rule 7, Section 3 of the Warren City Civil Service Rules and Regulations applies.
{¶59} The sergeant eligibility list, therefore, remained effective until June 2015. Because Sergeant Burzynski retired in January 2015, Officer Hetmanski had a clear legal right to promotion to sergeant.
{¶60} Based upon the differences in the pay rates between an officer and a sergeant, as delineated in the stipulations, Officer Hetmanski is entitled to receive $24,028.42 in back pay through December 1, 2018. Respondents do not challenge this calculation. Respondents wrongfully refused to promote Officer Hetmanski to the position of police sergeant, and he has a clear legal right to the promotion and back pay.
Officer Jeffrey Orth
{¶61} Since another police sergeant will be promoted to lieutenant after the city holds the promotional examination, a second sergeant vacancy will be created. In June 2013, the Warren Civil Service Commission certified an eligibility list for the position of sergeant. Although Officer Orth was fifth at the time the list was certified, the four officers who ranked ahead of him, including Officer Hetmanski, have either been promoted or are entitled to be promoted. Therefore, Officer Orth is next in line to be promoted once the second sergeant vacancy exists.
{¶62} Regarding Officer Orth, respondents raise the same argument that they did as to Officer Hetmanski, i.e., that the June 2013 eligibility list for police sergeant expired in June 2014 under R.C. 124.26. As stated, their argument lacks merit. Accordingly, the June 2013 eligibility list was in effect until June 2015. The parties do not dispute that the vacant lieutenant position would have been filled before June 2015, thereby creating the second sergeant vacancy. Officer Orth, therefore, has a clear legal right to be promoted to the position of sergeant.
{¶63} Given the differences in the pay rates between an officer and a sergeant, Officer Orth is entitled to receive $9,885.53 in back pay through December 1, 2018. Respondents do not challenge this calculation. Therefore, since respondents wrongfully failed to promote Officer Orth to the position of sergeant, he has a clear legal right to the promotion and back pay.
Officer Benjamin Harrell
{¶64} At the time the sergeant eligibility list was certified in June 2013, Officer Harrell was sixth, immediately behind Officers Hetmanski and Orth. As a result, if a third sergeant position vacancy had arisen prior to expiration of the eligibility list in June 2015, Officer Harrell would have been next in line to be promoted. However, there is no evidence that a third sergeant vacancy occurred. Thus, Officer Harrell is not entitled to relief.
{¶65} In summation, as to Lieutenant Gargas, Officer Hetmanski, and Officer Orth, each has demonstrated a clear legal right to promotion and back pay. Mandamus is the appropriate proceeding to obtain the promotions and back pay. Relators' back pay is predicated upon the rates set forth in the stipulations and have therefore been proven to an adequate certainty.
{¶66} Sergeant Merritt has established that he has a clear legal right to take a promotional examination for the position of lieutenant and that respondents have a clear legal duty to conduct the examination. Officer Harrell is not entitled to relief.
{¶67} In light of the foregoing, I would enter judgment in favor of relators and against respondents on the mandamus claim. I would issue a writ of mandamus under which respondents are required to: (1) promote Lieutenant Martin Gargas to captain and pay him back wages in the amount of $46,199.76, plus any additional amount that has accrued since December 1, 2018; (2) promote Officer Ed Hetmanski to sergeant and pay him back wages in the amount of $24,028.42, plus any additional amount that has accrued since December 1, 2018; (3) promote Officer Jeffrey Orth to sergeant and pay him back wages in the amount of $9,885.53, plus any additional amount that has accrued since December 1, 2018; and (4) immediately hold a promotional examination for police lieutenant. I would also order prejudgment interest on the damage awards.