Blair v. Sugarcreek Twp. Bd. of Trustees , 132 Ohio St. 3d 151 ( 2012 )

[Cite as Blair v. Sugarcreek Twp. Bd. of Trustees, 132 Ohio St. 3d 151, 2012-Ohio-2165.]
BLAIR, APPELLANT, v. BOARD OF TRUSTEES OF SUGARCREEK
TOWNSHIP ET AL., APPELLEES.
[Cite as Blair v. Sugarcreek Twp. Bd. of Trustees,
132 Ohio St. 3d 151, 2012-Ohio-2165.]
R.C. 505.49—A certified township peace officer who is appointed chief and then
terminated other than for cause in a non-civil-service township does not
have the right to return to a position he held prior to his appointment as
chief.
(No. 2011-0960—Submitted January 18, 2012—Decided May 17, 2012.)
CERTIFIED by the Court of Appeals for Greene County,
No. 2010-CA-3, 2011-Ohio-1725.
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SYLLABUS OF THE COURT
1. R.C. 505.49(B)(3) does not apply to police chiefs who have been certified as
peace officers pursuant to R.C. 109.77 but serve in townships where R.C.
505.49(C) is not applicable.
2. A certified township peace officer who is appointed chief and then is
terminated other than for cause in a township where R.C. 505.49(C) is not
applicable does not have the automatic right to return to the position he
held prior to his appointment as chief.
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LANZINGER, J.
{¶ 1} In this case, we are asked to resolve a conflict between the Second
and Seventh District Courts of Appeals concerning whether a certified police
officer who is appointed chief of police in a township with fewer than 10,000
residents, a police department with fewer than ten officers, and no civil service
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commission has the automatic right upon termination to return to the position he
held before his appointment as chief of police pursuant to R.C. 505.49. Based
upon our reading of the statute, we hold that the former chief of police has no
automatic right to return to a position that he held prior to appointment.
I. Facts
{¶ 2} The Sugarcreek Township Police Department hired appellant,
Kelly Blair, as a part-time patrol officer in 1988. Blair had completed training in
1975 to become a certified peace officer as required by R.C. 109.77 for permanent
appointment as a township officer, and he completed a refresher course for the
certification in 1988 after being hired by Sugarcreek Township. Over the course
of the next ten years, Blair received a number of promotions—to full-time patrol
officer, sergeant, lieutenant, and then to major or assistant chief. He was named
chief of police of Sugarcreek Township in 1998. As chief of police, Blair served
at the pleasure of appellee, the Sugarcreek Township Board of Trustees.
Sugarcreek Township has a population under 10,000 and does not have a civil
service commission.
{¶ 3} The board voted to terminate Blair from his position of chief of
police in September 2006. He was not given the opportunity to return to any
position that he previously held with the Sugarcreek Township Police
Department.
{¶ 4} Blair appealed the board’s decision to the Court of Common Pleas
of Greene County, asserting that he did not receive a hearing regarding his
termination as the chief of police; that he was unconstitutionally denied his right
to procedural and substantive due process of law; that as a police constable
awarded a certificate attesting to his satisfactory completion of an approved basic
training program, he was terminated in violation of the law; and that the board
failed to follow the proper procedures established by the Revised Code for
removing a person in his position. Stating that Blair was properly terminated as
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chief of police but that he was improperly terminated as constable, a magistrate
recommended that Blair be reinstated as police constable. The trial court
overruled the board’s objections and adopted the magistrate’s decision.
{¶ 5} On appeal, the Second District Court of Appeals held that Blair
was not terminated from his police-constable position, but that he was terminated
only from his appointment as chief of police. Blair v. Sugarcreek Twp. Bd. of
Trustees, 2nd Dist. No. 08CA16, 2008-Ohio-5640, ¶ 15-17. The court of appeals
reversed and remanded the case to give Blair the opportunity to present evidence
on the issue of whether “he enjoys certain rights of retention as a certified police
constable and/or former certified police officer of which the [board’s] action
deprived him.” Id. at ¶ 18.
{¶ 6} On remand, the magistrate issued a decision finding that upon the
board’s termination of Blair as chief of police, Sugarcreek Township was not
required to return him to the position in the police department that he held before
his police chief appointment. The trial court overruled Blair’s objections, adopted
the magistrate’s decision, and dismissed the appeal.
{¶ 7} Once again Blair appealed to the Second District, arguing in part
that he had a right of retention as a certified police officer, that he was entitled to
reinstatement to his last position before becoming chief of police upon his
removal as chief of police,1 and that he had been terminated from his position as
police constable. The court of appeals reiterated its previous holding that Blair
had not been terminated as police constable. Blair v. Sugarcreek Twp. Bd. of
Trustees, 2nd Dist. No. 2010 CA 3, 2011-Ohio-1725, ¶ 11. After noting that R.C.
505.49(B)(3) governs a certified police officer’s right to be returned to the
1. In his briefs before us, Blair does not specify the position to which he believes he is entitled to
reinstatement. In his brief to the magistrate on remand in the initial appeal, he argued that he
should be reinstated to the position of major. In his brief to the court of appeals, he argued that he
should be reinstated to the position of assistant chief.
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Sugarcreek Township police department, the court concluded that based on R.C.
505.49, a police officer in townships like Sugarcreek is no longer employed as a
certified police officer once he or she has been appointed chief of police. Id. at
¶ 22-23. After making this distinction, the court held that Blair was not entitled to
return to the position he held before his appointment as chief of police. Id. at
¶ 24.
{¶ 8} The Second District certified that its holding was in conflict with
the holding from the Seventh District in Staley v. St. Clair Twp. Bd. of Trustees,
7th Dist. No. 87-C-44, 1987 WL 29625 (Dec. 15, 1987). We accepted this case as
a certified conflict, 129 Ohio St. 3d 1447, 2011-Ohio-4217, 951 N.E.2d 1045, and
will answer a modified question: whether R.C. 505.49(B)(3) applies to a police
chief who serves in a township where R.C. 505.49(C) is not applicable and who
has been certified as a peace officer pursuant to R.C. 109.77.2
II. Analysis
{¶ 9} Blair argues that his status as a certified township police officer
entitles him to reinstatement to his last position before becoming chief of police,
that he did not waive his tenure rights under R.C. 505.49(B)(3) by accepting the
position of chief of police, and that the Seventh District’s analysis in Staley is
consistent with public policy. The board responds that Blair serves at the pleasure
of the board, that he is not entitled to reinstatement to a previous position, that he
has no tenured rights to waive, and that public policy favors the Second District’s
interpretation of R.C. 505.49.
{¶ 10} We have previously held that “[a]bsent a reason to believe that a
township police chief is guilty of one or more of the named offenses in R.C.
2. The question certified in this case asks whether “[a] certified township police officer who is
appointed chief and then is terminated as chief, other than for cause in a township where R.C.
505.49(C) is not applicable, does not have the automatic right to return to the position he held
prior to his appointment as chief.” Based on our review of the case, we believe that the modified
question as worded above best reflects the actual conflict between the districts.
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505.491, he may be removed from office ‘at the pleasure of the township
trustees,’ pursuant to R.C. 505.49(A).” Smith v. Fryfogle, 70 Ohio St. 2d 58, 434
N.E.2d 1346 (1982), syllabus. In Fryfogle, we considered whether an individual
serving as chief of police at the pleasure of a township’s board of trustees had any
constitutionally protected property right extending beyond the board’s pleasure.
We noted that the General Assembly had established two methods for the removal
of township police chiefs. First, a police chief could be dismissed without cause
pursuant to former R.C. 505.49(A) (now R.C. 505.49(B)(2)). Second, a police
chief could be dismissed after a hearing for violating R.C. 505.491. Because only
a police chief dismissed for improper conduct, as defined by R.C. 505.491, was
entitled to a hearing, we concluded that the General Assembly had not intended to
provide due-process protections to a police chief dismissed for any other reason.
Id. at 61.
{¶ 11} Because the township board of trustees in Fryfogle requested the
terminated police chief to continue to serve as a peace officer in the township’s
police department, we did not then address whether a chief of police has an
automatic right to return to his previous position upon removal from the position
of chief. Thus, while it is clear that the board did not need to conduct a hearing in
order to dismiss Blair pursuant to R.C. 505.49(B)(2), Fryfogle does not answer
the questions of whether R.C. 505.49(B)(3) applies in this situation and whether
Blair should be reinstated to the Sugarcreek Township Police Department.
A. Statutory Framework
{¶ 12} Our analysis of whether Blair is entitled to return to a position with
the Sugarcreek Township Police Department is dependent upon the language
found in R.C. 505.49, which sets forth the manner in which townships may
structure their police departments. R.C. 505.49(B) provides:
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(1) The township trustees by a two-thirds vote of the board
may adopt rules necessary for the operation of the township police
district, including a determination of the qualifications of the chief
of police, patrol officers, and others to serve as members of the
district police force.
(2) * * * [T]he township trustees by a two-thirds vote of the
board shall appoint a chief of police for the district, determine the
number of patrol officers and other personnel required by the
district, and establish salary schedules and other conditions of
employment for the employees of the township police district. The
chief of police of the district shall serve at the pleasure of the
township trustees and shall appoint patrol officers and other
personnel that the district may require * * *. The township trustees
may include in the township police district and under the direction
and control of the chief of police, any constable appointed pursuant
to section 509.01 of the Revised Code, or may designate the chief
of police or any patrol officer appointed by the chief of police as a
constable, as provided for in section 509.01 of the Revised Code,
for the township police district.
(3) * * * [A] patrol officer, other police district employee,
or police constable, who has been awarded a certificate attesting to
the satisfactory completion of an approved state, county, or
municipal police basic training program, as required by section
109.77 of the Revised Code, may be removed or suspended only
under the conditions and by the procedures in sections 505.491 to
505.495 of the Revised Code. Any other patrol officer, police
district employee, or police constable shall serve at the pleasure of
the township trustees.
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{¶ 13} Because it has fewer than 10,000 residents and does not have a
civil service commission, Sugarcreek Township is subject to division (B) of R.C
505.49. However, our reading of R.C. 505.49(B) is informed by R.C. 505.49(C),
which applies to larger townships:
(1) Division (B) of this section does not apply to a
township that has a population of ten thousand or more persons
residing within the township and outside of any municipal
corporation, that has its own police department employing ten or
more full-time paid employees, and that has a civil service
commission established under division (B) of section 124.40 of the
Revised Code. The township shall comply with the procedures for
the employment, promotion, and discharge of police personnel
provided by Chapter 124. of the Revised Code, except as otherwise
provided in divisions (C)(2) and (3) of this section.
(2) The board of township trustees of the township may
appoint the chief of police, and a person so appointed shall be in
the unclassified service under section 124.11 of the Revised Code
and shall serve at the pleasure of the board. A person appointed
chief of police under these conditions who is removed by the board
or who resigns from the position shall be entitled to return to the
classified service in the township police department, in the position
that person held previous to the person’s appointment as chief of
police.
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B. R.C. 505.49(B) must be read in conjunction with R.C. 505.49(C)
{¶ 14} Blair urges us to adopt the analysis set forth by the Seventh District
Court of Appeals in Staley. In that case, St. Clair Township terminated Staley’s
employment as its chief of police during an executive session without giving
Staley a hearing. Like Blair, Staley had completed training to become a certified
peace officer pursuant to R.C. 109.77. The Seventh District held that Staley was a
certified peace officer and thus subject to the provision in former R.C. 505.49(A)
(now 505.49(B)(3)) that states that a patrol officer, other police district employee,
or police constable “who has been awarded a certificate attesting to the
satisfactory completion of an approved state, county, or municipal police basic
training program, as required by section 109.77 of the Revised Code, may be
removed or suspended only under the conditions and by the procedures in sections
505.491 to 505.495 of the Revised Code.” Staley, 7th Dist. No. 87-C-44, 1987
WL 29625, *2. Without addressing the issue of whether a person may be both
chief of police and an “other police district employee,” the Seventh District
concluded that “Mr. Staley is a certificated peace officer. The Board may
terminate appellee’s employment as a township police officer only under the
conditions set forth in R.C. 505.491-505.495.” Id.
{¶ 15} The critical difference between the analysis of the Second District
in the present case and the analysis of the Seventh District in Staley is that the
Second District chose to read R.C. 505.49(B) with respect to language in R.C.
505.49(C). We agree that the two divisions must be read in conjunction with each
other.
{¶ 16} R.C. 505.49(B)(2) provides that “[t]he chief of police of the district
shall serve at the pleasure of the township trustees.” This statement would give
the board full discretionary power to remove a police chief at any time. As the
Seventh District pointed out, however, R.C. 505.49(B)(3) states that “a patrol
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officer, other police district employee, or police constable, who has been awarded
a certificate attesting to the satisfactory completion of an approved state, county,
or municipal police basic training program, as required by section 109.77 of the
Revised Code, may be removed or suspended only under the conditions and by
the procedures in sections 505.491 to 505.495 of the Revised Code.”
{¶ 17} R.C. 505.49(B)(3) can be read in two ways. First, as the Seventh
District interpreted the statute, a chief of police who has received certification
under R.C. 109.77 qualifies as an “other police district employee” for purposes of
R.C. 505.49(B)(3) and may be removed only pursuant to R.C. 505.491 to
505.495. Alternatively, as the Second District interpreted the statute, R.C.
505.49(B)(3) is inapplicable to certified peace officers serving as chief of police
because R.C. 505.49(B)(2) provides that the chief of police serves at the board’s
pleasure and because “chief of police”—a title that is explicitly used many times
throughout R.C. 505.49—is not included in the list of those positions protected
under R.C. 505.49(B)(3).
{¶ 18} In order to clarify this ambiguity, R.C. 505.49(B) and (C) must be
read in pari materia. “In reading statutes in pari materia and construing them
together, this court must give a reasonable construction that provides the proper
effect to each statute. [Maxfield v. Brooks, 110 Ohio St. 566, 144 N.E. 725
(1924), paragraph two of the syllabus.] All provisions of the Revised Code
bearing upon the same subject matter should be construed harmoniously unless
they are irreconcilable. Couts v. Rose (1950), 152 Ohio St. 458, 461, 40 Ohio Op.
482, 90 N.E.2d 139.” State ex rel. Cordray v. Midway Motor Sales, Inc., 122
Ohio St. 3d 234, 2009-Ohio-2610, 910 N.E.2d 432, ¶ 25.
{¶ 19} When reading divisions (B) and (C) of R.C. 505.49 in pari materia,
it is clear that terminated police chiefs in townships with populations under
10,000 like Sugarcreek Township are given no right to return to a previous police
department position. Although R.C. 505.49(C)(2) specifically states that “[a]
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person appointed chief of police [in a township with a population of 10,000 or
more] * * * who is removed by the board * * * shall be entitled to return to the
classified service in the township police department, in the position that person
held previous to the person’s appointment as chief of police,” R.C. 505.49(B)
does not grant this right to police chiefs in less populous townships. “ ‘In
construing a statute, we may not add or delete words.’ State v. Hughes (1999), 86
Ohio St. 3d 424, 427, 715 N.E.2d 540.” State v. Perez, 124 Ohio St. 3d 122, 2009-
Ohio-6179, 920 N.E.2d 104, ¶ 120. If the legislature had intended to grant the
right to return to a previous position to terminated police chiefs in townships
subject to R.C. 505.49(B), it would have included language indicating this, just as
it did in R.C. 505.49(C)(2). We will not add this language to the statute and thus
will take the legislature at its word when it states in R.C. 505.49(B)(2) that in
these townships, “[t]he chief of police of the district shall serve at the pleasure of
the township trustees.”
{¶ 20} We do not agree with Blair’s argument that the statutory history of
R.C. 505.49 dictates that he has a right to return to his previous position. Blair
asserts that the provision in R.C. 505.49(C)(2) granting a right to return to a
previous position was added to the statute to ensure that police chiefs in civil
service townships have the same rights as police chiefs in non-civil-service
townships, and that in adding this provision, the legislature did not intend to
deprive police chiefs of non-civil-service townships of their rights to return to
their previous positions. R.C. 505.49(B), however, does not explicitly grant this
right to police chiefs in non-civil-service townships. We will not read an implied
right into the statute, even if the legislature intended it to be there, because we
“must construe intent of the lawmakers as expressed in the law itself.”
Wachendorf v. Shaver, 149 Ohio St. 231, 237, 78 N.E.2d 370 (1948).
{¶ 21} We further disagree with Blair’s contention that there is no reason
for the legislature to give police chiefs in civil service townships protections that
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police chiefs in other townships do not have. To the contrary, there are legitimate
reasons for the General Assembly to make this distinction. For a police chief to
be protected under R.C. 505.49(C), the chief must be employed by a township
with a population of 10,000 or more, with a police department of at least ten full-
time employees, and with a civil service commission. The more populous
townships are better able to place a former chief in a position previously held than
are the less populous townships. It is reasonable for the General Assembly to
relieve the smaller townships of the duty to reappoint a former chief to a position
that may already be filled in a department with few employees, especially when
doing so might put significant strain on the township’s budget.
{¶ 22} Based on the language of the statute, we agree with the Second
District Court of Appeals that R.C. 505.49(B)(3) does not apply to police chiefs.
R.C. 505.49(B)(2) states that police chiefs in non-civil-service townships serve at
the pleasure of the township board of trustees. No limitation to this statement is
found in the statute, even though the legislature provided a right to return to a
previous position to police chiefs in civil service townships under R.C. 505.49(C).
We therefore hold that Blair did not have a right to return to his previous position
with the Sugarcreek Township Police Department.
III. Conclusion
{¶ 23} We hold that R.C. 505.49(B)(3) does not apply to police chiefs
who have been certified as peace officers pursuant to R.C. 109.77 but serve in
townships where R.C. 505.49(C) is not applicable. Furthermore, a certified
township peace officer who is appointed chief and then is terminated other than
for cause in a township where R.C. 505.49(C) is not applicable does not have the
automatic right to return to the position he held prior to his appointment as chief.
Under R.C. 505.49(B)(2), Blair served at the pleasure of the board. Upon his
termination, Blair had no right to return to any previous position he had
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previously held in the Sugarcreek Township Police Department. We accordingly
affirm the judgment of the court of appeals.
Judgment affirmed.
O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL, CUPP,
and MCGEE BROWN, JJ., concur.
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Brannon & Associates, Dwight D. Brannon, and Matthew C. Schultz, for
appellant.
Surdyk, Dowd & Turner Co., L.P.A., Edward J. Dowd, and Dawn M.
Frick; and Stephen K. Haller, Greene County Prosecuting Attorney, and Elizabeth
Ellis, Assistant Prosecuting Attorney, for appellees.
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