Yachanin v. Cleveland Civ. Serv. Comm. ( 2013 )

[Cite as Yachanin v. Cleveland Civ. Serv. Comm., 2013-Ohio-4485.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99802
GEORGE YACHANIN
PLAINTIFF-APPELLANT
vs.
CLEVELAND CIVIL SERVICE
COMMISSION, ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-765387
BEFORE: E.T. Gallagher, J., Jones, P.J., and Kilbane, J.
RELEASED AND JOURNALIZED: October 10, 2013
ATTORNEYS FOR APPELLANT
Stewart D. Roll
David M. Cuppage
Climaco, Wilcox, Peca, Tarantino & Garofoli
55 Public Square, Suite 1950
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEES
Barbara Langhenry
Director of Law
James C. Cochran
Assistant Director of Law
City of Cleveland
601 Lakeside Avenue, Room 106
Cleveland, Ohio 44114
EILEEN T. GALLAGHER, J.:
{¶1} Plaintiff-appellant George Yachanin (“Yachanin”) appeals the trial court’s
judgment affirming the Cleveland Civil Service Commission’s (“the CCSC”) decision to
sustain Yachanin’s layoff. We find no merit to the appeal and affirm the trial court’s
judgment.
{¶2} Yachanin began employment with defendant-appellee city of Cleveland
(“Cleveland” or “the city”) in 1987. He worked in various positions including driver and
laborer until January 2003, when he was appointed to the class of Construction
Equipment Operator (“CEO”), Group B. He was made a regular member of the class in
November 2008, when a charter amendment passed that allowed him to be grandfathered
in as a regular, full-time member.1
{¶3} On May 16, 2011, Yachanin received a letter informing him he was going to
be laid off as of May 30, 2011. The letter indicated the city was forced to reduce its
workforce and lay off personnel as a result of state imposed budget cuts. At the time of
his layoff, Yachanin was employed by the Division of Waste but was performing work
for the Division of Streets.
{¶4} Yachanin appealed the layoff to the CCSC. Following a hearing, the CCSC
sustained the city’s decision, finding that the city complied with all applicable civil
service commission rules. Yachanin appealed the CCSC’s decision to the common pleas
There is evidence that Yachanin passed a civil service test. However, there is no
1
evidence as to when he took the test or when he passed. Witnesses testified he was grandfathered in
as a regular member.
court. In affirming the CCSC’s decision, the common pleas court stated that it found the
decision “is not unconstitutional, illegal, arbitrary, capricious, unreasonable or
unsupported by the preponderance of substantial, reliable, and probative evidence on the
whole record.” Yachanin now appeals and raises three assignments of error.
Standard of Review
{¶5} In the first assignment of error, Yachanin argues the common pleas court’s
decision should be reversed because it applied the wrong standard of review.
{¶6} Yachanin brought this administrative appeal pursuant to R.C. 119.12 and
124.34 and contends that appeals brought pursuant to R.C. 119.12 are subject to de novo
review. The city contends Yachanin had no right to appeal under R.C. 119.12 and that
the standard of review applicable to appeals brought pursuant to R.C. Chapter 2506 is the
only applicable standard of review.
{¶7} The right to appeal under R.C. Chapter 119, Ohio’s Administrative Procedure
Act, is provided in R.C. 119.12. The first paragraph of R.C. 119.12 creates a right to
appeal agency decisions affecting professional licensing. In the second paragraph, R.C.
119.12 states, in relevant part:
Any party adversely affected by any order of an agency issued pursuant to
any other adjudication may appeal to the court of common pleas of Franklin
County, * * * except that appeals under division (B) of section 124.34 of
the Revised Code from a decision of the state personnel board of review or
a municipal or civil service township civil service commission shall be
taken to the court of common pleas of the county in which the appointing
authority is located.
(Emphasis added.) R.C. 119.01 defines “agency” as “any official, board, or commission
having authority to promulgate rules and make adjudications in the civil service
commission.”
{¶8} R.C. 124.34(B) governs the reduction, suspension, removal, and demotion of
civil service employees for disciplinary reasons. Deem v. Fairview Park, 8th Dist.
Cuyahoga No. 96843, 2011-Ohio-5836, ¶ 12. Yachanin’s complaint is that he was
improperly laid off due to a lack of funds. Another section, R.C. 124.321(B)(1), allows
lay offs necessitated by a lack of funds within an appointing authority. Because
Yachanin’s complaint relates to a lay off for non-disciplinary reasons, Yachanin had no
right to appeal his layoff to the Cuyahoga County Common Pleas Court and could only
appeal the civil service commission’s order to the Franklin County Common Pleas Court
under R.C. 119.12. Indeed, this court has previously held that “[t]here is no right of
appeal to the court of common pleas under R.C. 124.34 for the determination of a
municipal civil service commission in cases of employees’ reduction in pay and benefits
for non-disciplinary reasons.” Garfield Hts. School Dist. Bd. of Edn. v. Gillihan, 17
Ohio App.3d 86, 477 N.E.2d 681 (8th Dist. 1984), paragraph one of the syllabus.
{¶9} Yachanin’s complaint is appealable pursuant to R.C. Chapter 2506, which
confers jurisdiction to the common pleas court and the appellate court to review
administrative decisions of any agency or political subdivision. R.C. 2506.01 states, in
relevant part:
(A) Except as otherwise provided in sections 2506.05 to 2506.08 of the
Revised Code, and except as modified by this section and sections 2506.02
to 2506.04 of the Revised Code, every final order, adjudication, or decision
of any officer, tribunal, authority, board, bureau, commission, department,
or other division of any political subdivision of the state may be reviewed
by the court of common pleas of the county in which the principal office of
the political subdivision is located as provided in Chapter 2505 of the
Revised Code.
The CCSC is a municipal administrative agency whose final order may be appealed
pursuant to R.C. 2506.01. Pub. Emps. Council No. 51, AFSCME AFL-CIO v. Univ. of
Cincinnati, 39 Ohio Misc. 11, 314 N.E.2d 403 (C.P. 1974). Therefore, we apply the
standard of review applicable to appeals brought under R.C. Chapter 2506 as set forth in
R.C. 2506.04, which states:
If an appeal is taken in relation to a final order, adjudication, or decision
covered by division (A) of section 2506.01 of the Revised Code, the court
may find that the order, adjudication, or decision is unconstitutional, illegal,
arbitrary, capricious, unreasonable, or unsupported by the preponderance of
substantial, reliable, and probative evidence on the whole record.
See also Henley v. Youngstown Bd. of Zoning Appeals, 90 Ohio St.3d 142, 147-148, 735
N.E.2d 433 (2000).
{¶10} In affirming the CCSC’s decision, the trial court in this case stated:
The court having reviewed the entire record and the briefs of the appellant
and appellee, the court affirms the decision of the Cleveland Civil Service
Commission, finding the decision is not unconstitutional, arbitrary,
capricious, unreasonable or unsupported by the preponderance of
substantial, reliable, and probative evidence.
Therefore, trial court applied the correct standard of review to this administrative appeal.
{¶11} Yachanin’s first assignment of error is overruled.
Appellate Review
{¶12} The standard of review to be applied by the court of appeals in an R.C.
2506.04 appeal is “more limited in scope.” Kisil v. Sandusky, 12 Ohio St.3d 30, 34, 465
N.E.2d 848 (1984). R.C. 2506.04 grants a more limited power to the court of appeals to
review the judgment of the common pleas court only on “‘questions of law,’ which does
not include the same extensive power to weigh ‘the preponderance of substantial, reliable
and probative evidence,’ as is granted to the common pleas court.” Henley at 147-148,
quoting Kisil at 34, fn. 4. We therefore apply this more limited standard of review to the
trial court’s judgment.
Lack of Funds/ Seniority
{¶13} In the second assignment of error, Yachanin argues the trial court erred in
affirming the CCSC’s decision because the CCSC’s decision ignored Cleveland’s burden
of proving that Yachanin was laid off due to a lack of funds. He also argues the trial court
should have reversed the CCSC’s decision because his seniority prevented him from
being laid off.
{¶14} R.C. 124.321 allows municipalities to lay off employees for a variety of
reasons including a “lack of funds.” R.C. 124.321(B); Penrod v. Ohio Dept. of Adm.
Servs., 113 Ohio St.3d 239, 2007-Ohio-1688, 864 N.E.2d 79, ¶15-16. R.C.
124.321(B)(2) provides that “a ‘lack of funds’ means an appointing authority has a
current or projected deficiency of funding to maintain current, or to sustain projected,
levels of staffing and operations.”
{¶15} Ohio Adm. Code 124-7-01(A)(2) places the burden of proof on the
employer to prove lack of funds. CCSC Civil Service Rule 9.70 states, in relevant part:
“Though the appeal is brought on behalf of the employee, the appointing authority has the
burden of proof.” Cleveland does not dispute its burden of proof.
{¶16} Cleveland’s May 16, 2011 letter to Yachanin advised him that he was being
laid off due to a lack of funds. Yachanin contends there was no proof that Cleveland, the
appointing authority, “ha[d] a current or projected deficiency in funding to maintain
current, or to sustain projected, levels of staffing and operations.”
{¶17} However, Ronnie Owens (“Owens”), the commissioner of waste collection,
testified that lay offs were based “on the city’s financial situation, as well as operational
needs,” and explained that the city was receiving less funding from the state. The
Division of Waste manages its own budget and payroll, which must be approved by city
counsel annually. Owens also testified that there was substantially less trash being
collected in recent years, so the city required fewer people to move it.
{¶18} Further, Debbie Southerington testified that she became Cleveland’s human
resources director in March 2011, just before numerous layoffs were going to occur. She
stated that human resources interacted with all city departments and divisions concerning
lay off notices because layoffs were occurring city wide as a result of the state’s funding
reductions. The implication of this evidence is that as a result of state funding cuts, there
was a projected deficiency in funds to sustain current staffing levels. Yachanin offered
no evidence to refute the city’s evidence that lay offs were necessitated by a loss of state
funds. Therefore, there was a preponderance of the evidence to support the CCSC’s
finding that Yachanin’s lay off was necessitated by a lack of funds.
{¶19} Yachanin also argues that because he had more seniority than other CEOs,
those CEOs with less seniority than he should have been laid off before him. He
contends the CCSC should have determined layoffs from a list that included all of the
city’s CEO Class B operators regardless of the division in which they were employed.
{¶20} However, Civil Service Rule 8.20, which governs lay offs, provides, in
relevant part:
Whenever it becomes necessary to reduce the working force in a
classification in any Division of the City service, the appointing authority
may lay off any appointee in such classification; provided that where two or
more persons are employed in a classification, they shall be laid off in the
inverse order of their appointment in such classification. (Emphasis added.)
Civil Service Rule 8.20 clearly provides that lay offs are made according to seniority
within a city’s division and not seniority within a classification as a whole. The rule
expressly states that it is aimed at reducing “the working force in a classification in any
Division.”
{¶21} Yachanin concedes the two other CEOs employed in the Division of Waste
had seniority over him. The fact that Yachanin had more seniority than other CEOs
employed in other divisions throughout the city is irrelevant under Civil Service Rule
8.20. Therefore, the CCSC and the trial court applied Civil Service Rule 8.20 correctly
when it laid Yachanin off because he had the least seniority in the division.
{¶22} The second assignment of error is overruled.
Complete Record
{¶23} In the third assignment of error, Yachanin argues the trial court’s decision
should be reversed because the CCSC failed to comply with R.C. 119.12’s mandate to
prepare and certify a complete record of the proceedings within 30 days after receiving a
notice of appeal.
{¶24} As previously explained, R.C. 119.12 does not govern this appeal.
Therefore, the sanction contained in R.C. 119.12 that requires the court to enter judgment
in favor of the party adversely affected by the agency’s decision for failure to certify a
complete record is inapplicable. Nevertheless, R.C. 2505.08 provides that “within forty
days after the filing of a notice of appeal” the agency whose final order is being appealed
“shall prepare and file in the court to which the appeal is taken, a complete transcript of
all the original papers, testimony, and evidence offered, heard, and taken into
consideration in issuing the final order.”
{¶25} Yachanin does not argue that the CCSC failed to file the record in a timely
manner or that any specific parts of the record are missing. He contends the affidavit
from Munday Workman (“Workman”), the supervisor of CCSC records, attesting to the
authenticity of the “Administrative Record,” fails to contain a certification that the agency
has submitted a “complete record” of the administrative proceedings to the court. He
argues, citing McKenzie v. Ohio State Racing Comm., 5 Ohio St.2d 229, 215 N.E.2d 397(1966), that unless the agency member who certifies the record specifically states that it
“is a complete record,” the record is not complete. However, the McKenzie court
discussed the record requirements for appeals brought pursuant to R.C. 119.12 rather than
R.C. Chapter 2505, which does not contain the same sanction for failure to certify the
record.
{¶26} Moreover, in Arlow v. Ohio Rehab. Servs. Comm., 24 Ohio St.3d 153, 493
N.E.2d 1337 (1986), which also involved an R.C. 119.12 appeal, the Ohio Supreme Court
held that minor imperfections in the record do not warrant automatic judgment in the
appellant’s favor and that the appellant must demonstrate that he was prejudiced by the
agency’s omission. Id. at 155.
{¶27} In the affidavit certifying the record in this case, Workman states: “The
attached documents are a true and accurate copy of the Administrative Record of the Civil
Service Commission proceedings in the matter of George Yachanin.” The McKenzie
court held that certified copies of documents are sufficient to complete the record.
McKenzie at paragraph two of the syllabus. Yachanin fails to demonstrate any prejudice
caused by Workman’s failure to state that the true and accurate copy of the
Administrative Record is a “complete record.”
{¶28} Therefore, the third assignment of error is overruled.
{¶29} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the common pleas court to carry this
judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
LARRY A. JONES, SR., P.J., and
MARY EILEEN KILBANE, J., CONCUR