State ex rel. Ohio Patrolmen's Benevolent Assn. v. Warren (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Ohio Patrolmen’s Benevolent Assn. v. Warren, Slip Opinion No. 2020-Ohio-5372.]
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SLIP OPINION NO. 2020-OHIO-5372THE STATE EX REL. OHIO PATROLMEN’S BENEVOLENT ASSOCIATION ET AL.,
APPELLANTS, v. THE CITY OF WARREN ET AL., APPELLEES.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Ohio Patrolmen’s Benevolent Assn. v. Warren,
Slip Opinion No. 2020-Ohio-5372.]
Mandamus—Civil-service law—R.C. 124.44 and 124.37—Police officers’
retirements did not create vacancies that needed to be filled under R.C.
124.44 because city had passed authorized-strength ordinance abolishing
their positions upon their retirement—R.C. 124.37 does not require
demotion or layoff whenever a reduction of authorized strength of a police
force has been enacted—Court of appeals’ dismissal of petition affirmed.
(No. 2019-1766—Submitted June 2, 2020—Decided November 25, 2020.)
APPEAL from the Court of Appeals for Trumbull County,
No. 2015-T-0017, 2019-Ohio-5046.
____________________
Per Curiam.
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{¶ 1} Appellants Edward J. Hetmanski, Jeffrey Orth, Benjamin T. Harrell,
Michael Merritt, and Martin M. Gargas, who are members of bargaining units
represented by appellant Ohio Patrolmen’s Benevolent Association, seek a writ of
mandamus ordering that the officers be promoted (or allowed to sit for a
competitive promotional examination) pursuant to state civil-service law, plus
compensatory relief including back pay. Appellees, the city of Warren, the city’s
director of service and safety, and the city’s civil-service commission (collectively,
“the city”), declined to offer the officers promotions or exams because the city had
passed an authorized-strength ordinance to abolish the positions at issue upon the
retirement of their former occupants. Because the relief is sought for the individual
officers, we will refer to the association and the individual appellants collectively
as “the officers.”
{¶ 2} The officers assert that state civil-service statutes prohibit
abolishment of upper-rank police positions by attrition, requiring instead that
promotions occur upon the retirement of officers in those ranks. In accord with this
theory, the officers argue that the city must first promote the individual officers;
only after doing so would the city, according to the officers, have the power to
abolish the positions at issue.
{¶ 3} The Eleventh District Court of Appeals granted the city’s motion for
judgment on the pleadings, and the officers have appealed. We now affirm.
I. BACKGROUND
{¶ 4} The city of Warren’s police force is composed of officers holding the
following ranks: chief, captain, lieutenant, sergeant, and patrol officer.1 Under a
1987 authorized-strength ordinance, as amended in 1996, the force consisted of 1
chief, 3 captains, 6 lieutenants, 10 sergeants, and 59 patrol officers.
1. The city uses “police officer” to refer to the lowest rank of its police force. For the sake of clarity,
we will use the statutory term “patrol officer” for this rank of officer.
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{¶ 5} In November 2014, the city passed a new authorized-strength
ordinance. The 2014 ordinance prescribed reductions in the upper ranks of the
police department “by means of attrition” from three captains to two, from six
lieutenants to five, and from ten sergeants to nine.
{¶ 6} In December 2014, a police captain retired, and in January 2015, a
police lieutenant retired. Instead of promoting from the next lower rank pursuant
to R.C. 124.44, the city deemed the two positions abolished under the 2014
ordinance.
{¶ 7} The officers filed a petition for a writ of mandamus against the city in
the Eleventh District Court of Appeals in February 2015. Lieutenant Gargas, who
was next in line for promotion to captain at the time the former captain retired,
sought his promotion to captain, plus compensatory relief in the form of “benefits,
seniority, and/or back pay.” Officer Hetmanski likewise sought promotion to
sergeant, plus compensatory relief similar to that sought by Gargas. After the filing
of this action, Officer Orth was promoted to sergeant on July 14, 2016; he seeks
compensatory benefits for the city’s failure to timely promote him. Sergeant
Merritt seeks the opportunity to sit for an examination to be able to succeed
Lieutenant Gargas when Gargas advances to captain. As a result of the promotions
of others, Officer Harrell would be next in line for promotion to sergeant.
{¶ 8} The city answered the complaint and filed a motion for judgment on
the pleadings. Thereafter, the officers filed a motion for partial summary judgment
asking for summary relief on the main legal question: whether abolishment by
attrition violates state civil-service law.
{¶ 9} On February 17, 2017, the court of appeals granted partial summary
judgment for the officers. The court found that the two retirements created
vacancies as a matter of law and that the city had a legal duty to fill the vacancies
under R.C. 124.44; at the same time, the court denied the city’s motion for judgment
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on the pleadings. The court did not address the issues of specific relief, including
entitlement to, and amount of, back pay.
{¶ 10} The city appealed to this court, but after briefing, we remanded the
case for lack of a final, appealable order. 151 Ohio St.3d 1521, 2018-Ohio-557, 91
N.E.3d 754.
{¶ 11} On remand, the parties agreed to have the case decided without trial
based on stipulations, joint exhibits, and briefing. The case was assigned to a
reconstituted three-judge panel, which reached the conclusion opposite to that
reached by the original panel. The new panel denied the officers’ motion for partial
summary judgment, granted the city’s motion for judgment on the pleadings, and
dismissed the petition. The officers have appealed.2
II. ANALYSIS
{¶ 12} In this appeal, we consider the effect of the city’s 2014 authorized-
strength ordinance in light of two state civil-service statutes as we have applied
them in our case law. Article XV, Section 10 of the Ohio Constitution provides
that “[a]ppointments and promotions in the civil service of the state, the several
counties, and cities, shall be made according to merit and fitness, to be ascertained,
as far as practicable, by competitive examinations,” and it requires the General
Assembly to pass laws “providing for the enforcement of this provision.” The
statutes that we focus on in this appeal, R.C. 124.44 and 124.37, have been enacted
pursuant to that mandate. As the city concedes in its brief, “[i]n non-charter cities
like Warren, Ohio R.C. 124.44, governs promotions in police departments.”
2. Pursuant to S.Ct.Prac.R. 17.02(A), the city has filed a motion for oral argument on the grounds
that “oral argument may be helpful to this Court in making the correct decision and will allow the
Court to ask questions of counsel on any aspect of the case.” In evaluating such a motion, we
“consider whether the case involves a matter of great public importance, complex issues of law or
fact, a substantial constitutional issue, or a conflict among the courts of appeals.” State ex rel.
Manley v. Walsh, 142 Ohio St.3d 384, 2014-Ohio-4563, 31 N.E.3d 608, ¶ 16. Because the city
identifies none of these factors, we deny the motion.
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{¶ 13} This appeal contests the grant of judgment on the pleadings, presents
a stipulated set of facts, and calls solely for the correct interpretation and application
of statutes. Accordingly, our standard of review is de novo. State ex rel. DiFranco
v. S. Euclid, 138 Ohio St.3d 367, 2014-Ohio-538, 7 N.E.3d 1136, ¶ 13; New Riegel
Local School Dist. Bd. of Edn. v. Buehrer Group Architecture & Engineering, Inc.,
157 Ohio St.3d 164, 2019-Ohio-2851, 133 N.E.3d 482, ¶ 8. And it is settled that
mandamus is an appropriate action for wrongful failure to promote, State ex rel.
Hipp v. N. Canton, 75 Ohio St.3d 221, 222, 661 N.E.2d 1090 (1996), as well as for
back pay and compensatory relief, State ex rel. Manley v. Walsh, 142 Ohio St.3d
384, 2014-Ohio-4563, 31 N.E.3d 608, ¶ 25.
A. R.C. 124.44 and 124.37 and the decision on appeal
{¶ 14} The city’s 2014 ordinance lists the police-force ranks and the number
of positions in each rank. Using the terms “attrition” and “abolishment,” the
ordinance states that the number of positions “shall continue to be reduced” in the
specified ranks. It is undisputed that the ordinance contemplates abolishment of
one captain, one lieutenant, and one sergeant position upon the next retirement of
an officer of each rank. See Webster’s Ninth New Collegiate Dictionary 115 (1989)
(defining “attrition” as “a reduction in numbers usu. as a result of resignation,
retirement, or death”).
{¶ 15} R.C. 124.44 governs the promotion of police officers. Two features
of this statute, which we will sometimes refer to as the “promotion statute,” are
crucial in this case. First, “[v]acancies 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.” Id. Second, when a
“vacancy occurs” and no eligibility list has been established, the local civil-service
commission has 60 days within which it “shall” hold a competitive promotional
examination to establish such a list, so that the promotion can be made from the
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list. Id. “Vacancy” is not defined for purposes of R.C. 124.44. See R.C. 124.01
(setting forth definitions for R.C. Chapter 124).
{¶ 16} R.C. 124.37 addresses removals, reappointments, and demotions in
police and fire departments, and we will sometimes refer to it as the “removal
statute.” Under R.C. 124.37, if an upper-rank position is abolished, its incumbent
is demoted to the next lower rank, and so on until the most recently hired patrol
officer is laid off.
{¶ 17} In the decision on appeal, the court of appeals concluded that
“nothing in [R.C. 124.44 and 124.37] prohibit[s] the City from accomplishing a
reduction in force by attrition” and that “attrition is the least disruptive means of all
possible methods to reduce the force” inasmuch as “[n]o officer was laid off, and
no officer needed to be demoted.” 2019-Ohio-5046, ¶ 17. In so holding, the court
distinguished the two decisions the officers primarily relied on: Hungler v.
Cincinnati, 25 Ohio St.3d 338, 496 N.E.2d 912 (1986), and Zavisin v. Loveland, 44
Ohio St.3d 158, 541 N.E.2d 1055 (1989).
{¶ 18} The court of appeals found that both of those cases involved the
occurrence of a vacancy that triggered R.C. 124.44, requiring a promotion that each
city had refused to offer. 2019-Ohio-5046 at ¶ 22, 25, 28. But the court held that
unlike those cases, the present case involves “attrition” in the sense of automatic
abolishment upon the former officers’ retirement, preventing a vacancy from
occurring in the first place. Id. at ¶ 30, 33. Accordingly, the court reasoned, the
promotion statute itself required no promotion from the lower ranks.
{¶ 19} Additionally, the court concluded that R.C. 124.37 did not require
any demotions or layoffs because there was no incumbent in each position that was
abolished. By contrast, the dissenting judge interpreted R.C. 124.37 as controlling
any abolishment of a police-force position above the patrol-officer rank, thereby
concluding that abolishment by attrition violates the statute. Id. at ¶ 41-42 (Wright,
P.J., dissenting).
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January Term, 2020
B. R.C. 124.37 and 124.44 do not prohibit upper-rank positions from being
abolished by attrition
{¶ 20} We restate the question before us as follows: May a city council,
without violating R.C. 124.44 and 124.37, enact an ordinance to reduce a police
force by prospectively canceling the legal authorization for certain positions upon
the retirement of the incumbents?
{¶ 21} The officers contend that R.C. 124.44 and 124.37 foreclose
abolishment through attrition, which is the explicit premise of the city’s 2014
ordinance. According to the officers’ proposition of law, “[t]he abolishment of a
classified civil service position above the rank of patrolm[a]n 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.”
{¶ 22} In addressing this issue, we find that the following two sentences of
R.C. 124.37 are particularly significant:
When it becomes necessary in a police or fire department,
through lack of work or funds, or for causes other than those outlined
in [R.C. 124.34, relating to removal for misconduct], 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.
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{¶ 23} The officers reason that the statute, by linking a reduction of force
to a layoff with the word “shall,” requires that any abolishment of an upper-rank
police position triggers the demotion-and-layoff procedure. And because there
must logically be an “incumbent” in the position in order to demote that person, a
retirement must trigger the promotion provision of R.C. 124.44, which requires
promotion to the next rank when a “vacancy occurs.” On this understanding,
vacancies occurred as a matter of state law upon the retirement of the police captain
in December 2014 and the police lieutenant in January 2015—and the statute
thereby preempted and invalidated the ordinance purporting to abolish the positions
upon the retirements.
{¶ 24} The city counters that the difficulty with the officers’ interpretation
of R.C. 124.44 and 124.37 is that the statutes do not by their plain terms prohibit
abolishment by attrition. It notes that “vacancy” is not defined for purposes of R.C.
124.44, let alone defined in a manner helpful to the officers’ claims. And in the
city’s view, the practical result of the officers’ reading is that to abolish a position,
the appointing authority must engage in the fiction of promoting and then
immediately demoting an entire line of employees. Instead, the city contends, R.C.
124.37 does not state that a demotion or layoff must occur whenever there is a
legally enacted reduction of the authorized strength of the police force; what R.C.
124.37 does clearly do is state who is to be laid off—but only if the circumstances
make it necessary for a layoff to occur.
{¶ 25} We think the city’s reading of the statute is the better one. To begin,
the officers misread the use of the word “shall” in R.C. 124.37. That statute
provides, “When it becomes necessary in a police or fire department * * * to reduce
the force in such department, the youngest employee in point of service shall be
first laid off.” The statute does not say that reduction in the force can be
accomplished only by layoffs. It merely outlines the order in which layoffs must
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occur: the employee with the least amount of service “shall be first laid off.”
(Emphasis added.) Id.
{¶ 26} The officers’ contention that positions may be abolished only
through demotion also reads too much into the statute. The statute says, “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 * * *.” (Emphasis added.) Id. This provision gives further instruction
as to the order in which layoffs must take place: rather than direct that the employee
whose position was abolished be laid off, the statute provides that demotions should
occur down the line until the “youngest employee in point of service” is laid off.
Nothing in the statute suggests that the appointing authority may not abolish a
position unless it is simultaneously demoting someone from that position. Indeed,
a plain reading suggests the opposite: by saying that the statute applies only when
both (1) a position has been abolished and (2) an incumbent has been appointed, it
suggests the possibility of a situation in which a position has been abolished to
which no incumbent has been appointed. Thus, by its plain terms, the statute
outlines the procedure that must be followed when there is an incumbent in the
position being abolished. Nothing in the statute precludes abolishment through the
prospective attrition process used here.
C. Hungler and Zavisin do not dictate a contrary result
{¶ 27} The officers rely on Hungler, 25 Ohio St.3d 338, 496 N.E.2d 912,
and Zavisin, 44 Ohio St.3d 158, 541 N.E.2d 1055. In those cases, we invalidated
attempted abolishments that did not follow R.C. 124.37’s demotion/layoff
procedure but we did so under circumstances materially different from those
presented here. Neither of those decisions addressed an ordinance that abolishes a
position through attrition on a prospective basis and therefore prevents a vacancy
from occurring. Accordingly, neither decision controls the disposition of this case.
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{¶ 28} Hungler involved a demotion/repromotion scheme to abolish two
lieutenant positions. A lieutenant was set to be promoted to captain, which would
have created a vacancy at the lieutenant position. To prevent a promotion to that
position, the city abolished a different lieutenant position before the vacancy
occurred and demoted the incumbent to sergeant for a day. Then when the
lieutenant vacancy came open, the demoted lieutenant was repromoted to the vacant
lieutenant spot. The city utilized the same process when a second vacancy occurred
in the lieutenant position. The elimination of the two lieutenant positions and
repromotion of their incumbents blocked the promotions of the sergeants who had
been next in line for promotion to lieutenant.
{¶ 29} We rejected the city’s actions on two grounds. First, we credited the
trial court’s finding that the scheme had not been authorized by the appointing
authority. And although the scheme sought to reduce the number of lieutenant
positions to 37, it was undisputed that at the relevant time, “the complement of
police lieutenants, as authorized by the Cincinnati City Council, was set at thirty-
nine.” Hungler at 339. Second, although the city had demoted a lieutenant to
sergeant and had demoted a sergeant to patrol officer, it had not laid off any patrol
officers. We therefore determined that the city had not complied with the
requirement in R.C. 124.37 that when an upper-level demotion occurs, the
demotions must continue down the line until the patrol officer with the least
seniority is laid off.
{¶ 30} In Zavisin, 44 Ohio St.3d 158, 541 N.E.2d 1055, the retirement of a
lieutenant had created a vacancy. Instead of conducting an examination,
determining eligibility, and promoting to fill the position, the city of Loveland—
acting after the retirement but within the 60-day period allowed for conducting an
exam—passed an ordinance purporting to abolish the position. Id. at 159. Thus,
the city’s legislative body had acted to abolish the lieutenant position but only after
the vacancy had unequivocally occurred pursuant to R.C. 124.44.
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{¶ 31} When, as in this appeal, factually distinct cases are cited, we must
be “cautious not to pluck a few statements” from them and “apply them overly
literally, without remembering their context.” Penrod v. Ohio Dept. of Adm. Servs.,
113 Ohio St.3d 239, 2007-Ohio-1688, 864 N.E.2d 79, ¶ 26. The present case is not
controlled by Hungler, because the city council in this case enacted the force-
reduction ordinance to deauthorize the positions upon the retirement of the former
officers. And the present case is not controlled by Zavisin, because, in that case,
the legislative deauthorization occurred after the retirement, meaning that the
lieutenant position was still authorized and became legally vacant under R.C.
124.44 when the retirement occurred. By contrast, here, the city’s ordinance,
having already taken effect, disestablished the positions at issue by virtue of the
retirements themselves. The result is that the retirements did not create vacancies
that needed to be filled under R.C. 124.44.
{¶ 32} The officers contend that our statement in Zavisin at 160—“[w]hen
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”—means that the city’s 2014 ordinance cannot as a matter of law
prevent the vacancies from occurring. In other words, the officers argue that the
ordinance cannot disestablish a position until the promotion has occurred.
{¶ 33} The flaw in this argument is that neither R.C. 124.44 nor R.C. 124.37
demands the recognition of a vacancy in contravention of a local ordinance that has
already disestablished the position. Under our case law, a civil-service position can
be “vacant” only if it is established by law. Zavisin, 44 Ohio St.3d at 160, 541
N.E.2d 105; accord State ex rel. Pell v. Westlake, 64 Ohio St.2d 360, 415 N.E.2d
289 (1980) (newly created position was vacant by virtue of ordinance authorizing
the position and general appropriation for department). Here, the very purpose of
the ordinance at issue lies in deauthorizing a position automatically upon the
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retirement of its incumbent. Once the incumbent’s position has been validly
disestablished, then a vacancy simply does not occur upon his retirement.
{¶ 34} Additionally, the officers cite State ex rel. Bednar v. N. Canton, 69
Ohio St.3d 278, 281, 631 N.E.2d 621 (1994), for the proposition that “[b]y itself,
an ordinance limiting the force to a certain number of lieutenants does not
sufficiently indicate an intent to alter the mandatory appointment procedures set
forth in R.C. 124.44.” But that case is inapposite because the city officials in
Bednar did not argue, as the city of Warren does here, that R.C. 124.44 did not
require a promotion; instead, the city officials in Bednar argued that that city’s
charter authorized a home-rule refusal to promote that overrode the operation of
R.C. 124.44. As the court of appeals had noted in Bednar, after one lieutenant
retired, the city officials “neither appointed anyone to replace him, nor [did it]
eliminate[ ] that position.” (Emphasis added.) State ex rel. Bednar v. N. Canton,
5th Dist. Stark No. CA-9047, 1993 WL 50732, *1 (Jan. 29, 1993). Under those
circumstances, R.C. 124.44 did require a promotion. By contrast, the ordinance at
issue here clearly aims to eliminate positions by virtue of retirement.
{¶ 35} Accordingly, we reject the officers’ argument that Hungler and
Zavisin dictate the disposition of this appeal. We therefore affirm the judgment of
the court of appeals.
III. CONCLUSION
{¶ 36} For the foregoing reasons, we deny the motion for oral argument and
affirm the judgment of the court of appeals.
Judgment affirmed.
O’CONNOR, C.J., and DEWINE, DONNELLY, and STEWART, JJ., concur.
KENNEDY, J., dissents, with an opinion joined by FRENCH and FISCHER, JJ.
(who both would grant the motion for oral argument).
FRENCH and FISCHER, JJ., would grant the motion for oral argument.
_________________
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KENNEDY, J., dissenting.
{¶ 37} Appellee city of Warren does not have a city charter and therefore
must follow state civil-service statutes set forth in R.C. Chapter 124 regarding
personnel reductions and promotions in its police force. See R.C. 124.40(A). The
issue in this case is whether a city may avoid the requirements of R.C. 124.37 and
124.44 by abolishing certain positions through attrition and nonreplacement.
Because the plain language of R.C. 124.37 and 124.44 sets forth specific processes
to implement a reduction in a police force and to fill vacancies in a police
department and because the city failed to follow the statutory processes and thereby
violated the seniority rights of the police officers involved in this case, I would
reverse the Eleventh District Court of Appeals’ judgment granting the city’s motion
for judgment on the pleadings. Therefore, I dissent.
BACKGROUND
{¶ 38} On November 25, 2014, the Warren City Council passed ordinance
No. 12570/14, an “emergency measure” that repealed ordinance No. 9819/87,
which had set the number of personnel in the police department by position. The
preamble of ordinance No. 12570/14 says that the director of public service and
safety seeks to reorganize the department for efficient operation and to reduce the
number of supervisors by abolishing the positions of one captain, one lieutenant,
and one sergeant. The preamble then states, “WHEREAS, the abolishment of these
position[s] shall occur by attrition.” The ordinance sets forth the following revised
breakdown of positions: one police chief, three captains, six lieutenants, 10
sergeants, 59 police officers, and 12 communication coordinators. The ordinance
adds, “By means of attrition, the number of authorized Captains shall continue to
be reduced from three (3) to two (2)[,] * * * the number of authorized Lieutenants
shall continue to be reduced from six (6) to five (5)[, and] * * * the number of
authorized Sergeants shall continue to be reduced from then (10) to nine (9).” The
ordinance does not define “attrition,” but as the majority states, the ordinary
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meaning is “a reduction in numbers usu. as a result of resignation, retirement, or
death,” Webster’s Ninth New Collegiate Dictionary 115 (1989).
{¶ 39} Soon after the passage of the ordinance, a captain and a sergeant
resigned, and their positions were not filled. Appellants Edward J. Hetmanski,
Jeffrey Orth, Benjamin T. Harrell, Michael Merritt, and Martin M. Gargas missed
out on promotions or opportunities to take a promotion examination that would
have resulted from the retirement of superiors but for the ordinance. Appellant
Ohio Patrolmen’s Benevolent Association represents the bargaining units of the
officers. Appellants seek a writ of mandamus to put the officers in the positions
they would have been promoted to or would have competed for had the city
followed the applicable statutory processes.
ANALYSIS
{¶ 40} Although the city is subject to the civil-service statutes in the
Revised Code, including R.C. 124.37 and 124.44, it argues that they do not apply
in this case. It claims that those statutes do not apply when a position is abolished
through attrition, leaving no vacancy to be filled. The court of appeals upheld the
city’s failure to follow the statutes, noting that “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.” 2019-Ohio-5046, ¶ 17. But the city was not free to
craft its own supposedly pain-free way to manage personnel in the police
department. And a price was paid by the police officers who would have advanced
to replace the retiring supervisors, even if they had been immediately demoted after
being promoted. They lost valuable seniority rights should a position of similar
rank become open or be created, and they suffered a loss of income—regardless of
how long they remained in the position to which they were promoted—that could
reverberate into retirement.
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R.C. 124.37
{¶ 41} Other cities have attempted in other ways to avoid the dictates of
R.C. 124.37, the statutory method of reducing the number of personnel in a police
department, and this court has turned back those efforts. Although Warren has tried
a different tack, the result should be the same, because R.C. 124.37 provides the
sole method of force reduction in police and fire departments in cities without
charters or collective-bargaining agreements that address force reduction.
{¶ 42} R.C. 124.37 provides:
When it becomes necessary in a police or fire department,
* * * 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.
{¶ 43} This court has left no doubt that the process prescribed in R.C.
124.37 is the only way for cities to implement force reductions. In Hungler v.
Cincinnati, 25 Ohio St.3d 338, 343-344, 496 N.E.2d 912 (1986), this court stated,
The plain words of the statute make clear that where a city
decides to abolish a higher ranking police position because of lack
of work, there shall be a demotion of the incumbent accompanied
by a series of additional demotions in the lower ranks ultimately
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resulting in the layoff of the least senior member of the police
department.
{¶ 44} The process prescribed by R.C. 124.37 fits within the broader civil-
service system, under which stability and predictability are valued. “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.’ ” (Ellipses sic.) Hungler
at 344, quoting McCarter v. Cincinnati, 3 Ohio App.3d 244, 248, 444 N.E.2d 1053(1st Dist.1981). It is not guaranteed to be the most efficient system; instead, our
civil-service statutes represent the give and take of the legislative process, a
balancing of interests achieved on a statewide level. It is not the job of reviewing
courts to elevate efficiency over the plain language of the statutes. “Under the guise
of efficiency, cities could effectively read R.C. 124.37 out of the code.” Id. at 344,
fn. 2.
{¶ 45} In Hungler, this court stated that “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.” Id. at 344. We further held that
“[t]he 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.”
Id.
{¶ 46} In this case, the city announced in ordinance No. 12570/14 that “the
Director of Public Service and Safety has deemed it desirable and necessary for
reorganization for efficient operation” of the department that certain positions be
abolished and that “the abolishment of these position[s] shall occur by attrition.”
The undeniable purpose of the city’s ordinance was to abolish positions. In Zavisin
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v. Loveland, 44 Ohio St.3d 158, 161, 541 N.E.2d 1055 (1989), noting this court’s
statement in Hungler regarding the necessity of using R.C. 124.37 to abolish
positions above patrolman in a police department, this court stated that “[n]o
exceptions or alternative procedures are provided in legislation for this common
fact pattern.” The declared aim of the ordinance in this case was to reduce the
number of positions at supervisory levels; our caselaw and the language of R.C.
124.37 require that to be done through the method set forth in R.C. 124.37.
R.C. 124.44
{¶ 47} Although at its heart this case is about a reduction in force of the
Warren police department, it started with a vacancy. Therefore, R.C. 124.44, which
controls the filling of a vacancy in a police department, also applies to this case.
“The procedure for promotion provided in R.C. 124.44 is mandatory upon the
occurrence of a vacancy in a position above police patrolman, and 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 at syllabus.
R.C. 124.44 provides:
No positions 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. Promotion 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. * * *
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***
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 or civil service township 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
from the date of the certification.
We should apply the plain language of R.C. 124.37 and 124.44 to this case
{¶ 48} When Timothy Roberts retired as a captain on December 28, 2014,
Lieutenant Martin Gargas was the only person eligible for promotion to the vacant
position. But the city argues that immediately upon Roberts’s retirement, the
position was abolished. The actual language of the ordinance is: “By means of
attrition, the number of authorized Captains shall continue to be reduced from three
(3) to two (2) * * *.” The city has provided no details in the ordinance or in its
brief regarding the exact mechanics of how the abolition of a position occurs while
someone still occupies it or why once that incumbent leaves, his or her position
does not become vacant, at least for a brief time. “When a position in a police
department has been both established and occupied by appointment, a vacancy in
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that position automatically occurs upon the retirement of the incumbent.” Zavisin
at 160.
{¶ 49} In Zavisin, this court held that a city could not declare a position
abolished once it had become vacant; the city had attempted to abolish the position
after the incumbent had retired and before the expiration of the 60-day period the
city had to administer a civil-service examination to find a replacement. The city
attempted to abolish the position 54 days after the incumbent’s retirement. That is
a situation different from the one here, but that does not change the fact that a
vacancy in a position occurs immediately upon the retirement of the incumbent.
{¶ 50} Ordinance No. 12570/14 does not identify a time when abolishment
of the specified positions would occur; the preamble says simply that abolishment
“shall occur by attrition.” That is, by the common definition, each reduction in
force would occur through retirement, resignation, or death. Was the city
attempting the same method of reduction as the city in Zavisin? The majority and
the court below inappropriately have given the city the benefit of the doubt by
creating some nether time between a retirement and a vacancy when abolishment
supposedly occurs. But because the city makes no clear statement of when
abolishment occurs, this court can make no conclusion that the city effectively
carried out the abolishment of the positions at issue. It is not this court’s role to
figure out the mechanism for achieving the city’s attempted end-run around the
civil-service system. The ordinance itself expresses no more than an aspiration.
{¶ 51} The city seems to seek to create a wedge in time between an
incumbency and a vacancy in which its own ordinance would reside to control
personnel disposition. There is no such notch in time. R.C. 124.37 covers a
reduction in personnel when an incumbent occupies a position; R.C. 124.44 applies
when a vacancy is created. There is no space between the incumbent’s retirement
and the creation of a vacancy during which abolishment of a position can occur.
Once there is a vacancy, R.C. 124.44 takes effect. “The procedure for promotion
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provided in R.C. 124.44 is mandatory upon the occurrence of a vacancy in a
position above police patrolman, and 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, 44 Ohio St.3d 158, 541 N.E.2d 1055, at
syllabus. The city could not abolish Captain Roberts’s position while he was still
in it without employing the process set forth in R.C. 124.37, so the city sought to
eliminate the position when it became vacant. But a vacancy must be filled through
R.C. 124.44.
{¶ 52} In support of our decision in Zavisin, this court cited State ex rel.
Barnes v. Kirsch, 1st Dist. Butler App. No. CA78-0700064 (Sept. 19, 1979). In
Barnes, due to budget restrictions, the city manager of Hamilton instituted an
attrition policy by which reductions in the city workforce would be achieved by not
filling vacancies as they arose. The policy provided, “The interpretation of the
present attrition policy is that the authorized employee complement is automatically
reduced whenever a vacancy occurs in a position. This is automatic and no further
action or written communication is necessary.” But the First District Court of
Appeals held that the fact that a position was abolished whenever a vacancy
occurred was inconsistent with R.C. 124.48, a statute similar to R.C. 124.44 but
dealing with firefighters. The court held that once a vacancy occurred, the city
manager was required to fill it even though he had the power to abolish the position
immediately after making the appointment to fill it. That is, there could be no
automatic abolishment of a position upon retirement, because the retirement created
a vacancy.
{¶ 53} In a subsequent decision, the First District explained Barnes as
follows:
The basis of our decision was that the statute prevails over a
municipal policy. Under the written policy, a vacancy resulted in
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January Term, 2020
the position ceasing to exist. Under R.C. 124.48, a vacancy resulted
in an appointment of the top man on the eligible list. We held that
the statute must control, pursuant to the city’s charter, and that there
could be no “automatic” attrition.
McCarter, 3 Ohio App.3d at 247, 444 N.E.2d 1053, fn. 5. Similarly, here, the
retirements created vacancies that must be filled through the process prescribed by
R.C. 124.44. The ordinance does not say that abolishment of the positions is
automatic upon retirement, but even if it did, it would contradict R.C. 124.44 and
would be ineffective. The city’s October 6, 2010 “Civil Service Rules and
Regulations” itself states that “[w]henever the Municipal Rules are in conflict with
the Civil Service Laws of the State of Ohio, the State rules shall take precedence.”
{¶ 54} Regardless, the aim of the city’s ordinance can be achieved through
the use of R.C. 124.44 and 124.37. Through a process of promotion upon
retirement, followed by the demotion of the person promoted, the supervisory
positions can be abolished without a reduction in personnel beyond the person who
had retired. In the end, attrition can be the catalyst for the abolishment of a
position—but without negating the seniority rights of the person elevated to the
position before it is abolished. As this court pointed out in Zavisin, R.C. 124.37
protects the seniority rights of police officers demoted because of a force reduction:
[A]n officer permanently appointed to [a] 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.
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44 Ohio St.3d at 161-162, 541 N.E.2d 1055.
{¶ 55} The right to reappointment is a valuable right protected by the
statute. Even if the officer were demoted from the position briefly after having
been promoted, he or she would have a right to that position if it were to reopen in
the following three years. But the majority’s construction of the statute results in
the loss of those rights by a would-be successor to the position abolished by
attrition. As in Hungler, the city here “adversely affected appellants’ 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 [under R.C. 124.44] as well as R.C. 124.37,” Hungler, 25 Ohio
St.3d at 344, 496 N.E.2d 912.
{¶ 56} If the city were to employ those two statutes, fill the vacancies under
R.C. 124.44, then demote the promoted individuals pursuant to R.C. 123.37 to
achieve the position distribution set forth in the ordinance, the new position levels
would be achieved without any permanent loss of employment by anyone not
retiring from the police force. That is, in the end, the city would end up at the
staffing levels it set forth in the ordinance without firing anyone, essentially
allowing attrition to control the total number on the force and the individuals at
supervisory levels.
The city’s policy thwarts state civil-service law
{¶ 57} R.C. 124.37 provides a stable and predictable process to be followed
when cities decide to abolish higher ranking police positions for lack of work. See
Hungler at 344. “The results of adherence to this procedure, layoffs, may be harsh
in some instances, but [police officers] must accept those consequences and plan
accordingly and only insist that the city play by the same rule.” Id. R.C. 124.44
provides a consistent process for the filling of vacancies without favoritism. Here,
the city announced the policy of position removal by attrition, and within six weeks,
two police officers in positions mentioned in the ordinance just happened to retire.
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This coincidence indicates an attempt by the city to avoid the predictable and
orderly statutory processes for filling vacancies and reducing force levels. And this
was not without consequences for the officers involved in this case: the city’s action
nullifies their important reappointment rights set forth in R.C. 124.37.
{¶ 58} Further, position abolishment done prospectively by attrition
removes the appointing authority from what can sometimes be a difficult job; it can
reduce the force from afar rather than having to deal with the process of demoting
actual incumbents. It leaves open the possibility of manipulation, to avoid the
promotion of a particular person by prospectively abolishing the position before the
position is ripe to be filled. On balance, it plunges personnel decisions into
darkness, contrary to our civil-service laws, which are designed to keep personnel
decisions above board and appointing authorities answerable for their decisions.
CONCLUSION
{¶ 59} For the foregoing reasons, I would reverse the judgment of the court
of appeals and grant the writ sought by appellants. Lieutenant Gargas should be
promoted to captain. Because the promotion of Gargas to captain would create a
vacancy in the lieutenant position and the city did not have an eligibility list for that
position at the time, the city should be ordered to hold a promotional examination
for that position. The retirement of Sergeant John Burzynski created a vacancy for
sergeant, for which Officer Hetmanski was first in line for promotion; Hetmanski
should be promoted to sergeant. The promotion of one sergeant to lieutenant would
create another opening at the sergeant level, and that position should be filled by
the person next in line for promotion, Officer Orth. Because Orth was already
promoted to sergeant in the interim on July 14, 2016, he would be due back pay for
the time between that date and the date when he should have been promoted. I
would remand the matter to the court of appeals for it to determine the amount of
back pay due to the individual appellants.
{¶ 60} Accordingly, I dissent.
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FRENCH and FISCHER, JJ., concur in the foregoing opinion.
_________________
Daniel J. Leffler and Danielle M. Chaffin, for appellants.
Mazanec, Raskin & Ryder Co., L.P.A., Todd M. Raskin, Frank H.
Scialdone, and David M. Smith, for appellees.
_________________
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