State ex rel. Internatl. Assn. of Fire Fighters v. Barbish

[Cite as State ex rel. Internatl. Assn. of Fire Fighters v. Barbish, 2022-Ohio-2201.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY
STATE OF OHIO ex rel. CASE NO. 2021-L-103
THE INTERNATIONAL ASSOCIATION
OF FIRE FIGHTERS, LOCAL 1536,
AFL-CIO, Civil Appeal from the
Court of Common Pleas
Relator-Appellant,
-v- Trial Court No. 2020 CV 001168
JOHN BARBISH, IN HIS OFFICIAL
CAPACITY AS MAYOR AND
DIRECTOR OF PUBLIC SAFETY, et al.,
Respondents-Appellees,
JAMES G. POWERS,
Intervenor-Appellee.
OPINION
Decided: June 27, 2022
Judgment: Affirmed
Joseph W. Diemert, Jr., Thomas M. Hanculak, and Mark V. Guidetti, Diemert &
Associates Co., LPA, 1360 SOM Center Road, Cleveland, OH 44124 (For Relator-
Appellant).
John D. Latchney, Hanna Campbell & Powell, LLP, 3737 Embassy Parkway, Suite 100,
Akron, OH 44333 (For Respondents-Appellees).
Alexander L. Ewing and Charles B. Galvin, Frost Brown Todd LLC, 9277 Centre Pointe
Drive, Suite 300, West Chester, OH 45069, and Stuart G. Torch, Elfvin, Klingshirn, Royer
& Torch, LLC, 4700 Rockside Road, Suite 530, Independence, OH 44131 (For
Intervenor-Appellee).
MATT LYNCH, J.
{¶1} Relator-appellant, International Association of Fire Fighters, Local 1536,
appeals from the judgments of the Lake County Court of Common Pleas, granting partial
judgment on the pleadings and summary judgment in favor of respondents-appellees, John
Barbish, the City of Wickliffe Civil Service Commission, and the City of Wickliffe, and
intervenor-appellee, James Powers. For the following reasons, we affirm the decision of the
lower court.
{¶2} On September 21, 2020, Local 1536 filed a Complaint for Declaratory
Judgment, Permanent Injunction, and Petition for Writ of Mandamus against Barbish, the
City of Wickliffe Civil Service Commission, and the City of Wickliffe, which was subsequently
amended. The Complaint alleged that the Wickliffe Fire Chief, James Powers, retired on
January 6, 2020, and was rehired the next day by Mayor Barbish. Local 1536 sent letters
to the city alleging this violated civil service laws requiring that Powers’ vacancy be filled
through a competitive promotional examination process. Local 1536 contended that the
failure to follow this process deprived eligible fire captains from being considered for the
position. It requested a declaratory judgment that the vacancy created when Powers retired
and any resulting vacancies must be filled by a competitive examination process in
compliance with the law and that Powers does not properly hold the position of fire chief. It
sought a permanent injunction prohibiting non-competitive means for filling vacancies within
the Division of Fire. It also requested a writ of mandamus ordering the mayor to declare a
vacancy, administer an examination, and make an appointment to fill the vacancy.
{¶3} Barbish and Wickliffe filed an Answer on October 5, 2020. On November 13,
2020, Powers filed a Motion to Intervene, which was granted by the trial court.
{¶4} On February 5, 2021, Barbish and Wickliffe filed a Motion for Partial Judgment
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on the Pleadings, seeking dismissal of the Petition for Writ of Mandamus due to the
existence of an adequate remedy at law, and dismissal of the claims for punitive damages
and attorney’s fees.
{¶5} The parties filed joint stipulations of fact on February 26, 2021. The
stipulations established, in pertinent part, the following facts:
{¶6} The Division of Fire is part of the Wickliffe Department of Public Safety, which
includes a Chief of Fire, four captains, three lieutenants and various grades of firefighters.
The Chief of Fire controls the day-to-day administration of the Division of Fire. These
employees, including the chief, are members of the competitive classified civil service who
are subject to the civil service competitive examination process for appointments and
promotions. The chief is not a “bargaining unit” employee subject to the collective bargaining
agreement between the city and Local 1536. The collective bargaining agreement has a
“management rights clause” which states that the employer retains the right to “determine
the basis for selection, retention and promotion of employees to or for positions not within
the bargaining unit established” by the bargaining agreement.
{¶7} Powers retired from his employment as the Chief of Fire on January 6, 2020.
Mayor Barbish and the city submitted paperwork to the Ohio Police and Fire Pension Fund
verifying that Powers retired on January 6 and was rehired by Barbish on January 7, 2020.
He was sworn in by Barbish on January 7. The decision to allow Powers “to retire and be
immediately rehired was not made based on any alleged or actual delinquency or
misconduct on the part of Mr. Powers; not due to any alleged or actual injury or * * * disability
of Mr. Powers.” On January 6, 2020, Barbish issued a memorandum to the city’s finance
director, directing her to assist Powers with his pension and also directing Powers receive a
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retirement package with sick time at his pre-retirement rate, totaling over $50,000, that all
benefits and compensation will remain the same as prior to his retirement, and setting a new
salary of 10 percent less than his 2020 salary at the rate of $97,965. On February 10, 2020,
Barbish presented an emergency ordinance to city council which authorized the finance
director to compensate the person performing duties of fire chief at the rate of $97,965 per
year. At the council meeting, Barbish represented that Powers’ retirement and rehiring was
“an administrative change” and Powers “did not vacate the position.” The ordinance was
adopted. No process was initiated under the civil service rules as is required when there is
a vacancy for the Fire Chief position. Local 1536 sent a February 7, 2020 e-mail to the Civil
Service Commission expressing its belief there was a vacancy, with which the Commission
disagreed. Local 1536 sent a letter to the Law Director on May 18, 2020, stating that the
vacancy should be filled via a competitive promotional examination and a separate
September 8 letter requesting prosecution of Barbish for refusing to declare a vacancy. No
such action was taken. Powers remained in the Fire Chief position as of the date of the
stipulations.
{¶8} The parties also stipulated that approximately four captains employed by the
Wickliffe Fire Department are eligible to take the promotional exam and approximately three
lieutenants would be eligible to take the exam to replace a promoted captain.
{¶9} On April 5, 2021, Barbish and the city filed a Motion for Summary Judgment.
It argued, inter alia, that there was a “contractual right to self-determine” the basis for
retaining Powers as chief and that there was not a true opening or vacancy to fill. Powers’
Motion for Summary Judgment similarly alleged a lack of a vacancy given his retirement and
rehire on the next day. On the same date, Local 1536 filed its Motion for Summary
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Judgment. It alleged it was entitled to summary judgment since all promotions within fire
service and a vacancy in the position of fire chief must be effectuated through competitive
examination.
{¶10} In a June 14, 2021 Opinion and Journal Entry, the lower court granted the
request for partial judgment on the pleadings as to punitive damages and attorney’s fees,
finding these were not recoverable. It denied the request on the claim for writ of mandamus,
finding it to be more appropriately addressed through the motion for summary judgment.
{¶11} The court issued an August 26, 2021 Opinion and Judgment Entry granting
appellees’ motions for summary judgment and denying Local 1536’s motion. It concluded
that there had been no vacancy in the fire chief position and, thus, the requirements to fill
such vacancy were never triggered.
{¶12} Local 1536 timely appeals and raises the following assignments of error:
{¶13} “[1.] The Trial Court erred in granting Appellee’s Motion for Summary
Judgment and for denying Appellant’s Motion for Summary Judgment because no question
of material fact existed and Appellant was entitled to judgment as a matter of law.
{¶14} “[2.] The Trial Court erred in granting Appellees’ Motion for Partial Judgment
on the Pleadings denying recovery of punitive damages.
{¶15} “[3.] The Trial Court Erred in granting Appellees’ Motion for Partial Judgement
on the Pleadings denying recovery of attorney fees.”
{¶16} In its first assignment of error, Local 1536 argues that the lower court erred in
its ruling on summary judgment because it failed to properly apply the law as to whether
there was a vacancy that was subject to the competitive promotion process.
{¶17} Pursuant to Civil Rule 56(C), summary judgment is proper when (1)
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the evidence shows “that there is no genuine issue as to any material fact” to be litigated,
(2) “the moving party is entitled to judgment as a matter of law,” and (3) “it appears from the
evidence * * * that reasonable minds can come to but one conclusion and that conclusion is
adverse to the party against whom the motion for summary judgment is made, that party
being entitled to have the evidence * * * construed most strongly in the party’s favor.”
{¶18} A trial court’s decision to grant summary judgment is reviewed by an appellate
court under a de novo standard of review. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102,
105, 671 N.E.2d 241 (1996). “A de novo review requires the appellate court to conduct an
independent review of the evidence before the trial court without deference to the trial court’s
decision.” Peer v. Sayers, 11th Dist. Trumbull No. 2011-T-0014, 2011-Ohio-5439, ¶ 27.
{¶19} As an initial matter, we note that Barbish and Wickliffe argue in their appellees’
brief that Local 1536 lacked standing to bring a mandamus claim on behalf of the potentially
aggrieved firefighters who may be entitled to a promotion. The question of standing involves
whether the party who brought the claim “has alleged such a personal stake in the outcome
of the controversy, as to ensure that the dispute sought to be adjudicated will be presented
in an adversary context and in a form historically viewed as capable of judicial
resolution.” State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St.3d 451,
469, 715 N.E.2d 1062 (1999).
{¶20} In support of their argument that there is a lack of standing to pursue a
mandamus action, appellees cite State ex rel. Internatl. Assn. of Fire Fighters, Local 381 v.
Findlay, 3d Dist. Hancock No. 5-05-21, 2006-Ohio-1774. In that case, the court emphasized
the limited nature of standing in a mandamus action and noted that “when mandamus is
sought ‘merely for the protection of private rights, the relator must show some personal or
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special interest in the subject matter, since he is regarded as the real party in interest and
his rights must clearly appear.’” (Citation omitted.) Id. at ¶ 18. It held that where the union’s
interest was in the promotion of a fire captain and the position had been filled by another
qualified individual, there was no public interest demonstrated and the union had no personal
interest that could be protected, thus demonstrating no standing for the purposes of
mandamus. Id. at ¶ 19-20. We note, however, that it observed that there may be a public
interest involved if the position were vacant and was not filled by another qualified candidate
and also emphasized that the union was protecting the interest of one union member at the
expense of another. Id. at ¶ 19 and 21. Here, Local 1536 is arguing that the position was
vacant and that multiple union members are qualified, which may, as the foregoing case
held, relate to a public interest which could be addressed through a mandamus action.
Further, as the court held, the interest of protecting the union’s members “is sufficiently
protected through the use of a declaratory judgment action.” Id. at ¶ 20.1 Such action is
also maintained in the present matter. Here, since resolution of the merits is necessary to
determine whether declaratory judgment is proper and the determination of whether there
was a vacancy is relevant to standing under the mandamus action, we must proceed to
address the merits of the claim.
{¶21} Pursuant to R.C. 124.48:
Whenever a vacancy occurs in a promoted rank in a fire department
and no eligible list for that rank exists, the appointing authority shall
certify the fact to the civil service commission. The civil service
commission, within sixty days of the vacancy, shall conduct a
competitive promotional examination. After the examination has been
1. We note that Powers argues that there is a lack of standing in relation to the declaratory judgment claim as
well, arguing that Local 1536 does not have the right to bargain over the terms and conditions of a non-
bargaining unit employee, i.e., Powers. This argument, however, fails to recognize that Local 1536 was
representing the interests of those who would be eligible for the position if in fact a vacancy was created and
there was an entitlement to sit for the competitive promotional examination.
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held, an eligible list shall be established, and the civil service
commission shall certify to the appointing authority the name of the
person on the list receiving the highest grade. Upon the certification,
the appointing authority shall appoint the person so certified within ten
days.
{¶22} There is no dispute between the parties that, if there is a vacancy for the
position of Fire Chief, the appropriate procedure is following the process for a competitive
promotional examination and eligibility list as set forth in R.C. 124.48. The critical question
here is whether there was a “vacancy” in the Fire Chief position to trigger these
requirements.
{¶23} “‘Vacancy’ is not defined in either R.C. Chapter 124 or the Ohio Administrative
Code, and it is not subject to any technical definition.” State ex rel. Hrelec v. Campbell, 146
Ohio App.3d 112, 118-119, 765 N.E.2d 402 (7th Dist.2001). It has been held that a vacancy
for the purposes of this chapter “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. Ohio Patrolmen’s Benevolent
Assn. v. Warren, 2019-Ohio-5046, 150 N.E.3d 451, ¶ 29 (11th Dist.), quoting State ex rel.
Mylott v. McKelvey, 151 Ohio App.3d 673, 2003-Ohio-328, 785 N.E.2d 759, ¶ 12 (7th Dist.).
{¶24} Local 1536 emphasizes the inclusion of the term “retirement” in the foregoing
definition in support of an argument that a vacancy occurred. However, the list of
justifications for a finding of vacancy states that a vacancy occurs when there is a “death,
retirement, dismissal, promotion, or other permanent absence of the former incumbent.”
Use of this language demonstrates that each of the foregoing terms is intended to be a
permanent departure from the office held by the incumbent. See State ex rel. Mathews v.
Alliance, 5th Dist. Stark No. 1995CA00160, 1995 WL 768511, *2 (Oct. 31, 1995), citing
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McCarter v. Cincinnati, 3 Ohio App.3d 244, 247, 444 N.E.2d 1053 (1st Dist.1981) (“to create
a vacancy pursuant to R.C. 124.44, the absence from the position must be permanent”). In
the present matter, there was no such departure, since there is no dispute that Powers
retired but was reappointed to his office the next day. This is not the typical departure that
creates a permanent absence from the office. Temporary separations from a position where
it is evident the individual was not intending to leave that position have not been found to
create a vacancy. See Mathews at *1-2 (a vacancy was not created where a police
lieutenant separated from work, intending to use disability and sick time while pursuing a
disability pension since he did not express a desire to leave work until a decision on his
disability pension was made, the absence was not permanent, and he “could have resigned
or returned to duty following the decision concerning his pension disability”); Hrelec at 120
(a vacancy was not created in the office of a fire chief while he was unable to work due to a
medical condition).
{¶25} To the extent that Local 1536 argues the trial court’s conclusion on whether a
vacancy existed is “particularly egregious given the fact that the Trial Court itself has
previously opined on such as scenario” and reached a different conclusion, we find this has
no bearing on our decision. The trial court’s decisions in other cases are not binding
authority on this court and do not impact our de novo review of this matter.
{¶26} We also recognize the appellees’ argument that both the management rights
clause in the collective bargaining agreement and R.C. 4117.08 allow the employer to make
determinations regarding retention of employees in positions outside of the bargaining unit,
such as the fire chief. While this alone does not circumvent the obligation to follow civil
service requirements where otherwise necessitated by law, given that we find there was no
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vacancy warranting the application of R.C. 124.48, there is no applicable legal precedent
provided demonstrating the decision to retain Powers was outside of appellees’ authority.
{¶27} Local 1536 also argues that R.C. 124.50 applies and prevented Powers from
being rehired or reinstated to his position of fire chief after retiring. R.C. 124.50 provides:
Any person holding an office or position under the classified service in
a fire department * * *, who resigns therefrom, may be reinstated to the
rank of firefighter * * *, upon the filing of a written application for
reinstatement * * *, and upon passing a physical examination disclosing
that the person is physically fit to perform the duties of the office of
firefighter * * *, the application for reinstatement shall be filed within one
year from the date of resignation. Any person reinstated pursuant to the
authority of this paragraph shall not receive credit for seniority earned
prior to resignation and reinstatement, and shall not be entitled to
reinstatement to a position above the rank of regular firefighter * * *,
regardless of the position the person may have held at the time of
resignation.
Local 1536 argues that, pursuant to this statute, Powers could not have been reinstated to
his position as chief and could only be reinstated as a regular firefighter.
{¶28} R.C. 124.50 provides that a person who “resigns” from his or her office or
position can only be reinstated to the rank of a regular firefighter. In this context, it has been
held that “[a]n act of resignation requires both the intent to resign and an act of
relinquishment.” Dore v. Miller, 9th Dist. Lorain No. 03CA008416, 2004-Ohio-4870, ¶ 12,
citing State ex rel. Dwyer v. Middletown, 52 Ohio App.3d 87, 92, 557 N.E.2d 788 (12th
Dist.1988) (the definition of resignation “suggests an effective resignation requires two
distinct components: first, an intention to resign, and, second, an act of relinquishment”). It
has similarly been defined as to “give up deliberately.” State ex rel. Richard v. Springfield,
48 Ohio St.3d 65, 66, 549 N.E.2d 164 (1990), citing Webster’s Ninth New Collegiate
Dictionary (1984) 1003. Resignation has been viewed in the context of R.C. 124.50 as a
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“more radical change in circumstances” than a separation from employment, “connoting the
relinquishment of current as well as future opportunities.” Id. There can be no factual
dispute here that Powers did not intend to resign and relinquish his position; according to
the stipulated facts, he was immediately rehired and sworn in the day following his
retirement, Barbish represented to the council that it was an “administrative change,” and
Powers has continued to serve in his capacity as fire chief without interruption. It is evident
that his retirement related to receiving certain benefits rather than an intent to permanently
give up his employment.
{¶29} Local 1536 cites to Dore in support of the proposition that a fire chief who
resigned could not be reinstated in that position, emphasizing that in Dore, a chief who
resigned to receive a pension and was subsequently reemployed by city administration as
a chief violated R.C. 124.50. We find this case is distinguishable. In Dore, the fire chief
submitted an unconditional letter of resignation, relinquished the position on a stated date,
was on non-payroll status for 24 days, an acting fire chief was appointed, the chief received
pension, and he failed to rescind his resignation. Id. at ¶ 13-14. In contrast, in the present
matter, Powers returned to office the day following his retirement and acted consistently with
remaining in the position, rather than the chief in Dore who was removed from payroll and
opted not to rescind his resignation. As emphasized in Dore, intention to resign is necessary
to find R.C. 124.50 applicable and that intention is not present here.
{¶30} To the extent that Local 1536 argues the trial court erred by considering intent,
it is evident the issue of intent has been taken into consideration in cases such as Dore
when addressing the issue of resignation. It is a relevant consideration as outlined above.
Furthermore, we again emphasize that our review is de novo and our consideration of the
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legal issues is independent of the reasoning provided by the trial court.
{¶31} For the foregoing reasons, we find there was no vacancy requiring the civil
service examination be offered and Powers did not resign such that he was ineligible to be
rehired as chief. Local 1356 is not entitled to the declaratory judgment requested since it is
inconsistent with the law. There is no right to mandamus relief since Local 1536 has not
established “a clear legal right to the requested relief.” State ex rel. Sands v. Culotta, 165
Ohio St.3d 172, 2021-Ohio-1137, 176 N.E.3d 735, ¶ 11. Similarly, an injunction is not
warranted since Local 1536 did not prove that it has “prevailed on the merits.” (Citation
omitted.) Novy v. Ferrera, 11th Dist. Portage No. 2013-P-0063, 2014-Ohio-1776, ¶ 55.
{¶32} The first assignment of error is without merit.
{¶33} In its second assignment of error, Local 1536 argues that the lower court erred
in granting judgment on the pleadings in favor of appellees on the issue of punitive damages
due to Local 1536’s failure to request compensatory damages, arguing that it sought all
available relief and is entitled to recovery of damages in a mandamus action where the
relator prevails. In the third assignment of error, Local 1536 argues that the lower court
erred in finding there was no allegation of bad faith thereby preventing the recovery of
attorney’s fees.
{¶34} We find the foregoing issues moot. Since there are no merits to the claims
raised by Local 1536 and it did not prevail on the mandamus claim nor demonstrate bad
faith given that appellees complied with the law, there can be no entitlement to either punitive
damages or attorney’s fees. See Butler Cty. Joint Vocational School Dist. Bd. of Edn. v.
Andrews, 12th Dist. Butler No. CA2006-10-245, 2007-Ohio-5896, ¶ 76 (“[W]e have
determined that appellant was not entitled to judgment in this case, and he therefore would
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not be entitled to damages. Accordingly, appellant’s assignment of error with regard to the
court’s decision on the issue of punitive damages is moot.”).
{¶35} The second and third assignments of error are without merit.
{¶36} For the foregoing reasons, the judgments of the Lake County Court of
Common Pleas, granting partial judgment on the pleadings and summary judgment in favor
of respondents-appellees, are affirmed. Costs to be taxed against appellant.
JOHN J. EKLUND, J., concurs,
CYNTHIA WESTCOTT RICE, J., dissents with a Dissenting Opinion.
__________________________________________
CYNTHIA WESTCOTT RICE, J., dissents with a Dissenting Opinion.
{¶37} At issue in this matter is whether the former incumbent and again current fire
chief, who retired, only to be re-hired with benefits the following day, left a vacancy upon his
resignation such that the requirements of R.C. 124.48 were triggered. The majority
concludes the retirement was not a contemplated, permanent resignation and, as a result,
there was never a vacancy for the position of fire chief. I disagree with this position and
therefore respectfully dissent.
{¶38} Appellees argue that the process of “retire/rehire” is merely administrative
paperwork and is an “administrative retirement” that did not require the city or mayor to follow
the civil service promotional procedures contained in R.C. 124.48.
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{¶39} The fundamental purpose of civil service laws and rules is to establish a merit
system under which appointments in certain branches of the public service may be based
upon demonstrated fitness independent of political considerations and free from
discrimination because of political reasons or affiliation, and to protect appointees from such
unjust discrimination. Curtis v. State, ex rel. Morgan, 108 Ohio St. 292, 296 (1923). The
civil service system is accordingly designed to avoid the “traditional spoils system” and
provides “a method of fair employee selection and promotion based upon merit and fitness.”
McCarter v. Cincinnati, 3 Ohio App.3d 244, 248 (1st Dist.1981). Hence, appointments and
promotions in civil service positions must normally be made pursuant to competitive
examination in accordance with the purpose of the Civil Service Act and R.C. 124.48.
Whenever a vacancy occurs in a promoted rank in a fire department
and no eligible list for that rank exists, the appointing authority shall
certify the fact to the civil service commission. The civil service
commission, within sixty days of the vacancy, shall conduct a
competitive promotional examination. After the examination has been
held, an eligible list shall be established, and the civil service
commission shall certify to the appointing authority the name of the
person on the list receiving the highest grade. Upon the certification,
the appointing authority shall appoint the person so certified within ten
days.
When an eligible list exists and a vacancy occurs in a position for which
the list was established, the appointing authority shall certify the fact to
the civil service commission. The person standing highest on the list
shall be certified to the appointing authority, and that person shall be
appointed within ten days. Id.{¶40} The majority aptly points out that the term “vacancy” is not defined by statute
or the administrative code. Still, courts have concluded that a “vacancy,” in a position, for
purposes of R.C. Chapter 124, “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.’” (Emphasis added.) State ex rel. Ohio
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Patrolmen’s Benevolent Assn. v. Warren, 11th Dist. Trumbull No. 2015-T-0017, 2019-Ohio-
5046, ¶29, quoting Mylott v. McKelvey, 151 Ohio App.3d 673, 676, 2003-Ohio-328, ¶12 (7th
Dist.2003).
{¶41} Initially, this definition does not necessarily require a resignation or retirement
to be “permanent” for a vacancy to exist. To the contrary, the above definition of vacancy is
disjunctive. Simply because the final, open-ended disjunct includes a “permanent absence”
does not require the conclusion that each previous disjunct require permanency. While
death is clearly permanent and dismissal may be, neither retirement (as demonstrated in
this case) nor promotion are necessarily permanent. In this regard, I would interpret “other
permanent absence of the former incumbent” to contemplate situations where a former
incumbent is incapable of returning to the position due to an incident that rendered him or
her permanently incapable of performing the duties the position demands, e.g., an extreme
and incapacitating medical event.
{¶42} Regardless of this point, the definition of “vacancy” cited in OPBA derives from
McCarter, supra, a 1981 case issued by the First Appellate District. The court in McCarter
adopted the definition from “Ballantine’s Law Dictionary, 1331 (3 Ed.1969).” The definition
advanced in McCarter can imply that each of the instances of a “vacancy” listed would
require a form of “permanency in departure” from the position held by a former incumbent.
Defining “vacancy” in terms of “permanency” (or an incumbent’s intention for the retirement
or resignation to be permanent) is somewhat arbitrary and, in my estimation, contrary to the
purpose of Ohio’s Civil Service Act. Significantly, the Supreme Court of Ohio has not
weighed in on, let alone applied, this definition.
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{¶43} With all due respect to Ballantine’s 1969 definition of “vacancy,” I propose the
manner in which Ohio courts denote the term should be revisited. Black’s Law Dictionary’s
most recent edition defines the term “vacancy,” in relevant part, as: “The quality, state, or
condition of being unoccupied, esp. in reference to an office, post, or piece of
property. 2. The time during which an office, post, or piece of property is not occupied. 3. An
unoccupied office, post, or piece of property; an empty place. • Although the term sometimes
refers to an office or post that is temporarily filled, the more usual reference is to an office or
post that is unfilled even temporarily * * * 4. A job opening; a position that has not been
filled.” Id. (11th Ed.2019). Black’s Law Dictionary does not import any conception of
“permanency” into the definition of the term “vacancy.” And, in this respect, would seem
more consistent with the salutary and egalitarian policies animating Ohio’s civil service laws.
{¶44} Appellees place great emphasis on the chief’s intentions vis-à-vis his
retirement and the apparent arrangement with the city that he would, the following day, be
rehired. I do not dispute that these intentions and this arrangement were in place. And the
parties do not take issue with the chief’s eligibility to receive pension benefits. Pursuant to
R.C. 742.37(C)(2), governing pension benefits and payments, states, in pertinent part “[a]
member of the fund who has fifteen or more years of service credit and who voluntarily
resigns * * * shall receive an annual pension * * *.” The chief is an ostensible member and
he voluntarily resigned from his post. Statutorily, however, this eligibility for a pension does
not permit the city to simply, behind closed doors, pursuant to private agreement, rehire the
incumbent who has voluntarily resigned to be eligible for pension benefits.
{¶45} Pursuant to R.C. 124.50, “[a]ny person holding an office or position under the
classified service in a fire department * * * who resigns therefrom, may be reinstated to the
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rank of firefighter” upon a specific application process. Moreover, upon reinstatement, that
person “shall not receive credit for seniority earned prior to resignation and
reinstatement, and shall not be entitled to reinstatement to a position above the rank
of regular firefighter * * * regardless of the position the person may have held at the
time of resignation.” (Emphasis added.) Adopting the definition of vacancy I propose, which
affords greater deference and fidelity to the purpose of civil service laws, would render the
procedures utilized by the city in this matter contrary to law. After the retirement, there was
a vacancy. The process set forth in R.C. 124.48 was required upon the chief’s resignation
and retirement. This is not to say the chief could not seek reinstatement, it merely triggered
the requirements of R.C. 124.50.
{¶46} Next, during oral argument, the city and the chief argued that no vacancy in
the position of fire chief occurred because it was never unoccupied. In other words,
notwithstanding the retire/rehire arrangement, there was no separation from the chief’s
employment. I find this position somewhat disingenuous. Upon his formal retirement, there
was an immediate vacancy. That is, to be rehired necessarily implies an existing vacancy
which would trigger the statutorily mandated promotional process to fill the retired
incumbent’s position. Our working concepts of space and time necessitate this conclusion;
even if the chief retired for a nanosecond, there was still a legal vacancy and the R.C. 124.48
procedures must be observed.
{¶47} I wish to emphasize that my position is based upon a reading of the law which
inherently incorporates the ends, purposes, and goals of the relevant legislation. I do not
and would not take issue with the chief’s laudable service. Moreover, I fully accept the city’s
assurances that his value to the department (as well as a public servant in general) might
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warrant him retaining the position from which he retired/resigned. We must follow, however,
both the letter and spirit of the law. To this end, I can neither condone nor countenance the
procedures employed and the outcome they eventuated. Such procedures were
fundamentally contrary to the applicable statutory process.
{¶48} Firefighters and police officers are front-line, first responders. They are not
paid large salaries for the risks they take to maintain public safety. Moreover, as public
servants, they might easily be unjustly thwarted or illegitimately advanced in their positions
through the vagaries of politics, nepotism, or other improper influences. The General
Assembly, via enacting the procedures set forth in the civil service code, attempted to avoid
or certainly minimize these problems. The civil service promotional process provides a
benefit of certainty to the advancement process upon which firefighters and police officers
should be able to rely. Although the chief may indeed be the best individual to hold the
esteemed post from which he retired, by virtue of his retirement, I am compelled to conclude
the mechanisms of R.C. Chapter 124 (in particular R.C. 124.48 and R.C. 124.50) were
triggered.
{¶49} I respectfully dissent.
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