Harmon v. Cincinnati

[Cite as Harmon v. Cincinnati, 2023-Ohio-788.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
JEFFREY HARMON, : APPEAL NO. C-220236
TRIAL NO. A-2003055
and :
DAVID BEASLEY, : O P I N I O N.
Plaintiffs-Appellees,
:
vs.
:
CITY OF CINCINNATI,
:
and
:
CITY OF CINCINNATI CIVIL SERVICE
COMMISSION, :
Defendants-Appellants. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: March 15, 2023
Stokar Law, LLC, and Rob S. Stokar, for Plaintiffs-Appellees,
Emily Smart Woerner, City Solicitor, Lauren Creditt Mai and Heidi Rosales, Senior
Assistant City Solicitors, for Defendants-Appellants.
OHIO FIRST DISTRICT COURT OF APPEALS
ZAYAS, Judge.
{¶1} Defendant-appellant the City of Cincinnati Civil Service Commission
(“the commission”) denied plaintiffs-appellees Jeffrey Harmon and David Beasley
(“the employees”) a hearing on their independent appeals to the commission
challenging the “Temporary Emergency Leave” (“TEL”) program implemented during
the COVID-19 pandemic by defendant-appellant city of Cincinnati. The commission
denied the employees a formal appeal hearing after finding that it did not have
jurisdiction to consider the employees’ appeals under the Civil Service Rules and that
the grievance procedure set forth in the collective-bargaining agreement between the
employees’ labor union and the city was the proper forum to resolve the employees’
claims.
{¶2} Harmon and Beasley appealed the commission’s decision to the
Hamilton County Court of Common Pleas under R.C. 2506.01. The trial court reversed
the commission’s decision, concluding, among other things, that “due process”
required the commission to hold a hearing on the employees’ independent
administrative appeals. The city and the commission (collectively, “the city”) now
appeal the trial court’s judgment, arguing, in a single assignment of error, that the trial
court lacked subject-matter jurisdiction to entertain the employees’ appeal from the
commission’s decision. We disagree and affirm the lower court’s judgment.
Procedural and Factual History
{¶3} In April 2020, the city informed two of its long-time classified
employees, Harmon and Beasley, that they would be placed on a three-month leave
under the city’s TEL program. The TEL program was implemented to help reduce the
projected million-dollar-budget deficit the city was facing due to the COVID-19
pandemic. Under TEL, noncritical city employees would be placed on “leave status,”
during which the employees could elect to use any accumulated leave, such as vacation
or sick time, or elect to go unpaid and seek unemployment compensation from the
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OHIO FIRST DISTRICT COURT OF APPEALS
state of Ohio. The city, in its “Frequently Asked Questions” on the TEL program,
instructed that critical employees could not contact noncritical employees on leave
under TEL about work-related issues because “this is standard practice in mass
layoffs.”
{¶4} In May 2020, Harmon and Beasley each filed an appeal with the
commission under the city’s Civil Service Rule 17, Section 1, which provides that an
employee may appeal “an order of dismissal, separation, demotion, suspension in
excess of three working days, displacements, layoffs, results of a criminal background
check or failure to meet the minimum qualifications for an Open Competitive, Non-
Competitive or Promotional examination.” In their appeals, the employees stated that
they were challenging the procedural aspects of their layoffs and contended that the
city had failed to follow Civil Service Rule 12, which governs layoff procedures, and
requires the city to consider an employee’s retention points when implementing a
layoff. Had the city considered retention points, which factors in seniority, Harmon
and Beasley maintain that they would not have been placed on TEL.
{¶5} Although Civil Service Rule 17 requires appeals under that rule to be set
for a formal appeal hearing, the commission staff informed the employees that their
appeals were not covered under that rule because the TEL program was not a layoff,
and therefore, set their appeals for an “appearance” before the commission under Civil
Service Rule 2. Under the Civil Service Rules, an appearance is procedurally different
than an appeal hearing. Appearances are governed by Civil Service Rule 2, Section 5,
which provides that “[w]henever an individual or group has a matter which requires
or might require the consideration or decision of the Commission[,]” the commission
secretary “shall make the necessary arrangements to bring such matters before the
Commission in regular session.” But an appeal hearing, governed by Civil Service Rule
17, only takes place after written notice is provided to all parties regarding the time
and place of the hearing. Further, in an appeal hearing under Civil Service Rule 17,
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OHIO FIRST DISTRICT COURT OF APPEALS
the commission has the authority to subpoena and compel witnesses and administer
oaths, and the rule allows parties to be represented by counsel.
{¶6} At the employees’ “appearance,” Harmon and Beasley argued that
because the TEL program was “consummate to a layoff” they were entitled to a hearing
under Civil Service Rule 17. When asked by the commission if granting a hearing on
the employees’ appeals would be an “admission” by the commission that the
temporary leave under the TEL program was a layoff, the employees argued that the
commission could consider any argument at the hearing as to whether the TEL
program was a layoff but that if the commission chose not to have a hearing on their
appeals of their layoffs as required under Civil Service Rule 17, the commission would
be allowing the city to bypass individual due-process rights by simply calling a
nondisciplinary leave anything other than a layoff.
{¶7} Ultimately, the commission determined, without the benefit of a
hearing, that the TEL program was not a layoff, and therefore not appealable under
Civil Service Rule 17. Additionally, the commission noted that because Harmon and
Beasley were members of a labor union and because their union had also filed a
grievance regarding the implementation of the TEL program on behalf of affected
bargaining unit members, “the contractual grievance and arbitration procedure” was
the appropriate forum for the resolution of the employees’ individual claims.
{¶8} Citing R.C. Chapters 2505 and 2506, Harmon and Beasley filed a notice
of appeal with the Hamilton County Court of Common Pleas challenging the
commission’s decision and arguing that they were entitled to a hearing on their claims
under Civil Service Rule 17. The city moved to dismiss the appeal for lack of subject-
matter jurisdiction. First, the city maintained that the trial court did not have subject-
matter jurisdiction to consider the employees’ administrative appeal under R.C.
2506.01 because for an administrative act to be reviewable on appeal under that
statute, the act in question must have been the result of a quasi-judicial proceeding.
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OHIO FIRST DISTRICT COURT OF APPEALS
The city argued that because the leave implemented under the TEL program was not
a layoff, the employees were not entitled to a formal appeal hearing under Civil Service
Rule 17. Therefore, the commission’s decision denying them a hearing occurred as a
result of an appearance, which is not a quasi-judicial proceeding.
{¶9} Finally, the city also argued that because Harmon and Beasley were
members of a labor union and because the collective-bargaining agreement in place
between the union and the city provided for the city to have the right “to relieve
employees of work for legitimate reasons,” then any challenge to or interpretation of
this right must be accomplished through the grievance-and-arbitration procedure set
forth in the agreement, which, the city maintains, is the exclusive remedy for any
contractual dispute.
{¶10} In response, the employees sought leave to file a “Consolidated
Amended Notice of Appeal and Complaint for Writ of Mandamus,” which was granted.
The employees sought reversal of the commission’s decision denying them a hearing
on their individual appeals or, alternatively, the issuance of a writ directing the
commission to hold a hearing on their appeals. The city again moved to dismiss the
appeal, contending: (1) the common pleas court lacked subject-matter jurisdiction
over this appeal under R.C. 2506.01 because the employees had not been entitled to a
hearing before the commission on their appeals; (2) state law as set forth under R.C.
4117.10 divests civil service commissions of jurisdiction to hear appeals related to
matters that are subject to binding labor arbitration; and (3) the complaint for a writ
of mandamus should be denied for failure to state a claim upon which relief can be
granted because the employees have an adequate remedy at law, which is the
grievance-and-arbitration process already underway between the employees’ labor
union and the city.
{¶11} In response, the employees maintained that (1) under R.C. 2506.01, the
trial court did have subject-matter jurisdiction to hear the appeal because the TEL
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OHIO FIRST DISTRICT COURT OF APPEALS
program had “all the characteristics of a layoff,” and thus, the employees had been
entitled to a hearing or quasi-judicial proceeding under Civil Service Rule 17; (2) the
collective-bargaining agreement in place between the city and the union provided
individual employees with the right to appeal the procedural aspects of their layoffs or
displacements and thus, the commission was not divested of jurisdiction to hear the
employees’ appeals; and (3) the complaint for a writ of mandamus should not be
dismissed because, absent court intervention, the employees had no adequate remedy
to appeal the commission’s denial of jurisdiction and, consequently, the denial of a
hearing before the commission.
{¶12} The trial court denied the motion to dismiss, and the appeal was heard
before a magistrate. Following oral arguments, the magistrate found that (1) the
commission’s decision denying the employees a hearing on their appeals violated “due
process of law” by preventing them from “hav[ing] the opportunity to subpoena
witnesses, to cross-examine witnesses, or to present other reliable evidence in support
of their position that the TEL was a layoff” and (2) the commission’s decision,
“following the ‘appearance[,]’ that the TEL is not a layoff was arbitrary, unreasonable,
and [was] not supported by the preponderance of substantial, reliable, and probative
evidence.” Therefore, the magistrate, concluding that the commission had jurisdiction
to review the appeals, remanded the matter to the commission to hold a hearing on
the merits of the appeals. The magistrate also denied the employees’ request for a writ
of mandamus, finding that the employees had an adequate remedy in the ordinary
course of law, and determined that the common pleas court had subject-matter
jurisdiction over the employees’ administrative appeal “for the reasons set forth in [the
employees’] memorandum in opposition to the [city’s] motion to dismiss.”
{¶13} The city objected to the magistrate’s decision, arguing that the
magistrate erred in finding that the court had jurisdiction to hear the administrative
appeal and that the commission’s decision to deny the employees a hearing violated
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OHIO FIRST DISTRICT COURT OF APPEALS
their right to due process of law. The common pleas court, concluding that the
magistrate had properly determined the factual issues and appropriately applied the
law, overruled the objections, adopted the decision of the magistrate, and ordered the
commission to hold a hearing on the employees’ appeals.
{¶14} The city now appeals and, in a single assignment of error, contends that
the “trial court erred when it allowed the decision of the Civil Service Commission to
be reviewed in the Hamilton County Court of Common Pleas.” We note that the city
is not appealing any of the findings made by the trial court but simply the authority of
the court to even consider the appeal and make those findings. Because we hold that
the trial court had subject-matter jurisdiction to consider the employees’
administrative appeal from the commission’s decision denying them a hearing, we
overrule this assignment of error.
Standard of Review
{¶15} Subject-matter jurisdiction is the statutory or constitutional power of
the court to hear and decide a case upon its merits and to render an enforceable
judgment in the action. Morrison v. Steiner, 32 Ohio St.2d 86, 290 N.E.2d 841 (1972),
paragraph one of the syllabus. In the context of administrative appeals, “[c]ourts of
common pleas only have ‘such powers of review of proceedings of administrative
officers and agencies as may be provided by law.’ ” Clifton Care Ctr. v. Ohio Dept. of
Job & Family Servs., 2013-Ohio-2742, 994 N.E.2d 879, ¶ 9 (10th Dist.), quoting Ohio
Constitution, Article IV, Section 4. Determinations on subject-matter jurisdiction are
reviewed de novo. Cirino v. Ohio Bur. of Workers’ Comp., 153 Ohio St.3d 33, 2018-
Ohio-2665, 106 N.E.3d 41, ¶ 17.
Employees’ Appeal Reviewable under R.C. 2506.01
{¶16} In support of its assignment, the city first argues that the trial court
lacked subject-matter jurisdiction under R.C. 2506.01 to consider the employees’
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OHIO FIRST DISTRICT COURT OF APPEALS
appeal from the commission’s decision denying them a hearing because that decision
was not the result of a quasi-judicial proceeding.
{¶17} R.C. 2506.01 provides for appeals from decisions of agencies of political
subdivisions, including civil service commissions. For a decision to be appealed under
R.C. 2506.01, it must be rendered in a quasi-judicial proceeding. Lakota Local School
Dist. Bd. of Edn. v. Brickner, 108 Ohio App.3d 637, 644, 671 N.E.2d 578 (6th Dist.1996).
A quasi-judicial proceeding is earmarked by the requirement of notice, a hearing, and an
opportunity to present evidence. State ex rel. Fern v. Cincinnati, 161 Ohio App.3d 804,
2005-Ohio-3168, 832 N.E.2d 106, ¶ 51 (1st Dist.). Whether a proceeding is a quasi-
judicial proceeding from which an appeal may be taken under R.C. 2506.01 “depends not
upon what the administrative agency actually did, but rather upon what the
administrative agency should have done. ‘Where the administrative agency should have
given notice, conducted a hearing and afforded the parties an opportunity to be heard
and to introduce evidence, the order is the result of [a quasi-judicial proceeding] even if
the administration fails to afford such notice and hearing.’ ” Id., quoting In re Howard,
73 Ohio App.3d 717, 598 N.E.2d 165 (10th Dist.1991).
{¶18} Here, Harmon and Beasley were not afforded a hearing on their appeals
under Civil Service Rule 17 even though their notices of appeal and other written
communication to the commission indicated that they were appealing the procedural
aspects of their layoffs and a violation of Civil Service Rule 12. (Civil Service Rule 12
governs the procedures the city must follow when implementing a layoff and provides
that “if there is a reduction of the work force, the appointing authority shall follow the
procedures for laying off employees.”) Civil Service Rule 17 provides that upon receipt
of an appeal challenging a layoff, “the commission shall forthwith notify the
appointing authority and shall hear or appoint a trial board to hear such appeal within
thirty calendar days after the time stamped date of receipt of the written appeal.”
There is no dispute that a hearing under Civil Service Rule 17 constitutes a quasi-
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OHIO FIRST DISTRICT COURT OF APPEALS
judicial proceeding. Thus, if the employees were entitled to a hearing on their appeals
under Civil Service Rule 17, then the employees’ appeal of the commission’s decision
is reviewable by the trial court under R.C. 2506.01.
{¶19} Although the city argues that the leave under the TEL program is not a
layoff, that is not evident from the notices of appeal sent to the commission. The
notices of appeal cite or discuss the civil service rule governing layoffs, and specifically
state that the employee is appealing the procedural aspects of a layoff and is requesting
a hearing on that matter. Under these facts, the civil service rules required the
commission to set the employees’ appeals for a hearing. The commission may not
abandon its own rules and sua sponte decide that the leave under the TEL program
was not a layoff prior to holding a hearing on that issue. The city’s argument that the
leave under the TEL program was not a layoff is essentially a defense or justification
as to why the city did not follow Civil Service Rule 12 in implementing the TEL
program. It simply does not make sense for the civil service rules to require a hearing
on an employee’s appeal of a layoff, yet then consider the employer’s defense at a
proceeding—here, an appearance—which is less rigorous than the required hearing. A
civil service commission must follow its own rules. See State ex rel. Lanter v. Civil
Serv. Comm., 1st Dist. Hamilton No. C-950285, 1995 Ohio App. LEXIS 5783, 9 (Dec.
29, 1995). Accordingly, given the facts in this case—where the employees’ notices of
appeal to the commission indicate that the employee is appealing a layoff and
requesting a hearing and cites or describes a violation of Civil Service Rule 12—we hold
that the commission was required to set the appeal for a formal hearing under Civil
Service Rule 17.
{¶20} Because the employees’ appeals should have been set for a formal
hearing, the commission’s decision denying them a hearing was an adjudication from
a quasi-judicial proceeding. Accordingly, an appeal from that decision to the trial
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OHIO FIRST DISTRICT COURT OF APPEALS
court was proper under R.C. 2506.01. See Fern, 161 Ohio App.3d 804, 2005-Ohio-
3168, 832 N.E.2d 106, at ¶ 51.
R.C. 4117.10 Did Not Divest Trial Court of Jurisdiction
{¶21} Next, the city argues that under R.C. 4117.10(A), where a dispute is
subject to binding arbitration in accordance with a collective-bargaining agreement, a
city’s civil service commission, and by extension, a trial court, is without subject-
matter jurisdiction to hear an administrative appeal regarding that dispute. But that
is not always the case where the collective-bargaining agreement provides for
employees to retain certain employee rights, including the right to pursue an
individual action. R.C. 4117.10(A) provides:
An agreement between a public employer and an exclusive
representative entered into pursuant to this chapter governs wages,
hours, and terms and conditions of public employment covered by the
agreement. If the agreement provides for a final and binding arbitration
of grievances, public employers, employees, and employee
organizations are subject solely to that grievance procedure and the
state personnel board of review or civil service commissions have no
jurisdiction to receive and determine any appeals relating to matters
that were the subject of a final and binding grievance procedure. Where
no agreement exists or where an agreement makes no specification
about a matter, the public employer and public employees are subject to
all applicable state or local laws or ordinances pertaining to all wages,
hours, and terms and conditions of employment for public employees.
{¶22} R.C. 4117.10(A) both restricts the remedies available for contesting
employment decisions and sets out the relationship between provisions of a collective-
bargaining agreement and state or local laws. Hassey v. City of Columbus, 2018-Ohio-
3958, 111 N.E.3d 1253, ¶ 26 (10th Dist.), citing Streetsboro Edn. Assn. v. Streetsboro
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OHIO FIRST DISTRICT COURT OF APPEALS
City School Dist. Bd. of Edn., 68 Ohio St.3d 288, 291, 626 N.E.2d 110 (1994). “Under
R.C. 4117.10(A), if a provision of a collective bargaining agreement conflicts with the
law, the provision prevails over the law, except for laws specifically enumerated in the
statute.” Id., citing State ex rel. Chavis v. Sycamore City School Dist. Bd. of Edn., 71
Ohio St.3d 26, 29, 641 N.E.2d 188 (1994). Here, Civil Service Rule 17 allows city
employees to appeal a layoff. But this right can be bargained away under R.C.
4117.10(A). Id. at ¶ 27, citing In re Lemley-Wingo, 4th Dist. Ross No. 1622, 1990 Ohio
App. LEXIS 3869 (Aug. 22, 1990) (“The rights to appeal a [layoff] through * * * a civil
service commission are not laws exempted from the bargaining table under R.C.
4117.10(A).”). “In other words, the statutory or charter-based right to appeal
[employee rights] ‘is a proper subject for a collective bargaining agreement’ and ‘may
be either retained or bargained away by the parties.’ ” Id., quoting Fields v. Summit
Cty. Executive Branch, 83 Ohio App.3d 68, 73, 613 N.E.2d 1093 (9th Dist.1992).
Therefore, even if a collective-bargaining agreement includes a grievance procedure
that culminates in final-and-binding arbitration, that agreement may allow an
employee to pursue remedies provided by law instead of following the grievance
procedure. Id., citing Davis v. Hocking Cty. Sheriff, 76 Ohio App.3d 843, 847-848,
603 N.E.2d 406 (4th Dist.1992). When an employee elects to invoke his or her
statutory or charter-based right to appeal, “the administrative entity with the legal
authority to hear the appeal possesses the necessary jurisdiction to determine the
matter before it.” Id.{¶23} Here, a collective-bargaining agreement (“CBA”) is in place between the
employees’ labor union and the city, which provides for a final-and-binding arbitration
of grievances. The city argues that because the employees’ labor union had already
filed a grievance related to the TEL program on behalf of affected employees, the
commission did not have jurisdiction to consider any individual employee appeals
related to the TEL program. However, we keep in mind that a collective-bargaining
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OHIO FIRST DISTRICT COURT OF APPEALS
agreement is a contract, and “the overriding concern of any court when construing a
contract is to ascertain and effectuate the intent of the parties.” Hassey at ¶ 35. “The
intent of the parties is presumed to reside in the language the parties chose to employ
in the contract.” Id. With that in mind, we turn to the CBA.
{¶24} Section 5.1 of the CBA discusses the rights of employees in the
bargaining unit and specifically states that the parties agree that “a number of terms
and conditions of employment” are not specified in the CBA, and with respect to such
terms and conditions not specified, “no employee in the bargaining unit waives any
individual right under City Charter; City Code; City rule or regulation; and state or
federal statute, constitutional principle, or common law.” Further, Section 5.1 of the
CBA states that with respect to any term or condition not specified, “it is specifically
recognized that such individual employee rights remain unaffected by this Agreement,
and that such individual employee rights are enforceable through normal Civil Service,
regulatory, and/or judicial processes.” This makes sense given that a grievance under
the CBA is defined only as “an alleged violation of a specific provision of this
Agreement.”
{¶25} Here, Harmon and Beasley indicated in their notices of appeal to the
commission that they were appealing their “layoffs.” Section 10.1 of the CBA governs
“layoffs or displacements” and provides in relevant part that “[e]mployees have the
right to appeal the procedural aspects of layoff or displacement to the Civil Service
Commission.” Thus, if the leave under the TEL program constitutes a layoff, Harmon
and Beasley have retained their right to appeal procedural aspects of their layoff to the
commission. But even if the temporary leave under the TEL program is not considered
a layoff, as the city argues, Section 5.1 of the CBA specifically allows employees to
enforce their individual employee rights concerning terms and conditions of
employment not specified in the CBA through the “Civil Service, regulatory, and/or
judicial processes.” Section 10.1, which governs layoffs, is the only provision of the
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CBA that addresses any sort of employee leave implemented by the city for
nondisciplinary reasons. There is no other provision in the CBA which would govern
any emergency or temporary leave. Thus, under Section 5.1 of the CBA, Harmon and
Beasley could still pursue their appeals concerning the TEL program through other
judicial processes.
{¶26} Finally, the city maintains that Harmon and Beasley should be
prevented from pursing their individual rights of action because their labor union filed
a grievance that also raises the same issue of whether the implemented leave under
TEL constitutes a layoff. The city cites to Leon v. Boardman Twp., 100 Ohio St.3d
335, 2003-Ohio-6466, 800 N.E.2d 12, ¶ 17, for the proposition that sound labor policy
disfavors an individualized right of action “because it tends to vitiate the exclusivity of
union representation, disrupt industrial harmony, and, in particular, impede the
efforts of employer and union to establish a uniform method for the orderly
administration of employee grievances.” But the Leon court also recognized that the
collective-bargaining agreement is the governing authority over whether an employee
has retained an individualized right of action. Id. at ¶ 17-18. The court said, “[A]n
aggrieved worker whose employment is governed by a collective bargaining agreement
that provides for binding arbitration will generally be deemed to have relinquished his
or her right to act independently of the union in all matters related to or arising from
the contract, except to the limited extent that the agreement explicitly provides to the
contrary.” (Emphasis added.) Id. at ¶ 17. Here, the CBA expressly allows employees
to retain their rights to pursue an individual claim regarding an employment decision
not covered in the CBA that adversely affects them. Regardless of whether the TEL
program constituted a layoff, or a leave not covered under the terms and conditions of
the CBA, that agreement permits Harmon and Beasley to enforce their individual
rights of action. Therefore, we hold that the commission, and by extension, the trial
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court, was not divested of jurisdiction over the employees’ individual appeals in this
case by virtue of the CBA.
{¶27} In conclusion, because we have determined that Harmon’s and
Beasley’s appeal was reviewable by the trial court under R.C. 2506.01 and that R.C.
4117.10 does not divest the commission of jurisdiction to consider Harmon and
Beasley’s individual appeals, we hold that the trial court had subject-matter
jurisdiction to entertain the employees’ appeal from the commission’s decision
denying them a hearing. Accordingly, we overrule the city’s single assignment of error
and affirm the trial court’s judgment.
Judgment affirmed.
CROUSE, P.J., and BERGERON, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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