Norris v. Elyria
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[Cite as Norris v. Elyria, 2011-Ohio-4169.] STATE OF OHIO COUNTY OF LORAIN JAMISON NORRIS ) )ss: ) IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT C.A. No. 10CA009900 Appellee v. ELYRIA, OHIO (CITY OF) Appellant APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 09CV164758 DECISION AND JOURNAL ENTRY Dated: August 22, 2011 DICKINSON, Judge. INTRODUCTION {¶1} The City of Elyria fire department eliminated one captain and eight lieutenant positions for budgetary reasons, demoting the employees in those positions to regular firefighter. The City chose which employees to demote based on overall length of service in the department. The affected employees appealed to the Elyria Civil Service Commission, arguing that the City should have based the demotions on length of service within a particular rank, not overall length of service in the department. The Commission determined that the City had properly decided who should be demoted. The affected employees appealed the Commission s decision to the Lorain County Common Pleas Court, which reversed, concluding that the City should have based the demotions on seniority at each rank. The City has appealed, assigning as error that the common pleas court incorrectly applied Ohio law regarding the demotion of firefighters. We affirm because, in deciding which members of a rank should be demoted under Section 124.37 of 2 the Ohio Revised Code, the City must base its decision on the employees length of service at that particular rank. BACKGROUND {¶2} In April 2009, the City abolished one captain and eight lieutenant positions from the rank structure of its fire department to save money on salaries and benefits. The City did not lay off any employees, but demoted individuals who held the abolished positions to regular firefighter. To determine which of its seven captains would be demoted to lieutenant, the City looked at the date that each had begun working for the department. The captain with least departmental seniority was Jamison Norris. He was also the most recent appointee to that position. {¶3} Regarding which of the 15 lieutenants it would demote to firefighter, the City again looked at departmental start dates. Because some lieutenants had been promoted from regular firefighter more slowly than others, this caused employees with more experience at the lieutenant position to be demoted instead of those with less experience at that position. For example, the City demoted Lieutenant Weber instead of Lieutenant Thrasher because it hired Lieutenant Thrasher as a firefighter one month before Lieutenant Weber. It made that decision even though Lieutenant Weber had been a lieutenant for 11 more years than Lieutenant Thrasher. {¶4} Another thing the City did when it determined which of the lieutenants to demote was to include Mr. Norris in its calculation, even though he was only becoming a lieutenant by virtue of the same job action. Because the department had hired Mr. Norris as a firefighter more recently than several of the other lieutenants, the City determined that he was one of the lieutenants who had to be demoted to regular firefighter. Mr. Norris, therefore, ended up being 3 demoted from captain all the way to firefighter, making him subordinate to employees he had outranked before the action. {¶5} The demoted employees appealed the City s decision to the Elyria Civil Service Commission, which upheld it. The employees appealed to the common pleas court, which reversed, concluding that the City had to base its demotion decisions on seniority in rank instead of overall departmental seniority. FIREFIGHTER DEMOTIONS {¶6} The City s assignment of error is that the common pleas court incorrectly applied Ohio law as it relates to the demotion and layoff of city firefighters. Under Section 2506.04 of the Ohio Revised Code, a common pleas court reviews a decision of a political subdivision agency to determine if it was unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable, and probative evidence on the whole record. A common pleas court s decision is appealable to an appellate court on questions of law. R.C. 2506.04. An appeal to the court of appeals, pursuant to R.C. 2506.04, is more limited in scope and requires [the appellate court] to affirm the common pleas court, unless [it] finds, as a matter of law, that the decision of the common pleas court is not supported by a preponderance of reliable, probative and substantial evidence. Kisil v. City of Sandusky, 12 Ohio St. 3d 30, 34 (1984). That does not include the same extensive power to weigh the preponderance of substantial, reliable and probative evidence, as is granted to the common pleas court. Henley v. Youngstown Bd. of Zoning Appeals, 90 Ohio St. 3d 142, 147 (2000) (quoting Kisil, 12 Ohio St. at 34 n.4). {¶7} The City has argued that it was required, under Section 124.37 of the Ohio Revised Code, to base its demotions on overall departmental seniority, regardless of rank. Under 4 Section 124.37, [w]hen it becomes necessary in a police or fire department, through lack of work or funds . . . 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 and above the rank of regular fireman in the fire 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. This provision was originally enacted in 1927 and codified at Section 486-17b of the Ohio General Code. Its language has remained substantially similar since 1931. 112 Ohio Laws 114 (1927); 114 Ohio Laws 224 (1931). The Ohio Supreme Court has held that, if a city fails to comply with Section 124.37 when it abolishes a position above the rank of patrolman or regular firefighter, its attempted elimination of the position is void. Hungler v. City of Cincinnati, 25 Ohio St. 3d 338, 344 (1986). {¶8} The City s argument hinges on the meaning of the phrases youngest employee in point of service and youngest officer in point of service in the next lower rank. If those phrases refer to the employee at a given rank who has the shortest length of service in the department overall, the City correctly applied the statute. If they refer, instead, to the employee who has the shortest length of service at a particular rank, then the common pleas court correctly applied the statute. Despite the statute s 80-year history, there is only one Ohio appellate case interpreting that language, In re Petrak, 18 Ohio App. 3d 75 (1984). Petrak is not helpful, however, because the only question before the Twelfth District was whether an employee s point of service included his time with a municipal water department. The court concluded that only time employed with a police or fire department is to be considered in determining an employee s 5 point of service under Section 124.37. Id. at 76. It did not address how seniority within a police or fire department is determined. {¶9} If a statute is ambiguous, the court, in determining the intention of the legislature, may consider among other matters: (A) [t]he object sought to be attained; (B) [t]he circumstances under which the statute was enacted; (C) [t]he legislative history; (D) [t]he common law or former statutory provisions, including laws upon the same or similar subjects; (E) [t]he consequences of a particular construction; [and] (F) [t]he administrative construction of the statute. R.C. 1.49. Regarding the first factor, the Ohio Supreme Court has explained that [t]he 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. Hungler v. City of Cincinnati, 25 Ohio St. 3d 338, 344 (1986) (quoting McCarter v. Cincinnati, 3 Ohio App. 3d 244, 248 (1981)). Regarding the second and third factors, we note that there is little legislative history regarding Section 124.37, except that a sentence was added later regarding laid-off employees who enter the armed forces. The added sentence has no relevance to this case. {¶10} Regarding the fourth factor, we can compare Section 124.37 to the layoff process when civil service positions are abolished in departments other than police or fire. Under Section 124.32.1(D)(3) of the Ohio Revised Code, [i]f an abolishment results in a reduction of the work force . . . [t]he employee whose position has been abolished shall have the right to fill an available vacancy within the employee s classification. It further provides that, [i]f the employee whose position has been abolished has more retention points than any other employee serving in the same classification, the employee with the fewest retention points shall be 6 displaced[,] . . . [and] [i]f the employee whose position has been abolished has the fewest retention points in the classification, the employee shall displace the employee with the fewest retention points in the next or successively lower classification in the classification series. Section 124.32.1 was enacted in 1982. In its decision, the common pleas court concluded that Section 124.37 should be construed to produce the same result as Section 124.32.1, which specifically explains that it is the employee with the least seniority at a particular classification who is subject to displacement, not the employee with the overall least amount of time in the department. R.C. 124.32.1(D)(3). {¶11} Regarding the consequences of the two constructions of Section 124.37, we note that the City s interpretation of the statute resulted in the demotion of some lieutenants who had served in that capacity for several years longer than those who were retained. The fact that those firefighters had been promoted to lieutenant sooner than their colleagues was not by chance. Rather, the Ohio Revised Code provides that all fire department promotions must occur by competitive examination. R.C. 124.45. Although examination takers are given some credit for seniority, whoever scores highest on the exam is placed first on an eligibility list, from which all promotions occur. See R.C. 124.46 ( The person having the highest position on the list shall be appointed in the case of a vacancy. ); R.C. 124.48. The City, therefore, not only demoted lieutenants who were more experienced at that position than others, it demoted those who had reached that rank faster by outscoring their colleagues on a competitive examination, and in spite of the disadvantage they were at because of their lack of overall departmental seniority. {¶12} Upon consideration of all of the factors listed in Section 1.49, we conclude that the common pleas court correctly applied Section 124.37. As the Ohio Supreme Court has explained, the statute is intended to provide a method of fair employee selection and promotion 7 based upon merit and fitness. Hungler v. City of Cincinnati, 25 Ohio St. 3d 338, 344 (1986) (quoting McCarter v. Cincinnati, 3 Ohio App. 3d 244, 248 (1981)). The trial court s interpretation recognizes the fact that cities should want to retain their most capable and experienced employees. This approach is also consistent with the process the legislature enacted for civil service workers in other departments. R.C. 124.32.1. The City has not persuaded us that the legislature would insist that more seasoned lieutenants should be demoted over less experienced lieutenants just because they had worked for the department a few days longer overall. Under the City s logic, it would be forced to demote a ten-year veteran at a position in favor of someone who had only been appointed to the rank a day earlier, just because the more recent appointee had been hired by the department as a regular firefighter one week earlier. Such a result is not only illogical, but would undermine the purpose of the civil service system. {¶13} We also conclude that the City improperly included Mr. Norris in its calculation of which lieutenants should be demoted to regular firefighter. The Ohio Supreme Court has explained that Section 124.37 make[s] clear that where a city decides to abolish a higher ranking police position because of lack of [funds], there shall be a demotion of the incumbent accompanied by a series of additional demotions in the lower ranks ultimately resulting in the layoff of the least senior member of the police department. Hungler v. City of Cincinnati, 25 Ohio St. 3d 338, 343-44 (1986). We believe that, as more clearly explained in Section 124.32.1, when a police or fire department employee is demoted to the next lower rank because his position has been abolished, and there is not a vacancy at that next lower rank, he bumps the least senior member at that lower rank, who must be demoted to the next lower rank. This interpretation is logical, consistent with Section 124.32.1 of the Ohio Revised Code, and prevents what happened to Mr. Norris in this case. It is unfathomable that the legislature would 8 intend for a fire captain, who had achieved that rank because he demonstrated through a competitive examination that he was more suited for the position than other lieutenants, to go from a position of superiority to one of inferiority relative to those he had outscored. The City s assignment of error is overruled. CONCLUSION {¶14} The common pleas court correctly concluded that the City improperly applied Section 124.37 of the Ohio Revised Code when it determined which employees had to be demoted to reduce costs. The judgment of the Lorain County Common Pleas Court is affirmed. Judgment affirmed. There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellants. CLAIR E. DICKINSON FOR THE COURT 9 BELFANCE, P. J. WHITMORE, J. CONCUR APPEARANCES: MICHAEL E. SZEKELY, Attorney at Law, for Appellants. PATRICK D. RILEY, Attorney at Law, for Appellees. AUDREY P. FORREST, Attorney at Law, for Appellees.
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