Opinion
No. 82-396
Decided April 20, 1983.
Municipal corporations — Layoffs of classified employees of noncharter municipality — Length of service in particular classification determinative — R.C. 124.32 supersedes conflicting local ordinance.
O.Jur 3d Counties etc. § 581.
R.C. 124.32, which requires that layoffs be according to length of service in a particular classification, takes precedence over a conflicting ordinance of a noncharter municipality, the manner of laying off employees being a procedural matter.
APPEAL from the Court of Appeals for Cuyahoga County.
There is no dispute between the parties as to the essential facts of this case. On March 12, 1980, various employees of the city of Parma, a non-charter municipality, were laid off from their positions, among them, the appellants herein. The layoffs were dictated by the financial condition of the city of Parma. The layoffs were effectuated from a list compiled at the request of the Service Director of the city of Parma which serialized the employees according to their length of service in a particular job classification. In compiling the layoff list, reference was not made to Section 173.07 of the Codified Ordinances of the city of Parma which required that seniority for layoffs be calculated by considering total length of service in any classification with the city of Parma. Rather, appellants were laid off pursuant to R.C. 124.32, according to length of service in a particular classification.
Two of the appellants were classified as truck drivers and had significant prior service with the city of Parma. Appellant James McClosky was employed by the city of Parma for six years as a laborer and although he incurred a break in service, such break was for a period of only nine months. Appellant Robert Treska, employed as a truck driver, had nearly nine years of prior service as a laborer.
Three of the appellants were classified as mechanics. Though they did not have prior service with the city of Parma, they all performed substantially the same duties as those of another classification, that of mechanics' apprentices. The latter were not laid off pursuant to the dictates of Parma Ordinance No. 173.07.
The primary issue addressed on appeal of the layoffs was whether Parma was correct in ordering these layoffs on the basis of seniority within a classification, as opposed to seniority based on total service with the city.
The Parma Civil Service Commission approved the layoffs of appellants. This order was reversed by the court of common pleas. Upon appeal, the court of appeals reversed.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Messrs. Chattman, Moss, Chattman, Garfield Friedlander, Mr. Thomas A. McCormack and Mrs. Douglas Paul, for appellants.
Mr. Andrew Boyko, law director, and Mr. Stephen P. Bond, for appellees.
The issue presented is whether the Parma ordinance supersedes R.C. 124.32. The ordinance requires that seniority for layoffs be calculated by considering total length of service in any classification with Parma. Section 173.07 of the Codified Ordinances of the city of Parma states:
"Any dismissals, layoffs, etc., of public employees on the payrolls of the City shall be accomplished and made according to seniority which has been accumulated by the City personnel during their continuous length of service. Seniority, as herein used, means only continuous length of service for the City to the exclusion of all other public service, except as otherwise provided herein. A resumption of service after disruption by involuntary layoffs, etc. shall constitute continuous service. Continuous length of service shall be considered as disrupted by a voluntary cessation of employment, unless reinstated as an officer or employee within one year after such cessation of employment, or by dismissal for dereliction of duty, as determined by a Civil Service Commission hearing, or, if no Civil Service status is involved, by a decision made by a Grievance Board, hereinafter created in 173.11. An employee, reinstated after cessation of employment, shall retain all seniority benefits." (Emphasis added.)
The statute requires that layoffs be according to length of service in a particular classification. R.C. 124.32 states, in pertinent part:
"(C) Whenever any permanent office or position in the classified service is abolished or made unnecessary, or the person holding such office or position is laid off, the procedure outlined in this section shall be followed. Any layoff within a classification, as defined in Section 124.14 of the Revised Code including parenthetical titles when included within the specification, must proceed by laying off in the following order:
"(1) Employees serving provisionally who have not completed their probationary period after appointment;
"(2) Employees serving provisionally who have satisfactorily completed their probationary period after appointment;
"(3) Employees appointed by certification who have not completed their probationary period after appointment;
"(4) Employees appointed by certification who have satisfactorily completed their probationary period after appointment.
"Within each of the primary categories intermittent, then part-time, and then seasonal employees will be laid off before full-time permanent employees.
"* * *
"(F) When a layoff is necessary, the appointing authority will decide in which classification or classifications the layoff or layoffs will occur and the number of employees to be laid off within each affected class. After applying the order of layoff above, remaining employees in the same classification will be laid off using systematic consideration of seniority and relative efficiency as determined by the director of administrative services." (Emphasis added.)
The parties agree that the two legislative enactments are in conflict. Both the ordinance and the statute legislate on the same subject matter, affecting the same individuals. The enactments are not capable of a reasonable construction which will harmonize the two. Thus, one or the other must take precedence.
In Benevolent Assn. v. Parma (1980), 61 Ohio St.2d 375 [15 O.O.3d 450], this court was concerned with the pay to be received by city employees who were in the reserve components of the armed forces. Under Parma Ordinance No. 83-73 they were entitled to thirty-one days of leave of absence each calendar year for field training or active duty. Further, this ordinance provided that "[i]f a city employee's military pay or compensation during such period of leave of absence is less than his city pay would have been for such period, he shall be paid by the city the difference in money between the city pay and his military pay for such period."
However, under R.C. 5923.05 they would receive their full salaries during such leave.
The court in Benevolent Assn., supra, held that wages were a substantive matter. Paragraph one of the syllabus is as follows:
"An Ohio municipality which has not adopted a charter for its government, as authorized by Section 7 of Article XVIII of the Constitution of Ohio, must, in the passage of legislation, follow the procedure prescribed by statutes enacted pursuant to the mandate of Section 2 of Article XVIII of the Constitution. (Paragraph two of the syllabus in Morris v. Roseman, 162 Ohio St. 447, and paragraph one of the syllabus in Wintersville v. Argo Sales Co., 35 Ohio St.2d 148 [64 O.O.2d 88], approved and followed.)"
Paragraph two of the syllabus in Morris v. Roseman (1954), 162 Ohio St. 447 [55 O.O. 255], holds as follows:
"An Ohio municipality which has not adopted a charter for its government, as authorized by Section 7, Article XVIII of the Constitution of Ohio, must, in the passage of its legislation, follow the procedure prescribed by the statutes enacted pursuant to the mandate of Section 2, Article XVIII of the Constitution."
We conclude the state statute controls since the manner of laying off employees is a procedural matter.
Accordingly, the judgment of the court of appeals is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., SWEENEY, MAHONEY, HOLMES and C. BROWN, JJ., concur.
W. BROWN, J., concurs in judgment only.
MAHONEY, J., of the Ninth Appellate District, sitting for LOCHER, J.
DAHLING, J., of the Eleventh Appellate District, sitting by assignment.