Ohio R. Prac. S. Ct. app D
| IN THE SUPREME COURT OF OHIO | ||
| John B. DeVennish, | : | |
| : | ||
| Appellant, | : | On Appeal from the Franklin |
| : | County Court of Appeals | |
| : | Tenth Appellate District | |
| v. | : | |
| City of Columbus, Division | : | |
| of Public Safety, et al., | : | Case No. 02AP-433 |
| : | ||
| Appellees. | : | |
MEMORANDUM IN SUPPORT OF JURISDICTION
OF APPELLANT JOHN B. DEVENNISH
John Miller (1234567) (COUNSEL OF RECORD)
Susan Smith (7654321)
Miller, Miller & Smith
100 South High Street, Suite 100
Columbus, Ohio 43215
(614) 233-1111
Fax No. (614) 233-2222
jmiller@e-mail
COUNSEL FOR APPELLANT, JOHN B. DEVENNISH
Jane Doe (0909090)
Columbus City Attorney
Peter Jones (0999999) (COUNSEL OF RECORD)
Chief Labor Attorney
City of Columbus Dept. of Law
90 West Broad Street
Columbus, Ohio 43215
(614) 222-3456
pjones@e-mail
COUNSEL FOR APPELLEES, CITY OF
COLUMBUS AND COLUMBUS MUNICIPAL
CIVIL SERVICE COMMISSION
TABLE OF CONTENTS
| EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERAL | ||
| INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION ....................... | 1 | |
| STATEMENT OF THE CASE AND FACTS ....................................................................................... | 5 | |
| ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW ............................................................ | 6 | |
| Proposition of Law No. I: Promotions are a mandatory subject of | ||
| collective bargaining pursuant to R.C. 4117.08......................................................................... | 6 | |
| Proposition of Law No. II: A civil service commission is bound by the | ||
| collective bargaining agreement entered into by the public employer | ||
| under R.C. Chapter 4117 ................................................................................................................ | 8 | |
| CONCLUSION ...................................................................................................................................... | 9 | |
| CERTIFICATE OF SERVICE ............................................................................................................... | 10 | |
| APPENDIX | Appx. Page | |
| Opinion of the Franklin County Court of Appeals | ||
| (Oct. 24, 2003) ................................................................................................................................... | 1 | |
| Judgment Entry of the Franklin County Court of Appeals | ||
| (Oct. 24, 2003) ................................................................................................................................... | 7 | |
EXPLANATION OF WHY THIS CASE IS A CASE OF
PUBLIC OR GREAT GENERAL INTEREST AND
INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION
This cause presents two critical issues for the future of public employee collective bargaining in Ohio: (1) whether promotions are a mandatory subject of collective bargaining under R.C. Chapter 4117, the Public Employees' Collective Bargaining Act; and (2) whether a city may disclaim the legal identity between itself and its civil service commission in order to evade municipal obligations under a public employee collective bargaining agreement.
In this case, the court of appeals excluded promotions from the mandatory topics of collective bargaining and concluded, therefore, that the promotional provisions of a collective bargaining agreement could not supersede an existing civil service regulation. The court of appeals also ruled that, under the Home- Rule provisions of the Ohio Constitution, a civil service commission is not bound by the collective bargaining agreement entered into by the public employer but instead is entitled to enforce its own rules and regulations.
The decision of the court of appeals threatens the structure of public employees' collective bargaining created by the General Assembly in R.C. Chapter 4117. By its ruling, the court of appeals undermines legislative intent, ignores the plain meaning of the Act, and creates its own unsupported view of public employee collective bargaining. Moreover, the court of appeals' decision establishes the illogical and untenable rule that a city can ignore its collective bargaining agreement by delegating labor matters to a municipal agency that can violate the agreement with impunity. Finally, the decision of the court of appeals elevates the Home-Rule provisions of the Ohio Constitution over the authority of the General Assembly to enact employee welfare legislation pursuant to Section 34, Article II of the Ohio Constitution. These unprecedented inroads into the scope of the Public Employees' Collective Bargaining Act offend the plain language of the Act and the principles of constitutional governance. They urgently need correction by this court.
The implications of the decision of the court of appeals affect every governmental entity in Ohio, and touch the lives of tens of thousands of public employees in the state. The public's interest in the orderly operation of government is profoundly affected by a holding that the agreements of municipalities are not binding on agencies of the municipality. Such a rule would sabotage the integrity of governmental contracts, and undermine the fundamental principle that the rule of law constrains governments as well as citizens. Similarly, the public interest is affected if the plain meaning of a statute duly adopted by the General Assembly can be judicially altered to subvert the legislature's intent that the labor relations of governmental units throughout the state be controlled by certain uniform principles.
Apart from these governmental considerations, which make this case one of great public interest, the decision of the court of appeals has broad general signifi cance. Thousands and thousands of citizens of Ohio are public employees who perform the essential work of governance. The General Assembly has recognized their right to bargain collectively over the terms and conditions of their employment, and has codifi ed a clear and orderly process for that bargaining. Under this codifi cation, public employees can, through bargaining, determine the terms and conditions of their employment. The resulting collective bargaining agreement represents the product of a time-honored process by which employers and employees mutually agree on matters that jointly affect them.
The decision of the court of appeals sets a precedent that would exclude an entire subject matter- promotions-from collective bargaining by public employees. Under this rule, public employees would be denied the right to bargain over one of the most significant terms and conditions of employment affecting their career paths. The result of this rule would be preposterous. Employee representatives would bargain with the municipalities' representatives about the full range of terms and conditions that affect their employment, but would see the central issue of promotions relegated to the unilateral determinations of civil service commissions, which would be unconstrained by any agreement of the city.
Not surprisingly, the conclusion of the court of appeals is contrary both to the statutory scheme of R.C. Chapter 4117 and to all legal authority. Courts and public employment boards throughout the country, as well as the National Labor Relations Board, have endorsed the proposition that promotions are mandatorily subject to collective bargaining laws. Similarly, the State Employee Relations Board has recognized the mandatory bargaining nature of promotions.
The judgment of the court of appeals has great general signifi cance also because it undermines collective bargaining by permitting cities to circumvent their collective bargaining agreements. If civil service commissions had exclusive jurisdiction over promotional matters, despite contrary provisions of collective bargaining agreements, the force and value of agreements and the objectives of the Act would be severely compromised. Municipal administrative agencies, such as civil service commissions, could negate at will agreements made under the Act. Such a prospect is contrary to current case law and the stated purpose of the Act.
Finally, this case involves a substantial constitutional question. The decision offends Ohio's constitutional scheme by elevating the Home-Rule powers of municipalities, granted by the Ohio Constitution, Section 3, Article XVIII, over the constitutional power of the General Assembly to enact employee welfare legislation pursuant to Section 34, Article II of the Ohio Constitution. Such a constitutional imbalance is contrary to this court's holding in Rocky River v. State Emp. Relations Bd. (1989), 43 Ohio St.3d 1, 539 N.E.2d 103.
Contrary to the holding in Rocky River, the lower court's interpretation of R.C. 4117.08(B) impairs the functioning of the Act. The decision would invite a return to pre-collective bargaining days. This court rejected such a regression in Kettering v. State Emp. Relations Bd.(1986), 26 Ohio St.3d 50, 56, 26 OBR 42, 496 N.E.2d 983:
| "A myopic insistence on returning a significant portion of Ohio's public employee labor relations to the pre-Act ad hoc 'system,' under the rubric of local self-government powers, only invites a return to the very litigation and controversy which had prompted the General Assembly to address that distressing state of affairs. * * *"; (Footnote omitted.) See also, Dublin v. State, 118 Ohio Misc.2d 18, 2002-Ohio-2431, 769 N.E.2d 436; Sanders v. Summit Cty. Veterans'Serv. Comm., Summit App. No. 20800, 2002-Ohio-2653, at [para] 20. |
If allowed to stand, the decision of the court of appeals would ravage the Public Employees' Collective Bargaining Act. Under the decision, the collective bargaining process would be chaotic and uncertain, and would lack fi nality. Municipal collective bargaining agreements would be subject to interference and rejection by municipal agencies, whose actions would undermine not only individual agreements, but also the general framework of public labor relations intended by the legislative branch. The entire process of collective bargaining under R.C. Chapter 4117, designed to result in enforceable contractual relationships and coherent public labor relations, would be frustrated if the decision of the court of appeals is permitted to stand.
In sum, this case puts in issue the essence of public employee collective bargaining and the fate of public labor relations, thereby affecting every governmental entity and employee in Ohio. To promote the purposes and preserve the integrity of the Public Employees' Collective Bargaining Act, to assure uniform application of the Act, to promote orderly and constructive negotiations between employers and their public employees, and to remove impediments to the collective bargaining process, this court must grant jurisdiction to hear this case and review the erroneous and dangerous decision of the court of appeals.
STATEMENT OF THE CASE AND FACTS
The case arises from the attempt of appellant John B. DeVennish ("DeVennish") to attain the rank of sergeant in the Columbus Police Department. The Columbus Municipal Civil Service Commission (the "commission") ruled that DeVennish was not eligible to take the necessary promotional examination because, under the rules and regulations of the commission, he did not meet the minimum requirement of three years of continuous accredited service as a permanent employee immediately prior to the date of the examination.
The commission's "continuous-service" requirement was in obvious conflict with the provisions of the existing collective bargaining agreement ("agreement") between the appellee city of Columbus (the "city") and the Fraternal Order of Police, Capital City Lodge No. 9 (the "FOP"). Article 15 of the agreement requires an applicant for the sergeant's examination to have at least three years of service; however, the agreement does not mandate that the service be continuous or be immediately prior to the examination. DeVennish met the requirement as established by the collective bargaining agreement. The commission, however, refused to honor the provisions of the agreement and found that DeVennish did not meet the minimum qualifi cations to take the promotional examination.
The appellant appealed to the Franklin County Common Pleas Court and, upon the affi rmance of the commission's decision, appealed to the Franklin County Court of Appeals. The court of appeals affi rmed the judgment of the court of common pleas and found that: (1) Section E, Article 15 of the agreement addresses matters that are not appropriate subjects of bargaining under R.C. 4117.08(B) and, therefore, the promotional provisions of the collective bargaining agreement could not supersede the existing civil service regulation; and (2) the commission was an entity separate from the city and, under the Home-Rule provisions of the Ohio Constitution, was entitled to enforce its own rules and regulations.
The court of appeals erred in ruling that the Public Employees' Collective Bargaining Act excludes promotions from the mandatory topics of collective bargaining. The court of appeals also erred in failing to recognize that a municipality binds its civil service commission when it enters into a collective bargaining agreement with a public employee union.
In support of its position on these issues, the appellant presents the following argument.
ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW
Proposition of Law No. I: Promotions are a mandatory subject of collective bargaining pursuant to R.C. 4117.08.
Matters dealing with promotion are mandatory subjects for bargaining under the Ohio Public Employees' Collective Bargaining Act ("Act"), R.C. Chapter 4117. The statutory scheme of the Act makes this clear.
R.C. 4117.08(A) sets forth the matters that are subject to collective bargaining between a public employer and the exclusive representative of a public employee bargaining unit. Under that statute, "[a]ll matters pertaining to wages, hours, or terms and other conditions of employment * * * are subject to collective bargaining" unless otherwise specifi ed in the statute. The few statutory exclusions from this broad mandate are set out in R.C. 4117.08(B), which provides:
| "The conduct and grading of civil service examinations, the rating of candidates, the establishment of eligible lists from the examinations, and the original appointments from the eligible lists are not appropriate subjects for collective bargaining." (Emphasis added.) |
This provision excludes from collective bargaining only lists for original appointments, not promotional appointments. This statute codifi es a distinction widely accepted in traditional private sector labor law: original hiring practices are left to the employer's discretion and are not appropriate subjects of collective bargaining; promotions, in contrast, are proper subjects of collective bargaining. See, e.g., Ford Motor Co. v. Huffman (1953), 345 U.S. 330, 341-342, 73 S.Ct. 681, 97 L.E. 1048; Amalgamated Transit Union Internatl., AFL-CIO v. Donovan (C.A.D.C.1985), 767 F.2d 939; Houston Chapter, Associated Gen. Contrs. of Am., Inc. (1963), 143 N.L.R.B. 409.
This plain meaning of the narrow exclusion embodied in R.C. 4117.08(B) is supported by the language of the section that immediately follows it. R.C. 4117.08(C) provides as follows:
| "Unless a public employer agrees otherwise in a collective bargaining agreement, nothing in Chapter 4117. of the Revised Code impairs the right and responsibility of each public employer to: |
| " * * * |
| "(5) * * * promote * * * employees." |
This section expressly permits a public employer to address promotional matters in a collective bargaining agreement. More forcefully, the final provision of R.C. 4117.08(C) requires an employer to bargain on subjects that affect "wages, hours, [and] terms and conditions of employment." Promotions obviously are such a subject; they inherently affect wages, hours and terms or conditions of employment.
The court of appeals held that, under this clear statutory scheme, the determination of who is eligible for a promotion, and therefore eligible for a promotional civil service examination, is a prohibited topic for collective bargaining. This holding ignores the evident meaning of R.C. 4117.08 and improperly broadens the narrow exceptions enumerated in R.C. 4117.08(B). The court of appeals erroneously interpreted the statutory phrase "establishment of eligible lists from the examination" (emphasis added) to include the determination of an applicant's eligibility to sit for an examination. Such a judicial expansion of a clear and carefully drafted statutory exclusion violates the rules of statutory construction established and applied by this court. See State ex rel. Keller v. Forney (1923), 108 Ohio St. 463, 141 N.E. 16; Kroff v. Amrhein (1916), 94 Ohio St. 282, 114 N.E. 267; Erich v. Mayfield Village, (July 13, 2000), Cuyahoga App. No. 76675; Leland v. Lima, Allen App. No. 1-02-59, 2002- Ohio-6188, at ¶ 20-21.
Proposition of Law No. II: A civil service commission is bound by the collective bargaining agreement entered into by the public employer under R.C. Chapter 4117.
As with any municipal agency, a civil service commission is bound by the contracts of the municipality. Thus, a collective bargaining agreement between a city and a public employee union binds the civil service commission.
As the State Employee Relations Board and several Ohio courts have ruled, and as the appellee city has acknowledged in other forums, a civil service commission has no separate legal identity or capacity apart from the city that created it. A collective bargaining agreement entered into by a municipality, as a public employer, therefore, binds a civil service commission as well.
Furthermore, the provisions of a collective bargaining agreement entered into by a municipality must prevail over a conflicting regulation of a civil service commission. This court held inRocky River v. State Emp. Relations Bd., supra, 43 Ohio St.3d 1, 539 N.E.2d 103, that the exercise by municipalities of Home-Rule powers is constitutionally limited to the exercise of powers that do not conflict with any general law. Thus, the provisions of R.C. Chapter 4117, a general state law, prevail over conflicting municipal enactments, such as the commission's regulations. See State ex rel. Dayton Fraternal Order of Police, Lodge No. 44, v. State Emp. Relations Bd. (1986), 22 Ohio St.3d 1, 22 OBR 1, 488 N.E.2d 181; Kettering v. State Emp. Relations Bd., supra, 26 Ohio St.3d 50, 26 OBR 42, 496 N.E.2d 983; and Dist. 1199, Health Care & Soc. Serv. Union, SEIU, AFL-CIO v. State Emp. Relations Bd., Franklin App. No. 02AP-391, 2003-Ohio-3436.
CONCLUSION
For the reasons discussed above, this case involves matters of public and great general interest and a substantial constitutional question. The appellant requests that this court accept jurisdiction in this case so that the important issues presented will be reviewed on the merits.
| Respectfully submitted, |
| John Miller, Counsel of Record |
| _________________________________ |
| Susan Smith |
| COUNSEL FOR APPELLANT, |
| JOHN B. DEVENNISH |
Certificate of Service
I certify that a copy of this Memorandum in Support of Jurisdiction was sent by ordinary U.S. to counsel for appellees, Jane Doe, Columbus City Attorney, and Peter Jones, Chief Labor Attorney, City of Columbus Dept. of Law, 90 West Broad Street, Columbus, Ohio 43215 on November 22, 2003.
| _________________________________ |
| Susan Smith |
| COUNSEL FOR APPELLANT, |
| JOHN B. DEVENNISH |
Ohio. R. Prac. S. Ct. app D