Ohio R. Prac. S. Ct. app F
IN THE SUPREME COURT OF OHIO
| John B. DeVennish, | : | |
| : | ||
| Appellant, | : | Case No. _______02-2177_______ |
| : | ||
| : | ||
| v. | : | On Appeal from the |
| City of Columbus, Division | : | Franklin County Court |
| of Public Safety, et al., | : | of Appeals, Tenth |
| : | Appellate District | |
| Appellees. | : |
_____________________________________________________________________________
MERIT BRIEF 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
| TABLE OF AUTHORITIES .................................................................................................................. | iii | |
| STATEMENT OF FACTS ..................................................................................................................... | 1 | |
| ARGUMENT .......................................................................................................................................... | 3 | |
| Proposition of Law No. I: Promotions are a mandatory subject of | ||
| collective bargaining pursuant to R.C. 4117.08......................................................................... | 3 | |
| 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 ................................................................................................................ | 7 | |
| CONCLUSION ...................................................................................................................................... | 10 | |
| PROOF OF SERVICE .......................................................................................................................... | 11 | |
| APPENDIX | Appx. Page | |
| Notice of Appeal to the Ohio Supreme Court | ||
| (Nov. 22, 2003) ......................................................... | 1 | |
| Opinion of the Franklin County Court of Appeals | ||
| (Oct. 24, 2003) ................................................................................................................................... | 3 | |
| Judgment Entry of the Franklin County Court of Appeals | ||
| (Oct. 24, 2003) ................................................................................................................................... | 9 | |
| Decision of the Franklin County Court of Common Pleas | ||
| (Feb. 27, 2003) ................................................................................................................................... | 11 | |
| Judgment Entry of the Franklin County Court of Common Pleas | ||
| (Mar. 10, 2003) ................................................................................................................................... | 17 | |
| Decision of Civil Service Commission | ||
| (July 22, 2001) ................................................................................................................................... | 18 | |
| CONSTITUTIONAL PROVISIONS; STATUTES: | ||
| Ohio Constitution, Section 34, Article II ........................................................................................ | 44 | |
| Ohio Constitution, Section 3, Article XVIII...................................................................................... | 44 | |
| R.C. Chapter 4117............................................................................................................................ | 45 | |
TABLE OF AUTHORITIES
CASES
| California School Emp. Assn. v. Healdsburg Union High School Dist. | |
| (Jan. 4, 1984), Pub. Emp. Bargaining (CCH), 1983-1987 Transfer | |
| Binder (Adm. Rulings), Paragraph 43,573 .............................................................................................. | 6 |
| Ford Motor Co. v. Huffman(1953), 345 U.S. 330 ....................................................... | 6 |
| Fraternal Order of Police, Capital City Lodge No. 9, v. Columbus | |
| (June 11, 1987), Franklin C.P. No. 86CV-04-2336, ................................................................................. | 10 |
| Kettering v. State Emp. Relations Bd.(1986), 26 Ohio St.3d 50 .............................. | 9-10 |
| Kroff v. Amrhein(1916), 94 Ohio St. 282 ....................................................................... | 5 |
| Leland v. Lima, Allen App. No. 1-02-59, 2002-Ohio-6188 ......................................... | 5 |
| Lorain City Bd. of Edn. v. State Emp. Relations Bd.(1988), 40 Ohio St.3d 257 ...... | 6 |
| Rocky River v. State Emp. Relations Bd.(1989), 43 Ohio St.3d 1 ............................. | 7-9 |
| State Emp. Relations Bd. v. Columbus(Dec. 31, 1987), | |
| Docket No. 86-ULP-04-0122, 5 OPER, | |
| Paragraph 5119 (SERB Hearing Offcer) ....................................................................................................... | 10 |
| State ex rel. Darvanan v. Youngstown | |
| (Jan. 27, 1987), Mahoning App. No. 85 C.A. 131, ........................................................................................ | 9-10 |
| State ex rel. Keller v. Forney(1923), 108 Ohio St. 463 ................................................. | 5 |
| CONSTITUTIONAL PROVISIONS; STATUTES | |
| Ohio Constitution, Section 34, Article II ......................................................................................................... | 8 |
| Ohio Constitution, Section 3, Article XVIII ...................................................................................................... | 8 |
| R.C. 119.12......................................................................................................................................................... | 2 |
| R.C. Chapter 2505 ............................................................................................................................................ | 2 |
| R.C. Chapter 4117 ............................................................................................................................................ | 1, 5, 7-9 |
| R.C. 4117.01(B) ................................................................................................................................................. | 7 |
| R.C. 4117.08....................................................................................................................................................... | 3-4, 7 |
| R.C. 4117.08(A) .................................................................................................................................................. | 3-4 |
| R.C. 4117.08(B) ................................................................................................................................................. | 2-5, 7 |
| R.C. 4117.08(C) ................................................................................................................................................. | 5-6 |
| R.C. 4117.10...................................................................................................................................................... | 9 |
| R.C. 4117.10(C) ................................................................................................................................................. | 7-8 |
STATEMENT OF FACTS
This case arises from the attempt of appellant John B. DeVennish ("DeVennish") to attain the rank of sergeant in the Columbus Police Department. DeVennish joined the Columbus police force on March 17, 1985. (Supp. 38.) He voluntarily resigned in good standing on April 30, 1991 to work in private industry. (Supp. 38, Tr. 15.) On October 6, 1999, DeVennish rejoined the Columbus police force and graduated frst academically in his police academy class. (Supp. 38, Tr. 16.)
In 2000, DeVennish applied to take the police sergeant promotional examination. (Supp. 41.) The staff of the Columbus Municipal Civil Service Commission (the "commission"), and later the executive director of the commission, rejected the application of DeVennish on the ground that DeVennish did not meet a minimum requirement under the rules and regulations of the commission. Specifcally, they found that DeVennish did not have "three years of continuous accredited service as a permanent appointee immediately prior to the date of examination." (Supp. 32, 30.)
DeVennish appealed this decision to the commission. (Supp. 31.) Pending that appeal, he was permitted to take the promotional examination. (Supp. 143.) On the posted list of test scores, DeVennish ranked twenty-frst out of one hundred seventy-nine applicants. (Supp. 143.) On July 22, 2001, the commission dismissed DeVennish's appeal on the ground that he did not have three years of continuous service prior to the examination. (Appx. 18.) In so doing, the commission refused to honor the provisions of a contract, effective December 29, 1998, between the city of Columbus (the "city") and the Fraternal Order of Police, Capital City Lodge No. 9 (the "FOP") pursuant to R.C. Chapter 4117. (See Supp. 118.)
Section E, Article 15 of the collective bargaining agreement ("the agreement") between the city and the FOP provides, in part, that:
| "The City and * * * [FOP] agree that, within 60 days of the ratifcation date of this Agreement, they shall jointly support and petition the * * * Commission to request that the following be included in the Civil Service Rules and Regulations: |
| " * * * |
| "(E) To be eligible for the next promotional examination, the applicant must have had at least 3 years as a Police Offcer for the rank of Sergeant and at least one year in prior ranks for all other ranks. * * *" (Supp. 83-84.) |
Despite the terms of the agreement and the effort of the FOP, the city neither joined in a petition nor caused the commission to formally adopt the new promotional eligibility rule. In determining the eligibility of DeVennish, the commission elected to apply the civil service regulation instead of the standard of the agreement, a standard DeVennish met.
Pursuant to R.C. 119.12 and Chapter 2505, DeVennish appealed to the Franklin County Common Pleas Court. (Supp. 26.) The Franklin County Common Pleas Court (Crawford, J.) issued its decision on February 27, 2003, affrming the decision of the commission, and entered its judgment on March 10, 2003. (Appx. 11, 17.) DeVennish fled his notice of appeal to the Franklin County Court of Appeals on April 10, 2003. (Supp. 136.)
On October 24, 2003, the Franklin County Court of Appeals affrmed the judgment of the common pleas court. (Appx. 3, 9.) The court of appeals ruled that the promotional provisions of the collective bargaining agreement did not apply to DeVennish on grounds that: (a) Section E, Article 15 of the collective bargaining agreement between the city and the FOP addressed a matter that was not an appropriate subject of bargaining under R.C. 4117.08(B) and, therefore, the agreement could not supersede the existing civil service regulation; (b) the Columbus Municipal Civil Service Commission was an entity separate from the city of Columbus and had the right, under the Home-Rule provisions of the Ohio Constitution, to enforce its own rules and regulations; and (c) the commission had never formally adopted the promotional standard set forth in the collective bargaining agreement between the city and the FOP and was not bound by the agreement between the city and the FOP.
DeVennish filed his notice of appeal to the Supreme Court of Ohio on November 22, 2003. (Appx. 1.) On April 4, 2004, the Supreme Court granted jurisdiction to hear the case and allowed the appeal.
ARGUMENT
Proposition of Law No. I:
Promotions are a mandatory subject of collective
bargaining pursuant to R.C. 4117.08.
R.C. 4117.08(A) provides that "[a]ll matters pertaining to wages, hours, or terms and other conditions of employment" are mandatory subjects of collective bargaining between public employers and exclusive representatives unless otherwise specified in the statute. R.C. 4117.08(B) excludes only four topics from this broad mandate:
The court of appeals in this case ruled that the determination of a public employee's eligibility to sit for a promotional civil service examination is "the establishment of the eligible lists from [an] examination" and, therefore, falls within the statutory exclusion. As a result of this conclusion, the court ruled that a collective bargaining agreement cannot address the subject of eligibility for promotions.
The court of appeals misread the exclusionary language contained in R.C. 4117.08(B) which, in its entirety, states:
"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.)
Two provisions of this section are relevant here: (a) "the establishment of eligible lists from the examinations"; and (b) "the original appointments from the eligible lists." Accepted canons of statutory construction make clear that these contiguous phrases are related. Read together, as they must be, the clauses exclude from collective bargaining two matters: (1) determination of eligibility based on the results of examinations, and (2) original appointments of persons determined by the examination to be eligible. This section plainly does not exclude from collective bargaining the subjects of eligibility for promotion or promotional appointments. The use of the term "original" makes clear the legislature's intent to exclude only original appointments. In doing so, the General Assembly merely codifed the standard practice of labor relations under which original hiring practices typically are left to the employer's discretion and not considered an appropriate subject of collective bargaining.
The court of appeals' decision in this case would render the evident statutory scheme meaningless. Nowhere in R.C. 4117.08 did the General Assembly evince the slightest intent to exclude promotions from the broad requirement of R.C. 4117.08(A) that "terms and other conditions of employment" be subject to bargaining. Of course, had the General Assembly actually intended to exclude promotions from collective bargaining, it would have done so directly and simply-by using the word "promotion" in R.C. 4117.08(B), which defnes excluded topics. That the General Assembly did not do so is conclusive evidence that it did not intend to exclude promotions. Any contrary conclusion, such as that reached by the court of appeals, violates a basic principle of statutory construction.
The court of appeals' error is compounded by its obvious misreading of the specifc exclusions in the statute. The court of appeals erroneously interpreted the phrase, "the establishment of eligible lists from the examinations," to include the determination of an applicant's eligibility to sit for an examination. Such judicial expansion of a clear and carefully drafted statutory exclusion violates the rules of statutory construction established and applied by this court, and the critical constitutional concerns for separation of powers that animate those rules. In State ex rel. Keller v. Forney (1923), 108 Ohio St. 463, 141 N.E. 16, this court held that exceptions to a general law must be strictly construed, because of the presumption that matters not clearly excluded from the operation of the law are clearly included in the operation of the law. Similarly, in Kroff v. Amrhein (1916), 94 Ohio St. 282, 286, 114 N.E. 267, this court held that exceptions in a remedial statute should be strictly construed. In so ruling, the court embraced "the familiar rule that the exclusion clearly made in the exception only emphasizes the inclusion of all other things germane to the statute which are not so excluded." Id.; Leland v. Lima, Allen App. No. 1-02-59, 2002-Ohio-6188, at [para] 20-21.
This plain meaning of the narrow exclusion set out in R.C. 4117.08(B) is confrmed by the section that immediately follows it. R.C. 4117.08(C) provides in part 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:
" * * *
" * * *
"The employer is not required to bargain on subjects reserved to the management and direction of the governmental unit except as affect wages, hours, terms and conditions of employment, and the continuation, modifcation, or deletion of an existing provision of a collective bargaining agreement."
R.C. 4117.08(C) expressly contemplates that a public employer may address the subject of promotions in a collective bargaining agreement. Otherwise, the introductory phrase of Division (C) would be superfuous, and the term "promote" in Subdivision (C)(5) would be pointless. Indeed, under R.C. 4117.08(C) an employer is required to bargain with respect to those matters involving promotions. In Lorain City Bd. of Edn. v. State Emp. Relations Bd. (1988), 40 Ohio St.3d 257, 533 N.E.2d 264, this court analyzed the scope of management rights and bargaining obligations. The court held that "a public employer must bargain with its employees regarding a management decision to the extent that the decision 'affects wages, hours, terms and conditions of employment.'" Id. at 262, 533 N.E.2d 264. Promotions obviously affect wages and terms and conditions of employment and, therefore, under the court's holding in Lorain, they are subject to bargaining.
That promotions are a mandatory subject of bargaining is widely established in the United States.1 For example, the California Public Employment Relations Board held that promotional proposals must be negotiated since promotional rights bear a close relationship to virtually every subject of bargaining set forth in the California Act. California School Emp. Assn. v. Healdsburg Union High School Dist. (Jan. 4, 1984), Pub. Emp. Bargaining (CCH), 1983-1987 Transfer Binder (Adm. Rulings), Paragraph 43,573. Promotions are recognized as a mandatory bargaining subject in the private sector as well. Ford Motor Co. v. Huffman (1953), 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048.
The exceptions enumerated in R.C. 4117.08(B) are the conduct and grading of civil service examinations, the establishment of eligible lists from the examination, the rating of candidates, and the original appointment from the eligible lists. The court of appeals found that the establishment of eligible lists from the examination encompasses the determination of the eligibility of an applicant to sit for the examination. The lower court's decision erroneously interprets R.C. 4117.08. The decision ignores the plain meaning of the statute, improperly broadens a narrow and clearly drafted exclusion, and offends the basic tenets of statutory construction. Not surprisingly, the decision is contrary not only to the law of Ohio, but also to the settled law throughout the United States. The court of appeals' decision
1 Note: This footnote contains string citations supporting appellant's statement. However, because of space limitations, these citations have been omitted from publication in the sample brief. must be reversed. Applying the unmistakable language of R.C. 4117.08, this court should hold that the subject of eligibility to sit for a promotional civil service examination is a proper subject for bargaining. As demonstrated in the next section, once a collective bargaining agreement addresses a subject, that agreement prevails over conficting civil service rules. See Rocky River v. State Emp. Relations Bd. (1989), 43 Ohio St.3d 1, 539 N.E.2d 103.
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.
The city in the instant case has attempted to portray the civil service commission as an independent entity that is exclusively responsible for promotions. This attempted portrait is inconsistent with the statutory scheme of R.C. Chapter 4117.
R.C. 4117.01(B) defnes "public employer" as including any "municipal corporation with a population of at least fve thousand." R.C. 4117.10(C) states that "[t]he chief executive offcer, or his representative, of each municipal corporation * * * is responsible for negotiations in the collective bargaining process * * * ." Finally, and critically, the section expressly prescribes the binding effect of agreements produced by this process:
" * * * When the matters about which there is agreement are reduced to writing and approved by the employee organization and the legislative body, the agreement is binding upon the legislative body, the employer, and the employee organization and employees covered by the agreement."
The law provides no role for a civil service commission in the collective bargaining process. The comprehensive legislative scheme defnes who the public employer is, who can bargain on behalf of the public employer, and the matters over which bargaining must occur. Promotions are expressly included as a topic of bargaining. This coherent process requires the conclusion that a civil service commission has no independent role regarding promotions. As with any municipal agency, the commission is bound by the contracts of the municipality, particularly those entered into pursuant to express statutory authority. Any contrary conclusion would frustrate the legislative scheme and severely disrupt governmental operations.
This court recently recognized the importance of permitting the Act to function as intended, without local interference from municipalities or their agencies. In Rocky River v. State Emp. Relations Bd., supra (43 Ohio St.3d 1), this court found that R.C. Chapter 4117 is a constitutional enactment within the General Assembly's authority to enact employee welfare legislation pursuant to Section 34, Article II of the Ohio Constitution. Accordingly, the court held, at paragraph two of the syllabus, that the functioning of the Act may not be impaired, limited or negated by local enactments pursuant to the Home- Rule provision, Section 3, Article XVIII. The lower court's decision in the case now before the court threatens this critical allocation of responsibility for governmental labor relations. If allowed to stand, the court of appeals' decision will create chaos in the collective bargaining process and frustrate the essential objective of establishing an orderly and constructive relationship between the public employer and its employees.
Before the Act was adopted to promote this objective, public labor relations were characterized by wide and irrational variations among various local governmental entities relating to all manner of terms and conditions of employment. Not long ago, this court recalled that deplorable time. In Kettering v. State Emp. Relations Bd. (1986), 26 Ohio St.3d 50, 56, 26 OBR 42, 496 N.E.2d 983, this court stated: "A myopic insistence on returning a signifcant 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.)
The decision below represents precisely the sort of return to the pre-Act "system" that this court condemned in Kettering, supra. This court's holdings in Rocky River and Kettering make clear that, under the Act, a collective bargaining agreement binds the municipality and all of its agencies. No municipal agency can operate independently of that agreement; nor can it render the agreement a nullity by purporting to assume control over a term or condition of employment that is governed by the agreement.
In accordance with this important principle, the court of appeals in State ex rel. Darvanan v. Youngstown (Jan. 27, 1987), Mahoning App. No. 85 C.A. 131, directly addressed a confict between a negotiated promotional procedure and municipal civil service commission control over promotions.
Relying on R.C. 4117.10, the court held that bargaining under the Public Employees' Collective
Bargaining Act superseded conficting language in the Youngstown City Charter:
"It is our conclusion that [R.C.] Chapter 4117. authorizes public employers and public employees to enter into labor agreements which agreements provide for promotions within the classifed services without competitive examinations and that such a process does not confict with the Constitution or laws of Ohio." Id. at 7.
In Fraternal Order of Police, Capital City Lodge No. 9 v. Columbus (June 11, 1987), Franklin C.P. No. 86CV-04-2336, the common pleas court followed this logic when it restrained the city from conducting police promotional examinations without the addition of seniority points. In ruling on a motion for equitable relief, Judge George C. Smith, in a consent decree, included the civil service commission as part of the city administration. (Supp. 177.)
The city itself has acknowledged that the civil service commission does not occupy any independent status. In stipulations fled by the parties in a SERB case, State Emp. Relations Bd. v. Columbus (Dec. 31, 1987), Docket No. 86-ULP-04-0122, 5 OPER, Paragraph 5119 (SERB Hearing Offcer), Stipulation - Admission No. 15 reads as follows:
"['] * * * The Municipal Civil Service Commission is created by Columbus City Charter §146. The Municipal Civil Service Commission acts on behalf of the City of Columbus, particularly in its rule-making capacity. City Charter §149. The Civil Service Commissioners are appointed by and pursuant to the Columbus City Charter §§146-147. They have no separate legal identity [and] cannot be considered separate and distinct from the City of Columbus. * * * [']"
CONCLUSION
The decision below is fundamentally wrong in its reasoning and dangerous in its implications for public employee collective bargaining. The decision undermines the structure and purpose of the Public Employees' Collective Bargaining Act. In place of that coherent Act, the decision below would establish a disorderly and outmoded method of governmental labor relations, a method this court condemned in Kettering, supra. Such a process, under which municipal agencies would be free to disregard the municipality's collective bargaining agreement, and exercise unilateral control over topics that are subject to mandatory bargaining, must be rejected.
The decision below must be reversed. A reversal will promote the exemplary purposes of the Act and preserve the unmistakable legislative intent, which this court has uniformly supported.
| Respectfully submitted, |
| John Miller, Counsel of Record |
| _________________________________ |
| Susan Smith |
| COUNSEL FOR APPELLANT, |
| JOHN B. DEVENNISH |
Certifcate of Service
I certify that a copy of this Merit Brief was sent by ordinary U.S. mail to counsel of record for appellees, Peter Jones, Chief Labor Attorney, City of Columbus Dept. of Law, 90 West Broad Street, Columbus, Ohio 43215 on May 21, 2004.
| _________________________________ |
| Susan Smith |
| COUNSEL FOR APPELLANT, |
| JOHN B. DEVENNISH |
Susan Smith
COUNSEL FOR APPELLANT,
JOHN B. DEVENNISH
Ohio. R. Prac. S. Ct. app F