Deem v. Fairview Park

SUPREME COURT CASES

Laws-info.com » Cases » Ohio » 8th District Court of Appeals » 2011 » Deem v. Fairview Park

State: Ohio

Court: Ohio Southern District Court

Docket No: 2011-Ohio-5836

Case Date: 11/10/2011

Plaintiff: Deem

Defendant: Fairview Park

Preview:[Cite as Deem v. Fairview Park, 2011-Ohio-5836.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96843
RICHARD M. DEEM
PLAINTIFF-APPELLANT
vs.
CITY OF FAIRVIEW PARK, ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-735823
BEFORE:    Cooney, J., Blackmon, P.J., and Keough, J.
RELEASED AND JOURNALIZED:    November 10, 2011
ATTORNEY FOR APPELLANT

2
Daniel J. Ryan
2000 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113
ATTORNEY FOR APPELLEES
Sara J. Fagnilli
Director of Law
City of Fairview Park
20777 Lorain Road
Fairview Park, Ohio 44126
COLLEEN CONWAY COONEY, J.:
{¶ 1} Plaintiff-appellant,  Richard  Deem                                              (“Deem”),  appeals  the  trial
court’s  judgment  affirming  the  Fairview  Park  Civil  Service  Commission’s
decision finding that defendant-appellee, city of Fairview Park (“Fairview” or
“the City”), could legally reduce his pay rate pursuant to R.C.  124.37.    We
find no merit to the appeal and affirm.
{¶ 2} Deem held the position of police captain in the classified service of
the City from 1997 until the City abolished the position on April 17, 2006, as
a  cost-cutting  measure.    At  the  time,  the  City’s  projected  revenues  were
approximately  $1.2  million  below  its  projected  expenses.    In  an  effort  to
balance  the  City’s  budget,  Mayor  Eileen  Patton                                   (“Patton”)  asked  each
department  to  cut  its  budget  by  11%  through  non-personnel  related  cuts.
Mayor Patton testified that she did not want any employees to lose their jobs
because layoffs not only affect personnel, but they affect the quality of the

3
City’s services.    She was particularly concerned with maintaining adequately
staffed police and fire departments to ensure the City’s safety.
{¶ 3} At  a  hearing  before  the  civil  service  commission,  Mayor  Patton
testified that she met with the three unions representing the police, fire, and
service  departments,  and  asked  for  concessions.    She  asked  the  unions  to
eliminate  longevity  and  the  uniform  allowance,  and  to  move  to  a  less
expensive health care plan.    Believing that Mayor Patton was blaming them
for the shortfall, the unions rejected these proposals and asked the Mayor to
present another plan that would apply equally to both union and non-union
employees.    Accordingly,  Patton  proposed  an  across-the-board  5% pay cut,
including  her  own  salary,  and  a  less  expensive  health  care  plan.    This
proposal along with the line item cuts by the department heads would have
achieved  the  goal  of  a  balanced  budget  without  reducing  the  police  force.
However, the unions also rejected the 5% across-the-board pay cut.
{¶ 4} Mayor  Patton  researched  how  other  cities  coped  with  budget
problems and learned that none of the surrounding cities of similar size have
a captain position in their police departments or an assistant fire chief in
their fire departments.1    Patton proposed the idea of eliminating the captain
1                                                                                                  The City ultimately eliminated the assistant fire chief position along with the captain
position in the police department.    Some employees in the service department were laid off and
several  hourly  employees  had  their  hours  reduced.    The  City’s  restructuring  affected    28  City

4
position to the Police Negotiating Team, as well as to Randy Weltman, the
union representative, before introducing it as an ordinance to the city council.
She  testified  that  she  did  not  receive  any  written  objection  letters  from
anyone in the police department even though she communicated the proposal
to the police chief through memoranda.
{¶ 5} Shortly  thereafter,  Patton  addressed  a  letter  to  then-Captain
Deem advising him that because of decreases in revenues and increases in
expenditures, the police department was being restructured by eliminating
the  captain  position.    The  captain  position  was  abolished,  and  Deem  was
demoted to the position of lieutenant and paid the lieutenant rate set forth in
the collective bargaining agreement between the City and the Union.
{¶ 6} The Fairview City Council enacted the ordinance eliminating the
captain  position  on  April  17,  2006.    Deem  alleged  that  he  never  received
notice of his demotion and pay reduction.    Yet he continued to perform the
same  duties  as  well  as  the  additional  duties  as  lieutenant  and  received
reduced compensation.
{¶ 7} On  December                                                                     7,   2007,  Deem  requested  a  hearing  before  the
Fairview Park Civil Service Commission, appealing the abolishment of the
captain  position.    The  Commission  denied  the  request  as  untimely,  and
employees.

5
Deem appealed.    On appeal, this court reversed the trial court’s judgment
affirming the denial and found that because there was no evidence that Deem
received notice of the demotion and attendant pay reduction, the City violated
his right to due process.    Deem v. Fairview Park, Cuyahoga App. No. 93135,
2009-Ohio-6314.
{¶ 8} On  remand,  the  civil  service  commission  held  a  hearing  and
concluded that the City was permitted to reduce his pay rate pursuant to R.C.
124.37.    Deem appealed to the common pleas court pursuant to R.C. Chapter
2506,  which  governs  administrative  appeals.    The  trial  court  upheld  the
commission’s  ruling.                                                               Deem  now  appeals  to  this  court,  raising  two
assignments of error.
{¶ 9} In Henley v. Youngstown Bd. of Zoning Appeals, 90 Ohio St.3d 142,
147-148, 2000-Ohio-493, 735 N.E.2d 433, the Ohio Supreme Court explained
the standard of review appellate courts should apply when reviewing R.C.
Chapter 2506 administrative appeals:
“Construing the language of R.C. 2506.04, we have distinguished the
standard of review to be applied by common pleas courts and courts of
appeals  in  R.C.  Chapter  2506  administrative  appeals.    The common
pleas court considers the ‘whole record,’ including any new or additional
evidence  admitted  under  R.C.  2506.03,  and  determines  whether  the
administrative order is unconstitutional, illegal, arbitrary, capricious,
unreasonable,  or  unsupported  by  the  preponderance  of  substantial,
reliable, and probative evidence. (Citations omitted.)

6
“The standard of review to be applied by the court of appeals in an
R.C. 2506.04 appeal is ‘more limited in scope.’ (Emphasis added.)    Kisil
v.  Sandusky  (1984),  12  Ohio  St.3d  30,  34,  30,  465  N.E.2d  848,  852.
‘This statute grants a more limited power to the court of appeals to
review the judgment of the common pleas court only on  “questions of
law,” which 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.’” (Citation omitted.)
{¶ 10} Thus,  we  review  the  trial  court’s  judgment  to determine if the
lower court abused its discretion in deciding that a preponderance of reliable,
probative, and substantial evidence supported the administrative decision.
Reduction in Pay
{¶ 11} In his first assignment of error, Deem argues the Fairview Park
Civil Service Commission erroneously failed to apply R.C. 124.34(A) and find
that   the   City  demoted  him  without  justification.      He  contends  the
commission should have applied R.C. 124.34 because it governs the reduction
of pay for classified civil servants and no other statutes permit involuntary
reductions in pay rate.    We disagree.
{¶ 12} R.C.                                                                           124.34  governs  the  reduction,  suspension,  removal,  or
demotion  of  a  civil  service  employee  for  disciplinary  reasons.    Smith  v.
Cincinnati (1993), 85 Ohio App.3d 13, 20, 619 N.E.2d 46, fn.2.    R.C. 124.37,
however, permits such reductions by demotion when “it becomes necessary * *
* through lack of work or funds * * * to reduce the force.”    McAlpin v. Shirey

7
(1997), 121 Ohio App.3d 68, 75, 698 N.E.2d 1051.    R.C. 124.37(A) provides, in
pertinent part:
“When it becomes necessary in a police or fire department, through a
lack of work or funds, or for causes other than those outlined in Section
124.34 of the Revised Code, to reduce the force in such department, the
youngest employee in point of service shall be laid off first.                        * * * 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.”
{¶ 13} R.C.  124.321  also  allows municipalities to lay off employees or
abolish  positions  for a variety of reasons including a  “lack of funds.” R.C.
124.321(B);  Penrod  v.  Ohio  Dept.  of  Adm.  Servs.,                               113  Ohio  St.3d   239,
2007-Ohio-1688, 864 N.E.2d 79, ¶15-16.    R.C. 124.321(B)(2) provides that “a
‘lack  of  funds’  means  an  appointing  authority  has  a  current  or  projected
deficiency of funding to maintain current, or to sustain projected, levels of
staffing and operations.”    Further, R.C. 124.321(D) provides:
“(D)(1)  Employees  may  be  laid  off  as  a  result  of  abolishment  of
positions.    As used in this division, ‘abolishment’ means the deletion of
a  position  or  positions  from  the  organization  or  structure  of  an
appointing authority.
“For purposes of this division, an appointing authority may abolish
positions for any one or any combination of the following reasons: as a
result of a reorganization for the efficient operation of the appointing
authority, for reasons of economy, or for lack of work.

8
“(2)(a)  Reasons  of  economy  permitting  an  appointing  authority  to
abolish a position and to lay off the holder of that position under this
division  shall  be  determined  at  the  time  the  appointing  authority
proposes to abolish the position. The reasons of economy shall be based
on the appointing authority’s estimated amount of savings with respect
to salary, benefits, and other matters associated with the abolishment
of the position, except that the reasons of economy associated with the
position’s  abolishment  instead  may  be  based  on  the  appointing
authority’s  estimated  amount  of  savings  with  respect  to  salary  and
benefits only, if:
“(i)  Either  the  appointing  authority’s  operating  appropriation  has
been reduced by an executive or legislative action, or the appointing
authority has a current or projected deficiency in funding to maintain
current or projected levels of staffing and operations[.]”
{¶ 14} Evidence introduced at the hearing, through both testimony and
exhibits, established that when the City eliminated the captain position, it
was  confronting  a  substantial  decrease  in  revenues  as  a  result  of  the
demolition of a shopping mall, layoffs at the NASA Glenn facility, and layoffs
of  employees  of  the  Fairview  Park  Board  of  Education,  the  three  largest
employers in the City.    The Mayor explained that State taxes and personal
property  taxes  were  also  diminished,  and  interest  income  the  City  was
receiving from banks had decreased.    As a result, the City had projected a
$1.2 million shortfall in revenue.
{¶ 15} Furthermore, concurrent with Deem’s demotion, the least senior
lieutenant  was  demoted  to  the  position  of  sergeant,  and  the  least  senior
sergeant was demoted to patrolman pursuant to R.C.  124.37(A).    Although

9
no member of the police department was laid off, one patrolman was cut from
the  payroll  when  he  was  called  to  active  duty  in  the  Army  Reserves  in
September 2006, and one lieutenant retired in August 2006.      The fact that
no patrolman was laid off, does not invalidate the City’s actions with regard
to  Deem.  The  City  also  abolished  the  assistant  chief  position  in  the  fire
department,  laid  off  two  employees  in  the  service  department,  laid  off
part-time  employees,  and  reduced  other  employees’  hours  as  part  of  the
overall restructuring of all City departments.
{¶ 16} Deem  argues  that  R.C.  124.34  should  control  the  commission’s
decision and that, because none of the reasons enumerated in that statute
justify  his  demotion  and  reduction  in  pay,  his  demotion  was  illegal.
However, to accept this argument would render R.C. 124.37 meaningless.    If
a municipality could not legally demote a police officer without disciplinary
action of the type contemplated in R.C. 124.34, the City would be powerless to
cope with problems posed by insufficient funds or lack of work that warrant a
reduction in force in its police and fire departments.
{¶ 17} There is no dispute that the City followed the proper demotion
and layoff procedures set forth in R.C. 124.37 and 124.321.    The evidence in
the record establishes not only that the City followed the applicable law to
abolish the captain position, but the evidence also demonstrates that it did so

10
in good faith.    Accordingly, we find no abuse of discretion in the trial court’s
judgment affirming the Fairview Park Civil Service Commission’s decision.
{¶ 18} The first assignment of error is overruled.
Back Pay
{¶ 19} In his second assignment of error, Deem contends the civil service
commission erred when it denied him back pay.    He claims he is entitled to
compensation for the difference in salary from the captain’s pay rate to the
lieutenant’s pay rate.    Deem argues that the removal of a position in the
police force “in no way changes [his] rank and compensation.”
{¶ 20} However,  R.C.                                                                    124.37  and  124.321  authorize  the  layoffs  and
demotions of civil servants when there is a  “lack of funds.” Obviously, the
layoffs and demotions are intended to reflect a corresponding reduction in pay
as a money saving measure.    Once again, to accept Deem’s argument, would
render these statutes meaningless.      The City must have some way to reduce
its expenditures in the face of a financial shortfall.
{¶ 21} Deem suggests that involuntary demotions and pay reductions in
the  absence  of  an  offense  on  the  employee’s  part  renders  the  civil  service
system meaningless.    We agree that the civil service system is intended to
protect  public  employees  from  unfair  employment  practices.     The  Ohio
Supreme Court has said that:                                                             “[t]he purpose of the civil service system is to

11
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. Cincinnati  (1986),  25
Ohio St.3d 338, 344, 496 N.E.2d 912, quoting McCarter v. Cincinnati (1981), 3
Ohio App.3d 244, 248, 444 N.E.2d 1053.
{¶ 22} However, R.C.  124.37 and  124.321 are part of the civil service
framework and protect civil servants from arbitrary demotions, layoffs, and
pay cuts.    The City could not demote Deem, abolish the captain position, and
reduce his pay except for either one of the disciplinary reasons set forth in
R.C.  124.34, or one of the economic reasons set forth in R.C.  124.321 and
124.37.    Moreover, the City must    provide competent, credible evidence to
support its action, and Deem has the right to a review of the City’s actions
through the civil service commission, the common pleas court, and this court.
Having  reviewed  the  record,  we  find  Deem’s  demotion  and  corresponding
reduction  in  pay  to  be  justified  and  supported  by  a  preponderance  of
competent, credible evidence.    Therefore, he is not entitled to back pay.
{¶ 23} The second assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.

12
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
COLLEEN CONWAY COONEY, JUDGE
PATRICIA ANN BLACKMON, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR

Download 96843.pdf