Local 330, Akron Firefighters Assn., AFL-CIO v. Romanoski

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Local 330, Akron Firefighters Association, AFL-CIO, et al.

Appellants, v. Romanoski et al., Appellees.

[Cite as Local 330, Akron Firefighters Assn., AFL-CIO v.

Romanoski (1994), Ohio St.3d .]

Municipal corporations -- Chief of Akron Division of Fire

details employee classified as a firefighter/medic to

serve as "acting lieutenant" and an employee classified as

a lieutenant to serve as an "acting captain" without the

approval of the civil service commission -- Actions

violative of Section 108 of city charter that mandates

procedure in filling positions in the classified services.

(No. 92-2203 -- Submitted December 15, 1993 -- Decided

April 6, 1994.)

Appeal from the Court of Appeals for Summit County,

No. 15514.

Appellee city of Akron, Department of Public Safety,

Division of Fire ("Akron Fire Division") is composed of the

following classes of officers and firefighters in order of

rank: (1) chief, (2) deputy chiefs, (3) district chiefs, (4)

captains, (5) lieutenants, and (6) firefighter/medics.

In 1990, the Akron Fire Division suffered a shortage of

manpower in the ranks of lieutenant and captain. In May and

June 1990, appellee Fire Chief George Romanoski devised and

implemented a program to fill the vacancies in the positions of

lieutenants and captains until permanent officers could be

appointed from promotional eligible lists which were in the

process of being established by appellee Akron Civil Service

Commission.1 Under this program, certain individuals

classified as firefighter/medic were selected and trained to

serve as "acting lieutenant" and certain individuals classified

as lieutenant were selected and trained to serve as "acting

captain."2

On August 6, 1990, appellants, Local 330, Akron

Firefighters Association and several of its members, filed a

complaint for declaratory judgment and injunctive relief in the

Summit County Court of Common Pleas. The complaint alleged

that Chief Romanoski, "without authority and in violation of

the Charter of the City of Akron *** has attempted to create

additional ranks in the Akron Fire Department"; "is appointing

persons *** to positions *** normally filled by promotion of

those individuals certified as as [sic] qualified for such

positions by the Akron Civil Service Commission"; and, in

taking such action, is "exceeding the authority of his position

[and] is assuming the authority of the City Council ***."

On October 3, 1991, following the denial of cross-motions

for summary judgment, the case proceeded to trial by the

court. On December 19, 1991, the trial court entered judgment

enjoining the "practice of appointing persons to the Chief's

self-created positions of Acting Lieutenant and Acting Captain

without competitive examination and without appointing promoted

officers from [the] appropriate eligibility list or by way of

provisional appointments as are authorized by the Charter of

Akron." In so doing, the trial court made the following

relevant findings of fact:

"7. Acting officers, in effect, held the same rank as

those in classifications created by City Council and promoted

by the Civil Service Commission. However, they were in fact

designated and recorded as "Acting" with respect to their

respective titles of Lieutenant and Captain.

"8. The assignments as Acting Lieutenants or Acting

Captains were not for sudden unexpected emergency situations.

The designation and assignment of Acting Lieutenants and Acting

Captains became a long standing procedure existing for more

than one year. Although the procedure is seldom used since the

appointment of additional Lieutenants and Captains in the fall

of 1990, the procedure nevertheless exists and is used today

very rarely.

"9. The Acting Lieutenants perform approximately the same

duties as a firefighter, with the additional responsibility of

decision making and supervision of others. The acting

officers, however, are not assigned all of the administrative

duties of the promoted officers' positions."

The court of appeals reversed the judgment of the trial

court and remanded the cause, finding, as a matter of law, that

"there were no promotions or appointments [made] according to

Civil Service procedures" and that "[u]nder the Akron City

Charter and the Akron Fire Department Rules, [Chief] Romanoski

had the authority to temporarily assign personnel to fill

positions vacant by absence or disability."

The cause is now before this court pursuant to the

allowance of a motion to certify the record.

Thompson, Hine & Flory, William C. Moul and Bonnie I.

O'Neil, for appellants.

Max Rothal, Director of Law, Elaine B. Davidson and

Patricia Ambrose Rubright, Assistant Directors of Law, for

appellees.

Alice Robie Resnick, J. It is not the function of this

court to assess the wisdom of the program established by Fire

Chief Romanoski in the summer of 1990, or to assay the

propriety of a civil service system. Our sole task in this

case is to determine whether the Akron City Charter authorizes

a chief of the fire division to detail (temporarily assign)

various classified employees to acting positions. Specifically

in this case, the question is whether the Chief of the Akron

Fire Division may detail an employee classified as a

firefighter/medic to serve as an "acting lieutenant," and an

employee classified as a lieutenant to serve as an "acting

captain," without the approval of the civil service commission.

Section 70 of the city's charter provides as follows:

"The fire force shall consist of a Chief and such officers

and employees as may be provided for by Council. The Chief of

the Division of Fire shall be in immediate charge of the fire

force and shall have control of the stationing and transfer of

all firemen and other employees constituting said fire force,

under such rules and regulations as the Mayor may prescribe.

In case of riot, conflagration or other like emergency, the

Mayor, or in his absence the Chief of the fire force, may

appoint, for the period of the emergency only additional

firemen who need not be in the classified service."3

In Novak v. Perk (1980), 64 Ohio St.2d 43, 18 O.O.3d 251,

431 N.E.2d 784, this court considered the import of a similar

provision under the Charter of the city of Cleveland. We found

that "the framers of the charter signified an intention to

place exclusive, overall control of the city's fire protection

forces in the mayor" and to give "the fire chief exclusive

authority over individual assignments of fire department

personnel." Id. at 45, 18 O.O.3d at 252, 413 N.E.2d at 785.

In Harsney v. Allen (1953), 160 Ohio St. 36, 50 O.O. 492,

113 N.E.2d 86, we addressed the issue of whether the Chief of

Police for the city of Youngstown may detail a police radio

operator to the duties and functions of a patrolman, without

the consent of the civil service commission, also under a

similar provision of that city's charter. We held that where

the employee's "status and emoluments" are not impaired, the

assignment is a proper exercise of the chief's "exclusive

control of the stationing and transfer of all *** employees

***." Id. at syllabus. In so holding, we noted that the

classification of police radio operator "is made in the salary

ordinance of the city of Youngstown, which provides, inter

alia, for four police radio operators and 176 patrolmen, each

with a salary of $3,540 per year." Id. at 40, 50 O.O. at 493,

113 N.E.2d at 88.

Harsney involved a lateral (intra-classification)

assignment, i.e., an assignment from one position to another

within the same civil service classification, albeit involving

different duties. The present case involves a promotional

(inter-classification) assignment, i.e., an assignment to a

higher classified rank, albeit minus some of the attendant

administrative duties of that rank.

In order to determine whether the Chief may make such a

promotional assignment without approval from the civil service

commission, we must consider the parameters of the authority

given to the civil service commission.

A municipality has the authority to exercise all powers of

local self-government and may allocate authority between its

fire chief and civil service commission over the utilization

and employment of its fire protection forces. Neither may

usurp the authority given to the other. See, generally, Novak,

supra, 64 Ohio St.2d at 45, 18 O.O.3d at 252, 413 N.E.2d at

785; Harsney, supra; State ex rel. Lentz v. Edwards (1914), 90

Ohio St. 305, 107 N.E. 768; Fitzgerald v. Cleveland (1913), 88

Ohio St. 338, 103 N.E. 512.

Section 106 of the charter provides, in relevant part, as

follows:

"The Personnel Director, under the direction of the [Civil

Service] Commission *** shall prepare and recommend rules and

regulations for the administration of the civil service

provisions of the Charter, which shall become effective after

approval by the Commission ***.

"It is hereby provided and the rules and regulations shall

provide:

"(1) For the classification and standardization of all

positions in the classified service. The classification into

groups and subdivisions shall be based upon and graded

according to their duties and responsibilities, and so arranged

as to permit the filling of the higher grades, so far as

practicable through promotion. All salaries shall be uniform

for like service in each grade, as the same shall be

standardized and classified by the Civil Service Commission.

The Commission shall have the sole power to create new

classification.

"(2) For open competitive examinations to be given under

the direction of the Personnel Director to test the relative

fitness of applicants for such positions.

"***

"(4) For the creation by Personnel Director of eligible

lists upon which shall be entered the names of successful

candidates in the order of their standing in such examination

or test.

"(5) For the rejection by the Personnel Director, by

authority of the Commission, of candidates or eligibles who

failed to meet reasonable qualification requirements ***.

"***

"(6) For the certification to the appointing authority by

the Personnel Director from the appropriate eligible list to

fill vacancies in the classified service of the persons with

the three highest scores on such list, or of the person or

persons on such list when the same contains less than three

scores.

"(7) For promotion based on competitive examinations and

records of efficiency and seniority. Lists shall be created

and promotions made in the same manner as in original

appointments. Any advancement from one job classification to

another for which the maximum rate of pay is higher shall

constitute promotion. Whenever practicable, vacancies shall be

filled by promotion."

Section 108 provides, in relevant part, that:

"When a position in the classified service is to be

filled, the appointing authority shall notify the Personnel

Director of the fact and the Personnel Director shall certify

to such authority the names and addresses to the three

candidates standing highest on the appropriate eligible list

for the position. *** The appointing authority shall

immediately appoint one of the persons certified to such

position.

"*** When no eligible list for such position exists or

when the eligible list has become exhausted and until a new

list can be created, the appointing authority may make a

provisional appointment for a period of not to exceed ninety

days upon authorization by the Personnel Director. *** In the

event that more than one position in the same classification is

to be filled, the appointing authority shall fill one position

before the Personnel Director shall certify any additional

names.

"Temporary appointments may be made for periods not to

exceed two hundred and seventy days, and seasonal appointments

may be made for the duration of the specified season. Wherever

practicable, temporary or seasonal appointments shall be made

from eligible lists in the manner provided herein."4

Section 106 clearly gives the civil service commission

sole authority to establish and standardize all positions in

the classified civil service and to certify persons as eligible

for appointment to each classified position. Section 108

mandates the following procedure whenever a position in the

classified services is to be filled: (1) the appointing

authority notifies the Personnel Director that a position is to

be filled; (2) the Personnel Director certifies to the

appointing authority the names of persons on the appropriate

eligible list established for that position through

examination; and (3) the appointing authority makes a permanent

or temporary appointment from among those names of persons

certified by the Personnel Director as eligible for appointment

to the vacant position. In the absence of an appropriate

eligible list for the position, a vacancy in the classified

civil service may be filled only by provisional appointment

upon authorization by the Personnel Director.

Since Sections 106 and 108 are in pari materia, they must

be construed with reference to each other. Read together, they

provide that before a person may be permitted to serve in any

classified civil service position, he or she must be appointed

to the position after the civil service commission makes a

determination of eligibility. These sections evince dual

purposes for ensuring commission involvement in classified

employment: (1) to promote a fair competition for civil service

positions, and (2) to ensure that only qualified individuals

serve in those positions.

Appellees would have this court hold that the civil

service provisions of the charter are inapplicable in this

case. They argue that the Chief made only "assignments," not

"appointments," and that no vacancies were "filled," since the

positions remained open for later permanent appointments.

Appellees misconstrue the import of Sections 106 and 108. Such

a holding as appellees suggest could create a purely semantical

loophole under which the Chief may circumvent the required

level of commission involvement by selecting and training lower

ranked division personnel, on his own initiative, to serve or

"act" in vacant classified positions for which appointments are

required. Semantics aside, the Chief did not follow the

procedure for making appointments mandated by Section 108.

Rather, he usurped the exclusive authority given to the civil

service commission under the charter by making his own

determination of a member's eligibility to serve in a higher

classified rank. If we were to allow this circumvention, the

separate powers reserved by charter to the civil service

commission would effectively be fused with those of the Chief.

We hold that the Chief of the Fire Division may not detail

a member of his division to serve in a higher classified rank.

He may, under certain provisions set forth in the charter and

civil service rules promulgated thereunder, provisionally

appoint a member of his division to serve in a higher

classified rank, upon authorization by the Personnel Director.

In light of the foregoing, the judgment of the court of

appeals is reversed, and the injunction issued by the trial

court is reinstated.

Judgment reversed.

Moyer, C.J., A.W. Sweeney, Douglas, F.E. Sweeney and

Pfeifer, JJ., concur.

Wright, J., concur spearately.

FOOTNOTES

1 In February 1988, Chief Romanoski had submitted a

requisition to the Personnel Director of the civil service

commission for certification of names from its eligible list to

fill vacant lieutenant positions. Exams, however, were not

held until June 1990 and it was not until September 4, 1990

that the Personnel Director responded to Chief Romanoski's

request by certifying a list of eligible names for the

classification of lieutenant. On September 12, 1990,

twenty-seven promotional appointments were made to the position

of lieutenant. In January 1991, another requisition was

submitted to certify names to fill nine additional lieutenant

positions, which were filled in that month. Pending

certification, however, Chief Romanoski believed that there

were not enough funds available in the budget to pay overtime

to officers in the same civil service classification where the

vacancies existed and that if the vacancies were not filled, he

would be forced to close fire stations.

2 The selected individuals continued to be classified on the

payroll record, and paid, according to their respective civil

service classification of firefighter/medic or lieutenant.

3 The Akron Fire Department Rules and Regulations adopted by

the Director of Public Safety provide, under Section 8 of the

Duties of Chief of the Division of Fire, that "[d]uring the

absence or disability of any officer or member of the division,

the Chief may detail an officer or member to the position

temporarily vacant." Section 3 of the Duties of Fire

Lieutenants provides that "[t]he Lieutenant shall in the

absence of the Captain assume the position of the Captain."

4 Section 1, Rule 6 of the Akron Civil Service Commission

Rules provides that "[w]henever a vacancy in the classified

service is to be filled, the appointing authority shall make

requisition upon the Personnel Director for eligibles for

appointment to the class and position for which the vacancy

exists. Such requisition *** shall specify *** whether the

service is temporary *** or permanent ***." Section 3 provides

further that "[t]o expedite the process of filling more than

one vacancy, additional names shall be sent to the appointing

authority***." Rule 7 provides that "[t]he appointing

authority shall select from the list of eligibles certified to

him by the Personnel Director, the number of persons required

to fill the vacancies in his department***." Section 3 of Rule

7 provides that any person approved by the Personnel Director

may be appointed provisionally "[w]hen it is urgent that an

immediate appointment be made to fill a vacant position and no

one is available on an appropriate eligible list***. In no

case shall a provisional appointment continue longer than

ninety (90) days, nor shall there be a successive appointment

of the same person." Section 4 provides that in cases of

extreme emergency "an appointing authority may secure the

necessary help wherever possible irrespective of the existence

of suitable eligible lists. Within twenty-four (24) hours of

making an emergency appointment the appointing authority shall

so notify the Personnel Director in writing, stating the

reasons for such appointment and such other information as the

Personnel Director may require. *** Such appointments shall

last no longer than seven (7) calendar days, but in the absence

of available persons on suitable eligible lists and with the

approval of the Personnel Director an emergency appointment may

become a provisional appointment***."

Wright, J., concurring. I fully concur in the

majority's holding that the Chief of the Fire Division "may not

detail a member of his division to serve in a higher classified

rank," but that, "under certain provisions set forth in the

charter and civil service rules promulgated thereunder, [he

may] provisionally appoint a member of his division to serve in

a higher classified rank, upon authorization by the Personnel

Director." I write here, however, to clarify why this is so.

Section 70 of the Charter of the city of Akron states in

part: "The Chief of the Division of Fire shall be in

immediate charge of the fire force and shall have control of

the stationing and transfer of all firemen and other employees

constituting said fire force, under such rules and regulations

as the Mayor may prescribe." (Emphasis added.)

Based on his authority under Section 70, the Mayor,

through his Director of Public Safety, has enacted an Akron

fire department regulation which states that "[d]uring the

absence or disability of any officer or member of the division,

the Chief may detail an officer or member to the position

temporarily vacant." It is from this regulation that Chief

Romanoski purports to derive his authority to create the

positions of "acting lieutenant" and "acting captain." In my

judgment, however, the Akron fire department regulation is

clearly outside the scope of authority granted to the Mayor by

Section 70 of the Akron City Charter and is therefore invalid.

When previously faced with a city charter provision worded

similarly to Section 70, this court construed the regulation to

mean that the mayor or the safety director has "exclusive

control of fire force allocation ***." (Emphasis added.)

Novak v. Perk (1980), 64 Ohio St.2d 43, 47, 18 O.O.3d 251, 253,

413 N.E.2d 784, 786. That section, we held, "clearly gives the

fire chief exclusive authority over individual assignments of

fire department personnel." Id. at 45, 18 O.O.3d at 252, 413

N.E.2d at 785. In other words, once fire division employees

have been hired, the mayor, and hence the fire chief, have

complete control over their deployment. The fire chief is free

to determine to what fire station his fire division employees

are to be assigned and transferred. This interpretation does

not provide the authority for a fire chief to permanently or

temporarily reassign or transfer employees to different job

classifications.

As the majority correctly points out, Section 106 of the

Akron City Charter provides the "sole authority to establish

and standardize all positions in the classified civil service

and to certify persons as eligible for appointment to each

classified position." Furthermore, Section 108 of the charter

and the Akron Civil Service Commission Rules establish

procedures for making permanent and temporary appointments to

vacant positions. These latter provisions specify procedures

to be followed for routine replacements, as well as for various

degrees of emergency situations.

I recognize that the Chief of the Fire Division is placed

in a difficult position by the lack of funding and staff. He

is charged with a very important duty implicating public safety

and, when faced with a shortage of qualified personnel for key

positions, he must have some flexibility in controlling his

forces. But a holding contrary to the one today, while perhaps

temporarily relieving a symptom, would not solve the real

problem. Rather, sanctioning Chief Romanoski's program would

serve only to relieve the pressure from where it should

actually be focused, on the city council, which is ultimately

responsible for allocating the budget resources of the city.

Our holding today supports this position.

Because I believe that Section 70 of the Akron City

charter and the related provisions of the Akron Fire Department

Rules and Regulations do not provide Chief Romanoski with the

authority solely to place fire division personnel in positions

other than those for which they have been certified and hired,

and because the city charter with its associated civil service

rules provides the Chief with a procedure for temporary

reassignment of personnel, I concur.