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

> Ohio Supreme Court · April 5, 1994 · 1994 Ohio 521

URL: https://www.frixlaw.com/law-library/cases/11149042

## Case

- **Court:** Ohio Supreme Court
- **Decided:** April 5, 1994
- **Citations:** 1994 Ohio 521
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Alice Robie Resnick, J.
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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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.

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