[Cite as Massillon Civ. Serv. Comm. v. Rogers, 2014-Ohio-1403.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
CITY OF MASSILLON CIVIL SERVICE JUDGES:
COMMISSION, ET AL. Hon. John W. Wise, P. J.
Hon. Patricia A. Delaney, J.
Appellants Hon. Craig R. Baldwin, J.
-vs- Case No. 2013 CA 00100
THOMAS P. ROGERS
OPINION
Appellee
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Case No. 2012 CV 03938
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 31, 2014
APPEARANCES:
For Appellants For Appellee
PERICLES G. STERGIOS CRAIG T. CONLEY
CITY LAW DIRECTOR 604 Huntington Plaza
ROBERT A. ZEDELL 220 Market Avenue South
ASSISTANT LAW DIRECTOR Canton, Ohio 44702
Two James Duncan Plaza
Massillon, Ohio 44646
Stark County, Case No. 2013 CA 00100 2
Wise, P. J.
{¶1}. Appellants, the City of Massillon Civil Service Commission and the City of
Massillon (hereinafter "City of Massillon"), appeal the decision of the Court of Common
Pleas, Stark County, which overturned an administrative appeal decision by the
Commission regarding a promotional examination of Appellee Thomas P. Rogers for
the rank of police sergeant. The relevant facts leading to this appeal are as follows.
{¶2}. Appellee Rogers is a police officer for the City of Massillon and a member
of the Massillon F.O.P. Henderson Lodge Police Officers Association (hereinafter
"Union"). On July 11, 2012, a notice of promotional examination for the position of
Sergeant in the Massillon Police Department was formally posted. Appellee decided to
pursue the promotional opportunity. The aforesaid notice of examination included
wording to the effect that seniority points would be added to the test scores, although
Appellant City now concedes that the notice was incorrect and should not have
contained that wording because the relevant statute had, by then, been amended to
eliminate any reference to the addition of seniority points to the exam scores.
{¶3}. An agreement between the Union, of which Officer Rogers is a member,
and the City of Massillon, covering the period from January 1, 2009 through December
31, 2011, was extended to June 30, 2012 while a new contract was being negotiated
(Ordinance No. 109-2011). The “new” contract, covering the period from July 1, 2012 to
June 30, 2015, was signed on November 19, 2012.
{¶4}. Both contracts contain the following provision:
{¶5}. Section 43.7 The scores of the written examination and the assessment
shall be adjusted as necessary to accurately reflect the percentages called for in
Stark County, Case No. 2013 CA 00100 3
Section 43.2. The candidates' final score shall consist of the adjusted raw scores from
the written examination and the assessment portion, plus seniority points. If there is a
tie in the final score after the seniority points have been added, the tie shall be broken
by determining the applicant with the most departmental seniority. Credit for seniority
shall be awarded in accordance with Sections 124.31 and 124.44 of the Ohio Revised
Code. Seniority credit shall be added to the final aggregate score of the combined
written examination and assessment process. Seniority credit shall be computed as of
the date the written examination is conducted. (Emphasis added).
{¶6}. Effective June 30, 2011 (during the term of the “old” contract), R.C. Sec.
124.31 was amended by the Ohio General Assembly, completely eliminating the
provisions for the computation and addition of seniority points to promotional exams
covered by the statute.
{¶7}. The aforesaid examination for sergeants was administered on September
29, 2012. Four applicants, including Appellee Rogers, achieved a passing score.
However, appellee was not awarded any seniority points.
{¶8}. Appellee thereupon appealed his denial of seniority points for promotion to
the City of Massillon Civil Service Commission. That appeal was heard by the
Commission and was denied.
{¶9}. Officer Rogers subsequently filed a notice of administrative appeal to the
Stark County Court of Common Pleas. On April 17, 2013, the common pleas court
reversed the ruling of the Civil Service Commission, holding that the effective date of
the most recent contract between the Union and the City was the date the contract was
signed and that the statute in effect at the beginning date of the contract controls. It
Stark County, Case No. 2013 CA 00100 4
correspondingly found that the new contract, by its own terms, did not come into effect
until November 19, 2012, several months after the administration of the subject
promotional exam. The trial court proceeded to apply the "old" contract under the terms
in effect on its commencement date of 2009, before the 2011 statutory amendments
eliminating seniority points, thus awarding appellee his seniority points for promotion to
sergeant.
{¶10}. Appellant City of Massillon filed a notice of appeal to this Court on May 14,
2013. It herein raises the following sole Assignment of Error:
{¶11}. “I. THE [TRIAL] COURT ERRED WHEN IT REVERSED THE RULING
OF THE CIVIL SERVICE COMMISSION.”
I.
{¶12}. In its sole Assignment of Error, Appellant City of Massillon contends the
trial court committed reversible error in reversing the civil service commission's decision
to deny seniority points regarding sergeant's promotion to appellee. We disagree.
Common Pleas Court's Standard of Review
{¶13}. R.C. 2506.04 sets forth the applicable standard of review for a court of
common pleas in R.C. 2506-based administrative appeals. It provides in pertinent part
as follows:
{¶14}. "*** [T]he court may find that the order, adjudication, or decision is
unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the
preponderance of substantial, reliable, and probative evidence on the whole record.
Consistent with its findings, the court may affirm, reverse, vacate, or modify the order,
adjudication, or decision, or remand the cause to the officer or body appealed from with
Stark County, Case No. 2013 CA 00100 5
instructions to enter an order, adjudication, or decision consistent with the findings or
opinion of the court. The judgment of the court may be appealed by any party on
questions of law as provided in the Rules of Appellate Procedure and, to the extent not
in conflict with those rules, Chapter 2505. of the Revised Code."
{¶15}. In reviewing an appeal of an administrative decision, a court of common
pleas begins with the presumption that the board's determination is valid, and the
appealing party bears the burden of showing otherwise. See C. Miller Chevrolet v.
Willoughby Hills (1974), 38 Ohio St.2d 298, 302, 313 N.E.2d 400.
{¶16}. The Ohio Supreme Court further stated as follows in Henley v.
Youngstown Bd. of Zoning Appeals (2000), 90 Ohio St.3d 142, 147, 735 N.E.2d 433:
{¶17}. “[W]e 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. See Smith v.
Granville Twp. Bd. of Trustees (1998), 81 Ohio St.3d 608, 612, 693 N.E.2d 219, * * *
citing Dudukovich v. Lorain Metro. Hous. Auth. (1979), 58 Ohio St.2d 202, 206-207, 12
O.O.3d 198, 389 N.E.2d 1113 * * *.”
Appellate Standard of Review
{¶18}. As an appellate court, however, our standard of review to be applied in an
R.C. 2506.04 appeal is “more limited in scope.” Kisil v. Sandusky (1984), 12 Ohio St.3d
30, 34, 12 OBR 26, 465 N.E.2d 848. “This statute grants a more limited power to the
Stark County, Case No. 2013 CA 00100 6
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.”
Id. at f.n. 4. See, also, Health Management, Inc. v. Union Twp. Bd. of Zoning Appeals
(1997), 118 Ohio App.3d 281, 285, 692 N .E.2d 667. “It is incumbent on the trial court to
examine the evidence. Such is not the charge of the appellate court.” Lorain City School
Dist. Bd. of Edn. v. State Emp. Relations Bd. (1988), 40 Ohio St.3d 257, 261, 533
N.E.2d 264. Ultimately, the standard of review for appellate courts in a 2506 appeal is
“whether the common pleas court abused its discretion in finding that the administrative
order was or was not supported by reliable, probative and substantial evidence.” See
Weber v. Troy Twp. Bd. of Zoning Appeals, Delaware App.No. 07 CAH 04 0017, 2008-
Ohio-1163, ¶ 13, citing City of Ashland v. Gene's Citgo, Inc. (2000), Franklin App. No.
99AP-938, 2000 WL 423992.
Analysis of the Trial Court Ruling
{¶19}. It is undisputed that both the "old" 1/1/09-6/30/12 extended contract and
the "new" 7/1/12-6/30/15 contract use the now-obsolete definition of a final score as
including "seniority points." However, both contracts nonetheless defer to statutory
authority by including the following: "Credit for seniority shall be awarded in accordance
with Sections 124.31 and 124.44 of the Ohio Revised Code." We also observe that the
Collective Bargaining Agreement itself states: "If by operation of law or by a court of
competent jurisdiction it is found that any provision shall be of no further force and
effect, the remainder of the Agreement shall remain in full force and effect for the
Agreement term." CBA, Article II.
Stark County, Case No. 2013 CA 00100 7
{¶20}. Appellant City of Massillon herein maintains that the events pertinent to
the present appeal all occurred under the term of the "new" contract, i.e., the 7/1/12-
6/30/15 version. The trial court, however, determined that the "old" contract, i.e., the
1/1/09-6/30/12 version, would control, based on the prefatory language that "[t]erms of
this contract shall be effective as of the date of signing." The trial court reasoned that
because the "new" contract was not fully signed until November 19, 2012, the notice of
examination of July 11, 2012 and the actual examination of September 29, 2012 must
fall under the terms of the "old" contract. The trial court finally reasoned that because
"[t]he statute in effect at the beginning date of the contract controls," the earlier version
of R.C. 124.31 (prior to the June 30, 2011 amendments) must be applied, based on the
"old" contract's apparent beginning date of January 1, 2009. See Judgment Entry at 3.
Accordingly, the trial court reversed the Commission decision and awarded appellee his
seniority points.
Conclusion
{¶21}. Based on our more limited standard of review as an appellate court in an
R.C. 2506 appeal, and given the unusual alignment of events in this matter and the
tentative language of Section 43.7 of the contracts, we hold the trial court's decision to
reverse the Commission's decision by reverting to the terms of the old contract as
understood on its 2009 commencement date, prior to the statutory removal of seniority
points in 2011, does not rise to the level of abuse of discretion or reversible error.
Stark County, Case No. 2013 CA 00100 8
{¶22}. Appellant’s sole Assignment of Error is therefore overruled.
{¶23}. For the reasons stated in the foregoing opinion, the judgment of the Court
of Common Pleas, Stark County, Ohio, is hereby affirmed.
By: Wise, P. J.
Baldwin, J., concurs.
Delaney, J., dissents.
JWW/d 0304
Stark County, Case No. 2013 CA 00100 9
Delaney, J., dissenting.
{¶24} I respectfully dissent from the majority opinion.
{¶25} I would follow R.C. 124.31, as amended by the Ohio General Assembly,
effective June 30, 2011, and the parties’ contractual intentions as set forth in Article II of
the CBA, which includes reference to R.C. 124.31, in both the old and new contracts.
While it is unfortunate the City of Massillon made a mistake in failing to eliminate
reference to seniority points in the notice of promotional examination, the outcome of
this case is unaffected by the mistake.
{¶26} As a matter of law, the trial court was incorrect in reversing the
Commission’s decision. I would therefore sustain Appellant’s sole Assignment of Error.
______________________________
HON. PATRICIA A. DELANEY
Stark County, Case No. 2013 CA 00100 10