concurring in judgment. I concur in the judgment here, in that under the facts presented in this case I am able to apply the same considerations that I set forth in my concurrence in Morgan v. Cincinnati (1986), 25 Ohio St. 3d 285. The basic law to be followed is that which was pronounced in State, ex rel. Gibbons, v. Cleveland, (1984), 9 Ohio St. 3d 216, 217, which denies any recovery of back pay to an employee “regardless of the reasons for the failure to appoint.” However, as I stated in Morgan, there need be reasonable exceptions spelled out to such general rule. I stated that the reasonable exceptions would be where there is a finding of a refusal to appoint based upon bad faith of the city, or a showing of a conscious intentional violation of the civil service laws.
In Morgan, bad faith was alleged and shown; therefore, I agreed with the majority that an exception to the general rule existed. Here, there is no specific allegation of bad faith as such. However, the trial court found such procedures to be “an unnecessary budgetary contrivance.” Furthermore, the proof at trial and the specific findings of fact and conclusions of law of the trial court demonstrate that the city, in its maneuvering of the officers by way of demotions and promotions, was consciously and knowingly attempting to create the desired result in certain promotions, which procedures were contrary to the civil service laws of Ohio. This conscious effort at “contrivance” was clearly intentional and occurred over several years.
Therefore, I must conclude that the criteria which I believe to be reasonably applicable to these types of cases are present here, and would find that an exception to Gibbons is available, and thus a claim for back pay and benefits would not be barred.