dissenting. I respectfully dissent from the majority’s opinion and would affirm the court of appeals’ decision below.
The facts in this case do not parallel the situations that occurred in cases upon which the majority relies. There is no evidence of the “demotionrepromotion shell game” used to illegally eliminate a position as existed in Hungler v. Cincinnati (1986), 25 Ohio St. 3d 338, 25 OBR 392, 496 N.E. 2d 912, and in Vogeler v. Cincinnati (1984), 16 Ohio App. 3d 393, 16 OBR 462, 476 N.E. 2d 676. Nor is there any evidence of abuse of discretion as in State, ex rel. Bardo, v. Lyndhurst (1988), 37 Ohio St. 3d 106, 524 N.E. 2d 447, where the mayor, without any authority, instituted a promotion freeze and refused to advise the Lyndhurst Civil Service Commission of a vacancy and to ask it to certify the top candidate on the eligibility list for promotion to lieutenant in the police department. An essential element to the holding in Bardo is the fact that there was a continuing city council appropriation for the vacant position. Id. at 112, 524 N.E. 2d at 453.
Finally, there is no evidence of bad faith on the part of the appellees or extension of the date of the promotional examination beyond the statutorily mandated sixty days as was the situation in McCarter v. Cincinnati (1981), 3 Ohio App. 3d 244, 3 OBR 276, 444 N.E. 2d 1053.
Rather, the undisputed facts are that the Loveland City Council validly voted to eliminate the lieutenant’s position and the funding for it prior to the expiration of the sixty days. The plain words of R.C. 124.37 require an incumbent. The law does not justify requiring a city to conduct a promotional examination and to make an appointment to a non-existent position without an incumbent and then go through the demotion process. This “reverse shell game” is absurd and thus I dissent.
Holmes, J., concurs in the foregoing dissenting opinion.