State ex rel. Bednar v. N. Canton - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
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The State ex rel. Bednar, Appellee and Cross-Appellant, v. City
of North Canton et al., Appellants and Cross-Appellees.
[Cite as State ex rel. Bednar v. N. Canton (1994), Ohio
St.3d .]
Municipal corporations -- Civil service -- Police officers --
Mayor of chartered city required to fill vacancy of
lieutenant's position, when -- Determining eligibility for
back pay for wrongful failure to promote.
(No. 93-628 -- Submitted March 1, 1994, -- Decided May 11,
1994.)
Appeal and Cross-Appeal from the Court of Appeals for
Stark County, No. CA-9047.
Greg Bednar, appellee and cross-appellant, was a police
officer in the city of North Canton. On or about July 5, 1990,
he was certified second on the eligibility list for the
position of lieutenant after having taken an examination
certified by the North Canton Civil Service Commission. That
eligibility list was extended until July 5, 1992. On or about
June 4, 1991, the person certified first on the eligibility
list was promoted to lieutenant, leaving Bednar first on the
eligibility list. On or about June 2, 1992, a lieutenant
retired from the force. Thereafter Bednar's name was certified
to the "appointing authority" for promotion, but the mayor did
not appoint Bednar to the position because he believed that the
vacancy could be filled at his discretion.
Bednar filed a complaint for a writ of mandamus in the
Court of Appeals for Stark County seeking to compel the city
and its officials, appellants and cross-appellees (the "city"),
to appoint him to the lieutenant's position and also seeking
back pay to June 2, 1992 and attorney fees. The court of
appeals allowed the writ of mandamus compelling Bednar's
appointment, but denied his request for back pay and attorney
fees.
The cause is before the court upon an appeal and
cross-appeal as of right.

Roetzel & Andress and Thomas A. Treadon, for appellants
and cross-appellees.

Schulman, Mestel & Burick Co., L.P.A., and Allen Schulman,
Jr., for appellee and cross-appellant.

Per Curiam. For the following reasons, we affirm the
judgment of the court of appeals in part and reverse it in part.
R.C. 124.44 states in part:
"Whenever a vacancy occurs in the position above the rank
of patrolman in a police department, * * * [and there is an
eligibility] list, the [civil service] commission shall, where
there is a vacancy, immediately certify the name of the person
having the highest rating, and the appointing authority shall
appoint such person within thirty days from the date of such
certification."
Bednar relies on this statute to mandate his appointment.
The city contends that its home rule authority under Section 3,
Article XVIII, Ohio Constitution, and implemented by Section
1.02 of its charter and Ordinance No. 21-92, permits it to
deviate from R.C. 124.44. According to the city, Section 1.02
of the charter states:
"The municipality shall have all powers of local
self-government and home rule and all powers possible for a
municipality to have under the Constitution of the State of
Ohio. The municipality shall have all powers that now or
hereafter may be granted to municipalities by the laws of the
State of Ohio. All such powers shall be exercised in the
manner prescribed in this charter, or if not prescribed
therein, in such manner as shall be provided by ordinance of
council."
Ordinance No. 21-92 provides in part:
"'Authorized Manpower:
"That the total number of persons to be employed by the
Police Department and the classifications set forth herein of
the Police Department of the City of North Canton, Ohio, be,
and it shall not exceed the following:
"* * *
"Police Lieutenant 6[']"
The city also relies on State ex rel. E. Cleveland Assn.
of Firefighters v. E. Cleveland (1988), 40 Ohio St. 3d 222,
533 N.E.2d 282. In that case, home rule authority prevailed
over R.C. 124.46, which required the appointment of the
examinee with the highest examination grade in case of a
vacancy in the rank of lieutenant on the fire department. We
held that East Cleveland's "* * * express charter language
enables the city to exercise local self-government powers in a
manner contrary to state civil service statutes. Charter of
the city of East Cleveland, Sections 28-31." Id. at 224, 533
N.E.2d at 284.
In the instant case, the court of appeals found that
Ordinance No. 21-92 lacked the specificity that was required by
State ex rel. Bardo v. Lyndhurst (1988), 37 Ohio St.3d 106, 524
N.E.2d 447. In fact, Bardo required specificity in the charter
itself to invoke home rule authority:
"The rule of charter supremacy applies only where the
conflict appears by the express terms of the charter and not by
mere inference. State, ex rel. Ryan, v. Kerr (1932), 42 Ohio
App. 19, 12 Ohio Law Abs. 292, 181 N.E. 546, affirmed (1932),
126 Ohio St. 26, 183 N.E. 535. In the absence of express

language in a charter showing that it conflicts with the
statutes, it is the duty of the courts to harmonize the
provisions of the charter with the provisions of the statute
relating to the same matter. State, ex rel. Votaw, v. Matia
(1932), 43 Ohio App. 279, 12 Ohio Law Abs. 414, 183 N.E. 122,
affirmed on other grounds (1932), 125 Ohio St. 598, 183 N.E.
533. While the express language of a charter may abrogate or
nullify a state civil service law, such a result cannot be
accomplished by a charter provision delegating authority to a
municipal commission to nullify the law by adoption of a rule.
Id. at 281, 12 Ohio Law Abs. at 415, 183 N.E. at 123." 37 Ohio
St. 3d 109, 524 N.E.2d at 450.
However, the East Cleveland Charter, which we found
sufficient to authorize the ordinance that superseded the state
statute in that case, is more specific than Section 1.02 of the
North Canton Charter, quoted above, only insofar as it reserves
home rule authority specifically directed to the classified
service:
"SECTION 30. APPOINTMENTS AND REMOVALS.
"* * *
"Except as herein otherwise provided, ordinances shall be
passed to fix the powers and duties of the Civil Service
Commission and to prescribe rules and regulations governing the
classified service."
Thus, the East Cleveland and North Canton Charters differ
in that the former reserved home rule authority specifically
directed to ordinances affecting the classified service whereas
the latter reserved such authority generally directed to all
powers of local self-government.
Appointment of police officers is a "'matter of local
self-government'" delegated to all municipal corporations by
Section 3, Article XVIII, Ohio Constitution. State ex rel.
Canada v. Phillips (1958), 168 Ohio St. 191, 194, 5 O.O.2d 481,
483, 151 N.E.2d 722, 725, and paragraph one of the syllabus.
Since a municipal corporation's authority over matters of local
self-government derives directly from the Constitution, we find
it competent for the people of a municipal corporation to
reserve to their legislative authority any residual home rule
powers not exercised directly in the charter. Such a
reservation makes practical sense. Many "matters of local
self-government" are, in fact, matters of detail and procedure
that are out of place in a charter, which is comparable to a
local constitution. Perrysburg v. Ridgway (1923), 108 Ohio St.
245,253, 140 N.E. 595, 597.
Moreover, we perceive no legal difference between a
specific reservation of such power, as in the East Cleveland
Charter, and a general reservation, as in the North Canton
Charter. Accordingly, we hold that Section 1.02 of the North
Canton Charter sufficiently reserved home rule authority to
permit enactment of an ordinance at variance with R.C. 124.44,
and we limit Bardo, supra, to cases involving delegation of
authority to municipal civil service commissions. Cf. Treska
v. Trumble (1983), 4 Ohio St.3d 150, 4 OBR 394, 447 N.E.2d 1283
(state statute [R.C. 124.32] prescribing layoff procedures
prevails over conflicting ordinance of noncharter municipality).
The question remains whether Ordinance No. 21-92 does, in
fact, contradict R.C. 124.44. The ordinance merely states that

the police department shall not exceed six lieutenants; R.C.
124.44 prescribes mandatory procedure to be followed when a
vacancy occurs in the rank of lieutenant. East Cleveland
involved such an ordinance, but we permitted variation from the
statute in part because of another ordinance that plainly
stated:
"The City Manager shall have full authority to leave
positions vacant or to combine the duties of two positions
under a single employee whenever he deems it in the best
interest of the City." 40 Ohio St. 3d at 224, 533 N.E.2d at
285, fn. 2.
By itself, an ordinance limiting the force to a certain
number of lieutenants does not sufficiently indicate an intent
to alter the mandatory appointment procedures set forth in R.C.
124.44. See Zavisin v. Loveland (1989), 44 Ohio St. 3d 158,
541 N.E.2d 1055, in which we held in the syllabus:
"The procedure for promotion provided in R.C. 124.44 is
mandatory upon the occurrence of a vacancy in a position above
police patrolman, and the vacant position must be filled by
appointment before it is abolished pursuant to R.C. 124.37,
which presupposes the existence of an incumbent."
In the instant case, it appears from the second sentence
of Section 1.02 of the North Canton Charter that state law
prevails when the charter and ordinances are silent. Ordinance
No. 21-92 does not contradict the appointment procedures
prescribed by R.C. 124.44, and, according to Zavisin, such
procedures are "mandatory upon the occurrence of a vacancy."
Therefore, in the instant case Bednar was entitled to be
appointed pursuant to such statute, and the decision of the
court of appeals so holding is affirmed.
On cross-appeal, Bednar first claims that he is also
entitled to back pay with interest, regardless of whether the
city acted in bad faith. However, if bad faith is required, he
argues that the city is guilty of bad faith. The court of
appeals denied back pay, and thus interest, finding no bad
faith by the city.
Bednar cites cases in which a public employee is
reinstated following a wrongful dismissal, in which we have
allowed a mandamus action for back pay, "provided the amount
recoverable is established with certainty." State ex rel.
Martin v. Columbus (1979), 58 Ohio St. 2d 261, 12 O.O. 3d 268,
389 N.E.2d 1123, paragraph one of the syllabus. We have also
allowed interest on back pay in such cases at the statutory
rate. State ex rel. Crockett v. Robinson (1981), 67 Ohio St.
2d 363, at 367-368, 21 O.O. 3d 228, at 231-232, 423 N.E.2d
1099, at 1102-1103. However, when, in State ex rel. Gibbons v.
Cleveland (1984), 9 Ohio St.3d 216, 9 OBR 526, 459 N.E.2d 892,
several Cleveland police officers sought writs of mandamus for
back pay, claiming they were wrongfully denied promotion to
sergeant, we reversed the judgment of the court of appeals and
denied the writ, holding that mandamus "does not lie to compel
the granting of benefits conferred by the civil service laws
unless it has been established that the employee was appointed
to the civil service position in question." 9 Ohio St. 3d at
217, 9 OBR at 527, 459 N.E.2d at 893.
Then, in Morgan v. Cincinnati (1986), 25 Ohio St. 3d 285,
25 OBR 337, 496 N.E.2d 468, we "limited" Gibbons, but in doing

so prescribed a different test for granting back pay than was
used in Martin and Crockett. Morgan, like this case, involved
failure to promote pursuant to R.C. 124.44. First, we found
bad faith on the part of the city. We distinguished Gibbons
on the basis that there the city denied promotion based on
certain ordinances later declared unconstitutional, whereas in
Morgan Cincinnati simply violated R.C. 124.44 without
justification. We then held in the syllabus:
"Where a civil service employee shows that a promotion to
which he was entitled was delayed as the result of actions
taken by a municipality in violation of R.C. 124.44, that
employee is entitled to recover back pay and seniority for the
period of the delay."
In his concurring and dissenting opinion, Justice Holmes
noted that although the court appeared to rely on the city's
bad faith in reaching its decision, the syllabus did not
reflect that reliance. Id. at 292, 25 OBR at 342, 496 N.E.2d
at 474. The same problem arose in Hungler v. Cincinnati
(1986), 25 Ohio St.3d 338, 25 OBR 392, 496 N.E.2d 912,
announced the same day as Morgan. Hungler also involved
failure to promote when vacancies in the lieutenant position
occurred. The city failed to promote the top candidates on the
eligible list pursuant to R.C. 124.44 and instead concocted a
demotion-repromotion scheme that ultimately resulted in the
lieutenants' positions being abolished rather than filled
through promotion. The top persons on the eligibility list
sought promotion and back pay via declaratory judgment in the
common pleas court. That court granted them relief, but the
court of appeals reversed. We reversed and reinstated the
judgment of the common pleas court. While not finding "bad
faith" per se, we nevertheless condemned city procedure:
"The machinations employed by the city in the instant case
disrupted the stability and predictability of the civil service
system on which appellants relied. Although the city expresses
its concern for the seniority system, the demotion-repromotion
shell game used to abolish the two lieutenant's positions was
in contravention of R.C. 124.37 and adversely affected
appellants' seniority rights by delaying or denying their
promotions. In essence, the city, by abolishing these
positions in an unlawful manner, was tinkering with the civil
service promotional system as well as R.C. 124.37. The
abolishment of a classified civil service position above the
rank of patrolman in the police department for lack of work or
funds, or for causes other than those outlined in R.C. 124.34,
must be accomplished in conformance with R.C. 124.37. Because
the city did not accomplish the abolishment of these two
lieutenant's positions in accordance with R.C. 124.37, the
elimination of these positions was unlawful and therefore
void." 25 Ohio St. 3d at 344, 25 OBR at 397, 496 N.E.2d at 917.
We then compared the case with Morgan and found them
similar in that each city had "actively violated state civil
service laws." 25 Ohio St. 3d at 289, 25 OBR at 340, 496
N.E.2d at 472; 25 Ohio St. 3d at 345, 25 OBR at 398, 496 N.E.2d
at 918.
Having examined these two classes of cases - - wrongful
dismissals and wrongful failure to promote - - we now prescribe
a single test to determine eligibility for back pay--the test

now applicable to wrongful dismissals. The relator must first
establish that the dismissal or denial of promotion was
wrongful. In wrongful-failure-to-promote cases, this proof may
be in the mandamus action itself. Then, the relator must prove
a clear right to relief by establishing the amount due with
certainty. Martin and Crockett, supra. If certainty is
established, then prejudgment interest is allowed as a matter
of law. Crockett at 367-368, 21 O.O.3d at 231-232, 423 N.E.2d
at 1102-1103; State ex rel. Dean v. Huddle (1976), 45 Ohio St.
2d 234,236, 74 O.O.2d 378, at 379, 344 N.E.2d 138, at 140.
By standardizing the burden of proof in these cases, we do
not suggest that mandamus may be resorted to for proof of
wrongful dismissal where appeal is an adequate remedy at law in
such cases. See, e.g., State ex rel. Shine v. Garafalo (1982),
69 Ohio St.2d 253, 23 O.O.3d 251, 431 N.E.2d 680.
Accordingly, we affirm the judgment of the court of
appeals requiring that Bednar be promoted to lieutenent,
effective July 2, 1992, the date that is thirty days after the
date on which Bednar's name should have been "immediately"
certified to the mayor, and hence the latest date for the mayor
to make the promotion pursuant to R.C. 124.44.
We also reverse the judgment of the court of appeals
insofar as it denied a writ for back pay with statutory
interest because Bednar failed to establish bad faith by the
city. However, because the record shows that Bednar did not
establish the amount of back pay with certainty in the court of
appeals, we remand for further proceedings in accordance with
this opinion. State ex rel. Colangelo v. McFaul (1980), 62
Ohio St.2d 200, 16 O.O. 3d 239, 404 N.E.2d 745.
Finally, we concur with the court of appeal's disallowance
of attorney fees. We find no bad faith, vexatious, wanton,
obdurate, or oppressive conduct necessary to allow attorney
fees, absent a statute allowing them. Sorin v. Warrensville
Hts. School Dist. Bd. of Edn. (1976), 46 Ohio St.2d 177, at
183, 75 O.O.2d 224, at 227, 347 N.E.2d 527, at 531.
Judgment affirmed in part,
reversed in part and
cause remanded.
Moyer, C.J., A.W. Sweeney, Wright, Resnick and Pfeifer,
JJ., concur.
Douglas and F.E. Sweeney, JJ., concur in judgment only.