State ex rel. Fraternal Order of Police, Ohio Labor Council, Inc. v. Sidney - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[Cite as State ex rel. Fraternal Order of Police, Ohio Labor Council, Inc. v.
Sidney, 91 Ohio St.3d 399, 2001-Ohio-79.]

THE STATE EX REL. FRATERNAL ORDER OF POLICE, OHIO LABOR COUNCIL,
INC. ET AL. v. CITY OF SIDNEY.
[Cite as State ex rel. Fraternal Order of Police, Ohio Labor Council, Inc. v.
Sidney (2001), 91 Ohio St.3d 399.]
Mandamus sought to compel city of Sidney to comply with R.C. 5923.05 by
paying relator his regular pay as a police lieutenant in addition to his
military pay while performing military service without being required to
schedule vacation leave during those absences -- Cause dismissed,
when.
(No. 00-1899 -- Submitted March 27, 2001 -- Decided May 16, 2001.)
IN MANDAMUS.
__________________

Per Curiam. Relator John Frilling is a permanent public employee as
defined in R.C. 5903.01(A) who is employed as a police lieutenant by respondent,
the city of Sidney, Ohio, a chartered municipality. Frilling is a member of relator
Fraternal Order of Police, Ohio Labor Council, Inc. ("FOP"), which is the
exclusive representative of employees in the classifications of Communications
Technicians, Patrol Officers, Sergeants, and Lieutenants for the Sidney Police
Department. Frilling has also been a member of the United States Air Force
Reserve and the Ohio Air National Guard.

Between December 23, 1996 and December 13, 1999, Sidney Ordinance
No. 131.18 provided:
"MILITARY
LEAVE.

"Any employee who is a member of the National Guard or militia or of the
military or naval forces of the United States, and is required to undergo field
training therein or is called for active duty, shall be granted a leave of absence

SUPREME COURT OF OHIO
with pay for the period. Vacation and sick leave shall only be accrued at the
employee's regular rate during this paid leave. This paid leave of absence shall
be in addition to his vacation leave, but shall not exceed fifteen days in any fiscal
year. In the case of military leave, paid leave shall mean the difference between
the employee's regular salary and all government money received for such
military leave, excluding any transportation reimbursement received." (Emphasis
added.)

In December 1999, this ordinance was amended to provide for twenty-two
days military leave in any calendar year.

In addition, the collective bargaining agreement between the FOP and
Sidney contained a comparable military leave provision that provided that this
leave shall not exceed fifteen days in any fiscal year and that paid military leave is
"the difference between the employee's regular salary and all governmental
money received for such military leave, excluding any transportation
reimbursement received."

These provisions confer lesser benefits than R.C. 5923.05, which provides
for military leave "without loss of pay" for permanent public employees. R.C.
5923.05(A). Effective September 18, 1997, R.C. 5923.05(F) was amended to
provide that "[a]ny permanent public employee of a political subdivision whose
employment is governed by a collective bargaining agreement with provision for
the performance of service in the uniformed services shall abide by the terms of
that collective bargaining agreement with respect to the performance of such
service, except that no collective bargaining agreement may afford fewer rights
and benefits than are conferred under this section." (Emphasis added.) 147 Ohio
Laws, Part IV, 7806, 7875.

Since September 18, 1997, Frilling has been on requested leaves of
absence from his job with Sidney while serving in the United States Air Force
Reserve and the Ohio Air National Guard. According to Frilling, during these
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January Term, 2001
absences, Sidney did not grant him a leave of absence without loss of pay, and the
city required him either to use his days off or use his accrued vacation or personal
leave to cover his military absences. Frilling never provided evidence to the city
that he had been called to military duty when he requested and received military
leave.

In January 2000, Frilling attempted to schedule two days of military leave
in addition to his eight unpaid, authorized days off. Sidney treated Frilling's
military leave as paid personal days off, and Frilling filed a grievance under the
grievance and arbitration procedure of the collective bargaining agreement.
Neither the FOP nor Frilling pursued the grievance through the final step in the
agreement, i.e., arbitration.

In October 2000, the FOP and Frilling filed this action for a writ of
mandamus to compel the city of Sidney to comply with R.C. 5923.05 by paying
Frilling "his regular pay plus interest, irrespective of any pay he receives from the
military, during his leaves of absence since September 18, 1997 while performing
services in the uniformed services without requiring him to schedule his off days
or benefit leave during these absences." After Sidney filed an answer in
December 2000, the case was referred to mediation. In February 2001, the cause
was returned to the regular docket.

This cause is now before the court for its S.Ct.Prac.R. X(5) determination.

We must now determine whether dismissal, an alternative writ, or a
peremptory writ is appropriate. S.Ct.Prac.R. X(5); State ex rel. Cleveland Elec.
Illum. Co. v. Cuyahoga Cty. Court of Common Pleas (2000), 88 Ohio St.3d 447,
449, 727 N.E.2d 900, 902. Dismissal is appropriate if it appears beyond doubt,
after presuming the truth of all material factual allegations and making all
reasonable inferences in favor of relators, that they are not entitled to the
requested extraordinary relief. State ex rel. Grendell v. Davidson (1999), 86 Ohio
St.3d 629, 632, 716 N.E.2d 704, 708.
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SUPREME COURT OF OHIO

Relying solely upon R.C. 5923.05, relators claim that Frilling must be paid
his regular salary from Sidney in addition to his military pay while performing
military service without being required to schedule vacation leave during these
absences. For the following reasons, relators' claim is meritless.

First, R.C. 5923.05 is inapplicable to Frilling's military leave because of
the plain language of R.C. 4117.10. R.C. 4117.10(A) expressly states that absent
an election by the city to provide the military leave specified in R.C. 5923.05, the
provisions of the collective bargaining agreement prevail:

"The law pertaining to the leave of absence and compensation provided
under section 5923.05 of the Revised Code prevails over any conflicting
provisions of [collective bargaining] agreements if the terms of the agreement
contain benefits which are less than those contained in that section or the
agreement contains no such terms and * * * the public authority is another entity
listed in division (B) of section 4117.01 of the Revised Code that elects to provide
leave of absence and compensation as provided in section 5923.05 of the Revised
Code." (Emphasis added.)

Here, R.C. 5923.05 does not prevail over either the collective bargaining
agreement or the Sidney ordinance. The city has not elected to provide the
military leave and compensation specified in R.C. 5923.05. In fact, through its
collective bargaining agreement and ordinance, Sidney has elected otherwise.

Second, R.C. 5923.05 is inapplicable because it conflicts with Sidney
Ordinance No. 131.18. An ordinance adopted by a municipality pursuant to its
constitutional home-rule authority regarding military leave of its employees
prevails over conflicting state law. See N. Ohio Patrolmen's Benevolent Assn. v.
Parma (1980), 61 Ohio St.2d 375, 378, 15 O.O.3d 450, 452, 402 N.E.2d 519,
521-522 ("It is axiomatic that an ordinance, similar to the one at bar [regarding
military pay], if enacted by a chartered municipality, would prevail over the state
law [R.C. 5923.05] irrespective of any conflict"); Mullen v. Akron (1962), 116
4

January Term, 2001
Ohio App. 417, 22 O.O.2d 251, 188 N.E.2d 607; see, also, 2000 Ohio
Atty.Gen.Ops. No. 2000-007, fn. 4.

Third, even assuming that R.C. 5923.05 conferred a legal right on Frilling
to the requested military leave and compensation, relators failed to specifically
allege that Frilling satisfied the statutory prerequisite for these benefits. R.C.
5923.05(E) mandates that each permanent employee entitled to this leave "shall
submit to the permanent public employee's appointing authority the published
order authorizing the call or order to the uniformed services or a written
statement from the appropriate military commander authorizing that service,
prior to being credited with such leave." (Emphasis added.) S.Ct.Prac.R.
X(4)(B) requires the pleading of specific facts in mandamus actions in this court
rather than unsupported conclusions. State ex rel. Taxpayers Coalition v.
Lakewood (1999), 86 Ohio St.3d 385, 390, 715 N.E.2d 179, 184. Relators'
complaint does not contain even conclusory allegations regarding compliance
with the R.C. 5923.05(E) statutory requirement.

Finally, to the extent that relators might claim that they are entitled to
relief under the parties' collective bargaining agreement, they have or had an
adequate legal remedy through the agreement's grievance and arbitration
procedure. State ex rel. Zimmerman v. Tompkins (1996), 75 Ohio St.3d 447, 449,
663 N.E.2d 639, 641.

Based on the foregoing, it appears beyond doubt that relators' action lacks
merit and is dismissed.
Cause dismissed.

MOYER, C.J., RESNICK, F.E. SWEENEY, COOK and LUNDBERG STRATTON,
JJ., concur.

DOUGLAS, J., dissents.

PFEIFER, J., dissents and would grant an alternative writ.
__________________
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SUPREME COURT OF OHIO

Paul L. Cox and Kay E. Cremeans, for relators.

Denlinger, Rosenthal & Greenberg Co., L.P.A., Robert M. Lamb and
Daniel G. Rosenthal, for respondent.
__________________
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