IN THE SUPREME COURT OF OHIO

Transcription

1 IN THE SUPREME COURT OF OHIO City of Cincinnati, Appellant, State Employment Relations Board, On Appeal from Franklin County Court of Appeals, Tenth Appellate District and Queen City Lodge No. 69, Fraternal Order of Police, Court of Appeals Case No. 09AP-261 Appellees. MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANT CITY OF CINCINNATI JOHN P. CURP ( ) City Solicitor, City of Cincinnati Augustine Giglio ( ) (COUNSEL OF RECORD) Assistant City Solicitor City of Cincinnati 801 Plum Street Room 214 Cincinnati, Oliio (513) Fax No. (513) Gus. gi tt,lio (a)cinci nnati-oh. gov Counsel for Appellant, City of Cincimiati RICHARD CORDRAY ( ) Ohio Attorney General Amie Light Hoke ( ) (COUNSEL OF RECORD) Aaron W. Johnston ( ) Assistant Attorneys General Labor Relations Section 30 East Broad Street, 26th Floor Columbus, Ohio (614) Fax No. (614) amie.hoke,7ohioattorneygeneral. [3aron johnston(c^ohioattorney g eneral.gnu Counsel for Appellee, State Employment Relations Board

2 R. Jessup Gage ( ) Stephcn S. Lazarus ( ) (COUNSEL OF RECORD) Hardin, Lazarus, Lewis & Marks 915 Cincinnati Club Building 30 Garfield Place Cincinnati, Ohio (513) Fax No.(513) 'essungaxec^)hllmlaw.com stcvelazarus(c7hllmlaw.com Counsel for Appellee Cincinnati Assistant Fire Chiefs Union Local 48, IAFF, AFL-CIO

3 TABLE OF CONTENTS EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC INTEREST... 1 S"I'A'I'EMENT OF THE CASE AND FACTS... 3 ARGUMENT IN SUPPORI' OF PROPOSITION OF LAW... 7 Proposition of Law: The affirmative defenses of waiver and estoppel apply under ORC 4117 to bar individuals from claiming that they are "public employees" entitled to collectively bargain CONCLUSION PROOF OF SERVICE APPENDIX Page Opinion and Judgment Entry of the Franklin County Court of Appeals for the Tenth District (Dated November 3, 2009)...

4 EXPLANATION OF WHY THIS CASE IS OF PUBLIC OR GREAT GF,NERAL INTEREST 'fhis case presents a critical issue as to whether Assistant Fire Chiefs are estopped or otherwise precluded from claiming they are public einployees as defined under ORC (C) after the saine parties negotiated and entered into a wage and benefit agreement for higher salaries that specified such increase and benefits were based upon their acknowledged position as manageinent level employees. ORC provides that public employees except as otherwise provided in 4117 of the Revised Code may form, join, assist, or participate in any einployee organization of their choice. ORC (C) defines "public employee" as any person holding a position by appointment or employment in the seiviee of a public employer. ORC (C) (7) specifically exempts from that definition "management level employees". The statute further defines "management level eniployee" in pertinent part as: An individual who foimulates policy on behalf of the public employer, who responsibly directs the implementation of policy, or who may reasonably be required on behalf of the public employer to assist in the preparation for the conduct of collective negotiations, administer collective negotiated agreement, or have a major role in personnel administration. ORC (C) (L). The decision of the Tenth District Court of Appeals affirming the trial court's finding that the State Employment Relations Board's (SERB) decision determining that these Assistant Fire Chiefs are currently not management employees is directly contrary to the provisions contained in their signed wage and benefit agreement. That agreement entitled "Assistant Fire Chiefs Salary/Ilenefit Package" became effective on May 12, It was executed by all four Assistant Fire Chiefs. The agreement provided in pertinent pail: "This benefit package is provided to the Assistant Fire Chiefs in consideration of the fact that the Assistant Fire Chief classification is a non-bargaining unit, executive-level

5 management employee with fiduciary duties and responsibilities to the City of Cincinnati". On October 16, 2006, approximately five months after the signed agreement became effective granting higher pay and benefits, the Union filed a Request For Recognition seeking to represent certain employees of the City of Cincinnati, specifically describing the proposed bargaining unit as including "All members of the Cincinnati Fire Department in the sworn rank of Assistant Fire Chief' and excluding "all other members of the Cincinnati Fire Department". There are presently only four Assistant Fire Chiefs, the same four who executed the wage package agreement in that sworn rank. Becatise the Cincinnati Municipal Code contani.s the compensation schedule for the classification of Assistant Fire Chief, an ordinance was necessitated to increase the salary range to be equal to 16% above the salary range for District Fire Chiefs under the Cincinnati Municipal Code. That ordinance was passed on April 12, 2006 making the 16% salary above District Fire Chief for the classification of Assistant Fire Chiefs effective on June 2, 2006 to comply with the terms of the wage and benefit agreement. There was no substantial evidence that duties changed from May 2006 until the Request For Representation was filed. To the contrary, the Assistant Fire Chiefs testified that they didn't believe they were management level employees and only entered into the wage agreement because they believed it was the only way to achieve an increase in salary. Fact: SERB, in adopting the ALJ's recommended decision, accepted the following Finding of On March 29, 2006, the ACs entered into an agreement with the City Manager which became part of an ordinance passed by City Council. The agreement gave the ACs a pay and benefit package wliich reset the ACs' salary automatically and continually at 16% above the base salary of the District Chief The agreement describes the ACs as nonbargaining unit and as executive levet management employees with fiduciary duties and 2

6 responsibilities. The ACs who testified indicated that they had been trying to raise their level of pay and benefits for some time and although they disagreed with the City's characterization of the ACs as management level employees, they believed that signing the document was the only way to achieve the increased pay and benefits. (R. Recommended Determination Finding of fact #10) SERB made have no other reference to this agreement nor did it attempt to explain why this contract had no relevance. The trial court only addressed the City's argument regarding the binding nature of this written contract in a four sentence footnote. It merely relied on the interpretation of ORC (A) which provides in part: With certain limited exceptions, Chapter 4117 of the Revised Code prevails over any and all other conflicting law, resolutions, provisions, present or future, except as otherwise specified by the General assembly". The Tenth Disthict Court of Appeals overruled the City's assignment of error claiming the Assistant Fire Chiefs were precluded from claiming they were not management employees by citing the trial court's application of (A). In this case, an agreement between Management and the entire number of affected employees as to wages and benefits was in fact reached and executed by the parties. The application of ORC (A) by the court below is entirely too broad in its interpretation and ignores the basic principles of contract law as well as that the non-enforcement of the terms of the agreement allows a party to manipulate the terms and conditions of employment by not being held to the tenns agreed upon. This court should accept jurisdiction to correct this unjust result. STATEMENT OF THE CASE AND FACTS ProceduralIIistory: 'I'his case began procedurally on October 16, 2006, when the Appellee, Cincinnati Assistant Fire Chiefs Union Local 48, IAFF, AFL-CIO (Union), filed a Request For Recognition with the Appellee, State Employment Relations Board (SERB), seeking to represent certain 3

7 employees of the City of Cincinnati (more specifically, all members of the City of Cincinnati Fire Department in the sworn rank of Assistant Chief). Objections were filed by Appellant, City of Cincinnati (City), and after litigation as to the timeliness of the objections was resolved in favor of the City, the matter was remanded to SERB, who directed the matter be heard by an Administrative Law Judge (ALJ) to determine the issues. After a hearing, the ALJ made certain Findings of Fact and Conclusions of Law and Recommendations, including having SERB issue a directive granting the Request For Recognition and certifying the Union as the exclusive bargaining unit for all Assistant Fire Chiefs, excluding all other sworn members of the Fire Department and adopting the Find'nrgs of Fact and Conclusions of Law. Timely objections were made togetlier with a request for an oral argument. On September 2, 2008, SERB denied both the motion for oral argument and adopted the recommendations of the ALJ with the exception that it modified recomrnended Conclusion of Law #3 to state that the position of Assistant Chief as currently utilized is not excluded from the definition of "public employee" within the meaning of ORC (C) as a "management level employee" as further defined by ORC (L) and granted the Request for Recognition as sought. The City appealed to the Franklin County Common Pleas Court and on February 24, 2009, the trial court issued its decision affirming the decision of SERB, finding that the Board's decision was supported by reliable, probative, and substantial evidence and was in accordance with law. This decision was appealed to the Tenth District Court of Appeals who afffrmed the trial court's order. It is from that decision that the Appellant now requests this court to grant jurisdiction. 4

8 Facts: The City of Cincinnati Fire Depai-tment has approximately 835 full time employees, the vast majority of which are uniformed Fire Fighters. Of this number, there are only four Assistant Fire Chiefs. The Fire Department is made of four Bureaus, each one headed by one of the Assistant Fire Chiefs who is subordinate and answers to the Fire Chief. Evidence submitted to SERB included the Job Classification for Assistant Fire Chief as well as pertinent portions of the Fire Department's Procedural Manual setting forth the duties of an Assistant Fire Chief, including having full authority to be Acting Fire Chief in the Chief's absence. While it is conceded that the trials court's review of the record under Section is to determine if the agency's order is supported by reliable, probative, and substantial evidence, it must also be in accordance with law. Approximately five months before the filing of the Request for Recognition as a bargaining unit by the Union, these four Assistant Fire Chiefs entered into a written agreement for a Salary/Benefit Package with the City of Cincinnati. Ainong the provisions in that agreement signed by all the Assistant Chiefs, was the additional payment of $ paid biannually since it was understood that the Assistant Chiefs were FLSA exempt and not eligible for overtime payments. The agreement also provided for a 16% salary above that paid to a District Fire Chief. 'The agreement acknowledged that this Salary/Benefit Package was in consideration that the Assistant Fire Chief classification is a non-bargaining unit, executive level management (emphasis added) employee with fiduciary dufies and responsibilities to the City of Cincinnati. 5

9 In July, 2007, approximately nine months after the Union filed its Request For Recognition, a newly created position of Executive Officer was filled for the first time. The major role of this position was to provide fiscal oversight, plamiing and management of the Fire Departinent's biannual budget. This position has no autbority over uniformed Fire Fighters or any Assistant Chief in the Department. As a consequence, this individual has not been involved in the Union grievance process, discipline, suspensions and granting of overtime for Fire Fighters. All of those actions fall under the authority of and are performed by the Assistant Chiefs. Only an Assistant Chief has the ability to serve as "Acting Chief' in the Fire Chief's absence. The Manual of Procedures as well as the job description for Assistant Fire Chief define the role of "Acting Chief" or Duty Chief as having full authority of the Fire Chief until properly relieved or for that duration of the Chiel's absence. All four Assistant Chiefs have served as "Acting Chief'. It was acknowledged that the Executive Officer cannot serve in the capacity of "Acting Chief'. (Tr. P ). The Assistant Fire Chiefs' stated duties included recommending and implementing policy for the Fire Deparhnent, handling and signing off on Union grievances of Fire Fighters, and the authority to suspend and order drug related testing of employees. (Tr. PP. 206, ; T. Exh D). As noted in inany of the Findings of Fact adopted by SERB, reference to the duties and functions of a newly created position of Executive Officer was given considerable weight by the ALJ. (Findings of Fact, ##4, 5, 7, 8). In the ALJ's analysis concluding Assistant Fire Chiefs do not have a major role in personnel administration, the ALJ specifically noted: "Many of the tasks that the ACs may have had in the past have been taken over by the new Executive Officer. The only administrative decisions not to be handled by the Executive Officer are those involved in incident command at a fire or emergency..." (at p. 9 of Recommendation). 6

10 Therefore, at the time of the filing of the Request For Recognition, there wasn't any Executive Officer, nor was there any change of duties associated witli sucli a new position, even if the agency wished to accept those disputed facts. Proposition of Law: Areument in support of proposition of law The affirmative defenses of waiver and estoppel apply under ORC 4117 to bar individuals from claiming that they are "public employees" entitled to collectively bargain. The trial and appellate courts relied upon this court's holdings in Franklin County Law Fnforcernent Association, et al v. Fraternal Order ofpolice, Capital City Lodge No. 9. et al, 59 Ohio St. 3d 167, 572 M.E. 2d 87 (1991) in determining that the language of ORC (A) providing that Chapter 4117 of the Revised Code prevails over any and all other conflicting laws, resolutions, provisions, present or future, "except as ORC Chapter 4117 or the General assembly otherwise specifies." The Franklin case addressed whether the common pleas court has jurisdiction where a statute creates new rights and proscribes remedies for its violation, determining that the statutory remedy was exclusive. This is not a question of SERB having,jurisdiction in interpreting the collective bargaining statute; it is rather whether a public employee can waive the right to have SERB consider the interpretation (A) does not address or prevent any employee from waiving its claim under the statute. In the present case, the Assistant Fire Chiefs chose to waive their non-management position by agreeing that they were management level employees and accepted valuable consideration in exchange for that acknowledgment. They undertook the agreement for their personal gain and received higher salaries and benefits. These employees wish to ignore their 7

11 contract and seek to be made non-exempt public employees after receiving consideration for being management level employees. One of the essential purposes of R.C. Chapter 4117 is to promote good-faith bargaining. By ignoring the position taken by the Assistant Fire Chiefs in their negotiated written contract, SERB has failed to uphold this purpose. The issue of whether estoppel may serve as a bar to litigating an issue under R.C has been addressed by SERB in the past when it foiuid that an employee who accepts a job or promotion knowing it to be in the unclassified service as a fiduciary employee may well be estopped from later denying that the employee is a fiduciary. See In re SERB v. Fulton County Engineer, SERB ( ). In eventually concluding that the employee could not be estopped from asserting he was not a fiduciary, SERB relied upon the fact that he was never told he was such a fiduciary employee and in addition, having served in the position for a number of years before being asked to sign a statement that he was unclassified, SERB could find no additional benefit by receiving the designation as a fiduciary employee. In the present case, the complete opposite has occurred. The job classification and Fire Procedures Manual clearly describe the position of Assistant Fire Chief as one with managernent level duties. Additionally, by executing this agreenient acknowledging their positions were management level, the Assistant Fire Chiefs received substantial consideration. Any claims this was the only way to achieve any raise and benefits are contradicted by the subsequent action seeking the recognition of an exclusive bargaining agent. The terms of the written contract are contained within the four corners of the contract and set forth the intent of the parties. The Assistant Fire Chiefs should not be permitted to now have it both ways. 8

12 CONCLUSION It is respectfully requested that the principal of waiver and estoppel be confirmed as an affirmative defense for purposes of interpreting statutory definitions under R.C The parties having previously executed a written agreenient acknowledging that they were management level employees, and having received valuable consideration for that acknowledgment, SERB should not accept jurisdiction to hear the issues on the merits and decline to interpret the definition of management level employee under R.C Respectfully submitted, JOHN P^brIRP ( ) City Sr6lic'ttor, City^.Cinci (Aygdstine iglio (00319 ounsel f ^ r Appellant City of Cincinnati 801 Plum Street, Room 214 Cincinnati, Ohio (513) Fax No. (513) Gus. giglio@cincinnati-oh.gov 9

13 CERTIFICATE OF SERVICE I certify that a copy of this Memorandum in Supportj.0,;3urisdi5tiQn was sent U.S. Mail to comisel for Appellees listed below on Dece*ey^Y5, 20 gust^e Giglio Counse for Appellapt; C}hy of Cincinnati Anne Light Hoke Ohio Attorney General Labor Relations Section 30 East Broad Street, 26`h Floor Columbus, Ohio Stephen S. Lazarus Hardin, Lazarus, Lewis & Marks 915 Cincinnati Club Building 30 Garfield Place Cincinnati, Ohio

14 APPENDIX

15 IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT a ^ 0-i^ c ri,.- ) City of Cincinnati, V. Appellant-Appellant, State Employment Relations Board No. 09AP-261 (C.P.C. No. 08CVF-12938) et al., (REGULAR CALENDAR) Appeilees-Ap pel lees. JUDGMENT ENTRY For the reasons stated in the decision of this court rendered herein on November 3, 2009, and having overruled appellant's two assignments of error, it is the judgment and order of this court that the judgment of the Franklin County Court of Common Pleas is affirmed. Costs assessed to appellant. BRYANT, SADLER & CONNOR, JJ. By Judge,Peggy Bryant

16 IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT City of Cincinnati, V. Appellant-Appellant, No. 09AP-261 (CRC. No. 08CVF-12938) State Employment Relations Board et al., (REGULAR CALENDAR) Appellees-Appellees. DECISIOPJ Rendered on November 3, 2009 John Curp, City Solicitor, City of Cincinnati, and Augustine Giglio, Assistant City Solicitor, for appellant. Richard Cordray, Attorney General, Anne Light Hoke and Aaron W Johnston, for appellee State Employment Relations Board. Hardin, Lazarus, Lewis & Marks, Stephen S. Lazarus and R. Jessup Gage, for appellee Empioyee Organization. APPEAL from the Franklin County Court of Common Pleas. BRYANT, J. {TY} Appellant, City of Cincinnati ("City"), appeals from a judgment of the Franklin County Court of Common Pleas affirming an order of the State Employment Relations Board ("SERB") that granted the request of appellee, Cincinnati Assistant Fire Chiefs Union Local 48, International Association of Firefighters, AFL-CIO ("Union") to

17 No. 09AP represent the Assistant Fire Chiefs in the Cincinnati Fire Department. Because the common pleas court did not abuse its discretion in concluding substantial, reliable, and probative evidence supports SERB's order, we affirm. 9. RrocedaaFa6 FiisgM {12} On October 6, 2006, the Union filed a Request for Recognition with SERB, seeking to represent "[a]ll members of the Cincinnati Fire Department in the sworn rank of Assistant Fire Chief." The City filed an objection to the Request for Recognition, contending both that the proposed bargaining unit was not an appropriate unit pursuant to R.C and that the employees in the proposed unit were not statutorily defined public employees. {13} After litigation concerning the timeliness of the City's objection was resolved favorably to the City, a hearing was held in February 2008 before an Administrative Law Judge ("ALJ") of SERB, who recommended that SERB grant the Union's Request for Recognition. The City filed exceptions and a request for oral argument. On August 28, 2008, SERB denied the City's request for oral argument, adopted all the ALJ's recommendations, amending only the ALJ's third Conclusion of Law, and issued an order that granted the Union's Request for Recognition. {14} Pursuant to R.C , the City appealed from SERB's order to the Franklin County Court of Common Pleas, which affirmed SERB's order. Although the common pleas couri acknowledged the record contained some evidence supporting the City's position, it also noted substantial evidence supporting SERB's order. Noting it was required to presume the agency's findings of fact are correct and to defer to them, the

18 No. 09AP common pleas court concluded the requisite quantum, quality and nature of evidence was sufficient to support SERB's order, II. Assignments of Error 115} The City appeals, assigning the following errors: APPELLANT'S FIRST ASSIGNMENT OF ERROR The trial court erred in finding that the decision of the agency was supported by substantial, reliable and probative evidence and in accordance with law. APPELLANT'S SECOND ASSIGNMENT OF ERROR The Trial Court erred in not precluding Assistant Fire Chiefs from claiming they were not management employees after having contracted with the City for higher pay/benefits in consideration of their management level duties and responsibilities for the City of Cincinnati. Ilt. First Assignment of Error {q[61 The City's first assignment of error asserts the common pleas court erred in concluding under R.C that substantial, reliable, and probative evidence supports SERB's order granting the Union's Request for Recognition. See also R.C (P) (subjecting SERB to R.C. Chapter 119). Absent such evidence, the City contends, the order is not in accordance with law. {17} Under R.C , when a common pleas court reviews an order of the administrative agency, the common pleas court must consider the entire record to determine whether the agency's order is supported by reliable, probative, and substantial evidence and is in accordance with law. 1Jniv, of Cincinnati v. Conrad (1980), 63 Ohio St.2d 108, The common pleas court's "review of the administrative record is

19 No. 09AP neither a trial de novo nor an appeal on questions of law only, but a hybrid review in which the court 'must appraise all the evidence as to the credibility of the witnesses, the probative character of the evidence, and the weight thereof.' " Provisions Plus, Inc. v. Ohio Liquor Contro( Comm., 10th Dist. No. 03AP-670, 2004-Ohio-592, 7, quoting Lies v. Veterinary Med. Bd. (1981), 2 Ohio App.3d 204, 207. (y(fd) In its review, the common pleas court must give due deference to the administrative agency's resolution of evidentiary conflicts, but the findings of the agency are not conclusive. Conrad, supra; see also Bartchy v. State Bd. of Edn., 120 Ohio St.3d 205, 2008-Ohio-4826 (noting that while an agency's findings of fact are not conclusive, they are presumed correct and "must be deferred to by a reviewing court unless that court determines that the agency's findings are internally inconsistent, impeached by evidence of a prior inconsistent statement, rest upon improper inferences, or are otherwise unsupportable"). "'Where the court, in its appraisal of the evidence, determines that there exist legally significant reasons for discrediting certain evidence relied upon by the administrative body, and necessary to its determination, the court may reverse, vacate, or modify the administrative order.' " Id. at 37, quoting Conrad at 111. {19) By contrast, an appellate court's review is more limited. Provisions Plus, supra, at 8, citing Pons v. Ohio State Med. Bd. (1993), 66 Ohio St.3d 619, 621. The appellate court determines whether the common pleas court abused its discretion. Id. An abuse of discretion implies not merely error of judgment, but perversity of will, passion, prejudice, partiality, or moral delinquency. Aida Ent., Inc. v. Ohio State Liquor Control Comm., 10th Dist. No. 01AP-1178, 2002-Ohio-2764, 11, quoting Rossford Exempted

20 No. 09AP Village School dist. Bd. of Edn. v. State Bd. of Edn. (1992), 63 Ohio St.3d 705, 707. Absent an abuse of discretion, the appellate court may not substitute its judgment for that of the common pleas court. Provisions Plus, supra. An appellate court, however, has plenary review of purely legal questions. Id. {y[i } R.C (A) provides that "public employees" have the right, among others, to participate in any employee organization of their own choosing, to have a labor organization represent them, to bargain collectively, to present grievances, and engage in other activities typically associated with collective bargaining. As relevant here, a "public employee" is defined in R.C (C) as "any person holding a position by appointment or employment in the service of a public empioyer, except ^** [m]anagement level employees." {1111 The parties do not dispute the City is a public employer under R.C (B) and the Union is an employee organization under R.C (D). Rather, the issue is whether the Assistant Fire Chiefs are "management level employees" who do not qualify as public employees and thus do not possess the statutory rights afforded to public employees. R.C (L) defines a management level employee as "an individual who formulates policy on behalf of the public employer, who responsibly directs the implementation of policy, or who may reasonably be required" on the public employer's behalf "to assist in the preparation for the conduct of collective negotiated agreements, or have a major role in personnel administration." 1112} According to the factual findings of SERB's ALJ, the Fire Department, consisting of approximately 835 firefighters, has four Assistant Fire Chiefs; each headed

21 No. 09AP one of four bureaus. In July 2007, Ronnise Handy was hired into a newly created position as the Fire Department's Executive Officer, and from that point she handled all administrative matters in the Fire Chiefs absence. Before the new position was created, the Assistant Fire Chiefs served as Acting Fire Chief in the Fire Chiefs absence; none had so served since Handy was hired. Similarly, the Assistant Fire Chiefs no longer represented the Fire Chief in his absence at the weekly division head meetings with the City Manager; Handy did so. The Assistant Fire Chiefs testified they also have no authority to make expenditures or purchases; those requests must go through Handy's office. (113J The Assistant Fire Chiefs further testified all grievance settlements had to meet the approval of the Fire Chief; the Assistant Fire Chiefs had no authority to settle any grievances without such approval. Although the Assistant Fire Chiefs and the District Fire Chiefs served as hearing officers at pre-disciplinary hearings, their authority was limited. After the hearing, they could recommend a penalty, sometimes first discussing the penalty with the Fire Chief. The recommendation, however, first was sent to the Fire Chief for review, then the Law Department, and then to the City Manager. Often the Fire Chief changed the recommended discipline, so that, as an example, the Fire Chief amended the recommendation in all but one of the last eight to ten cases Assistant Fire Chief Kuhn heard. (1149 Nor do the Assistant Fire Chiefs interpret the Collective Bargaining Agreement; they only ensure its express terms are followed. If interpretation is necessary, the Assistant Fire Chiefs call on the Labor Relations Manager in the Human Resources

22 No. 09AP Department. Assistant Fire Chiefs, however, conduct performance reviews for the District Fire Chiefs who serve under them, while District Fire Chiefs review Captains, Captains review Lieutenants, and Lieutenants review the firefighters. (1151 Similarly, the Assistant Fire Chiefs testified they do not make policy for their bureaus; rather, they clear any changes in policy with the Fire Chief before implementing them. Indeed, they testified to several instances where the Fire Chief overruled their suggestions. For example, Assistant Fire Chief DeMasi recommended that, to control internet usage, no personal computers be allowed on the fire department property; the Fire Chief overruled him and did not adopt his proposal. A second instance involved Assistant Fire Chief Kuhn, whom the Fire Chief instructed to write a letter to vendors explaining why a special events rate could not be set; the Fire Chief twice revised the lefter. In the same way, when a new squad was created, Assistant Fire Chief Corbett, a board member, reviewed the candidates and sent an listing the results per the candidates' score; after the was sent, the Fire Chief changed the selection process, and the list was changed. {1116} Employing the R.C (L) definition of management level employee as one who formulates public policy on behalf of a public employer or reasonably directs policy implementation, SERB, through its ALJ, concluded the Assistant Fire Chiefs did not develop or implement any employer-wide policy. Evidence in the record supports that conclusion. All the Assistant Fire Chiefs testified that any of their suggestions concerning policy change subsequent to Handy's hire were discussed with the Fire Chief, but he made the final decision; they noted examples where the Fire Chief overruled their

23 No. 09AP suggestions. Even if policymaking includes making recommendations that the employer subsequently adopts, as in In re City of Wilmington (Apr. 27, 1997), SERB No , the Assistant Fire Chiefs' duties at the time of the hearing cannot be said to include formulating policy, as the Fire Chief often overruled their suggestions. {117} R.C (L) also defines a management level employee as one who may reasonably be required on behalf of the public employer to assist in preparing to conduct negotiations regarding collective bargaining agreements. The Labor Relations Manager in the Human Resources department for the City testified she, instead, was on the negotiating teams for the City for the last three contracts with the firefighters. Although two Assistant Fire Chiefs were involved in the process for the contracts in both 2001 and 2003, they did not participate in the 2005 contract because they believed R.C prohibited them as members of the Union, though not in the bargaining unit, from sitting on management's negotiation team. Thus, the Assistant Fire Chiefs, after the 2003 contract, no longer assisted in preparing to conduct negotiations regarding collective bargaining agreements. (9118} Finally, R.C (L) defines a management level employee as one who has a major role in personnel administration. According to the testimony, the newly created position of Executive Officer handled the administrative matters. Even in more specific instances where Handy was not primarily responsible, the Assistant Fire Chiefs did not have administrative authority. For example, at the time of the hearing they lacked the authority to settle grievances, as all grievance settlements had to meet the approval of the Fire Chief. The prescribed procedure directed that the Assistant Fire Chiefs and the

24 No. 09AP District Fire Chiefs serve as hearing officers at pre-disciplinary hearings and recommend a penalty, sometimes first discussing the penalty with the Fire Chief. The recommendation, however, then was forwarded for review to the Fire Chief, who often changed the recommended discipline, as illustrated in the noted testimony of Assistant Fire Chief Kuhn. {y[19} In an effort to circumvent the result such evidence allows, the City contends the Assistant Fire Chiefs handle administrative matters that are outside the responsibilities of the Executive Officer, noting the Executive Officer cannot take charge at a fire scene. The City argues the Assistant Fire Chiefs thus properly are considered management level employees. The evidence, however, reflects that the City follows incident command at a fire scene, or a system where the highest ranking officer on the scene is the incident commander and is in charge of the scene. If the Fire Chief were not present, the Assistant Fire Chief, if present, would be in charge. If the Assistant Fire Chief were not at the scene, the next in command would assume that role. Because some who could be in charge of the scene were also members of a collective bargaining unit, the Assistant Fire Chiefs role as incident commander does not compel the conclusion the City proposes. {9[20} The City nonetheless argues this case is similar to Twinsburg Fire Fighters, Local 3630 v. SERB (Oct. 23, 2001), C.P. No. OOCVF , where the issue was whether captains of the fire department were management level employees; both SERB and the common pleas court concluded they were. Twinsburg, however, presents considerably different facts because the duties of the captains in Twinsburg differed

25 ivo. 09AP significantly from those of the Assistant Fire Chiefs here. The Twinsburg captains recommended changes to the Standard Operating Procedures and Guidelines that were adopted, updated the personnel manual, and even re-wrote the driver's training manual without needing approval of the content. They enforced discipline, were in charge of fire safety programs and safety committees, and represented management during contract negotiations. By contrast, the Assistant Fire Chiefs could perform virtually nothing without the Fire Chiefs approval. {9(21j Despite other evidence in the record which may allow a different result than the one SERB reached, the record contains reliable, probative, and substantial evidence that the Assistant Fire Chiefs are not management level employees, but public employees. The common pleas court did not abuse its discretion in affirming SERB's order. The City's first assignment of error is overruled. IV. Second Assignment of Error {1221 The City's second assignment of error contends the Assistant Fire Chiefs should not have been allowed to claim they were not management level employees, as they contracted with the City for higher pay and benefits in consideration of their management level duties and responsibilities for the City. {123} On March 29, 2006, the Assistant Fire Chiefs entered into an agreement with the City Manager which became part of an ordinance City Council passed. Under the agreement, the Assistant Fire Chiefs received a pay and benefit package that automatically set the Assistant Fire Chiefs' salary at 16 percent above the base salary of a District Fire Chief. The agreerrient provides that the "benefit package is provided to the

26 No.09AP Assistant Fire Chiefs in consideration of the fact that the Assistant Fire Chief classification is a non-bargaining unit, executive level management employee with fiduciary duties and responsibilities to the City of Cincinnati." The Assistant Fire Chiefs testified that they did not agree. with characterizing them as "executive level management employees with fiduciary duties and responsibilities," but they had been negotiating and attempting to raise their level of pay and benefits for some time and felt allowing such language was their only option. (1124} The City contends the Assistant Fire Chiefs violate the spirit of the collective bargaining laws of Ohio when, to achieve personal gain, they subscribe to a written contract that explicitly justifies compensation due to their management level duties, but later repudiate the same terms to allow them to be a bargaining member of the union. The City argues that, at a minimum, the Assistant Fire Chiefs' actions in signing a written agreement contrary to their evidence before SERB is sufficient to demonstrate the evidence SERB relied on is unreliable, self-serving and unsupportable. {129} The trial court dismissed the City's argument, concluding the issue of whether each Assistant Fire Chief was a "management level employee" must be determined under the language of R.C. Chapter R.C (A) provides that "Chapter of the Revised Code prevails over any and all other conflicting laws, resolutions, provisions, present or future," except as R.C. Chapter 4117 or the General Assembly otherwise specifies. See also Erankiin Cty. Law Enforcement Assn. v. Fratenial Order of Police, Capital City Lodge No. 9 (1991), 59 Ohio St.3d 167, 170. Accordingly, the common pleas court did not err when it applied R.C. Chapter 4117, not the parties'

27 wo.osap agreement or a city ordinance, to determine whether the Assistant Fire Chiefs were management level employees. The City's second assignment of error is overruled. {1126} For the foregoing reasons, the City's two assignments of error are overruled, and the judgment of the Franklin County Court of Common Pleas is affirmed. Judgment affirmed. SADLER and CONNOR, JJ., concur.