IN THE SUPREME COURT OF OHIO DAVID M. SEMAN Appellant, vs. LAKEWOOD CIVIL SERVICE COMMISSION, Appellee. CASE NO.: 'p z On Appeal from the Court of Appeals for Cuyahoga County, Ohio, Eighth Appellate District, Case No. CA-14-101277 NOTICE OF APPEAL OF APPELLAN'T, DAVID M. SEMAN BRENT L. ENGLISH LAW OFFICES of BRENT L. ENGLISH 820 Building 820 W. Superior Avenue, 9th Floor Cleveland, Ohio 44113-1818 (216 781-9917 (216 781-8113 (Fax Sup. Ct. Reg. No. 0022678 benglishkenglishlaw com Attorney for Appellant, David Ill Seman KEVIN BUTLER Law Director, City of Lakewood, Ohio 12650 Detroit Avenue Lakewood, Ohio 44107 (216 529-6040 (216 228-2514 (Fax Sup. Ct. Reg. No. 0074204 kevin.butler(a^lakewoodoh net Attorney for Appellee, Lakewood Civil Service Commission,',J li,=;s-'';.' `^;'- f < :,....;,,r...,.^... f.i^ ;t.i
NOTICE OF APPEAL OF APPELLANT DAVID M. SEMAN Appellant David M. Seman hereby gives notice of his appeal to the Supreme Court of Ohio from the Journal Entry and Opinion of the Court of Appeals for Cuyahoga County, Ohio, Eighth Appellate District affirming the judgment of the trial court, entered in Court of Appeals CA-14-101277 journalized on February 26, 2015. This case is one of public or great general interest and involves a substantial constitutional question. Respectfully submitted, + 4_ B^I^TTTL. GLISH ^'r LAW OFFICES OF BRENT L. ENGLISH T'he 820 Building 820 Superior Avenue West, 9th Floor Cleveland, Ohio 44113-1818 (216 781-9917 (216 781-811 J (Fax Sup. Ct. Reg. No. 0022678 benglishaenglishlaw com A ttorney for Appellant, David A.,5'eman -2-
CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing Notice of Appeal was served by first class U.S. Mail, postage prepaid, upon Kevin Butler, Esq., Law Director, City of Lakewood, Lakewood City Hall, 12650 Detroit Avenue, Lakewood, Ohio 44107 and was also served by e- mail to law a,lakewoodoh net on this ISIVI'day of Apri12015. -_----BREPd F L:. GLISx LAW OFFICES OF BRENT L. ENGLISH Attorney, for Appellant, David M. Seman -3-
I IIIIII lilll liii! IIlII IIII II^I Case: 2015 0588 Docket: 765416 Date Filed: 04/13/15 Description: Memorandum in support of jurisdiction Clerk s Office Scan Cover Sheet
IN THE SUPREME COURT OF OHIO DAVID M. SEMAN Appellant, vs. LAKEWOOD CIVIL SERVICE COMMISSION, Appellee. CASE NO.: On Appeal from the Court of Appeals for Cuyahoga County, Ohio, Eighth Appellate District, Case No. CA-14-101277 DAVID M. SEMAN'S MEMORANDUM IN SUPPORT OF JURISDICTION BRENT L. ENGLISH LAW OFFICES OF BRENT L. ENGLISH The 820 Building 820 Superior Avenue West, 9^' Floor Cleveland, Ohio 44113-1818 (216 781-9917 (216 781-8113 (Fax Sup. Ct. Reg. No. 0022678 ben lish(c'^r,english1aw.com Attorney for Appellant, David M. Seman KEVIN BUTLER, Law Director CITY OF LAKEWOOD, OHIO 12650 Detroit Avenue Lakewood, Ohio 44107 (216 529-6040 (216 228-2514 (Fax Sup. Ct. Reg. No. 0074204 kevin.butlerklakewoodoh net Attorney for Appellee, Lakewood Civil Service Commission ;-^,.u.a { ' - ;.. :^ <_..,.. ^.,, I^.c f' "J.^..., e^.... ^,; S r ^ ^ ^., i, ^ y o l..f t ` ^ `^,J. < s ^'^ ^ep.^ E,r^'
TABLE OF CONTENTS EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIA_L CONSTITUTIONAL QUESTION.:...1 STATEMENT OF THE CASE AND FACTS.... 3 ARGiJMENT IN SUPPORT OF PROPOSITIONS OF LAW...4 PROPOSITION OF LAW NO 1: A layoff of a classified civil servant made by someone who was not his appointing authority is illegal and violates the employee's property interest in his or her continued employment...4 PROPOSITION OF LAW NO. 2: Nebulous claims of unsupportable projected cost savings used to justify a job abolishment are insufficient to support the decision of abolish a classified civil servant's position for non-disciplinary reasons...8 PROPOSITION OF LAW NO. 2: It is unlawful to lay off a classified civil servant for reasons of economy where the action was not taken in good faith...9 CONCLLJSION............. 11 CERTIFICATE OF SERVICE......12 APPENDIX.....:...13... Journal Entry and Opinion of the Court of Appeals for Cuyahoga County, Ohio, Eighth Appellate District affirming the judgment of the trial court, entered in Court of Appeals Case No. CA-14-101277 journalized on February 26, 2015.......14 ii
EXPLANATION OF WHY THIS CASE IS A CAE OF PUBLIC OR GREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION This case presents three questions of significance regarding the rights of classified civil servants subject to a charter city's civil service rules. The first issue, which could affect thousands of classified service employees,i is whether it is lawful for a civil service commission to allow someone other than an appointing authority to decide whether a non-disciplinary layoff is proper. In this case that issue is particularly important because the Appellant's appointing authority expressly objected to the layoff. The second issue relates to what must be shown in order to abolish a classified civil servant's position allegedly for "reasons of economy." The third issue is whether a decision to lay off only one of 403 city employees allegedly for "reasons of economy" is justified where there is strong evidence that the mayor of the charter city specifically targeted the only laid off employee because he refused to sign off on hiring an unqualified employee in his department. Without doubt, classified civil servants have a property interest in their continued employment which cannot be affected without due process of law. See, Cleveland Bd. Of Education v. Loudermitlz 470 U.S. 532 539, 105 S.Ct. 1487 84 L Ed 2d 494 and Ohio Assn. of Pub. School Emp., AFSCME, AFL-CIO v. Lakewood City School Dist. Bd. of Educ., 68 Ohio St.3d 175, 624 N E 2d 1043 (1994 Until the Court of Appeals' decision in this case, it had been settled that layoffs of '. "I'here are 525,704 full-time state and local public employees in Ohio. 2013 Public Employment and Pavroll Data, State and Local Governments, Ohio, U.S. Census Bureau9 available at http://www2.census.gov/govs/apes/l Ostloh.txt. A vast majority of them are in the classified civil service.
classified civil servants had to be made by the "appointing authority." See, R.C.d 124.01(D ("Appointing authority" means the officer, commission, board, or body having the power of appointment to, or removal from, positions in any office, department, commission, board, or institution."; See, also, R.C. 124.341, where the grounds for such action by the appointing authority are descried. The Lakewood civil service commission's rules are consistent with state law. However, in this case the commission disregarded the express requirement that the layoff be made by the appointing authority and concluded that the mayor of Lakewood, despite the fact that he is unequivocally not the appointing authority, could nevertheless make the decision. Regrettably, the Court of Common Pleas affirmed as did the Court of Appeals, on the grounds that since the mayor was the chief executive officer of the city he was functionally equivalent to the "appointing authority." This logic is akin to allowing the governor of this state to decide whether a classified civil servant can be laid off, even if the appoiiiting authority by law disagrees. The appellate decision introduces the very real possibility of chaos on the civil service system in Ohio. Indeed, the Court of Appeals' decision radically changes the law related to classified civil servants and deprives them of process of law. As noted above, this case is particularly noteworthy because the actual appointing authority strongly opposed the decision to lay off the Appellant. This case also presents questions regarding how the merits of such a decision (if made by the appointing authority are to be reviewed. Here, the mayor of Lakewood (as the claimed appointing authority asserted that imminent Draconian reductions of general -2-
fund revenues justified the elimination of Appellant's position as the director of parks and public properties (a savings of about $75,000.00 including benefits. Shortly thereafter, the City projected that general revenue reductions were far lower than the mayor claimed and, in fact, they were nearly non-existent. Furthermore, the entire hourly work force of the City received a 1.5% "bonus" less than a year later. This case also presents an opportunity to address what evidence is necessary in order to show that the decision to lay off a classified civil servant was bona fide or was undertaken in bad faith for an ulterior purpose. The evidence shows that Lakewood's mayor was upset with the Appellant for not acceding to his demand that he approve an unqualified applicant for a job in his department and thus targeted Appellant's position for "elimination." To preserve the integrity of the civil service system and to protect the property interests that classified servants have in their continued employment, this Court must grant jurisdiction to hear this case and review the erroneous decision of the Court of Appeals. STATEMENT OF THE CASE AND FACTS David Seman, age 39, was a classified civil service employee of the City of Lakewood, Ohio for 14 years. In September 2012, while serving as manager of the City's division of parks and public properties, the mayor of Lakewood supposedly "eliminated" his job in a claimed cost-cutting move. The decision was made by the mayor of Lakewood who was unequivocally not Seman's appointing authority. The decision was opposed by Seman's actual appointing authority, the director of public works. Seman was one of 403 ern.ployees of Lakewood. His.j-qb_was the only one cut. -3-
Shortly thereafter, the City advertised for two similar jobs and filled them at a cost significantly in excess of Seman's salary and benefits. Furthermore, less than a year later, Lakewood gave every one of its hourly employees a significant bonus. Seman timely appealed to the City's civil service commission. That commission held an evidentiary hearing at which the actual appointing authority - the City's director of public works - testified that he did not make the decision to lay off Seman, and did not support that decision. Nevertheless, the commission affirmed the decision, claiming the mayor had the authority to act despite the charter provisions to the contrary. The commission also found the mayor's decision was supported by adequate evidence of projected financial hardship and rejected Seman's claim that the mayor had targeted Seman for termination due to interpersonal difficulties between them. affirmed. Seman appealed to the Court of Common Pleas of Cuyahoga County, Ohio which The Court of Appeals for the Eighth Appellate District likewise affirmed (in a decision issued February 26, 2015. Seman seeks review by this Court. ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW Proposition of law No. 1: A layoff of a classified civil servant made by someone who was not his appointing authority is illegal and violates the employee's property interest in his or her continued emplo ment David Seman was a classified employee of Lakewood and, as such, was protected from unlawful layoff or job elimination. He was laid off by the mayor of Lakewood - who was not his appointing authority within the Lakewood civil service scheme. Moreover, he was laid off despite the fact that liis actual appointing authority strongly -4-
opposed the action. Lakewood has a charter form of government and has authority to enact civil services laws and regulations. See, Chubb v. Ohio Bur. of Worker's Comp., 81 Ohio St.3d 275, 277-278, 690 N.E.2d 1267, 1998-Ohio-628. Lakewood created a civil service commission and that commission has adopted rules and regulations. These i-ules provide that "no person subject to the civil service laws of the City shall be... laid off... or reduced as an... employee in the civil service, in any manner or by any means other than those prescribed in the City Charter, in these rules or by another applicable and controlling law. (Emphasis supplied. If a layoff is contemplated, the commission's rules require as follows: (A 'fhe appointing authority shall file written notice with the Commission of the intention to lay-off personnel. All such notices shall state the title and salaiy of the position involved, the name of the employee to be laid off and the reason for such lay off; (B The appointing authority shall give each employee to be laid off written notice containing the... reason for lay-off, effective date of lay-off; right to employee to appeal to the Commission; time within which such appeal must be filed; procedure for reinstatement as defined in Section 1202. (Emphasis supplied. (LAKEWOOD CIV. SF,RV. CQ1Vlm. RULES, ART. 12. The commission's rules define an "appointing authority" as "ftjhe Director Board. or Commission having the power of appointment to, or removal from, the 12osition in any office or department as described in the City Charter." (Emphasis supplied. (LAKEWOOD CIV. SERV. COMM. RULES, ART. 21, DEFINITIONS AT P. 32. The appointing authority is clearly not the mayor of the City. Instead, the appointing authority as to Seman was the City's director of public works, Joseph Beno. The commission's rules do not authorize Lakewood's mayor to act as an?.:sber appointing authority: Instead, each director of the city has the power to "appoint, -5-
promote, transfer, reduce or remove heads of divisions and officers and employees within such director's department." (Eniphasis supplied. (LAKEWOOD CHARTER, ART. IV, SECTION 2. The commission's rules provide that the "a ointing authority shall determine the number of employees within each class to be laid off ' and that "all lay-offs within each such class" must proceed in a particular order (ColutlvtISSIoN's RULES, ART. 12, 1210. The Lakewood charter provides that the City may also exercise its powers in a manner consistent with general law, which is defined to mean the constitution and statutes of the state of Ohio. R.C. 124.321, applicable to state employees, provides a roadmap. It permits layoffs for a "lack of funds," a "lack of work" or because of "abolishment of positions." Yachatain v. Cleveland Civ. Serv. Comm., 8th Dist. Cuyahoga No. 99802, 2013-Ohio-4485, 2013 WL 5594452 at 9. The State Employees Relation Board ("SERB" has enacted rules dealing with layoffs and abolishment of positions for cases before it. These rules set forth rules of decisioii which the Lakewood Commission should have followed. In this case, Seman's appointing authority had the duty to demonstrate by a preponderance of the evidence that he eliminated Seman's position for "reasons of economy." See, Penrod v. Ohio Dept. ofadm. Servs., 113 Ohio St.3d 239, 864 N.E.2d 79, 2007-Ohio-1688, 18, citing State ex rel. Bispeck v. 7rumbull Cty. I3cl of Commrs., 37 Ohio St.3d 26, 28, 523 N.E.2d 502 (1988. It is clear the appointing authority did not make the decision and thus the decision was unlawful.2 2 Even if the appointing authority had correctly followed the steps to eliminate Seman's job, his decision would have been unsustainable if it was made in bad faith or was done to subvert the civil service system. State ex rel. Gould v. Ohio.Rureau of -6-
While appellate review is limited to whether the trial court abused its discretion, Kisil v. Sandusky, 12 Ohio St.3d 30, 34, 465 N.E.2d 848 (1984, reversal is appropriate where the trial court "applies the wrong legal standard, misapplies the correct legal standard, or relies on clearly erroneous findings of fact." Thomas v. Cleveland, 176 Ohio App.3d 401, 2008-Ohio 1720, 892 N.E.2d 454. This should certainly happen here since the decision of eliminate Seman's position was not made by the appointing authority and was, in fact, opposed by the appointing authority. This Court has held that "the power of removal is regarded as incident to the power of appointment."' State ex f el. Minor v. Eschen, 74 Ohio St.3d 134, 139, 656 N.E.2d 940 (1995. Becatise the Lakewood charter assigns responsibility to appoint a person to "any office or department" to the "director of a department," it follows that only that director, and not a mayor of the city, has the power to layoff such persons. The commission ignored the Lakewood charter in finding that the mayor had the ultimately authority in making employment decisions for the city. It erroneously declared the mayor to be the "appointing authority" despite the unequivocal provisions of the charter to the contrary. The trial court and the court of appeals inexplicably followed suit. However, this makes a mockery of the civil service law and renders the protection of classified civil service status meaningless and thereby violated Seman's property right to his continued employment without due process of law. Cleveland Bd. Of Education v. Louder mill, 470 U.S. 532, 539, 105 S.Ct. 1487, 84 L.Ed.2d 494; Ohio Assn. ofpub. Employment Services, 28 Ohio App.3d 30, 501 N.E.2d 648 (10tt' Dist, 1985. Bad faith may be shown by evidence that the appointing authority handpicked some civil servants in a plan to avoid the seniority system and retention rights provided by statute or if the appointing authority acted upon political or personal motivation. Blinn v. Ohio Bureau of EmplQyment Services, 29 Ohio App.3d 77, 502 N.E.2d 665 (l Oth Dist. 1985. -7-
School Emp., AFSCME, AFL-CIO v. Lakewood City School Dist. Bd. of Educ., 68 Ohio St.3d 175, 624 N.E.2d 1043 (1994 (classified civil servants possess propei-ty rights in their continued employment. Proposition of law No. 2: Nebulous claims of unsupportable projected cost savings used to justify a job abolishment are insufficient to support the decision of abolish a classified civil servant's position for non-disciplinary reasons. The commission's rules contain no substantive standard for deterrnining the validity of the employment action. R.C. 124.321, which applies by reference to the commission's decision, provides that the appointing authority has the burden to demonstrate by a preponderance of the evidence that a job abolislunent was undertaken due to a lack of continuing need for the position based on: a reorganization for the efficient operation of the appointing authority; reasons of economy; or a lack of work expected to last one year or longer.... and only if appointing authority has substantially complied with procedural requirements for such abolishment. R.C. 124.321(D. In this case, the actual appointing authority - Public Works Director Joseph Beno - adduced no evidence that Seman's job abolishment occurred because of a lack of continuing need for Seman's position or for reasons of economy. However, the mayor attempted to justify his decision on economic grounds, by contending Lakewood anticipated a significant reduction in its general fund revenues in 2013. The mayor claimed there might be a reduction of up to $2.7 million in general fund revenues for 2013 resulting from a loss of estate taxes, commercial activity taxes, and property taxes. The record shows his projections were wildly inaccurate. Within two months of Seman being laid off, the City published a projection of its general fund revenue for 2013, which showed that the $2.7 millior.y reduction would -8-
actually be only $656,000.00. What's more, in September 2013 the City paid every one of its hourly workers a 1.5% bonus, which cost the City $340,000.00. At the hearing on Seman's appeal, the mayor claimed it was certain the City would receive no estate tax revenues in 2013. However, by September 2013 the City received $600,000.00 from such revenues, from which it paid the bonuses described above. Even if the City was justified in cost-cutting, the action taken against Seman was unlawful. The commission's rules required the layoffs occurred in the following order: Employees serving temporary or emergency appointments; seasonal employees; part-time employees, provisional employees, employees certified from eligible list(s that have no completed their probationary period; and, [finally,] full time permanent employees certified from eligible list that have the least amount of seniority. (COMMISSION'S RULES, ART. 12, 1201, "ORDER OF LAY-OFF." However, only Seman's full-time position was abolished, leaving all other employees, including party time and temporary employees untouched. As a classified civil service employee, Seman was entitled to the protections of the law including, specifically, a prohibition from being laid off unless such was done in accordance with the City's charter, the commission's rules, and "other applicable and controlling law. (COMMISSION'S RULES, ART. 1, 107(A, P. 2. Pronosition of Law No. 3: It is unlawful to lay off a classified civil servant for reasons of economy where the action was not taken in good faith Seman's job was not eliminated in good faith. In order to be lawful, a job abolishment must be undertaken in good faith and not as a sxtbterfuge for discipline.lzoc. 124.321(D (2. Good faith means "honesty in fact in the conduct or transaction concerned."' C'avserlie V. -9-
.S'hell Oil Co., 121 Ohio St.3d 55, 57, 2009-Ohio-3, 902 N.E.2d 1, 10. "A lack of good faith is the equivalent of bad faith, and bad faith, although not susceptible of concrete definition, embraces more than bad judgment or negligence. It imports a dishonest purpose, moral obliquity, conscious wrongdoing, breach of a known duty through some ulterior motive or ill will partaking of the nature of fraud. It also embraces actual intent to mislead or deceive another." Hoskins v. Aetna Life Ins. Co., 6 Ohio St.3d 272, 276, 452 N.E.2d 1315 (1983. Lakewood's mayor targeted Seman's position for "elimination" in bad faith. Seman had specific construction. expertise which the City need. (Tr. 46; 215. Seman had specific expertise which the City clearly needed (Tr. 270. When the public works director brought this to the mayor's attention, he was told "we'll deal with it." Sure enough, shortly after Seman's job was supposed "eliminated" his job functions were assigned to others. Furthermore, to "deal with" the loss of Seman's expertise, two new positions were created and filled. The job descriptions for these jobs included most of the construction work and management that Seman had previously done. Seman showed that the rnayor had an animus against him and motivation to target him. He described a situation where he was authorized to hire a maintenance person for his division. Seman wanted to make sure that the person hired was fully qualified for the position. He put together a "rather extensive test for the maintenance position" Seman interviewed four candidates who were already working for the City, but none of them passed the test. After the mayor had the two most qualified candidates evaluated by someone else, a recommendation that neither were qualified was provided. Seman was then summoned to the mayor's office and told that the mayor intended to hire one of the persons on the list. Seman told him the candidate was not qualified and said he would -10-
refuse to approve the hire. Shortly thereafter, Seman's job was "eliminated" and the unqualified candidate was hired. The public works director (Seman's actual appointing authority testified that he told the mayor that eliminating Seman's position was ill-advised but the mayor was "having no part of it." What's more, in 2011 Seman was visited by the City's human resource director about a "time card investigation" of his employees. Seman was questioned him about overtime for various employees and he was accused him of being in cahoots with another employee who was getting overtime and allegedly sharing it with Seman. Seman said this allegation was "ludicrous" and offensive. He was asked to submit to a polygraph examination, to which he readily agreed. The City then backed down and was told the mayor wanted this allegation to be a "teaching experience." This evidence supports Seman's position that the mayor's decision to "eliminate" his position as a supposed cost-cutting move was not made in good faith; rather it was made in bad faith and as a subterfuge or a ruse to settle a score by the mayor. CONCLUSION For the reasons discussed above, this case involves matters of public and great general interest and a substantial constitutional questions. Accordingly, Appellant, David Seman asks this Court to accept jurisdiction so that the important issues may be reviewed on their merits. - 11-
Respectfully submitted, 1. GLISH LAW OFF'ICES OF BRENT L. ENGLISH 820 Building 820 W. Superior Avenue, Suite 900 Cleveland, Ohio 44113-1818 (216 781-9917 (216 781-8113 (Fax Sup. Ct. Reg. No. 0022678 benglish@englishlaw.com A ttorneyftlr Appellant, David M. Seman CERTIFICATE OF SERVICE I hereby certify that a true and complete copy of David M. Seman Memorandum in Support of Jurisdiction was served upon Kevin Butler, Esq., Law Director, City of Lakewood, Lakewood City Hall, 12650 Detroit Avenue, Lakewood, Ohio 44107 by first class U.S. Mail, postage prepaid and by e-mail to law lakewoodoh.net on this 13th day of Apri12015. BRENT L. GLISH LAW OFFICES OF BRENT L. ENGLISH Attorney for _Appellant, David M Seman -12-
APPENDIX -13-
1 N Court of Z1ppeats of 1fjio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA JOURNAL ENTRY AND OPINION No. 101277 DAVID M. SEMAN PLAINTIFF-APPELLANT vs. LAKEWOOD CIVIL SERVICE COMMISSION DEFENDANT-APPELLEE JUDGMENT: AFFIRMED Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-13-807414 BEFORE: Keough, J., Jones, P.J., and Stewart, J. RELEASED AND JOURNALIZED: February 26, 2015,^. -14-
ATTORNEY FOR APPELLANT Brent L. English Law Offices of Brent L. English 820 Superior Avenue West The 820 Building, 9' Floor Cleveland, Ohio 44113 ATTORNEY FOR APPELLEE Kevin M. Butler Law Director City of Lakewood 12650 Detroit Avenue Lakewood, Ohio 44107 -i- -15-
;. -^.,. KATHLEEN ANN KEOUGH, J.: { 1} Appellant David M. Seman ("Seman" appeals from the trial court's judgment affirming the decision of the Lakewood Civil Service Commission (the "Commission" that upheld Seman's layoff from his position as manager of parks and public property for the city of Lakewood. Finding no merit to the appeal, we affirm. I. Background {112} Seman began his employment with the city of Lakewood in 1998 as a groundskeeper. He was a classified civil service employee. In 2006, he was promoted to manager of the division of parks and public property within the ^ department of public works. He was laid off in September 2012, when his position was eliminated. {13} Seman appealed his layoff to the Commission. After a hearing, the Commission issued findings of fact and upheld Seman's layoff. The Commission found that Michael Summers, the mayor of Lakewood, as the proper appointing authority, made the decision to eliminate Seman's position for economic reasons. The Commission further found that the abolishment of Seman's position was not motivated by any personal animosity of the mayor toward Seman, as argued by Seman. The Commission stated: Based on the evidence presented **", the Commission finds that Mr. Seman's termination was for reasons of economy, which ^ outweighs Mr. Seman's evidence and arguments that the city's ^-' -16-
layoff was made in bad faith or as a subterfuge in order to circumvent the civil service system. [The city has met its burden to demonstrate by a preponderance of the evidence that the layoff by abolishment of1vlr. Seman's position was due to a lack of continuing need for the position based on a reorganization for the efficient operation of the city and for reasons of economy; and not as a subterfuge in order to circumvent the civil service system. { 4} Seman appealed the Commission's decision to the court of common pleas pursuant to R.C: Chapter 2506. The trial court upheld the decision of the Commission, finding that the mayor had the authority to elimi.nate Seman's position, there was no evidence the mayor was exacting revenge by targeting Seman for layoff, and the elimination of Seman's position was for economic reasons. The court stated: The record stands on its own: Mr. Seman was the junior=most manager within Lakewood's public works department, and as the manager with the least seniority, under Lakewood's civil service rules, his was the position eligible for elimination. In abolishinghis position, Lakewood's mayor followed the civil service rules on the order of layoffs. There was no design to circumvent civil service protections against undue discipline. The mayor had no intent to discipline Mr. Seman or terminate him for cause; this was, in the end, simply a layoff. As the chief executive of the city, the mayor was gravely concerned about state budget cuts and their impact on the city's service to residents, and he made the calculated decision to eliminate or leave unfilled several middle-management positions, Mr. Seman's among them, in order to achieve cost reductions. -17-
i II. Standard of Review { 5} The applicable standards of review for trial and appellate courts in R.C. Chapter 2506 administrative appeals are different. Henley v. Youngstown Bd. of ZoningAppeals, 90 Ohio St.3d 142, 147, 2000-Ohio-493, 735 N.E.2d 433. The common pleas court is to consider the "whole record," including any new or additional evidence admitted under R.C. 2506.03, and determine whether the administrative order is unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable, and probative evidence. Id. R.C. 2506.04 gives an appellate court a more limited power to review the judgment of the common pleas court only on questions of law, and does not include the same extensive power to weigh the evidence as is given to the common pleas court. Our more limited review requires us to affirm the common pleas court unless we find that the trial court abused its discretion in concluding that the administrative decision is supported by a preponderance of reliable, probative, and substantial evidence. Henley at 147, citing Kisil v. Sandusky, 12 Ohio St.3d 30, 34, 465 N.E.2d 848 (1984; Deem v. Fairview Park, 8th Dist. Cuyahoga No. 93135, 2009-Ohio-6314, 9. Absent an abuse of discretion, a court of appeals may not substitute its judgment for that of an administrative agency or the common pleas court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621, 614 N.E.2d 748 (1993. -18-
..; _ ^ III. Law and Analysis A. The Proper Appointing Authority { 6} The city of Lakewood has adopted a charter form of government pursuant to the home-rule amendments of the Ohio Constitution. Lakewood's charter establishes various departments, including the department of public works, in which Seman worked as division manager. The charter provides that "the head of each department shall be a director, appointed by the Mayor, and shall serve at the Mayor's pleasure ***." The charter further provides that "[e]ach director shall, subject to applicable civil service regulations, appoint, promote, transfer, reduce or remove heads of divisions and officers and employees within such director's department." Lakewood Charter, Art. IV, 2. { 7} The charter also provides for a three-member Civil Service Commission. The Commission is empowered to "make, promulgate, prescribe and enforce rules for the appointment, promotion, transfer, lay-off, reinstatement, suspension and removal of employees in the classified service * * *." Lakewood Charter, Art. XI, 4. { S} The Commission's rules provide that "no employee * * * shall be * * * suspended or removed, except as provided in the section entitled lay-off * * * and the applicable conditions of appointment and continued employment established by any provision of the Charter ***." Commission's Rules, Art. 9. { 9} "Appointing authority" is defined in the Commission's rules as "[t]he -19-
^. (^. Director, Board *** or Commission having the power of appointment to, or removal from, the position in any office or department as described in the City Charter." Commission's Rules, Art. 21. { 10} The Commission found that the mayor was the proper appointing authority responsible for Seman's layoff due to the elimination of his position. The Commission stated that it interpreted its rules to find that "Mayor Summers was the appointing authority ultimately responsible for Mr. Seman's layoff' because the mayor "by city charter supervises the administration of the affairs of the city, approves of all hires and promotions, and removes appointees as authorized by law." { 11} Seman contends in his first assignment of error, however, that his layoff due to the elimination of his position was invalid because the decision to eliminate his position was not made by the proper "appointing authority." Specifically, Seman contends that in light of the city charter and the Commission's rules, his boss, Joseph Beno, as director of the public works department, was the "appointing authority" with respect to his position and, accordingly, the only individual who could decide to eliminate his position. Seman argues that because it is undisputed that the mayor, rather than Beno, made the decision to eliminate his position, the decision was not made by the proper "appointing authority" and, accordingly, the trial court erred in affirming the Commission's decision. -20-
{ 12} We are not persuaded. Lakewood's charter gives the mayor broad authority over the affairs of the city as the city's chief executive: The Mayor shall be the chief conservator of the peace within the City; shall supervise the administration of the affairs of the City; shall see that all ordinances of the City are enforced; shall recommend.to the Council for adoption such measure as they may deem necessary or expedient; shall keep Council advised of the h.nancial condition and future needs of the City; shall prepare and submit to Council such reports as may be required by the body; and shall exercise such powers and perform such duties as are conferred or required by this Charter, by ordinance or resolution of Council, or by general law. (Emphasis added. Art.I, Sec. 6. {1[13} As Seman points out in his brief on appeal, the charter limits the Mayor's appointment powers to department heads, except as "otherwise provided for by general law or ordinance." Art. I, Sec.4. The charter defines the term "general law" to include state statutes, as well as the state constitution and any rules and regulations promulgated pursuant to the constitution and statutes. Art. I., Sec. 3. { 14} R.C. 733.03 defines the general powers of mayors in cities as follows: The mayor shall be the chief conservator of peace within the city. He may appoint and remove the director of public service, the director of public safety, and the heads of the subdepartments of public service and public safety, and shall have such other powers and perform such other duties as are conferred and required by law. (Emphasis added. { 15} The Ohio Supreme Court has held that "municip al charters must be -21-
construed to give effect to all separate provisions and to harmonize them with statutory provisions whenever possible." State ex rel. Fattlar v. Boyle, 83 Ohio St.3d 123, 127, 698 N.E.2d 987 (1998. Additionally, language used in a municipal charter should be construed according to its ordinary and common usage. Id. {j(16} Applying these rules of construction, we find that under the Lakewood charter, Mayor Summers and his directors have concurrent authority to appoint division heads such as Seman. The applicable charter provisions give the mayor the authority to appoint directors and to exercise other powers as conferred by "general law." R.C. 733.03, as general law, gives mayors of municipalities the authority to appoint "the heads of the subdepartment of public service and public safety." Seman, as manager of the division of parks and public property within the department of public works, was clearly the head of a subdepartment within the department of public service. Accordingly, the mayor had the authority to appoint him to his position, even though the charter also provides that the directors of each department also have the authority to appoint heads of divisions. { 17} The power to appoint also implies the power to terminate. Minor v. Eschen, 74 Ohio St.3d 134, 139, 656 N.E.2d 940 (1995. Accordingly, because Mayor Summers had the authority to appoint Seman to his position, he also had the authority to lay him off because his position was eliminated. -22-
{ 18} The record reflects that the mayor directed all directors, including Beno, to cut $100,000 from their departmental budgets. Beno's proposed cuts fell short of the $100,000 goal, however, and, although Beno disagreed that a layoff was the best cost-cutting measure, the mayor determined that elimination of the public works division manager position was necessary to reach the goal. Although the mayor could have ordered Beno to terminate Seman, the mayor took it upon himself to advise Seman that his position was being eliminated. { 19} Because Mayor Summers was a proper "appointing authority," the trial court did not err in affirming the Commission's decision that Summers had the authority to terminate Seman's position. The first assignment of error is therefore overruled. B. 'Economic Justification for Elimination of Seman's Position {120} In his second assignment of error, Seman contends that the trial court abused its discretion by affirming the Lakewood Civil Service Commission's decision that upheld the elimination of his position. Seman contends that the Commission's decision was illegal, arbitrary, capricious, unreasonable, and not supported by a preponderance of substantial, reliable, and probative evidence. Specifically, he argues that there was no evidence to support the city's contention that his position was eliminated "for reasons of economy" or due to a reorganization of the public works department for operational efficiency. See R.C. 124.321(D(2(a. -23-
-.` { 21} Lakewood's charter established a civil service system for the meritbased protection of municipal employees and authorizes the Commission to make and enforce rules for, among other things, layoffs of employees. The Commission's rules are silent as to what constitutes "reasons of economy," but under the Ohio Revised Code, reasons of economy relating to a job abolishment may be based on "the estimated amount of savings with respect to salary, benefits, and -other matters associated with the abolishment of the position," when the employer's funds have been "reduced by an executive or legislative action, or the appointing authority has a current or projected deficiency in funding to maintain current or projected levels of staffing and operations." R. C. 124.321(D(2(a. { 22} The Commission's rules are likewise silent as to the burden of proof when a layoff is created by the abolishment of a position, but the city accepted the burden found in state administrative law that the appointing authority must demonstrate by a preponderance of the evidence that the job abolishment was due to a lack of continuing need for the position based on, among other things, reasons of economy. Ohio Adm.Code 124-7-01(A(1. {123} "`The critical guideline in the abolition of a civil service position is that -it must be done in good faith and not as a subterfuge."' Penrod v. Ohio Dept. of Adrn. Serv., 113 Ohio St.3d 239, 2007-Ohio-1688, 864 N.E.2d 79, 117, quoting Weston v. Ferguson, 8 Ohio St.3d 52, 54, 457 N.E.2d 818 (1983. "If an -24-
appointing authority uses a job abolishment as a pretense to target a specific employee for termination, the abolishment should not withstand scrutiny.".zd. It is the employee's burden to demonstrate the appointing authority's bad faith by a preponderance of the evidence. Ohio Adm.Code 124-7-01(A.. {T24} In nearly seven hours of testimony before the Commission that produced a 548-page record, the Commission heard evidence and reviewed documents that demonstrated that through 2012, Lakewood had experienced a significant loss of revenue due to a combination of the economic downturn, reduction in state funding, and reduced property tax revenues. There was also evidence that the city would continue to experience a reduction in revenues in 2013. The Commission found that the city's evidence regarding its financial position in 2012 and 2013 was "compelling and unrebutted." {1125} The mayor testified that the city evaluated its organizational structure in the public works department to prepare for the impending decline in revenues. Prior to Seman's termination, the mayor decided that a fleet division manager who retired would not be immediately replaced, and a retiring manager in engineering was to be replaced with someone who could take on a broader role, thus limiting the number of managers in the public works department. The mayor testified that although the city had lost many employees due to pension-reform-related retirements in 2012, fewer managers than service-level employees had left. Thus, in the fall of 2012, he decided to -25-
^`. abolish another division manager position in the public works department due to the expected shortfalls in revenue. Because Seman had the least seniority among his class of managers in the public works department, his position was eliminated and he was laid off. {1126} Seman attempted to show that the city had adequate resources to keep his position, and that the reorganization of the public works department had not been designed to result in cost savings. Specifically, Seman pointed to two job postings for "group leaders" within his division, and argued that these were two "new" positions and thus, there could be no economic justification for abolishing his position. The city's evidence demonstrated that the group leader positions were not new positions, however, as argued by Seman, but had existed during Seman's employment with the city, and the duties and compensation associated with those positions had rotated among the employees. The city's evidence further established that the group leader positions would not be fi.lled by new hires, but that the city was reorganizing the division for operational efficiency to have group leader duties permanently designated to specific current employees, rather than having the duties rotated. The evidence demonstrated that while this change would result in a marginal pay increase to the two employees, the overall effect would be cost-neutral for the city. { 27} In light of this evidence, the Commission found that the city had / met its burden of demonstrating that Seman's position was abolished for -26-
... ^i financial reasons and a reorganization designed to enhance the efficient operation of the city. Our review of the record demonstrates that the trial court did not abuse its discretion in finding that the Commission's decision was supported by a preponderance of reliable, probative, and substantial evidence. { 28} Seman argues on appeal, however, as he did before the trial court, that even if the city were justified in laying off employees or abolishing certain jobs based on reasons of economy, his job was improperly targeted because a number of other employees, including part-time employees, should have been laid off before him. As support for his argument, Seman cited Commission Rule Art. 12, 1201 regarding the "Order of Lay-off', which states: The appointing authority shall determine the number of employees within each class to be laid off. All lay-offs within each class must proceed in the following order: A. Employees serving temporary or emergency appointments; B. Seasonal employees; C. Part-time employees; D. Provisional appointees who have not completed their probationary period; E. Provisional appointees who have completed their probationary period; F. Employees certified from eligible list who have not completed their probationary period; G. Full-time permanent employees certified from eligible list who have the least amount of seniority. <<. '..., -27-
;^. { 29} Seman's layoff was in accord with the rule. The record reflects that his position was in the class called division manager within the public works department, and he was the least senior division manager within the department. There were no part-time employees, seasonal division managers, provisional employees, or employees who h.ad not completed their probation in Seman's class. Accordingly, in the class of division manager within the department of public works, Seman was the first person eligible to be laid off. { 30} The second assignment of error is therefore overruled. C. A Good Faith Termination {131} In his third assignment of error, Seman contends that the trial court erred in affirming the Commission decision upholding his termination because his position was not terminated in good faith. Specifically, Seman contends that the purported economic justification for the eli.mination of his position was a hoax, and that the mayor targeted him for termination because of a personal animus toward him. { 32} Seman testified before the Commission about a situation where he disagreed with the mayor as to who would be hired for a maintenance position in his division. He also testified about an incident where he was investigated for alleged improprieties in completing time cards. But the evidence demonstrated that Seman was never disciplined for the time card incident, the mayor was not -28-
_...:, involved in the time card investigation, and Seman was found both by the city and the Commission not to have committed any wrongdoing at all. Nor was there any evidence in the record that the mayor's initial disagreement with Seman over the promotion of an internal parks employee to the maintenance position led to Seman's termination. {1[33 Furthermore, as the Commission found, even if the mayor had some personal animosity totivard Seman (a claim the Commission rejected-, there was no evidence that such alleged animosity was in any way connected to Seman's termination. Rather, the evidence established that Seman was the junior-most division manager within the public works department and, thus, that the mayor followed the Commission's rules on the order of layoff when making his decision. Further, the mayor testified that the seasonal nature of work within the city's parks made his decision to eliminate the position of division manager in the parks and public property division less impactful on city operations as winter approached. { 34} Seman asserts that the mayor's bad faith is apparent because he was the "only" person laid off. This argument is without merit. The record shows that the city laid off more than 200 employees between 2008 and Seman's termination. The record also reflects that the city put on a hiring freeze in 2011 and lost 21 jobs by attrition in 2011 and 2012. Furthermore, the mayor testified that not long before Seman's position was abolished, he laid off a cabinet-level -29-
director in the housing division, and then consolidated that director position with another director position. Contrary to his assertion, Seman certainly was not alone in losing his job. { 35} On this record, there is no evidence whatsoever to support Seman's assertion that the mayor's stated financial reasons for the abolishment of Seman's position were merely a subterfuge to terminate Seman out of personal animosity. Accordingly, the trial court did not abuse its discretion in affirming the Commission's decision, and the third assignment of error is overruled. }136} Judgment affirmed. It is ordered that appellee recover from appellant costs herein taxed.,-- The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate be sent'to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. "&-k KATHLEEN ANN KEOUGH, GE LARRY A. JONES, SR., P.J., and MELODY J. STEWART, J., CONCUR (=llel1 AND JOURPlALlZED PER APP.R. 22(C FEB 26 20115 i" CUYAHOGA COUNTY CLERK OF THE RT OF 4PPEALS By DepG'ty -30-