[Cite as Cleveland Firefighters Assn. v. Cleveland, 2013-Ohio-5439.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 99999



                      ASSOCIATION OF CLEVELAND
                       FIREFIGHTERS, ETC., ET AL.
                                                            PLAINTIFFS-APPELLEES

                                                     vs.

                        CITY OF CLEVELAND, ET AL.
                                                             DEFENDANTS-APPELLANTS




                                             JUDGMENT:
                                              AFFIRMED


                                       Civil Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CV-778540

         BEFORE: E.A. Gallagher, J., Boyle, P.J., and Celebrezze, J.

         RELEASED AND JOURNALIZED:                           December 12, 2013
                                -i-
ATTORNEYS FOR APPELLANTS

Barbara A. Langhenry
Director of Law

By: Gary S. Singletary
Assistant Director of Law
Cleveland City Hall, Room 106
601 Lakeside Avenue
Cleveland, OH 44114-1077


ATTORNEYS FOR APPELLEES

Association of Cleveland Firefighters, etc., et al.

Thomas M. Hanculak
Mark V. Guidetti
Daniel A. Powell
Joseph W. Diemert, Jr. & Assoc.
1360 S.O.M. Center Road
Cleveland, OH 44124

Fraternal Order of Police, Lodge 8

Robert M. Phillips
Patrick J. Egan
Faulkner, Hoffman & Phillips
20455 Emerald Parkway Dr.
Suite 210
Cleveland, OH 44135
EILEEN A. GALLAGHER, J.:

       {¶1} Appellants, the city of Cleveland, Martin Flask and the city of Cleveland

Civil Service Commission (“the City”), appeal the order of the Cuyahoga County Court

of Common Pleas that found that City of Cleveland Charter Section 74-1 violates: (1)

Article XV, Section 10 of the Ohio Constitution, (2) R.C. 9.481 and (3) R.C. 124.45.

For the reasons set forth below, we conclude that Cleveland Charter Section 74-1

violates Article XV, Section 10 and R.C. 9.481. Therefore, we affirm the judgment of

the trial court.

       {¶2} Historically, residency requirements tethered to employment in the civil

service of the city of Cleveland date back to 1931.      Cleveland v. State, 8th Dist.

Cuyahoga Nos. 89486 and 89565, 2008-Ohio-2655, ¶ 7. In 2006, the General Assembly

enacted R.C. 9.481, which prohibited residency requirements as a condition of

employment by a political subdivision. In Cleveland, this court held that R.C. 9.481

did not supersede the city’s home-rule authority to enforce its existing residency

requirement. That decision was reversed on appeal to the Ohio Supreme Court based

upon its decision in Lima v. State, 122 Ohio St.3d 155, 2009-Ohio-2597, 909 N.E.2d

616. In Lima, the court concluded that because R.C. 9.481 was enacted pursuant to

Section 34, Article II of the Ohio Constitution, it prevailed over conflicting local

residency laws. The court stressed that enabling employees of political subdivisions to

live where they desire is a matter of statewide concern and that, generally, a political
subdivision could not “require” an employee to reside in a specific area. Cleveland’s

residency requirement, former city of Cleveland Charter Section 74(a), was struck down

by the decision in Lima.

       {¶3} On March 6, 2012, the city of Cleveland’s Charter was amended by a vote

of the electorate. The amended Charter Section 74-1, provides:

       A person who is a bona fide resident of the City of Cleveland for at least
       one year from the date of filing of an application for a promotional civil
       service examination, who receives a passing grade on the promotional
       examination, shall have added to his or her raw score five (5) points.

       {¶4} On March 20, 2012, the Association of Cleveland Firefighters, Local 93 of

the International Association of Firefighters and Frank Szabo (hereinafter referred to as

“Local 93”) filed a declaratory judgment against the City, the City’s Director of Public

Safety, Martin Flask and the City’s Civil Service Commission seeking a judicial

determination that Cleveland Charter Section 74-1 violates Article XV, Section 10 of the

Ohio Constitution, R.C. 9.481 and 124.45. Dispositive motions were filed and the trial

court denied the City’s motion for summary judgment and granted summary judgment in

favor of Local 93, holding that city of Cleveland Charter Section 74-1 violates Article

XV, Section 10 of the Ohio Constitution and R.C. 9.481. The City appealed that

judgment of the trial court, but this court dismissed that appeal, sua sponte, for lack of a

final appealable order because the trial court had not ruled on the question of whether

Cleveland Charter Section 74-1 violates R.C. 124.45. The trial court then issued an

order finding that Section 74-1 did violate R.C. 124.45 and the City appeals.
      {¶5} The City’s first assignment of error states:

      City Charter Section 74-1 does not violate Article XV, Section 10 of the
      Ohio Constitution and the trial court erred as a matter of law in concluding
      otherwise and granting summary judgment in favor of the Plaintiffs.

      {¶6} Appellate review of summary judgment is de novo, governed by the

standard set forth in Civ.R. 56. Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559,

833 N.E.2d 712, ¶ 8. Under Civ.R. 56, summary judgment is appropriate when (1) no

genuine issue as to any material fact exists, (2) the moving party is entitled to judgment

as a matter of law and (3) viewing the evidence most strongly in favor of the nonmoving

party, reasonable minds can reach only one conclusion that is adverse to the nonmoving

party. Appellate review of a trial court’s determinations regarding questions of law in a

declaratory judgment action are also reviewed de novo. N.E. Ohio Regional Sewer Dist.

v. Bath Twp., 8th Dist. Cuyahoga Nos. 98728 and 98729, 2013-Ohio-4186, citing Arnott

v. Arnott, 132 Ohio St.3d 401, 2012-Ohio-3208, 972 N.E.2d 586.

      {¶7} Legislation enacted by a municipality is presumed to be valid and the

enacting body is presumed to have acted constitutionally. Rispo Invest. Co. v. Seven

Hills, 90 Ohio App.3d 245, 253, 629 N.E.2d 3 (8th Dist.1993), citing Xenia v. Schmidt,

101 Ohio St. 437, 130 N.E. 24 (1920). This presumption applies to municipal charter

provisions. Id., citing State ex rel. Vana v. Maple Hts. City Council, 54 Ohio St.3d 91,

561 N.E.2d 909 (1990).

      {¶8} Further, the municipal legislation being challenged will not be invalidated

unless the challenger establishes that it is unconstitutional beyond a reasonable doubt.
Arnold v. Cleveland, 67 Ohio St.3d 35, 38-39, 616 N.E.2d 163 (1993).

      {¶9} Local 93 argues that Charter Section 74-1 violates Article XV, Section 10

of the Ohio Constitution which provides:

      Appointments and promotions in the civil service of the state, the several
      counties, and cities, shall be made according to merit and fitness, to be
      ascertained, as far as practicable, by competitive examinations. Laws shall
      be passed providing for the enforcement of this provision.

      {¶10} Local 93 argues that Charter Section 74-1 violates Article XV, Section 10

because it awards preference points on an arbitrary basis and effectively destroys the

competitiveness of the civil service promotional process by utilizing means other than

the examinee’s merit and fitness for promotion.

      {¶11} Article XV, Section 10 provides a fundamental framework and guideline

for all civil service appointments in Ohio. Internatl. Assn. of Firefighters Local Union

No. 136 v. Dayton, 107 Ohio St.3d 10, 2005-Ohio-5826, 836 N.E.2d 544, ¶ 33

(O’Donnell, J., dissenting). “Under this provision, before any appointment or promotion

in the civil service may be made, the authorities must ascertain: (a) the degree of the

candidate’s merit, and (b) the degree of his fitness.” State ex rel. King v. Emmons, 128

Ohio St. 216, 220, 190 N.E. 468 (1934).

      {¶12} The Ohio Supreme Court in King examined the meaning of the term

“merit and fitness” within Article XV, Section 10 and stated:

      According to Webster “merit” used as a noun means: “due reward or
      punishment; the quality of deserving well or ill; desert.” The original
      significance of the Latin root was to get a share. As a verb the word,
      “merit,” means: “to earn by service or performance; to have a right to claim
       as a reward.” The word, “fitness,” means: “adapted to an end, object or
       design; prepared; ready.” Synonyms given are “prepared,” “qualified,”
       “competent.”

Id. at 221.

       {¶13}    The court found that these qualities are to be ascertained as far as

practicable by competitive examination.         Id. at 221. The qualifying phrase takes

cognizance of the limitations of competitive examinations in determining qualifications

for certain types of positions. Id. at 221.

       {¶14} In the present case, the preference points in Charter Section 74-1 are only

awarded if a candidate already has attained a passing grade. The City argues that the

five preference points are a reasonable ingredient in the calculation of a passing

candidate’s merit and fitness for a supervisory position within the civil service of the

City. The City offered the deposition testimony of the Mayor’s Chief of Staff, Ken

Silliman, as an explanation of the value of the preference points awarded under Charter

Section 74-1 to determine a candidate’s merit and fitness. In addition to asserting that

the City benefits from supervisors who live within the boundaries of the city and are able

to respond faster to emergencies, Mr. Silliman stated:

       Another factor has to do with the kinds of challenges that supervisors in
       whatever city occupation, whether it be fire, police, public utilities, airport,
       community relations, supervisors in all those fields and other city fields are
       called upon to make difficult decisions to the extent that those supervisors
       have prior understanding and knowledge of the issues that arise in city
       neighborhoods. They are able to give a more complete and a more
       informed recommendation, or make a more complete or more informed
       decision. If you live in a city neighborhood, when you are not working at
       your city job, you might encounter neighbors when you are mowing your
       front lawn and those neighbors might tell you things about what’s
       happening in the neighborhood. You might see people in the grocery
       store in your neighborhood and people might converse about things that are
       happening in the neighborhood or give you perspective on what’s
       happening in the city that you would not get if you are living in a location
       outside the city. I believe that those kinds of experiences and those kinds
       of bits and pieces of knowledge that you acquire by * * * your status of
       resident are of value in city decision making and it allows you to have a
       more complete perspective on the issues that are presented to you for either
       recommendation or decision.

       {¶15} Mr. Silliman stated that, by living in the city, a candidate learns about the

people, their needs and their expectations of the City’s services.

       {¶16} The Ohio Supreme Court in King, recognized that some of the qualities

essential for a civil service position are impossible to measure with entire objectivity.

King, 128 Ohio St. 216 at 221-222, 190 N.E. 468. “[B]y practical construction, at least,

the term ‘examination’ has been made to mean much more than the testing of knowledge

by questions and answers.” Id. at 221.

       {¶17} In King, the court found that a statute that awarded an additional credit of

20 percent to the score of a passing candidate who was an honorably discharged veteran

who served during a time of war did not violate Article XV, Section 10. Although the

court noted a number of deficiencies in the measurement of the extent that a particular

veteran’s service would precisely impact his merit and fitness, the court found that,

       [i]n our opinion the weight prescribed in this statute is neither so arbitrary
       or so unreasonable as to violate the constitution. We may not strike down
       the statute merely because, in our judgment, different allowances might be
       wiser. While the benefit derived from military training varies, doubtless,
       from case to case, we find ourselves unable to say that its value is so little
       in any case as to make the action of the legislature arbitrary and void.
 King, 128 Ohio St. at 224-225, 190 N.E. 468.

      {¶18} A scoring preference on a competitive civil service exam is valid only if it

is allied to appropriate qualifications. Internatl. Assn. of Firefighters, 107 Ohio St.3d

10, 2005-Ohio-5826, 836 N.E.2d 544, at ¶ 20. Mr. Silliman suggested a tenuous link

between the benefits of residency and the merit and fitness of a civil service promotional

candidate. First, any argument by the City that it benefits from faster response times

under Charter Section 74-1 lacks merit because the rule does not require continued

residence within the City after a candidate files an application for a promotional civil

service examination. Furthermore, we find the benefits suggested by Mr. Silliman to be

measured through a completely arbitrary basis. As Local 93 points out, an employee

who resides within the City for 20 years but moves just prior to the one-year period set

forth in Section 74-1 would not receive any credit for his residency experience.    Local

93 also notes that the residency experience valued by Mr. Silliman will, in many cases,

have no practical impact because employees are often not stationed in the neighborhoods

where they reside. Finally, Local 93 argues, and we agree, that to the extent that a

promotional candidate might offer some de minimis benefit to his position based upon

his knowledge of the community, such knowledge could be fairly ascertained by a

competitive exam. We see no reason why a candidate’s knowledge of the needs and

expectations of the residents of the City cannot be ascertained competitively. Nor do we

see a valid relationship between the preference points awarded by Charter Section 74-1
and the merit and fitness of a promotional candidate.

       {¶19} For the foregoing reasons we find that Charter Section 74-1’s preference

points are arbitrary and not allied to appropriate qualifications.     We conclude that

Charter Section 74-1 violates Article XV, Section 10 of the Ohio Constitution.

       {¶20} Appellant’s first assignment of error is overruled.

       {¶21} The City’s second assignment of error states:

      City Charter Section 74-1 does not violate R.C. Section 9.481 and the trial
      court erred as a matter of law in concluding otherwise and granting
      summary judgment in favor of the Plaintiffs.

       {¶22} In Lima v. State, 122 Ohio St.3d 155, 2009-Ohio-2597, 909 N.E.2d 616,

the Ohio Supreme Court held that R.C. 9.481 prevails over municipal legislation enacted

pursuant to home-rule authority granted to municipalities in Article XVIII, Section 3 of

the Ohio Constitution. Local 93 argues that Charter Section 74-1 violates R.C. 9.481

which provides in pertinent part:

      (B)(1) * * * no political subdivision shall require any of its employees, as a
      condition of employment, to reside in any specific area of the state.

       ***

      (C) Except as otherwise provided in division (B)(2) of this section,
      employees of political subdivisions of this state have the right to reside any
      place they desire.

       {¶23} It is the position of Local 93 that, at the very least, Charter Section 74-1

grossly offends the spirit and legislative intent of R.C. 9.481 and creates a “de facto”

residency requirement. We agree.
       {¶24} The Ohio Supreme Court has held that “‘[m]unicipal charters must be

construed to give effect to all separate provisions and to harmonize them with statutory

provisions whenever possible.’” State ex rel. Finkbeiner v. Lucas Cty. Bd. of Elections,

122 Ohio St.3d 462, 2009-Ohio-3657, 912 N.E.2d 573, ¶ 31, quoting State ex rel.

Ditmars v. McSweeney, 94 Ohio St.3d 472, 477, 2002-Ohio-997, 764 N.E.2d 971.

Therefore, “[i]n the absence of express language in a charter demonstrating a conflict

with a statute, it is the duty of courts to harmonize the provisions of the charter and

statutes relating to the same matter.” Id., quoting State ex rel. Ryant Commt. v. Lorain

Cty. Bd. of Elections, 86 Ohio St.3d 107, 112, 712 N.E.2d 696 (1999). The presumption

thus is that there is no conflict. State ex rel. Julnes v. S. Euclid City Council, 130 Ohio

St.3d 6, 2011-Ohio-4485, 955 N.E.2d 363, ¶ 48.

       {¶25}   Undefined language used in a municipal charter must be construed

according to its ordinary and common usage. State ex rel. Commt. for the Proposed

Ordinance to Repeal Ordinance No. 146-02, W. End Blight Designation v. Lakewood,

100 Ohio St.3d 252, 2003-Ohio-5771, 798 N.E.2d 362, ¶ 19.

       {¶26} In claiming that Charter Section 74-1 does not violate R.C. 9.481 the City

asks this court to ignore the practical import of the charter amendment and construe the

language of R.C. 9.481 in a narrow fashion that we find to be beyond reason. The

reality is that civil service examinations in the city of Cleveland are hyper-competitive.

In Cleveland Firefighters v. Cleveland, 917 F.Supp.2d 668 (6th Cir.2012), the court

noted that 297 of the top 300 candidates who placed onto the eligibility list following a
Cleveland firefighter original hire examination received preference points due to

residency.   The remaining three received ten preference points for being disabled

veterans. An applicant who scored a perfect score on the exam could not place high

enough on the eligibility list to have a chance of being hired because he did not receive

any preference points. Id. at 676-677.

      {¶27} The City argues that Charter Section 74-1 does not require an employee to

reside in the City as a condition of employment and an employee’s continued

employment is not conditioned upon satisfying Section 74-1.          We disagree.     The

one-year residency requirement of Section 74-1 is significantly longer than the time

period between the announcement of a promotional exam and application filing date,

such that an employee cannot move into the City to satisfy Section 74-1 after the

announcement. It is clear that to have a reasonable opportunity of attaining a position in

the upper hierarchy of the City’s civil service, a candidate would be required to

perpetually satisfy Section 74-1.    As a practical matter, Section 74-1 establishes a

residency requirement as a condition of employment for positions requiring promotion

by competitive exam. Access to such positions is effectively denied to non-residents.

We find this to be a condition of employment for such positions and hold that Charter

Section 74-1 violates R.C. 9.481.

      {¶28} The City’s second assignment of error is overruled.

      {¶29} The City’s third assignment of error states:

      City Charter Section 74-1 does not violate R.C. Section 124.45 and the trial
      court erred as a matter of law in concluding otherwise and granting
      summary judgment in favor of the Plaintiffs.

      {¶30} Section 7, Article XVIII of the Ohio Constitution provides:

      Any municipality may frame and adopt or amend a charter for its
      government and may, subject to the provisions of section 3 of this article,
      exercise thereunder all powers of local self-government.

      {¶31} Section 3, Article XVIII provides:

      Municipalities shall have authority to exercise all powers of local
      self-government and to adopt and enforce within their limits such local
      police, sanitary and other similar regulations, as are not in conflict with
      general laws.

      {¶32} It is well-settled Ohio law that regulation of city civil service is within the

power of local self-government. State ex rel. Lentz, v. Edwards, 90 Ohio St. 305, 107

N.E. 768 (1914); Ohio Assn. of Pub. School Emps. v. Twinsburg, 36 Ohio St.3d 180, 522

N.E.2d 532 (1988). The Ohio Supreme Court in Lentz stated:

      The manner of regulating the civil service of a city is peculiarly a matter of
      municipal concern. One of the powers of local self-government is the
      power of legislating with reference to the local government within the
      limitations of the * * * [constitution]. As long as the provisions made in the
      charter of any municipality with reference to its civil service * * * do not
      conflict with any * * * [provision] of the constitution, they are valid and *
      * * discontinue the general law on the subject as to that municipality. That
      provisions adopted by a city might differ from the general laws within the
      limits defined was not only expected but the very purpose of the
      amendment was to permit such differences and make them effective.

      {¶33} Local 93 argues that Charter Section 74-1 is not a legitimate exercise of

the City’s home-rule authority because it violates Article XV, Section 10 of the Ohio

Constitution and R.C. 9.481. Based on our resolution of the first two assignments of
error, we agree and find Charter Section 74-1 invalid. Because we find Charter Section

74-1 to be unconstitutional, we need not examine whether it conflicts with R.C. 124.45.

      {¶34} The City’s third assignment of error is moot.

      {¶35} The judgment of the trial court is affirmed.

      It is ordered that appellees recover from appellants costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said lower 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.




EILEEN A. GALLAGHER, JUDGE

MARY J. BOYLE, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
