      [Cite as State ex rel. Powell v. Mt. Healthy, 2013-Ohio-4873.]

                        IN THE COURT OF APPEALS
               FIRST APPELLATE DISTRICT OF OHIO
                         HAMILTON COUNTY, OHIO




STATE OF OHIO EX REL. JOSEPH R. :                           APPEAL NO. C-130116
POWELL,                                                     TRIAL NO. A-1205217
                                :
      Relator-Appellant,
                                :
  vs.                                                          O P I N I O N.
                                :
CITY OF MOUNT HEALTHY,
                                :
JOSEPH T. ROETTING,
                                :
WILLIAM KOCHER,
                                :
  and
                                :
MOUNT HEALTHY CIVIL SERVICE
COMMISSION,                     :

     Respondents-Appellees.                      :




Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: November 6, 2013


FOP/Ohio Labor Council, Inc., Douglas J. Behringer, General Counsel, and Paul L.
Cox, Chief Counsel, for Relator-Appellant,

Schroeder, Maundrell, Barbiere & Powers and Lawrence E. Barbiere, for
Respondents-Appellees.




Please note: this case has been removed from the accelerated calendar.
                       OHIO FIRST DISTRICT COURT OF APPEALS




HILDEBRANDT, Judge.

       {¶1}    Relator-appellant Joseph R. Powell appeals the judgment of the

Hamilton County Court of Common Pleas granting the motion for judgment on the

pleadings filed by respondents-appellees City of Mt. Healthy, Mayor Joseph T.

Roetting, Safety Service Manager William Kocher, and Mt. Healthy Civil Service

Commission (collectively, “Mt. Healthy”) in a mandamus action.

                           Powell’s Asserted Right to Promotion

       {¶2}    Powell is a police officer for Mt. Healthy.         In 2012, he filed a

mandamus action seeking promotion to the rank of sergeant.

       {¶3}    In his complaint, Powell alleged that the Mt. Healthy Civil Service

Commission had conducted an examination for the rank of sergeant. According to

the complaint, the commission had graded the examination and had certified an

eligibility list containing three officers. Of those three, Powell had scored second.

       {¶4}    Powell further alleged that, in July 2011, Greg Nolte had been

promoted to sergeant from the eligibility list, thus making Powell the highest rated

officer on the list.   Then, in March 2012, Sergeant John Wert retired.           Powell

maintained that Mt. Healthy had a duty under R.C. 124.44 to promote him to

sergeant after Wert’s retirement.

       {¶5}    Mt. Healthy refused to make the appointment, contending that the

city did not need another sergeant in the force. It filed an answer and attached a

copy of its collective-bargaining agreement (“CBA”) with the police union.

       {¶6}    Section 8.1 of the CBA stated that “[t]he Employer’s exclusive rights

include[d],” but were not limited to, a number of enumerated items. Among those

were the right to:



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                     OHIO FIRST DISTRICT COURT OF APPEALS


       [d]etermine matters of inherent managerial policy, which include, but

       are not limited to areas of discretion or policy such as functions and

       programs, standards of service, overall budget, use of technology and

       organization structure * * *.

       {¶7}    The CBA then listed various managerial rights, including the right to

“[s]uspend, discipline, demote, or discharge, for just cause, or lay off, transfer,

assign, schedule, promote, or retain employees * * *.” Based on this contractual

language, Mt. Healthy filed a motion for judgment on the pleadings, contending that

it had retained the right to determine the appropriate complement of sergeants in

the police force. The trial court granted the motion, and Powell has appealed.

       {¶8}    In three related assignments of error, Powell argues that the trial

court erred in granting Mt. Healthy’s motion for judgment on the pleadings. We

address the assignments together.

                   The Trial Court’s Consideration of the CBA

       {¶9}    Powell first argues that the court erred in considering the CBA when it

ruled on the Civ.R. 12(C) motion. We find no merit in this argument.

       {¶10}   Under Civ.R. 12(C), a judgment on the pleadings is proper where the

court construes all material allegations in the complaint, along with all reasonable

inferences, as true and in favor of the plaintiff and concludes, beyond doubt, that the

plaintiff can prove no set of facts to support the claim for relief.       Sullivan v.

Anderson Twp., 1st Dist. Hamilton No. C-070253, 2009-Ohio-6646, ¶ 7.

       {¶11}   In ruling on a motion under Civ.R. 12(C), the trial court is permitted

to consider both the complaint and answer. State ex rel. Midwest Pride IV, Inc., v.

Pontious, 75 Ohio St.3d 565, 569, 664 N.E.2d 931 (1996). The court may also

consider any material attached to the pleadings or incorporated by reference in the


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                      OHIO FIRST DISTRICT COURT OF APPEALS


pleadings. See Am. Tax Funding, LLC v. Miamisburg, 2d Dist. Montgomery App.

No. 24494, 2011-Ohio-4161, ¶ 22.         Under Civ.R. 10(C), a copy of a “written

instrument attached to a pleading is a part of the pleading for all purposes.”

       {¶12}   In this case, Mt. Healthy attached a copy of the CBA to its answer and

incorporated it by reference in the pleading. Therefore, the trial court did not err in

considering the contract when ruling on Mt. Healthy’s motion.

          Mandamus and the CBA’s Provisions Regarding Promotions

       {¶13}   Powell next argues that the court erred in concluding that Mt. Healthy

had no duty to promote him. To be entitled to a writ of mandamus, the relator must

show (1) that he has a clear legal right to the requested relief, (2) that the respondent

has a clear legal duty to perform the act, and (3) that the relator has no plain and

adequate remedy in the ordinary course of the law. State ex rel. Berger v.

McMonagle, 6 Ohio St.3d 28, 29, 451 N.E.2d 225 (1983). An appellate court reviews

a decision under Civ.R. 12(C) de novo. Mallory v. Cincinnati, 1st Dist. Hamilton No.

C-110563, 2012-Ohio-2861, ¶ 9.

       {¶14}   Powell contends that the trial court erred in concluding that the issue

of promotions was covered in the CBA and in holding that the CBA prevailed over the

provisions of R.C. Chapter 124.

       {¶15}   R.C. 4117.10(A) addresses the relationship between collective-

bargaining agreements and laws governing the terms of public employment. The

statute provides:

       An agreement between a public employer and an exclusive representative

       entered into pursuant to this chapter governs the wages, hours, and

       terms and conditions of public employment covered by the agreement. * *

       * Where no agreement exists or where an agreement makes no


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                     OHIO FIRST DISTRICT COURT OF APPEALS


       specification about a matter, the public employer and public employees

       are subject to all applicable state or local laws or ordinances pertaining to

       the wages, hours, and terms and conditions of employment for public

       employees. * * * [T]his chapter prevails over any and all other conflicting

       laws, resolutions, provisions, present or future, except as otherwise

       specified in this chapter or as otherwise specified by the general

       assembly.


       {¶16}     As the Supreme Court of Ohio has stated, “[e]xcept for laws

specifically exempted, the provisions of a collective bargaining agreement entered

into pursuant to R.C. Chapter 4117 prevail over conflicting laws.” State ex rel.

Parsons v. Fleming, 68 Ohio St.3d 509, 513, 628 N.E.2d 1377 (1994), citing

Cincinnati v. Ohio Council 8, American Fedn. of State, Cty., and Mun. Emp., AFL-

CIO, 61 Ohio St.3d 658, 576 N.E.2d 745 (1991), paragraph one of the syllabus.

       {¶17}    In the case at bar, we find no error in the trial court’s judgment.

There was no dispute that the issue of promotions was a permissive subject of

collective bargaining. See generally Cincinnati at 664; R.C. 4117.08(C)(5). But

Powell argues that the inclusion of promotions in Section 8.1 of the CBA was merely

an acknowledgement that the parties could have chosen to alter the statutory

scheme. He contends that Mt. Healthy and the union did not in fact bargain over the

issue and that the provisions of R.C. Chapter 124 must therefore govern promotions

in this case.

       {¶18}    We find no merit in this contention. Contrary to Powell’s argument,

the CBA did not merely list promotions as a permissive subject of bargaining; it

affirmatively granted Mt. Healthy the management right to determine the necessity




                                               5
                     OHIO FIRST DISTRICT COURT OF APPEALS



or propriety of promotions. Under R.C. 4117.10(A), that grant of rights in the CBA

prevailed over any conflicting statute.

       {¶19}   Still, Powell emphasizes that Mt. Healthy continues to maintain a civil

service commission and continues to conduct competitive examinations for police

promotions. This course of conduct, Powell argues, demonstrates that the parties

have intended to adhere to the procedures set forth in R.C. Chapter 124 and that

management did not retain plenary power over promotions.

       {¶20}   Again, we are not persuaded by this argument. Even though Mt.

Healthy admittedly employed the statutory mechanism for deciding whom to

promote, it nonetheless explicitly reserved the right to determine whether to

promote. Accordingly, we overrule the assignments of error.

                                          Conclusion

       {¶21}   We affirm the judgment of the trial court.

                                                                 Judgment affirmed.



HENDON, P.J., and CUNNINGHAM, J., concur.


Please note:
       The court has recorded its own entry this date.




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