[Cite as State ex rel. DeFranco v. Cleveland, 2011-Ohio-4240.]



               Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA



                            JOURNAL ENTRY AND OPINION
                                     No. 96067




              STATE EX REL., JASON DEFRANCO
                                                   PLAINTIFF-APPELLANT

                                                     vs.

                     CITY OF CLEVELAND, ET AL.
                                                   DEFENDANTS-APPELLEES




                                          JUDGMENT:
                                           AFFIRMED
                                  Civil Appeal from the
                           Cuyahoga County Common Pleas Court
                                   Case No. CV-691052

               BEFORE:             Blackmon, P.J., Keough, J., and E. Gallagher, J.

               RELEASED AND JOURNALIZED:                         August 25, 2011
ATTORNEY FOR APPELLANT

James L. Deese
The Western Reserve Building
1468 West 9th Street
Suite 405
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEES

Robert J. Triozzi
Director of Law

L. Stewart Hastings
Kevin J. Gibbons
Assistant Directors of Law
City of Cleveland Law Dept.
601 Lakeside Avenue, Room 106
Cleveland, Ohio 44114




PATRICIA ANN BLACKMON, P.J.:

      {¶ 1} Appellant Jason DeFranco (“DeFranco”) appeals the trial court’s

granting of summary judgment in favor of appellees, city of Cleveland

(“City”), Director of Public Safety Martin Flask (“Flask”), and the Cleveland

Civil Service Commission (“Commission”) (referred to collectively as the

“City”), and assigns the following errors for our review:

      “I. The trial court committed prejudicial error when it
      granted respondent’s motion for summary judgment.”
      “II. The trial court committed prejudicial error when it
      refused to consider the evidence of John Cole’s personnel
      file.”

      “III. The trial court committed prejudicial error when it
      ruled that the statements of the Commission Supervisor of
      Civil Service Records, Munday Workman, as set forth in
      the affidavit of Jason DeFranco, were hearsay.”

      {¶ 2} Having reviewed the record and pertinent law, we affirm the trial

court’s decision. The apposite facts follow.

                                         Facts

      {¶ 3} On May 14, 2001, the City hired DeFranco as a patrol officer.      He

was laid off from January 4, 2004 until July 11, 2005, when he was recalled to

work and returned to active duty. On April 26, 2006, DeFranco resigned to

work as patrol officer with the city of North Ridgeville. On July 30, 2007, he

returned to work as a Cleveland patrol officer.

      {¶ 4} In late 2007, the City posted notice of the 2008-2010 competitive

promotional examination for the position of police sergeant. The “Minimum

Qualifications” section of the announcement provided: “Applicant shall hold

legal status as a Patrol Officer of Police in the classified service of the city of

Cleveland for three years at the time of filing.”         Civil Service Rule 8.42

provides that an officer who resigns may be reinstated, but prior service shall

not   be   considered   in   determining    eligibility   to   enter   promotional

examinations.
     {¶ 5} DeFranco submitted an application to take the examination.          He

asked Commission employee Munday Workman (“Workman”) whether his

intervening employment with North Ridgeville would affect his years of

service and consequently his eligibility. According to DeFranco, Workman

advised him that because he had remained a patrol officer in Ohio, his

employment with North Ridgeville did not constitute a break in his

continuous service with the City for purposes of taking the examination and

being promoted.

     {¶ 6} On January 19, 2008, DeFranco took the examination.           In April

2008, DeFranco learned that he ranked 27th in terms of his examination

score;1 however, his name was not included on the Civil Service Eligible List

(“List”) for the sergeant position.    The reason he was not included was

because the Commission discovered after the examination that DeFranco did

not meet the three-year minimum service requirement for eligibility to take

the examination. On May 2, 2008, the Commission sent DeFranco a letter

advising him that per Civil Service Rule 8.42 “An officer * * * so reinstated

shall not be entitled to seniority credit for service prior to resignation nor

shall such service be considered in determining the eligibility of such

reinstated member to enter promotional examinations.” DeFranco did not

return from his resignation until 2007, and under Rule 8.42 his prior service

     1
      According to DeFranco, at least 46 people have been promoted from this list.
time was not counted; therefore, DeFranco did not meet the requirement of

having worked three years as a patrol officer for the City.

      {¶ 7} DeFranco admitted he received the letter and contended that he

sent a letter to the Commission appealing the decision but never received a

reply. On April 24, 2009, almost a year after being denied placement on the

list, DeFranco filed a Complaint for Writ of Mandamus in the Cuyahoga

County Common Pleas Court seeking an order directing the City to promote

him to sergeant. 2 Specifically, DeFranco alleged that his test score placed

him at number 27 on the promotional list; that the Commission removed him

from the promotional list without cause; that he was entitled to be promoted

to the rank of sergeant based on his performance; and that the City was

under a “clear legal duty” to promote him to sergeant.

      {¶ 8} DeFranco filed a motion for summary judgment.         The City

opposed the motion and filed a motion for summary judgment.        The trial

court granted summary judgment in favor of the City in an 11-page opinion.

                             Disputed Issues of Fact




     On July 15, 2009, he filed a Verified Amended Complaint for Writ of
      2

Mandamus.
      {¶ 9} In his first assigned error, DeFranco argues the trial court erred

by granting summary judgment in favor of the City because material facts

were in dispute.3

      {¶ 10} We review an appeal from summary judgment under a de novo

standard of review. Baiko v. Mays (2000), 140 Ohio App.3d 1, 746 N.E.2d

618, citing Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 506

N.E.2d 212; N.E. Ohio Apt. Assn. v. Cuyahoga Cty. Bd. of Commrs. (1997),

121 Ohio App.3d 188, 699 N.E.2d 534. Accordingly, we afford no deference to

the trial court’s decision and independently review the record to determine

whether summary judgment is appropriate. Civ.R. 56 summary judgment is

appropriate when: (1) no genuine issue as to any material fact exists, (2) the

party moving for summary judgment is entitled to judgment as a matter of

law, and (3) viewing the evidence most strongly in favor of the non-moving

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

non-moving party. Our de novo review of the matter indicates that there are

no disputed issues of material fact that would have affected the judgment in

this case.

      {¶ 11} DeFranco argues that the fact the City allowed Sergeant John

Cole (“Cole”) to be promoted indicates the City previously interpreted Rule

      3
        He also reasserts the fact the trial court had jurisdiction over his writ of
mandamus; however, because the appellees failed to file a cross appeal contesting
the trial court’s jurisdiction, we need not address this issue.
8.42 as not affecting the seniority of those who resign but continue to work in

law enforcement. After approximately nine years, Cole left the City’s employ

in November 2000 to become an assistant county prosecutor. He returned to

his position as a patrol officer in April of 2001 and in 2002 was promoted to

sergeant.   The City used Cole’s date of original hire for purposes of

determining his seniority prior to promoting him.        DeFranco argues this

shows that the City interpreted Rule 8.42 as not affecting the original date of

hire when the person resigns to continue work in law enforcement; thus, he is

entitled to have the date of his original hire constitute the date from which

his seniority is determined. We disagree because DeFranco’s situation is not

analogous to Cole’s.

      {¶ 12} Cole did not resign from his position as a patrol officer; he took a

leave of absence from the department to work as an assistant prosecutor with

Cuyahoga County. Rules 8.30 and 8.31 govern leaves of absence and do not

state that a leave of absence affects the seniority of the person leaving.

DeFranco points to the fact that Cole initially submitted his resignation to

the Chief of Police, Michael McGrath, and asserts that Rule 8.42 therefore

applied to Cole’s situation. However, less than 30 days after submitting his

resignation, Cole rescinded the resignation and submitted a leave of absence

instead. The rescission occurred prior to the Civil Service officially accepting

this resignation; therefore, we agree with the City that Cole’s initial
resignation was not valid.     This court in McCaffrey v. Cleveland (1977), 56

Ohio App.2d 187, 383 N.E.2d 144, affirmed by (1978), 54 Ohio St.2d 340, 377

N.E.2d 490, addressed a situation where a patrol officer argued he was

eligible to be placed on the promotion list because he requested reinstatement

prior to the Civil Service accepting his resignation. This court held that once

the Commission accepted the officer’s resignation, it was “legally effective”

and the officer was not eligible for promotion because his reinstatement was

not accepted by the Commission until after the resignation was accepted. In

the instant case, Cole was able to rescind his resignation prior to the

Commission’s accepting it; therefore, it never became “legally effective.”

      {¶ 13} It is undisputed that DeFranco resigned from his position with

the City to work for the North Ridgeville Police Department. Reinstatement

after resignation is governed by Rule 8.42, which clearly states that the

officer reinstated shall not be entitled to seniority credit accumulated prior to

resignation. Thus, the rules governing Cole’s leave of absence are different

from those governing DeFranco’s resignation.

      {¶ 14} Although there is a dispute as to whether Commission employee

Munday Workman assured DeFranco that he was eligible for the promotion,

it does not affect the outcome of this case.     Even if Workman did advise

DeFranco that he was eligible to take the exam, principles of promissory

estoppel do not apply to government employees when engaged in a
governmental function.      Hortman v. Miamisburg, 110 Ohio St.3d 194,

2006-Ohio-4251, 852 N.E.2d 716, syllabus. Thus, although it is regrettable,

DeFranco cannot recover for the time and expense he invested in studying for

the examination based on Workman’s alleged misinformation.

      {¶ 15} DeFranco argues that he is not contending promissory estoppel

applies and is not requesting to receive compensation for the time and money

he spent on preparing for the exam.      Instead, he argues that Workman’s

statements indicated how the Commission previously interpreted and applied

Rule 8.42. However, even if Workman did misstate the rule regarding

DeFranco’s eligibility for the promotion, a misstatement by a Commission

employee cannot waive or modify the requirements set forth in the Civil

Service Rules. In order to waive or modify the rules, the majority of the

Commission must vote in favor of the change. Rules 14.10 and 15.10.

      {¶ 16} Additionally, the rule is not ambiguous regarding the effect

resignation has on seniority. It clearly states that an officer reinstated after

resignation “shall not be entitled to seniority credit for service prior to

resignation nor shall such service be considered in determining the eligibility

of such reinstated member to enter promotional examinations.” There is no

exception listed for those who resigned to continue a position in law

enforcement. Accordingly, the trial court did not err by granting summary

judgment in favor of the City.
     Sergeant John Cole’s Personnel File

     {¶ 17} In his second assigned error, DeFranco argues the trial court

abused its discretion by refusing to consider the evidence contained within

Sergeant Cole’s file. As we stated above, DeFranco’s situation is different

from Cole’s situation. Therefore, the consideration of Cole’s personnel file

would not have changed the        trial court’s decision to grant summary

judgment. Accordingly, DeFranco’s second assigned error is overruled.

     Hearsay Statements

     {¶ 18} In his third assigned error, DeFranco argues the trial court erred

by ruling that Munday Workman’s statements to DeFranco, assuring him he

was eligible for the promotion, were hearsay. As we concluded above, even if

Workman did tell DeFranco he was eligible for the promotion, Workman’s

statement cannot modify the Civil Service Rules regarding the eligibility to

take an examination in absence of the majority vote in favor of change by the

Commission. Accordingly, DeFranco’s third assigned error is overruled.

     Judgment affirmed.

     It is ordered that appellees recover from appellant their 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.




PATRICIA ANN BLACKMON, PRESIDING JUDGE

KATHLEEN ANN KEOUGH, J., and
EILEEN A. GALLAGHER, J., CONCUR
