[Cite as State ex rel. Rimroth v. Harrison, 2020-Ohio-367.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO


STATE OF OHIO, EX REL. MICHAEL :                              APPEAL NO. C-180691
A. RIMROTH,                                                   TRIAL NO. A-1603565
                                      :
   and                                                           O P I N I O N.
                                      :
MICHAEL A. RIMROTH,
                                      :
      Plaintiffs-Relators-Appellants,
                                      :
  vs.
                                      :
CITY OF HARRISON, OHIO,
                                      :
WILLIAM NEYER, MAYOR OF THE
CITY OF HARRISON,                     :

   and                                             :

THE CIVIL SERVICE COMMISSION, :
CITY OF HARRISON, OHIO,

      Defendants-Respondents-                      :
      Appellees.




Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause
                           Remanded

Date of Judgment Entry on Appeal: February 5, 2020



Lazarus & Lewis, LLC, and Gary R. Lewis, for Plaintiffs-Relators-Appellants,

Ennis Britton Co., L.P.A., Ryan M. LaFlamme, and William Deters, for Defendants-
Respondents-Appellees.
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M OCK , Presiding Judge.

       {¶1}     Plaintiff-relator-appellant Michael Rimroth claims that the trial court

erred when it denied his administrative appeal of the decision of the defendant-

respondent-appellee the Civil Service Commission, City of Harrison, Ohio, to

promote Cameron Kugler instead of him to the position of fire captain with

defendant-respondent-appellee City of Harrison. He also claims that the trial court

erred when it denied his petition for a writ of mandamus seeking an order directing

the civil service commission to award him the promotion with back pay. While we

agree that the trial court erred in ordering the civil service commission to administer

a new written examination, we conclude that Rimroth has failed to establish that he

is entitled to the position.

                          Fire Captain Promotion Examination
                                  Results in Litigation

       {¶2}     Rimroth was a firefighter employed by the city of Harrison. On April

4, 2015, he took the written promotional examination for the position of fire captain,

along with firefighters Dennis Helcher and Cameron Kugler. Kugler received a score

of 75, Rimroth received a 74, and Helcher received a 65. A passing score for the

examination was 70. As a result, only Kugler and Rimroth were listed as having

passed the examination.

       {¶3}     Helcher complained that he should have been awarded additional

points based on his seniority. R.C. 124.45 provides for the award of additional points

based on seniority or military service, but the statute precludes awarding the points

“unless the applicant achieves at least the minimum passing grade on the

examination without counting that extra credit.” Nonetheless, Helcher argued that

he was entitled to additional credit on his test score because the city had previously

awarded the seniority or military credit before determining whether an examinee


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had passed the test. The city law director instructed the civil service commission to

adjust Helcher’s score, and he received a passing grade as a result.

       {¶4}    After the adjustments, all three candidates proceeded to the interview

portion of the selection process. Of the three candidates, Kugler was eliminated first

as a candidate. The mayor then decided to promote Helcher. The chief of the fire

department testified that, between the two of them, he would have chosen Rimroth

over Helcher—though the mayor had the final say. He also said that, had only Kugler

and Rimroth been under consideration, he and the mayor would have taken a closer

look at the two candidates. The record does not indicate whether the mayor would

have chosen Rimroth if he had to choose between Rimroth and Kugler.

       {¶5}    A year later, Rimroth complained to the commission that he should

have been promoted because the commission should not have used seniority as a

factor to determine whether Helcher passed the examination.            The commission

declined to issue Rimroth a promotion. Rimroth then filed an administrative appeal

of that decision with the trial court. He also filed a petition for a writ of mandamus

in which he sought an order compelling his promotion with back pay.               The

magistrate conducted a bench trial and issued an opinion in which he ordered

Helcher to be demoted, the promotion list to be vacated, and the city to conduct a

new examination. Rimroth objected to the decision of the magistrate. He argued

that the proper remedy was to award the position to him since he was the only

candidate not eliminated by the mayor who was legally eligible for promotion. The

trial court overruled Rimroth’s objections and adopted the decision of the

magistrate.

                       New Examination Not Proper Remedy

       {¶6}    In his first assignment of error, Rimroth argues that the trial court

erred in his administrative appeal by ordering that the promotion list be vacated and

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a new examination scheduled.        For an administrative appeal, the trial court

determines whether the administrative decision was “unconstitutional, illegal,

arbitrary, capricious, unreasonable, or unsupported by the preponderance of

substantial, reliable, and probative evidence on the whole record.” R.C. 2506.04.

The court makes factual and legal determinations and can receive new evidence.

Cleveland Clinic Found. v. Cleveland Bd. of Zoning Appeals, 141 Ohio St.3d 318,

2014-Ohio-4809, 23 N.E.3d 1161, ¶ 23, quoting Kisil v. Sandusky, 12 Ohio St.3d 30,

34, 465 N.E.2d 848 (1984).       This court’s authority is limited to reviewing the

common pleas court’s decision on “questions of law” only and does not encompass

the same power to weigh the evidence. Id. at ¶ 25, citing Henley v. Youngstown Bd.

of Zoning Appeals, 90 Ohio St.3d 142, 147, 735 N.E.2d 433 (2000). The standard of

review that we apply in this administrative appeal “is designed to strongly favor

affirmance. It permits reversal only when the court of common pleas errs in its

application or interpretation of the law or its decision is unsupported by a

preponderance of the evidence as a matter of law .” Id. at ¶ 30.

       {¶7}    Rimroth argues that the trial court erred in its application of the law.

He claims that the language of the statute does not permit the option to order a new

examination to be conducted once a list has been certified. He claims that the

mayor’s decision to reject Kugler’s candidacy should stand and that this court should

use the old eligibility list—which included only Rimroth and Kugler—to determine

that he is the only eligible candidate remaining.

       {¶8}    The city argues that the trial court had the authority to order a new

examination because, in employment disputes specifically, the court may use

equitable remedies to make the injured party whole. Collini v. Cincinnati, 87 Ohio

App.3d 553, 557, 622 N.E.2d 724 (1st Dist.1993). The trial court could order a new

examination because a portion of the scoring process was faulty and, as a result, the


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entire testing procedure was invalid. The city further notes that the record shows

that the mayor and chief would have considered the decision differently if only

Kugler and Rimroth were on the list. Since the mayor has the final, discretionary say

on the matter, there is no way to prove that Rimroth is entitled to promotion as a

matter of law. The equitable result, therefore, is to begin the process anew.

       {¶9}     In this case, both sides agree that it was inappropriate for the

commission to include the service credit before determining if the candidates

received a passing score. We agree with this consensus. The issue that remains is

determining if the trial court’s remedy was proper and, if not, what remedy lies for

the violation of the statute.

       {¶10}    The problem with city’s argument regarding equitable remedies, as

cited in Collini, is that this is not an equity case. Collini involved “declaratory

judgment actions [which] are sui generis, i.e., they are neither strictly legal nor

strictly equitable in nature.” Collini, 87 Ohio App.3d at 556, 622 N.E.2d 724. This

case is an appeal of a decision from an administrative agency, which is a legal issue.

       {¶11}    The foundation of the city’s argument is a holding from the Ohio

Supreme Court that set forth, “if one part of such an examination is unlawful then

the whole examination must fail, and it is not possible to consider merely the written

portion thereof and decide from that who is entitled to the promotion for which the

examination was given.” State ex rel. Hipp v. N. Canton, 75 Ohio St.3d 221, 224, 661

N.E.2d 1090 (1996), quoting State ex rel. Ethell v. Hendricks, 165 Ohio St. 217, 132

N.E.2d 362 (1956). But Hipp was decided on issues related to how the examination

was constructed, not on how the subsequent scores were treated.                 In Hipp,

candidates were given an examination which included both a written and oral

component when the statute allows only for a written examination. Both portions

were combined to determine the final score on the examination.            An examinee


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contesting the results of the examination argued that the court should just order his

promotion because he had received the highest score on the written portion of the

examination. So when the Hipp court determined that “if one part of such an

examination is unlawful then the whole examination must fail,” it was referring to

the written potion of a multi-part examination. Hipp is not instructive on the issue

of remedies for statutory violations that do not involve the construction of the

examination itself.

       {¶12}   As a general rule, if the examination is faulty, a court can order a new

examination. See State ex rel. Hanley v. Roberts, 17 Ohio St.3d 1, 476 N.E.2d 1019

(1985). In Hanley, a candidate for police chief sought to unseat the current police

chief who had been promoted after receiving the highest score on the examination.

In that case, the examination that the complainant and chief had taken was identical

to a previous examination from three years earlier that the chief had also taken.

While the complainant sought an order appointing him chief, the court found that a

new examination was the proper remedy.           “Ironically, because the entire 1983

promotional examination for chief of police is void, appellant can no more claim a

valid title to that office than can Workman.” Id. at 7.

       {¶13}   There are two problems with applying Hanley to this case. First, the

complainant in Hanley had sought mandamus relief in which he actually asked that

a new examination be ordered. While Rimroth did seek mandamus relief below, he

only sought to be appointed to the position of captain with pay. He did not request a

new examination.

       {¶14}   Additionally, neither party has attacked the validity of the

examination itself. On this point, the older Hendricks, 165 Ohio St. 217, 135 N.E.2d

362, provides some insight. In that case, an officer filed a quo warranto action to

remove the sitting police chief because the examination from which he had been


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promoted was an improper mix of written and oral questioning, as in Hipp. The

court began by concluding there could not be an oral portion of an examination, as

the statue required the examination to be in writing. It then had to determine if the

oral portion was part of the “examination” or if it was more like a post-examination

interview, and whether the court could just consider the “legal” portion while

excising the inappropriate portion. The court said,

        As there are many varying methods of setting up examinations and

        weighting the questions asked, the examination in question must be

        viewed from the standpoint of the civil service commission which gave

        it, and it is apparent that it was considered as a single examination

        having multiple parts, written, oral and predetermined credit for

        seniority.

Hendricks at 223.

        {¶15}   The distinction between this case and Hendricks is significant. In

Hendricks, it was a portion of the examination itself that was determined to be

improper, and thus the examination had to be readministered. The court concluded

that “the certification of respondent was unlawful, since it was based upon the result

of a promotional examination which was not authorized by law.” Id. In this case, on

the other hand, the promotional examination was given as one discrete part of the

promotional process, and the credit was awarded after the examination was

completed. There is nothing in this record to demonstrate that the examination itself

was unlawful. Therefore, the record does not support the remedy awarded by the

trial court.

        {¶16}   Having determined that the order to conduct a new examination is

not justified by this record, we are left to determine the appropriate remedy. A case

from the Third Appellate District is instructive on this point. See Davis v. Mun. Civ.


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Serv. Comm. for City of Marion, 3d Dist. Marion No. 9-78-5, 1979 WL 207993 (Jan.

12, 1979).     In that case, seniority credit was to be considered as part of the

examination score, but the civil service commission had failed to give credit to

candidates who had not first received a passing score on the written examination.

The court concluded: “the civil service commission was without authority to fix

entitlement to credit for seniority on the condition that a grade of 70% be obtained

on the written test, and that appellant was entitled to have seniority credits applied

to obtain his total grade attainable.” The court went on to describe how this case was

different from Hendricks:

                We then arrive at the position on the record in the proceedings

       now before us where we have a test not improperly administered * * *,

       but rather a properly administered test which was improperly graded

       with no subsequent tests nor subsequent rights of any parties

       attaching by virtue of certification or appointment.

                                               ***

                [W]e conclude that the test was salvageable merely by properly

       crediting the seniority credits to the test grades which results in

       appellant receiving the highest grade and being entitled to certification

       for appointment.

Id. at *3. The court remanded the case “to the Civil Service Commission of the City

of Marion with instructions to add to appellant’s score on the written test to the

credit for seniority to which appellant is entitled and to certify appellant to the

appointing authority as the individual standing highest on the eligible list for the

position of Chief of the Marion Fire Department.” Id. at *4.

       {¶17}     While the facts in this case are the exact opposite of those in Davis,

we find the remedy fashioned by the court in Davis to be appropriate. As in Davis,


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we have an examination that was properly administered, but the award of extra

credit for seniority and other factors was improperly applied. As in Davis, the grades

are salvageable merely by properly crediting the seniority credits.         The proper

remedy, therefore, is to remand the cause to the civil service commission for the

appropriate award of credit to only those individuals who had received a passing

score on the written examination: Kugler and Rimroth.          Once those scores are

calculated, the commission should forward the resulting list for further

consideration.

       {¶18}     For the reasons set forth above, we sustain Rimroth’s first assignment

of error in part and overrule it in part.

                              Mandamus Not Appropriate

       {¶19}     In his second assignment of error, Rimroth claims that the trial court

erred when it failed to award him the promotion and back pay as prayed for in his

petition for a writ of mandamus. Because he was not entitled to a writ of mandamus,

we disagree.

       {¶20}     Mandamus is an appropriate remedy in a wrongful-denial-of

promotion case. Hipp, 75 Ohio St.3d at 222, 661 N.E.2d 1090. In order to be

entitled to a writ of mandamus regarding his claim for appointment and back pay,

Rimroth had to establish a clear legal right to promotion to captain and back pay, a

clear legal duty on the part of the city to provide the foregoing, and that he had no

plain and adequate remedy in the ordinary course of law. See id., citing State ex rel.

Lightfield v. Indian Hill, 69 Ohio St.3d 441, 442, 633 N.E.2d 524 (1994).

       {¶21}     In this case, Rimroth argues that he is entitled to relief because

Kugler had been eliminated from consideration early in the process when the chief

and mayor were considering the three candidates. And, of the two remaining, he

was the only viable candidate. But the record indicates that the considerations would

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have been different if the only two candidates under consideration were Kugler and

Rimroth. The police chief testified that, in such a case, they would have taken a

closer look at each candidate and that he could not say what the mayor would have

done. In the end, the decision is left to the discretion of the mayor.

       {¶22}    The Ohio Supreme Court addressed the same issue in Hipp. In that

case, the city was permitted to promote one of three top candidates to the position of

fire captain. The court reasoned that a writ could not issue because “the most that

Hipp could establish was a right to have been considered for appointment rather

than a right to appointment.” Hipp at 226.

       {¶23}    At most, Rimroth has established that he has the right to be

considered for appointment rather than the right to appointment. He has, therefore,

failed to establish a clear legal right to promotion with back pay and that the city had

a clear legal duty to provide the promotion and back pay. We overrule Rimroth’s

second assignment of error.

                                      Conclusion

       {¶24}    For the reasons set forth above, we reverse that portion of the trial

court’s judgment in which it vacated the promotion list and ordered the city to

conduct a new examination. We remand this cause to the Civil Service Commission,

City of Harrison, Ohio, with instructions to apply seniority and other applicable

credit only to those examinees who received a passing score on the written

examination: Rimroth and Kugler. Those candidates should then proceed through

the remainder of the selection process. The decision of the trial court is affirmed in

all other respects.

                      Judgment affirmed in part, reversed in part, and cause remanded.

CROUSE and WINKLER, JJ., concur.



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Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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