[Cite as State ex rel. Robinson v. Dayton, 2012-Ohio-5800.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO, ex rel. ROBINSON,                         :
et al.
                                                         :
        Plaintiffs-Appellants                                 C.A. CASE NO.       25245

v.                                                       :             T.C. NO.   11CV2392

CITY OF DAYTON                                           :             (Civil appeal from
                                                                       Common Pleas Court)
        Defendant-Appellee                               :

                                                         :

                                              ..........

                                            OPINION

                         Rendered on the          7th         day of      December        , 2012.

                                              ..........

JEFFREY M. SILVERSTEIN, Atty. Reg. No. 0016948 and JASON P. MATTHEWS, Atty.
Reg. No. 0073144, 627 South Edwin C. Moses Blvd., Suite 2-C, Dayton, Ohio 45417
      Attorneys for Plaintiffs-Appellants

JOHN J. DANISH, Atty. Reg. No. 0046639 and JOHN C. MUSTO, Atty. Reg. No.
0071512, City of Dayton Law Department, 101 W. Third Street, P. O. Box 22, Dayton, Ohio
45401
      Attorneys for Defendant-Appellee

                                              ..........

FROELICH, J.
[Cite as State ex rel. Robinson v. Dayton, 2012-Ohio-5800.]
        {¶ 1}      Adrienne Robinson and David Corbitt, individually and as relators, appeal

from a judgment of the Montgomery County Court of Common Pleas, which granted

summary judgment to the City of Dayton on their claim that they were denied due process

when their civil service positions were abolished. For the following reasons, the trial

court’s judgment will be affirmed.

                                                    I.

        {¶ 2}      Robinson and Corbitt were employed by the City of Dayton as Program

Supervisors in the City’s Recreation and Youth Services Department. The position of

Program Supervisor is a classified civil service position under the Dayton City Charter.

        {¶ 3}      In 2009, the budget of the Recreation and Youth Services Department was

cut significantly. That fall, the director of the department scheduled meetings with all

department employees to explain and discuss budget cuts and her planned restructuring of

the department. Under the director’s proposed budget, every position in the department

(with the exception of the executive) was eliminated, supervisors were downgraded, other

positions below the supervisors were downgraded, and certain positions were turned into

part-time permanent positions. These changes included the abolishment of the Program

Supervisor position. Employees were encouraged by the Dayton city manager to provide

input on the proposed changes and budget reduction. Corbitt and Robinson worked with

other department employees and presented an alternative proposed budget to the city

manager.

        {¶ 4}      The director’s proposed budget was presented to the Dayton City

Commission and approved by ordinance on February 24, 2010. On July 2, 2010, Corbitt

and Robinson each received a letter notifying them to attend separate meetings with the
                                                                                            3

Dayton Civil Service Board and Human Resources Department on July 6, 2010 to discuss

the abolishment of their position. Corbitt and Robinson were permitted to have an attorney

present at their meetings, and Corbitt brought one to his meeting. At the meetings, Corbitt

and Robinson were each given the option of either accepting a Recreation Leader II position

in the Recreation and Youth Services Department or layoff. The Recreation Leader II

position was a union position with a lower salary than the former Program Supervisor

position. The employees were required to elect an option at the July 6 meeting. Corbitt

accepted the Recreation Leader II position; Robinson chose to be laid off. The Program

Supervisor position was abolished effective July 12, 2010.

       {¶ 5}     Robinson and Corbitt attempted to appeal the abolishment of the Program

Supervisor position to the Dayton Civil Service Board. On July 13, 2010, the Board

notified them that the Board “had no authority” to hear their appeals under Dayton’s Civil

Service Rules.

       {¶ 6}     In March 2011, Robinson and Corbitt, individually and as relators, filed suit

in the common pleas court, alleging that the City abolished their positions without affording

them due process, as required by Article I, Section 16 of the Ohio Constitution. They

sought reinstatement to their positions by means of a writ of mandamus, back pay, and

compensatory and punitive damages.

       {¶ 7}     The parties filed cross-motions for summary judgment. In their motion,

Robinson and Corbitt claimed that they had a property interest in their positions, but were

given neither a pre-deprivation opportunity to respond to the abolishment nor a

post-deprivation procedure to challenge the abolishment.       They argued that they were
                                                                                               4

entitled to the protections provided by R.C. Chapter 124, which included a post-deprivation

evidentiary hearing before the Civil Service Board under R.C. 124.03.    In response to these

arguments, the City asserted that Ohio law does not provide a right to a pre-abolishment

hearing, and that R.C. Chapter 124 does not apply to appeals before the Dayton Civil Service

Board.

         {¶ 8}    In its motion for summary judgment, the City further argued that a City may

abolish positions for budgetary reasons without providing affected employees a hearing. It

emphasized that the abolishment was conducted by legislative action of the Dayton City

Commission and that the Dayton Civil Service Board lacks the authority to overturn such

legislative actions. The City further asserted that, if Robinson and Corbitt had a right to an

appeal before the Civil Service Board, their claims were barred for failure to exhaust their

administrative remedies. Moreover, the City claimed that Robinson and Corbitt actually

received all of the protections of a pre-deprivation hearing, even though none was required.

         {¶ 9}    In a reply memorandum, Robinson and Corbitt asserted that they had no

administrative remedies to exhaust, because the Dayton Civil Service Board did not perform

any quasi-judicial function. They also reiterated that R.C. Chapter 124 applied to cities and

that the City denied them post-deprivation due process. (They did not reassert their argument

that they were denied pre-deprivation due process.)

         {¶ 10}   The trial court granted the City’s motion for summary judgment and denied

Robinson and Corbitt’s motion for summary judgment. First, the court found that the facts

established that the employees had been provided an opportunity to be heard prior to the

abolishment of their positions. Second, the court rejected the argument that the City was
                                                                                             5

required to comply with R.C. Chapter 124. The court reasoned that “[t]he City of Dayton

has adopted a charter which the Ohio Supreme Court has held to create a separate civil

service system which supersedes Ohio general state civil service Laws. * * * Dayton’s civil

service rules were adopted by legislative action and do not require a post-abolishment

hearing in this case at bar.” The court further agreed with the City that the Dayton Civil

Service Board did not have the jurisdiction to overturn the legislative acts of the Dayton City

Commission.

       {¶ 11}    Robinson and Corbitt appeal the trial court’s judgment.

                                              II.

       {¶ 12}    Robinson and Corbitt raise one assignment of error, namely that “[t]he trial

court erred in finding that Appellants had no right to a post-deprivation due process

hearing.”

       {¶ 13} Robinson and Corbitt’s argument is two-fold. First, they claim that they

had a property interest in their Program Supervisor positions, in accordance with Cleveland

Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). They

assert that they therefore could not be removed from that position without being afforded

due process of law, and that the denial of such a hearing violated Section 16, Article I of the

Ohio Constitution. Second, they assert that they were entitled to appeal rights under R.C.

Chapter 124, which addresses the abolishment of positions held by classified civil servants.

Specifically, they state that they were entitled to a post-deprivation civil service hearing

under R.C. 124.03 and 124.321.

                          A. Constitutional Right to Due Process
[Cite as State ex rel. Robinson v. Dayton, 2012-Ohio-5800.]
          {¶ 14} It is undisputed that the Program Supervisor position was a classified civil

service position. Classified civil servants in Ohio possess property rights in their continued

employment. Loudermill, 470 U.S. at 539; 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).

          {¶ 15}   In Loudermill, two school district employees (a security guard and a bus

mechanic) from two different school districts in Ohio brought suit against their respective

boards of education, claiming that they were deprived of their civil service positions without

due process. After concluding that the employees had a property interest in their continued

employment, the Supreme Court ruled that the Due Process Clause of the United States

Constitution requires “‘some kind of a hearing’ prior to the discharge of an employee who

has a constitutionally protected interest in his employment.” Id. at 542. The Court held

that “all the process that is due is provided by a pretermination opportunity to respond,

coupled with post-termination administrative procedures as provided by the Ohio statute.”

Id. at 547-48.

          {¶ 16} While Loudermill establishes a general rule that classified civil servants in

Ohio have a constitutional right to procedural due process upon discharge, numerous federal

and state courts have recognized that the due process obligations articulated in Loudermill

do not apply when an employee’s position is eliminated as a result of a bona fide layoff,

reduction in force, or reorganization.            E.g., Ditty v. Minneapolis, Civ. No. 11-109

(MJD/FLN), 2012 WL 3870573 (D.Minn. Sept. 6, 2012), citing Rodriguez–Sanchez v.

Municipality of Santa Isabel, 658 F.3d 125, 130 (1st Cir.2011) (“[P]re-termination hearings

are not required by due process where a bona fide government reorganization plan bases
                                                                                           7

dismissals on factors unrelated to personal performance.”) and Gunville v. Walker, 583 F.3d

979, 989 (7th Cir.2009) (“[D]ue process is not implicated when government employees are

laid off due to a reorganization.”).    See also Dionne v. Mayor and City Council of

Baltimore, 40 F.3d 677, 685 (4th Cir.1994) (plaintiff “enjoyed no property right in the

continued existence of his job and consequently his position could be abolished by the

legislature without notice and a hearing.”); Perkimen Tp. v. Mest, 522 A.2d 516, 520

(Pa.1987) (abolishment of a municipal job is presumed to be in good faith; legislative action

is subject to judicial review only if abolishment was pretense or subterfuge); Kavakich v.

Bentleyville Borough, Case No. 06-1114, 2008 WL 2563377, *3 (W.D.Pa. June 24, 2008)

(“When a termination is directed at positions rather than individuals, the hearing mandated

by the Fourteenth Amendment’s due process protection need not be held.”); Franks v.

Magnolia Hosp., 888 F.Supp. 1310 (N.D.Miss.1995).

       {¶ 17} Some federal and state appellate courts in Ohio have adopted this view.

See, e.g., Chaney v. Potsdam, 2004 WL 1532252 (6th Cir. 2004), fn. 6 (“Ohio law clearly

provides that a municipality may abolish positions for budgetary reasons without providing

the affected employees with a hearing.”); Graham v. Triway Bd. of Educ., 82 Ohio App.3d

34, 610 N.E.2d 1185 (9th Dist.1992). As stated by the Ninth District:

               It is well settled that where an employee who possesses a property

       interest in employment is dismissed for cause, due process requires notice and

       an opportunity for hearing prior to the dismissal. Some opportunity for the

       employee to present his side of the case is recurringly of obvious value in

       reaching an accurate decision since dismissals for cause often involve factual
                                                                                              8

       disputes.

                Where such an employee’s position has been abolished, however,

       different considerations apply. It has been held that due process does not

       require a pretermination hearing in such a situation because the employee

       does not need an opportunity to present evidence on job performance. The

       employee’s conduct is of no relevance to the decision to abolish the position.

       Furthermore, there is no risk that the employee will suffer stigma because

       there has been no discharge for cause.

                * * * An employee’s challenge to such an action * * * is more

       appropriately addressed in a post-abolishment proceeding in court.

(Citations omitted.) Graham at 38-39.

       {¶ 18}      This position was also expressed in Ryman v. Reichert, 604 F.Supp. 467,

471 (S.D.Ohio 1985), a pre-Loudermill case cited by the City. In Ryman, the district court

recognized that, “[u]nder [Ohio] law, an appointing authority may abolish a position with the

concomitant result that an employee loses her job, subject to the one important limitation

that the appointing authority may not abolish a position as a mere subterfuge to rid itself of a

particular employee.”     Id. at 468.    Upon review of the parties’ evidence, the court

concluded, as a matter of law, that the abolishment of the plaintiff’s position as a desk

officer with a police department was not subterfuge by the township board of trustees. The

district court further concluded that Loudermill (which was then on appeal to the Supreme

Court from the Sixth Circuit) was distinguishable, because Ryman’s case involved an

abolishment, not a discharge. The court noted that there was no stigma attached to an
                                                                                                                             9

abolishment, that the defendants did not purport to act on the basis of Ryman’s job

performance, and that the decision to abolish Ryman’s job was done legislatively, i.e., it was

not an administrative decision. Id. at 471-472. The court determined that Ryman did not

suffer a property deprivation without due process of law.

         {¶ 19} We find these cases to be persuasive. A civil service employee has a

property interest in his or her continued employment at a position, but not a property interest

in the existence of his or her position. E.g., Christian v. Cecil County, 817 F.Supp. 1279,

1284 (D.Md.1993). And unlike termination cases, where the employee’s personal qualities

and/or job performance are relevant and subject to questions of fact, bona fide job

abolishments are directed toward the position (not the employee), do not carry a stigma, and

are not administrative decisions.                  Absent evidence (or even an allegation) that the

abolishment of the Program Supervisor position was a pretext or sham to oust Robinson and

Corbitt from their positions, the City of Dayton was entitled to abolish that position without

affording them due process.1




             1
               At oral argument, the parties agreed that mandamus was an appropriate remedy if the abolishment of an employee’s
   position was mere subterfuge to terminate the affected employee.
[Cite as State ex rel. Robinson v. Dayton, 2012-Ohio-5800.]
         {¶ 20}       In this case, Robinson and Corbitt did not allege subterfuge on the part of

the City and certainly did not create a genuine issue of material fact that the reorganization

of the Recreation and Youth Services Department was necessitated by budgetary and

economic circumstances. The record contains undisputed evidence that the City’s income

tax revenues declined drastically during the 2009 recession and, as a result, nearly every

department in the City was tasked with cutting its budget. Brent McKenzie testified in his

deposition that the Dayton city manager, along with the Office of Management and Budget,

determined how much each department could spend and then those numbers were given to

the departments, which had to comply; the Recreation and Youth Services Department was

informed that it needed to reduce its budget by $496,000. Although Robinson and Corbitt

disagreed with the department reorganization plan that was prepared in response to the

economic crisis and acted on by the City Commission, they have not alleged, argued, or

presented evidence to refute the existence of the economic hardship and the City’s need to

reduce its budget, including the budget of the Recreation and Youth Services Department.

Given the record, Robinson and Corbitt had no constitutional rights under Loudermill to a

pre-deprivation or post-deprivation hearing.2

         {¶ 21} Robinson and Corbitt have claimed a constitutional deprivation under the

Ohio Constitution.            The Due Process Clause of the Ohio Constitution is generally

coextensive with the due process rights provided under the Fourteenth Amendment to the


             2
                  Robinson and Corbitt do not now claim that they were denied their right to a pre-deprivation hearing. Even if
   they had raised that issue on appeal, we would agree with the trial court that the employees had been
   provided an opportunity to be heard prior to the abolishment of their positions.
   The November 2009 departmental meetings and the employees’ July 2, 2010 meeting with the Dayton Civil Service satisfied any
   pre-deprivation due process responsibilities of the City.
                                                                                                                     11

United States Constitution.                See Youngstown v. Traylor, 123 Ohio St.3d 132,

2009-Ohio-4184, 914 N.E.2d 1026, ¶ 8; State v. Gardner, 118 Ohio St.3d 420,

2008-Ohio-2787, 889 N.E.2d 995, ¶ 90, quoting Direct Plumbing Supply Co. v. Dayton, 138

Ohio St. 540, 544, 38 N.E.2d 70 (1941). Accordingly, Robinson and Corbitt’s rights to due

process under the Ohio Constitution also were not violated.

                  B. Right to Post-Deprivation Hearing under R.C. Chapter 124

        {¶ 22} Robinson and Corbitt further claim that they had a right to a hearing on the

abolishment of their positions under R.C. Chapter 124.3

        {¶ 23}       Section 10, Article XV of the Ohio Constitution 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.”

Ohio’s civil service scheme is thus “embedded in the Ohio Constitution,” and R.C. Chapter

124 was enacted to effectuate the civil service system. Chubb v. Ohio Bur. of Worker’s

Comp., 81 Ohio St.3d 275, 277, 690 N.E.2d 1267 (1998).

        {¶ 24} In general, “civil service” includes “all offices and positions of trust or

employment in the service of the state and in the service of the counties, cities, city health

districts, general health districts, and city school districts of the state.” (Emphasis added.)

R.C. 124.01(A). R.C. 124.11 divides employees into the classified and unclassified service,

and R.C. Chapter 124 provides different statutory protections depending on an employee’s


            3
              At oral argument, Robinson and Corbitt’s counsel focused on the employees’ right to pursue relief through a
   mandamus action. For sake of completeness, we will address appellants’ argument regarding R.C. Chapter 124 as briefed.
                                                                                                  12

classification.

        {¶ 25} Ohio’s general civil service scheme recognizes that an appointing authority

may determine that it is necessary to reduce its workforce either through layoffs or the

abolishment of positions. R.C. 124.321. Under R.C. 124.321(D)(1), positions may be

abolished due to “reorganization for the efficient operation of the appointing authority, for

reasons of economy, or for lack of work.” Id. R.C. 124.321(D) further provides, in part:

                  (2)(a) Reasons of economy permitting an appointing authority to

        abolish a position and to lay off the holder of that position under this division

        shall be determined at the time the appointing authority proposes to abolish

        the position. The reasons of economy shall be based on the appointing

        authority’s estimated amount of savings with respect to salary, benefits, and

        other matters associated with the abolishment of the position, except that the

        reasons of economy associated with the position’s abolishment instead may

        be based on the appointing authority’s estimated amount of savings with

        respect to salary and benefits only, if:

                  (i) Either the appointing authority’s operating appropriation has 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; and

                  (ii) In the case of a position in the service of the state, it files a notice

        of the position’s abolishment with the director of administrative services

        within one year of the occurrence of the applicable circumstance described in
                                                                                          13

       division (D)(2)(a)(i) of this section.

                (b) The following principles apply when a circumstance described in

       division (D)(2)(a)(i) of this section would serve to authorize an appointing

       authority to abolish a position and to lay off the holder of the position under

       this division based on the appointing authority’s estimated amount of savings

       with respect to salary and benefits only:

                (i) The position’s abolishment shall be done in good faith and not as a

       subterfuge for discipline.

                (ii) If a circumstance affects a specific program only, the appointing

       authority only may abolish a position within that program.

                (iii) If a circumstance does not affect a specific program only, the

       appointing authority may identify a position that it considers appropriate for

       abolishment based on the reasons of economy.

       {¶ 26}     A classified employee may appeal a layoff, or a displacement that is the

result of a layoff, to the State personnel board of review, R.C. 124.328, and the State

personnel board of review is expressly authorized to hear appeals by classified employees of

final decisions relating to job abolishments and layoffs, R.C. 124.03. The decision of the

State personnel board of review may be appealed to the court of common pleas in

accordance with R.C. 119.12. Id.

       {¶ 27}     R.C. 124.40 provides for the creation of municipal civil service

commissions, which, as to that municipality, generally exercise the powers and perform the

duties of the State’s director of administrative services and the State’s personnel board of
                                                                                      14

review.4 Municipal civil service commissions have the authority to promulgate rules not

inconsistent with R.C. Chapter 124. R.C. 124.40; Dworning v. Euclid, 119 Ohio St.3d 83,

2008-Ohio-3318, 892 N.E.2d 420, ¶ 13.

       {¶ 28} The City of Dayton asserts that R.C. Chapter 124 does not apply to it,

because it is a charter city under the “home rule” provisions of the Ohio Constitution.

Sections 3 and 7, Article XVIII of the Ohio Constitution provide:

              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. [Section 3]

              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,


          4
            Specifically, R.C. 124.40 provides, in part:
         The municipal civil service commission shall prescribe, amend, and
  enforce rules not inconsistent with this chapter for the classification of
  positions in the civil service of the city * * *; for examinations for and
  resignations from those positions; for appointments, promotions,
  removals, transfers, layoffs, suspensions, reductions, and reinstatements
  with respect to those positions; and for standardizing those positions and
  maintaining efficiency in them. The commission’s rules shall authorize
  each appointing authority of a city * * * to develop and administer in a
  manner it devises an evaluation system for the employees it appoints.
  The commission shall exercise all other powers and perform all other
  duties with respect to the civil service of the city * * *, as prescribed in this
  chapter and conferred upon the director of administrative services and the
  state personnel board of review with respect to the civil service of the
  state; and all authority granted to the director and the board with respect
  to the service under their jurisdiction shall, except as otherwise provided
  by this chapter, be held to be granted to the commission with respect to
  the service under its jurisdiction. The procedure applicable to reductions,
  suspensions, and removals, as provided for in section 124.34 of the
  Revised Code, shall govern the civil service of cities.
                                                                                           15

         exercise thereunder all powers of local self-government. [Section 7]

         {¶ 29} Pursuant to these home rule powers, Dayton created a charter, which grants broad

powers to the City and includes provisions establishing the City’s civil service. Dayton City

Charter, Article X (Sections 93-107). Under Section 101 of the Charter, employees in the City’s

classified service who are “suspended, reduced in rank, or dismissed from a department by the

director of that department or the City Manager” may appeal the decision to the Civil Service

Board.    The Charter does not expressly address reductions in force due to layoffs or the

abolishment of positions. Although Dayton’s Civil Service Rules are not in the record, the City

acknowledges that they do not provide an appeal for job abolishment.

         {¶ 30}    “Under the principles of home rule prescribed by Section 3, Article XVIII of

the Ohio Constitution, in matters of local self-government, when there is a conflict between a

municipal charter provision and a statute, the charter provision prevails where (1) the conflict

appears by the express terms of the charter, and not by mere inference, and (2) the charter clearly

and expressly states the areas where the municipality intends to supersede and override general

state statutes.” Blauvelt v. Hamilton, 12th Dist. Butler No. CA2008-07-174, 2009-Ohio-2801,

¶ 24, citing State ex rel. Bardo v. Lyndhurst, 37 Ohio St.3d 106, 524 N.E.2d 447 (1988) and State

ex rel. Regetz v. Cleveland, 72 Ohio St.3d 167, 648 N.E.2d 495 (1995). “As long as the

provisions made in the charter of any municipality with reference to its civil service comply with

the requirement of section 10 of article 15, and do not conflict with any other provisions of the

Constitution, they are valid, and under the cases referred to discontinue the general law on the

subject as to that municipality.” State ex rel. Lentz v. Edwards, 90 Ohio St. 305, 310, 107

N.E.768 (1914).
[Cite as State ex rel. Robinson v. Dayton, 2012-Ohio-5800.]
        {¶ 31}     “In the absence of express language in a charter showing that it conflicts with

the statutes, it is the duty of the courts to harmonize the provisions of the charter with the

provisions of the statute relating to the same matter.” Bardo, supra, limited by State ex rel.

Bednar v. N. Canton, 69 Ohio St.3d 278, 631 N.E.2d 621 (1994). Thus, “the general civil

service laws as codified within R.C. Chapter 124 et seq. will apply where the charter provisions

are silent or where the charter has adopted the language of the particular state statute.” Jacomin

v. Cleveland, 70 Ohio App.3d 163, 165, 590 N.E.2d 846 (8th Dist.1990). However, express

charter provisions will prevail over conflicting state civil service provisions as found within the

Revised Code. Id.

        {¶ 32}     The City relies on several cases to support its position that Dayton’s Charter

provisions “establish a separate civil service system that supersedes and annuls the general state

civil service law.” In Lentz, appointed members of the Dayton Civil Service Commission who

were appointed under state statutory provisions claimed that other individuals appointed under

Dayton’s new City Charter had “usurped” their positions. The Ohio Supreme Court upheld the

Dayton Charter provisions, recognizing that “[t]he manner of regulating the civil service of a city

is peculiarly a matter of municipal concern.” Id. at 309.

        {¶ 33} In Fraternal Order of Police Captain John C. Post Lodge No. 44 v. Dayton, 2d

Dist. Montgomery No. 10703, 1988 WL 87608 (Aug. 18, 1988), we addressed whether the City

had to a duty to provide promotion examinations for police officers in accordance with R.C.

124.44. We held that R.C. 124.44 did not apply, stating: “It is reasonably clear from Sections 1

and 2 of the Dayton charter that the residents of Dayton granted the City of Dayton all possible

powers of local self government except as may be limited by other charter provisions. It follows

that the civil service provisions of the charter can only limit, and not expand, the powers of local
                                                                                            17

self government in the civil service area.” Id. at *4.

       {¶ 34} Finally, the City emphasizes Fenton v. Enaharo, 31 Ohio St.3d 69, 509 N.E.2d

67 (1987), which addressed whether employees for the City of Columbus who were laid off from

their positions were entitled to procedural protections provided by R.C. Chapter 124. As in the

case before us, the Columbus City Charter conferred jurisdiction on the civil service commission

to hear appeals from employees who had been “suspended, reduced in rank or compensation or

discharged.” The Columbus Civil Service Commission concluded that it lacked jurisdiction to

entertain an appeal contesting a layoff, and the trial court affirmed. On appeal, the court of

appeals concluded that the Columbus City Charter was silent with respect to layoffs and, thus, the

civil service commission had jurisdiction to hear the appeal under R.C. 124.03(A) and R.C.

124.40(A).

       {¶ 35} The Ohio Supreme Court agreed with the civil service commission and trial court

and reversed the court of appeal’s judgment. It stated that “the charter sets forth the jurisdiction

of the civil service commission and, as such, there is no occasion to apply any jurisdictional

provisions under the Revised Code as a result of the ‘absence of’ provisions.” Fenton at 73. It

further found that R.C. 124.03(A) and the charter conflicted, because “the former section

provid[es] for jurisdiction when an employee suffers a layoff while the latter section does not.”

Id. The supreme court thus concluded that the Columbus City Charter was not “silent” as to the

jurisdictional prerequisites for the civil service commission, and the Columbus civil service

commission did not have jurisdiction over the employees’ appeal of their layoffs. Id. at 73-74.

       {¶ 36} We find F.O.P v. Dayton and Fenton to be dispositive. The Dayton City Charter

granted the City broad powers, including the power to establish its civil service. In setting forth
                                                                                            18

the Civil Service Board’s jurisdiction over appeals, the charter limited the Board’s jurisdiction to

appeals by employees “in the classified service who are suspended, reduced in rank, or dismissed

from a department by the director of that department of the City Manager.”             Facing like

circumstances in Fenton, the supreme court has held that such a charter provision conflicts with

the statutory provision concerning appeals from layoffs and abolishment of positions, and that the

charter provision prevails over R.C. 124.03(A) and R.C. 124.40(A). In accordance with Fenton,

we conclude that the Dayton Civil Service Board did not have jurisdiction to hear Robinson and

Corbitt’s appeals from the abolishment of the Program Supervisor position.

       {¶ 37}    Robinson and Corbitt cite several opinions since Fenton, in which an appellate

court applied R.C. Chapter 124, despite the fact that the municipality at issue was a charter city.

See Manlou v. Cleveland Civil Serv. Commn., 8th Dist. Cuyahoga No. 85213, 2005-Ohio-2850;

Zupp v. Columbus Mun. Civil Serv. Commn., 187 Ohio App.3d 614, 2010-Ohio-2614, 933

N.E.2d 281 (10th Dist.).

       {¶ 38}    In Manlou, the Eighth District concluded that Cleveland’s Civil Service Rule

8.20, which governs layoffs, did not conflict with R.C. 124.321. Id. at ¶ 17. It reasoned that the

rule “appears to adopt the spirit of R.C. 124.321 relative to layoffs, and remains silent in regard

to other actions, such as filing the statement of rationale. Thus, we reject the City’s argument

that R.C. 124.321 is inapplicable to this case.” Id. Because Cleveland’s civil service rules

included rules regarding layoffs and those rules followed the state statutory provisions, we find

Manlou to be distinguishable.

       {¶ 39} Zupp is also distinguishable.        In that case, classified employees sought to

exercise bumping rights after they were laid off; the City of Columbus concluded that, under the
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collective bargaining agreement with the City, the employees could not bump less senior

bargaining-unit employees.      The city charter provided for an appeal to the civil service

commission for classified employees who were “discharged or reduced in rank or compensation.”

 The employees were entitled to an appeal because such employees, under Zupp, included

classified employees who were subject to layoff. We do not agree that a layoff is the equivalent

of a discharge or other disciplinary action. Fenton, 31 Ohio St.3d at 73, fn.2 (“a layoff is not the

functional equivalent of a suspension, reduction in rank or discharge”). We therefore disagree

with Zupp’s conclusion that a city’s appeal procedures for discharges and reductions in rank or

pay provide appellate rights for an employee whose position has been abolished.

       {¶ 40}    Robinson and Corbitt’s assignment of error is overruled.

       {¶ 41} In short, we agree with the trial court that Robinson and Corbitt’s constitutional

right to due process was not violated when their positions as Program Supervisor were abolished

by the Dayton City Commission. Moreover, they did not have a right to appeal the abolishment

to the Dayton Civil Service Board as the Board did not have jurisdiction over appeals from

layoffs or the abolishment of positions. Accordingly, the trial court properly granted the City’s

motion for summary judgment and overruled the employees’ motion for summary judgment.

                                                III.

       {¶ 42}    The trial court’s judgment will be affirmed.

                                           ..........

GRADY, P.J. and DONOVAN, J., concur.

Copies mailed to:

Jeffrey M. Silverstein
Jason P. Matthews
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John J. Danish
John C. Musto
Hon. Barbara P. Gorman
