[Cite as Pack v. Wilmington, 2014-Ohio-446.]



                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                          CLINTON COUNTY




JACOB PACK,                                     :

        Appellant,                              :        CASE NO. CA2013-08-015

                                                :               OPINION
   - vs -                                                        2/10/2014
                                                :

CITY OF WILMINGTON,                             :

        Appellee.                               :



             APPEAL FROM CLINTON COUNTY COURT OF COMMON PLEAS
                             Case No. CVF20130204



Hapner & Hapner, Jon C. Hapner, 127 North High Street, Hillsboro, Ohio 45133, for appellant

Blaugrund, Herbert, Kessler, Miller, Myers & Postalakis, Stephen P. Postalakis, David S.
Blaugrund, 300 West Wilson Bridge Road, Suite 100, Worthington, Ohio 43085-2279, for
appellee



        HENDRICKSON, P.J.

        {¶ 1} Plaintiff-appellant, Jacob Pack, appeals a decision of the Clinton County Court

of Common Pleas dismissing his appeal from a decision rendered by the city of Wilmington

Civil Service Commission (commission) for lack of subject matter jurisdiction. For the

reasons outlined below, we affirm the dismissal of Pack's appeal.

        {¶ 2} Pack was initially hired by the city as a refuse collector, and he served in this
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capacity for approximately three years. After a vehicle operator was promoted in June 2009,

Pack's supervisor informally assigned Pack to fulfill tasks of the promoted employee's former

position. When Pack was assigned to this position, he was also given a ten percent pay

raise because he was working outside of his classification. The commission did not approve

Pack's appointment as a vehicle operator or the increase in pay.

       {¶ 3} In September 2012, the human resources director for the city requested that

the commission upgrade Pack's pay scale from that of a refuse collector to that of a vehicle

operator. The commission approved the increase. However, because there was never a

competitive exam to fill the vehicle operator position, other employees filed a grievance. As a

result, the commission rescinded Pack's pay scale increase and ordered that a competitive

exam be held.

       {¶ 4} Three individuals, including Pack, took the competitive exam for the vehicle

operator position. Pack received the highest score on the examination. Nevertheless,

another person was appointed to fill the vehicle operator position. Pack, upset that he was

not appointed to fill the vehicle operator position, filed an appeal with the commission. The

commission considered Pack's appeal without a hearing and notified Pack via letter dated

March 21, 2013 that his appeal was denied.

       {¶ 5} Pack appealed the decision of the commission to the Clinton County Court of

Common Pleas. The city moved to dismiss Pack's appeal for lack of subject matter

jurisdiction. In ruling on the city's motion, the Clinton County Court of Common Pleas

determined that R.C. 119.12, the general statute regarding administrative appeals, provides

that subject matter jurisdiction lies with the Franklin County Court of Common Pleas for

nondisciplinary matters. The court further determined that R.C. 124.34(B), the statute

dealing with the reduction, suspension, and removal of classified government employees,

allows for administrative appeals in the county in which the appointing authority is located
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(here, Clinton County) only when the matter being appealed from involves disciplinary

matters. Finally, the court held that actions of administrative officers and agencies can only

be appealed under R.C. 2506.01, the statute allowing appeals from any agency of any

political subdivision, if the appeal is the result of a quasi-judicial proceeding.

       {¶ 6} Because Pack's appeal constituted a nondisciplinary administrative appeal that

was not quasi-judicial in nature, the Clinton County Court of Common Pleas held that Pack's

appeal should have been filed in the Franklin County Court of Common Pleas.

Consequently, the court found that it lacked subject matter jurisdiction to consider his appeal.

Pack now appeals and asserts one assignment of error for review:

       {¶ 7} THE [CLINTON COUNTY COURT OF COMMON PLEAS] ERRED IN

DISMISSING THIS APPEAL FROM THE CIVIL SERVICE COMMISSION.

       {¶ 8} Pack argues that his appeal was proper in the Clinton County Court of Common

Pleas under R.C. 2506.01, which provides in part:

              (A) Except as otherwise provided in sections 2506.05 to
              2506.08 of the Revised Code, and except as modified by this
              section and sections 2506.02 to 2506.04 of the Revised Code,
              every final order, adjudication, or decision of any officer,
              tribunal, authority, board, bureau, commission, department, or
              other division of any political subdivision of the state may be
              reviewed by the court of common pleas of the county in which
              the principal office of the political subdivision is located as
              provided in Chapter 2505. of the Revised Code.

              (B) The appeal provided in this section is in addition to any
              other remedy of appeal provided by law.

Nevertheless, the Ohio Supreme Court has stated that the court of common pleas does not

have jurisdiction to hear administrative actions of administrative officers and agencies that

are not the result of quasi-judicial proceedings under the provisions of R.C. 2506.01. M. J.

Kelley Co. v. City of Cleveland, 32 Ohio St.2d 150 (1972), paragraph one of the syllabus. Id.

A quasi-judicial proceeding requires notice, a hearing, and the opportunity to introduce


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evidence. Id. at paragraph two of the syllabus. See also Monroe v. Smith, 12th Dist. Warren

No. CA84-08-050, 1985 WL 8152, *3 (Jan. 28, 1985) ("Proceedings of administrative officers

and agencies are not quasi-judicial where there is no requirement for notice, hearing, and the

opportunity for the introduction of evidence"). Consequently, to determine whether Pack was

entitled to appeal to the Clinton County Court of Common Pleas pursuant to R.C. 2506.01 we

must decide whether quasi-judicial proceedings were required in this instance.

       {¶ 9} Pack concedes that there was no notice or hearing in this matter, but asserts

the failure to conduct such proceedings was error because of the requirements set forth in

Chapter 5 of the city's "Municipal Civil Service Commission Civil Service Rules" (civil service

rules). Chapter 5 of the civil service rules is entitled "Procedures and Requirements for

Hearings Before the Civil Service Commission." Rule 5-02 of the civil service rules states

that the commission shall set a time and place for an appeal when there is "a timely appeal

from an order of removal or reduction in pay or position, or suspension for more than three

(3) working days * * * " and "shall notify the appropriate appointing authority as well as the

employee * * *." Such procedures were not followed in this case. The city argues that

Chapter 5 of the civil service rules does not apply because Pack's failure to be appointed to a

vehicle operator position was not disciplinary in nature. While Pack concedes that the action

was not disciplinary in nature, he asserts that Chapter 5 of the rules of the civil service

commission is not restricted to disciplinary matters as the terms "reduction," "suspension,"

and "removal" have meaning outside of the disciplinary context. We agree with the city's

argument.

       {¶ 10} In promulgating the civil service rules, the commission utilized R.C. 124.40,

which states that "[t]he 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."

The sections of the civil service rules that require notice, a hearing, and an opportunity to
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present evidence utilize the terms "reduction," "suspension," and "removal."1 Such language

mirrors language used in R.C. 124.34, which only applies to disciplinary actions. See Turner-

Brannock v. Ohio Bur. of Emp. Servs., 15 Ohio App.3d 134, 137 (12th Dist.1984). The

definitional section of the civil service rules also defines the terms "suspension" and

"removal" by either referencing disciplinary measures or R.C. 124.34. Clearly the terms

"reduction," "suspension," and "removal" as utilized within Chapter 5 of the civil service rules

have disciplinary connotations.

             {¶ 11} Furthermore, other civil service rules within Chapter 5 indicate that Chapter 5

distinctively applies to disciplinary measures. Rule 5-06 requires the appointing authority, at

the required hearing, "produce its evidence in support of the charges against the employee."

Rule 5-07 of the civil service commission specifically refers to disciplinary actions by requiring

the appointing authority to prove "the factual allegations in a disciplinary order" and mandates

a "pre-disciplinary conference." It is evident that Chapter 5 of the civil service rules applies to

disciplinary matters.

             {¶ 12} Additionally, Pack argues that Chapter 5 of the civil service rules applies to him

as he had become a classified employee entitled to its protections after working as a vehicle

operator provisionally for a period of two years. However, Pack was not provisionally

appointed to the vehicle operator position. Rather, he was assigned the duties by his direct

supervisor instead of being appointed by the appropriate appointing authority and having

such appointment approved by the commission, as required by Rule 14-02 of the civil service
         2
rules.        Furthermore, under R.C. 124.271, in order to become a permanent employee, a


1. Rule 5-01(B) of the civil service states that the employee bears the burden of establishing that an alleged
reduction, removal, or suspension has occurred. Rule 5-02 of the civil service states that the commission shall
set a time and place for an appeal when there is "a timely appeal from an order of removal or reduction in pay or
position, or suspension for more than three (3) working days * * * " and "shall notify the appropriate appointing
authority as well as the employee * * *."

2. Rule 14-02 of the civil service rules states: "Selection of persons to be appointed on a provisional basis in the
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person must be appointed to position under R.C. 124.30 and demonstrate merit and fitness

by meeting certain criteria.3 In this instance, Pack was not appointed by the appointing

authority under R.C. 124.30, and there is no indication that the appointing authority

requested a competitive examination prior to Pack filling the position. When a competitive

examination was held sometime after September 2012, the commission was permitted by law

to appoint any person eligible to the vehicle operator position as there were fewer than 10

eligible persons. R.C. 124.27.

        {¶ 13} Finally, we note that Pack's notice of appeal does not argue a "reduction,"

"suspension," or "removal" disciplinary action. Rather, Pack argues in his notice of appeal

that it was a "displacement from the position [of] vehicle operator" and was appealing

pursuant to R.C. 124.328. "It is well-established that a party cannot raise new issues or legal

theories for the first time on appeal." Hamilton v. Ebbing, 12th Dist. Butler No. CA2011-01-

001, 2012-Ohio-2250, fn. 3.

        {¶ 14} In light of the foregoing considerations, we find that the provisions of Chapter 5

of the civil service rules relied on by Pack do not apply to this matter as such provisions only

apply to disciplinary matters. Proceedings in this instance were not quasi-judicial, nor were

quasi-judicial proceedings required. Consequently, the Clinton County Court of Common

Pleas did not err in finding it lacked subject matter jurisdiction to hear Pack's appeal and that

the Franklin County Court of Common Pleas was the proper court with jurisdiction to hear

Pack's appeal. Pack's sole assignment of error is, therefore, overruled.




absence of a complete eligible list shall be made by the appointing authority, subject to approval by the
commission."

3. R.C. 124.271 provides that "[a]ny employee in the classified service of the state or any county [or] city * * *
who is appointed to a position under section 124.30 of the Revised Code, and either demonstrates merit and
fitness for the position by successfully completing the probationary period for the position or remains in the
position for a period of six months of continuous service, whichever period is longer, shall become a permanent
appointee in the classified service at the conclusion of that period."
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                                       Clinton CA2013-08-015

{¶ 15} Judgment affirmed.


RINGLAND and M. POWELL, JJ., concur.




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