[Cite as Martucci v. Akron Civ. Serv. Comm., 194 Ohio App.3d 174, 2011-Ohio-1782.]


STATE OF OHIO                   )                        IN THE COURT OF APPEALS
                                )ss:                     NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                )

MARTUCCI,                                                C.A. No.         25414

        Appellant,

        v.                                               APPEAL FROM JUDGMENT
                                                         ENTERED IN THE
AKRON CIVIL SERVICE COMMISSION,                          COURT OF COMMON PLEAS
                                                         COUNTY OF SUMMIT, OHIO
        Appellee.                                        CASE No.   CV-2009-08-6453

                                DECISION AND JOURNAL ENTRY

Dated: April 13, 2011



        Michael B. Bowler and Vincent V. Vigluicci, for appellant.

        Cheri B. Cunningham, Akron Law Director, and Stephen Fallis, Deborah M. Foria, and
        Tammy Kalail, Assistant Law Directors, for appellee.

   _________________________________________________________________________


        FRENCH, Judge.

                                           INTRODUCTION

        {¶1}    Appellant, Dominic J. Martucci, appeals the judgment of the Summit County

Court of Common Pleas, which affirmed the decision of the Akron Civil Service Commission

denying appellant's appeal from the commission's removal of his name from the list of eligible

candidates for appointment as a police officer.           The commission removed appellant from

eligibility because his age exceeds the maximum-age limitation (31 years) contained in a city

ordinance. The ordinance, we conclude, is not inconsistent with state law. Having based its

decision solely on the ordinance, the commission's decision to remove appellant from eligibility
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was not arbitrary.   Therefore, the trial court did not abuse its discretion by affirming the

commission's decision to remove appellant from eligibility. We affirm.

                                         BACKGROUND

       {¶2}    The charter for the city of Akron authorizes the personnel director of the

commission to prescribe rules for open, competitive examinations to test applicants for positions

within the classified service, including police-officer positions, and to maintain eligible lists of

successful candidates. Akron City Charter 106. See also Akron City Charter 105. Prior to

actually becoming a police officer, however, a successful candidate must also meet state

statutory requirements. Important here, a person may receive an appointment as a police officer

only if he or she first completes a basic training program approved by the Ohio Peace Officer

Training Commission (“OPOTC”). See R.C. 109.77(B)(1)(a). Training programs may occur at

the Ohio Peace Officer Training Academy (“OPOTA”) or an approved local police academy.

See R.C. 109.75(A) (allowing the executive director of OPOTC to approve peace officer training

schools); R.C. 109.79 (establishing OPOTA).

       {¶3}    In July 2008, the commission announced competitive merit examinations for the

position of police officer in the Akron police department. The bulletin identified minimum

qualifications for the position, including the following: “Candidates must be within the age

range [of] 21 years through 31 years.”

       {¶4}    Appellant's date of birth is April 18, 1977. In August 2008, at the age of 31,

appellant submitted an application in response to the posting. Thereafter, appellant received

written instructions for taking a written examination and a notice that if he passed the written
                                                3


exam, he may be required to pass additional tests and “successfully complete the academy.”1

The exam instructions identified the 21 to 31 years age requirement and stated: “If you are 31

now and turn 32 before appointment to the academy, you will be ineligible for the position.

Appointment date is your first day of paid status.” (Emphasis sic.)

       {¶5}    In December 2008, appellant received notice that his score on the written exam

qualified him to participate in the OPOTA physical-fitness test, which he subsequently passed.

Appellant's score on the written exam gave him a rank of 15 on the list of individuals eligible for

appointment.

       {¶6}    In March 2009, the personnel director of the commission notified appellant that

his name would be removed from the eligibility list. The letter noted that appellant would turn

32 on April 18, 2009. Because he could not be appointed before that date, he was ineligible for

further consideration. Appellant appealed the letter to the commission, which denied his appeal

after a hearing.

       {¶7}    Appellant appealed the commission's denial to the Summit County Court of

Common Pleas. In a decision rendered April 22, 2010, the court affirmed the commission's

denial. Appellant appealed to this court.

                                   STANDARD OF REVIEW

       {¶8}    R.C. Chapter 2506 governs administrative appeals from decisions by a civil

service commission. R.C. 2506.01. The appeal proceeds first to the court of common pleas. Id.

R.C. 2506.04 prescribes the common pleas court's standard of review:




       1
       It is unclear whether this reference to “the academy” is to OPOTA or an approved local
academy; however, clarification of the reference is unnecessary to our decision.
                                                 4


               [T]he court may find that the order, adjudication, or decision is
       unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by
       the preponderance of substantial, reliable, and probative evidence on the whole
       record. Consistent with its findings, the court may affirm, reverse, vacate, or
       modify the order, adjudication, or decision, or remand the cause to the officer or
       body appealed from with instructions to enter an order, adjudication, or decision
       consistent with the findings or opinion of the court.

       {¶9}    Our standard of review is more limited.            We must affirm the court of

common pleas unless that court's decision “‘is not supported by a preponderance of reliable,

probative and substantial evidence.’” Smith v. Granville Twp. Bd. of Trustees (1998), 81 Ohio

St.3d 608, 613, quoting Kisil v. Sandusky (1984), 12 Ohio St.3d 30, 34.             In making that

determination, we apply an abuse-of-discretion standard. Wilson v. Akron Council, 9th Dist. No.

22793, 2006-Ohio-1483, ¶ 14. An abuse of discretion is more than an error of judgment, but

instead demonstrates “perversity of will, passion, prejudice, partiality, or moral delinquency.”

Pons v. Ohio State Med. Bd. (1993), 66 Ohio St.3d 619, 621. When applying the abuse-of-

discretion standard, we may not substitute our judgment for that of the trial court. Id.

       {¶10} With these standards in mind, we turn to appellant’s assignments of error.

                                  ASSIGNMENT OF ERROR I

            The trial court abused its discretion when it upheld the Civil Service
       Commission's invalid interpretation of Ohio Revised Code § 124.41.

       {¶11} In this assignment, appellant contends that the trial court erred by enforcing the

age limitation contained in the position posting. Specifically, he argues that the city ordinance

giving rise to the age limitation is contrary to state law. We disagree.

       {¶12} R.C. 124.41 provides that “[e]xcept as otherwise provided in this section, no

person is eligible to receive an original appointment” as a police officer when that person is 35

years old or older, “and no person can be declared disqualified as over age prior to that time.”

The statute goes on to provide, however, that the “maximum age limitation established by this
                                                  5


section does not apply to a city in which an ordinance establishes a different maximum age

limitation for an original appointment to the police department.”

       {¶13} The city of Akron has passed an ordinance that establishes a different maximum-

age limitation for an original appointment to its police department. The city did so in 1998,

when it passed Akron Ordinance No. 15-1998, which “establishes the maximum hiring age for

original appointments to the Akron Police Department at thirty-one (31) years of age.”

       {¶14} Appellant contends that the age limitation of 31 years contained within the city

ordinance contravenes the age limitation of 35 years contained within R.C. 124.41. To reach this

conclusion, we would have to read R.C. 124.41 to prohibit a city from establishing a lower

maximum-age limitation. As we noted, however, R.C. 124.41 expressly states that the 35-years-

of-age limitation does not apply if a city establishes a different maximum-age limitation.

Because the city of Akron established a different age limitation, the maximum-age limitation

contained in R.C. 124.41 does not apply.

       {¶15} Appellant also states that the city's adoption of a maximum-age limitation of 31

years was arbitrary.     Appellant did not challenge the ordinance in his appeal before the

commission. Rather, his first direct challenge to the ordinance was in his reply brief before the

trial court, in which he argued, in a footnote, that the ordinance is “invalid and unconstitutional.”

The trial court rejected appellant's attempt to raise an argument for the first time in a reply brief,

and he does not argue here that the trial court erred by doing so. An appellant who fails to raise a

proper challenge in the trial court may not do so for the first time on appeal. State v. Awan

(1986), 22 Ohio St.3d 120, 122 (as a general rule, an appellate court will not consider any error

that a party could have called, but did not call, to the trial court's attention). We decline to

address appellant's challenge to the ordinance.
                                                  6


       {¶16} The trial court did not err when it affirmed the commission's enforcement of a

maximum-age limitation of 31 years. Because appellant would reach the age of 32 prior to any

appointment, the commission's removal of appellant's name from the list of eligible candidates

for the police-officer position was fully consistent with the city ordinance. Therefore, we

overrule appellant's first assignment of error.

                                  ASSIGNMENT OF ERROR II

               The trial court abused its discretion when it upheld the Civil Service
       Commission's denial of [appellant's] appeal regarding the arbitrary requirement
       that city of Akron police candidates must be between 21 and 31 years of age prior
       to appointment to the police academy.

       {¶17} In his second assignment, appellant again argues that the city of Akron's adoption

of a maximum-age limitation of 31 years is arbitrary, an argument that we have already declined

to address. He also argues that the commission “failed to indicate what variables are considered

when determining a start date for the academy.”

       {¶18} In making these arguments, appellant states that “it is undisputed” that he “has

met the necessary qualifications to become a police officer for the city of Akron, both mentally

and physically.” While appellant has met many of the requirements for being appointed as a

police officer, he cannot meet the maximum-age limitation of 31 years. Because appellant is

more than 31 years old, he has not met the “necessary qualifications.”

       {¶19} As for the determination of a start date for candidates to enter the academy, we

agree with appellant that the record provides little evidence as to how that determination occurs.

Before the commission, the commission's personnel director “read the subject appeal into the

record” and stated the following: “There are many variables to be considered when determining a

start date for the academy. It would be difficult to establish a start date months in advance. As

of today [July 30, 2009], no date for an academy has been established.”
                                                  7


       {¶20} On direct examination, appellant's counsel asked about appellant's “knowledge of

the requirements for applying to the Akron Academy” and asked whether the city of Akron has

its own academy. Appellant responded that the city of Akron has its own academy but that

because he had already gone through the basic training program at OPOTA, he would only have

to go through a refresher course.

       {¶21} This evidence provides no indication of how, when, or by whom the decision is

made to establish a class of candidates for the academy (whether characterized as an Akron

academy or OPOTA) and appointment as police officers.             While appellant criticizes the

commission for this lack of evidence, it was his burden to show that the commission's decision to

exclude him from eligibility was arbitrary. He presented no evidence to show that his removal

arose from an arbitrary decision not to establish a class of candidates for basic training. With no

evidence indicating that the commission's decision was arbitrary, the trial court did not abuse its

discretion by affirming the commission's decision. Therefore, we overrule appellant's second

assignment of error.

                                    ASSIGNMENT OF ERROR III

               The trial court abused its discretion when it upheld the Civil Service
       Commission's unconstitutional denial of [appellant's] appeal of the city of Akron's
       arbitrary imposition of certain age requirements for police officers and failure to
       provide exemptions, in light of the city providing exemptions to female applicants
       from certain physical examinations.

       {¶22} In his third assignment, appellant contends that his removal from eligibility

violated his rights of equal protection. Specifically, he contends that the commission's decision

not to exempt candidates over the age of 31 is arbitrary because the commission exempts women

from certain physical-eligibility requirements.
                                                8


       {¶23} First, appellant provided no evidence before the commission or the trial court that

the commission does, in fact, exempt women from certain physical requirements for eligibility.

Before the commission, appellant's counsel asked appellant if he had ever been informed that

certain applicants were exempt from physical requirements. Counsel for the city objected on

grounds of relevancy, and the hearing examiner sustained the objection. Appellant's counsel

then argued that physical exemptions were relevant to the age limitation because “if you're

arbitrarily exempting women from some of the physical requirements, as we've understood that

some of the women were exempted from some of the physical requirements that are necessary

* * * there is an exception being made for them, so we'd say it's highly relevant.” The hearing

examiner again sustained the objection. Appellant neither proffered his testimony, nor offered

any other testimony or evidence concerning exemptions for women. There was no evidence

before the commission or the trial court to establish how, what, or to whom exemptions are

granted.

       {¶24} But even if there were such evidence, we fail to see the logic behind appellant's

argument. Before the trial court, appellant contended that the commission's removal of his name

from the list of eligible candidates was arbitrary in light of the commission's grant of exemptions

from certain physical requirements for women applicants.          On appeal, appellant similarly

contends that if the commission exempts women from certain requirements, then it has no

rational basis for not exempting applicants from the maximum-age limitation.

       {¶25} The commission removed appellant's name from the eligibility list based on a city

ordinance that established an age limitation of 31 years.        There is no evidence that the

commission has ever granted eligibility to any applicant over 31, that its decision was in any way

arbitrary, or that it removed appellant for any reason other than his age. That the commission
                                                  9


may grant exemptions from other requirements for eligibility does not affect the commission's

rational basis for enforcing the age limitation established by city ordinance. Therefore, we

overrule appellant's third assignment of error.

                                         CONCLUSION

       {¶26} Having determined that the trial court did not abuse its discretion by affirming the

commission's decision to remove appellant from the list of eligible candidates for appointment as

a police officer in the Akron police department, we overrule appellant's first, second, and third

assignments of error. We affirm the judgment of the Summit County Court of Common Pleas.

                                                                              Judgment affirmed.


       MOORE, J., concurs.

       BELFANCE, P.J., concurs separately.

       BELFANCE, Presiding Judge, concurring.


       {¶27} I concur. However, I write separately because I would affirm the commission’s

decision with respect to Martucci’s second assignment of error for a different reason.

       {¶28} In his second assignment of error, Martucci argues in part that the commission

“failed to indicate what variables are considered when determining a start date for the academy.”

However, in making this argument, Martucci has not explained how his focus on the variables

considered for a start date for the academy are relevant to the propriety of the decision of the

court of common pleas.

       {¶29} In its judgment entry, the common pleas court stated that “[t]he testimony at the

hearing evidences that Mr. Martucci was going to turn 32 years of age prior to being able to

obtain an original appointment to the Akron Police Department.” (Emphasis added.) In my
                                                10


view, Martucci has not demonstrated why this core determination, which refers to the language

of the municipal ordinance, is not supported by a preponderance of reliable, probative, and

substantial evidence.

       {¶30} Akron City Ordinance 15-1998 provides that “Council hereby establishes the

maximum hiring age for original appointments to the Akron Police Department at thirty-one (31)

years of age.”   During the proceedings before the commission, neither party argued about the

meaning of the term “original appointment.” The common pleas court found that the evidence

demonstrated that Martucci was going to turn 32 prior to being able to obtain an original

appointment to the police department. Implicit in that determination is the court’s view that an

original appointment to the police department occurs at a point when all the necessary steps for

hiring have been completed.

       {¶31} In his merit brief, Martucci has not offered a definition of “original appointment”

as employed in the ordinance and has not challenged the common pleas court’s implicit

determination of “original appointment.” Rather, he contends that the commission’s failure to

indicate what variables and guidelines are considered when determining a start date for the

academy somehow renders the commission’s decision that Martucci was beyond the hiring age

illegal, arbitrary, and unreasonable. However, the city’s ordinance establishing the age limitation

does not contain any reference to the start date of the police academy or in any way suggest that

the start date for the police academy could serve as a reference point for defining the phrase

“original appointment.” Rather, the ordinance states that the maximum hiring age for original

appointments to the police department is 31 years of age. Martucci has not argued that he was in

fact 31 years of age at the time of original appointment and he did not offer a definition of

“original appointment” when he appeared before the commission. Instead, he takes issue with
                                                11


the process that presumably culminates in obtaining an original appointment. In light of his

limited argument in this appeal, the meaning of the phrase “original appointment” is not properly

before this court. In addition, to the extent that Martucci contends that the city’s hiring process

is unlawful, he has failed to develop this argument.

       {¶32} Based upon this analysis, I would conclude that Martucci has not established that

the common pleas court erroneously affirmed the commission’s decision.
