[Cite as Massillon Civ. Serv. Comm. v. Rogers, 2014-Ohio-1403.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



CITY OF MASSILLON CIVIL SERVICE                           JUDGES:
COMMISSION, ET AL.                                        Hon. John W. Wise, P. J.
                                                          Hon. Patricia A. Delaney, J.
        Appellants                                        Hon. Craig R. Baldwin, J.

-vs-                                                      Case No. 2013 CA 00100

THOMAS P. ROGERS
                                                          OPINION
        Appellee




CHARACTER OF PROCEEDING:                              Civil Appeal from the Court of Common
                                                      Pleas, Case No. 2012 CV 03938


JUDGMENT:                                             Affirmed



DATE OF JUDGMENT ENTRY:                               March 31, 2014



APPEARANCES:

For Appellants                                        For Appellee

PERICLES G. STERGIOS                                  CRAIG T. CONLEY
CITY LAW DIRECTOR                                     604 Huntington Plaza
ROBERT A. ZEDELL                                      220 Market Avenue South
ASSISTANT LAW DIRECTOR                                Canton, Ohio 44702
Two James Duncan Plaza
Massillon, Ohio 44646
Stark County, Case No. 2013 CA 00100                                                     2

Wise, P. J.

       {¶1}. Appellants, the City of Massillon Civil Service Commission and the City of

Massillon (hereinafter "City of Massillon"), appeal the decision of the Court of Common

Pleas, Stark County, which overturned an administrative appeal decision by the

Commission regarding a promotional examination of Appellee Thomas P. Rogers for

the rank of police sergeant. The relevant facts leading to this appeal are as follows.

       {¶2}. Appellee Rogers is a police officer for the City of Massillon and a member

of the Massillon F.O.P. Henderson Lodge Police Officers Association (hereinafter

"Union"). On July 11, 2012, a notice of promotional examination for the position of

Sergeant in the Massillon Police Department was formally posted. Appellee decided to

pursue the promotional opportunity. The aforesaid notice of examination included

wording to the effect that seniority points would be added to the test scores, although

Appellant City now concedes that the notice was incorrect and should not have

contained that wording because the relevant statute had, by then, been amended to

eliminate any reference to the addition of seniority points to the exam scores.

       {¶3}. An agreement between the Union, of which Officer Rogers is a member,

and the City of Massillon, covering the period from January 1, 2009 through December

31, 2011, was extended to June 30, 2012 while a new contract was being negotiated

(Ordinance No. 109-2011). The “new” contract, covering the period from July 1, 2012 to

June 30, 2015, was signed on November 19, 2012.

       {¶4}. Both contracts contain the following provision:

       {¶5}. Section 43.7 The scores of the written examination and the assessment

shall be adjusted as necessary to accurately reflect the percentages called for in
Stark County, Case No. 2013 CA 00100                                                    3


Section 43.2. The candidates' final score shall consist of the adjusted raw scores from

the written examination and the assessment portion, plus seniority points. If there is a

tie in the final score after the seniority points have been added, the tie shall be broken

by determining the applicant with the most departmental seniority. Credit for seniority

shall be awarded in accordance with Sections 124.31 and 124.44 of the Ohio Revised

Code. Seniority credit shall be added to the final aggregate score of the combined

written examination and assessment process. Seniority credit shall be computed as of

the date the written examination is conducted. (Emphasis added).

      {¶6}. Effective June 30, 2011 (during the term of the “old” contract), R.C. Sec.

124.31 was amended by the Ohio General Assembly, completely eliminating the

provisions for the computation and addition of seniority points to promotional exams

covered by the statute.

      {¶7}. The aforesaid examination for sergeants was administered on September

29, 2012. Four applicants, including Appellee Rogers, achieved a passing score.

However, appellee was not awarded any seniority points.

      {¶8}. Appellee thereupon appealed his denial of seniority points for promotion to

the City of Massillon Civil Service Commission. That appeal was heard by the

Commission and was denied.

      {¶9}. Officer Rogers subsequently filed a notice of administrative appeal to the

Stark County Court of Common Pleas. On April 17, 2013, the common pleas court

reversed the ruling of the Civil Service Commission, holding that the effective date of

the most recent contract between the Union and the City was the date the contract was

signed and that the statute in effect at the beginning date of the contract controls. It
Stark County, Case No. 2013 CA 00100                                                     4


correspondingly found that the new contract, by its own terms, did not come into effect

until November 19, 2012, several months after the administration of the subject

promotional exam. The trial court proceeded to apply the "old" contract under the terms

in effect on its commencement date of 2009, before the 2011 statutory amendments

eliminating seniority points, thus awarding appellee his seniority points for promotion to

sergeant.

       {¶10}. Appellant City of Massillon filed a notice of appeal to this Court on May 14,

2013. It herein raises the following sole Assignment of Error:

       {¶11}. “I. THE [TRIAL] COURT ERRED WHEN IT REVERSED THE RULING

OF THE CIVIL SERVICE COMMISSION.”

                                                I.

       {¶12}. In its sole Assignment of Error, Appellant City of Massillon contends the

trial court committed reversible error in reversing the civil service commission's decision

to deny seniority points regarding sergeant's promotion to appellee. We disagree.

                          Common Pleas Court's Standard of Review

       {¶13}. R.C. 2506.04 sets forth the applicable standard of review for a court of

common pleas in R.C. 2506-based administrative appeals. It provides in pertinent part

as follows:

       {¶14}. "*** [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
Stark County, Case No. 2013 CA 00100                                                    5


instructions to enter an order, adjudication, or decision consistent with the findings or

opinion of the court. The judgment of the court may be appealed by any party on

questions of law as provided in the Rules of Appellate Procedure and, to the extent not

in conflict with those rules, Chapter 2505. of the Revised Code."

      {¶15}. In reviewing an appeal of an administrative decision, a court of common

pleas begins with the presumption that the board's determination is valid, and the

appealing party bears the burden of showing otherwise. See C. Miller Chevrolet v.

Willoughby Hills (1974), 38 Ohio St.2d 298, 302, 313 N.E.2d 400.

      {¶16}. The Ohio Supreme Court further stated as follows in Henley v.

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

      {¶17}. “[W]e have distinguished the standard of review to be applied by common

pleas courts and courts of appeals in R.C. Chapter 2506 administrative appeals. The

common pleas court considers the ‘whole record,’ including any new or additional

evidence admitted under R.C. 2506.03, and determines whether the administrative

order is unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by

the preponderance of substantial, reliable, and probative evidence. See Smith v.

Granville Twp. Bd. of Trustees (1998), 81 Ohio St.3d 608, 612, 693 N.E.2d 219, * * *

citing Dudukovich v. Lorain Metro. Hous. Auth. (1979), 58 Ohio St.2d 202, 206-207, 12

O.O.3d 198, 389 N.E.2d 1113 * * *.”

                                 Appellate Standard of Review

      {¶18}. As an appellate court, however, our standard of review to be applied in an

R.C. 2506.04 appeal is “more limited in scope.” Kisil v. Sandusky (1984), 12 Ohio St.3d

30, 34, 12 OBR 26, 465 N.E.2d 848. “This statute grants a more limited power to the
Stark County, Case No. 2013 CA 00100                                                    6


court of appeals to review the judgment of the common pleas court only on ‘questions of

law,’ which does not include the same extensive power to weigh ‘the preponderance of

substantial, reliable and probative evidence,’ as is granted to the common pleas court.”

Id. at f.n. 4. See, also, Health Management, Inc. v. Union Twp. Bd. of Zoning Appeals

(1997), 118 Ohio App.3d 281, 285, 692 N .E.2d 667. “It is incumbent on the trial court to

examine the evidence. Such is not the charge of the appellate court.” Lorain City School

Dist. Bd. of Edn. v. State Emp. Relations Bd. (1988), 40 Ohio St.3d 257, 261, 533

N.E.2d 264. Ultimately, the standard of review for appellate courts in a 2506 appeal is

“whether the common pleas court abused its discretion in finding that the administrative

order was or was not supported by reliable, probative and substantial evidence.” See

Weber v. Troy Twp. Bd. of Zoning Appeals, Delaware App.No. 07 CAH 04 0017, 2008-

Ohio-1163, ¶ 13, citing City of Ashland v. Gene's Citgo, Inc. (2000), Franklin App. No.

99AP-938, 2000 WL 423992.

                               Analysis of the Trial Court Ruling

      {¶19}. It is undisputed that both the "old" 1/1/09-6/30/12 extended contract and

the "new" 7/1/12-6/30/15 contract use the now-obsolete definition of a final score as

including "seniority points." However, both contracts nonetheless defer to statutory

authority by including the following: "Credit for seniority shall be awarded in accordance

with Sections 124.31 and 124.44 of the Ohio Revised Code." We also observe that the

Collective Bargaining Agreement itself states: "If by operation of law or by a court of

competent jurisdiction it is found that any provision shall be of no further force and

effect, the remainder of the Agreement shall remain in full force and effect for the

Agreement term." CBA, Article II.
Stark County, Case No. 2013 CA 00100                                                       7


       {¶20}. Appellant City of Massillon herein maintains that the events pertinent to

the present appeal all occurred under the term of the "new" contract, i.e., the 7/1/12-

6/30/15 version. The trial court, however, determined that the "old" contract, i.e., the

1/1/09-6/30/12 version, would control, based on the prefatory language that "[t]erms of

this contract shall be effective as of the date of signing." The trial court reasoned that

because the "new" contract was not fully signed until November 19, 2012, the notice of

examination of July 11, 2012 and the actual examination of September 29, 2012 must

fall under the terms of the "old" contract. The trial court finally reasoned that because

"[t]he statute in effect at the beginning date of the contract controls," the earlier version

of R.C. 124.31 (prior to the June 30, 2011 amendments) must be applied, based on the

"old" contract's apparent beginning date of January 1, 2009. See Judgment Entry at 3.

Accordingly, the trial court reversed the Commission decision and awarded appellee his

seniority points.

                                            Conclusion

       {¶21}. Based on our more limited standard of review as an appellate court in an

R.C. 2506 appeal, and given the unusual alignment of events in this matter and the

tentative language of Section 43.7 of the contracts, we hold the trial court's decision to

reverse the Commission's decision by reverting to the terms of the old contract as

understood on its 2009 commencement date, prior to the statutory removal of seniority

points in 2011, does not rise to the level of abuse of discretion or reversible error.
Stark County, Case No. 2013 CA 00100                                                 8


      {¶22}. Appellant’s sole Assignment of Error is therefore overruled.

      {¶23}. For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Stark County, Ohio, is hereby affirmed.


By: Wise, P. J.

Baldwin, J., concurs.

Delaney, J., dissents.




JWW/d 0304
Stark County, Case No. 2013 CA 00100                                                        9

Delaney, J., dissenting.

       {¶24} I respectfully dissent from the majority opinion.

       {¶25} I would follow R.C. 124.31, as amended by the Ohio General Assembly,

effective June 30, 2011, and the parties’ contractual intentions as set forth in Article II of

the CBA, which includes reference to R.C. 124.31, in both the old and new contracts.

While it is unfortunate the City of Massillon made a mistake in failing to eliminate

reference to seniority points in the notice of promotional examination, the outcome of

this case is unaffected by the mistake.

       {¶26} As a matter of law, the trial court was incorrect in reversing the

Commission’s decision. I would therefore sustain Appellant’s sole Assignment of Error.




                                               ______________________________
                                               HON. PATRICIA A. DELANEY
Stark County, Case No. 2013 CA 00100   10
