[Cite as State ex rel. Cochran v. Boardman Twp. Bd. of Trustees, 196 Ohio App.3d 185, 2011-Ohio-4255.]




                           STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                       SEVENTH DISTRICT

STATE OF OHIO ex rel.      )
COCHRAN,                   )
                           )                              CASE NO. 10 MA 123
                           )
    V.                     )                                    OPINION
                           )                                     AND
BOARDMAN TOWNSHIP BOARD OF )                                 JUDGMENT ENTRY
TRUSTEES et al.            )

CHARACTER OF PROCEEDINGS:                         Petition for Writ of Mandamus.

JUDGMENT:                                         Petition Denied.

APPEARANCES:
                                                  Nancy Grim, for relator.

                                                  Gregory A. Beck and James F. Mathews, for
                                                  respondents, Boardman Township Board of
                                                  Trustees.

                                                  Daniel Leffler, for Ohio Patrolmen's
                                                  Benevolent Association.
JUDGES:
Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Joseph J. Vukovich

Dated: August 19, 2011


        PER CURIAM.
        {¶ 1} Relator, Jack Cochran, filed a petition for a writ of mandamus, seeking an
order compelling respondent, the Boardman Township Board of Trustees, to promote
Cochran, then a Boardman Township police sergeant, to the rank of lieutenant, effective
May 19, 2010, along with an order directing the board of trustees to compensate him for
all back pay, benefits, attorney fees, and costs. The Ohio Patrolman's Benevolent
Association (“OPBA”), the union representing Boardman Township police officers,
intervened as a respondent. The parties filed stipulations of fact along with cross-motions
for summary judgment.      For the following reasons, we deny Cochran's summary-
judgment motion, grant summary judgment in favor of the board of trustees and the
OPBA, and deny the writ.
                          Facts and Procedural Background
       {¶ 2} Relator Cochran was a sergeant for the Boardman Township Police
Department and is a member of respondent OPBA's bargaining unit. Respondent
Boardman Township Board of Trustees is the appointing authority for positions and
vacancies within the Boardman Township Police Department. During the time pertinent
to this lawsuit, the OPBA and the board of trustees were party to a collective-bargaining
agreement.
       {¶ 3} On December 11, 2008, the Township Civil Service Commission held a
competitive promotional examination to determine an eligibility list for promotion to the
rank of lieutenant for the police department. Cochran received the highest score on this
examination, and on January 21, 2009, the Civil Service Commission certified an eligibility
list for lieutenant based upon that exam, which listed Cochran as the top scorer. Edward
McDonnell was listed in second place, and Stephen Riwniak in fourth. This eligibility list
had an expiration date of January 21, 2011.
       {¶ 4} On April 26, 2010, the board of trustees promoted two lieutenants to
captains, leaving an opening for two lieutenants. On May 19, 2010, the board of trustees
first promoted McDonnell to the rank of police lieutenant.          After the removal of
McDonnell's name from the eligibility list, Riwniak was in third place. The board then
promoted Riwniak to lieutenant. Immediately prior to the two promotions from lieutenant
to captain, the township had fewer than two captains.           Immediately prior to the
promotions from sergeant to lieutenant the township had fewer than three lieutenants.
       {¶ 5} Cochran filed the instant mandamus petition on July 22, 2010, asserting that
pursuant to Boardman Township Civil Service Commission Rule VIII, as the top scorer on
the promotional exam he had a clear legal right to the promotion, and correspondingly,
the board of trustees had a clear legal duty to promote him. Cochran did not file any

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grievance or demand for arbitration relating to the appointments of McDonnell and
Riwniak to the rank of lieutenant. During the pendency of these proceedings, on
February 1, 2011, Cochran began a disability retirement from the police department.
                                    Legal Framework
       {¶ 6} This court has jurisdiction to hear an original mandamus action pursuant to
Article IV, Section 3(B)(1) of the Ohio Constitution and R.C. 2731.02. In order to be
entitled to a writ of mandamus a relator must establish (1) a clear legal right to the
requested relief, (2) a clear legal duty on the part of the respondent to provide such relief,
and (3) the lack of an adequate remedy in the ordinary course of law. State ex rel.
Zimmerman v. Tompkins (1996), 75 Ohio St.3d 447, 448, 663 N.E.2d 639. The burden is
on the relator to establish the elements to obtain the writ. State ex rel. Dehler v. Sutula
(1995), 74 Ohio St.3d 33, 34, 656 N.E.2d 332.
       {¶ 7} To be entitled to summary judgment, the moving party must demonstrate
that (1) no genuine issue of material fact exists, (2) the movant is entitled to judgment as
a matter of law, and (3) even construing the evidence most strongly in favor of the
nonmovant, reasonable minds could come to but one conclusion, and that conclusion is
adverse to the nonmoving party. State ex rel. Grady v. State Emp. Relations Bd. (1997),
78 Ohio St.3d 181, 183, 677 N.E.2d 343. The nonmoving party may not merely rest on
its allegations. A properly supported motion for summary judgment forces the nonmoving
party to produce evidence on any issue for which it bears the burden of proof. Dresher v.
Burt (1996), 75 Ohio St.3d 280, 293-294, 662 N.E.2d 264.
                                         Mootness
       {¶ 8} We must first address whether this mandamus action is now moot due to
Cochran's disability retirement from the police department on February 1, 2011. "A case
may be moot when there is no longer a 'live' issue to be determined, or when 'the parties
lack a legally cognizable interest in the outcome.' Allen v. Totes [totes]/Isotoner Corp.,
123 Ohio St.3d 216, 2009-Ohio-4231, 915 N.E.2d 622, at ¶ 17, quoting Los Angeles Cty.
v. Davis (1979), 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642." State ex rel.
Cordray v. Basinger, 7th Dist. No. 09 MA 119, 2010-Ohio-4870, at ¶ 80.
       {¶ 9} Both respondents argue that because Cochran is under Ohio PERS

                                              3
disability retirement from the police force, he no longer has an interest in being promoted
to lieutenant. However, Cochran still has a legally cognizable interest in the outcome of
this case because, assuming that he prevails, he could be entitled to back pay. State ex
rel. Bednar v. N. Canton (1994), 69 Ohio St.3d 278, 283, 631 N.E.2d 621 (prescribing
standard to establish back pay in wrongful failure to promote mandamus actions). Thus,
respondents' mootness argument is meritless.
                            Collective-Bargaining Agreement
       {¶ 10} Both respondents also argue that a writ should not issue, because
grievance and arbitration procedures set forth in the collective-bargaining agreement
between the parties provide an adequate remedy in the ordinary course of law for the
promotion dispute. Cochran counters that the CBA is silent regarding what promotion
procedures apply under the facts of this case.
       {¶ 11} A remedy is adequate if it is complete, beneficial, and speedy. State ex rel.
Horwitz v. Cuyahoga Cty. Court of Common Pleas, Probate Div. (1992), 65 Ohio St.3d
323, 328, 603 N.E.2d 1005. "A grievance and arbitration procedure in a collective
bargaining agreement generally provides an adequate legal remedy, which precludes
extraordinary relief in mandamus, when violations of the agreement are alleged by a
person who is a member of the bargaining unit covered by the agreement." State ex rel.
Walker v. Lancaster City School Dist. Bd. of Edn. (1997), 79 Ohio St.3d 216, 218, 680
N.E.2d 993, citing State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d at 449, 663
N.E.2d 639.
       {¶ 12} Article 10 of the CBA details a grievance procedure that culminates in
binding arbitration. In Section I of that Article, "grievance" is defined as "an allegation that
there has been a breach, misinterpretation, or misapplication of an article or section of the
parties' Agreement."
       {¶ 13} The only part of the CBA that addresses the procedure for promotions is
Article 18, entitled "Preservation of Rank/Promotions," which states:
       {¶ 14} "Section 1. Rank Structure above the Rank of Patrolman. The Township
agrees to maintain two (2) Captains, three (3) Lieutenants, and eight (8) Sergeants
positions. To the extent that there exist any vacancies above the rank of patrolman

                                               4
exceeding the baseline structure, those positions are deemed abolished upon the
departure of the current incumbent or previous incumbent if the position was vacant as of
the execution date of this Agreement. It is the intent of the parties to preempt R.C.
124.44, R.C. 124.321-124.328, R.C. 124.37, and any other applicable civil service statute
or rule having to deal with the filling and abolishment of positions above the rank of
patrolman with this language. However, in no event shall the number of promotional
opportunities and guaranteed minimum provided in this section restrict the Township's
ability to implement a reduction in force in accordance with Article 11 and the order of
layoff provided therein. This language only restricts the Employer from abolishing
positions in the ranks above patrolman, not initiating a layoff, where a temporary vacancy
may be created.
       {¶ 15} "Section 2. Promotional Procedure. After the composition of the promoted
ranks in the police department reaches the baseline rank structure, as set forth in Section
1, the parties agree that future promotions will be conducted in accordance with local civil
service law." (Emphasis added.)
       {¶ 16} It is undisputed that immediately prior to the promotions from sergeant to
lieutenant on May 19, 2010, the township had fewer than three lieutenants. Since the
baseline structure consists of three lieutenants, it is clear that the department had not
attained its baseline structure prior to the May 19, 2010 promotions that are at issue in
this case. In fact, in its motion for summary judgment at page nine, OPBA admits that
"[t]he two promotions from sergeant to lieutenant the Relator complains of were * * * the
promotions that brought the department into conformity with the rank structure specified
in Article 18, Section 1."
       {¶ 17} Cochran correctly argues that the CBA is silent as to what promotion
procedure governed during the May 19, 2010 promotions. Article 18, Section 1 does deal
with promotions before the department has attained its baseline structure but addresses
only the narrow issue of what procedure governs when there are vacancies that exceed
the baseline structure—which is not the situation here. Article 18, Section 1 fails to
provide a specific alternative procedure for promotions, when, as here, the department
has fewer than the specified baseline personnel. And Article 18, Section 2, which directs

                                             5
the application of local civil service rules, expressly applies only after the baseline
structure has been attained, which is not the case here.
       {¶ 18} In light of the CBA's silence on the applicable promotion procedure when
there are vacancies in the baseline number of position in a particular rank, the CBA fails
to provide an adequate remedy at law. In Walker, 79 Ohio St.3d 216, the Supreme Court
held that the grievance and arbitration procedure in a CBA did not constitute an adequate
remedy and preclude a writ when a teacher claimed that she was entitled to a salary
increase based on substitute-teaching experience and her claim centered on two specific
issues that were not included in the agreement, the calculation of days of substitute-
teaching experience for service credit purposes and the school board's authority to revoke
previously granted service credit. Id. at 218. See also State ex rel. Crites v. Windham
Exempted Village Bd. of Edn. (Dec. 17, 1999), 11th Dist. No. 99-P-0032 ("review of the
two applicable collective bargaining agreements shows that neither had a provision
controlling the determination of a teacher's right to a service credit for experience
obtained at another school district. As a result, because relator could not properly invoke
that procedure to settle the credit issue, she was not foreclosed from maintaining this
[mandamus] action").
       {¶ 19} Similarly, the CBA does not specify the procedure governing this dispute,
promotions occurring before the department has reached its baseline number of positions
for a particular rank. Moreover, Cochran is not seeking the enforcement of any specific
provision in the CBA. Rather he contends that he was entitled to the promotion based
upon local civil service rules. This strengthens his argument that the CBA did not provide
an adequate remedy.         See, e.g., State ex rel. Ohio Assn. of Public School
Emps./AFSCME, Local 4, AFL-CIO v. Batavia Local School Dist. Bd. of Edn. (2000), 89
Ohio St.3d 191, 198, 729 N.E.2d 743 (concluding that a collective-bargaining agreement
did not provide an adequate remedy at law barring mandamus relief because relators
sought enforcement of their statutory employment rights, not the enforcement of any
specific provision of the collective-bargaining agreement). Thus, the CBA does not
provide an adequate remedy in the ordinary course of law.
                             No Clear Legal Right or Duty

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       {¶ 20} Cochran contends that he has a clear legal right to the promotion based
upon Boardman Township Civil Service Commission Rule VIII, Section 9, entitled
"Promotion of Patrol Officers," which states:
       {¶ 21} " If there is a valid eligibility list, the Commission shall, where there is a
vacancy, immediately certify the name of the person having the highest rating and the
Appointing Authority shall appoint such person within thirty (30) days from the date of
such certification."
       {¶ 22} To the contrary, both respondents assert that Cochran has no clear legal
right to the promotion and, correspondingly, that respondent board of trustees is under no
legal duty to promote him, because pursuant to R.C. 505.49(B) and (C), the board could
promote any of the top three candidates.
       {¶ 23} R.C. 505.49(C) provides:
       {¶ 24} "(C)(1) Division (B) of this section does not apply to a township that has a
population of ten thousand or more persons residing within the township and outside of
any municipal corporation, that has its own police department employing ten or more full-
time paid employees, and that has a civil service commission established under division
(B) of section 124.40 of the Revised Code.         The township shall comply with the
procedures for the employment, promotion, and discharge of police personnel provided
by Chapter 124. of the Revised Code, except as otherwise provided in divisions (C)(2)
and (3) of this section.
       {¶ 25} " * * *
       {¶ 26} "(3) The appointing authority of an urban township, as defined in section
504.01 of the Revised Code, may appoint to a vacant position any one of the three
highest scorers on the eligible list for a promotional examination.” (Emphasis added.)
       {¶ 27} It is undisputed that Boardman Township has a population of 10,000 or
more persons residing within it and outside of any municipal corporation, has its own
police department employing ten or more full-time paid employees, and has a civil service
commission established under R.C. 124.40(B).
       {¶ 28} Thus, generally, pursuant to R.C. 505.49(C)(2), the Boardman Township
Board of Trustees must comply with the procedures for promotion of police personnel

                                             7
provided by R.C. Chapter 124. Both R.C. 124.44 and Boardman Township's Civil Service
Rules mandate that the top scorer on a promotional examination receive the promotion.
However, R.C. 505.49(C)(2), provides an express exception from this general rule with
respect to urban townships. It is undisputed that Boardman Township is an urban
township. Thus, pursuant to R.C. 505.49(C)(3), respondent Boardman Township Board
of Trustees may appoint to a vacant position any one of the three highest scorers on the
eligible list for a promotional examination.
       {¶ 29} The legislature's use of the word "may" in R.C. 505.49(C)(3) confers
discretion upon the board of trustees to deviate from the mandates of R.C. Chapter 124
or civil service rules derived therefrom and instead to promote any of the top three
scorers. Dorrian v. Scioto Conservancy Dist. (1971), 27 Ohio St.2d 102, 107, 56 O.O.2d
58, 271 N.E.2d 834 ("The statutory use of the word 'may' is generally construed to make
the provision in which it is contained optional, permissive, or discretionary"). It is well
established that mandamus will not issue to compel the performance of a discretionary
act absent an abuse of discretion, which is not alleged here. See State ex rel. Crabtree v.
Franklin Cty. Bd. of Health (1997), 77 Ohio St.3d 247, 249, 673 N.E.2d 1281.
       {¶ 30} Further, we disagree with Cochran's argument that the board of trustees
was required to implement or adopt a "rule of three" before it could exercise that option.
As the board of trustees points out, there is nothing in the plain language of R.C.
505.49(C)(3) that mandates this. It is axiomatic that " ‘[i]n construing a statute, we may
not add or delete words,’ " State ex rel. Cincinnati Bell v. Pub. Util. Comm. 105 Ohio St.3d
177, 2005-Ohio-1150, 824 N.E.2d 68, at ¶ 32, quoting State v. Hughes (1999), 86 Ohio
St.3d 424, 427, 715 N.E.2d 540. Thus, we agree that R.C. 505.49(C)(1) and (C)(3) are
self-executing.
       {¶ 31} Pursuant to R.C. 505.49(C)(3), respondent board of trustees was not under
a legal duty to promote Cochran, the top scorer on the promotional examination. Rather,
it had the discretion to promote any of the top three scorers on the exam.
              {¶ 32} Accordingly, the petition is denied. Costs taxed against relator.
                                                                              Writ denied.
DEGENARO, DONOFRIO, and VUKOVICH, JJ., concur.

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