Skip to main content

Ohio Supreme Court: ‘Retire/rehire’ plan in Wickliffe violated civil service law

Dan Trevas, Court News Ohio

The city of Wickliffe’s fire chief retired and was rehired the next day to the same position. The Supreme Court of Ohio ruled that rehire violated state law.

In a unanimous opinion, the Supreme Court found that the fire department is governed by the competitive promotional examination process and must fill a vacancy based on the competitive exam. The Court ruled that Wickliffe Fire Chief James Powers vacated his position when he retired in January 2020. State law did not authorize Powers to be rehired as chief the next day so he could collect a pension and his salary, a practice known as “double dipping.”

Writing for the Court, Justice Melody Stewart explained that the city argued that Powers had not vacated his position because he intended to stay in the post and his service was continuous. She noted that R.C. 124.48 does not require intent be shown to create a vacancy.

“Whether an incumbent intends to permanently leave a position or to leave with the expectation of immediately returning to that position is irrelevant to the determination whether the incumbent’s leaving creates a vacancy under R.C. 124.48,” Justice Stewart wrote.

Wickliffe’s Division of Fire includes a chief, four captains, three lieutenants and other grades of firefighters. The employees are members of the competitive-classified civil service system. Aside from the chief, the other fire division employees are represented by the International Association of Fire Fighters, Local 1536.

In January 2020, Powers had been in the fire department for 30 years, including 16 as the chief. He discussed his intention to pursue retirement with then-Mayor John Barbish and other city leaders. The city submitted Powers’ retirement paperwork to the Ohio Police and Fire Pension Fund.

Powers retired on Jan. 6, 2020. On Jan. 7, Barbish rehired Powers and swore him in as chief. The following month, Barbish sought and received city council authority to pay the fire chief’s salary. Barbish told the council that Powers did not vacate the position and that it was an administrative change.

Local 1536 notified the Wickliffe Civil Service Commission that it believed Powers’ retirement created a vacancy. The commission chairman replied that the term “retire/rehire” is commonly used for this type of action and that Powers had not resigned from the position.

In May 2020, the union expressed to the city law director that Powers’ retirement created a vacancy, and the post needed to be filled by competitive exam. It later suggested the law director prosecute Barbish for refusing to declare a vacancy. The law director took no action and claimed he did not have authority to prosecute the mayor.

Subsequently, the union filed a lawsuit in Lake County Common Pleas Court seeking to declare that a vacancy was created. The union argued that the retire/rehire plan violated civil service laws and deprived eligible Wickliffe fire captains of the opportunity to ascend to fire chief.  Wickliffe asked the court for summary judgment in its favor.

The trial court agreed with Wickliffe, granted its motion for summary judgment and dismissed the case. The union appealed to the Eleventh District Court of Appeals, which affirmed the trial court’s judgment. In a split decision, the Eleventh District concluded that Powers did not create a vacancy under R.C. 124.48 because he did not intend to leave the position permanently.

The Eleventh District also examined another law, R.C. 124.50, which governs the reinstatement process for police and firefighters who resign. The appellate court found that to resign, there must be an intent to resign and an act of relinquishment. The Eleventh District concluded that because Powers did not intend to resign and continued to serve as chief without interruption, he did not vacate the office.

Local 1536 appealed to the Supreme Court, which agreed to hear the case.

R.C. 124.48 states that whenever a vacancy occurs in a promoted rank in a fire department, the civil service commission must conduct a competitive promotional exam within 60 days. The appointing authority then must appoint the exam taker with the highest score.

Justice Stewart explained that the law does not define “vacancy,” and the Court looked to the definition of “vacancy” in Black’s Law Dictionary. The dictionary contains four definitions, including that the term sometimes refers to an office or post that is temporarily filled, but “the more usual reference is to an office or post that is unfilled even temporarily.” The opinion stated that the dictionary definitions support the union’s interpretation of the state law, and that Powers vacated the office when he retired.

The Court also pointed to its precedent, noting that in a 1989 decision regarding a police department vacancy, the Court considered the promotion process for police departments under R.C. 124.44. In Zavisin v. Loveland, the Court stated that a vacancy for purposes of R.C. 124.44 “automatically occurs upon the retirement of the incumbent.”

The opinion stated that the situation in Wickliffe is similar. The position had to be vacant for Powers to be rehired as chief. Citing the dissenting judge in the Eleventh District’s opinion, the Court noted that “to be rehired necessarily implies an existing vacancy which would trigger the statutorily mandated promotional process to fill the retired incumbent’s position.”

Even if Powers never intended to vacate his position, the law created a vacancy when he retired to collect his pension, the Court concluded.

The opinion noted that the city also argued that the mayor had the power under the city charter to reappoint Powers as chief. The Court explained that under Ohio’s Home Rule Amendment, the city was allowed to adopt a charter provision regarding a city hiring policy that conflicted with state law. The Court acknowledged that the Wickliffe charter states that civil service examination is not required to appoint the head of a department.

Wickliffe maintained that the fire chief was the head of the fire department, and no exam was required to rehire Powers. The Court noted that the city charter states that the director of Public Safety is the head of the Division of Police, the Division of Fire and other departments. By the terms of Wickliffe’s charter, the fire chief is not a department head, and exemption from the exam requirement did not apply, the Court stated.

The Court remanded the case to the Eleventh District for further proceedings.