DeVennish v. City of Columbus

566 N.E.2d 668, 57 Ohio St. 3d 163, 1991 Ohio LEXIS 247, 136 L.R.R.M. (BNA) 2674
CourtOhio Supreme Court
DecidedFebruary 13, 1991
DocketNo. 89-2177
StatusPublished
Cited by17 cases

This text of 566 N.E.2d 668 (DeVennish v. City of Columbus) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
DeVennish v. City of Columbus, 566 N.E.2d 668, 57 Ohio St. 3d 163, 1991 Ohio LEXIS 247, 136 L.R.R.M. (BNA) 2674 (Ohio 1991).

Opinions

Douglas, J.

The issue before us is whether DeVennish’s eligibility for the 1986 sergeant’s promotional examination is to be determined by applying the criteria contained in Section E, Article 15 of the collective bargaining agreement or, alternatively, whether the commission’s requirement governs DeVennish’s examination eligibility. If Section E, Article 15 applies, DeVen-nish was eligible for the examination at the time he submitted his application since the agreement only requires that an applicant for the examination have at least three years of service as a police officer regardless of when the service occurred. However, if the commission’s requirement applies, DeVen-nish was ineligible for the examination because of the break in his service.

The city argues, and the court of appeals held, that Section E, Article 15 of the agreement addresses matters which are inappropriate subjects of collective bargaining under R.C. 4117.08(B) and that, therefore, Section E, Article 15 is inapplicable in determining DeVennish’s examination eligibility.

R.C. 4117.08(B) provides that:

“The conduct and grading of civil service examinations, the rating of candidates, the establishment of eligible lists from the examinations, and the original appointments from the eligible lists are not appropriate subjects for collective bargaining.” (Emphasis added.)

The city suggests that R.C. 4117.08(B) prohibits collective bargaining over promotional examinations. DeVennish and all amici contend that R.C. 4117.08(B) pertains only to the original appointment process.

We believe that R.C. 4117.08(B) is clear and unambiguous. R.C. 4117.08 (B) prohibits collective bargaining over all matters concerning pre-hire examinations and the establishment of pre-hire eligibility lists, and does not prohibit bargaining over any matter concerning promotional examinations and the establishment of promotional eligibility lists. In other words, R.C. 4117.08(B) prohibits the parties to a collective bargaining agreement from bargaining over matters concerning the original, and not the promotional, appointment process. This conclusion is not only supported by the clear language of R.C. 4117.08(B), but is also supported by a reading of R.C. 4117.08 in its entirety.

R.C. 4117.08(C) provides, in part, that:

“Unless a public employer agrees otherwise in a collective bargaining agreement, nothing in Chapter 4117. of the Revised Code impairs the right and responsibility of each public employer to:

* *

“(5) * * * promote * * * employeesf.]” (Emphasis added.)

[166]*166R.C. 4117.08(C)(5) specifically permits a public employer to bargain over promotional matters. As such, R.C. 4117.08(C)(5) is irreconcilable with an interpretation of R.C. 4117.08(B) which would exclude bargaining over matters concerning promotional eligibility.

Furthermore, R.C. 4117.08(A) provides that “[a]ll matters pertaining to wages, hours, or terms and other conditions of employment * * *” are subject to bargaining. R.C. 4117.08(C) provides that “[t]he employer is not required to bargain on subjects reserved to the management and direction of the governmental unit except as affect wages, hours, terms and conditions of employment * * (Emphasis added.)

Promotions affect and pertain to wages, hours, or terms and other conditions of employment. Promotions can result in an increase in wages and responsibilities and a change in work schedule. Depending upon the nature of the promotion, the functions performed by the employee may change dramatically. Only those eligible for promotions can be promoted. Thus, all matters concerning promotional eligibility pertain to and directly affect wages, hours, or terms and other conditions of employment and are, therefore, bargainable issues.

Additionally, common sense dictates that R.C. 4117.08(B) was meant to prohibit collective bargaining over matters concerning original, and not promotional, appointments. Pursuant to R.C. 4117.01(C), a “public employee” is defined as “* * * any person holding a position by appointment or employment in the service of a public employer * * The Public Employees’ Collective Bargaining Act (R.C. Chapter 4117) does not cover applicants for original employment. Until an original appointment is made, no pre-hire applicant is represented by an employee organization that may bargain on the applicant’s behalf. Thus, it is eminently logical to exclude all aspects of the original appointment process from collective bargaining. However, once an appointment is made, the newly hired individual is entitled to seek the protections of R.C. Chapter 4117, through his or her exclusive bargaining representative, and this includes the issue of promotions.

Recently, the Court of Appeals for Franklin County reviewed the position it has taken in this case, to wit: that promotional matters are prohibited subjects of collective bargaining. See Columbus v. State Emp. Relations Bd. (Sept. 4, 1990), Franklin App. No. 90AP-87, unreported. In that case, the court of appeals concluded that R.C. 4117.08(B) applies only to original, and not promotional, appointments and that promotional matters are appropriate subjects of collective bargaining.

For the foregoing reasons, we conclude that all matters affecting promotions are appropriate subjects of collective bargaining. As such, the examination eligibility criteria contained in Section E, Article 15 of the agreement between the city and FOP may properly be applied to determine DeVennish’s eligibility for the promotional examination at issue.

With regard to the conflict between the collective bargaining agreement and the requirement of the civil service commission, R.C. 4117.10 applies. R.C. 4117.10(A) provides, in part, that:

“An agreement between a public employer and an exclusive representative entered into pursuant to Chapter 4117. of the Revised Code governs the wages, hours, and terms and conditions of public employment covered by the agreement. * * * Chapter 4117. of the Revised Code [167]*167prevails over any and all other conflicting laws, resolutions, provisions, present or future, except as otherwise specified in Chapter fll7. of the Revised Code or as otherwise specified by the general assembly. * * *” (Emphasis added.)

We have determined that all matters concerning promotional eligibility affect wages, hours, or terms and other conditions of public employment. Section E, Article 15 of the agreement sets forth eligibility requirements for the promotional examination and these requirements clearly conflict with the commission’s eligibility requirement. Pursuant to R.C. 4117.10(A), the terms of the agreement control.

The city, a chartered municipality, suggests that the commission's class specification requirement controls in determining DeVennish’s examination eligibility pursuant to Section 3, Article XVIII of the Ohio Constitution, which provides that:

“Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.” (Emphasis added.)

In Rocky River v. State Emp. Relations Bd. (1989), 43 Ohio St. 3d 1, 12-13, 539 N.E.

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566 N.E.2d 668, 57 Ohio St. 3d 163, 1991 Ohio LEXIS 247, 136 L.R.R.M. (BNA) 2674, Counsel Stack Legal Research, https://law.counselstack.com/opinion/devennish-v-city-of-columbus-ohio-1991.