[Cite as Wayne Cty. Sheriff v. Ohio Patrolmen's Benevolent Assn., 2011-Ohio-2707.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF WAYNE )
WAYNE COUNTY SHERIFF C.A. No. 10CA0036
Appellant
v. APPEAL FROM JUDGMENT ENTERED IN THE OHIO PATROLMEN'S BENEVOLENT COURT OF COMMON PLEAS ASSOCIATION COUNTY OF WAYNE, OHIO CASE No. 10-CV-0043 Appellee
DECISION AND JOURNAL ENTRY
Dated: June 6, 2011
BELFANCE, Presiding Judge.
{¶1} Appellant, the Wayne County Sheriff, appeals the judgment of the Wayne County
Court of Common Pleas that denied an application to vacate or modify a statutory conciliation
award and confirmed the award. Because the written record from the conciliation hearing was
not before the trial court, this Court reverses and remands.
I.
{¶2} The Ohio Patrolmen’s Benevolent Association (“OPBA”) is the exclusive
representative of the Sheriff’s Lieutenants, Sergeants, and Deputy Sheriffs for purposes of
collective bargaining under R.C. Chapter 4117. The parties’ most recent collective bargaining
agreements expired on August 31, 2008, and by agreement, they began negotiating the terms of
successor contracts in early 2009. When they reached impasse, they submitted the disputed
issues to a fact finder under R.C. 4117.14(C). Three issues related to compensation ultimately
remained unresolved after fact finding: wages, longevity pay, and the wage differential between 2
sergeants and deputy sheriffs. These issues were submitted for conciliation, as required of law
enforcement by the version of R.C. 4117.14(D)(1) in effect at the time. The conciliator’s award
adopted the fact finder’s recommendation on each issue, as advocated by OPBA, thereby
awarding a 3.5% wage increase in each year of the contract for each bargaining unit, an increase
in longevity pay for each bargaining unit, and a .5% increase in the wage differential between
deputy sheriffs and sergeants.
{¶3} The Sheriff filed an application in the Wayne County Court of Common Pleas to
vacate or modify the award, and OPBA filed an application to confirm the award. The matter
was submitted to the trial court on the parties’ briefs and the exhibits that were submitted to the
conciliator. Although the Sheriff moved the trial court to order the preparation of the written
record of the conciliation, the trial court did not rule on that motion. On June 29, 2010, the trial
court denied the Sheriff’s application and confirmed the conciliator’s award. The Sheriff
appealed, assigning four errors for review. The Sheriff’s fourth assignment of error is
dispositive, however, so our analysis begins there.
II.
Assignment of Error IV
“The Court of Common Pleas erred as a matter of law when it failed to rule on a pending Motion prior to issuing a final decision.”
{¶4} The Sheriff’s fourth assignment of error is that the trial court erred by failing to
order the preparation and filing of a written record of the conciliation proceedings. By not ruling
on the Sheriff’s motion regarding preparation of the record, the trial court is presumed to have
denied it. See, generally, Ward v. Summa Health Sys., 184 Ohio App.3d 254, 2009-Ohio-4859,
at ¶21, quoting George Ford Constr., Inc. v. Hissong, 9th Dist. No. 22756, 2006-Ohio-919, at
¶12. 3
{¶5} R.C. 4117.14(D) provides that if fact finding does not resolve a bargaining
impasse between a public employee union and a public employer of law enforcement officers,
the disputed matters must be submitted to conciliation. On an issue-by-issue basis, the
conciliator must select between the final settlement offers proposed by the union and the public
employer, with consideration for the factors set forth in R.C. 4117.14(G)(7). In so doing, the
conciliator must “hear testimony from the parties and provide for a written record to be made of
all statements at the hearing.” R.C. 4117.14(G)(6). Once the conciliator has heard the matter,
“[t]he issuance of a final offer settlement award constitutes a binding mandate to the public
employer and the exclusive representative to take whatever actions are necessary to implement
the award.” R.C. 4117.14(I).
{¶6} Awards resulting from conciliation are, however, subject to review by the courts
of common pleas under R.C. Chapter 2711. See R.C. 4117.14(H). Accordingly, either a union or
a public employer may challenge a conciliator’s award by filing an application to modify or
vacate the award in the court of common pleas. Although applications to vacate or modify a
conciliation award proceed as do other cases under R.C. Chapter 2711, they do so with a
significant difference: the parties to conciliation have not agreed to the procedure. It exists and
is binding upon them by virtue of R.C. 4117.14 and their status as public employers and public
employee unions. The provision for judicial review of what would otherwise be, in effect, final
and binding arbitration is significant.
{¶7} In Rocky River v. State Empl. Relations Bd. (1989), 43 Ohio St.3d 1, the Ohio
Supreme Court considered constitutional challenges to the Ohio Public Employees’ Collective
Bargaining Act. The Court noted that R.C. 4117.14 “provides the conciliator with detailed
guidelines under which to proceed,” and “the decision of the conciliator is expressly made 4
subject to judicial review under R.C. Chapter 2711.” The Court, therefore, concluded that R.C.
4117.14 is not unconstitutional. Rocky River at 11-12.
{¶8} In Warrensville Hts. v. Ohio Patrolmen’s Benevolent Ass’n., 8th Dist. No. 89406,
2008-Ohio-2179, the Eighth District Court of Appeals explained that the requirement of a written
record of the conciliation proceedings is a vital part of meaningful judicial review under R.C.
4117.14(H). In that case, the City of Warrensville Heights moved to vacate a conciliation award
regarding wage increases for police officers. Warrensville Hts. at ¶4. The union argued that the
city was required to file a written record of the conciliation proceedings and that, in its absence,
the trial court was required to presume regularity and confirm the conciliator’s award. Id. at ¶5.
The trial court agreed and entered judgment confirming the award, noting that “it was unclear
whether the conciliator offered to make a written record and the parties waived it, whether a
party requested such a record and the conciliator refused to provide it, or whether the conciliator
provided for a record which was not conveyed to the Court.” Id. at ¶8. When the trial court
denied the City’s motion for relief from judgment, the City appealed.
{¶9} The Court of Appeals concluded that the requirement that a written record of the
conciliation be created is “essential to proper judicial review” and held that the trial court’s
presumption of regularity in the conciliation proceedings was inappropriate. Id. at ¶¶ 47-48.
Reversing the trial court’s decision on that basis, the Court of Appeals held that “the parties are
permitted to implement the procedures set forth in App.R. 9(C) to attempt to reconstruct the
record herein which is essential to proper judicial review [and] [i]n the event that the ‘appellant
attempts but is unable to submit an App.R. 9(C) statement to correct or supplement the record,
the matter must be remanded * * * for a rehearing.’” Id. at ¶47, quoting Cuyahoga County Dep't
of Children & Family Servs. v. Evans (2004), 102 Ohio St.3d 388, 2004-Ohio-3361.
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[Cite as Wayne Cty. Sheriff v. Ohio Patrolmen's Benevolent Assn., 2011-Ohio-2707.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF WAYNE )
WAYNE COUNTY SHERIFF C.A. No. 10CA0036
Appellant
v. APPEAL FROM JUDGMENT ENTERED IN THE OHIO PATROLMEN'S BENEVOLENT COURT OF COMMON PLEAS ASSOCIATION COUNTY OF WAYNE, OHIO CASE No. 10-CV-0043 Appellee
DECISION AND JOURNAL ENTRY
Dated: June 6, 2011
BELFANCE, Presiding Judge.
{¶1} Appellant, the Wayne County Sheriff, appeals the judgment of the Wayne County
Court of Common Pleas that denied an application to vacate or modify a statutory conciliation
award and confirmed the award. Because the written record from the conciliation hearing was
not before the trial court, this Court reverses and remands.
I.
{¶2} The Ohio Patrolmen’s Benevolent Association (“OPBA”) is the exclusive
representative of the Sheriff’s Lieutenants, Sergeants, and Deputy Sheriffs for purposes of
collective bargaining under R.C. Chapter 4117. The parties’ most recent collective bargaining
agreements expired on August 31, 2008, and by agreement, they began negotiating the terms of
successor contracts in early 2009. When they reached impasse, they submitted the disputed
issues to a fact finder under R.C. 4117.14(C). Three issues related to compensation ultimately
remained unresolved after fact finding: wages, longevity pay, and the wage differential between 2
sergeants and deputy sheriffs. These issues were submitted for conciliation, as required of law
enforcement by the version of R.C. 4117.14(D)(1) in effect at the time. The conciliator’s award
adopted the fact finder’s recommendation on each issue, as advocated by OPBA, thereby
awarding a 3.5% wage increase in each year of the contract for each bargaining unit, an increase
in longevity pay for each bargaining unit, and a .5% increase in the wage differential between
deputy sheriffs and sergeants.
{¶3} The Sheriff filed an application in the Wayne County Court of Common Pleas to
vacate or modify the award, and OPBA filed an application to confirm the award. The matter
was submitted to the trial court on the parties’ briefs and the exhibits that were submitted to the
conciliator. Although the Sheriff moved the trial court to order the preparation of the written
record of the conciliation, the trial court did not rule on that motion. On June 29, 2010, the trial
court denied the Sheriff’s application and confirmed the conciliator’s award. The Sheriff
appealed, assigning four errors for review. The Sheriff’s fourth assignment of error is
dispositive, however, so our analysis begins there.
II.
Assignment of Error IV
“The Court of Common Pleas erred as a matter of law when it failed to rule on a pending Motion prior to issuing a final decision.”
{¶4} The Sheriff’s fourth assignment of error is that the trial court erred by failing to
order the preparation and filing of a written record of the conciliation proceedings. By not ruling
on the Sheriff’s motion regarding preparation of the record, the trial court is presumed to have
denied it. See, generally, Ward v. Summa Health Sys., 184 Ohio App.3d 254, 2009-Ohio-4859,
at ¶21, quoting George Ford Constr., Inc. v. Hissong, 9th Dist. No. 22756, 2006-Ohio-919, at
¶12. 3
{¶5} R.C. 4117.14(D) provides that if fact finding does not resolve a bargaining
impasse between a public employee union and a public employer of law enforcement officers,
the disputed matters must be submitted to conciliation. On an issue-by-issue basis, the
conciliator must select between the final settlement offers proposed by the union and the public
employer, with consideration for the factors set forth in R.C. 4117.14(G)(7). In so doing, the
conciliator must “hear testimony from the parties and provide for a written record to be made of
all statements at the hearing.” R.C. 4117.14(G)(6). Once the conciliator has heard the matter,
“[t]he issuance of a final offer settlement award constitutes a binding mandate to the public
employer and the exclusive representative to take whatever actions are necessary to implement
the award.” R.C. 4117.14(I).
{¶6} Awards resulting from conciliation are, however, subject to review by the courts
of common pleas under R.C. Chapter 2711. See R.C. 4117.14(H). Accordingly, either a union or
a public employer may challenge a conciliator’s award by filing an application to modify or
vacate the award in the court of common pleas. Although applications to vacate or modify a
conciliation award proceed as do other cases under R.C. Chapter 2711, they do so with a
significant difference: the parties to conciliation have not agreed to the procedure. It exists and
is binding upon them by virtue of R.C. 4117.14 and their status as public employers and public
employee unions. The provision for judicial review of what would otherwise be, in effect, final
and binding arbitration is significant.
{¶7} In Rocky River v. State Empl. Relations Bd. (1989), 43 Ohio St.3d 1, the Ohio
Supreme Court considered constitutional challenges to the Ohio Public Employees’ Collective
Bargaining Act. The Court noted that R.C. 4117.14 “provides the conciliator with detailed
guidelines under which to proceed,” and “the decision of the conciliator is expressly made 4
subject to judicial review under R.C. Chapter 2711.” The Court, therefore, concluded that R.C.
4117.14 is not unconstitutional. Rocky River at 11-12.
{¶8} In Warrensville Hts. v. Ohio Patrolmen’s Benevolent Ass’n., 8th Dist. No. 89406,
2008-Ohio-2179, the Eighth District Court of Appeals explained that the requirement of a written
record of the conciliation proceedings is a vital part of meaningful judicial review under R.C.
4117.14(H). In that case, the City of Warrensville Heights moved to vacate a conciliation award
regarding wage increases for police officers. Warrensville Hts. at ¶4. The union argued that the
city was required to file a written record of the conciliation proceedings and that, in its absence,
the trial court was required to presume regularity and confirm the conciliator’s award. Id. at ¶5.
The trial court agreed and entered judgment confirming the award, noting that “it was unclear
whether the conciliator offered to make a written record and the parties waived it, whether a
party requested such a record and the conciliator refused to provide it, or whether the conciliator
provided for a record which was not conveyed to the Court.” Id. at ¶8. When the trial court
denied the City’s motion for relief from judgment, the City appealed.
{¶9} The Court of Appeals concluded that the requirement that a written record of the
conciliation be created is “essential to proper judicial review” and held that the trial court’s
presumption of regularity in the conciliation proceedings was inappropriate. Id. at ¶¶ 47-48.
Reversing the trial court’s decision on that basis, the Court of Appeals held that “the parties are
permitted to implement the procedures set forth in App.R. 9(C) to attempt to reconstruct the
record herein which is essential to proper judicial review [and] [i]n the event that the ‘appellant
attempts but is unable to submit an App.R. 9(C) statement to correct or supplement the record,
the matter must be remanded * * * for a rehearing.’” Id. at ¶47, quoting Cuyahoga County Dep't
of Children & Family Servs. v. Evans (2004), 102 Ohio St.3d 388, 2004-Ohio-3361. 5
{¶10} Although both Rocky River and Warrensville Heights dealt with municipal law
enforcement in the context of R.C. 4117.14, a written record is no less necessary when the law
enforcement agency at issue operates at the county level. Safety forces at each level of
government in Ohio are subject to the conciliation procedure of R.C. 4117.14 in lieu of the
ability to strike. See Jefferson Cty. Sheriff v. Ohio Patrolmen’s Benevolent Assn., 7th Dist. No.
05 JE 36, 2006-Ohio-1055, at ¶28. The necessity of a written record is emphasized by the fact
that effective judicial review requires the trial court to examine whether arguments were raised
or objections made before the conciliator in the first place. See, e.g., id. at ¶30-33 (noting that
although the Sheriff waived the requirement of a written record, his ability to argue that the
conciliator exceeded the scope of his powers was limited by the arguments made before the
conciliator.). This is the situation that is present in this case. The parties’ written prehearing
statements to the conciliator and the documents admitted as exhibits were in the record before
the trial court, but the conciliator’s written record was not. They did not waive the creation of
the written record, and the Sheriff moved the trial court to order its preparation. Nonetheless, the
written record was not included in the record before the court of common pleas.
{¶11} The lack of a written record in this case precluded effective judicial review. The
Sheriff’s argument before the court of common pleas and in this court, for example, related to the
respective roles of the employer and the legislative authority for purposes of R.C. 4117.14.
Specifically, the question is whether a conciliator’s consideration of “the ability of the public
employer to finance and administer the issues proposed” under R.C. 4117.14(G)(7)(c) relates to
the Sheriff’s ability to fund the proposed final settlement offer of the union given the budget
constraints imposed upon him by the Board of County Commissioners or the ability of the Board
of County Commissioners, as the appropriating body for the County’s general fund, to allocate 6
resources necessary to fund the union’s proposal. Both in the court of common pleas and in this
court, the OPBA’s position has been that the Sheriff’s argument lacks merit, in part because,
according to the OPBA, it was the Board of County Commissioners who presented evidence to
the conciliator and it was representatives of the Board of County Commissioners who testified at
the hearing not about the Sheriff’s budget specifically, but about the County’s financial position
as a whole. For example, the OPBA represented to the trial court that “the entire presentation at
the Conciliation Hearing, presented[] by other County officials, on behalf of the Sheriff
concerning the ‘ability to pay,’ was directly tied to the County General Fund and, in fact, never
even mentioned the Sheriff’s budget.”
{¶12} The conciliator’s “written record * * * of all statements at the hearing” required
by R.C. 4117.14(G)(6) is necessary to effectively review, at a minimum, whether the Sheriff’s
position at this stage in the proceedings is consistent with the position taken before the
conciliator and whether testimony was given related to the Sheriff’s ability to pay or the
County’s ability to pay. Without the written record, we are left with conjecture.
{¶13} In this case, it was error for the court of common pleas to enter judgment
confirming the conciliation award and denying the Sheriff’s application to vacate the award
without the benefit of the written record, having denied the Sheriff’s motion for preparation of
the record by its silence. We are mindful that the context of this appeal is key, bearing in mind
that effective judicial review of a conciliation award is one of the safeguards built into the
conciliation process required by R.C. 4117.14. The Sheriff’s fourth assignment of error is,
therefore, sustained. 7
III.
{¶14} The Sheriff’s fourth assignment of error is sustained. The remaining assignments
of error are moot. See App.R. 12(D). The judgment of the Wayne County Court of Common
Pleas that confirmed the conciliation award and denied the Sheriff’s petition to vacate or modify
the award is reversed. This matter is remanded for further proceedings in the court of common
pleas in light of this opinion.
Judgment reversed, and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellee.
EVE V. BELFANCE FOR THE COURT
MOORE, J. DICKINSON, J. CONCUR 8
APPEARANCES:
EUGENE P. NEVADA, Attorney at Law, for Appellant.
JOSEPH M. HEGEDUS, Attorney at Law, for Appellee.