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Association of Cleveland Firefighters v. City of Cleveland

Court of Appeals of Ohio, Eighth District, Cuyahoga

May 24, 2018

ASSOCIATION OF CLEVELAND FIREFIGHTERS, LOCAL 93 I.A.F.F. PLAINTIFF
v.
CITY OF CLEVELAND, ET AL. DEFENDANTS-APPELLEES Appeal by Deberra Schroeder, et al., Appellants

          Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-14-823955

          ATTORNEYS FOR APPELLANTS Timothy D. Smith Karen Lefton The Lefton Group, L.L.C.

          ATTORNEYS FOR APPELLEES For City of Cleveland, Frank Jackson, and City of Cleveland Civil Commission Barbara Langhenry Director of Law City of Cleveland William M. Menzalora Chief Assistant Director of Law, Jon M. Dileno Jessi L. Ziska Zashin & Rich Co., L.P.A.

          For Angelo Calvillo, Captain Christopher Posante, and Kenneth Drost Bradric T. Bryan Goodwin & Bryan, L.L.P.

          For John Coughlin, et al. Scott C. Essad.

          For Battalion Chief Anthony P. Luke Edward Richard Stege Stege & Michelson Co., L.P.A.

          For Association of Cleveland Firefighters, Local 93 I.A.F.F. Joseph W. Diemert Mark V. Guidetti Thomas M. Hanculak Diemert & Associates Co., L.P.A.

          BEFORE: Boyle, J., Stewart, P.J., and Celebrezze, J.

          JOURNAL ENTRY AND OPINION

          MARY J. BOYLE, J.

         {¶1} Eight fire captains of the Cleveland Fire Department have been seeking to intervene in a case filed over four years ago by the firefighters' union against the city of Cleveland. The eight fire captains contend that they were eligible for promotion to the ranks of battalion chief and assistant chief within the fire department but were deprived of the opportunity to take a competitive promotional examination designed to test for merit and fitness as required by the Ohio Constitution, Ohio Revised Code, Cleveland City Charter, and Cleveland Civil Service Rules.

         {¶2} These eight fire captains, the proposed intervenors and appellants in this case (hereinafter referred to as "appellants") appeal the trial court's denial of their motion to intervene. Specifically, the appellants wish to intervene in the lawsuit filed on March 20, 2014, by the Association of Cleveland Firefighters, Local 93 I.A.F.F. ("union" or "Local 93") against the city of Cleveland. In its complaint, the union seeks to stop the city from administering noncompetitive examinations for promotion to the positions of assistant chief and battalion chief.

         {¶3} The appellants raise one assignment of error for our review, namely, that "[t]he trial court abused its discretion in denying [their] motion to intervene." We find no merit to their arguments and affirm the judgment of the trial court.

         I. Procedural History and Factual Background

         {¶4} The procedural history and factual background of this case is not in dispute and is largely compiled from the parties' briefs and from previous appeals filed with this court and the Ohio Supreme Court.

         A. March 2014 Announcement

         {¶5} On March 14, 2014, the city issued a "civil service announcement" that it would conduct a "noncompetitive examination" for the positions of assistant chief and battalion chief. The noncompetitive process used by the city consisted of the submission of a resume and an interview by a group of panelists. The application filing period was set from March 17, 2014 through March 22, 2014.[1]

         {¶6} This was the first time the city ever used noncompetitive testing to promote individuals in the fire department. Prior to this, the city used a competitive examination for promotions.

         B. The Dismissal of the Union's Complaint and its Initial Appeal

         {¶7} The trial court sua sponte raised the issue of subject matter jurisdiction. It held a hearing on the matter on April 17, 2014. Both the union and the city argued that the trial court had proper jurisdiction because the issue of noncompetitive exams was not addressed in their collective bargaining agreement. On April 25, 2014, the trial court issued a decision finding that it lacked jurisdiction to hear the matter in light of the union's failure to exhaust its remedies under the collective bargaining agreement. The court sua sponte dismissed the union's claims as a matter of law.

         {¶8} The union appealed, and the city cross-appealed. See Assn. of Cleveland Firefighters, Local 93 I.A.F.F. v. Cleveland, 8th Dist. Cuyahoga No. 101369, 2015-Ohio-1538. Both parties argued the trial court erred when it dismissed the union's complaint for lack of subject matter jurisdiction. On April 23, 2015, this court reversed the trial court's decision and remanded the matter for the trial court to adjudicate the union's complaint and injunction motions. Id. . at ¶ 24.

         C. The City Promoted Six Fire Captains through the Noncompetitive Examination Process

         {¶9} The union did not request a stay of execution pending the outcome of the appeal. Thus, while the matter was pending before this court, the city administered the noncompetitive promotional exam in December 2014. Through this noncompetitive examination, the city promoted six fire captains to fill the battalion-chief positions in the early months of 2015.

         D. The Trial Court Grants the Union's Motion for Preliminary Injunction

         {¶10} According to the city, additional vacancies arose for the positions of battalion chief and assistant chief in March and April 2015. But after this court reversed and remanded the union's first appeal (which was on April 23, 2015), the trial court granted the union's preliminary injunction in August 2015, prohibiting the city from promoting any other fire captains through the noncompetitive examination process.

         {¶11} In its order granting the union's preliminary injunction, the trial court found that the city's administrative decision to change to noncompetitive testing was not supported by the evidence and there was a substantial likelihood that the union would prevail on the merits of its declaratory judgment. The trial court further found that if the injunction was not granted, the potential of irreparable harm to the union was "quite real" because "[t]he decisions for which battalion and assistant chiefs are responsible are often life and death decisions."

         E. The Union's Amended Complaint

         {¶12} In September 2015, the union moved for leave to amend its complaint, which the trial court granted in December 2015. In its amended complaint, the union again sought a declaratory judgment, a preliminary injunction, and permanent injunction and also sought a petition for a writ of mandamus. The union maintained that because the March 14, 2014 announcement violated the Ohio Constitution, both state and local law, and the city's charter it was entitled to

a declaratory judgment that all vacancies in the promoted ranks of Division of Fire created since the expiration of the most recent certified civil service eligibility lists, as well as any such vacancies which have yet to be created in the promoted ranks, must be filled by a competitive examination process in compliance with applicable law.

         {¶13} The union also sought preliminary and permanent injunctions prohibiting the administration of noncompetitive promotional exams for any promoted rank in the fire department and sought a writ of mandamus "as a result of the city's failure to comply with its clear legal duties with regard to promotional examinations within the Division of Fire[.]" The union sought a writ directing the city to immediately administer competitive exams, certify eligibility lists to restore the promotional cycle, and fill all promotional vacancies created since the expiration of the most recent certified civil service eligibility lists with firefighters from the newly administered competitive exams.

         F. Motions to Intervene

         {¶14} Numerous firefighters moved to intervene in the case. The intervenors and proposed intervenors can be divided into three groups. The first group includes four firefighters who moved to intervene in the case because they asserted that they completed the noncompetitive examination and wished to preserve their spots on the promotion list generated by that process. These firefighters argued that their interests were in direct conflict with the union's interests. The city did not oppose these motions because they were aligned with the city's position. The trial court granted these firefighters' motions to intervene.

         {¶15} The second group of intervenors includes five firefighters who were actually promoted as a result of the noncompetitive testing process. The city did not oppose these motions either because, again, their positions were directly aligned with the city's position.

         {¶16} The third group of "proposed intervenors" includes 12 fire captains who wished to intervene in the case to challenge the noncompetitive examination process. Eight of these original 12 fire captains are the appellants in this appeal (4 of the original 12 have since retired). These 12 fire captains filed their motion to intervene on September 8, 2015. They argued that they were denied the opportunity to compete fairly for the position of battalion chief through a competitive examination test for merit and fitness, which they contend is required by law. The city opposed these fire captains' motion to intervene.

         {¶17} As of November 12, 2015, two months after they filed their motion, the trial court had not yet ruled on the proposed intervenors' motion to intervene, so they withdrew it. Subsequently, they filed a writ of mandamus in the Ohio Supreme Court. With respect to their reason for withdrawing their motion to intervene, appellants contend the following in their brief to this court:

[T]he trial court had granted a preliminary injunction and temporary restraining order, determining that the union had a high likelihood of success on the merits. That led the attorneys - including representatives for the city, the union, all nine intervenors and the eight captains [the proposed-intervenors appellants] - to determine that mediation might be fruitful. They selected a mediator and set November 19 as the date for mediation. The trial court set a case management conference for October 29, at which time it "was informed that the parties have agreed on a private mediator and have set a date for that mediation: 11/19/2015." (Oct. 29, 2015, judgment entry.) Counsel for the eight captains had asked to ...

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