Court of Appeals of Ohio, Eighth District, Cuyahoga
ASSOCIATION OF CLEVELAND FIREFIGHTERS, LOCAL 93 I.A.F.F. PLAINTIFF
CITY OF CLEVELAND, ET AL. DEFENDANTS-APPELLEES Appeal by Deberra Schroeder, et al., Appellants
Appeal from the Cuyahoga County Court of Common Pleas Case
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.
Angelo Calvillo, Captain Christopher Posante, and Kenneth
Drost Bradric T. Bryan Goodwin & Bryan, L.L.P.
John Coughlin, et al. Scott C. Essad.
Battalion Chief Anthony P. Luke Edward Richard Stege Stege
& Michelson Co., L.P.A.
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
J. BOYLE, J.
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.
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
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
Procedural History and Factual Background
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.
March 2014 Announcement
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.
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
The Dismissal of the Union's Complaint and its Initial
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
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 ¶
The City Promoted Six Fire Captains through the
Noncompetitive Examination Process
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.
The Trial Court Grants the Union's Motion for Preliminary
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.
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
The Union's Amended Complaint
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.
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.
Motions to Intervene
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.
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.
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.
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 ...