Appeals Court Reverses Non-Competitive Promotion Ruling For Cleveland Firefighters

The Ohio Eighth District Court of Appeals has for the second time had to reverse Cuyahoga Court of Common Pleas Judge Hollie Gallagher, ruling in favor of Cleveland Firefighters IAFF Local 93’s efforts to block non-competitive promotions to battalion chief and assistant fire chief.

In 2014, the Cleveland Fire Department announced plans to discontinue the competitive selection of battalion and assistant chiefs and rely upon what it characterized as a “non-competitive” promotional process. The new process would consist of the submission of a resume and interviews, followed by a non-competitive selection.

The union immediately sought to block the move as being in violation the Ohio Constitution, state and local law, and the Cleveland City Charter, all of which require merit-based promotions. Local 93 filed suit in Cuyahoga Court of Common Pleas.

Despite the fact that both the union and city agreed that the case was not subject to collective bargaining because it was outside the scope of the collective bargaining agreement, Judge Gallagher dismissed Local 93’s suit on her own accord concluding the union failed to exhaust its remedies under the collective bargaining agreement.

Local 93 appealed and Eighth District Court of Appeals reversed that ruling in 2015, sending the case back to Judge Gallagher. However, while the appeal was pending the city promoted several chiefs under the non-competitive process.

When Judge Gallagher again took the case, she granted the union a preliminary injunction finding that “the City’s administrative decision to change to noncompetitive testing was not supported by the evidence and there was a substantial likelihood that Local 93 would prevail on the merits of its declaratory judgment.” She also found that Local 93 would suffer irreparable harm if a preliminary injunction blocking the noon-competitive process was not issued.

In 2016, when the city and Local 93 each moved for summary judgment to decide the future of the non-competitive process once and for all, Judge Gallagher again dismissed the union’s case ruling that “Local 93’s arguments to this court in their motion for summary judgment do not comport with the counts in their amended complaint.” She essentially concluded that because the promotions associated with the 2014 process had already been made, and the complaint only referenced that promotional process, there was no case for her to decide.

Local 93 once again appealed to the Eighth District Court of Appeals. In a decision handed down last week the Court of Appeals reinstated the union’s suit with directions to Judge Gallagher to “consider the merits of Local 93’s motion for summary judgment consistent with this opinion.”

Here is a copy of the ruling: 2017-Ohio-6887

Congratulations to Local 93 on the victory. How can anyone in government support non-competitive promotional processes… and why would a judge search for loopholes to allow it.

About Curt Varone

Curt Varone has over 45 years of fire service experience and 35 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014, 4th ed. 2022) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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