Ohio Supreme Court Defines Vacancy for Fire Service Promotional Purposes

When does a vacancy occur in an officer’s position? The answer might seem obvious and relatively unimportant. That would be a mistake. The date that a position becomes vacant is vitally important where ever civil service or collective bargaining time frames are concerned. That very issue was just decided by the Ohio Supreme Court in a case brought by IAFF Local 1536 against the City of Wickliffe.

The story begins when Fire Chief James G. Powers retired on January 6, 2020, only to be rehired the following day as fire chief. The move was intended to allow Chief Powers, a 30-year veteran, to collect his pension while remaining employed and collecting his salary. Mayor John Barbish swore Chief powers in as Fire Chief on January 7, 2020 with the full support of the city.

Local 1536 contended Chief Powers’ retirement on January 6, 2020 created a vacancy that pursuant to civil service law had to be filled from a civil service list, or if a list did not exist, by a competitive examination process to establish a list. The city contended the chief’s retirement and subsequent rehiring did not create a vacancy.

When the city rejected the union’s interpretation, Local 1536 filed suit in Lake County Court of Common Pleas seeking a declaratory judgment. Chief Powers intervened in the case, a wise move given the obvious consequences should the union prevail. The trial court and the Eleventh District Court of Appeals concluded for different reasons that Chief Powers’ retirement did not create a vacancy. Local 1536 appealed to the Ohio Supreme Court.

Quoting from the ruling:

  • R.C. 124.48 states:
    • Whenever a vacancy occurs in a promoted rank in a fire department and no eligible list for that rank exists, the appointing authority shall certify the fact to the civil service commission. The civil service commission, within sixty days of the vacancy, shall conduct a competitive promotional examination. After the examination has been held, an eligible list shall be established, and the civil service commission shall certify to the appointing authority the name of the person on the list receiving the highest grade. Upon the certification, the appointing authority shall appoint the person so certified within ten days. When an eligible list exists and a vacancy occurs in a position for which the list was established, the appointing authority shall certify the fact to the civil service commission. The person standing highest on the list shall be certified to the appointing authority, and that person shall be appointed within ten days.
  • On January 6, 2020, the position of fire chief became vacant when Powers retired.
  • The mayor rehired Powers on January 7, 2020.
  • But a person cannot be rehired for a position that is not vacant.
  • As the court of appeals’ dissenting judge succinctly stated: “[T]o be rehired necessarily implies an existing vacancy which would trigger the statutorily mandated promotional process to fill the retired incumbent’s position.”
  • We conclude that … a vacancy in a promoted-rank position in a fire department occurs automatically upon the incumbent’s retirement.
  • Therefore, Wickliffe was required to fill the position of fire chief pursuant to the process outlined in R.C. 124.48 when Powers retired.
  • Powers contends, however, that a vacancy did not occur, because he did not intend to permanently relinquish the position.
  • In Powers’s view, “the critical aspect of a ‘vacancy’ is the permanence associated with the public officer’s act in leaving his position of employment.”
  • Powers states that he retired for the sole purpose of receiving his pension and that because he retired for that specific purpose, his retirement did not create a vacancy under R.C. 124.48, because “for all intents and purposes, the position remained occupied.”
  • The problem with Powers’s argument is that it misconstrues the plain language of R.C. 124.48.
  • The statute does not require that intent be shown to create a vacancy.
  • It requires the commission to initiate the competitive promotional-examination process whenever there is a vacancy and, as we have noted, a vacancy “automatically occurs upon the retirement of the incumbent.”
  • Whether an incumbent intends to permanently leave a position or to leave with the expectation of immediately returning to that position is irrelevant to the determination whether the incumbent’s leaving creates a vacancy under R.C. 124.48.

The case was returned to the Court of Appeals for further review. Here is a copy of the decision:

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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