COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61242 ACCELERATED DOCKET : S/O EX REL., JAMES KEENER : : JOURNAL ENTRY Plaintiff-Appellee : : : and -vs- : : OPINION : CITY OF CLEVELAND, ET AL. : : PER CURIAM Defendant-Appellant : : DATE OF ANNOUNCEMENT OCTOBER 10, 1991 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 188744 JUDGMENT: Affirmed in part, Reversed in part, and caused Remanded. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: WILLIAM J. COYNE MALCOLM C. DOUGLAS RICHARD G. GOSS Assistant Law Director 1240 Standard Building City of Cleveland Cleveland, Ohio 44113 Room 106, City Hall Cleveland, Ohio 44114 -2- PER CURIAM: This appeal was filed, briefed and argued as an accelerated appeal pursuant to Local R. 25 of this court. The appellants, the City of Cleveland, The Cleveland Civil Service Commission, the Mayor, and the Safety Director, timely appeal the trial court's decision that granted the relators-appellees' Writ of Mandamus. The trial court's decision commanded the appellants to promote relator James Keener to the rank of Captain, relator Vincent Villoni to the rank of Lieutenant, and relator Dewitt Gober to the rank of Sergeant. Additionally, the trial court stayed all future promotional examinations until the promotions, herein mentioned, were made. The appellants assigned two errors for review by this court. The threshold question for review is whether the Cleveland City Charter expressly provides for the time when a vacancy in the Cleveland Police Department is to be filled. In compliance with App. R.11.1, it is the opinion of this court that the Cleveland City Charter is void of any language expressingly stating when a vacancy is to be filled. Therefore, R.C. 124.44 applies which mandates immediate certification when a vacancy occurs in the police department above the rank of patrolman. R.C. 124.44 reads in part: If there is a list the commission shall, where there is a vacancy, immediately certify the name of the person having the highest rating, and the appointing authority shall appoint such person within thirty days from the date of such certification. -3- For this reason, we affirm the trial court's decision granting the Writ of Mandamus. However, in strict compliance with R.C. 124.44, we find that the trial court was without authority to actually make the promotions; its authority at best was limited to certifying the names to the Commission. Thus, we reverse the trial court's command ordering the relators-appellees' promotion, and remand this case to the trial court for the issuance of a journal entry certifying the three named relators-appellees to the Cleveland Civil Service Commission. Once the Civil Service Commission has issued its certification pursuant to R.C. 124.44, the appointing authority must promote the appellees, accordingly. It is our opinion that all three relators-appellees are eligible for promotion. From October 16, 1989 until November 23, 1989 there were two vacancies in the Cleveland Police Department in the ranks of captain and sergeant; thereby, qualifying relator James Keener's eligibility for promotion to captain and relator Dewitt Gober's eligibility for promotion to sergeant. Consequently, the city was under a duty to promote relator James Keener. This promotion would create a vacancy in the ranks of lieutenant and qualify relator Vincent Villoni eligible for promotion to lieutenant. The evidence in the record revealed -4- that this was the encouraged practice and procedure for filling vacancies, when vacancies were filled./1\ The essential facts of this case are not in dispute. Effective October 16, 1989, two positions, one for a captain and one for a sergeant were vacant in the Cleveland Police Depart- ment, caused by the dismissal of incumbent Captain Mark Lynch and the retirement of incumbent Sergeant George Sekarek. Funds were previously appropriated in the budget for the Cleveland Police Department for these two positions. At this time, the City of Cleveland had in effect a promotional list, for which relator James Keener occupied the highest rating for the next available position for Captain; relator Vincent Villoni occupied the highest rating for the next available position for Lieutenant; and relator Dewitt Gober occupied the highest rating for the next available position for Sergeant. This eligibility promotional list was due to expire on November 23, 1989. From October 16, 1989, the time of the two vacancies, to the expiration of the list, November 23, 1989, the appointing authority, Safety Director Mitchell Brown, did not move to fill the vacancies created by the departures of the former incumbents, /1\ It is the customary procedure of the appointing authority of the Safety Director of the City of Cleveland that if an appointment is made to the rank of Captain, then the vacancy that was created at the Lieutenant position would be filled from the rank of Sergeant and the resulting vacancy in the rank of Sergeant would be filled by someone from the rank of patrolman from the promotional examination list. (Relators' requests for Admissions No. 11.) -5- Captain Mark Lynch and Sergeant George Sekarek. Safety Director Mitchell Brown testified that he did not follow any set, written or oral, rules or regulations regarding the filling of a vacancy during his tenure as the appointing authority. He further testified that to his knowledge none of his predecessors operated under any specific rules or regulations for the filing of vacancies. On December 13, 1989, the relators made a demand on the appointing authority and the Civil Service Commission to promote them to the vacancies. On December 20, 1989, the appointing authority refused to make such promotions. On January 3, 1990, the relators demanded, in writing, that the law director prosecute this claim on their behalf. The law director refused. The relators filed a Writ of Mandamus to compel their promotions. The trial court found for the relators and proceeded to order the promotions of relator James Keener to the rank of Captain, relator Vincent Villoni to the rank of Lieutenant, and relator Dewitt Gober to the rank of Sergeant. The trial court ordered that all future promotional examinations be stayed until after these three were promoted. The appellants assign the following errors: THE COURT OF COMMON PLEAS ERRED IN DETERMINING THAT R.C.124.44 GOVERNS THE PROMOTION OF THE CITY OF CLEVELAND POLICE OFFICERS AND IN ORDERING THE PROMOTION OF RELATORS. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN, ACTING IN EXCESS OF ITS JURISDICTION, IT ORDERED THAT RELATORS BE PROMOTED FROM AN EXPIRED ELIGIBLE LIST. -6- The appellants' assignments of error lack merit and will be discussed jointly. Appellants argue that the trial court erred in imposing the statutory procedures under R.C. 124.44 on the City of Cleveland by ordering the promotions of the relators. The ground for this position is two-fold. First, the appellants reason that the procedures for promotions in the City of Cleveland are governed by Charter, Sections 131 and 133. They further argue that since these sections conflict with state law, R.C. 124.44, the Home Rule Doctrine under the City Charter prevails, and the promotions are invalid. The appellants' underlying argument, insofar as it defines home rules, is correct. However, it is not dispositive of the issue raised in this case. In fact, Charter Sections 131 and 133 do not address the issue of when a vacancy is to be filled,. They read as follows: 131 Appointments. When any position in the classified service, except the ordinary unskilled labor class, is to be filled, the appointing authority shall notify the Commission of the fact and the Commission shall certify to such authority the names and addresses of the three candidates standing highest on the eligible list for the class or grade to which such positions belong. The appointing authority shall appoint to such position one of the three persons whose names are so certified. When the eligible list contains less than three names, such names shall be certified, from which the appointing authority may appoint one for such position, except that when the position is promotional the appointing authority shall appoint one for such position. 133 Promotions Wherever Practicable. Wherever practicable, vacancies shall be filled by promotion. Any advancement in rank or increase in -7- salary beyond the limits fixed for the grade shall constitute a promotion. Lists shall be created and promotions made therefrom of candidates in the same manner as in original appointments; provided, however, that less than three shall constitute an eligible list, and the appointing authority shall appoint from the eligible list. We agree that the manner of regulating the civil service of a city is peculiarly a matter of municipal concern, when the city operates by Charter. We further agree that the Cleveland Police Department is part of the classified civil service. Therefore, any vacancy within the police department is to be filled in accordance with Sections 131 and 133 of the Charter of the City of Cleveland. See, F.O.P., Cleveland Lodge No. 8 v. City of Cleveland (April 9, 1981), Cuyahoga App. No. 42892, unreported. However, Sections 131 and 133 of the Charter do not expressly provide when a vacancy is created. State ex el Friscos v. City of Cleveland (October 11, 1985), Cuyahoga App. 49728, unreported. Rather, these sections deal with the procedure to be followed once it is determined that there is in fact a vacancy. Id. The Charter does not expressly provide when a vacancy is created, nor does it provide when a vacancy is to be filled. Hence, it is our opinion that the City Charter fails to provide when a vacancy is to be filled. This being the case we conclude that state law applies, R.C. 124.44, and the vacancy is to be filled immediately. Zavision v. Loveland (1989), 44 Ohio.St. 3d 158. A vacancy in public office has been defined as occurring when a position that has been established and occupied becomes -8- vacant (by reason of the death, retirement, dismissal, promotion or other permanent absence of the former incumbent). Ballantine's Law Dictionary 1331 (3Ed. 1969); McCarter v. Cincinnati (1981), 30 App. 3d 244. Similar to the court's reasoning in McCarter, we have no difficulty in affirming the trial court's conclusion that the dismissal of Captain Mark Lynch created a vacancy; that the retirement of Sergeant George Sekarek created a vacancy; and that the promotion of relator Lieutenant James Keener to captain would have created a vacancy in the position of lieutenant. The appellant's second reason is that no vacancy existed and pursuant to codified ordinance 135.09 and Charter Section 116, Cleveland is not required to promote whenever an authorized position is to be filled. The appellants by their own admission in the request for Admissions No. 7, 8, and 9, admit that the vacancies existed. Therefore, they should have been filled. However, the appellant argues that they are under no legal duty to promote when a vacancy occurs. Therefore, no vacancy exists. The appellant argues that this court in its decision in Frisco, supra, validates their position. We disagree. In addition to the factual differences in Frisco from the instant case, it supports our conclusion by its holding that Sections 131 and 133 not provide when a vacancy is created. The Frisco court was concerned with a request to require the city, pursuant to C.O. Section 135.09, to fill all vacancies not filled up to the maximum number allotted by the ordinance. This -9- court refused to order the vacancies filled, and held that the city was not required to fill vacancies up to the maximum number allotted by the ordinance. The court further held that had the ordinance provided that the city was required to have a certain number of officers in each category, they would have been compelled to rule that vacancies existed. It is for this reason that we find that Frisco is not dispositive of this case. In the case sub judice, we must resolve whether the city is under a legal duty to promote when a vacancy occurs due to the permanent absence of the former incumbent. We believe that the city is required to promote under that particular circumstance. McCarter v. Cincinnati, supra. Finally, the appellant argues that the trial court abused its discretion in promoting from the expired list. We do not agree. The duty to promote arose prior to the expiration of the eligible list. Furthermore, the doctrine of laches is not applicable. The appellants did not establish any material prejudice by the relators' filing of their complaint one month after the list expired. Shirokey v. Marth (July 19, 1990), App. No. 57267/- 57412. Therefore, we do find that the trial court was correct in finding the three relators were eligible for promotion. However, we do not sustain the trial court's action in actually making the promotions. It is this court's finding that the trial court's jurisdiction was limited to certifying the names to the Civil -10- Service Commission. Therefore, we reverse and remand this case to the trial court to specifically follow the mandate of R.C. 124.44, i.e., to certify the names of the relators to the Commission. Judgment affirmed in part, reversed in part, and remanded. -11- It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. BLANCHE KRUPANSKY, PRESIDING JUDGE ANN MCMANAMON, JUDGE PATRICIA A. BLACKMON, JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .