COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67647 WILLIAM A. CONNOLE, JR. : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION BOARD OF EDUCATION OF THE CLEVE- : LAND CITY SCHOOL DISTRICT : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: JUNE 1, 1995 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Case No. CV-265737. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Mary A. Lentz, Esq. Ohio Savings Plaza 1801 East 9th Street, #1701 Cleveland, Ohio 44114 For Defendant-appellant: Robert M. Wolff, Esq. David A. Posner, Esq. Duvin, Cahn, Barnard & Messerman Erieview Tower, 20th Floor 1301 East 9th Street Cleveland, Ohio 44114-1886 SPELLACY, LEO M., P.J.: Plaintiff-appellee William Connole, Jr. was subject to a reduction in force by the defendant-appellant Cleveland Board of Education (CBOE). Connole appealed to the Civil Service Commission (CSC), who decided in favor of the CBOE. Pursuant to R.C. 2506.04, Connole appealed this administrative decision to the Court of Common Pleas. Briefs were filed by both parties, and although the court took no new evidence, it held oral argument. The court in its well reasoned opinion reversed the CSC. CBOE has filed this appeal, and argues for a reversal of the trial court's decision. Connole was employed by the CBOE for thirty-four years. Since 1977, he held a permanent position as a stage equipment maintenance man and was the only person in this classification. Connole was not a member of any building trades union, but did report to the building trades manager. He was paid from the general fund for everyday expenses, Fund 01. Other building trades employees were paid from the capital improvement fund, Fund 019. CBOE was facing a deficit of approximately $76 million and in October 1992, there was no money left in Fund 019. The CBOE authorized layoffs on October 29, 1992, in resolution 806-92. This resolution references only the Fund 019, the capital improvement fund, and not Fund 01. On October 30, 1992, a packet of documents was prepared to notify the CSC. These documents included a cover letter, the resolution, and the layoff notices to the individual employees. The CSC heard testimony that these - 3 - documents were filed on October 30, 1992, and that the letters to the employees were subsequently mailed. However, the evidence revealed that the documents were time stamped on November 2, 1992, and that the layoff notice to Connole was not part of the packet of information. When Connole requested the CSC for the information contained in his file in November and December 1992, he was informed that his file did not contain either a layoff notice or a statement of rationale. CBOE, the appellant, sets forth only one assignment of error: THE COURT OF COMMON PLEAS ERRED IN REVERSING THE DECISION OF THE CLEVELAND CIVIL SERVICE COMMISSION. (JUDGMENT AND OPINION FILED JULY 1, 1994). CBOE presents two arguments, first, that the decision of the CSC was supported by a preponderance of substantial, reliable and probative evidence; and second, that the trial court relied on evidence not in the record. CBOE contends that it substantially complied with R.C. 124.321; that the appropriate documents were filed; and that Connole was a indeed a building tradesman. Connole asserts that in order to comply with R.C. 124.321, the CBOE was required to file a layoff notice and a statement of rationale and supporting documentation with the CSC prior to sending the layoff notice. Connole argues that the CBOE failed to meet this requirement. In order to reduce its work force, the CBOE was required to comply with R.C. 124.321, which states: - 4 - (A) Whenever it becomes necessary for an appointing authority to reduce its work force the appointing authority shall lay off employees or abolish their positions in accordance with sections 124.321 [124.32.1] to 124.327 [124.32.7] of the Revised Code and the rules of the director of administrative services. (B) Employees may be laid off as a result of a lack of funds within an appointing authority. For appointing authorities which employ persons whose salary or wage is paid by warrant of the auditor of state, the director of budget and management shall be responsible for determining whether a lack of funds exists. For all other appointing authorities which employ persons whose salary or wage is paid other than by warrant of the auditor of state the appointing authority shall itself determine whether a lack of funds exists and shall file a statement of rationale and supporting documentation with the director of administrative services prior to sending the layoff notice. A lack of funds means an appointing authority has a current or projected deficiency of funding to maintain current, or to sustain projected, levels of staffing and operations. This section does not require any transfer of money between funds in order to offset a deficiency or projected deficiency of federal funding for a program. The director of budget and management shall promulgate rules, under Chapter 119. of the Revised Code, for agencies whose employees are paid by warrant of the auditor of state, for determining whether a lack of funds exists. Although R.C. 124.321 references the filing notification with the director of administrative services, R.C. 124.40 authorizes a municipal civil service commission to exercise the powers and - 5 - perform the duties on a municipal level which are conferred upon the director of administrative services on the state level. In an administrative appeal pursuant to R.C. 2506.04, the trial court may find an order is unconstitutional, illegal, arbitrary, capricious, unreasonable or unsupported by the preponderance of substantial, reliable and probative evidence on the whole record. The standard of review for this court is one of abuse of discretion. In Tempo Holding Co. v. Oxford City Counsel (1992), 78 Ohio App.3d 1, the court of appeals considered the standard of review on an appeal under R.C. 2506.04. The court stated: [2] The Supreme Court of Ohio has stated that "[a] court of common pleas should not substitute its judgment for that of an administrative board, such as the board of zoning appeals, unless the court finds that there is not a preponderance of reliable, probative and substantial evidence to support the board's decision." Kisil v. Sandusky (1984), 12 Ohio St.3d 30, 34, 12 OBR 26, 29, 465 N.E.2d 848, 852. R.C. 2506.04 gives the court of common pleas the authority to weigh the evidence to determine whether the administrative body's decision is properly supported by substantial evidence. Id. In making that determination, "'the court of common pleas must give due deference to the administrative resolution of evidentiary conflicts * * *. However, the findings of the agency are by no means conclusive.'" Id., quoting Andrews v. Bd. of Liquor Control (1955), 164 Ohio St. 275, 58 O.O.51, 131 N.E.2d 390. [3,4] An appeal to a court of appeals pursuant to R.C. 2506.04 is more limited in scope. Community Concerned citizens, Inc. v. Union Twp. Bd. of Zoning Appeals (Dec. 2, 1991), Clermont App. No. CA91-01-009, - 6 - unreported, 1991 WL 254633. An appeals court is required to affirm the common pleas court unless it finds, as a matter of law, that the decision of the common pleas court is not supported by a preponderance of reliable, probative, and substantial evidence. Kisil, supra, 12 Ohio St.3d at 34, 12 OBR at 29, 465 N.E.2d at 852; Budd Co. v. Mercer (1984), 14 Ohio App.3d 269, 14 OBR 298, 471 N.E.2d 151. Thus, the authority of a court of appeals "does not include the same extensive power to weigh 'the preponderance of substantial, reliable and probative evidence,' as is granted to the common pleas court. Within the ambit of 'questions of law' for appellate court review would be abuse of discretion by the common pleas court." Kisil, supra, 12 ohio St.3d at 34, 12 OBR at 30, 465 N.E.2d at 852, fn. 4; R.C. 2506.04. (Footnote omitted.) Given the comprehensive and thorough review given to this case by the trial court, it would be difficult to find an abuse of discretion. The court indicated at the hearing that Connole was not a building trades employee because "Stage equipment is not building trades, it's that simple" (T. 30). The court noted that the CBOE had a labor/management agreement with the building trades employees which did not include Connole. The court found that resolution 806-92 specified building trades employees, not any and all others who work out of the building trades office. There seemed to be no disagreement that the Connole job did not include capital improvement work. The judge stated that to permit the layoff because someone had arbitrarily placed his job in the wrong category would be to compound the error. The judge found that CBOE did not comply with the R.C. 124.321(B), and indicated his rationale on the record (T. 78-80): - 7 - THE COURT: And that's the issue in this case, that they made a mistake in not filing, prior to sending the layoff notice, the statement of rationale and supporting documentation. I think it's clear that section 124.321 was ignored by the Board of Education, certainly not complied with. And the next issue is, why is there that requirement? That requirement exists to protect the employee. So logically, then, it would follow that the requirement not having been met, the protection of the employee to be considered by the Board of Education -- by the Civil Service Commission and by the Court subsequently, and all this with a view toward protecting the employment of the employee, in this case the employee is entitled to that protection. It seems to me to be abundantly clear that the rationale, whatever it might have been, was either improper or just negligent, but it was not filed; and the resolution pertaining, as it did, exclusively to building trades employees and building trades budget, a building trades budget that was to be spent for capital improvements, the Board of Education cannot possibly include a person whose position title was stage equipment maintenance man. It just is illogical to consider it any other way. Therefore, the Court will rule for the appellant in this case. In his written opinion, the trial court reiterated the findings made on the record at the hearing. He held that the record before the CSC reflected quite clearly that no statement of rationale and supporting documentation was filed prior to sending the layoff notice as required, nor for a very long time thereafter. - 8 - The court held that the CBOE did not comply with the requirements of the statute, and that if the CBOE had complied with the statute, it would have given more consideration to the exact identity, classification and necessity for layoff of each employee, including Cannole. Instead, the CBOE classified Connole as a building trades employee and that error was transmitted to the CSC. The court found Connole to be a maintenance man who maintained stage equipment. As further support for this determination, the court noted that Connole was not covered by any agreement between the CBOE and the Cleveland Building Trades Council and its affiliated local unions. Connole was excluded from the arbitration procedures which applied to all of the other employees who were subject to the layoff. It is clear from the transcript and from the trial court's written opinion that the court found as a matter of law that Connole had been misclassified by the CBOE, and that the layoff procedures were not correctly followed. This court is unable to find that the trial court abused its discretion. The appellant's second argument is also not well taken. The appellant's assertions that the trial court relied on evidence outside the record is based upon questions the court posed at the oral argument. There is, however, no indication in the record that the trial court relied on evidence outside the record in making its decision. - 9 - The court was careful in its opinion to state that it was mindful of the presumption of the validity of the CSC determination; that the burden of showing invalidity rested on Connole; and that the R.C. 2506.04 limits the court's authority. Although the court heard oral argument, it took no new additional evidence. The fact that the court heard argument and asked questions does not show that the court relied on evidence which was not part of the record. In addition, the judge indicated at the oral argument that he had read the entire record. This court must presume that the trial court knew and applied the correct law. The appellant's assignment of error is overruled. Judgment affirmed. - 10 - It is ordered that appellee recover of appellant his 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. Exceptions. DONALD C. NUGENT, J., CONCURS; JOSEPH J. NAHRA, J., DISSENTS, WITH DISSENTING OPINION ATTACHED. LEO M. SPELLACY PRESIDING 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 journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. - 11 - COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67647 : WILLIAM A. CONNOLE, JR., : : : Plaintiff-Appellee : : D I S S E N T I N G vs. : : O P I N I O N BOARD OF EDUCATION OF THE : CLEVELAND CITY SCHOOL DISTRICT, : : : Defendant-Appellant : DATE: JUNE 1, 1995 NAHRA, J., DISSENTING: I believe the decision of the Civil Service Commission was clearly supported by the preponderance of reliable, probative and substantial evidence and the trial court erred in reversing that decision. First, two Board employees testified that the Board Resolution and copies of layoff notices to all the employees, including Connole, were filed with the Civil Service Commission before the layoff notices were mailed. The CSC produced time-stamped copies of some of the documents filed by the CBOE. There was no reason to doubt the credibility of the Board employees. Although the trial judge could weigh the evidence, the trial judge failed to give due deference to the CSC's resolution of evidentiary conflicts. Tempo - 2 - Holding Co. v. Oxford City Counsel (1992), 78 Ohio App.3d 1. The trial court improperly substituted its judgment, when there was a preponderance of evidence showing the documents were filed. See Dudukovich v. Lorain Metropolitan Housing Authority (1979), 58 Ohio St.2d 202. Second, the Board Resolution and other documents filed with the CSC clearly establish the rationale for the layoff as "lack of funds." The underlying facts substantiating the lack of funds to retain Connole were set forth in the Board Resolution. The Resolution stated that Fund 019, the capital improvement fund, was out of money and the building trades work force had to be reconfigured. Although Connole was paid from Fund 01, Connole was considered a building trades employee and was necessarily a part of the work force reconfiguration. Thus, there were underlying facts in the filed documents sufficient to constitute "supporting documentation." Berndsen v. Westerville Personnel Review Bd. (1984), 14 Ohio App.3d 329, Grenig v. Brooklyn Civil Serv. Comm'n. (June 16, 1988), Cuyahoga App. No. 54217, unreported. The trial judge found that Connole was not a building trades employee. However, the evidence showed that stage equipment maintenance men were included in the building trades budget long before the layoff took place. Connole admitted he was a building trades employee when he testified before the CSC. CBOE apparently included Connole as a building trades employee, and thus the work force reconfiguration applied to him. A preponderance of the - 3 - evidence showed Connole was a building trades employee and the trial court erred when it reversed the Civil Service Commission's finding to that effect. The issue of whether it was fair or proper to include Connole in the building trades accounting category was not before the CSC. R.C. 124.321 through 124.327 do not appear to restrict the employer's placement of classifications into accounting categories. The trial court could not properly reverse the CSC on its finding that the decision to include Connole as building trades was arbitrary. The decision of the Civil Service Commission was supported by a preponderance of the evidence, and the trial court abused its discretion in reversing the decision of the CSC. I would reverse .