COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67915 : EDWARD HARM : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION : CITY OF PARMA, ET AL. : : Defendants-Appellees : : DATE OF ANNOUNCEMENT SEPTEMBER 14, 1995 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 262248 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANTS-APPELLEES CITY OF PARMA: DOUGLAS C. BLACKBURN, ESQ. Direnfield, Greene & Blackburn WILLIAM D. MASON, ESQ., Law Dir. 55 Public Square Parma City Hall, 6611 Ridge Rd. Suite 1640 Parma, Ohio 44129-5593 Cleveland, Ohio 44113 FOR DEFENDANT LEE FISHER, ATTORNEY GENERAL OF OHIO: JOHN T. DUNCAN, ESQ. Assistant Attorney General State Office Tower, 15th Fl. 30 East Broad Street -2- Columbus, Ohio 43215-3428 -3- PATRICIA ANN BLACKMON, J.: Plaintiff-appellant Edward Harm appeals the trial court's granting of summary judgment in favor of the defendants-appellees city of Parma, Parma Civil Service Commission, Jerome Guska, Frank Radwonski, Thomas Tibbits, and Ohio Attorney General Lee Fisher. Harm assigns the following errors for our review: I. THE TRIAL COURT ERRED IN GOING BEYOND THE LANGUAGE OF A STATUTE THAT IS CLEAR AND UNAMBIGUOUS ON ITS FACE. II. THE TRIAL COURT ERRED BY ALLOWING A GENERAL STATUTE CONTROL AND MODIFY THE CLEAR MEANING AND INTENT OF A SPECIFIC STATUTE. [sic] III. THE TRIAL COURT ERRED BY NOT FOLLOWING THE SPECIFIC AND MANDATORY LANGUAGE OF [R.C. 124.45, 124.46, AND 124.48] TO ORDER THAT APPELLANT BE PROMOTED TO THE RANK OF CAPTAIN IN THE PARMA FIRE DEPARTMENT. IV. THE TRIAL COURT ERRED IN ALLOWING ADMINISTRATIVE REGULATIONS TO MODIFY STATUTES WITH WHICH THE REGULATIONS WERE IN CLEAR CONFLICT. Having reviewed the record of the proceedings and the legal arguments presented by the parties, we affirm the decision of the trial court. The apposite facts follow. On March 4, 1993, Fire Captain Jerome Guska of the Parma Fire Department was sworn in as Fire Chief. In September of 1993, Captain Melvin Tager retired from the Parma Fire Department. On October 8, 1993, Guska wrote a letter to the Parma Safety Director, Gerald Bolt, requesting a voluntary demotion to his former position as Fire Captain. The city of Parma and the Parma Civil Service -4- Commission approved Guska's request, and he was demoted to Captain to fill the vacancy created by Captain Tager's retirement. When Captain Tager retired, Lieutenant Thomas Tibbits was first and Lieutenant Edward Harm was second on the Captain's promotion list. However, Chief Guska was selected to fill the vacancy created by Tager's retirement. Guska's demotion to Captain created a vacancy at the position of Fire Chief. The only eligible person on the Fire Chief promotions list was Captain Frank Radwonski, and he received the promotion to Fire Chief. Radwonski's promotion to Chief created a vacancy at the position of Captain. Because Tibbits was first on the Captain promotions list, he was promoted to fill the vacancy created by Radwonski's promotion. Harm made a formal inquiry with the Parma Civil Service Commission to determine whether he was entitled to be promoted to Fire Captain. The Commission determined Fire Chief Guska had the right to request a voluntary demotion into the Fire Captain position vacated by Captain Tager. The Commission further noted the vacancy created by Radwonski's promotion would be filled from the next person on the Captain promotions list. Harm filed a complaint in the Cuyahoga County Court of Common Pleas for an administrative appeal and seeking a declaratory judgment. The city of Parma moved to dismiss the action. The trial court converted the motion to dismiss to a summary judgment motion and gave notice to all of the parties. After the parties -5- filed their respective motions for and against summary judgment, the motion was granted, and Harm's complaint was dismissed. In its "Memorandum of Opinion and Order," the trial court reviewed R.C. 124.45 and 124.46 and determined they do not prevent the filling of a vacancy by one who has requested a reduction in rank. The trial court further provided: Certainly, it would be absurd for the Fire Captain seeking a voluntary demotion to the next lower rank to be reduced to the lowest rank and to be stripped of seniority. Obviously, the legislature could not have intended such an unreasonable outcome. Rather, the best interest of the service would be accommodated by permitting Guska's voluntary demotion to Fire Captain. The trial court also recognized Subsection 6 of Rule IX of the Parma Civil Service Commission Rules and Regulations provided an employee, by written request, may seek a demotion to a vacant position at a lower grade. This appeal followed. In his first, second, third, and fourth assignments of error, Harm argues the trial court erred in not following the language of R.C. 124.45 and 124.46 and erred by applying R.C. 124.31 and O.A.C. 123:1-31-04. He reasons R.C. 124.45 and 124.46 are specific statutes and are mandatory and controlling over the general provisions of R.C. 124.31. The standards of review in an administrative appeal and in an action for declaratory judgment are different. Sudan, Inc. v. Chagrin Falls (1989), 63 Ohio App.3d 83. When a common pleas court reviews an administrative decision under R.C. 2505.03(A), its inquiry is limited to whether the administrative agency's decision -6- is unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the evidence. R.C. 2506.04. See, also, Harvey v. Civil Service Commission (Sept. 15, 1994), Cuyahoga App. No. 66145. An appellate review of the decision of the common pleas court on an appeal from an administrative decision is limited to determining whether the common pleas court abused its discretion. Steckler v. Ohio State Bd. of Psychology (1992), 83 Ohio App.3d 33. Harm's declaratory judgment action was filed, under R.C. 2721.03, to determine the proper construction to be given to R.C. 124.45 and R.C. 124.46. Insofar as Parma was granted summary judgment, there is no dispute as to the facts of this case. Consequently, the standard of review for a declaratory judgment action is de novo under the standards set forth in Civ.R. 56(C). See Hoicowitz v. Positive Edn. Program (1994), 96 Ohio App.3d 363, 366. Civ.R. 56 specifically provides before summary judgment may be granted it must be determined that: "(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party." Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. -7- The issues in this case are whether, as a matter of law, a voluntary demotion violates the requirements, under R.C. 124.45 and 124.46, to fill vacancies among firemen through promotions and whether strict construction of these statutes creates an absurd result. "It is an axiom of judicial interpretation that statutes be construed to avoid unreasonable or absurd consequences." State, ex rel. Dispatch Printing Co., v. Wells (1985), 18 Ohio St.3d 382. See, also, In re Frederick (1993), 63 Ohio Misc. 2d 229. R.C. 124.31 provides: "(A) Vacancies in positions in the classified service shall be filled insofar as practicable by promotions. ***[V]acancies shall be filled by promotion in all cases where, in the judgment of the director, it is for the best interest of the service." R.C. 124.45 provides: "Vacancies in positions above the rank of regular fireman in a fire department shall be filled by competitive promotional examinations, and promotions and sections 124.46 to 124.49 of the Revised Code.***" R.C. 124.46 provides: "The names of the examinees shall be placed on the eligible list in accordance with their grades; the one receiving the highest grade shall be placed first on the list. ***The person having the highest position on the [eligible] list shall be appointed in the case of a vacancy.***" Under the rules of construction, R.C. 1.51 provides as follows: "If a general provision conflicts with a special or local provision, they shall be construed, if possible, so that effect is given to both. If the conflict between the provisions is -8- irreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provision is the later adoption and the manifest intent is that the general provision prevail." Accord Vogeler v. Cincinnati (1984), 16 Ohio App.3d 393 (held vacancy in rank in a fire department must generally be filled in accordance with R.C. 124.48 by the promotion of an officer in the next lower rank). R.C. 124.45 and 124.46 provides promotions as the sole means for filling vacancies in the ranks of firemen, but is silent as to the issue of voluntary demotions. R.C. 124.31 is more general and gives all civil service commissions the discretion to decide whether filling vacancies with promotions is "practicable" or "for the best interest of the service." Under R.C. 124.31, a civil service commission may fill vacancies with an employee taking a voluntary demotion. Ohio Adm. Code 123:1-31-04. See, also, 1972 Ohio Atty.Gen.Ops. No. 72-064. The statutes at issue are irreconcilable to the extent R.C. 124.31 gives civil service commissions some discretion with respect to promotions and makes allowances for voluntary demotions. They also differ in as much as R.C. 124.45 and 124.46 are special provisions for firemen and later in date of enactment. Because R.C. 124.45 and 124.46 are the more specific statutes, they would normally apply. If strict construction is given to R.C. 124.45 and 124.46, then no Parma fireman could take a voluntary demotion to the next -9- lowest rank when an available position was open. The trial court found this to be an unreasonable and absurd result. We agree. Guska sought a voluntary demotion under Subsection 6 of Rule IX of the Parma Civil Service Commission Rules and Regulations. There is no evidence Guska would have resigned from the position of Fire Chief had his request for voluntary demotion been denied. Guska clearly expressed an intention to continue to work and return to the rank of Captain. Thus, Guska could have remained Fire Chief had his request for voluntary demotion been denied. Guska's request was granted and he received a demotion from Fire Chief to return to the rank of Captain which created a vacancy in the position of Fire Chief. Radwonski filled the Fire Chief vacancy from the rank of Captain which in turn created a vacancy at the rank of Captain. Meanwhile, Captain Tager retired and created another vacancy at the rank of Captain. Thus, there were two vacancies at the rank of Captain. One was filled by Lieutenant Tibbits who was first on the promotions list and the other was filled by Guska's demotion. But for Guska's request to be demoted only one opening at the rank of Captain, not two, would have been created. Thus, Guska's demotion set in motion the chain of events that created a vacancy for him at the position of Fire Captain. Under these facts, allowing Guska to take a voluntary demotion under Ohio Adm.Code 123:1-31-04 and Subsection 6 of Rule IX of the Parma Civil Service Commission Rules and Regulations was the only reasonable interpretation of R.C. Chapter 124. To require Guska to start over as an entry level fireman would be unreasonable where he -10- did not discontinue his service with the Parma Fire Department and it was his request that created a vacancy. Thus, the trial court properly held Harm was not entitled to a promotion to the rank of Fire Captain, notwithstanding the provisions of R.C. 124.45 and 124.46. Accordingly, this court finds the trial court properly granted summary judgment as a matter of law on the action for declaratory judgment, and there was no abuse of discretion in its ruling on the administrative appeal. Judgment affirmed. -11- It is ordered that Appellees recover of Appellant their 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. JAMES D. SWEENEY, P.J., and SARA J. HARPER, J., CONCUR. PATRICIA ANN 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- .