COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68678 STATE OF OHIO EX REL. : ROBERT L. CHARLTON : : PLAINTIFFS-APPELLANTS : JOURNAL ENTRY : v. : AND : GERALD T. MCFAUL, SHERIFF : OPINION : : DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 30, 1995 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Case No. CV-050166. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: John C. Meros, Esq. 1700 Standard Building Cleveland, OH 44113 For Plaintiff-Intervenor: Dennis J. Niermann, Esq. John Rajic: Kramer & Niermann 3214 Prospect Avenue E. Cleveland, OH 44115-2600 For Defendant-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Patrick J. Murphy Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 -2- DAVID T. MATIA, P.J.: State of Ohio, ex rel. Robert E. Charlton, et al., John Rajic, Intervenor, plaintiff-appellant (hereinafter John Rajic, plaintiff- appellant), appeals from the judgment of the Cuyahoga County Common Pleas Court in which the trial court granted judgment in favor of Gerald T. McFaul, Sheriff of Cuyahoga County, Ohio, defendant- appellee. John Rajic, plaintiff-appellant, assigns two errors for this court's review. John Rajic's, plaintiff-appellant's, appeal is not well taken. I. THE FACTS A civil service test for the position of deputy sheriff in Cuyahoga County was conducted in 1992. On January 16, 1993, the results of the examination were posted. John Rajic, plaintiff- appellant, a corrections officer at the Cuyahoga County Jail, ranked number one on the eligibility list. In April, 1993, the Ohio Department of Administrative Services certified the eligibility list to the Sheriff's Department which began drug testing and background checks on the eligible candidates. Allegedly, the screening process came to a halt after the Sheriff's Department was informed by the Cuyahoga County Commissioner that there was insufficient funding to hire additional deputies at that time. The certification list upon which plaintiff-appellant's name was listed expired on January 16, 1994. Sheriff McFaul, defendant- appellee, did not request that the certification list be extended for one additional year pursuant to R.C. 124.26(A). -3- On March 1, 1994, Sheriff McFaul, defendant-appellee, wrote a letter to Cuyahoga County Commissioner Tim Hagan requesting permission to hire at least 25 deputy sheriffs to replace officers lost through normal attrition. Sheriff McFaul, defendant-appellee, cited security demands by Cuyahoga County judges, the court system and the Justice Center complex as necessitating the additional hires. On March 10, 1994, Joan Koeth, Personal Director for the Cuyahoga County Sheriff's Department, requested from the Ohio Department of Administrative Services a certification list of eligible candidates. Joan Koeth was informed by the Ohio Department of Administrative Services that no provisional hiring would be authorized without proof of adequate funding for the proposed positions. On April 15, 1994, the Board of County Commissioners for Cuyahoga County approved the Sheriff Department's request for additional deputies with a restriction on the amount of overtime hours for the Department. On May 20, 1994, the Board of County Commissioners for Cuyahoga County gave final approval for the hiring of additional deputies. On May 26, 1994, the Sheriff's Department made a second request to the Ohio Department of Administrative Services for a certification list. The Ohio Department of Administrative Services informed the Sheriff's Department that no list was currently available and granted provisional hiring authority to the Sheriff's Department for 30 days. Pursuant to the request of the Sheriff's -4- Department, the Ohio Department of Administrative Services granted a 30-day extension on the provisional hiring authority so that background checks of eligible candidates could be completed. On August 4, 1994, after completion of background checks, drug testing and interviews, the Sheriff's Department certified 25 names to the Ohio Department of Administrative Services. A Deputy Sheriff Academy was scheduled to begin on August 15, 1994. John Rajic, plaintiff-appellant, was not on the list of candidates. On August 11, 1994, John Rajic, plaintiff-appellant, filed a motion to intervene in the case entitled State of Ohio ex rel. Robert E. Charlton, et al. v. Gerald T. McFaul, Case No. 50166 along with a motion for temporary restraining order and permanent injunctive relief alleging that the Cuyahoga County Sheriff's Department failed to comply with the Ohio Civil Service laws when it appointed candidates to the Deputy Sheriff's Academy. Pursuant to agreement of counsel, the trial court ordered that, in lieu of an evidentiary hearing, the parties would submit motions for summary judgment on the issues by December 20, 1994. On January 11, 1995, the trial court granted judgment in favor of Gerald T. McFaul, defendant-appellee, and denied the motion for summary judgment of John Rajic, plaintiff-appellant. Due to improper service, the trial court issued a nunc pro tunc judgment entry dated February 17, 1995 in favor of Gerald T. McFaul, defendant-appellee. John Rajic, plaintiff-appellant, filed a timely notice of appeal from the judgment of the trial court on March 14, 1995. -5- II. FIRST AND SECOND ASSIGNMENTS OF ERROR John Rajic's, plaintiff-appellant's, first assignment of error states: THE LOWER COURT ERRED WHEN IT FAILED TO ENFORCE ITS OWN RULINGS REQUIRING FULL COMPLIANCE WITH OHIO CIVIL SERVICE LAW. John Rajick's, plaintiff-appellant's, second assignment of error states: THE LOWER COURT ERRED WHEN IT FAILED TO ENFORCE OHIO CIVIL SERVICE LAW. Having a common basis in both law and fact, this court shall consider plaintiff-appellant's first and second assignments of error concurrently. A. THE ISSUE RAISED: OHIO CIVIL SERVICE LAW John Rajic, plaintiff-appellant, argues through his first and second assignments of error that the trial court erred in entering judgment in favor of Sheriff McFaul, defendant-appellee. Specifically, plaintiff-appellant argues that the trial court's ruling allows defendant-appellee to ignore Ohio's civil service requirements and hire candidates for deputy sheriff based on personal preference and patronage rather than merit. It is plaintiff-appellant's position that no urgent reason existed, pursuant to R.C. 124.30(A), for the Sheriff's Department to request provisional hiring authority from the Ohio Department of Administrative Services. Therefore, plaintiff-appellant maintains that all the deputy sheriffs hired on a provisional basis as a result of the Deputy Sheriff Academy which began an -6- August 15, 1994 were illegally hired and should be discharged or re-tested at the earliest possible date. Plaintiff-appellant's first and second assignments of error are not well taken. B. R.C. 124.26 AND R.C. 124.30 R.C. 124.26(A) and (B) provide in pertinent part: (a) Except as provided in divisions (B) and (C) of this section, from the returns of the examinations the director of administrative services shall prepare an eligible list of the persons whose general average standing upon examinations for such grade or class is not less than the minimum fixed by the rules of the director, and who are otherwise eligible; and such persons shall take rank upon the eligible list as candidates in the order of their relative excellence as determined by the examination without reference to priority of the time of examination. In the event two or more applicants receive the same mark in an open competitive examination, priority in the time of filing the application with the director shall determine the order in which their names shall be placed on the eligible list; provided, that applicants eligible for veteran's preference under section 124.23 of the Revised Code shall receive priority in rank on the eligible list over nonveterans on the list with a rating equal to that of the veteran. Ties among veterans shall be decided by priority of filing the application. In the event of two or more applicants receiving the same mark on a promotional examination, seniority shall determine the order in which their names shall be placed on the eligible list. The term of eligibility of each list shall be fixed by the director at not less than one nor more than two years. *** (B) A person serving as a provisional employee who completes at least six months of service or his probationary period, whichever is longer, and passes an examination for the -7- class or grade in which he holds his position shall be appointed as a permanent employee in the position before the director of administrative services prepares an eligible list. R.C. 124.30(A) provides: Positions in the classified service may be filled without competition as follows: (A) Whenever there are urgent reasons for filling a vacancy in any position in the classified service and the director of administrative services is unable to certify to the appointing authority, upon requisition by the latter, a list of persons eligibile for appointment to such position after a competitive examination, the appointing authority may nominate a person to the director of noncompetitive examination, and if such nominee is certified by the director as qualified after such noncompetitive examination, he may be appointed provisionally to fill such vacancy until a selection and appointment can be made after competitive examination; but such provisional appointment shall continue in force only until a regular appointment can be made from eligible lists prepared by the director and such eligible lists shall be prepared within six months, provided that an examination for the position must be held within the six- month period from the date of such provisional appointment. *** C. STANDARD OF REVIEW FOR SUMMARY JUDGMENT Civ.R. 56(C) provides that before summary judgment may be granted, the court must determine 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; (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, -8- that conclusion is adverse to that party. Osborne v. Lyles (1992), 63 Ohio St.3d 326. A motion for summary judgment forces the non-moving party to produce evidence on issues for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108 (syllabus). The non-movant must also present specific facts and may not rely merely upon the pleadings or upon unsupported allegations. Shaw v. Pollack & Co. (1992), 82 Ohio App.3d 656. When a party moves for summary judgment supported by evidentiary material of the type and character set forth in Civ.R. 56(E), the opposing party has a duty to submit affidavits or other material permitted by Civ.R. 56(C) to show that there is a genuine issue for trial. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64. This court's analysis of an appeal from a summary judgment is conducted under a de novo standard of review. See Maust v. Bank One Columbus, N.A. (1992), 83 Ohio App.3d 103, 107; Howard v. Willis (1991), 77 Ohio App.3d 133. No deference is given to the decision under review, and this court applies the same test as the trial court. Bank One of Portsmouth v. Weber (Aug. 7, 1991), Scioto App. No. 1920, unreported. D. THE TRIAL COURT DID NOT ERR IN ENTERING JUDGMENT IN FAVOR OF DEFENDANT-APPELLEE. In the case sub judice, a review of the record from the trial court fails to demonstrate that defendant-appellee committed a violation of the Ohio Civil Service law in hiring the deputy -9- sheriffs under provisional authority as set forth in R.C. 124.30(A). Initially, defendant-appellee attempted to hire candidates for the deputy sheriff positions through the eligibility list certified to the department from the Ohio Department of Administrative Services pursuant to R.C. 124.01 et seq. However, due to monetary considerations and fiscal constraints placed upon it by the Cuyahoga County Board of County Commissioners, the Sheriff's Department was unable to complete the hiring process since there were insufficient funds to continue. Before sufficient funding could be obtained, the eligibility list that had been certified to the Sheriff's Department by the Ohio Department of Administrative Services expired. Plaintiff-appellant argues that, at this point, defendant- appellee should have extended the eligibility list for one additional year pursuant to R.C. 124.26(A). However, a close reading of R.C. 124.26(A) fails to support plaintiff-appellant's assertion. The relevant portion of the statute provides: *** The term of eligibility of each list shall be fixed by the director at not less than one nor more than two years ***. Clearly, any proposed extension of the eligibility list from one to two years is left to the sole discretion of defendant-appellee and is not required by the statute. After expiration of the eligibility list, defendant-appellee proceeded to obtain provisional hiring authority from the Ohio Department of Administrative Services in accordance with R.C. -10- 124.30(A). Plaintiff-appellant argues that provisional hiring authority should not have been requested since no valid "urgent reason" existed for such a request. However, security concerns created by an understaffed Sheriff's Department do constitute an "urgent reason" for requesting provisional hiring authority. Moore v. Agin (1984), 12 Ohio St.3d 173, 174. This is especially true in light of recent incidents of violence at courthouses in Cuyahoga County as well as throughout the country. Lastly, plaintiff-appellant maintains that once provisional hiring authority was obtained by the Sheriff's Department, the Department should have used the eligibility list which expired on January 16, 1994 to select candidates for the new deputy sheriff positions. This position is without merit given the fact that once the eligibility list exprired, it no longer had a legal existence. Wagner v. Cleveland (1988), 62 Ohio App. 8, 13. Accordingly, the trial court did not err in entering judgment in favor of Gerald T. McFaul, Sheriff of Cuyahoga County, Ohio, defendant-appellee, where no evidence was presented to demonstrate that any violation of Ohio Civil Service law occurred and defendant-appellee was entitled to judgment as a matter of law. Plaintiff-appellant's first and second assignments of error are not well taken. Judgment of the trial court is affirmed. -11- 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. PORTER, J. and NAHRA, J., CONCUR. DAVID T. MATIA 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 .