COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 70860 and 70864 RAYMOND S. SWENTON : : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION MERLE S. GORDEN, ET AL : : Defendants-Appellees : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 13, 1997 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-300275 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: NEAL M. JAMISON (#0005911), 5709 Smith Road, Brook Park, OH 44142 For Defendants-Appellees, Mayor Merle S. Gorden, Beachwood Civil Service Commission and City of Beachwood: MARGARET ANNE CANNON (#0009532), Kelley McCann & Livingstone, 35th Floor - BP America Bldg., 200 Public Square, Cleveland, OH 44114-2302 For Appellee, Fraternal Order of Police, Lodge 86: ROBERT M. PHILLIPS (#0033079), Landskroner & Phillips, 1040 Illuminating Building, 55 Public Square, Cleveland, OH 44113-1904 KENNETH A. KRAUS (#0000812), Kraus & Kraus, 1800 Ohio Savings Plaza, 1801 East Ninth Street, Cleveland, OH 44114-3103 LISA M. RUDA (#0063916), Kelley McCann & Livingstone 35th Floor - BP America Building, 200 Public Square, Cleveland, Ohio 44114-2302 - 2 - SPELLACY, J.: Plaintiff-appellant Raymond S. Swenton ("appellant") appeals the judgment of the trial court granting defendants-appellees Mayor Merle S. Gorden, Beachwood Civil Service Commission, and the City of Beachwood's ("City") motion for summary judgment, and the Fraternal Order of Police, Lodge 86's ("F.O.P.") motion to dismiss. Appellant assigns the following errors for review: I. THE TRIAL COURT ERRED IN GRANTING APPELLEES' MOTION FOR SUMMARY JUDG- MENT WHERE THE BEACHWOOD CIVIL SERVICE COMMISSION DID HAVE JURIS- DICTION TO PROVIDE PATROLMAN SWENTON A HEARING CONCERNING THE TERMINATION OF HIS POSITION WITH THE BEACHWOOD POLICE DEPARTMENT. II. THE TRIAL COURT ERRED IN GRANTING APPELLEES' MOTION FOR SUMMARY JUDGMENT WHERE PATROLMAN SWENTON'S DUE PROCESS RIGHTS WERE VIOLATED WHEN HE WAS NOT AFFORDED A POST- TERMINATION HEARING. III. THE TRIAL COURT ERRED IN GRANTING APPELLEES' MOTION FOR SUMMARY JUDGMENT WHERE THE TRIAL COURT HAD JURISDICTION TO HEAR PATROLMAN SWENTON'S CLAIM THAT APPELLEES HAD VIOLATED HIS CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW. Finding appellant's appeal to lack merit, the judgment of the trial court is affirmed. I. The City of Beachwood, a charter municipality, and the Fraternal Order of Police, Lodge 86, entered into a collective bargaining agreement governing the terms and conditions of - 3 - employment for the City's police force. Article II of the collective bargaining agreement provides that management and direction of the working force is exclusively vested in the City. Thus, the City has " * * * the sole right to hire, discipline, and discharge for just cause * * *. " The City Charter, however, as amended November 8, 1994, limited jurisdiction of the Civil Service Commission and stated that "[t]he Civil Service Commission shall make ALL necessary rules for ITS PROCEDURE, the appointment AND promotion, of persons in the classified service * * * ." Further, if a bargaining unit employee, such as appellant, determines that there has been a breach, misinterpretation or improper application of the collective bargaining agreement, he has access to the grievance procedure provided by Article VI of the collective bargaining agreement. Article VI defines grievance as "a dispute or difference between the City and the F.O.P., or between the City and an employee other than probationary employees, concerning the interpretation and/or application of any provisions of this Agreement and any disciplinary actions." Furthermore, Article VI sets forth a detailed five-step process for peaceful resolution of grievances and culminates in binding arbitration. In December 1994, and January 1995, two separate incidents transpired which caused the City to suspend, and ultimately terminate appellant's employment as a police officer. The first incident involved appellant smearing shoe polish over the men's - 4 - locker room walls in the police department. The second incident involved appellant, during working hours, removing an inter-office memorandum from the police department files and delivering it to the home of the person who was the subject of the memorandum. Appellant repeatedly denied his culpability in each incident, but later admitted his involvement. On January 11, 1995, appellant was provided with a Notice of Violation detailing the charges against him. Further, the Notice of Violation informed appellant that he had been suspended with pay until a formal hearing with the Safety Director/Mayor could be scheduled. On June 1, 1995, Mayor Gorden held a formal hearing with appellant, Mr. Jamison, his attorney, Chief Abrams, Deputy Chief Stempuzis and Dr. Richard Friedell regarding the charges alleged against appellant. At this meeting, appellant and his attorney were given an opportunity to speak and ask questions. Further, Dr. Friedell, who had been previously asked to examine appellant's mental condition, testified that appellant had "a serious person- ality disorder, that * * * render[ed him], * * * unfit to be and remain a police officer, and that condition is unlikely to change." (Affidavit, Mayor Merle S. Gorden). On June 2, 1995, Mayor Gorden sent appellant a letter informing him that his employment as a police officer with the City was terminated. On June 5, 1995, appellant, in direct conflict with the grievance procedure as set forth in the collective bargaining agreement, sent Mayor Gorden a letter appealing his - 5 - decision to terminate appellant. The F.O.P. and the City, however, accepted appellant's letter of appeal as a valid attempt to comply with Art. VI of collective bargaining agreement. On June 20, 1995, the F.O.P. Screening Committee met and reviewed all of the information regarding appellant's grievance, determined that appellant's grievance lacked merit, and voted not to submit the grievance to arbitration. On June 12, 1995, appellant, pursuant to R.C. 124.34, appealed to the Civil Service Commission. The City responded stating that appellant was not entitled to appeal to the Civil Service Commission. In particular, the City stated that the Union contract takes precedence over Civil Service Rules. Moreover, the Civil Service Rules were amended in November 1994, taking away the City's ability to hear and decide termination appeals. (Letter From Beachwood City Law Director to Appellant, June 12, 1995). On July 24, 1995, appellant filed two separate Unfair Labor Practice Charges with the State Employment Relations Board ("SERB"), one against the City of Beachwood and the second against the F.O.P. On November 16, 1995, SERB dismissed appellant's charges. II. On June 29, 1995, appellant filed an administrative appeal in the Cuyahoga County Court of Common Pleas alleging that the City Civil Service Commission improperly denied him a hearing regarding his termination. (Case No. 291679). Subsequently, on December 18, - 6 - 1995, appellant filed a complaint seeking declaratory judgment. (Case No. 300275). On December 28, 1995, the trial court consolidated the two cases. On March 1, 1996, the F.O.P. filed its motion to dismiss or in the alternative motion for summary judgment. On March 14, 1996, appellees Merle Gorden, Beachwood Civil Service Commission and the City of Beachwood filed their motion for summary judgment. The trial court, on June 5, 1996, granted the F.O.P.'s motion to dismiss and appellees Merle Gorden, Beachwood Civil Service Commission, and the City of Beachwood's motion for summary judgment. III. In his first assignment of error, appellant contends that the trial court erred in granting the City's motion for summary judgment. In particular, appellant contends that the Civil Service Commission had jurisdiction to provide him with a hearing concerning the termination of his employment from the Beachwood Police Department. The test for granting a motion for summary judgment is set forth in Civ.R. 56 and in numerous cases interpreting the rule. The law is clear that: Summary judgment is appropriately rendered when no genuine issue as to any material fact remains to be litigated; the moving party is entitled to judgment as a matter of law; it appears from the evidence that reasonable minds can come but to one conclusion; and viewing such evidence most strongly in favor of the party against whom the motion for summary - 7 - judgment is made, that conclusion is adverse to that party. Lovsin, et al. v. J.C. Penney Company, Inc., et al. (May 9, 1996), Cuyahoga App. No. 69520, unreported, citing to Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317; Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64. R.C. 124.34 provides that an employee who is removed shall receive a copy of the order of removal. A copy of this order must also be filed with the appropriate civil service commission or the state board. R.C. 124.34. Within ten days of the filing of the order, the employee may file an appeal with the state board. Id. The state board must then hear the appeal. Fields v. Summit Cty. Executive Branch (1992), 83 Ohio App.3d 68. Either party may appeal the state board's decision to the court of common pleas of the county in which the employee resides. Id. It is this general procedure to which appellant asserts he is entitled. The Home Rule Amendment to the Ohio Constitution governs the respective legislative roles of the state and its municipalities. State ex rel. Lightfield v. Indian Hill (1994), 69 Ohio St.3d 441, 442. In matters of local self-government, if a portion of a municipal charter expressly conflicts with a parallel state law, the charter provisions will prevail. Id.; Sections 3 and 7, Article XVIII, Ohio Constitution; State ex rel. Bardo v. Lyndhurst (1988), 37 Ohio St.3d 106, 108-109. The termination of officers from a municipality police force constitutes an exercise of local self-government. However, in order for the municipal charter to supersede state law regarding police officer terminations, the - 8 - conflicts must be in the "express * * * language" of the charter and not by mere inference. Lightfield, supra, citing Bardo, supra, at 110. A municipality must clearly and expressly state the areas where the municipality intends to supersede and override general state statutes. Id. In the present case, Article VI, Section 3 of the Beachwood Charter states that "[t]he Civil Service Commission shall make all necessary rules for its procedure, the appointment and promotion of persons in the classified service, independent of the general law of the State of Ohio where permitted to do so, and such other rules as the Commission determines to be necessary." Thus, it is clear that the charter makes only general statements regarding the ability of the Civil Service Commission to make rules for its general procedure, but explicitly provides that the Civil Service Commission has the ability to make appointments and promotions of persons in the classified service, including police officers. Therefore, since the City Charter does not contain express language authorizing the adoption of rules with regard to termination, neither the charter nor the Civil Service Commission's rules supersede the requirements of R.C. 124.34 as to removal of an employee from his/her civil service employment. Although we do not have the benefit of an opinion, the trial court presumably, in granting appellees' motion for summary judgment, held that the general procedures set forth in R.C. 124.34 were not applicable under the circumstances of this case. In - 9 - particular, R.C. 124.34 is superseded by the provisions of the collective bargaining agreement, pursuant to R.C. 4117.10. R.C. 4117.10(A) provides that: (A) An agreement between a public employer and an exclusive representative entered into pursuant to Chapter 4117. of the Revised Code governs the wages, hours, and terms and conditions of public employment covered by the agreement. If the agreement provides for a final and binding arbitration of grievances, public employers, employees, and employee organizations are subject solely to that grievance procedure and the state personnel board of review or civil service commissions have no jurisdiction to receive and determine any appeals relating to matters that were the subject of a final and binding grievance procedure. "The provisions of a collective bargaining agreement entered into pursuant to R.C. Chapter 4117 prevail over conflicting laws, including municipal home-rule Charters enacted pursuant to Section 7, Article XVIII of the Ohio Constitution, except for laws specifically exempted by R.C. 4117.10(A)." Mayfield Hts. Fire Fighters Assn., Local 1500, I.A.F.F. v. DeJohn (1993), 87 Ohio App.3d 358, 361. Furthermore, if the public employer agrees to final and binding arbitration of grievances, the parties are subject solely to that grievance procedure, and the civil service commission has "no jurisdiction to receive and determine any appeals relating to matters that were the subject of a final and binding grievance procedure." Cook v. Maxwell (1989), 57 Ohio App.3d 131, 134. - 10 - In the case sub judice, appellant argues that the grievance procedure set forth in the collective bargaining agreement did not adequately provide for a final and binding arbitration procedure. A close review of the grievance procedure, however, reveals otherwise. Article VII, Section 6 provides that: The grievance procedure set forth in this Article shall be the sole and exclusive method for resolving matters which constitute grievances under this Agreement. Any decisions, results, or settlements reached under the terms of this grievance procedure, whether reached by an arbitrator's decision or at any pre-arbitration step of the procedure, shall be final, conclusive, and binding on the City, the F.O.P., and the employees. Thus, the labor contract in the present case makes the grievance procedure final and binding on all parties. We hold that the labor contract entered into by the parties in the present case supersedes R.C. 124.34, as well as the Beachwood Charter, and controls the grievance procedures arising out of appellant's termination from the police force. Accordingly, appellant's first assignment of error is overruled. IV. For purposes of this appeal, appellant's second and third assignments of error will be addressed together in that, in both assignments of error, appellant contends his due process rights were violated because he was not afforded a post-termination hearing. State law creates a property interest in continued civil service employment which may not be taken without due process of - 11 - law. Manning v. Clermont County Bd. of Commrs. (1989), 55 Ohio App.3d 177, syllabus. However, it is federal constitutional guidelines rather than state law which determine the procedures necessary to satisfy due process. Id. If state procedures exceed the minimum due process requirements established by federal precedent, a state could fail to follow its own procedures yet still provide sufficient due process to survive constitutional scrutiny. Id. The United States Supreme Court in Cleveland Bd. of Edn. v. Loudermill (1985), 470 U.S. 532, addressed the issue of what process is due an employee who is being terminated from employment. The Loudermill court set forth the basic requirements as follows: The essential requirements of due process, and all the respondents seek or the Court of Appeals required, are notice and an opportunity to respond. The opportunity to present reasons, either in person or in writing, why [a] proposed action should not be taken is a fundamental due process requirement. * * * The tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story. * * * Local 4501 v. Ohio State Univ. (1990), 49 Ohio St.3d 1, 3, citing Loudermill, supra at 546. In the present case, appellant, on January 11, 1995, was presented with a Notice of Violation detailing the charges against him. On June 1, 1995, a pre-termination hearing was conducted by Mayor Gorden. At this hearing, appellant was given an opportunity to speak and to confront the allegations made against him. Following the hearing, appellant was informed by Mayor Gorden that he had been terminated. - 12 - Appellant appealed not only to Mayor Gorden, but also appealed to the City Civil Service Commission and filed a formal grievance with the F.O.P. Subsequently, the F.O.P. Screening Committee, upon the appellant's request, reviewed appellant's grievance. Appellant, however, failed to submit any evidence to the Screening Committee for their review in determining whether appellant's grievance should be submitted for full arbitration. As a result, the Screening Committee, determined appellant's appeal to lack merit and decided not to submit the grievance to arbitration. Subsequently, appellant appealed both the F.O.P. Screening Committee's decision not to forward his grievance to arbitration and the City Civil Service Commission's refusal to hear his appeal to SERB. However, SERB dismissed both appeals for lack of probable cause. As stated supra, violations of due process are judged not by state law standards but by federal standards. Thus, we find that the requirements set forth in Loudermill were fulfilled. Appellant received notice of the charges against him and the substance of the City's evidence. The written notice provided to appellant clearly informed appellant that he had been suspended and that a hearing would follow. At the pre-termination hearing, appellant was able to confront his accusers and respond to their allegations. He received far more than a mere "opportunity to present his side of the story." Furthermore, post-termination review of appellant's grievance was conducted by the F.O.P. Screening Committee and SERB. - 13 - Appellant further contends that it was error for the trial court to grant the F.O.P.'s motion to dismiss for lack of subject matter jurisdiction. This Court, however, has held that where a grievance procedure exists as an exclusive remedy, a trial court lacks jurisdiction to hear the appeal. DeJohn, 87 Ohio App.3d at 364. Therefore, we hold that the trial court did not err in dismissing this case pursuant to Civ.R. 12(B)(1) or refusing to consider the F.O.P.'s motion for summary judgment. Accordingly, appellant's second and third assignments of error are overruled. Judgment affirmed. - 14 - 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. JAMES M. PORTER, P.J. and JOSEPH J. NAHRA, J. CONCUR. LEO M. SPELLACY JUDGE N.B. This is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(B) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .