COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71102 DAVID GOOD, : : Plaintiff-Appellee : Cross-Appellant : : JOURNAL ENTRY vs. : and : OPINION CITY OF CLEVELAND, : : Defendant-Appellant : Cross-Appellee : DATE OF ANNOUNCEMENT OF DECISION : JUNE 12, 1997 CHARACTER OF PROCEEDING : Civil appeal from : Common Pleas Court : Case No. 280711 JUDGMENT : REVERSED AND DISMISSED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee/ Sarah J. Moore cross-appellant: Richard J. Ross CHATTMAN, GAINES & STERN 6200 Rockside Road Cleveland, Ohio 44131 For defendant-appellant/ Kenneth B. Stark cross-appellee: Robert M. Wolff DUVIN, CAHN & HUTTON Erieview Tower - 20th Floor 1301 East Ninth Street Cleveland, Ohio 44114-1886 Joseph J. Jerse Assistant Director of Law City Hall - Room 106 601 Lakeside Avenue Cleveland, Ohio 44114 -3- NAHRA, P.J.: Appellant, the City of Cleveland (the "City"), appeals from the trial court's judgment awarding damages to appellee, David Good ("Good"). Appellee cross-appeals challenging the trial court's computation of damages. For the following reasons we reverse its judgment and dismiss the action without prejudice. This case, commenced by Good as an action for declaratory relief, has a lengthy procedural history. Appellee is a Captain with the Cleveland Police Department (the "Department"). Having served the Department since 1969, in August, 1990, Captain Good was appointed to serve as the City's Commissioner of Traffic Control. On May 17, 1994, the City terminated his appointment. Through a letter signed by the City's Director of the Department of Public Safety, William M. Denihan, the City notified Good of his termination. Dear Commissioner Good: I hereby terminate your service as Commissioner of Traffic Control. * * * Pursuant to Cleveland Codified Ordinance section 135.10, you will resume regular assignment in your rank as Captain of Police. Immediately thereafter, Good mounted challenges to his dismissal based upon two distinct legal theories. Appellee initiated the four-step grievance procedure established by the parties' collective bargaining agreement (the "Agreement"). Therein, he argued that under the Agreement he could not be removed or demoted without sufficient cause. Contemporaneously, Good filed an appeal with the City's Civil Service Commission (the "CSC"). In -4- his appeal, Good requested a determination that the Traffic Control Commissioner's position was a "classified" position as defined by the applicable law. Under appellee's argument, if the Traffic Commissioner's position was a "classified" position, then the City was obligated to demonstrate sufficient cause to terminate his appointment. Appellee pursued the grievance procedure through the first three specified phases. At each stage his grievance was denied. Good then submitted his grievance to binding arbitration, which was the final step of the grievance procedure under the Agreement. After the case was set for arbitration, the CSC determined that it did not possess jurisdiction because of the pending grievance proceeding. Rather than proceed with the scheduled arbitration or appeal the CSC's ruling, Good filed this declaratory judgment action against the City and the CSC. In his complaint, appellee requested the trial court to declare: 1) that the position of Traffic Commissioner was a classified position; or, 2) that the CSC had jurisdiction to decide whether the position of Traffic Commissioner was a classified position. The trial court held that Good was appointed pursuant to an invalid city ordinance. Consequently, the court concluded that Good's appointment was a "legal nullity." Despite such holding, the court awarded appellee "back pay" for the time period between his termination as Traffic Commissioner and the judgment rendered. Appellant timely appealed and assigned three errors for -5- review. Appellee cross-appealed contesting the trial court's computation of damages. I. Appellant's first assignment of error states: The Court of Common Pleas erred in finding it had subject matter jurisdiction because Plaintiff elected to resolve his dispute under the grievance procedure, and he did not appeal the Civil Service Commission's decision dismissing his case. Appellant contends that the grievance procedure established by the Agreement provided the exclusive method of resolving the instant dispute. Appellant also contends that Good should not have been permitted to abandon the grievance procedure "midstream." We hold that the Agreement establishes the exclusive method of resolving this dispute. The Agreement creates an elaborate grievance procedure which culminates in binding arbitration. Specifically, Article XX of the Agreement provides in part: The Grievance Procedure set forth in this Contract shall be the exclusive method of reviewing and settling disputes between the City and the F.O.P. and/or between the City and member, [sic] and all decisions of arbitrators shall be final, conclusive, and binding * * * . Where a collective bargaining agreement provides for final and binding arbitration of grievances, The Public Employees Collective Bargaining Act, R.C. 4117.01 et seq., precludes an employee from seeking redress beyond the grievance process. Sherman v. Burkholder (Dec. 15, 1994), Cuyahoga App. No. 66600, unreported; McNea v. Cleveland (1992), 78 Ohio App.3d 123, 127, 603 N.E.2d. 1158. -6- The operation of this law is demonstrated through our recent ruling in Swenton v. Gorden (Feb. 13, 1997), Cuyahoga App. Nos. 70860, 70864, unreported. Therein, plaintiff Swenton, a former police officer, challenged his termination via the applicable grievance procedure established by the parties' collective bargaining agreement. Said agreement provided for final and binding arbitration of grievances. Pursuant to the agreement's terms, the police union's screening committee voted against submitting the grievance to arbitration. Swenton subsequently filed an appeal with the civil service commission asserting rights under applicable civil service laws. The commission declined to address his claims and an administrative appeal to the common pleas court followed. The common pleas court dismissed the case. On appeal, this court held that Swenton's remedy was limited to the grievance procedure established by the bargaining agreement. "The provisions of a collective bargaining agreement entered into pursuant to R.C. 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. Here, despite appellee's argument to the contrary, Good's right to oppose the termination was limited by the Agreement. While Good attempts to claim that the Agreement did not cover his -7- grievance, his grievance clearly related to his demotion and/or termination. The Agreement covers employee demotions and terminations. Accordingly, as implicitly recognized by Good's utilization of the grievance procedure, said grievance procedure applied and the arbitration panel has jurisdiction over his claim. Concomitantly, his rights under the civil service laws are superseded and the CSC possesses no jurisdiction over his claim. Further, dismissal of this action is warranted because appellee failed to properly appeal the CSC's decision denying jurisdiction. Consequently, the trial court lacked subject matter jurisdiction over his original action. Under Ohio law, a determination by a civil service commission that it lacks jurisdiction to hear a complaint is a final appealable order. State, ex rel. Henderson v. Civil Service Comm. (1980), 63 Ohio St.2d 39, 41, 17 O.O.3d 24, 402 N.E.2d 1105; Faragher v. City of Cleveland (June 6, 1996), Cuyahoga App. No. 69565, unreported. It is well established that a failure to exhaust administrative remedies, including a failure to appeal from a final order of a civil service commission, precludes subsequent judicial review through an original action. McNea, supra, 78 Ohio App.3d at 127 ("[t]he Ohio Supreme Court has recognized * * * that applicable civil service procedures must be exhausted for the common pleas court to obtain subject matter jurisdiction over the dispute * * * ."); Adkins v. State Personnel Bd. of Rev. (1986), 32 Ohio App.3d 32, 35, 513 N.E.2d 808; Sherman v. Burkholder (Dec. 15, 1994), Cuyahoga App. No. 66600, unreported; Faragher, supra. -8- It is apparent that Good initially sought to have the CSC determine his status as a classified employee. The CSC concluded that it did not possess jurisdiction over the matter. Regardless of its basis, the decision constituted a final appealable order. Appellee should have utilized appropriate appellate channels to gain review of the CSC's decision rather than collaterally attack it through this action. Appellee's failure to do so rendered the trial court without jurisdiction over this case. We sustain appellant's first assignment of error. II. Appellant's second and third assignments of error state respectively: The Court of Common Pleas erred in finding that Codified Ordinance 135.10 is inconsistent with Section 126 of the Charter of the City of Cleveland. The Court of Common Pleas erred in awarding Plaintiff backpay where the award was not based on the declaratory decree and was not prayed for in the Complaint. Appellee's sole assignment of error states: The trial court erred in that it failed to employ the proper measure of compensatory damages to calculate plaintiff-cross Appellant/Appellee's monetary relief. Each of these assignments of error is rendered moot by resolution of appellant's first assignment of error. Pursuant to App.R. 12(A)(1)(c), we disregard the remaining assignments of error. Judgment reversed and case dismissed. -9- This cause is reversed and dismissed for lack of subject matter jurisdiction. Costs assessed against plaintiff-appellee/cross-appellant. It is ordered that a special mandate be sent to said 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. PATTON, J., and ROCCO, J., CONCUR. JOSEPH J. NAHRA PRESIDING JUDGE N.B. This entry 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(E) 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 .