COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72458 OHIO PATROLMEN'S BENEVOLENT : ASSOCIATION, ET AL. : : JOURNAL ENTRY Plaintiffs-Appellees : : AND v. : : OPINION GERALD T. McFAUL, ET AL. : : Defendants-Appellants : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 24, 1997 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-331611 JUDGMENT: To the extent the judgment is not moot, it is AFFIRMED. DATE OF JOURNALIZATION: ______________________________ APPEARANCES: For Plaintiffs-Appellees: For Defendants-Appellants: S. RANDALL WELTMAN STEPHANIE TUBBS JONES JOSEPH M. HEGEDUS Cuyahoga County Prosecutor Climaco, Climaco, Lefkowitz ROBERT E. MATYJASIK & Garofoli Co., L.P.A. STEVEN W. RITZ Suite 900, The Halle Building Asst. Prosecuting Attorneys 1228 Euclid Avenue 8th Floor-Justice Center Cleveland, Ohio 44115 1200 Ontario Street Cleveland, Ohio 44113 DAVID ROLOFF MORRIS L. HAWK Goldstein & Roloff 526 Superior Avenue, Suite 1440 Cleveland, Ohio 44114-1401 O'DONNELL, J.: Sheriff Gerald T. McFaul and the Cuyahoga County Sheriff's Department appeal from a decision of the Common Pleas Court, in -2- favor of the Ohio Patrolmen's Benevolent Association (OPBA) and the United Automobile, Aerospace and Agricultural Workers of America (UAW), permanently enjoining the Sheriff in this case from promoting any persons as correction-officer sergeants or corporals, until after the administration of promotional examinations and the establishment of promotional lists for those positions, and further ordering that the Sheriff fill these positions in accordance with R.C. 124.31. Because the promotional lists have been created, that portion of this appeal is now moot, and for the following reasons, we affirm the judgment of the trial court. The record reveals that in February, 1997, McFaul petitioned the Ohio Department of Administrative Services (ODAS) for provisional authority to hire four sergeants and eight corporals, to fill vacant positions, in order to effectively manage the county jail inmates. ODAS granted that authority, and McFaul informed the Ohio Patrolmen's Benevolent Association (OPBA), the collective bargaining agent for corrections officers, of his intent to promote twelve persons as corporals and sergeants. OPBA then filed a complaint against McFaul seeking declaratory and injunctive relief to prevent the promotions, and UAW, the collective bargaining agent for corporals, moved to intervene seeking to enjoin promotion of the corporals to the sergeant positions. The court conducted a hearing on April 29, 1997, and on June 2, 1997, enjoined the Sheriff from promoting persons without a promotional list. McFaul and the Sheriff's Department now appeal and present one assignment of error for our review. -3- The sole assignment of error states: THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED IN PERMANENTLY ENJOINING THE SHERIFF FROM MAKING PROVISIONAL APPOINTMENTS PURSUANT TO ORC. 124.30 AND AUTHORITY GRANTED BY THE OHIO DEPARTMENT OF ADMINISTRATIVE SERVICES. The appellants contend the court abused its discretion when it granted the permanent injunction, arguing that provisional appointments are lawful, the potential exists that substantial harm may result from the injunction and the appellees suffered no irreparable harm and have adequate remedies at law. OPBA and UAW urge the trial court did not abuse its discretion in issuing the injunction because the proposed manner of filling vacancies violated the civil service law, and the public is better served by appellants' compliance with that law. The issue then presented for our review is whether the trial court abused its discretion when it granted the injunctive relief to appellees. We begin our analysis by observing the standard of review in these kinds of cases. In the third paragraph of its syllabus in Danis Clarkco Landfill Co. v. Clark Cty. Solid Waste Mgt. Dist. (1995), 73 Ohio St.3d 590, the court stated: 3. The issue whether to grant or deny an injunction is a matter solely within the discretion of the trial court and a reviewing court will not disturb the judgment of the trial court in the absence of a clear abuse of discretion. (Garono v. State [1988], 37 Ohio St.3d 171, 173, 524 N.E.2d 496, 498, followed.) During oral argument, counsel for appellants and appellees advised our court that promotional examinations had been held for -4- these positions and we invited supplemental briefs to assist us in determining whether the issues raised on appeal became moot. We have supplemented the record and are aware both that the promotional examinations have been administered and the promotional lists have been prepared as ordered by the trial court. In State v. Bistricky (1990), 66 Ohio App.3d 395, our court declined to review any matters of substantive law, stating in relevant part at 397: The duty of this court is to decide actual controversies between parties and to enter judgments capable of enforcement. We are not required to give mere advisory opinions or to rule on questions of law which cannot affect the matters in issue in the case before us. Here, appellants challenge the court's order which: 1) permanently enjoins Defendants from promoting any person to the position of Correction Officer Sergeant * * * until such time as (i) a civil service promotional examination is administered to all eligible individuals in the classified service holding the rank of Corporal * * * ; and, (ii) a certified promotional list for the position of Correction Officer Sergeant is established in accordance with the law of the State of Ohio; 2) permanently enjoins Defendants from promoting any person to the position of Correction Officer Corporal * * * until such time as (i) a civil service promotional examination is administered to all eligible individuals in the classified service holding the rank of Correction Officer; and, (ii) a certified promotional list for the position of Correction Officer Corporal is established in accordance with the law of the State of Ohio; 3) orders that, at such time that certified promotional lists are established pursuant to -5- the procedure set forth above, Defendants shall promote persons to the position of Correction Officer Corporal and Correction Officer Sergeant in accordance with R.C. S124.31 and its accompanying regulations; 4) orders Defendants to pay Plaintiffs OPBA and the UAW for all court costs incurred by Plaintiffs in the maintenance of this action. (Emphasis added). Because we are satisfied that the civil service promotional examinations have been administered and the certified promotional lists have been established for the promotions at issue in this case, appellants are no longer enjoined from promoting persons into corporal or sergeant positions and, consequently, no actual controversy exists between these parties, regarding that issue. We are therefore unable to enter a judgment which can affect the administration of the examinations or preparation of the eligibility lists because they exist and those issues are now moot. Regarding the remaining part of the trial court's order, we cannot conclude the matter is moot, because the record does not reflect the promotions have been made in this case. Nor can we presume the Sheriff will or is obligated to promote, as he has the right to exercise his discretion in determining whether or not to promote. However, if he chooses to promote persons to these positions, he is obligated to follow the procedures set forth in R.C. 124.31 and the related regulations. In this instance, where the injunction is limited to these facts and relates to these positions, we cannot conclude the court's attitude is unreasonable, arbitrary or unconscionable in that it ordered the appellants to promote persons to existing vacancies in accordance with the -6- appropriate provisions of the Revised Code. This action does not constitute an abuse of discretion because we recognize the appellant still may exercise his judgment with respect to making the decision to promote. Accordingly, we affirm those portions of the judgment of the court in this case which we have not previously determined to be moot. Judgment accordingly. -7- It is ordered that appellees recover of appellants its 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, P.J. KARPINSKI, J., CONCUR JUDGE TERRENCE O'DONNELL 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 .