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Township Officer Promoted to Chief of Police Not Entitled to Reinstatement to Former Position After Firing as Chief

When Employer Is Not a 'Civil Service' Township Subject to R.C. 505.49(C)

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2011-0960.  Blair v. Sugarcreek Twp. Bd. of Trustees, Slip Opinion No. 2012-Ohio-2165.
Greene App. No. 2010-CA-3, 2011-Ohio-1725.  Judgment affirmed.
O'Connor, C.J., and Pfeifer, Lundberg Stratton, O'Donnell, Lanzinger, Cupp, and McGee Brown, JJ., concur.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2012/2012-Ohio-2165.pdf

Video clip View oral argument video of this case.

(May 17, 2012) The Supreme Court of Ohio held today that when a certified police officer has been promoted to chief of police in a township that does not have a civil service commission, and that person is later terminated as chief other than for cause, the officer does not have an automatic right under R.C. 505.49(B)(3) to be reinstated to the position he or she held before being promoted to chief.

The court’s 7-0 decision was authored by Justice Judith Ann Lanzinger.

The Sugarcreek Township Police Department hired Kelly Blair as a part-time patrol officer in 1988.  Blair had completed training in 1975 to become a certified peace officer as required by R.C. 109.77 for permanent appointment as a township officer, and he completed a refresher course for the certification in 1988 after being hired by Sugarcreek Township.  Over the course of the next ten years, Blair received a number of promotions – to full-time patrol officer, sergeant, lieutenant, and then to major or assistant chief.  He was named chief of police of Sugarcreek Township in 1998.  As chief of police, Blair served at the pleasure of the Sugarcreek Township Board of Trustees. Sugarcreek Township has a population of less than 10,000 and does not have a civil service commission.

The board voted to terminate Blair from his position of chief of police in September 2006.  He was not given the opportunity to return to any position that he previously held with the Sugarcreek Township Police Department.

Blair appealed the board’s action to the Greene County Court of Common Pleas. He argued that the manner in which he had been terminated as police chief violated his due process rights.  But even if his firing as chief was upheld, Blair asserted that because he had completed certified training as a  police officer before he was promoted to chief, the trustees had acted unlawfully by failing to reinstate him to his former position as a township constable. The common pleas court adopted a magistrate’s findings that Blair had been properly terminated as chief but that he was improperly terminated as constable, and ordered that he be reinstated as a constable.

On review, the Second District Court of Appeals held that Blair had not been terminated as a constable, and remanded the case to allow Blair to present evidence that he was entitled to reinstatement to a position he held prior to becoming chief. On remand, the trial court held that the township was not required to restore Blair to the position in the police department he had held before being promoted to chief.  Blair appealed that ruling.  The Second District held that in townships such as Sugarcreek, a certified police officer who is promoted to chief and then terminated from the latter position is not entitled to reinstatement to his pre-promotion position. The court of appeals certified, however, that its ruling on the right-to-reinstatement issue was in conflict with a decision of the Seventh District in a similar case.  The Supreme Court agreed to review the case to resolve the conflict between appellate districts.

Writing for a unanimous court in today’s decision, Justice Lanzinger found that the provision of state law granting a right of reinstatement to police chiefs applies only to a limited subset of townships that does not include Sugarcreek Township.

Justice Lanzinger wrote:  “When reading divisions (B) and (C) of R.C. 505.49 in pari materia, it is clear that terminated police chiefs in townships with a populations less than 10,000 like Sugarcreek Township are given no right to return to a previous police department position. Although R.C. 505.49(C)(2) specifically states that ‘[a] person appointed chief of police [in a township with a population of 10,000 or more] ... who is removed by the board ... shall be entitled to return to the classified service in the township police department, in the position that person held previous to the person’s appointment as chief of police,’  R.C. 505.49(B) does not grant this right to police chiefs in less populous townships. ... If the legislature had intended to grant the right to return to a previous position to terminated police chiefs in townships subject to R.C. 505.49(B), it would have included language indicating this, just as it did in R.C. 505.49(C)(2).  We will not add this language to the statute and thus will take the legislature at its word when it states in R.C. 505.49(B)(2) that in these townships, ‘[t]he chief of police of the district shall serve at the pleasure of the township trustees.’”

“We ... disagree with Blair’s contention that there is no reason for the legislature to give police chiefs in civil service townships protections that police chiefs in other townships do not have. To the contrary, there are legitimate reasons for the General Assembly to make this distinction. For a police chief to be protected under R.C. 505.49(C), the chief must be employed by a township with a population of 10,000 or more, a police department of at least ten full-time employees, and a civil service commission. The more populous townships are better able to place a former chief in a position previously held than are the less populous townships. It is reasonable for the General Assembly to relieve the smaller townships of the duty to reappoint a former chief to a position that may already be filled in a department with few employees, especially when doing so might put significant strain on the township’s budget.”

“Based on the language of the statute, we agree with the Second District Court of Appeals that R.C. 505.49(B)(3) does not apply to police chiefs.  R.C. 505.49(B)(2) states that police chiefs in non-civil-service townships serve at the pleasure of the township board of trustees. No limitation to this statement is found in the statute, even though the legislature provided a right to return to a previous position to police chiefs in civil service townships under R.C. 505.49(C). We therefore hold that Blair did not have a right to return to his previous position with the Sugarcreek Township Police Department.”

Contacts
Elizabeth Ellis, 937.562.5250, for Sugarcreek Township Board of Trustees.

Dwight D. Brannon, 937.228.2306, for Kelly Blair.