An assistant to the Akron mayor cannot be removed as acting city police chief because there is no such position, and he does not hold the office of deputy police chief so he cannot be ousted from that position either, the Ohio Supreme Court ruled today.

In a 4-3 decision, the court denied a request from nine captains in the Akron Police Department for a special order called a writ quo warranto to remove Charles Brown from two offices. The captains argue that they are eligible to serve in those positions while Brown is not.

Brown resigned as a police lieutenant in the department and was appointed in January 2013 as an assistant to the mayor and as assistant chief of police, a position not included in the police division’s manual or the city’s charter. In February, Akron’s police chief appointed Brown to serve as acting chief of police for four days. Before that, the chief typically had named a police captain as acting police chief in his absence.

Since the captains filed their action, the chief has not appointed anyone as acting police chief in his absence, but instead has ordered that any issues be directed to the mayor.

In today’s per curiam (not authored by a specific justice) opinion, the court determined that the evidence shows that “acting chief of police” is a temporary assignment filled only when the police chief is away for a brief time. The court stated that because acting police chief is not a public office to which anyone has a right, it is not an office from which a person can be removed by court order.

The captains also contended that Brown has been serving as de facto deputy chief of police. To be a de facto officer, Brown must appear to be in an office he is not entitled to hold and appear to be performing that office’s duties and responsibilities, the court explained.

Akron’s police department has no official deputy chiefs. The court stated that Brown does seem to carry out some duties usually done by a deputy chief, such as signing findings and recommendations while sitting on the city’s firearms review board, overseeing the community relations office, and representing the chief at meetings and events, and he had been named assistant chief of police, a title he often has used publicly.

The court noted, however, that Brown does not claim to be a deputy police chief, and these facts do not necessarily support a court order to remove him.

“[T]o the extent that [the captains] question the legality of Brown’s actions as an assistant to the mayor and assistant chief of police because those actions are normally performed only by a deputy chief, quo warranto cannot be used to oust him from his position,” the court’s opinion stated.

“The mayor of Akron has the power to ‘appoint and remove all employees in both the classified and unclassified service, except elected officials,’ and to exercise control over all departments and divisions,” the opinion continued. “The mayor has the power to appoint Brown as an assistant to the mayor. If the duties Brown performs in that capacity violate the city’s collective-bargaining agreement or state or federal law, [the captains] are free to pursue those theories. But the writ of quo warranto does not lie to oust Brown as assistant to the mayor even if Brown, as an assistant, performs duties that are more akin to the duties usually assigned to deputy chiefs.” The court concluded that Brown is not a de facto deputy chief.

Making up the court’s majority were Justices Paul E. Pfeifer, Terrence O’Donnell, Sharon L. Kennedy, and William M. O’Neill. Justice Judith Ann Lanzinger dissented in an opinion joined by Chief Justice Maureen O’Connor and Justice Judith L. French.

In her dissent, Justice Lanzinger agreed with the majority’s decision that the court cannot remove Brown as acting chief of police because that position is a temporary assignment rather than a public office. However, she would order Brown to be removed from performing the duties of deputy chief because he is unlawfully serving as a de facto deputy chief.

Justice Lanzinger wrote that this is not a situation where the writ is being sought to test the legality of Brown’s actions but that instead the captains are asserting that Brown usurped or intruded on the office of deputy chief.

“The majority in part justifies denying the writ on the fact that Brown does not claim to be a deputy police chief,” she continued. “Such a claim, however, would not be in his interests. If Brown claimed he held the position, it would be readily apparent that he has usurped, intruded, or unlawfully exercised that public office. Instead, he refers to himself as ‘assistant chief of police,’ a position the majority acknowledges does not exist under the city charter.”

“In my view, sufficient evidence exists to show that respondents have sidestepped the provision of the city charter that requires the deputy police chief to be a member of the classified civil service,” she wrote. Brown’s position as assistant to the mayor is unclassified. “By assigning Brown to perform the functions of a deputy police chief without actually appointing him to that position, respondents have circumvented civil-service requirements, a maneuver we have held to be improper,” she concluded.

2013-0280. SER Calvaruso v. Brown, Slip Opinion No. 2014-Ohio-1018.

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion, but only for noteworthy cases. Opinion summaries are not to be considered as official headnotes or syllabi of court opinions. The full text of this and other court opinions are available online.

PDF files may be viewed, printed, and searched using the free Acrobat^® Reader
Acrobat Reader is a trademark of Adobe Systems Incorporated.