The Court ruled two Cincinnati city workers should receive a hearing to contest being placed on leave during the COVID-19 pandemic.

The Court ruled two Cincinnati city workers should receive a hearing to contest being placed on leave during the COVID-19 pandemic.

Two Cincinnati city employees were wrongly denied their right to have a hearing before the Cincinnati Civil Service Commission regarding being placed on leave during the COVID-19 pandemic, the Supreme Court of Ohio ruled today.

In a 5-2 decision, the Supreme Court ruled the commission should have held a hearing to determine if the city’s Temporary Emergency Leave (TEL) program constituted a “layoff” and if individual employees could contest the city’s procedures to select the workers who were placed on leave.

The decision affirmed a First District Court of Appeals ruling, which found that the commission should have conducted a hearing, and state law allowed the two workers to appeal the decision to the Hamilton County Common Pleas Court.

Writing for the Court majority, Justice Melody Stewart explained the commission used a proceeding called an “appearance” to reject the challenges to the emergency leave program initiated by city union workers Jeffrey Harmon and David Beasley. The appearance proceeding could not be appealed to the common pleas court, the opinion explained. Citing the First District’s decision, Justice Stewart wrote the commission could not “abandon its own rules” to avoid holding a hearing where the decision could be appealed.

Chief Justice Sharon L. Kennedy and Justices Patrick F. Fischer, Michael P. Donnelly, and Jennifer Brunner joined Justice Stewart’s decision.

In a dissenting opinion, Justice Joseph T. Deters wrote that Harmon and Beasley only had the right to appeal to the commission if the TEL was a layoff. However, in Justice Deters’ view, nothing in the civil service rules required the commission to hold a hearing to determine if the TEL was a layoff.  So the commission did not err by using the appearance process rather than holding a hearing.  And a decision resulting from the appearance process could not be appealed to the common pleas court, he wrote.

Justice R. Patrick DeWine joined Justice Deters’ dissent.

Pandemic Prompts Workforce Reduction
Harmon and Beasley were longtime city workers and members of Cincinnati Organized and Dedicated Employees (CODE), the union representing city workers.

In April 2020, the city implemented the TEL program as it forecasted a $27.5 million budget deficit. The city cited a drastic decline in revenue because of the closures prompted by the COVID-19 pandemic, and the city indicated the TEL program would preserve basic services and stabilize the city’s budget until it could better predict its future finances. Under the TEL program, workers were placed on leave and could either cash in paid leave they had built up or receive no pay from the city and seek unemployment compensation from the state.

Harmon and Beasley were placed on leave and chose to be paid using their leave time. They appealed the city’s decision to put them on leave to the commission, arguing the city did not follow the proper procedures under civil service rules for conducting layoffs. CODE also filed a grievance with the commission on behalf of city workers, making similar arguments to Harmon and Beasley.

The city maintained the TEL program was not a layoff and the civil service rules regarding layoff procedures did not apply.

Commission’s Handling of Leave Contested
Harmon and Beasley requested a commission hearing. The commission determined the two were not entitled to a hearing under civil service rules, but the matter could be handled under a less formal “appearance” process. The workers were offered the right to appear before the commission, and during the appearance process, the commission agreed with the city that the TEL was not a layoff. Because the program was not a layoff, the commission ruled that it did not have to conduct further proceedings on the matter, and its determination could not be appealed in court.

Harmon and Beasley appealed to the common pleas court under R.C. 2506.01. The trial court reversed the commission’s determination and ordered the commission to conduct a hearing to determine whether the TEL program was a layoff.

The city appealed the trial court’s decision to the First District, which affirmed the decision. The city appealed the First District’s decision to the Supreme Court, which agreed to hear the case.

Supreme Court Analyzed the Parties Collective Bargaining Agreement and Appeal Process
Justice Stewart explained the process for appealing local government rulings under state law. Cincinnati and CODE have a collective bargaining agreement. R.C. 4117.01(A) states that if a collective bargaining agreement calls for binding arbitration to settle grievances, the union employees and the city are subject to only that process. However, if the union contract does not cover a certain issue, the parties are subject to all other state and local laws and can make claims without going to arbitration.

The city’s union contract provision governing layoffs states employees have the right “to appeal the procedural aspects of layoff or displacement to the Civil Service Commission,” the opinion noted. Harmon and Beasley argued they were appealing the procedural aspects of the TEL program; therefore, they claimed they were not subject to the arbitration requirement.

The city argued that another contract provision stated the city retains the right to determine all employment terms and conditions not specifically addressed in the union contract and has the right to “layoff or relieve employees due to lack of work or funds or for other legitimate reasons.”

The Court majority found the city could not rely on that provision for several reasons, including its failure to cite the provision when it challenged the workers’ appeal before the First District. The Court ruled the city forfeited that argument. Additionally, even if the Court accepted the argument, the opinion indicated that it would not be applicable. The Court stated the city wrongly relied on a general rule in the contract that the city has the right to make layoff decisions but ignored the more specific rule that the workers were invoking to contest the leave program.

Regardless of whether the TEL program constituted a layoff, the contract has a specific rule allowing workers to contest the procedural way the leave program was implemented. Harmon and Beasley had the right to challenge the program, and R.C. 4117.01(A) did not prevent the workers from appealing, the Court concluded.

The opinion explained the city invoked R.C. 2505.01(A) to argue against the workers’ right to appeal the TEL program in court. Under the law, a party can only appeal a local government's “final order, adjudication, or decision.” However, under prior Court decisions, the only decisions that can be appealed are those made through a “quasi-judicial proceeding.”

A quasi-judicial proceeding requires notice to the impacted parties, a hearing, and the opportunity to introduce evidence, the Court explained. The city argued that Harmon and Beasley attempted to appeal a commission decision made through the appearance process, which was not a quasi-judicial proceeding.

The Court stated it does not analyze “what the administrative agency actually did, but rather upon what the administrative agency should have done.” Under the civil service rules, the commission should have conducted a hearing where Harmon and Beasley could present arguments and evidence.

Because the commission should have conducted a quasi-judicial proceeding to determine whether the TEL program was a layoff, the commission’s decision was appealable to the common pleas court, the opinion stated.

The common pleas court had the authority to order the commission to conduct a hearing on the workers’ claim, the Court concluded.

Commission’s Decision Not Appealable, Dissent Maintains
In his dissent, Justice Deters wrote the majority wrongly concluded what the commission was required to do when presented with a dispute about whether a layoff had occurred and consequently reached the wrong result. While the two workers argued the TEL was a layoff, the city contended that it was not. This disagreement is significant because, under the commission’s rules, the TEL would be appealable only if it were a layoff. Justice Deters opined that the commission was not bound to conduct a hearing to allow the workers to make their case that this preliminary question should be answered in their favor. 

The dissent explained that although the civil service rules do not authorize a hearing to answer preliminary questions such as whether the TEL was a layoff, the rules do contain a different potentially applicable procedure. The civil service rules allow for an appearance “[w]henever an individual or group has a matter which requires or might require the consideration or decision of the Commission,” Justice Deters wrote. Determining whether the TEL was a layoff certainly is “a matter which requires or might require the consideration or decision of the Commission,” the dissent stated. The appearance process could be used to decide the TEL issue.

The commission’s decision is only appealable to the common pleas court if it resulted from a quasi-judicial proceeding. But, Justice Deters observed, the appearance process is not a quasi-judicial proceeding. Since the commission decided the TEL was not a layoff without conducting a quasi-judicial proceeding, the dissent concluded that the decision could not be appealed to the common pleas court.

2023-0559. Harmon v. Cincinnati, Slip Opinion No. 2024-Ohio-2967.

View oral argument video of this case.

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