The Supreme Court of Ohio today rejected a request from the former Brook Park interim fire chief to oust the current fire chief from office.

In a unanimous per curiam opinion, the Supreme Court found Fire Chief Mark Higgins was properly installed into office in 2023 after receiving the highest score on the civil service examination for the position. Patrick Johnson, an assistant fire chief promoted to chief in September 2022, maintained his appointment was permanent while the city leaders considered it temporary.

Johnson filed a quo warranto lawsuit with the Supreme Court, seeking to remove Higgins from the post and reinstate him as chief.

The Court noted that hiring a new chief was complicated by a union dispute over scoring the fire chief exam. Johnson served during the time the dispute was being resolved through a lawsuit and arbitration. Once the scoring matter was resolved, Higgins, who scored highest on the civil service exam, was appointed the full-time chief.

“Johnson cannot establish that he is entitled to the position of fire chief, because he was not the candidate who received the highest civil-service-examination grade for the position and his name did not appear on an eligible-candidate list,” the Court stated.

Retirement Prompts Competition for Office
Former Brook Park Fire Chief Thomas Maund announced he would retire in August 2022. The Brook Park city charter requires the fire chief to be selected by competitive examination, and the eligibility  list of candidates to take the exam is determined by the city Civil Service Commission.

The commission rules indicate the appointment of fire chief must generally come from the list of eligible candidates who take the exam. Additionally, the rules allow a provisional, or temporary, appointment to be made when no candidate lists exist. At the time of Maund’s retirement, there was no list. Johnson was an assistant chief, and Higgins was a fire department lieutenant when Maund retired.

Two months prior to Maund’s retirement, the city announced it would conduct an exam to fill the fire chief position. The final score would be based 50% on a written exam and 50% on a job skills performance test conducted by an independent assessment center.

The union representing Brook Park firefighters objected to the scoring system. The union argued the collective bargaining agreement did not allow a test from the assessment center to impact the final score. The union won an injunction from Cuyahoga County Common Pleas Court to prevent the hiring of a new chief until the matter was resolved by arbitration.

In August 2022, the city conducted the written portion of the fire chief test, and three firefighters took it. Higgins scored the highest and Johnson the lowest of the three. Because of the court injunction, a list of eligible candidates for chief was not produced after the written exam.

New Chief Appointed
With no list of candidates to select a fire chief, the Brook Park mayor appointed assistant fire chief Johnson as the fire chief in early September 2022.

The mayor’s nomination form stated Johnson was a “temporary appointment,” and the salary form provided for a pay increase because of his appointment to “Interim Chief.” The mayor submitted a draft oath of office to the civil service commission containing a reference to the appointment being temporary or interim, but the commission secretary advised removing the reference.

Johnson’s oath stated he swore to “discharge the duties of Fire Chief of the City of Brook Park,” and the oath did not state the job was interim or temporary. He was presented with a “Chief” badge from the city, and his city email signature block stated he was the chief.

Johnson was in the job for six months. The union prevailed in arbitration in February 2023, which meant the outcome of the written exam would carry the most weight in determining who was eligible to be chief.

In early March 2023, after Higgins had scored highest on the written exam, the mayor swore him in as chief, without indicating whether he was the permanent or temporary chief. The eligibility list for the job had not yet been released.

Firefighter Objected to Position Change
Johnson said he was not formally notified that he was being removed as chief, but did receive notification of a reduction in pay. He challenged the pay reduction before the civil service commission, which dismissed his appeal.

In May 2023, the civil service commission issued the list of eligible candidates and only Higgins was on the list. In July, Higgins was sworn in as permanent chief, and he continues to serve in the position.

Removed Chief Contests Change
Johnson sought a writ of quo warranto, which claimed Higgins was unlawfully holding the fire chief office, and that he was entitled to remain as chief.

The opinion stated the Brook Park city charter requires the city to select a chief from the eligibility list once an exam for the position is completed. Higgins’ name was the only one on the list.

“Here, Johnson’s name never appeared on the eligible-candidate list for promotion to fire chief, and Higgins scored higher than Johnson on the promotional exam. This alone defeats Johnson’s claim that he is entitled to the position of fire chief,” the opinion stated.

Johnson argues regardless of the candidate list, the city actually appointed him as the permanent chief. He noted he was referred to in routine correspondence with city employees as “chief” and obtained a chief badge. His oath of office indicated he was taking the position as chief, not interim or temporary, chief.

The Court stated that city employees out of courtesy informally referred to him as chief, regardless of whether he was in the position temporarily. The city indicated he was also referred to as “chief” in his role as assistant chief, which the Court compared to addressing an associate college professor as “professor.” Regarding the oath of office, the Court found “Johnson presented no authority holding that the exact wording of an oath of office controls what position the oath-taker is being appointed to,” particularly when the documents related to the appointment indicated the position was temporary.

2023-1332. State ex rel. Johnson v. Higgins, Slip Opinion No. 2024-Ohio-5174.

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.