A state appeals court has sided with voters in the long-simmering legal dispute about whether the chief and assistant chiefs in the Cincinnati Police Department can be hired from outside current ranks. In a 2-1 ruling issued late Friday, the First District Court of Appeals overturned a lower court’s ruling that a charter amendment passed by voters in November 2001 violated terms of the local Fraternal Order of Police’s contract.
The police union filed a legal challenge against the post-riot police reform in 2002, which prevented city officials from enacting the provision until the matter was settled.
Known as Issue 5, the charter amendment removed civil service protection from the positions of police chief and assistant chiefs as well as several other non-police supervisory jobs at City Hall.
Issue 5 supporters said it would bring fresh perspectives to the troubled police department and allow city officials to hold police supervisors more accountable. Opponents, including the police union and Chief Thomas Streicher Jr., countered that it unilaterally removed a concession from its labor contract and made the positions vulnerable to political pressure.
During the past few years, the amendment was upheld by the State Employee Relations Board (SERB) but then overturned by the Hamilton County Court of Common Pleas.
In the appellate court ruling, Judge Mark Painter wrote that city voters were a “higher level legislative authority” and neither city officials nor the union can ignore the city’s charter. Painter wrote, “We note that, if the citizens of Cincinnati, in passing a charter amendment, are not a ‘higher-level legislative authority,’ then any charter amendment could never affect future collective bargaining. On its face, that is impossible — both the city and any union could simply ignore the charter, which is the highest authority in city governance. Likewise, we assume, the citizens of Ohio could enact a constitutional amendment, but it could be ignored if it conflicted with a collective-bargaining agreement. To so state the issue shows its absurdity.”
The ruling continued, “The law must be obeyed. And we perceive no difference in whether the amendment was put on the ballot by council, or whether an initiative put it on the ballot by gathering signatures — either way, the voters have the last word.”
Moreover, Painter said the common pleas court erred in overturning the earlier SERB ruling.
The ruling states, “The Ohio Supreme Court has articulated the standard as follows — ‘Ohio law is clear: if an order from SERB is supported by substantial evidence on the record, the common pleas court must uphold SERB’s decision.’ ”
Painter and fellow Judge J. Howard Sundermann rejected the police union’s argument that the amendment constituted an unfair labor practice or that city officials acted in bad faith by enacting it.
Painter wrote, “The (contract) had been effect for almost a year before city council voted to place the charter amendment on the ballot, and city council did not attempt to apply the charter amendment until the expiration of the (contract) at issue here. Further, the charter amendment was drafted with input from a committee comprised of citizens from the community that had been formed in response to tension between the community and the police department that had surfaced in April 2001.”
Judge Lee H. Hildebrandt Jr. dissented.
In his opinion, Hildebrandt wrote, “The mayor of the city and other city officials publicly acknowledged that the (contract) would have to be renegotiated if the charter amendment passed. But instead of requesting that the union enter into mid-term bargaining, the city chose to unilaterally implement the charter amendment, which changed the terms and conditions of employment for assistant police chiefs that the city had originally agreed upon. This did not demonstrate or support a finding of ‘good faith.’ ”
The police union may still appeal the case to the Ohio Supreme Court, which has discretion on whether to accept it for review.
— Kevin Osborne
Painter's reasoning is absolutely correct. It's too bad that Mayor Luken and City Manager Lemmie actively worked behind the scenes to undermine Issue 5. I'm glad to see their efforts failed.
Posted by: Caleb | October 30, 2007 at 11:39 AM
"In the appellate court ruling, Judge Mark Painter wrote that city voters were a “higher level legislative authority” and neither city officials nor the union can ignore the city’s charter." and "“The (contract) had been effect for almost a year before city council voted to place the charter amendment on the ballot, and city council did not attempt to apply the charter amendment until the expiration of the (contract) at issue here."
No kidding! The idea that a union contract negotiated after the passage of a law could negate that law was ludicrous then and repudiated now. Everyone who opposed Issue 5 on the contract basis, including if memory serves Chris Monzel, need to eat crow in public.
Citizenry 1, Police State 0.
Posted by: Not the Mamma Cass! | October 31, 2007 at 12:56 PM
Our police have sued our City to overturn a legal and legally enacted law.Given the historical behavior of our police department, we understand why they may have the misguided notion that their bargaining agreement would supercede amendments to our city charter enacted by us, the voting citizens. Instead of wasting our time and money we wish our police officers would get back to playing video games and watching television.
Furthermore, it was our understanding that contracts drafted by competent attorneys, even collective bargaining agreements, include language that nullifies certain sections, paragraphs or terms of the contract should those sections, paragraphs or terms become illegal or be deemed illegal - while the remainder of the contract remains in full effect. To the extent this amendment to the charter nullifies the entire agreement may we, the citizens, have competent counsel in the succeeding labor negotiations?
Posted by: Every Cincinnatian | October 31, 2007 at 03:21 PM