Ohio Supreme Court: RIFs Can Be Accomplished Through Attrition and Do Not Require Layoffs

 Last week, a divided Ohio Supreme Court affirmed the dismissal of a mandamus action by a number of police officers who sought to be promoted to positions which had previously been abolished by the City Council upon the retirement of the prior incumbents.  State ex rel. Ohio Patrolmen’s Benevolent Assn. v. Warren, Slip Op. 2020-Ohio-5372.  The Court held that when the City Council had already reduced the headcounts for officers to be accomplished upon the next retirement to occur in those positions (i.e., through attrition), vacancies never occurred in those positions into which the next most senior officers could be promoted.  The Court distinguished a prior opinion which reached the opposite result because in this case the City Council reduced the headcounts and abolished the positions “on a prospective basis,” before the retirements and before the creation of a vacancy.  In other words, “[t]he statute does not say that reduction in the force can be accomplished only by layoffs.”

 According to the Court’s opinion, the City of Warren was subject to Ohio’s civil service statutes, including O.R.C. §§124.37 and 124.44.   In 2014, the City Council amended the authorized strength of the police force (in place since 1987) to reduce by one the number of captains, lieutenants and sergeants “through attrition.”  When the next captain and lieutenant retired in 2015 and 2016, their positions were not filled through promotion and were deemed abolished upon the retirement of the incumbents.   The plaintiffs filed a mandamus action because they were next in line to receive the promotions into the captain, lieutenant and sergeant positions.  Initially, the court found that the retirements created vacancies which first had to be filled before the positions could be abolished.  However, after stipulated facts were submitted on reconsideration, the court reversed and granted judgment on the pleadings to the City.  The officers appealed and a divided Supreme Court affirmed in a per curiam opinion.

 The civil service statutes require promotions, or civil service examinations, when a vacancy occurs.   When a position is abolished, the employee with the lowest seniority in that rank is demoted to the next lower rank, which then demotes the least senior employee of that rank and so on until the least senior officer is laid off.  The plaintiffs argued that positions cannot be abolished through attrition and can only be abolished after a vacancy created by a retirement is filled through promotion.  However, the Court of Appeals found “nothing in [R.C. 124.44 and 124.37] prohibit[s] the City from accomplishing a reduction in force by attrition” and that “attrition is the least disruptive means of all possible methods to reduce the force” inasmuch as “[n]o officer was laid off, and no officer needed to be demoted.”  In other words, “the present case involves ‘attrition’ in the sense of automatic abolishment upon the former officers’ retirement, preventing a vacancy from occurring in the first place.”   

The City pointed out that the “statute does not say that reduction in the force can be accomplished only by layoffs. . . . Nothing in the statute suggests that the appointing authority may not abolish a position unless it is simultaneously demoting someone from that position.”  Instead, the statutes merely point out the order of demotions (starting with the least senior employees) should an abolishment occur in a position held by an incumbent.   Further, the plaintiffs were arguing for the creation of a fiction by the promotion of individuals who would be almost immediately demoted with the abolishment of the position.  The Court agreed that “[o]nce the incumbent’s position has been validly disestablished, then a vacancy simply does not occur upon his retirement.”

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.