Ohio Supreme Court Refuses Request to Remove Fire Chief

The Ohio Supreme Court has refused to order the removal of a fire chief whose appointment was challenged by an assistant chief who served as the interim fire chief. Assistant Chief Patrick Johnson contended that when he was sworn in as interim Fire Chief for the City of Brook Park on September 7, 2022, his appointment became permanent.

Chief Johnson filed a quo warranto action seeking a writ to remove Fire Chief Mark Higgins, who was appointed on March 10, 2023. Chief Johnson also alleged that he could only be removed as fire chief for cause. The confusing facts were explained by the Ohio Supreme Court as follows:

• In January 2022, the chief of Brook Park’s fire department, Thomas Maund, announced his intent to retire in August 2022. Both Johnson and Higgins were employed by the fire department … Johnson as assistant fire chief and Higgins as a lieutenant.
• In June 2022, the city announced a civil-service examination for the fire-chief position. Fifty percent of the total score would be from a written exam and 50 percent from an assessment-center test. The firefighters’ union filed a grievance arguing that scoring from an assessment-center test was not permitted under the union’s collective-bargaining agreement.
• The mayor denied the grievance, and the union filed suit in the Cuyahoga County Court of Common Pleas, seeking to prevent the city from hiring a fire chief while the union pursued arbitration. In August, the court granted an injunction enjoining “the City from using the results of the Assessment Center to appoint the new Fire Chief until after the results of the Arbitration,” which would “determine whether the Assessment Center [exam] will be pass/fail or used in the manner the City [had] propose[d].”
• On August 17, the city conducted a written civil-service promotional exam for fire chief. Out of three applicants, Higgins scored the highest and Johnson scored the lowest. Because of the court injunction, no eligible-candidate list was created at that time.
• On January 20, 2023, the civil-service commission conducted an assessment-center promotional exam. On February 13, the arbitrator of the union’s grievance determined that the assessment-center tests could be used only on a pass/fail basis. In March and April, Johnson and Higgins took additional testing for advancement to fire chief. On May 23, after the completion of all exams, the civil-service commission issued an eligible-candidate list. Higgins was the only name on the list.
• Meanwhile, on September 7, 2022, while the litigation and examinations were ongoing, the mayor swore in Johnson as fire chief.
• The core disputed issue in this case is whether Johnson was appointed as the permanent chief or only a temporary or interim chief.
• The mayor’s nomination form stated that he was nominating Johnson as a “temporary appointment” under the civil-service rules providing for provisional appointments.
• Johnson’s classification and salary-action form provided that his salary was being increased due to an appointment as “Interim chief.”
• Johnson’s oath of office, however, stated that he swore to “discharge the duties of Fire Chief of the City of Brook Park” and did not state that he was being appointed to a temporary or interim position.
•  At a civil-service hearing, the mayor testified that a draft of the oath had contained a reference to the appointment being temporary or interim but that for unspecified reasons, the secretary of the civil-service commission had advised that the reference be removed.
• Johnson ran the fire department for approximately six months. His email signature block stated “Chief,” and he obtained “Chief” badges from the city. In almost all the correspondence produced as evidence, city employees referred to him as “Chief” without qualifying his position as interim or temporary, although the civil-service commission referred to him as “Interim Chief” on at least one occasion.
• On March 7, 2023—six months after Johnson’s appointment and before the release of an eligible-candidate list—the mayor nominated Higgins as chief, and Higgins was sworn in as chief on March 10. The parties dispute whether Higgins’s March appointment was permanent or temporary.
• The procedure was similar to that of Johnson’s appointment; the mayor nominated him as temporary chief, but Higgins’s oath of office made no mention of a temporary or interim appointment.
• Johnson states that he never received any formal notification from the city that he was being removed as chief, and no such document is in the record. Johnson filed an appeal regarding his reduction of position and pay with the civil-service commission, which, after an evidentiary hearing, dismissed the appeal.
• On July 7, after the release of an eligible-candidate list containing only Higgins’s name, Higgins was sworn in as permanent chief. He continues to serve as Brook Park’s fire chief.

The Supreme Court next explained the requirements for the issuance of a writ of quo warranto, and why they declined to issue a writ to remove Chief Johnson. Note: the term relator refers to a party who files a quo warranto action.

• To be entitled to a writ of quo warranto, a relator must establish (1) that the respondent is unlawfully holding an office, (2) that the relator is entitled to the office, and (3) that the relator lacks an adequate remedy at law.
• As a general matter, an appointed city fire-chief position is a public office for which a writ of quo warranto may issue.
• Here, Higgins does not argue that Johnson has or had an adequate remedy at law.
• Regarding the second requirement for issuance of a writ of quo warranto, 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.
• Brook Park’s city charter provides that the “Chief of the Department of Fire shall be selected by competitive examination” and that the “[e]ligibility list for the Chief’s examination shall be determined by the Civil Service Commission.”
• Absent “urgent reasons” for a temporary appointment, appointments may be made only from eligible-candidate lists, which are determined by examinations.
• [A] necessary qualification for permanent fire chief in Brook Park is selection through a civil-service examination as an eligible candidate. Here, Johnson’s name never appeared on an 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.
• Johnson argues, however, that regardless of whether he was an eligible candidate, the city actually did appoint him permanent fire chief and he therefore may not be removed except for certain for-cause reasons.
• Given that a permanent fire chief may be appointed only from a list of eligible candidates—which here did not contain Johnson’s name—it is questionable whether an invalid appointment as permanent fire chief would entitle him to a writ of quo warranto declaring that he is entitled to the position of fire chief.
• Johnson would still not have the superior right to the position. But regardless, the evidence does not support Johnson’s assertion that he was appointed permanent fire chief.
• In sum, the evidence shows that Johnson was appointed temporary, not permanent, chief.

Here is a copy of the decision: