COLUMBUS, Ohio – The Ohio Supreme Court unanimously determined the new Brook Park fire chief was properly appointed to the job, rejecting a challenge from an interim fire chief who thought his position was permanent.
Patrick Johnson was an assistant fire chief who was promoted in September 2022. Johnson argued his appointment was permanent. The city maintained it was temporary and installed a new chief, Mark Higgins, six months later, in 2023. The court in a per curiam, or unsigned, opinion Thursday upheld the city’s position.
A dispute between the union and city over the scoring of the fire chief exam complicated the hiring process, as Johnson served during the time the dispute was being resolved. Once resolved, Higgins was appointed the full-time chief, as he scored highest on the civil service exam, according to Court News Ohio, a service of the Supreme Court.
“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.
The dispute arose after the city’s longtime fire Chief Thomas Maund retired on Sept. 6, 2022. Johnson was an assistant chief at the time. Higgins was a lieutenant.
The city charter requires the fire chief to be selected by competitive examination.
The Brook Park Civil Service Commission’s rules indicate that new fire chiefs must generally come from a list of candidates who are eligible for the exam. When Maund retired, there was no such list, so the rules allow a temporary appointment, Court News Ohio said.
Two months before Maund’s retirement, the city announced that it would conduct an exam with a final score based 50% on a written test and 50% on a job skills performance test from an independent assessment center.
The firefighters’ union objected, saying the independent assessment center’s test violated the collective bargaining agreement. The union won an order in a Cuyahoga County Common Pleas Court to prevent the hiring of the new chief until the matter was resolved by arbitration.
In August of 2022, three firefighters took the written portion of the test. Higgins scored the highest. Johnson scored the lowest.
The next month, with no list of candidates to select the fire chief, the Brook Park mayor appointed Johnson chief.
The mayor’s nomination form described Johnson as a “temporary appointment.” The salary form for Johnson’s pay increase called him an “interim chief.” The mayor submitted to the city’s Civil Service Commission a draft oath of office, which contained a reference of the appointment being temporary. The commission removed the reference, so the oath stated Johnson swore to “discharge the duties of fire chief of the City of Brook Park.”
Johnson was presented with a “chief” badge from the city, and his city email signature stated he was the chief.
The union prevailed in the arbitration in February 2023. That meant the written exam would carry most of the weight. The mayor swore in Higgins, the highest scorer on the written exam, in March 2023, without indicating whether it was a temporary or permanent appointment.
Yet the eligibility list for the job still had not yet been released.
Johnson said he was not formally notified that he was being removed as chief, but received notification of a reduction in pay. He challenged the pay reduction before the Civil Service Commission, which dismissed his appeal, Court News Ohio reported.
Then in May, 2023 the civil service commission released the list of eligible candidates for the job with only Higgins’ name on list. In July 2023, Higgins was sworn in as permanent chief, and he continues to serve in the position.
Johnson filed a quo warranto lawsuit, or a challenge to a person’s authority to hold public office, directly to the Ohio Supreme Court.
Johnson said the city appointed him as the permanent chief, regularly referring to him in routine correspondence with city employees as “chief.”
But the city countered that it also referred to Johnson as “chief” in his role of assistant chief.
The court stated in the Thursday ruling that this may have been a courtesy and informal.
Even though Johnson wasn’t sworn in as an interim chief, the court said that he didn’t show how the exact wording of an oath controls what position the oath-taker is appointed to, especially considering written documents indicating the position was temporary.
The court determined that the chief must be appointed from an eligibility list once the 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,” the opinion stated. “This alone defeats Johnson’s claim that he is entitled to the position of fire chief.”
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Laura Hancock covers state government and politics for The Plain Dealer and cleveland.com.