[Cite as Pack v. Wilmington, 2014-Ohio-446.]

IN THE COURT OF APPEALS 

TWELFTH APPELLATE DISTRICT OF OHIO 

CLINTON COUNTY 

JACOB PACK, : 

 Appellant, : CASE NO. CA2013-08-015 

 

 : O P I N I O N

 - vs - 2/10/2014 

 : 

CITY OF WILMINGTON, : 

 Appellee. : 

APPEAL FROM CLINTON COUNTY COURT OF COMMON PLEAS 

Case No. CVF20130204 

Hapner & Hapner, Jon C. Hapner, 127 North High Street, Hillsboro, Ohio 45133, for appellant 

Blaugrund, Herbert, Kessler, Miller, Myers & Postalakis, Stephen P. Postalakis, David S. 

Blaugrund, 300 West Wilson Bridge Road, Suite 100, Worthington, Ohio 43085-2279, for 

appellee 

 HENDRICKSON, P.J.

{¶ 1} Plaintiff-appellant, Jacob Pack, appeals a decision of the Clinton County Court 

of Common Pleas dismissing his appeal from a decision rendered by the city of Wilmington 

Civil Service Commission (commission) for lack of subject matter jurisdiction. For the 

reasons outlined below, we affirm the dismissal of Pack's appeal. 

{¶ 2} Pack was initially hired by the city as a refuse collector, and he served in this 
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capacity for approximately three years. After a vehicle operator was promoted in June 2009, 

Pack's supervisor informally assigned Pack to fulfill tasks of the promoted employee's former 

position. When Pack was assigned to this position, he was also given a ten percent pay 

raise because he was working outside of his classification. The commission did not approve 

Pack's appointment as a vehicle operator or the increase in pay. 

{¶ 3} In September 2012, the human resources director for the city requested that 

the commission upgrade Pack's pay scale from that of a refuse collector to that of a vehicle 

operator. The commission approved the increase. However, because there was never a 

competitive exam to fill the vehicle operator position, other employees filed a grievance. As a 

result, the commission rescinded Pack's pay scale increase and ordered that a competitive 

exam be held. 

{¶ 4} Three individuals, including Pack, took the competitive exam for the vehicle 

operator position. Pack received the highest score on the examination. Nevertheless, 

another person was appointed to fill the vehicle operator position. Pack, upset that he was 

not appointed to fill the vehicle operator position, filed an appeal with the commission. The 

commission considered Pack's appeal without a hearing and notified Pack via letter dated 

March 21, 2013 that his appeal was denied. 

{¶ 5} Pack appealed the decision of the commission to the Clinton County Court of 

Common Pleas. The city moved to dismiss Pack's appeal for lack of subject matter 

jurisdiction. In ruling on the city's motion, the Clinton County Court of Common Pleas 

determined that R.C. 119.12, the general statute regarding administrative appeals, provides 

that subject matter jurisdiction lies with the Franklin County Court of Common Pleas for 

nondisciplinary matters. The court further determined that R.C. 124.34(B), the statute 

dealing with the reduction, suspension, and removal of classified government employees, 

allows for administrative appeals in the county in which the appointing authority is located 
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(here, Clinton County) only when the matter being appealed from involves disciplinary 

matters. Finally, the court held that actions of administrative officers and agencies can only 

be appealed under R.C. 2506.01, the statute allowing appeals from any agency of any 

political subdivision, if the appeal is the result of a quasi-judicial proceeding. 

{¶ 6} Because Pack's appeal constituted a nondisciplinary administrative appeal that 

was not quasi-judicial in nature, the Clinton County Court of Common Pleas held that Pack's 

appeal should have been filed in the Franklin County Court of Common Pleas. 

Consequently, the court found that it lacked subject matter jurisdiction to consider his appeal. 

Pack now appeals and asserts one assignment of error for review: 

{¶ 7} THE [CLINTON COUNTY COURT OF COMMON PLEAS] ERRED IN 

DISMISSING THIS APPEAL FROM THE CIVIL SERVICE COMMISSION. 

{¶ 8} Pack argues that his appeal was proper in the Clinton County Court of Common 

Pleas under R.C. 2506.01, which provides in part: 

(A) Except as otherwise provided in sections 2506.05 to 

2506.08 of the Revised Code, and except as modified by this 

section and sections 2506.02 to 2506.04 of the Revised Code, 

every final order, adjudication, or decision of any officer, 

tribunal, authority, board, bureau, commission, department, or 

other division of any political subdivision of the state may be 

reviewed by the court of common pleas of the county in which 

the principal office of the political subdivision is located as 

provided in Chapter 2505. of the Revised Code. 

(B) The appeal provided in this section is in addition to any 

other remedy of appeal provided by law. 

Nevertheless, the Ohio Supreme Court has stated that the court of common pleas does not 

have jurisdiction to hear administrative actions of administrative officers and agencies that 

are not the result of quasi-judicial proceedings under the provisions of R.C. 2506.01. M. J. 

Kelley Co. v. City of Cleveland, 32 Ohio St.2d 150 (1972), paragraph one of the syllabus. Id.

A quasi-judicial proceeding requires notice, a hearing, and the opportunity to introduce 
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evidence. Id. at paragraph two of the syllabus. See also Monroe v. Smith, 12th Dist. Warren 

No. CA84-08-050, 1985 WL 8152, *3 (Jan. 28, 1985) ("Proceedings of administrative officers 

and agencies are not quasi-judicial where there is no requirement for notice, hearing, and the 

opportunity for the introduction of evidence"). Consequently, to determine whether Pack was 

entitled to appeal to the Clinton County Court of Common Pleas pursuant to R.C. 2506.01 we 

must decide whether quasi-judicial proceedings were required in this instance. 

{¶ 9} Pack concedes that there was no notice or hearing in this matter, but asserts 

the failure to conduct such proceedings was error because of the requirements set forth in 

Chapter 5 of the city's "Municipal Civil Service Commission Civil Service Rules" (civil service 

rules). Chapter 5 of the civil service rules is entitled "Procedures and Requirements for 

Hearings Before the Civil Service Commission." Rule 5-02 of the civil service rules states 

that the commission shall set a time and place for an appeal when there is "a timely appeal 

from an order of removal or reduction in pay or position, or suspension for more than three 

(3) working days * * * " and "shall notify the appropriate appointing authority as well as the 

employee * * *." Such procedures were not followed in this case. The city argues that 

Chapter 5 of the civil service rules does not apply because Pack's failure to be appointed to a 

vehicle operator position was not disciplinary in nature. While Pack concedes that the action 

was not disciplinary in nature, he asserts that Chapter 5 of the rules of the civil service 

commission is not restricted to disciplinary matters as the terms "reduction," "suspension," 

and "removal" have meaning outside of the disciplinary context. We agree with the city's 

argument. 

{¶ 10} In promulgating the civil service rules, the commission utilized R.C. 124.40, 

which states that "[t]he procedure applicable to reductions, suspensions, and removals, as 

provided for in section 124.34 of the Revised Code, shall govern the civil service of cities." 

The sections of the civil service rules that require notice, a hearing, and an opportunity to 
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present evidence utilize the terms "reduction," "suspension," and "removal."1

 Such language 

mirrors language used in R.C. 124.34, which only applies to disciplinary actions. See TurnerBrannock v. Ohio Bur. of Emp. Servs., 15 Ohio App.3d 134, 137 (12th Dist.1984). The 

definitional section of the civil service rules also defines the terms "suspension" and 

"removal" by either referencing disciplinary measures or R.C. 124.34. Clearly the terms 

"reduction," "suspension," and "removal" as utilized within Chapter 5 of the civil service rules 

have disciplinary connotations. 

{¶ 11} Furthermore, other civil service rules within Chapter 5 indicate that Chapter 5 

distinctively applies to disciplinary measures. Rule 5-06 requires the appointing authority, at 

the required hearing, "produce its evidence in support of the charges against the employee." 

Rule 5-07 of the civil service commission specifically refers to disciplinary actions by requiring 

the appointing authority to prove "the factual allegations in a disciplinary order" and mandates 

a "pre-disciplinary conference." It is evident that Chapter 5 of the civil service rules applies to 

disciplinary matters. 

{¶ 12} Additionally, Pack argues that Chapter 5 of the civil service rules applies to him 

as he had become a classified employee entitled to its protections after working as a vehicle 

operator provisionally for a period of two years. However, Pack was not provisionally 

appointed to the vehicle operator position. Rather, he was assigned the duties by his direct 

supervisor instead of being appointed by the appropriate appointing authority and having 

such appointment approved by the commission, as required by Rule 14-02 of the civil service 

rules.2

 Furthermore, under R.C. 124.271, in order to become a permanent employee, a 

 

1. Rule 5-01(B) of the civil service states that the employee bears the burden of establishing that an alleged 

reduction, removal, or suspension has occurred. Rule 5-02 of the civil service states that the commission shall 

set a time and place for an appeal when there is "a timely appeal from an order of removal or reduction in pay or 

position, or suspension for more than three (3) working days * * * " and "shall notify the appropriate appointing 

authority as well as the employee * * *." 

2. Rule 14-02 of the civil service rules states: "Selection of persons to be appointed on a provisional basis in the 
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person must be appointed to position under R.C. 124.30 and demonstrate merit and fitness 

by meeting certain criteria.3 In this instance, Pack was not appointed by the appointing 

authority under R.C. 124.30, and there is no indication that the appointing authority 

requested a competitive examination prior to Pack filling the position. When a competitive 

examination was held sometime after September 2012, the commission was permitted by law 

to appoint any person eligible to the vehicle operator position as there were fewer than 10 

eligible persons. R.C. 124.27. 

{¶ 13} Finally, we note that Pack's notice of appeal does not argue a "reduction," 

"suspension," or "removal" disciplinary action. Rather, Pack argues in his notice of appeal 

that it was a "displacement from the position [of] vehicle operator" and was appealing 

pursuant to R.C. 124.328. "It is well-established that a party cannot raise new issues or legal 

theories for the first time on appeal." Hamilton v. Ebbing, 12th Dist. Butler No. CA2011-01-

001, 2012-Ohio-2250, fn. 3. 

{¶ 14} In light of the foregoing considerations, we find that the provisions of Chapter 5 

of the civil service rules relied on by Pack do not apply to this matter as such provisions only 

apply to disciplinary matters. Proceedings in this instance were not quasi-judicial, nor were 

quasi-judicial proceedings required. Consequently, the Clinton County Court of Common 

Pleas did not err in finding it lacked subject matter jurisdiction to hear Pack's appeal and that 

the Franklin County Court of Common Pleas was the proper court with jurisdiction to hear 

Pack's appeal. Pack's sole assignment of error is, therefore, overruled. 

 

absence of a complete eligible list shall be made by the appointing authority, subject to approval by the 

commission." 

3. R.C. 124.271 provides that "[a]ny employee in the classified service of the state or any county [or] city * * * 

who is appointed to a position under section 124.30 of the Revised Code, and either demonstrates merit and 

fitness for the position by successfully completing the probationary period for the position or remains in the 

position for a period of six months of continuous service, whichever period is longer, shall become a permanent 

appointee in the classified service at the conclusion of that period."
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{¶ 15} Judgment affirmed. 

RINGLAND and M. POWELL, JJ., concur.