[Cite as State ex rel. Powell v. Mt. Healthy , 2013-Ohio-4873.] 

### IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO EX REL. JOSEPH R. POWELL, Relator-Appellant,

vs. CITY OF MOUNT HEALTHY, JOSEPH T. ROETTING, WILLIAM KOCHER,

and

MOUNT HEALTHY CIVIL SERVICE COMMISSION, Respondents-Appellees. :

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: APPEAL NO. C-130116 TRIAL NO. A-1205217

O P I N I O N.

Civil Appeal From: Hamilton County Court of Common Pleas Judgment Appealed From Is: Affirmed Date of Judgment Entry on A ppeal: November 6, 2013

FOP/Ohio Labor Council, Inc., Douglas J. Behringer, General Counsel, and Paul L. Cox, Chief Counsel, for Relator-Appellant, Schroeder, Maundrell, Barbiere & Powers and Lawrence E. Barbiere, for Respondents-Appellees.

Please note: this case has been removed from the accelerated calendar.OHIO FIRST DISTRICT COURT OF APPEALS

2 H ILDEBRANDT , Judge. 

### {¶1} Relator-appellant Joseph R. Powell appeals the judgment of the Hamilton County Court of Common Pleas gr anting the motion for judgment on the pleadings filed by respondents-appellees City of Mt. Healthy, Mayor Joseph T. Roetting, Safety Service Manager William Kocher, and Mt. Healthy Civil Service Commission (collectively, “Mt. Healthy”) in a mandamus action. Powell’s Asserted Right to Promotion 

### {¶2} Powell is a police officer for Mt. Healthy. In 2012, he filed a mandamus action seeking promotion to the rank of sergeant. 

### {¶3} In his complaint, Powell alleged th at the Mt. Healthy Civil Service

Commission had conducted an examination fo r the rank of sergeant. According to the complaint, the commission had graded the examinat ion and had certified an eligibility list containing three officers. Of those three, Powell had scored second. 

### {¶4} Powell further alleged that, in July 2011, Greg Nolte had been promoted to sergeant from the eligibility list, thus making Powell the highest rated officer on the list. Then, in March 2012 , Sergeant John Wert retired. Powell maintained that Mt. Healthy had a duty under R.C. 124.44 to promote him to sergeant after Wert’s retirement. 

### {¶5} Mt. Healthy refused to make the a ppointment, contending that the city did not need another sergeant in the force. It filed an answer and attached a copy of its collective-bargaining agreement (“CBA”) with the police union. 

### {¶6} Section 8.1 of the CBA stated that “[t]he Employer’s exclusive rights include[d],” but were not limited to, a number of enumerated items. Among those were the right to:OHIO FIRST DISTRICT COURT OF APPEALS

3 [d]etermine matters of inherent mana gerial policy, which include, but are not limited to areas of discretion or policy such as functions and programs, standards of service, overall budget, use of technology and organization structure * * *. 

### {¶7} The CBA then listed various managerial rights, including the right to “[s]uspend, discipline, demote, or discharge, for just cause, or lay off, transfer, assign, schedule, promote, or retain employees * * *.” Based on this contractual language, Mt. Healthy filed a motion for judgment on the pleadings, contending that it had retained the right to determine th e appropriate complement of sergeants in the police force. The tria l court granted the motion, and Powell has appealed. 

### {¶8} In three related assignments of error, Powell argues that the trial court erred in granting Mt. Healthy’s moti on for judgment on the pleadings. We address the assignments together.

The Trial Court’s Consideration of the CBA 

### {¶9} Powell first argues that the court erred in considering the CBA when it ruled on the Civ.R. 12(C) motion. We find no merit in this argument. 

### {¶10} Under Civ.R. 12(C), a judgment on the pleadings is proper where the court construes all material allegations in the complaint, along with all reasonable inferences, as true and in favor of the plai ntiff and concludes, beyond doubt, that the plaintiff can prove no set of facts to support the claim for relief. Sullivan v. Anderson Twp., 1st Dist. Hamilton No. C-070253, 2009-Ohio-6646, ¶ 7. 

### {¶11} In ruling on a motion under Civ.R. 12(C), the trial court is permitted

to consider both the co mplaint and answer. State ex rel. Midwest Pride IV, Inc., v.

Pontious , 75 Ohio St.3d 565, 569, 664 N.E.2d 931 (1996). The court may also consider any material attached to the pleadi ngs or incorporated by reference in theOHIO FIRST DISTRICT COURT OF APPEALS

4 pleadings. See Am. Tax Funding, LLC v. Miamisburg, 2d Dist. Montgomery App. No. 24494, 2011-Ohio-4161, ¶ 22. Unde r Civ.R. 10(C), a copy of a “written instrument attached to a pleading is a part of the pleading for all purposes.” 

### {¶12} In this case, Mt. Healthy attached a copy of the CBA to its answer and incorporated it by reference in the pleading. Therefore, the trial court did not err in considering the contract when ruling on Mt. Healthy’s motion. Mandamus and the CBA’s Provisions Regarding Promotions 

### {¶13} Powell next argues that the court er red in concluding that Mt. Healthy had no duty to promote him. To be entitl ed to a writ of mandamus, the relator must show (1) that he has a clear legal right to the requested relief, (2) that the respondent has a clear legal duty to perform the act, and (3) that the relator has no plain and adequate remedy in the or dinary course of the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28, 29, 451 N.E.2d 225 (1983). An appellate court reviews a decision under Civ.R. 12(C) de novo. Mallory v. Cincinnati, 1st Dist. Hamilton No. C-110563, 2012-Ohio-2861, ¶ 9. 

### {¶14} Powell contends that the trial court erred in concluding that the issue of promotions was covered in the CBA and in holding that the CBA prevailed over the provisions of R.C. Chapter 124. 

### {¶15} R.C. 4117.10(A) addresses the relationship between collectivebargaining agreements and laws governing the terms of public employment. The statute provides: An agreement between a public employer and an exclusive representative entered into pursuant to this chapter governs the wages, hours, and terms and conditions of public employ ment covered by the agreement. * * * Where no agreement exists or where an agreement makes noOHIO FIRST DISTRICT COURT OF APPEALS

5 specification about a matter, the publ ic employer and public employees are subject to all applicable state or local laws or ordinances pertaining to the wages, hours, and terms and con ditions of employ ment for public employees. * * * [T]his chapter prevails over any and all other conflicting laws, resolutions, provisions, present or future, except as otherwise specified in this chapter or as otherwise specified by the general assembly.



### {¶16} As the Supreme Court of Ohio has stated, “[e]xcept for laws specifically exempted, the provisions of a collective bargaining agreement entered into pursuant to R.C. Chapter 4117 prevail over conflicting laws.” State ex rel. Parsons v. Fleming, 68 Ohio St.3d 509, 513, 628 N.E.2d 1377 (1994), citingCincinnati v. Ohio Council 8, American Fedn. of State, Cty., and Mun. Emp., AFLCIO, 61 Ohio St.3d 658, 576 N.E.2d 745 (1991), paragraph one of the syllabus. 

### {¶17} In the case at bar, we find no e rror in the trial court’s judgment. There was no dispute that the issue of promotions was a permissive subject of collective bargaining. See generally Cincinnati at 664; R.C. 4117.08(C)(5). But Powell argues that the inclusion of promotio ns in Section 8.1 of the CBA was merely an acknowledgement that the parties coul d have chosen to alter the statutory scheme. He contends that Mt. Healthy and the union did not in fact bargain over the issue and that the provisions of R.C. Chapter 124 must therefore govern promotions

in this case. 

### {¶18} We find no merit in this contention. Contrary to Powell’s argument, the CBA did not merely list promotions as a permissive subject of bargaining; it affirmatively granted Mt. Healthy the mana gement right to determine the necessityOHIO FIRST DISTRICT COURT OF APPEALS

6 or propriety of promotions. Under R.C. 4117.10(A), that grant of rights in the CBA prevailed over any conflicting statute. 

### {¶19} Still, Powell emphasizes that Mt. He althy continues to maintain a civil

service commission and continues to cond uct competitive examin ations for police promotions. This course of conduct, Po well argues, demonstrates that the parties have intended to adhere to the procedures set forth in R.C. Chapter 124 and that management did not retain plenary power over promotions. 

### {¶20} Again, we are not persuaded by this argument. Even though Mt. Healthy admittedly employed the statutory mechanism for deciding whom to promote, it nonetheless explicitly reserved the right to determine whether to promote. Accordingly, we overrule the assignments of error.

Conclusion 

### {¶21} We affirm the judgment of the trial court. Judgment affirmed.

H ENDON , P.J., and C UNNINGHAM , J., concur.

Please note: The court has recorded its own entry this date.