State Law Allowing ‘Rule Of Three’ Gives Employer Latitude Not To Follow Own ‘Rule Of One’

A provision of Ohio state law states that a public safety employer “may appoint to a vacant position any one of the three highest scorers on the eligible list for a promotional examination.” The Boardman Township civil service rules, on the other hand, call for the promotion of the highest-ranking individual on the list: “If there is a valid eligibility list, the Commission shall, where there is a vacancy, immediately certify the name of the person having the highest rating and the Appointing Authority shall appoint such person within thirty (30) days from the date of such certification.”

When the City passed over the top-ranking sergeant on a lieutenant’s promotional list, he sued, contending that the City had an obligation to follow its civil service rules and use the “Rule of One.” The Ohio Court of Appeals disagreed, and upheld the City’s decision to bypass the sergeant.

The Court reasoned that “the Legislature’s use of the word ‘may’ conveys discretion upon the Board of Trustees to deviate from its civil service rules and instead promote any of the top three scorers. Further, we disagree with Cochran’s argument that the Board of Trustees was required to implement or adopt a ‘Rule of Three’ before they could exercise that option. As the Board of Trustees points out, there is nothing in the plain language of state law that mandates this. It is axiomatic that in construing a statute, we may not add or delete words.”

State ex rel. Cochran v. Boardman Twp. Bd. of Trustees, 2011 WL 3806157 (Ohio App. 2011).

This article appears in the December 2011 issue.