[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Harmon v. Cincinnati, Slip Opinion No. 

.]




                                        NOTICE
     This slip opinion is subject to formal revision before it is published in an
     advance sheet of the Ohio Official Reports. Readers are requested to
     promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
     South Front Street, Columbus, Ohio 43215, of any typographical or other
     formal errors in the opinion, in order that corrections may be made before
     the opinion is published.




                         SLIP OPINION NO. 

HARMON ET AL., APPELLEES, v. THE CITY OF CINCINNATI ET AL., APPELLANTS.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
  may be cited as Harmon v. Cincinnati, Slip Opinion No. 

.]
Civil service—R.C. 4117.10(A)—R.C. 2506.01(A)—Common pleas court not
        divested of jurisdiction to hear city employees’ administrative appeal
        regarding whether separation from employment under temporary
        emergency-leave program implemented in response to COVID-19
        pandemic constituted a layoff—Judgment affirmed.
    (No. 2023-0559—Submitted January 9, 2024—Decided August 6, 2024.)
              APPEAL from the Court of Appeals for Hamilton County,
                            No. C-220236, 

.
                                 __________________
        STEWART, J., authored the opinion of the court, which KENNEDY, C.J., and
FISCHER, DONNELLY, and BRUNNER, JJ., joined. DETERS, J., dissented, with an
opinion joined by DEWINE, J.
                            SUPREME COURT OF OHIO




       STEWART, J.
       {¶ 1} In this case, we are asked to determine whether the Hamilton County
Court of Common Pleas had jurisdiction over the administrative appeal of
appellees, Jeffrey Harmon and David Beasley, from a decision of appellant the
Cincinnati Civil Service Commission (“the commission”). We hold that Harmon
and Beasley had a right to appeal the commission’s decision to the common pleas
court under R.C. 2506.01 and that they were not precluded from doing so by R.C.
4117.10.      Accordingly, the common pleas court had jurisdiction over the
administrative appeal. We therefore affirm the judgment of the First District Court
of Appeals.
                  I. FACTS AND PROCEDURAL HISTORY
       {¶ 2} Harmon and Beasley were longtime employees of appellant the City
of Cincinnati (“the city”) and members of a city-employees union, Cincinnati
Organized and Dedicated Employees, Inc. (“CODE”). In April 2020, the city
implemented a Temporary Emergency Leave (“TEL”) program to, among other
things, mitigate anticipated financial losses resulting from the COVID-19 pandemic
by placing certain city employees on leave. The city explained at that time that it
expected a decrease in income-tax revenue (the city’s main source of general
revenue) due to the state-imposed delay in collection of income taxes and rising
unemployment rates and that it expected decreases in revenue from sources such as
parking meters and casino taxes.
       {¶ 3} The city also explained that the declining revenue was coupled with
an anticipated increase in pandemic-related costs like purchasing personal
protective equipment for its employees. This anticipated financial double-hit had
required the city to “take quick action to close [the] projected deficit.” As of
March 30, 2020, the city forecasted that its general fund would experience a
negative variance of $27.5 million instead of the pre-pandemic anticipated positive
variance of $24 million. And given the uncertainty during the early days of the




                                        2
                                January Term, 2024




COVID-19 pandemic, the city could not confidently predict the loss in revenue and
increase in expenses that it would incur. Therefore, the TEL program was intended
to preserve basic services while helping to stabilize the city’s budget until the city
could get a better handle on its finances. Workers placed on leave under the
program could either use accrued paid leave to cover the leave period or elect to
receive no payment from the city and be eligible for unemployment compensation
from the State of Ohio.
       {¶ 4} Harmon and Beasley were placed on leave under the program, and
each used accrued paid leave for that time. They appealed the city’s decision to
place them on leave to the commission, asserting that the city had not followed
proper procedure under Cincinnati Civil Service Rule 12 in conducting their layoffs
under the TEL program. CODE filed a grievance on behalf of its members, alleging
claims similar to those of Harmon and Beasley. The city argued that the TEL
program was not a layoff and therefore the civil-service rules concerning layoffs
did not apply.
       {¶ 5} The commission agreed with the city that the TEL program was not a
layoff. However, the commission made that decision following Harmon and
Beasley’s “appearance” before the commission rather than after a hearing. That is
because the commission had determined that Harmon and Beasley were not entitled
to a hearing despite their request for one.
       {¶ 6} There are key differences between an appearance and a hearing under
the civil-service rules. At a hearing, the parties may call witnesses, present
evidence, and subpoena witnesses and documents. See Cincinnati Civil Service
R. 17. In contrast, an appearance is scheduled when “an individual or group has a
matter which requires or might require the consideration or decision of the
Commission,” and the civil-service rules do not require that the individual or group
attend the appearance for the commission to consider the matter. Cincinnati Civil
Service R. 2, § 5.



                                          3
                            SUPREME COURT OF OHIO




       {¶ 7} Harmon and Beasley appealed the commission’s determination that
they were not entitled to a hearing to the Hamilton County Court of Common Pleas
under R.C. 2506.01. That court reversed the commission’s determination and
remanded the matter to the commission to conduct a hearing regarding whether the
TEL program was a layoff. The city appealed that decision to the First District,
arguing that the common pleas court lacked subject-matter jurisdiction to consider
Harmon and Beasley’s appeal from the commission’s decision because the matter
was governed by the parties’ collective-bargaining agreement (“the CBA”) and
because the commission’s determination regarding whether the TEL program was
a layoff was not the result of a quasi-judicial proceeding. 

.
The First District held that the common pleas court had jurisdiction to consider the
appeal under the terms of the CBA and was not precluded from doing so by R.C.
4117.10(A). 

. And the court of appeals held that the
common pleas court had jurisdiction under R.C. 2506.01 because the commission’s
decision denying a hearing was an adjudication from a quasi-judicial proceeding.

.
       {¶ 8} This court accepted the city and the commission’s appeal to review
two propositions of law:


               1. A court considering whether an individual right of action
       i[s] preempted by R.C. 4117 must consider whether the underlying
       claim arose from or depended upon an interpretation of the
       collective bargaining rights guaranteed by a collective bargaining
       agreement. Where the cause of action requires interpretation of the
       collective bargaining agreement, the binding arbitration procedure
       provided by the contract is the exclusive remedy and the trial court
       lacks subject matter jurisdiction.




                                            4
                                January Term, 2024




               2. When there is uncertainty as to whether a party is entitled
       to a quasi-judicial hearing before a municipal civil service
       commission, a court must defer to the discretion of the
       administrative agency as to the interpretation of its rules. Where the
       commission finds that a party is not entitled to a quasi-judicial
       hearing pursuant to its rules, a trial court lacks subject matter
       jurisdiction to hear an administrative appeal under R.C. 2506.


See 

.
                           II. LAW AND ANALYSIS
  A. The common pleas court had jurisdiction to consider the administrative
  appeal under the terms of the CBA and was not precluded from doing so by
                                  R.C. 4117.10(A)
       {¶ 9} If a collective-bargaining agreement provides for a final and binding
arbitration of grievances, the parties are subject solely to that grievance procedure.
R.C. 4117.10(A). However, if there is no collective-bargaining agreement or the
agreement does not cover a certain issue, the parties are subject to all applicable
state or local laws and may bring claims outside the arbitration procedure. See 

       {¶ 10} In this case, there is a collective-bargaining agreement between the
city and CODE. While many subjects fall exclusively within the arbitration-of-
grievances requirement of the CBA, § 10.1(B) of the CBA, which governs layoffs,
specifically preserves an employee’s right “to appeal the procedural aspects of
layoff or displacement to the Civil Service Commission.” Harmon and Beasley
maintain that because they were appealing procedural aspects of the TEL program
to the commission, their claims were not governed by the CBA’s grievance
procedure.
       {¶ 11} The city relies on the management-rights clause of § 5.2 of the CBA,
which states that the city retains the rights “[t]o determine any and all terms and



                                          5
                                 SUPREME COURT OF OHIO




conditions of employment not specifically set forth in [the CBA]” and “to layoff or
relieve employees due to lack of work or funds or for other legitimate reasons.”1
The city’s reliance on this provision fails for multiple reasons.
         {¶ 12} Importantly, the city forfeited this argument because it did not raise
it to the First District. The city admits that it did not raise the argument to the First
District (and on review, we note that the terms “management” and “5.2” do not
appear in the city’s merit brief or reply brief filed in the First District). But the city
submits that it should have the opportunity to advance an argument in this court
based on the management-rights clause because the First District sua sponte raised
it and the city did not have a chance to develop the argument below. But, as the
city also argues, the First District did not make any findings with respect to § 5.2
of the CBA (and like the city failed to do in its briefs filed in the First District, the
First District did not refer to “management” or “5.2” anywhere in its decision). The
First District did not sua sponte raise the issue of application of the management-
rights clause, and there is no justification for the city’s failure to raise that argument
below.
         {¶ 13} Additionally, the city raised arguments regarding § 10.1 of the CBA
and other specific language in the CBA in its briefs filed in the First District, so it
had the opportunity to argue that the CBA supported a management-rights-clause
claim. But it failed to specifically mention § 5.2 of the CBA and thus forfeited any
argument regarding that provision. See State v. Rogers, 

, ¶ 21
(“forfeiture is the failure to timely assert a right or object to an error”).
         {¶ 14} Even if the city did not forfeit the management-rights-clause
argument, it still fails to explain how that clause, which is relatively general in
nature, should be given effect over the more specific layoff provisions in § 10.1 of
the CBA. Instead, the city claims that § 5.2 proves that this matter is merely a

1. While the city has maintained that the TEL program was not a layoff, it specifically cites the
layoff language of § 5.2 of the CBA to support its arguments here.




                                               6
                                       January Term, 2024




contractual dispute, and it offers numerous policy and statutory-interpretation
reasons for allowing only one avenue of relief for employees such as Harmon and
Beasley. It is a maxim of contract interpretation that when two clauses of a contract
appear to be inconsistent, the more specific clause prevails over the more general
clause. See Gibbons-Grable Co. v. Gilbane Bldg. Co., 

(8th Dist. 1986), citing Hoke v. Marcis, 

 (8th Dist. 1955). Here,
§ 10.1 of the CBA specifically concerns layoff and displacement procedures, and
that specific provision trumps the more general management-rights clause of § 5.2.
         {¶ 15} Additionally, even if the TEL program is not a layoff under § 10.1
of the CBA, § 5.1 allows employees to enforce their individual employee rights
concerning terms and conditions of employment not specified in the CBA, through
the “normal Civil Service, regulatory, and/or judicial processes.” Other than § 10.1,
no other part of the CBA addresses nondisciplinary leave or emergency or
temporary leave. Therefore, even if the TEL program does not qualify under § 10.1
as a layoff, an employee may still have an individual right of action under § 5.1,
because participation in the program was a condition of employment.2 The city
does not dispute that § 5.1 applies and provides an individual right of action, but
the city claims that the management-rights clause in § 5.2 of the CBA somehow
overrides § 5.1. However, as discussed above, the city forfeited any arguments
regarding the management-rights clause.
         {¶ 16} Next, the city posits that policy reasons should bar any individual
right of action outside those available under the CBA, especially in cases like this


2. The dissenting opinion claims that we “endorse[]” the court of appeals’ “either/or approach” in
that we cite § 5.1 of the CBA as a basis for an action before the commission. However, both this
majority opinion and the First District’s decision refer to § 5.1 in addressing the city’s argument that
this action is barred by R.C. 4117.10 and the CBA. This is not a matter of the court’s “hedg[ing] its
bets,” dissenting opinion, ¶ 40, but is instead this court’s considering the propositions of law raised
by the commission. The dissent may choose to focus its analysis solely on R.C. 2506.01, but this
majority opinion addresses both propositions of law put before us.




                                                   7
                             SUPREME COURT OF OHIO




one in which the union is proceeding with a claim identical to that in the
individual’s action. While presenting identical claims in a single action may be
good policy, the CBA governs and allows employees to assert their individual rights
under § 5.1 and § 10.1. If the city wanted to foreclose an individual’s avenues for
relief, it should have bargained for that result in the CBA. Instead, it now argues
that (1) the CBA governs and Harmon and Beasley have no rights as individuals to
challenge a layoff or a condition of their employment under the CBA (despite there
being express language in the CBA to the contrary) and (2) policy rationale should
override the CBA. The city cannot have it both ways. If the CBA applies, which
it does under R.C. 4117.10(A), then the parties must follow the terms of the CBA,
which include individual rights of appeal under § 10.1 and enforcement of those
rights under § 5.1.
       {¶ 17} The First District correctly concluded that under § 5.1 and § 10.1 of
the CBA, Harmon and Beasley have a right to contest alleged procedural
deficiencies in the TEL program. It also correctly concluded that the CBA did not
terminate the common pleas court’s jurisdiction to hear the administrative appeal.
Therefore, we reject the city’s first proposition of law.
      B. The common pleas court had jurisdiction under R.C. 2506.01(A)
       {¶ 18} A party may appeal any “final order, adjudication, or decision of any
officer, tribunal, authority, board, bureau, commission, department, or other
division of any political subdivision” to the court of common pleas of the county in
which the principal office of the political subdivision is located. R.C. 2506.01(A).
However, the final order, adjudication, or decision appealed from must have been
rendered in a quasi-judicial proceeding. State ex rel. McArthur v. DeSouza, 

 (1992); M.J. Kelley Co. v. Cleveland, 

(1972), paragraph one of the syllabus. A quasi-judicial proceeding is a proceeding
that requires notice, a hearing, and the opportunity to introduce evidence. See

, citing M.J. Kelley Co. at paragraph two of the syllabus.




                                          8
                                 January Term, 2024




Importantly, whether a proceeding is quasi-judicial is a question of law, not of fact.
See In re Appeal of Howard, 

 (10th Dist. 1991).


       “Whether there is an adjudication depends not upon what the
       administrative agency actually did, but rather upon what the
       administrative agency should have done. Where the administrative
       agency should have given notice, conducted a hearing and afforded
       the parties an opportunity to be heard and to introduce evidence, the
       order is the result of an adjudication even if the administrative
       agency fails to afford such notice and hearing.”


(Emphasis added.) State ex rel. Fern v. Cincinnati, 

, ¶ 51 (1st
Dist.), quoting Howard at 719.
       {¶ 19} Here, the commission was required to give notice and conduct a
hearing under the Cincinnati Civil Service Rules. Under Cincinnati Civil Service
R. 17, § 1, “[a]n employee may appeal . . . layoffs . . . by filing a notice of appeal
with the Commission.” Harmon and Beasley timely filed their appeals with the
commission under this rule, arguing that the city had violated the layoff procedures
set forth in Cincinnati Civil Service R. 12.
       {¶ 20} Upon the filing of an appeal under the civil-service rules, the
commission must take numerous steps to conduct a hearing, including issuing
notice. Cincinnati Civil Service R. 17, § 1(D). The commission must admit and
consider evidence, allow the parties to be represented by counsel, and issue a
decision that must be recorded in the commission’s minutes and sent to the parties.
Cincinnati Civil Service R. 17, § 1(E)(3) and (5). The commission also has the
power to issue subpoenas for witness testimony or documents and to administer
oaths. See Cincinnati Civil Service R. 17, § 1(E)(3).




                                          9
                             SUPREME COURT OF OHIO




       {¶ 21} The commission did not set Harmon’s and Beasley’s appeals for a
hearing or take any other steps required by Cincinnati Civil Service R. 17, such as
issuing the subpoenas Harmon and Beasley had requested, because the commission
found that the TEL program was not a layoff and thus Cincinnati Civil Service
R. 17 did not apply.     Instead, the commission held an “appearance” under
Cincinnati Civil Service R. 2, § 5. An appearance does not require the same
procedures as Cincinnati Civil Service R. 17, and the parties here agree that an
appearance is not a quasi-judicial proceeding. At the appearance, the commission
asked the parties some questions, including whether holding a hearing under
Cincinnati Civil Service R. 17 would be tantamount to an admission that the TEL
program was a layoff. Harmon and Beasley argued that the commission could take
evidence at a hearing to determine whether the program was a layoff. The
commission, however, did not allow the parties to present such evidence and
summarily decided that the TEL program was not a layoff.
       {¶ 22} Just as it did below, the city’s arguments here rest on the fact that the
commission determined that a full hearing was unnecessary because, in its view,
the TEL program was not a layoff. We conclude that the commission exercised its
discretion in deciding that the program was not a layoff, rendering the appearance
a quasi-judicial proceeding. See M.J. Kelley Co., 

. And while
the commission did not follow the requirements under Cincinnati Civil Service
R. 17 for conducting a hearing, it was required to do so.
       {¶ 23} There was disagreement among the parties regarding whether the
TEL program was a layoff (though the city had analogized the program to a “mass
layoff” in its frequently-asked-questions document concerning the program).
Because there was some doubt regarding whether the program was a layoff, the
commission should have proceeded with a hearing to allow the parties to argue their
positions. As the First District noted, “[t]he commission may not abandon its own
rules and sua sponte decide that the leave under the TEL program was not a layoff




                                         10
                                January Term, 2024




prior to holding a hearing on that issue.” 

. If the commission
had conducted a hearing, there would have been no doubt that the common pleas
court had jurisdiction over Harmon and Beasley’s appeal, and a hearing would have
provided greater insight and detail into the matter for the court to consider in
making its decision. Regardless, because the commission’s decision was the result
of a quasi-judicial proceeding, the common pleas court had subject-matter
jurisdiction to review the decision on administrative appeal and to ultimately
remand the matter to the commission for a hearing.
       {¶ 24} The city contends that the commission has the authority to interpret
its own rules and that it was within the commission’s discretion to determine
whether a hearing was required. The city attempts to distinguish this case from the
First District’s decision in State ex rel. Bower v. Cincinnati, 

 (1st
Dist.). In that case, Bower, a sergeant with the Cincinnati Police Department, had
challenged the city’s failure to follow a promotional-eligibility-exam grading rule
requiring examinee anonymity. 

. The First District determined that
the commission had been required to hold a hearing on the challenge because
Cincinnati Civil Service R. 17, § 2, allowed an appeal regarding “‘the grading of
an examination’ ” (emphasis deleted), 

; id. at ¶ 18-21. Here, the city
states that in contrast, “[Cincinnati Civil Service] R. 12 provides no indication that
the Commission can review the determination of whether a layoff occurred.” But
at the same time, the city argues that the commission was authorized to interpret its
own rules to find that a layoff did not occur—without even holding a hearing. But
both arguments cannot be correct. Either the commission has the authority to
determine that a layoff occurred or it does not have the authority to do so. In either
event, the city’s analysis does not support a claim that the commission is permitted
to make such determinations without following proper procedure under its own
rules. Additionally, the city’s argument that there is a distinction between this case
and Bower is unavailing because Cincinnati Civil Service R. 17, § 1 allows an



                                         11
                             SUPREME COURT OF OHIO




appeal concerning layoffs, just like § 2 of that rule allows an appeal concerning the
grading of an exam.
       {¶ 25} The city also argues that the TEL program is not encompassed by
Cincinnati Civil Service R. 17, because the civil-service rules do not specifically
contemplate or otherwise address the TEL program and therefore the commission
was correct to set the matter for an appearance instead of a hearing. But the
initiation of the program in April 2020 was a somewhat sudden response to the
COVID-19 pandemic, so it makes sense that the program was not mentioned in the
civil-service rules. And there is no requirement that the civil-service rules contain
the exact name of a program for that program to fall under Cincinnati Civil Service
R. 17. The commission was indeed required to determine whether the TEL program
was a layoff, but that decision should have occurred only after it conducted a
hearing under Cincinnati Civil Service R. 17.
       {¶ 26} The city argues that affirming the First District’s decision will
endorse a practice that will reward employees for “creative pleading” and using
“magic words” to garner an otherwise unauthorized appeal. This argument is also
unavailing. If a party appeals the procedural aspects of a layoff, an initial question
should always be: Was there, in fact, a layoff such that the procedural civil-service
rules apply? Whether there was a layoff is the baseline determination that the
parties must establish or refute at the hearing, and the commission does not have
the authority to undercut the procedure for making that initial determination.
Further, this case is specifically about a rare instance of mandatory leave, because
it relates to an emergency measure that was taken in the early days of the COVID-
19 pandemic. The TEL program did not look typical, because it was created under
atypical circumstances. The rarity of such circumstances further supports the
conclusion that the commission should have conducted a hearing to determine
whether the TEL program was a layoff before it summarily dismissed the appeals.




                                         12
                                    January Term, 2024




        {¶ 27} The dissenting opinion ignores what the commission should have
done in favor of what the commission actually did. But what the commission did
is not what our caselaw requires, and it is apparent that the dissent knows better,
because it cites the correct standard—“whether a proceeding is a quasi-judicial one
. . . depends upon what the law requires the agency to do, not what the agency
actually does,” State ex rel. Mun. Constr. Equip. Operators’ Labor Council v.
Cleveland, 

, ¶ 36. See dissenting opinion at ¶ 43. We agree with
the dissent that the commission needed to determine whether the TEL program was
a layoff before considering Harmon’s and Beasley’s arguments regarding whether
the city complied with the rules for a layoff. However, the dissenting opinion
claims that the commission did not need to hold a hearing and that it could
determine whether a layoff occurred by holding only an appearance, simply
because that’s how the commission chose to proceed. That analysis rings hollow,
especially considering the dissenting opinion’s suggestion that we are finding that
Harmon and Beasley were appealing layoffs because that is what Harmon and
Beasley said they were doing. Yet, the dissenting opinion would find that the
commission had authority to forego a hearing, simply because the commission says
it had such authority.3
        {¶ 28} There is nothing in the Cincinnati Civil Service Rules that requires
such a determination to be made at an appearance under Cincinnati Civil Service
R. 2, § 5, and the dissent concedes that Rule 2, § 5 only “plausibly” applies. It
makes sense that the rules do not dictate that such questions be considered at an
appearance. If parties are seeking a hearing on a matter, any questions about the
subject matter of the hearing are best considered in the context of that hearing, not
at a separate, standalone appearance under the rules.                  Indeed, allowing the
commission to proceed with only an appearance based on nothing but its own

3. As explained above, the city’s analysis does not even support a claim that the commission is
permitted to make such determinations without following the proper procedure under its own rules.




                                               13
                             SUPREME COURT OF OHIO




determination of whether a layoff occurred seems to be a convenient way to allow
the commission to escape appellate scrutiny, because parties who are dissatisfied
with the results of an appearance do not have a right to appeal the results.
       {¶ 29} Additionally, the dissent’s comparison of this case to Mun. Constr.
Equip. Operators’ Labor Council, 

, is inapt because that case
applied different rules in a different type of action. In Mun. Constr. Equip.
Operators’ Labor Council, the Cleveland Civil Service Rules required a
predisciplinary hearing. Id. at ¶ 5-6. Only if the predisciplinary procedure resulted
in an initial decision favoring a discharge, demotion, or suspension longer than ten
days could the matter proceed to a full disciplinary hearing. See id. The employee
in that case was given notice of a predisciplinary hearing under the Cleveland Civil
Service Rules. See id. at ¶ 11. However, the City of Cleveland cancelled that
hearing and immediately terminated the employee because it had found that he had
not scored highly enough to retain his appointment. See id. at ¶ 12-13.
       {¶ 30} The applicable rules and the facts in this case are different from those
in Mun. Constr. Equip. Operators’ Labor Council. This case does not involve a
disciplinary matter, there was no requirement for a separate prehearing to determine
whether a full hearing should be held, and there is no test or other rule that would
definitively place Harmon’s and Beasley’s complaints outside of a hearing. The
dissent tries to compare an appearance to a predisciplinary hearing, but there is no
authority for such a comparison. Under the rules applicable in this case, there was
no basis for the commission to divorce the baseline question of whether a layoff
occurred from the hearing on the layoff procedures. As the dissent concedes,
whether the TEL program was a layoff was an open question, and since the
commission should have resolved it in a quasi-judicial proceeding, the common
pleas court had jurisdiction to consider Harmon and Beasley’s appeal.
       {¶ 31} The commission was required to conduct a hearing on Harmon’s and
Beasley’s appeals. Since the commission should have conducted a hearing, its




                                         14
                                January Term, 2024




failure to do so rendered its decision the result of a quasi-judicial proceeding and
Harmon and Beasley were thus permitted to appeal the commission’s decision to
the court of common pleas under R.C. 2506.01(A).
                               III. CONCLUSION
       {¶ 32} None of the city’s arguments in this matter provide a basis to divest
the common pleas court of jurisdiction to hear Harmon and Beasley’s
administrative appeal. Under R.C. 4117.10(A), the CBA controls aspects of the
parties’ relationship. But the CBA specifically preserved the rights of an individual
to appeal to the commission the procedural aspects of his or her layoff, which is
what Harmon and Beasley have asserted. Therefore, this matter falls outside the
CBA’s arbitration procedure and the common pleas court had jurisdiction to
adjudicate Harmon and Beasley’s administrative appeal.
       {¶ 33} Further, the commission was required to hold a hearing on the
matter—not merely an appearance. But the commission’s failure to do so did not
divest the common pleas court of jurisdiction under R.C. 2506.01, and the common
pleas court was not required to defer to the commission’s incorrect application of
its own rules. We therefore affirm the judgment of the First District Court of
Appeals.
                                                                Judgment affirmed.
                               _________________
       DETERS, J., joined by DEWINE, J., dissenting.
       {¶ 34} The Cincinnati Civil Service Commission’s decision not to hear the
appeals of Jeffrey Harmon and David Beasley was not the result of a quasi-judicial
proceeding. For that reason, the Hamilton County Court of Common Pleas lacked
jurisdiction over Harmon and Beasley’s administrative appeal of the commission’s
decision to that court. Because the majority concludes otherwise, I respectfully
dissent.




                                         15
                             SUPREME COURT OF OHIO




   Harmon and Beasley appeal to the Cincinnati Civil Service Commission
       {¶ 35} Understanding the procedural posture of this appeal is necessary to
its resolution. In April 2020, Harmon and Beasley were placed on leave under the
Temporary Emergency Leave program (“TEL”) instituted by the City of
Cincinnati. Harmon filed an appeal with the Cincinnati Civil Service Commission
(“the commission”), indicating the basis of his appeal was that “[l]ayoff procedures
[were] not followed.” Similarly, Beasley appealed “the procedural aspects of [his]
layoff” to the commission.
       {¶ 36} Harmon and Beasley were scheduled for “appearance[s]” before the
commission. According to an email sent to Harmon by an analyst with the city’s
human-resources department, Harmon was going to be “given the opportunity to
speak before the Commission.” After Harmon replied to that email asking for more
time “to prepare for the hearing on [his] appeal and to submit supporting materials
so there [would be] a record to support [his] appeal,” the analyst explained to him
that “a hearing for th[e] matter ha[d] not been scheduled as [it was] not one that is
covered under [Cincinnati Civil Service] Rule 17.”         Similar correspondence
occurred between the city and Beasley.
       {¶ 37} An agenda for the July 2, 2020 commission meeting shows that
agenda items titled “Jeffery Harmon regarding Temporary Emergency Leave” and
“David Beasley regarding Temporary Emergency Leave” were placed in the
category “APPEARANCE BEFORE THE COMMISSION.” (Capitalization in
original.) Minutes of the July 2 meeting indicate that the Harmon and Beasley
matters were “Tabled” until the July 16 commission meeting. At the July 16
meeting, Harmon and Beasley made their arguments as to why the TEL was a
layoff. The commission then determined that the TEL was not a layoff, stating,
“[The] Commission concludes that the [TEL] was not a layoff or separation and
therefore is not an appealable matter under [Cincinnati] Civil Service Rule 17,
Section 1.”




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                               January Term, 2024




            Harmon and Beasley appeal to the common pleas court
       {¶ 38} Harmon and Beasley appealed to the common pleas court the
commission’s decision to not hold hearings on their appeals under Cincinnati Civil
Service Rule 17 (“Rule 17”). They amended their appeal to add a complaint for a
writ of mandamus seeking to compel the commission to hold hearings on their
appeals. The common pleas court determined that the commission erred by not
holding hearings on whether the TEL was a layoff. The court remanded the matter
to the commission “so that [Harmon and Beasley could] have the opportunity to
present sworn testimony, to cross-examine witnesses, and/or to present other
competent evidence concerning whether the TEL was a layoff.”            Harmon v.
Cincinnati, Hamilton C.P. No. A 2003055 (Apr. 27, 2022).
       {¶ 39} The city appealed to the First District Court of Appeals, arguing that
the common pleas court lacked jurisdiction to hear the appeal. The court of appeals
concluded that the common pleas court had jurisdiction under R.C. 2506.01
because Harmon and Beasley indicated that they were appealing the procedural
aspects of their layoffs. 

 (1st Dist.).
       {¶ 40} Although the city’s assignment of error was limited to the question
whether the common pleas court had jurisdiction, see id. at ¶ 14, the court of
appeals’ decision exceeded the scope of that issue. Recall that the common pleas
court had remanded the matter to the commission for a hearing limited to
determining whether the TEL was a layoff. Presumably, if after that hearing the
commission were to determine again that the TEL was not a layoff, then Harmon
and Beasley would not be entitled to Rule 17 hearings. The court of appeals,
however, hedged its bets. It decided that Harmon and Beasley could appeal to the
commission under Rule 17, either because the TEL was a layoff or because they
were entitled to enforce their rights under Section 5.1 of the parties’ collective-
bargaining agreement. 

. Notably, the latter justification for
the ability of Harmon and Beasley to appeal to the commission was created out of



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whole cloth by the court of appeals; Harmon and Beasley grounded their appeals to
the commission and their arguments in the common pleas court in their contention
that the TEL was a layoff.
       {¶ 41} The majority opinion concludes that the common pleas court had
jurisdiction under R.C. 2506.01. It also endorses the court of appeals’ “either/or
approach,” stating, “Therefore, even if the TEL program does not qualify under
Section 10.1 [of the collective-bargaining agreement] as a layoff, an employee may
still have an individual right of action under Section 5.1 [of the collective-
bargaining agreement], because participation in the program was a condition of
employment.” Majority opinion, ¶ 15. This approach is flawed. In my view,
resolution of this appeal requires no more than an examination of the common pleas
court’s jurisdiction under R.C. 2506.01(A).
    The commission’s decision was not appealable under R.C. 2506.01(A)
       {¶ 42} The common pleas court has jurisdiction to review “every final
order, adjudication, or decision” of the commission, R.C. 2506.01(A).          Only
decisions resulting from quasi-judicial proceedings are appealable to the common
pleas courts. M.J. Kelley Co. v. Cleveland, 

 (1972), paragraph
one of the syllabus.     Quasi-judicial proceedings are proceedings that have
requirements for notice, a hearing, and the opportunity for introduction of evidence.

 at paragraph two of the syllabus; see also State ex rel. Tremmel v. Erie Cty. Bd.
of Elections, 

 (holding that “a hearing resembling a judicial
trial” was “a quasi-judicial proceeding”); Rankin-Thoman, Inc. v. Caldwell, 

 (1975) (“Quasi-judicial proceedings require notice, hearing
and the opportunity for introduction of evidence.”).
       {¶ 43} The absence of quasi-judicial hallmarks from an administrative
proceeding is not dispositive of the question whether a decision in the proceeding
may be appealed to the common pleas court under R.C. 2506.01, however. Rather,
the question is whether the commission was required to conduct a proceeding with




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                                January Term, 2024




those hallmarks. See State ex rel. Mun. Constr. Equip. Operators’ Labor Council
v. Cleveland, 

, ¶ 36 (“whether a proceeding is a quasi-judicial one
. . . depends upon what the law requires the agency to do, not what the agency
actually does”); M.J. Kelley Co. at paragraph two of the syllabus (“Proceedings . . .
are not quasi-judicial where there is no requirement for notice, hearing and the
opportunity for introduction of evidence.”).
       {¶ 44} Here, the majority acknowledges that “[a] quasi-judicial proceeding
is a proceeding that requires notice, a hearing, and the opportunity to introduce
evidence.” Majority opinion at ¶ 18. It applies this rule to what it says should have
happened before the commission. But the majority reaches the wrong conclusion
about what the commission was required to do and thus arrives at the wrong result.
       {¶ 45} In the majority’s view, Harmon and Beasley were appealing layoffs
because that is what Harmon and Beasley said they were doing. And according to
the majority, because Harmon and Beasley said they were appealing layoffs, the
commission should have held a hearing under Rule 17. But if simply labeling a
governmental action a layoff—regardless of whether the action was a layoff under
the terms of the parties’ collective-bargaining agreement—was all that was needed
to invoke Rule 17, then the stretch of Rule 17 would be boundless. Before Rule 17
may be invoked, a layoff must have occurred.
       {¶ 46} As the majority observes, “there was some doubt regarding whether
the [TEL] program was a layoff.” Majority opinion at ¶ 23. That doubt needed to
be resolved by the commission before it could move forward with a Rule 17
hearing. The pertinent question, then, is whether a rule required the commission to
make that determination in a quasi-judicial proceeding.
       {¶ 47} The answer is no. Only one other Cincinnati Civil Service Rule
could plausibly apply to that determination: Cincinnati Civil Service Rule 2,
Section 5 (“Rule 2, Section 5”). That rule provides, in its entirety:




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               Appearance    before   the    Commission:    Whenever     an
       individual or group has a matter which requires or might require the
       consideration or decision of the Commission, such individual or
       group shall first inform the Secretary in writing, who shall make the
       necessary arrangements to bring such matters before the
       Commission in regular session.


Determining whether the TEL was a layoff is certainly “a matter which requires or
might require the consideration or decision of the Commission,” Rule 2, Section 5.
       {¶ 48} Nothing in Rule 2, Section 5 contemplates any of the trappings of a
hearing. Contrast Rule 2, Section 5 with Rule 17, which provides for notice of a
hearing, Rule 17, Section 1(D); hearing proceedings, Rule 17, Section 1(E); and the
opportunity to present evidence, Rule 17, Section (1)(E)(3). And at the conclusion
of a Rule 17 hearing, the commission shall “render its judgment affirming,
disaffirming or modifying the action of the appointing authority.”        Rule 17,
Section 1(E)(5). That judgment is what is appealable under R.C. 2506.01. An
appearance before the commission under Rule 2, Section 5, in contrast, is not
subject to any requirements similar to those under Rule 17 and does not result in a
judgment. Because it lacks any indicia of an adjudicative hearing, a Rule 2,
Section 5 appearance is not a quasi-judicial proceeding resulting in a judgment
from which an appeal may be taken. And no other Cincinnati Civil Service Rules
required that the commission hold a quasi-judicial hearing to determine whether the
TEL was a layoff.
       {¶ 49} What the commission actually did confirms this conclusion. The
commission provided Harmon and Beasley with the opportunity to make
appearances under Rule 2, Section 5, during which they made their arguments that
the TEL was a layoff. The commission entertained the arguments of Harmon and
Beasley—as well as those of the city—during their appearances on July 16. But




                                        20
                                January Term, 2024




again, the July 16 appearances lacked the trappings of a quasi-judicial proceeding.
And as the majority notes, “the parties here agree that an appearance is not a quasi-
judicial proceeding.” Majority opinion at ¶ 21.
       {¶ 50} The opportunities afforded Harmon and Beasley to appear before the
commission were similar to the meeting that took place in Mun. Constr. Equip.
Operators’ Labor Council, 

. In that case, we considered whether
a city employee could have appealed from the civil-service commission’s decision
to deny his request for a disciplinary hearing. Id. at ¶ 1-2, 17. The commission had
held a meeting to consider whether the employee was entitled to a disciplinary
hearing. Id. at ¶ 17. And the commission had voted at the hearing against holding
a disciplinary hearing. Id. We concluded that the employee could not have
appealed the commission’s decision. Id. at ¶ 32-37. We acknowledged that
“whether a proceeding is a quasi-judicial one from which an R.C. 2506.01 appeal
may be taken depends upon what the law requires the agency to do, not what the
agency actually does.” Id. at ¶ 36, citing State ex rel. Hilltop Basic Resources, Inc.
v. Cincinnati, 

, ¶ 15 (1st Dist.), and In re Appeal of Howard, 

 (10th Dist. 1991). And we noted that “[w]hen there is no
requirement for notice, hearing, or an opportunity to present evidence, the
proceedings are not quasi-judicial.” 

 Likewise, an appearance under Rule 5,
Section 2 did not require notice, hearing, or an opportunity to present evidence.
                                    Conclusion
       {¶ 51} Beasley’s and Harmon’s right to appeal to the commission arose
only if the TEL was a layoff. Nothing in the Cincinnati Civil Service Rules required
that the commission hold a hearing to determine whether the TEL was a layoff.
The commission’s decision that the TEL was not a layoff was not the result of a
quasi-judicial proceeding, so it was not appealable to the common pleas court.
Because the majority sees it otherwise, I respectfully dissent.
                               _________________



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                             SUPREME COURT OF OHIO




       Stokar Law, L.L.C., and Robb S. Stokar, for appellees.
       Emily Smart Woerner, Cincinnati City Solicitor, and William C. Hicks,
Assistant City Solicitor, for appellants.
       Frost Brown Todd, L.L.C., Philip K. Hartmann, Alexander L. Ewing, and
Thaddeus M. Boggs; and Garry Hunter, urging reversal for amicus curiae, Ohio
Municipal League.
                                _________________




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