Dillingham v. Woodlawn , 86 Ohio App. 3d 54 ( 1993 )

Although I concur with the majority's resolution of the first assignment of error, I dissent from the majority's holding on the second assignment of error and would follow Harvey v.Brumback (1960), 113 Ohio App. 45, 17 O.O.2d 45, 177 N.E.2d 70, for two reasons. First, the language in R.C. 737.17 that the mayor "may, with the concurrence of the legislative authority, remove or appoint the employee" (emphasis added) clearly gives to the mayor the discretion not to finally appoint a police employee even though the council may unanimously recommend it. If the mayor is thus empowered to unilaterally deny final appointment to a police employee, it only logically follows that he can effectuate the removal of a probationary police employee by simply failing to bestow final appointment. I believe this result is intended by R.C. 737.17 and is in accordance with the broad authority which the Ohio Supreme Court has recognized to be vested in village mayors when it comes to matters involving the police.

"For those [villages] which do not [establish their own form of government] and which elect to remain within the general framework of village government as provided by the general statutes, the General Assembly has established a simple form of government which in large measure revolves around the village mayor. As pointed out, he is, or at times may be, virtually a seventh member of council. That it was intended that the mayor exert a potent force in all police matters in a village is further evidenced by the provision in Section 737.18, Revised Code, that `the marshall shall be the peace officer of a village and the executive head, under the mayor, of the police force.'" (Emphasis sic.) State ex rel. DeMatteo v. Allen (1960), 170 Ohio St. 375,380, 11 O.O.2d 78, 81, 165 N.E.2d 644, 648.

Secondly, I believe that the interpretation given to R.C.737.17 by the majority creates a potential for political deadlock. Under the majority's interpretation, should the mayor and the village council never concur on whether to remove or finally appoint Dillingham, he could remain a "probationary" police officer for as long as such an impasse exists, even years. Such a result renders meaningless the statutory six-month probationary period and could cause numerous practical difficulties for the village. Clearly the legislature, in passing R.C. 737.17, could not have intended such a result.

For the foregoing reasons, I would affirm the judgment below.