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City officer asks Ohio Supreme Court to reconsider decision

An attorney for Youngstown police Detective Sgt. Michael R. Cox is asking the Ohio Supreme Court to reconsider its dismissal of his case, in which he contended the city’s civil service commission unjustly refused to promote him to lieutenant.

S. David Worhatch, Cox’s lawyer, asked the court to re-examine its Aug. 18 unanimous decision. The court dismissed the case because Cox “did not file a timely appeal.”

In that case, Cox was seeking to have the court compel the civil service commission to rule on his appeal. But the court determined that ruling was already made.

In a new motion, Worhatch wrote the court needs to reconsider its decision “to prevent a miscarriage of justice” as it didn’t correctly apply the city’s civil service commission rules about providing Cox with a written decision regarding its decision to not promote him.

But Monica L. Frantz of Roetzel and Ascenders, a Cleveland law firm hired by the city, responded that the court shouldn’t reconsider — as it got the decision right.

She also pointed out that the court grants reconsideration motions only to correct decisions it determines were made in error and not to relitigate the case.

“As Cox’s motion does not articulate any ‘error’ of the court, the entire basis for his motion is erroneous,” she wrote.

Frantz added: “Cox is using his motion to reargue his merit brief because he disagrees with the court’s holding that he is not entitled to the relief requested.”

She wrote that Cox’s motion also failed to cite any Ohio Supreme Court precedent in asking for a motion for consideration.

Worhatch acknowledged that the court’s rules don’t have specific standards for reconsideration. He suggested the court “borrow from case law” to reconsider its decision by “demonstrating that either the court committed an obvious error or that this court did not consider an issue of consequence or didn’t fully consider such an issue when it should have been considered.”

The issue, according to Worhatch, is the city commission failed to conduct a hearing on Cox’s Aug. 20, 2019, appeal that a written promotional test had “errors and improprieties.”

Cox and other detective sergeants took a lieutenant promotional exam in June 2018 with him objecting during the test that it was based on an outdated examination book.

The commission certified the results of the test on Aug. 15, 2018, and put William Ward at the top of the list with Cox finishing third, two points behind Ward.

Mayor Jamael Tito Brown promoted Ward to lieutenant May 14, 2019, and Cox filed an appeal six days later.

The commission ruled June 19, 2019, that Cox wasn’t entitled to an appeal and approved the minutes of that meeting on July 17, 2019.

The Supreme Court ruled that Cox had 30 days after the approval of the commission’s minutes, considered a “final order,” to file an appeal in court.

While Cox appealed June 27, 2019, to the State Personnel Board of Review, which rejected his request Dec. 19, 2019, he didn’t file with the Ohio Supreme Court until July 6, 2020, which was well past the 30-day deadline.

“This court should deny Cox’s (reconsideration) motion because (it)is based upon an improper standard: this court did interpret and apply (the city commission’s rules) in its August opinion and this court did properly determine that the commission entered a final appealable order,” Frantz wrote.

Worhatch wrote the court’s decision “will have the burdensome and potentially disastrous effect of shifting the responsibility for learning of final agency action from the government to give some form of actual notice to the individual, to imposing on the individual the need to keep checking the agency’s docket day by day to make sure a decision was not yet made or the time for appealing such decision will not have run out.”

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