YOUNGSTOWN — A Mahoning County Common Pleas Court judge agreed with a Youngstown detective sergeant in a longstanding dispute that he deserved to have a hearing in front of the city’s civil service commission to consider him for a promotion.

Judge Maureen Sweeney ruled in favor of Detective Sgt. Michael R. Cox — whose legal dispute with the city was twice heard by the Ohio Supreme Court — that he is entitled to a civil service commission evidentiary hearing.

Cox has opposed the city’s decision to not promote him to lieutenant for five years.

Sweeney ruled that Cox was correct in asserting the commission committed a “clear error” in 2019 and repeated it in 2020 “when it did not convene the evidentiary hearing in (his) timely civil service appeal expressly mandated by the city’s civil service rules.”

S. David Worhatch, Cox’s attorney, said: “Sgt. Cox and I are pleased that the civil service commission now will have to conduct a hearing and consider the evidence it has been duty-bound to take into account since my client first filed his appeal in 2019. Judge Sweeney found that the city’s civil service rules obligated the commission to convene a hearing and not just dismiss my client’s appeal on the grounds that he supposedly did not file in a timely manner.”

In a strongly worded motion for reconsideration on behalf of the city, Deputy Law Director Adam Buente wrote Sweeney “is failing to apply the Ohio Supreme Court’s ruling on this exact issue” and “is overstepping (her) jurisdiction.” He referred to Cox’s argument as “a voodoo procedural maneuver to resurrect a dead corpse.”

Worhatch responded in his opposition for judicial reconsideration that Buente “never really grasped the theory that Cox advanced in his administrative appeal” and “it is possible that Cox’s theory of his case remains beyond the grasp of (Buente) even now given the argument advanced in support of the city’s motion for reconsideration.”

Regarding Sweeney’s ruling of a “plain error” by the commission to not hold an evidentiary hearing in 2019, when Cox first raised the issue, Buente wrote: “The Ohio Supreme Court has already squarely ruled on this issue and completely rejected this argument three years ago.”

THE DISPUTE

The Supreme Court on Aug. 30 rejected the city’s arguments to dismiss the case. But it limited Cox’s arguments when it sent the case back to Sweeney.

Cox objects to how the city civil service commission ranked applicants for the lieutenant position. Mayor Jamael Tito Brown promoted William Ward to lieutenant May 20, 2019, based on scores on a written civil service test given almost a year earlier.

Cox and other detective sergeants took a lieutenant promotional test in June 2018. During the test, Cox objected that portions of it were based on an outdated examination book.

The commission certified the results of the test on Aug. 15, 2018, with Ward at the top of the list and Cox finishing third, two points behind Ward. Had four questions on the test been properly scored instead of each person getting credit for all of them, Cox states he would have tied for first and based on time of service he would have been No. 1 on the test.

Cox brought the case about Brown’s decision to the Supreme Court, which ruled Aug. 18, 2021, that the officer “did not file a timely appeal” opposing the commission’s decision. But the court also ruled that the commission didn’t provide “a final and appealable order” to him about the decision.

In that case, the court stated Cox had 30 days from July 17, 2019 — the day the commission approved the minutes from its June 19, 2019, meeting in which it determined Cox’s case was concluded — to appeal to common pleas court. Cox failed to do so in those 30 days. He instead pursued an appeal to the State Personnel Board of Review, which dismissed it.

Cox filed with the commission a “motion for entry of final appealable order and motion for reconsideration” on May 14, 2020. The commission told Cox at its June 17, 2020, meeting that it would take no further action and Cox filed a case on July 17, 2020, in Mahoning County Common Pleas Court.

Sweeney determined May 16, 2022, that the commission “violated its own rule” by not issuing a “final and appealable order” and ordered the commission to do so in compliance with its own rules. The 7th District Court of Appeals agreed with Sweeney after the city appealed.

The city then filed an appeal June 28, 2022, with the Ohio Supreme Court to close out the Cox case contending the commission’s June 17, 2020, decision was a final order and Sweeney didn’t have jurisdiction.

In its Aug. 30 decision, the Supreme Court disagreed with the city’s argument regarding the civil service commission’s 2020 ruling and ordered the matter referred back to Sweeney. But the court told the judge she didn’t have jurisdiction over Cox’s 2019 administrative appeal because that had already been decided.

The Supreme Court determined Cox’s appeal of the June 17, 2020, commission decision was “timely.”

‘LEGAL ZOMBIE’

In Buente’s motion for reconsideration to Sweeney, he wrote: “This court disagrees with the Ohio Supreme Court, apparently under the spell of Cox’s hallucination that we are here on appeal from the commission’s denial of Cox’s motion for reconsideration in 2020, and not on Michael Cox’s 2019 matter. This is utter nonsense.”

He added: “Make no mistake — Cox failed to timely appeal in 2019 and is using a denial of a sham ‘motion for reconsideration’ in 2020 as a voodoo procedural maneuver to resurrect a dead corpse — his original 2019 matter — that died five years ago. By failing to apply the Supreme Court’s decision in Cox I and affirming Cox’s appeal, this court is now committing its own plain error and has consequently eviscerated the statute of limitations to perfect an appeal of an administrative order. … There is only one fitting way for this legal zombie of a case to die: this court must end Cox’s appeal.”

Worhatch responded that he “cannot resist the urge to highlight the duplicity of (Buente’s) effort to brand Cox’s motion for reconsideration presented to the commission as an act of ‘voodoo’ as he now resorts to the same procedural device in asking this court to readdress the legal issues prompting entry of a final decision.”

Worhatch wrote in the Supreme Court’s decision, it “did not place any guardrails or limits on the power of (Sweeney) in respect to fashioning an appropriate and adequate remedy should Cox’s appeal be sustained as long as that remedy was confined to the natural and logical consequences of a decision to reverse and / or vacate the commission’s 2020 order denying Cox’s motion for reconsideration.”

Worhatch wrote Buente “never really grasped the theory Cox advanced in his administrative appeal. The deputy law director’s briefs plainly reflect this as do his telephone and email exchanges with Cox’s counsel in the course of prosecution of the original actions. … It is possible that Cox’s theory of his case remains beyond the grasp of the deputy law director even now.”

Have an interesting story? Contact David Skolnick by email at dskolnick@vindy.com. Follow him on X, formerly Twitter, @dskolnick.