OH Supreme Court Axes Wickliffe Chief's ‘Retire-Rehire’ Move

Jeremy Pelzer

cleveland.com

(TNS)

COLUMBUS, Ohio— A Lake County fire chief improperly staged an administrative maneuver that allowed him to collect retirement benefits while keeping his job, the Ohio Supreme Court ruled Tuesday.

In a unanimous ruling, the state’s high court held that the city of Wickliffe wasn’t allowed under state law to immediately rehire Jim Powers, the city’s longtime fire chief, the day after he formally retired in January 2020. Instead, the court ruled, city officials were required under state civil-service law to fill Powers’ vacancy via a competitive exam.

Such a move, nicknamed “retire-rehire,” is sometimes used by public officials in Ohio, including Attorney General Dave Yost and Youngstown Police Chief Carl Davis, to start receiving pension payments while remaining on the payroll. It’s similar to the more common practice of “double-dipping,” in which workers collect benefits from one public job while holding a separate taxpayer-funded position.

It remains to be seen how Tuesday’s ruling, which hinged on a state law specifically regarding fire-department vacancies, might affect the ability of other public officials in Ohio to pull a “retire-rehire” move.

In this case, Powers filed for retirement on Jan. 6, 2020. Wickliffe Mayor John Barbish, who notified the Ohio Police and Fire Pension Fund of Powers’ retirement and instructed the city’s finance director to help Powers secure his pension benefits, swore Powers back in as fire chief the following day at an annual salary of $97,965.

The International Association of Fire Fighters Local 1536, a firefighters labor union, objected, arguing that the city couldn’t just rehire Powers, but rather had to conduct a competitive promotional exam to fill the vacancy. The union sued after city officials ignored their demand.

Attorneys for the city of Wickliffe argued that Powers didn’t vacant the position of fire chief, as he didn’t intend to permanently leave the job.

While a trial court and state appeals court sided with the city, the Ohio Supreme Court overturned those rulings.

Writing for the court, Justice Melody Stewart, a Cleveland Democrat, rejected the city’s argument that because it immediately rehired Powers, there was no vacancy that needed to be filled via competitive exam.

“A person cannot be rehired for a position that is not vacant,” Stewart wrote. She added elsewhere: “Whether an incumbent intends to permanently leave a position or to leave with the expectation of immediately returning to that position is irrelevant to the determination whether the incumbent’s leaving creates a vacancy.”

Cleveland.com/The Plain Dealer has reached out to the city of Wickliffe for comment on the ruling.

Dave Graham, a spokesman for the Ohio Police & Fire Pension Fund, said there are a “relatively low” number of public safety members who use “retire-rehire” to get benefits from the fund, compared with teachers and other school employees. He credited that to the police and fire pension’s deferred retirement program and that pension fund enrollees have to wait two months to be rehired into a public job, or they lose two months’ worth of benefits.

Ohio Public Employee Retirement System spokesman Michael Pramik declined comment when asked how Tuesday’s ruling might affect their enrollees’ ability to engage in “retire-rehire.”

Jon Harvey, the president of the Ohio Association of Professional Firefighters labor union, said the decision will affect “very few” fire departments.

“The impact will be mostly for departments (and jurisdictions) that have stagnate leadership at the top,” he said. “I think that if you have a progressive fire chief that does a good job and can participate and do well on a competitive test – I think the impact will be good.”

When Bethany McCorkle, a spokeswoman for Yost’s office, was asked whether the ruling undercut the legal underpinnings of Yost’s decision to “double-dip,” she replied that the decision had nothing to do with double-dipping, but rather a city’s failure to conduct a promotional exam process before rehiring someone into a classified civil service position.

Jeremy Pelzer covers state politics and policy for Cleveland.com and The Plain Dealer.