Opinion
No. 77-1492
Decided June 28, 1978.
Mandamus — To compel municipality to grant salary increase — No clear legal duty to grant, when.
APPEAL from the Court of Appeals for Summit County.
Relators are Local 330 of the Akron Fire Fighters Association and its officials. Respondents are the city of Akron, its mayor, the director of finance, and members of the Akron City Council.
Section 70a of the Charter of the city of Akron, adopted by the electorate of that city on November 5, 1968, provides in pertinent part:
"The salary of employees of the Police Division and Fire Department will be adjusted in April of each year based upon data published by the Department of Labor, Bureau of Labor Statistics, and the `escalator' enacted by the City Council in December, 1966, being Ordinance No. 1103-1966, and/or by negotiating with the Administrators of the City of Akron."
Pursuant to Section 70a of the Charter, four negotiating sessions relating to salary adjustments and other matters for the period beginning on April 1, 1977, were conducted from February 17, 1977, through April 27, 1977. In August and September of 1977, respondents presented relators a two-year contract offer with an eight percent salary increase for the first year, and a seven percent salary increase for the second year.
On September 23, 1977, relators filed a complaint for a writ of mandamus in the Court of Appeals requesting that court to order respondents to do all things necessary in implementing a 10.7 percent pay increase retroactively to April 1, 1977. Relators contended, in part, that because the respondents' latest offer of settlement represented the limit of salary adjustments for a two-year period not subject to negotiation, they had no plain and adequate remedy in the ordinary course of the law in obtaining their salary increase of 10.7 percent allegedly mandated by law.
In their answer, respondents denied that their settlement offer made to relators in August and September of 1977 was non-negotiable and raised as an affirmative defense that pursuant to the charter provision, respondents were pursuing a prescribed pattern of settlement in that they were ready, willing, and able to negotiate with the relators at any time and place of relators' choosing. Respondents filed a motion to dismiss contending that there was no clear legal duty for the court to enforce.
On November 1, 1977, the court held that relators' complaint sufficiently stated a cause of action and overruled respondents' motion to dismiss. It further ordered that factual matters be submitted by the parties on or before December 5, 1977, by deposition, stipulation or interrogatories.
On December 8, 1977, the court, finding that the parties had ceased negotiations when relators' complaint was originally filed, issued a peremptory order requiring that the parties proceed with negotiations in good faith as required by Section 70a of the charter, and that such negotiations be conducted, each working day, all day, until the court concluded its review of the case or the dispute was finally settled. It further ordered that a written progress report be submitted to the presiding judge every five days.
On December 22, 1977, the court, finding that the parties had reached an impasse in negotiations, and that the 10.7 percent salary increase was mandated by the electorate of Akron, issued the writ of mandamus ordering that respondents provide relators their 10.7 percent salary increase effective April 1, 1977.
The cause is now before this court as a matter of right.
Mr. Edward C. Maher, for appellees.
Mr. John E. Holcomb, director of law, Mr. Randall A. Cole, and Mr. Edward J. Riegler, for appellants.
As set forth in State, ex rel. National City Bank, v. Bd. of Education (1977), 52 Ohio St.2d 81, at page 84, before relators may obtain a writ of mandamus, they must show "(1) that they have a clear legal right to the relief prayed for, (2) that respondents are under a clear legal duty to perform the acts, and (3) that relators have no plain and adequate remedy in the ordinary course of the law."
The issue in this cause revolves around whether respondents have a clear legal duty to grant relators' request for a 10.7 percent salary increase beginning on April 1, 1977.
Section 70a provides that the salary of employees of the police and fire divisions "will be adjusted in April of each year based upon data published by the Department of Labor, Bureau of Labor Statistics and the `escalator' enacted by the City Council in December, 1966, being Ordinance No. 1103-1966, and/or by negotiating with the Administrators of the City of Akron." (Emphasis added.)
The term "and/or" has been defined as "* * * a function word to indicate that words are to be taken together or individually." Webster's Third New International Dictionary. Thus, the charter provision plainly allows three methods for accomplishing salary adjustments — the use of the index formula under city Ordinance No. 1103-1966, negotiations with the city administrators, or any combination of the above two methods.
Since any of the three methods for salary adjustments is available, it is clear that respondents were not under a clear legal duty to grant relators a 10.7 percent salary increase determined by the formula set forth by Ordinance No. 1103-1966.
The Court of Appeals placed great stress on the fact that the parties in the instant cause reached an impasse in negotiations. In effect, the Court of Appeals held that irrespective of whether the respondents were willing to negotiate further in good faith, relators were entitled to their 10.7 percent salary increase. The words "and/or" employed in the charter provision preclude such a result.
Because there was no clear legal duty on the part of respondents to grant relators a salary increase determined by the formula prescribed by Ordinance No. 1103-1966, the judgment of the Court of Appeals is reversed.
Judgment reversed.
O'NEILL, C.J., HERBERT, CELEBREZZE, W. BROWN, P. BROWN, SWEENEY and LOCHER, JJ., concur.