Cleveland City Hall

Cleveland's assistant city law directors are losing their fight to join the Teamsters.

(Plain Dealer file photo)

CLEVELAND, Ohio - Cleveland city lawyers' four-year battle to form a union that would fight for higher wages and more fair disciplinary procedures has hit another setback.

A Franklin County Common Pleas judge this month backed up the State Employment Relations Board's earlier ruling that the Ohio law guaranteeing public employees the right to unionize does not apply to assistant city law directors because they bear a fiduciary responsibility to the city that employs them.

Municipal attorneys have formed unions in other cities across the country, including San Francisco; Washington, D.C.; St. Paul, Minn.; and Houston. But no such unions exist in Ohio.

Cleveland's city attorneys first filed their petition with SERB in July 2012 to join Teamsters local 436 on behalf of 39 assistant city law directors.

They argued that they were paid "abysmally low wages," had not had a raise in 11 years and earn substantially less than nonprofessionals in other city departments. As unclassified civil servants, the attorneys have no system of seniority to protect them in the event of layoffs and can be subject to discipline at the whims of city leaders without due process, the group argued.

As a result, staff turnover is alarmingly high, leaving the city's cases to be handled inconsistently and often with poorer outcomes, the organizers argued.

The city, which hired lawyers from the firm Littler Mendelson, filed a motion to dismiss the organizers' request. In the motion, the city argued that the assistant law directors are not "public employees," who enjoy the right to organize under state law, but rather are "employees of a public official," who represent the legal interests of the city and must remain loyal to its law director and other interests.

The city's hired lawyers cited Ohio labor law prohibiting unions among workers whose positions are vested with the trust and confidence of their public employers. The city lawyers are responsible for providing legal advice to the mayor, department heads, City Council and all city commissions. They handle litigation involving civil rights and police misconduct claims, negligence claims, contract and construction disputes, environmental issues and First-Amendment matters. They draft legislation and act as counsel to the city-owned utilities and the airport.

In December 2013, SERB sided with the city's argument that the city lawyers cannot organize because the state law prohibits such activities for those who work for a public official, who are appointed as unclassified civil servants per the Ohio Revised Code, and who act in a "fiduciary capacity" for their employer.

Former Cleveland Law Director Subodh Chandra, who the Teamsters eventually hired to represent them in the case, filed an appeal, arguing that the city failed to prove how any of those conditions outlined in the state law apply to his clients.

First of all, the assistant law directors are employed by the city - not the law director - so they do not work for a public official, he argued.

Second, the Ohio Constitution's provision on home-rule authority states that Cleveland's City Charter and its comprehensive civil-service system - not the Ohio Revised Code -- govern how appointments are made, Chandra contended.

And finally, the city lawyers' fiduciary duties are owed only to their employer, the city - not to any particular public official.

Franklin County Judge Stephen McIntosh, however, rejected those arguments out of hand, backing up SERB's ruling that the city's assistant law directors do not have the legal right to join a union.

Chandra said in an interview Monday that the Teamsters will consider whether to take the case to the court of appeals.

He criticized McIntosh for doing little to no analysis of the Teamsters' legal arguments and the case law cited.

"It was incredibly disappointing that despite taking over two years to decide the case, the court didn't acknowledge or analyze the union's arguments at all," Chandra said. "Cases that the union cited are treated as if they don't even exist. And as a result, the folks in the law department are continuing to endure unsustainable workloads, compensation that lags behind sanitation workers, crumbling physical infrastructure and general mistreatment."