Ohio Civil Service and “Fallback Rights”

Non appointed government employees in the State of Ohio recognize Civil Service protection over their job. Consider civil service protection as a bundle of property rights that protect an employee from termination without a well defined just cause. But what happens when the appointing authority (Mayor, Trustee etc.) offers you a promotional appointment to a managerial or supervisory position? Is it really beneficial to leave the protected area of civil service for a non protected position that while it may pay more, also likely comes with greater responsibility? Before accepting an appointment from a classified civil service position to an unclassified non civil service position here are a few things to consider.

Classified v. Unclassified

It is important to first determine whether a position held by an employee is classified or unclassified. This determinitaion will allow the employee to determine what rights and protections they recognize.

Classified Employee

Generally, a classified employee is one who has passed a civil service examination and is employed in a non managerial supervisory position. These employees enjoy civil service protection under Ohio law and cannot be removed from their position absent a showing of incompetence, inefficiency, dishonesty, drunkenness, immoral conduct, insubordination, discourteous treatment of the public, neglect of duty. (R.C. 124.11) The Supreme Court of Ohio has stated that these employees maintain a “property right” in their job.

Unclassified Employee

Unclassified employees are those who have been appointed by an appointing authority (Mayor, Trustee, etc.) usually to managerial or supervisory positions. This group of employees are not protected by the Ohio Civil Service laws. They serve by appointment of the appointing authority and generally, can be removed at any time by the same or different appointing authority. They do not maintain a “property right” in their appointed position.

It is not uncommon for an appointing authority to seek to fill important managerial and supervisory positions from the ranks of those already employed in classified civil service positions. However, when accepting an appointment an employee moves out of the classified service and into the unclassified service where the protections of civil service are no longer applicable. A common misunderstanding has prevented many from accepting the promotional appointment for fear of losing the protections of a classified position.

Fallback Rights

Ohio law is clear in both statute and interpretation, that upon certain triggering events, an employee who moves from a classified position to an unclassified position has the right to “fallback” to the classified position held prior to the move. In practical application this means that once an employee who has moved from a classified position to a non classified position is removed, demoted, or otherwise has the terms and conditions of their un classified employment altered, they may request to be moved back into their former classified position. This request must be granted under Ohio law. Moreover, if the classified position previously held by the individual no longer exists than a comparable classified position must be found.

Ohio law allows individual to accept an appointment to an unclassified position which may offer greater responsibility and pay without fear of losing civil service protection. While the new promotional appointment is not a civil service protected position, upon termination, demotion, or other change to the terms and conditions of the appointment the individual may fallback to their previous civil service position.

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