West v. Village of Bentleyville

Per Curiam. This is an appeal from the trial court’s granting ap-pellees’ motion for summary judgment. Appellant, Jack West, was a police officer in the village of Bentleyville. He proposed that he would “retire” for two months in order to be eligible for retirement benefits, and then return to work on a limited basis. Appellant’s claim is based on the theory that he relied on “representations” by two council members and the police chief that he would be rehired, otherwise he would not have retired in the first place. Appellant assigns one error for review. “The trial court erred to the prejudice of plaintiff-appellant, in grnating [sic] defendants-appellees’ motion for summary judgment because the facts of the case create an estoppel which bars the defendants-appellees from asserting their defenses that plaintiff- *96 appellant is not entitled to relief as a matter of law and facts.” There is no factual dispute that appellant was an at-will employee, hired as a part-time, temporary patrolman. Nor is there any question that appellant relied on some indications made by two council members and the police chief that appellant would be rehired after his two-month “retirement.” The issue revolves on whether it was reasonable for appellant to rely on these comments as a matter of law. In Byerlyte Corp. v. Cleveland (App. 1940), 32 Ohio Law Abs. 609, 615, this court held that whoever relies upon the conduct of public authorities (e.g., the two council members and the police chief in this case) must take notice of the limits of their power. Pursuant to R.C. 737.16, only the mayor has authority to appoint police officers subject to approval of council. 1 Appellant was aware of this provision by virtue of his being village police chief from 1964 until 1974. According to appellant, only two of six council members had made “representations” to him. However, the only official action taken is reflected in the council minutes which state: “[Councilman] Diamond reported that Officer Jack West will retire officially March 1, 1985. He will be available if Chief Pitts needs him.” Therefore, since any “representations” were made without the authority to act, there can be no promissory estoppel. Where there is an entire absence of power to act originally, there can be no room for an estop-pel to arise afterwards. Louisville & Nashville RR. Co. v. Cincinnati (1907), 76 Ohio St. 481, 507, 81 N.E. 983, 990; Byerlyte, supra, at 615. Accordingly, the judgment of the trial court is affirmed. Judgment affirmed. Pryatel, P.J., and Ann Mc-Manamon, J., concur. Patton, J., dissents. Footnotes [1] In oral argument, it was admitted that council has six members.