Nebraska Court of Appeals (J.Cassel) affirms summary judgment against Omaha firefighters who sought automatic pay raises when City merged Millard Fire Department with the Omaha Fire DepartmentMcKenzie v. City of Omaha, 14 Neb. App. 398 January 10, 2006. No. A-04-1134. Omaha firefighters who had more time in service sought backpay following the Omaha Fire Department's absorbing the Millard Fire Department's personnel in 1998. Under Omaha Municipal Ordinance 23-148, less senior members in grade may not make more than members with higher seniority. Court of Appeals rules that the ordinance command that seniority command higher pay applies to the "paramilitary" nature of fire and police departments structures, and did not apply between members of the fire department who had the same rank, but having different time in service. The Court of Appeals went to dismiss firefighters' contention that the merger enabling ordinance, Ordinance No. 34398 was merely a resolution and thus could not conflict with the supposedly clear command from 23-148 that more senior in time officers get paid more than the newly absorbed officers. Courts holding on meaning of seniority in 23-148:

the Firefighters equate the words "such member's senior" with someone who has greater seniority in length of service. Second, the Firefighters treat the phrase as comparing individuals of the same rank, grade, or class. We consider both of these readings to be inconsistent with the plain meaning of OMC § 23-148. Correctly interpreted, "such member's senior in rank, grade or class" refers to an officer who has a greater or higher rank, grade, or class than the "uniformed member" being compared. See id. This interpretation naturally flows from the paramilitary nature of police and fire organizations. By its terms, OMC § 23-148 applies to the City's police department as well as its fire department. The purpose can be readily understood and easily demonstrated in the more familiar ranks of a typical police department. The ordinance simply contemplates the possibility that for some unspecified reason, a lower ranking officer such as a sergeant might be paid more than a higher ranking officer such as a lieutenant. In that situation, OMC § 23-148 operates to resolve the disparity between rank and pay by increasing the pay of the higher ranking officer. That purpose is completely absent in the instant case. The legislative history for OMC § 23-148--which consists of a very brief letter from an assistant city attorney to the Omaha City Council--paraphrases the language of the ordinance and does not affect our interpretation of the ordinance's plain language.

Why ordinance 34398 was not a mere resolution:

The crucial test for determining that which is legislative (ordinance) from that which is administrative or executive (resolution) is whether the action taken was one making a law, or executing or administering a law already in existence.

Kubicek v. City of Lincoln, 265 Neb. 521, 529-30, 658 N.W.2d 291, 298 (2003). See, also, Smith v. City of Papillion, 270 Neb. 607, 705 N.W.2d 584 (2005)

Regardless of whether ordinance No. 34398 is a resolution, we find no authority which would forestall us from considering an ordinance conjunctively with a resolution for the purpose of interpreting the ordinance. We consider OMC § 23-148 and ordinance No. 34398 in pari materia and proceed to interpret OMC § 23-148 accordingly.