Furnas v. Clay Twp. Trustees , 2012 Ohio 5408 ( 2012 )

[Cite as Furnas v. Clay Twp. Trustees, 2012-Ohio-5408.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
BRENT FURNAS :
Plaintiff-Appellant : C.A. CASE NO. 25239
v. : T.C. NO. 11CV6149
CLAY TOWNSHIP TRUSTEES : (Civil appeal from
Common Pleas Court)
Defendant-Appellee :
:
..........
OPINION
Rendered on the 21st day of November , 2012.
..........
JEFFREY M. SILVERSTEIN, Atty. Reg. No. 0016948 and JASON P. MATTHEWS, Atty.
Reg. No. 0073144, 627 South Edwin C. Moses Blvd., Suite 2-C, Dayton, Ohio 45417
Attorney for Plaintiff-Appellant
DOUGLAS M. TROUT, Atty. Reg. No. 0072027, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Defendant-Appellee
..........
DONOVAN, J.
{¶ 1} This matter is before the Court on the Notice of Appeal of Brent Furnas,
filed June 8, 2012. Furnas appeals from the May 15, 2012 decision of the trial court which
denied Furnas’ Motion to Strike the brief of the Clay Township Board of Trustees (“CTBT”)
2
and affirmed the decision of the CTBT to terminate Furnas’ employment with the Clay
Township Police Department (“Department”). We hereby affirm the decision of the trial
court.
{¶ 2} The trial court’s decision reflects the following undisputed facts regarding
Furnas’ termination. On August 9, 2011, Clay Township Chief of Police Donald Perkins
served Furnas, a sergeant, with a Charging Form which indicated that the Montgomery
County Sheriff’s Office (“MCSO”) had conducted an investigation related to Furnas’
conduct during the week of March 31, 2011. The Charging Form referred to a report
produced by the MCSO, and it indicated that Furnas had been provided a copy of the report
on July 21, 2011. Furnas was charged with violating three of the Department’s Rules of
Conduct, namely Unsatisfactory Performance, Unbecoming Conduct, and 3 counts related to
Courtesy. Perkins and three trustees signed the Charging Form. The Charging Form
advised Furnas that a “hearing regarding ‘disciplinary action up to and including termination
of your employment’” would occur on August 16th, 2011, at 7:00 PM.
{¶ 3} On that date, Furnas appeared at the hearing represented by counsel. The
trustees heard the testimony of the complaining witness, Sandra Welborn, Perkins, and
Officers Steve Hodge and Anthony Scott of the Department, all of whom were
cross-examined by counsel for Furnas. Furnas did not testify or present evidence. The trial
court noted that, on February 21, 2011, Perkins notified officers by interoffice memorandum
that he would be on vacation for several weeks, and that Furnas would be in charge.
Welborn testified that on or about March 28, 2011, she reported to the Department that her
home and vehicles had been vandalized by the use of paintball guns. Hodge initially
3
responded to the scene and advised her that Furnas would handle the subsequent
investigation. Welborn later learned that her home might be targeted in the future for
another attack, and she contacted Perkins directly, who was on extended vacation leave.
Perkins advised her that Furnas would handle the investigation.
{¶ 4} On March 31, 2011, Welborn went to the Department to provide Furnas
with copies of information that she had acquired regarding the possibility of further acts of
vandalism at her home. The trial court cited her testimony that Furnas slapped his hands
together “‘almost in [her] face’” and told her that the matter was “‘out of his hands,’” since
Welborn had contacted Perkins directly. Furnas told her that Perkins would handle the
investigation. Furnas then called Perkins in Welborn’s presence, and after speaking with
him, handed the phone to Welborn. Perkins assured Welborn that Furnas would handle the
matter. After the call was concluded, Furnas told Welborn that he would not be acting on
her case.
{¶ 5} Welborn contacted the MCSO that evening due to her frustration with
Furnas, and the trial court noted that Welborn described Furnas’ treatment of her as “‘[v]ery
disrespectful,’” as though her complaint “‘was a waste of his time.’”
{¶ 6} Perkins told Hodge, as well as Furnas directly, that the Welborn
investigation was Furnas’ responsibility. The trial court noted that when Perkins received
a copy of Welborn’s written complaint, he contacted Chief Deputy Scott Landis at MCSO
and requested an outside investigation, which resulted in the disciplinary action against
Furnas.
{¶ 7} The trial court noted Hodge’s testimony that Furnas had stated, “‘I’m not
4
going to follow up on it, Chief can bring his ass in here and follow up on it.’” The court also
noted Hodge’s testimony that Furnas referred to the underlying criminal damaging report as
the “‘Sandra Welborn bitch’s incident.’”
{¶ 8} The trial court also noted Scott’s testimony that he observed Welborn’s
encounter with Furnas on March 31, 2011, and that Furnas subsequently called Welborn
another derogatory term.
{¶ 9} Furnas appealed the decision of the CTBT, pursuant to R.C. 505.49, 2505,
2506, and 119 on August 26, 2011, asserting that he was denied due process of law,
specifically a “post-termination hearing” and “progressive discipline,” and that the decision
of the CTBT was not supported by reliable, probative or substantial evidence. Furnas also
moved the court to strike the brief filed by CTBT as untimely.
{¶ 10} The court initially addressed Furnas’ motion to strike CTBT’s untimely
brief. The court noted its “inherent power” to manage its own docket and concluded, “the
only prejudice to Appellant resulting from the late filing of Appellee’s brief is the length of
any resulting delay in the resolution of this appeal, which delay would not be relieved by
granting Appellant’s motion to strike.”
{¶ 11} Regarding Furnas’ appeal, the trial court determined that R.C. 119.12
provides the appropriate standard of review for an R.C. 505.49 administrative appeal,
although it also quoted R.C. Chapter 2506. Regarding the denial of a post-termination
hearing, the court noted that Furnas was provided written notice of the charges against him
and notice that a hearing regarding disciplinary action, up to and including termination,
would occur on August 16, 2011. According to the trial court, “[g]iven such an explicit
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warning of the possibility of termination, a reasonable person surely would recognize that
his future employment was in jeopardy.” The court determined that the CTBT had “no
additional due process obligations” beyond affording him an opportunity to respond to the
charges. It was also significant to the trial court that Furnas was provided a copy of the
MCSO’s report, upon which the charges were based; that he was represented by counsel at
the August 16, 2011 hearing; that the majority of the witnesses interviewed in the course of
the investigation testified at the hearing; that counsel for Furnas subjected them to
cross-examination and also presented legal arguments and a closing statement; and finally
that Furnas had the opportunity to testify at the hearing. The court concluded that Furnas
was provided notice and an opportunity to respond, as well as an opportunity to challenge
the evidence against him, and that “no further post-termination hearing was necessary in
order to satisfy the constitutional requirements of the Due Process Clause.” Finally, the
court concluded that “Ohio’s statutory scheme adequately protects the due process interests
of public employees by allowing for ‘post-termination judicial proceedings.’” The court
found that Furnas was not denied an opportunity to file an administrative appeal, and
concluded that his “pursuit of relief from [the decision of the CTBT] via this appeal
constitutes his administrative appeal, brought in the proper forum of this common pleas
court.”
{¶ 12} Regarding the “legal adequacy” of the record to support Furnas’
termination,
the court initially noted that, while some portions of the transcript of the hearing are marked
“inaudible,” or refer to an “Unidentified Speaker,” in “nearly all instances” the content of
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such omissions is readily discernible or “is not critical to this Court’s consideration of the
evidence.” The trial court emphasized that “the testimony of all four witnesses as
transcribed is sufficiently complete and intelligible for this court to make sense of the
hearing record. Accordingly, any minor flaws in the record do not impede this court’s
ability to render an informed decision based upon the evidence thus presented.”
{¶ 13} The court noted that it found Furnas’ reliance upon the lack of evidence of
prior disciplinary action against him unpersuasive, noting that he offered no authority for
“his implicit premise that the Trustees were required to take a progressive approach to any
disciplinary action against Furnas before imposing the drastic measure of termination,” or
that he was entitled to “additional protection under common law concepts” beyond statutory
protections.
{¶ 14} Finally, the court concluded that the evidence supported CTBT’s decision to
terminate Furnas’ employment. The court cited Welborn’s testimony that Furnas “flatly
refused to investigate the threat of future damage to her property.” The court also cited
Perkins’ testimony that he instructed Furnas both in writing and orally, that Furnas was
responsible for investigating Welborn’s complaint as well as any follow-up. Hodge’s
description of Furnas’ “defiance” to Perkins’ instruction, as well as Hodge’s and Scott’s
testimony that Furnas used vulgarity when speaking of Welborn were also significant to the
trial court. According to the court:
* * * In light of that unfavorable testimony from the four witnesses
who personally appeared at Appellant’s pre-termination hearing, there is no
basis for concluding that the [CTBT] improperly relied on the results of the
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investigation performed by the [MCSO] in deciding to terminate Furnas’
employment. The [CTBT’s] review of that investigatory report prior to the
hearing is not enough to impugn their fairness at the later adversary
proceeding.
{¶ 15} Regarding Furnas’ continued employment after the incident of March 31,
2011 until his August 16, 2011 termination, the court “construe[d] that period of continued
tenure as evidence of the Township’s good faith effort to conduct a thorough and
independent investigation into the complaint against Appellant before imposing any
detrimental employment consequences.”
{¶ 16} The court found that while the evidence clearly supported a conclusion that
Furnas violated the Department’s Rule of Conduct regarding “Unsatisfactory Performance,”
a “more substantial challenge would appear to be evoked by Appellant’s arguments related
to the ‘Unbecoming Conduct’ and ‘Courtesy’ violations with which he was charged,” since
Welborn’s testimony made clear that she did not hear Furnas’ vulgar comments, and since
Perkins, Hodge and Scott “all testified that the use of obscene language within the
department was not uncommon, generally not regarded as offensive, and usually did not
result in disciplinary complaints or action.” The trial court further noted, however, “the
Rules of Conduct on which those latter charges were based are phrased broadly enough to
encompass other behavior that the evidence attributes to Appellant.” Consistent with R.C.
119.12, the court concluded that the CTBT’s “August 16, 2011 decision to terminate Furnas’
employment is supported by reliable, probative and substantial evidence, and further that
Furnas’s pre-termination hearing on the same date comported with the requirements of the
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Due Process Clause of the U.S. Constitution.”
{¶ 17} We initially note that Furnas’ brief does not comply with the requirements
of Rule 16 of the Ohio Rules of Appellate Procedure, which provides that an appellate brief
must contain a statement of the assignments of error presented for review, as well as a
statement of the issues presented for review. Instead, Furnas sets forth an “Argument,” with
subsections entitled: “Due Process”; “Trial Court’s Disregard for Its Own Rule and Abuse
of Discretion,” and “Progressive Discipline.”
{¶ 18} As we begin our analysis, we note that the the trial court erroneously
determined that an R.C. 505.49 administrative appeal is governed by R.C. 119.12, in reliance
upon In re Brackett, 2d Dist. Montgomery No. 11799, 1990 WL 56898 (May 1, 1990).
R.C. 119.12 provides in relevant part:
***
Any party adversely affected by any order of an agency issued
pursuant to any other adjudication may appeal to the court of common pleas
of Franklin County * * * except that appeals under division (B) of section
124.34 of the Revised Code from a decision of the state personnel board of
review or a municipal or civil service commission shall be taken to the court
of common pleas of the county in which the appointing authority is located *
**.
***
The court may affirm the order of the agency complained of in the
appeal if it finds, upon consideration of the entire record and any additional
9
evidence the court has admitted, that the order is supported by reliable,
probative, and substantial evidence and is in accordance with law. In the
absence of this finding, it may reverse, vacate, or modify the order or make
such other ruling as is supported by reliable, probative, and substantial
evidence and is in accordance with law. ***
{¶ 19} By its express language, R.C. 119.12 “applies to an order of a state
‘agency.’” Madison Twp. Bd. of Trustees v. Donohoo, 2d Dist. Montgomery No. 14007,
1994 WL 692929, *2 (Oct. 12, 1994) (“We have shown that while R.C. 119.12 controls
administrative appeals under certain circumstances, it is not relevant in appeals from
political subdivisions, as in the case sub judice.”) . Donohoo, a police lieutenant, was
suspended by the Madison Township Board of Trustees for one day without pay for
insubordination, and the common pleas court applied R.C. 119.12 and reversed the Board’s
decision. The Board appealed, asserting in part that the court erred in concluding that the
appeal was governed by R.C. 119.12. This Court therein noted:
* * * Ohio law is clear that townships are political subdivisions, not
agencies, of the state. * * * Moreover, township trustees are not “agencies”
for the purposes of Chapter 119. * * *
Neither does the record indicate that Madison Township is a civil
service township under R.C. 124.01(G) nor that Lt. Donohoo was a classified
employee pursuant to R.C. 124.11(B). Were these the facts, R.C. 119.12
would govern this appeal. R.C. 124.34. Id., *2-3.
{¶ 20} This Court further concluded that the “proper statutory scheme that governs
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the appeal and review of this type of administrative decision is found in Chapter 2506 of the
Revised Code.” Id., * 3. R.C. 2506.01 provides in relevant part, “ * * * every final order,
adjudication, or decision of * * * any political subdivision of the state may be reviewed by
the court of common pleas of the county in which the principal office of the political
subdivision is located as provided in Chapter 2505. of the Revised Code.” This Court
concluded that the standards of review under “both R.C. 2506.04 and 119.12 are
substantially similar,” such that the common pleas court’s error in applying R.C. 119.12 was
harmless, pursuant to Civ.R. 61, which requires in part a court to “disregard any error or
defect in the proceedings which does not affect the substantial rights of the parties.” Id., *
4.
{¶ 21} Regarding the appropriate framework for analysis in the court of common
pleas, R.C. 2506.03 provides:
(A) The hearing of an appeal taken in relation to a final order,
adjudication, or decision covered by division (A) of section 2506.01 of the
Revised Code shall proceed as in the trial of a civil action, but the court shall
be confined to the transcript filed under section 2506.02 1 of the Revised
Code unless it appears, on the face of that transcript or by affidavit filed by
the appellant, that one of the following applies:
1
“Within forty days after filing a notice of appeal in relation to a final order,
adjudication, or decision covered by division (A) of section 2506.01 of the
Revised Code, the officer or body from the appeal is taken, upon the filing of a
praecipe by the appellant, shall prepare and file in the court to which the appeal
is taken, a complete transcript of all the original papers, testimony, and evidence
offered, heard and taken into consideration in issuing the final order,
adjudication, or decision. * * *.” R.C. 2506.02.
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(1) The transcript does not contain a report of all evidence admitted or
proffered by the appellant.
(2) The appellant was not permitted to appear and be heard in person,
or by the appellant’s attorney in opposition to the final order, adjudication, or
decision, and to do any of the following:
(a) Present the appellant’s position, arguments and conditions;
(b) Offer and examine witnesses and present evidence in support;
(c) Cross-examine witnesses and present evidence in support;
(d) Offer evidence to refute evidence and testimony offered in
opposition to the appellant’s position, arguments, and contentions;
(e) Proffer any such evidence into the record, if the admission of it is
denied by the officer or body appealed from.
{¶ 22} As this Court has previously noted:
When considering an administrative appeal, a court of common pleas
must weigh the evidence in the record to ascertain whether there exists a
preponderance of reliable, probative, and substantial evidence to support the
administrative agency’s decision. R.C. 2506. 04 * * *. Consistent with its
findings, the court may affirm, reverse, vacate, or modify the decision or
remand the matter to the body appealed from with instructions to enter a
decision consistent with the findings or opinion of the court. R.C. 2506.04.
The common pleas court “considers the ‘whole record,’ including any new or
additional evidence admitted under R.C. 2506.03, and determines whether the
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administrative order is unconstitutional, illegal, arbitrary, capricious,
unreasonable, or unsupported by the preponderance of substantial, reliable,
and probative evidence.” Henley v. Youngstown Bd. of Zoning Appeals
(2000), 90 Ohio St.3d 142, 147, 735 N.E.2d 433.
The standard of review to be applied by an appellate court in an R.C.
2506.04 appeal is “more limited in scope.” Id., citing Kisil v. Sandusky
(1984), 12 Ohio St.3d 30, 34, 12 OBR 26, 465 N.E.2d 848. Under R.C.
2506.04, the court of appeals does not have the same extensive power to
weigh the evidence as is granted to the common pleas court. While “[i]t is
incumbent on the trial court to examine the evidence[,] [s]uch is not the
charge of the appellate court.” Id. An appellate court reviews the judgment of
the common please court only on questions of law. Kisil, 12 Ohio St.3d at
34, 12 OBR 26, 465 N.E.2d 848, fn. 4. The appellate court’s inquiry is
limited to a determination of whether, as a matter of law, the decision of the
common pleas court is not supported by a preponderance of reliable,
probative, and substantial evidence. Id. At 34, 12 OBR 26, 465 N.E.2d 848.
In other words, in reviewing questions of law, the appellate court considers
whether the trial court abused its discretion. Id. Bowman v. Butler Twp. Bd.
of Trustees, 185 Ohio App.3d 180, 2009-Ohio-6128, 923 N.E.2d 663, ¶ 13-14
(2d Dist.).
{¶ 23} As the Supreme Court of Ohio determined:
“Abuse of discretion” has been defined as an attitude that is
13
unreasonable, arbitrary or unconscionable. (Internal citation omitted). It is
to be expected that most instances of abuse of discretion will result in
decisions that are simply unreasonable, rather than decisions that are
unconscionable or arbitrary.
A decision is unreasonable if there is no sound reasoning process that
would support that decision. It is not enough that the reviewing court, were
it deciding the issue de novo, would not have found that reasoning process to
be persuasive, perhaps in view of countervailing reasoning processes that
would support a contrary result. AAAA Enterprises, Inc. v. River Place
Community Redevelopment, 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).
{¶ 24} As this Court noted in Donohoo, the “major difference” between the
standards of review in R.C. 119.12 and 2506.04, as set forth above, “is that the word
‘preponderance’ is omitted from R.C. 119.12.” Id. This Court further noted:
“Preponderance” is defined as “the greater weight of evidence.” * * *
Thus, the R.C. 2506.04 [standard] seems to include the stricter requirement.
However, the Ohio Supreme Court has chosen to treat the standards similarly.
In Dudukovich [v. Lorain Metro. Hous. Auth., 58 Ohio St.2d 202, 207, 389
N.E.2d 1113 (1979)], the Court labeled the two standards “analogous.” * * *
In Hale v. Board of Edn.(1968), 13 Ohio St.2d 92, the Court noted that the
“preponderance of * * * evidence” phrase was adopted by the General
Assembly in R.C. 2605.04 to emphasize the legislature’s general desire that
common pleas courts weigh evidence in administrative appeals. Id. at
14
96-97. Id.Donohoo, at *4.
{¶ 25} Neither party raised the issue of the trial court’s erroneous application of
R.C. 119.12, and although the court concluded that CTBT’s decision was supported by
reliable, probative and substantial evidence, we conclude that the error is harmless.
{¶ 26} Regarding Furnas’ assertion that he was denied due process of law, he
directs our attention to Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487,
84 L.Ed. 494 (1985), upon which the trial court also relied. Furnas asserts that the trial
court “ignores the fact that the so-called pre-termination hearing was nothing more than an
ambush, at which time without any ability of Furnas or his attorney to prepare, he was
nonetheless presented with a perfunctory ‘opportunity’ to cross-examine witnesses.” He
asserts that the August 16, 2011 hearing “was not upon a final order, but rather a notice to
‘consider disciplinary action up to and including termination . . .,’” quoting the August 9,
2011 Charging Form he received.
{¶ 27} As this Court has previously determined:
The Due Process Clause of the Fourteenth Amendment states that no
state shall “deprive a person of life, liberty, or property without due process
of law.” A two step analysis is used when considering a claim that due
process rights were violated. First, a court must determine whether the
claimant has a right or interest that is entitled to due process protection.
Second, if the claimant was deprived of such a right or interest, the court
must determine what process is due. McDonald v. Dayton, 146 Ohio App.3d
15598, 2001-Ohio-1825, 767 N.E.2d 764, ¶ 20 (2d Dist.), citing Louderrmill.
{¶ 28} As this Court has also noted:
In [Loudermill], the Court reviewed the termination of school
employees in light of the due process standard under the Federal Constitution.
The court indicated that the Ohio statute in question (R.C. 124.34) was
constitutional. As for the due process claim, the Court indicated that the
pretermination “hearing” need not be elaborate. Id. at 1495. As the Court
stated: “ . . . the pretermination hearing need not definitively resolve the
propriety of the discharge. It should be an initial check against mistaken
decisions - essentially, a determination of whether there are reasonable
grounds to believe that the charges against the employee are true and support
the proposed action.” Id. at 1495. The Court indicated that all due process
required was notice and an opportunity to respond. “The tenured public
employee is entitled to oral or written notice of the charges against him, an
explanation of the employer’s evidence, and an opportunity to present his side
of the story.” Id. The Court concluded that “all the process that is due is
provided by a pretermination opportunity to respond coupled with
post-termination administrative procedures as provided by the Ohio statute.”
Id. at 1496. Patton v. Bd. of Educ. of the Springfield City Schools, 2d Dist.
Montgomery No. 2227, 1986 WL 13672, * 5 (Dec. 5, 1986).
{¶ 29} The version of R.C. 124.34 in effect when Loudermill was decided required
that “the dismissed employee is to be provided with a copy of the order of removal giving
16
the reasons therefor. Within 10 days of the filing of the order with the Director of
Administrative Services, the employee may file a written appeal with the State Personnel
Board of Review or the Commission.” Loudermill, fn. 6. The statute further provided:
“‘In the event such an appeal is filed, the board of commission shall forthwith notify the
appointing authority and shall hear, or appoint a trial board to hear, such appeal within thirty
days from and after its filing with the board or commission, and it may affirm, disaffirm, or
modify the judgment of the appointing authority.’” Id. Finally, either side could
subsequently obtain judicial review of the post-termination hearing. Id.{¶ 30} We conclude that Furnas’ reliance upon Loudermill is misplaced, and that
Furnas is not entitled to the due process protections afforded by the statute at issue therein,
namely post-termination administrative procedures.
{¶ 31} R.C. 505.49(B)(3) provides:
* * * [A] patrol officer, other police district employee, or police
constable, who has been awarded a certificate attesting to the satisfactory
completion of an approved state, county, or municipal police basic training
program, as required by section 109.77 of the Revised Code, may be removed
or suspended only under the conditions and by the procedures in sections
505.491 to 505.495 of the Revised Code. Any other patrol officer, police
district employee, or police constable shall serve at the pleasure of the
township trustees. In case of removal or suspension of an appointee by the
board of township trustees, that appointee may appeal the decision of the
board to the court of common pleas of the county in which the district is
17
situated to determine the sufficiency of the cause of removal or suspension.
The appointee shall take the appeal within ten days of written notice to the
appointee of the decision of the board.
{¶ 32} R.C. 505.491 to 505.495 set forth the grounds for termination and the
procedures by which termination may take place. R.C. 505.491 provides:
* * * [I]f the board of trustees of a township has reason to believe
that a chief of police, patrol officer, or other township police district
employee appointed under division (B) of section 505.49 of the Revised Code
* * * has been guilty, in the performance of the official duty of that chief of
police, patrol officer, other township police district employee, * * * of
bribery, misfeasance, malfeasance, nonfeasance, misconduct in office, neglect
of duty, gross immorality, habitual drunkenness, incompetence, or failure to
obey orders given that person by the proper authority, the board immediately
shall file written charges against that person, setting forth in detail a statement
of the alleged guilt and, at the same time, or as soon thereafter as possible,
serve a true copy of those charges upon the person against whom they are
made. The service may be made on the person or by leaving a copy of the
charges at the office or residence of that person. Return of the service shall
be made to the board in the same manner that is provided for the return of the
service of summons in a civil action.
{¶ 33} R.C. 505.492 requires that the charges filed pursuant to R.C. 505.491 must
be heard at the next regular meeting of the township board of trustees, “unless the board
18
extends the time for the hearing, which shall be done only on the application of the accused.
The accused may appear in person and by counsel, examine all witnesses, and answer all
charges against the accused.”
{¶ 34} The trial court did not note whether Furnas is a certified police officer, such
that he is entitled to the due process protections afforded in sections 505.491 to 505.494, or
whether he serves “at the pleasure of the township trustees” and is accordingly subject to
removal without prior notice or hearing. Regardless of his status, the decision of the trial
court makes clear that CTBT provided Furnas with notice and an opportunity to be heard.
Furnas was served a copy of the charges against him on August 9, 2011, the notice indicated
that the charges would be heard at the next regular meeting of the CTBT on August 16,
2012, and the notice indicated that termination would be considered. Furnas appeared,
represented by counsel who cross-examined all witnesses and presented closing arguments.
Since the trial court did not err in concluding that Furnas’ “due process challenge to the
[CTBT] is not well taken,” an abuse of discretion is not demonstrated.
{¶ 35} Furnas next asserts that the trial court erred in overruling his motion to strike
the untimely brief of CTBT, pursuant to local rules. CTBT’s brief, which was due on
December 10, 2011, pursuant to the briefing schedule set forth by the court, was filed on
March 30, 2012. Loc.R. 2.37 governs administrative appeals and provides as follows in
relevant part:
I. This rule shall govern all appeals from administrative agencies to
the extent that the appeals are not otherwise governed by statute or by the
rules of the Ohio Supreme Court.
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***
III. BRIEFS:
A. The Court may require arguments of counsel to be written and
included in briefs. Unless otherwise ordered by the Court or fixed by statute
or by rule or the Ohio Supreme Court, all briefs shall be filed as follows:
1. Unless the court has authorized an extension of time, the appellant
shall file a claim of error, brief, and all other essential papers within forty (40)
days after the notice of appeal has been filed or the filing of the transcript,
whichever is later. Failure to file briefs and assignment of error within the
requisite period of time may result in dismissal of the appeal as directed by
the Court.
2. Within thirty (30) days after service of appellant’s brief, counsel
for appellee shall file his brief.
***
4. All requests for extensions or reductions of time to file briefs or
other papers shall be approved only before the requisite filing time has
expired.
{¶ 36} A trial court’s procedural rulings will not be reversed absent an abuse of
discretion. Harmon v. Baldwin, 107 Ohio St.3d 232, 2005-Ohio-6264, 837 N.E.2d 1196, ¶
16.
{¶ 37} CTBT did not move the court for an extension of time to file its brief prior
to the expiration of the time period within which it was due. We note, however, that
20
Furnas’ filing of April 5, 2012 was entitled, “Appellant’s Motion to Strike and
Memorandum in Support And/Or Reply Brief,” and that he asked the court to either strike
CTBT’s brief, or alternatively, to consider Furnas’ additional arguments set forth therein in
reply to CTBT’s brief. We further note Furnas’ suggestion in his brief that he was not
prejudiced by the trial court’s consideration of CTBT’s brief; according to Furnas, the “trial
court did not weigh any substantive legal arguments made by [CTBT] in their brief because
none were included. That brief did not include one case either to affirmatively argue the
Trustees’ position or to contradict the arguments made by Furnas.” We conclude that an
abuse of discretion is not demonstrated by the trial court’s failure to strike CTBT’s brief.
{¶ 38} In the final subsection of his “Argument,” regarding the use of progressive
discipline, Furnas asserts that he “had no opportunity to present the Police Department
Policy Procedural Manual or the Township Personnel Policies,” and “[t]he issue having been
raised by Furnas, it was incumbent upon the Court to inquire about the existence or
non-existence of such a policy since no such reference was contained in the transcript.” As
discussed at length above, Furnas was given the requisite notice and opportunity to be heard.
Furnas did not offer evidence of a policy of progressive discipline, or file an affidavit
averring that he was not permitted to do so, and the trial court’s review was limited to the
transcript of the proceedings at the August 16, 2011 hearing. In other words, it was not
“incumbent” upon the trial court to independently inquire into the Department’s policies as
Furnas suggests.
{¶ 39} Furnas’ “Argument” lacks merit, an abuse of discretion is not demonstrated,
and the judgment of the trial court is affirmed.
21
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GRADY, P.J. and FROELICH, J., concur.
Copies mailed to:
Jeffrey M. Silverstein
Jason P. Matthews
Douglas M. Trout
Hon. Mary L. Wiseman