Porter v. Probst , 2014 Ohio 3789 ( 2014 )

[Cite as Porter v. Probst, 2014-Ohio-3789.]
STATE OF OHIO, BELMONT COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
ALLEN PORTER, )
) CASE NO. 13 BE 36
PLAINTIFF-APPELLANT, )
)
VS. ) OPINION
)
CHARLES PROBST, et al., )
)
DEFENDANTS-APPELLEES. )
CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas Court,
Case No. 12CV330.
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellant: Attorney Daniel Balgo
Attorney Scot McMahon
156 Woodrow Avenue
St. Clairsville, Ohio 43950
For Defendants-Appellees: Attorney Timothy Rankin
266 North Fourth Street, Suite 100
Columbus, Ohio 43215-2511
JUDGES:
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite
Hon. Mary DeGenaro
Dated: August 29, 2014
[Cite as Porter v. Probst, 2014-Ohio-3789.]
VUKOVICH, J.
{¶1} Plaintiff-appellant Allen Porter appeals the decision of the Belmont
County Common Pleas Court granting summary judgment for defendants-appellees
Charles Probst, Matt Coffland, Virginia Favede acting as the Board of County
Commissioners of Belmont County; Fred Thompson, Sheriff of Belmont County; and
Andrew Sutak, Auditor of Belmont County. The first issue is whether the trial court
abused its discretion when it denied Porter’s motion to amend his complaint. The
second issue is whether the trial court’s grant of summary judgment is supported by
the record.
{¶2} For the reasons expressed below, the decision of the trial court is
hereby affirmed. The trial court did not abuse its discretion when it denied the motion
to amend the complaint, nor did it commit error when it granted summary judgment in
appellees’ favor.
Statement of the Facts and Case
{¶3} Porter was hired in 1985 by Sheriff McCort of Belmont County for the
position of Jail Administrator. Porter continuously held that position until June 19,
2009, when he was laid-off by Sheriff Thompson. The alleged reason for the lay-off
was budgetary concerns. The Jail Administrator position is undisputedly a fiduciary,
non-classified position that serves at the whim of the Sheriff.
{¶4} Following his lay-off, Porter applied for and received unemployment
benefits for about a month. About a month after his lay-off, he contacted the Public
Employees Retirement System and retired; he did not notify Belmont County of his
retirement until November 2009.
{¶5} As a result of his severance from employment with Belmont County,
Porter received his accumulated vacation leave payment. However, Belmont County
did not give him his sick leave payment because according to it the employee
handbook indicates that in order to be eligible for this benefit the employee must
retire from active service.
{¶6} As a result of the above, Porter filed a complaint against the
Commissioners, Sheriff and Auditor on September 23, 2010. That complaint was
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voluntarily dismissed in July 2011. In July 2012, Porter re-filed his complaint. In that
complaint, he alleged that he requested and received assurances from Sheriff
Thompson as to his continued employment and that he ignored potential positions for
employment elsewhere in reliance on those assurances. He also claimed that as Jail
Administrator he was unable to be absent from his jail position and that the previous
Sheriff, Sheriff McCort, allowed him to accumulate vacation hours and sick leave
hours in excess of those allowed by the policy manual. However, during his tenure
under Sheriff Thompson, two audits were performed and that resulted in reducing his
vacation hours. The first audit was an internal audit that caused a reduction because
the hours were not being computed correctly by the administrative assistant; the
hours were incorrectly being computed under the union formula rather than the
nonunion formula. The second audit was performed by the state and dealt with caps
to vacation hours; employees were being permitted to accrue vacation hours over the
caps that were permitted by the rule. Following the second audit, the vacation hours
were reduced to the cap level. Porter however, claimed that Sheriff McCort, the
previous sheriff, had authorized management positions to exceed the cap because
they could not take vacations due to their positions. He was not given notice of either
reduction and was not afforded a hearing on the reductions. He also claimed that the
Commissioners told Sheriff Thompson to lay him off or they would not ensure that the
Sheriff had sufficient levels of funds to ensure continued operation. Since he was
laid-off and not permitted to retire, he was unable to obtain his accumulated sick
leave benefit, which was $5,358.73. He contended that the Commissioners’ action
was made in “bad faith,” interfered with his business rights, and “was without
justification or privileged as the Sheriff was the sole appointing authority and officer to
appoint or remove” him from his position of employment. He sought loss of income
(amount of annual salary), compensation for unpaid accrued vacation pay and sick
leave respectively in the sums of $21,175.37 and $5,358.73, and other relief.
{¶7} Appellees answered asserting sovereign immunity, privilege, and
statute of limitations defenses. A pretrial/scheduling conference was held in
February 2013. Following that conference, the trial court issued a “Trial Date and
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Scheduling Conference Order.” That order was amended in June 2013. It provided
that Porter had until June 21, 2013 to disclose his expert witness and that all other
witnesses had to be disclosed 90 days prior to trial. That order also set the trial date
as November 12, 2013. The order likewise indicated that dispositive motions had to
be filed by August 12, 2013.
{¶8} Appellees complied with that order and filed a timely joint motion for
summary judgment on the August 12, 2013 deadline. Porter, however, was still
conducting discovery. The three depositions he took all occurred on September 10,
2013. On September 12, 2013, Porter filed a motion to Amend the Complaint to add
CORSA (County Risk Sharing Authority) as a party and asserted that CORSA
intentionally interfered with Porter’s business relations. On September 20, 2013,
appellees filed a motion in opposition to the motion to amend the complaint. That
same day, Porter filed his motion in opposition to summary judgment.
{¶9} On October 11, 2013, the trial court denied the motion to amend the
complaint. Approximately a week later, the trial court ruled on the summary judgment
motion and granted summary judgment in appellees’ favor. 10/22/13 J.E. That
decision was largely based on the doctrine of sovereign immunity. Porter timely
appeals from those two decisions.
First Assignment of Error
{¶10} “Granting Plaintiff’s motion for leave to file an amended complaint would
not have caused any actual prejudice.”
{¶11} As aforementioned, Porter moved to amend his complaint to add
CORSA as a defendant and claim that CORSA interfered with his employment, a
tortious interference with business relation claim. CORSA is the County Risk Sharing
Authority. Deposition testimony revealed that CORSA is “a self –insured entity that
insures counties and county work forces” and that out of the 88 counties in Ohio
about 66 counties are insured by CORSA. Thompson Depo. 12. The basis for the
request to amend was Sheriff Thompson’s statement, during his deposition, that he
was informed by CORSA that if Porter was not terminated from his position as jail
administrator the Belmont County Sheriff’s Department would be dropped from the
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insurance. Thompson Depo. 12, 18. CORSA’s demand was allegedly based on a
situation that occurred in 2007 with a jail prisoner, Randall Homko. Thompson Depo.
12. The situation involved tazering that individual who was not only a prisoner but a
mental patient. The FBI was investigating the matter in 2009 when Porter was laid-
off.
{¶12} Civ.R. 15(A) governs amendments to pleadings. It states:
A party may amend its pleading once as a matter of course
within twenty-eight days after serving it or, if the pleading is one to
which a responsive pleading is required within twenty-eight days after
service of a responsive pleading or twenty-eight days after service of a
motion under Civ.R. 12(B), (E), or (F), whichever is earlier. In all other
cases, a party may amend its pleading only with the opposing party's
written consent or the court's leave. The court shall freely give leave
when justice so requires. Unless the court orders otherwise, any
required response to an amended pleading must be made within the
time remaining to respond to the original pleading or within fourteen
days after service of the amended pleading, whichever is later.
Civ.R. 15(A).
{¶13} While the rule allows for liberal amendment, motions to amend
pleadings pursuant to Civ.R. 15(A) should be refused if there is a showing of bad
faith, undue delay, or undue prejudice to the opposing party. Turner v. Cent. Local
School Dist., 85 Ohio St. 3d 95, 99, 706 N.E.2d 1261 (1999). The decision to grant or
deny a motion to amend is within the trial court’s discretion. Id. Thus, an appellate
court reviews such a ruling under an abuse-of-discretion standard of review. Id. The
Ohio Supreme Court has repeatedly explained that “[t]he term ‘abuse of discretion’
connotes more than an error of law or of judgment; it implies that the court’s attitude
is unreasonable, arbitrary or unconscionable.” Huffman v. Hair Surgeon, Inc., 19
Ohio St. 3d 83, 87, 482 N.E.2d 1248 (1985).
{¶14} The trial court denied the motion to amend for two reasons. First, it
found that appellees would be prejudiced by the delay the amendment would cause.
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Second, it found that the cause of action sought to be added was barred by the
statute of limitations.
{¶15} The trial court found prejudice because the matter had been pending off
and on for over 3 years and allowance of the amendment clearly would have delayed
the proceedings because it would have resulted in additional discovery, “including the
retaking of some depositions previously administered as well as [the filing of] an
additional Motion for Summary Judgment.” 10/11/13 J.E. That reasoning is
supported by the record. In February 2013, a trial date and scheduling conference
order was issued which set forth certain deadlines for witness disclosures, dispositive
motions and a trial date. That order was amended in June 2013. In the amended
order, trial was set for November 12, 2013; witnesses were required to be disclosed
90 days prior to trial and although no discovery deadline was set, it was ordered that
dispositive motions were to be filed no later than August 12, 2013. 06/07/13 Order.
Thus, when the motion to amend was filed on September 12, 2013, the deadline for
witness disclosures had passed, the deadline for dispositive motions had passed,
and the trial was slated to occur in two months. Thus, the motion to amend was filed
in the eleventh hour. Furthermore, despite the fact that Porter had months to
complete discovery, he did not depose anyone until September 10, 2013. On that
date three depositions were taken – Kitty Paboucek, Commissioner Charles Probst
and Sheriff Fred Thompson. As can be seen, this was done after the deadline for
witness disclosures and dispositive motions.
{¶16} In contrast to Porter’s actions, appellees complied with the scheduling
order. Porter Depo. 07/18/13 (before the disclosure deadline). Also their motion for
summary judgment was timely filed.
{¶17} Consequently considering the above, the trial court did not abuse its
discretion in finding undue prejudice as the basis for denying the Civ.R. 15 motion to
amend the complaint.
{¶18} However, as aforementioned, that was not the only reason for denying
the motion to amend. The trial court also found that the tortious interference claim
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against CORSA was barred by the statute of limitations. We also agree with that
finding.
{¶19} All parties concede that the tortious interference with a business
relation claim has a four year statute of limitations and that at the time of the motion
to amend, that limitations period had expired. R.C. 2305.09(D). The controversy is
whether the claim is subject to the discovery rule. Porter contends that it is;
appellees contend that it is not.
{¶20} The discovery rule in R.C. 2305.09 provides:
If the action is for trespassing underground or injury to mines, or
for the wrongful taking of personal property, the causes thereof shall not
accrue until the wrongdoer is discovered; nor, if it is for fraud, until the
fraud is discovered.
R.C. 2305.09(E).
{¶21} In finding that the discovery rule is not applicable to negligence claims
brought under R.C. 2305.09(D), the Ohio Supreme Court stated:
While expressly providing a discovery rule for certain actions
arising under R.C. 2305.09, no such rule was extended to general
negligence claims. The General Assembly's failure to include general
negligence claims under the discovery rule set out in R.C. 2305.09
argues strongly that it was not the legislature's intent to apply the
discovery rule to such claims. See Kirsheman v. Paulin (1951), 155
Ohio St. 137, 146, 44 Ohio Op. 134, 139, 98 N.E.2d 26, 31 (explaining the
statutory significance of the Latin phrase, expressio unius est exclusio
alterius). The legislature's express inclusion of a discovery rule for
certain torts arising under R.C. 2305.09, including fraud and
conversion, implies the exclusion of other torts arising under the statute,
including negligence. See id.
Investors REIT One v. Jacobs, 46 Ohio St. 3d 176, 181, 546 N.E.2d 206 (1989).
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{¶22} Applying this reasoning to the matter at hand, since the statute does not
expressly provide for application of the discovery rule for tortious interference claims,
the discovery rule is inapplicable.
{¶23} Despite the language of statute and the reasoning in Investors, Porter
argues that it would be against public policy to not extend the discovery rule to claims
for tortious interference. We do not find this argument persuasive. Public policy
arguments are better directed to the General Assembly; it is for the legislature of
Ohio to define the public policy of the state. State ex rel. Cincinnati Enquirer v.
Dupuis, 98 Ohio St. 3d 126, 2002–Ohio–7041, 781 N.E.2d 163, ¶ 21 (“the General
Assembly is the ultimate arbiter of public policy”).
{¶24} Regardless, even if we could apply the discovery rule, there is a strong
argument that Porter cannot satisfy its mandates because he did not exercise
reasonable diligence. Under the discovery rule, the statute of limitations does not
begin to run until the plaintiff discovered, or through the exercise of reasonable
diligence, should have discovered, the complained of injury. Sullivan v. Westfield Ins.
Co., 11th Dist. No. 2012-L-004, 2013-Ohio-146, ¶ 32. For example, if the cause of
action is for fraud, the cause does not accrue until either the fraud is discovered, or in
the exercise of reasonable diligence, the fraud should have been discovered. Id.
Thus, the applicable statute of limitations is triggered by the “constructive knowledge
of facts, rather than actual knowledge of their legal significance * * *.” Id. quoting
Flowers v. Walker, 63 Ohio St. 3d 546, 549, 589 N.E.2d 1284 (1927).
{¶25} The claimed injury was Porter’s termination as jail administrator. All of
the complaints filed by Porter, even the one that was voluntarily dismissed, asserted
a claim for tortious interference with his employment; Porter was always under the
belief that Sheriff Thompson was directed by someone to fire Porter. Porter,
however, thought that it was the commissioners. It was not until Porter deposed
Sheriff Thompson that he found out that CORSA informed the sheriff that if he was
not terminated then the Sheriff’s Department would be dropped from the insurance.
That information is the basis of the tortious interference claim that Porter sought to
add to the complaint. This information was easily discoverable through a timely
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deposition or interrogatories. However, Porter waited until 2013 to depose the sheriff
who has always been a defendant in this action and is the person who would know
whether or not someone directed him to terminate Porter. Thus, Porter had
constructive knowledge of injury and Porter’s actions do not amount to reasonable
diligence. Even if the discovery rule is applicable, he cannot meet its requirements.
Consequently, for the above reasons, this assignment of error lacks merit.
Second Assignment of Error
{¶26} “The trial court erred in granting Defendant’s motion for summary
judgment because there were many issues of material fact to be decided by a jury.”
{¶27} We review an appeal from summary judgment under a de novo
standard of review. Grafton v. Ohio Edison Co., 77 Ohio St .3d 102, 105, 671 N.E.2d
241 (1996). Civ.R. 56(C), provides that summary judgment is appropriate when, after
construing the evidence most favorably for the party against whom the motion is
made, reasonable minds can only reach a conclusion that is adverse to the
nonmoving party. Zivich v. Mentor Soccer Club, 82 Ohio St. 3d 367, 369–370, 696
N.E.2d 201 (1998).
{¶28} The claims remaining at the time of the summary judgment motion
were: 1) promissory estoppel, 2) sick leave benefit; 3) due process, and 4) tortious
interference with business rights/employment. The basis for the promissory estoppel
claim was the loss of employment and reliance on continued employment. Porter
claimed that Sheriff Thompson promised him his job was secure and that he relied on
these assurances when he did not pursue other job opportunities. The next claim
concerns his retirement benefits, specifically his sick leave benefit. Belmont County
did not give him a sick leave benefit because he did not retire from “active” duty. His
due process claim was based on his loss of vacation hours though the audits that
capped his vacation hours. He claims he should have received a hearing before
those hours were taken away. His interference claim was against the commissioners
alleging that they made Sheriff Thompson lay-off Porter.
{¶29} The trial court found that the promissory estoppel claim was barred by
sovereign immunity and that his claim for losing possible job opportunities was
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speculative at best. The trial court found that the Belmont County Personnel Policy
Manual concerning his sick leave benefit clearly dictated that he had to be active duty
to be entitled to it. As for the due process claim, the trial court found that in order to
be entitled to due process, the employee must first have a vested property right.
Here, the court found there was no property right given the language in the
Personnel Policy Manual. As to the interference claim against the commissioners,
the court found that the claim was barred by sovereign immunity.
{¶30} Porter finds fault with all of those decisions. Each cause will be
addressed in turn.
Promissory Estoppel
{¶31} The Ohio Supreme Court has clearly stated that the “[p]rinciples of
equitable estoppel generally may not be applied against the state or its agencies
when the act or omission relied on involves the exercise of a governmental function.”
Sun Refining & Marketing Co. v. Brennan, 31 Ohio St. 3d 306, 307, 511 N.E.2d 112
(1987). See also Hortman v. Miamisburg, 110 Ohio St. 3d 194, 2006-Ohio-4251, 852
N.E.2d 716, ¶ 25. R.C. 2744.01(C) defines a government function as:
“Governmental function” means a function of a political
subdivision that is specified in division (C)(2) of this section or that
satisfies any of the following:
(a) A function that is imposed upon the state as an obligation of
sovereignty and that is performed by a political subdivision voluntarily or
pursuant to legislative requirement;
(b) A function that is for the common good of all citizens of the
state;
(c) A function that promotes or preserves the public peace,
health, safety, or welfare; that involves activities that are not engaged in
or not customarily engaged in by nongovernmental persons; and that is
not specified in division (G)(2) of this section as a proprietary function.
(2) A “governmental function” includes, but is not limited to, the
following:
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***
(h) The design, construction, reconstruction, renovation, repair,
maintenance, and operation of jails, places of juvenile detention,
workhouses, or any other detention facility, as defined in section
2921.01 of the Revised Code;
R.C. 2744.01(C).
{¶32} Thus, the operation of a jail constitutes a government function.
Furthermore, employment decisions made in the exercise of a government function
fall within this protection. Campolieti v. Cleveland, 184 Ohio App. 3d 419, 2009-Ohio-
5224, ¶ 36 (8th Dist.2009), citing Western–Southern Life Ins. Co. v. Fridley, 69 Ohio
App.3d 190, 590 N.E.2d 325 (1st Dist.1990). Consequently, the claim is barred by
sovereign immunity.
{¶33} However, even if it was not, summary judgment was still appropriate.
“The elements necessary for a promissory estoppel claim are (1) a clear and
unambiguous promise, (2) reasonable and foreseeable reliance by the party to whom
the promise is made, and (3) injury by the reliance by the party claiming estoppel.”
Landpor Contrs., Inc. v. C&D Disposal Tech. L.L.C., 7th Dist. No. 11-JE-28, 2013-
Ohio-1436, ¶ 34. “‘To be successful on a claim of promissory estoppel “[t]he party
claiming the estoppel must have relied on conduct of an adversary in such a manner
as to change his position for the worse and that reliance must have been reasonable
in that the party claiming estoppel did not know and could not have known that its
adversary's conduct was misleading.”’” Filo v. Liberato, 7th Dist. No. 11MA18, 2013-
Ohio-1014, 987 N.E.2d 707, ¶ 10, quoting, Olympic Holding [Co., L.L.C. v. ACE Ltd.,
122 Ohio St. 3d 89, 2009-Ohio-2057, 909 N.E.2d 93,] ¶ 39, quoting Shampton v.
Springboro, 98 Ohio St. 3d 457, 2003-Ohio-1913, 786 N.E.2d 883 ¶ 34.
{¶34} The focus here is that Porter had to change his position for the worse.
The evidence brought forth during depositions does not create a genuine issue of
material fact as to this element. The evidence is that Porter received two invitations
to apply for two jobs. One was at a new county detention facility in Omaha,
Nebraska. Porter Depo. 22. The other was for a local jail inspector position for the
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Ohio Bureau of Adult Detention. Porter Depo. 22-23. These were invitations to
submit his resume for these positions. He never submitted applications for the
positions, nor did he ever interview for the positions. Porter Depo. 25. Thus, it is
unclear whether Porter would have been hired for either of these positions. Had he
been offered one of the jobs and had turned it down based on the alleged promises
that his job was secure, there would be a clear argument that he changed his
position for the worse. However, given these facts, as the trial court indicated, his
claim for losing other possible job opportunities is speculative at best.
Sick Leave Benefit
{¶35} As aforementioned, despite having accumulated sick time, Belmont
County Commissioners refused to pay him a sick leave benefit. The basis of its
denial was that when he retired he was not an active employee.
{¶36} The Belmont County 2008 Personnel Policy Manual provides the
following:
A. A County employee, with ten (10) years of service who retires
in accordance with the provisions of PERS or any retirement plan
offered by the state, shall be paid one-fourth (1/4) of the value of his or
her earned but unused leave credit. The maximum of such payment,
however, shall be for thirty (30) days of sick leave.
B. Such payment shall be based on the employee’s hourly rate
of pay at the time of retirement.
C. Such payment shall be made only once and shall eliminate
all sick leave credit accrued by the employee.
D. Eligible County employees retiring from active service shall
request such payment in writing, in order to initiate the payment
process.
2008 Belmont County Personnel Policy Manual Rule 6.4.
{¶37} A similar provision regarding the “active service” requirement is found in
Rule 5.4 of the 1984 Personnel Policy Manual (manual in effect when he was hired).
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Both policy manuals were appropriately attached to the summary judgment motion by
means of an affidavit.
{¶38} The trial court found that the above language required retirement from
active service. It concluded that since Porter was laid-off and then retired, he did not
retire from active service, and therefore, was not entitled to the sick leave benefit.
{¶39} The trial court’s assessment that Porter was laid-off and then retired is
accurate. He was laid off June 19, 2009 and in mid-July 2009 he notified PERS that
he was retiring. He did not notify Belmont County until November 6, 2009 that he
wanted his sick leave benefit. In that letter it does not specifically use the word retire,
however, it does reference Section 6.4 of the policy manual. Therefore, it appears
that this letter is a notification of retirement.
{¶40} That said, the language of the policy manual is “retiring from active
service.” Porter, at the time of his retirement, was not retiring from active service. He
was retiring after being laid-off and applying for unemployment. There is no case law
specific to this fact pattern that defines active service. However, in the context of
police and firefighters, statutes and case law clearly indicate active service is different
from being laid-off. See R.C. 742.27; R.C. 742.371; State ex rel. Abde v. Police &
Firemen's Disability & Pension Fund, 10th Dist. No. 96APD02-126, 1996 WL 362083
(June 25, 1996). Therefore, when one is laid-off and then retires, that retirement is
not a retirement from active service. Accordingly, the trial court construed the
language of the policy correctly.
Due Process
{¶41} Regarding this claim, the arguments that were raised in the complaint
and to the trial court were that Porter’s due process rights were violated when his
vacation hours were capped. He claims that Sheriff McCort, the sheriff prior to
Sheriff Thompson, promised him that the caps in the Belmont County Policy Manual
did not apply to him and that his vacation hours would not be capped. During Sheriff
McCort’s tenure and during part of Sheriff Thompson’s tenure, Porter acquired
vacation hours in excess of the caps. As aforementioned, sometime after Sheriff
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McCort left office two audits were performed of employees’ vacation and sick hours.
During one of the audits, Porter’s vacation hours were adjusted to reflect the caps.
{¶42} The caps to the vacation hours are found in Rule 6.2 of the Belmont
County Personnel Policy Manual. That rule states that employees working 40 hour a
week with at least 15 years of service, but less than 25 years of service, are entitled
to 160 hours of vacation a year. The maximum carryover allowed is three years.
Thus, there is a cap of 480 vacation hours for an employee with at least 15 years of
service, but less than 25 years of service.
{¶43} Other than an alleged promise by Sheriff McCort, there is no other
indication that an exception to the cap was made. Porter admitted in his deposition
that he never saw a written exception to the cap rule. Rather, he claims that Sheriff
McCort made that promise orally to all management personnel who according to
Porter could not take vacation as they wanted because of the positions they were in.
{¶44} Porter’s argument and statements appear to raise a promissory
estoppel argument, as well as a due process argument. As mentioned above,
sovereign immunity bars a promissory estoppel argument. Therefore, that argument
fails.
{¶45} As to due process, it has been explained that under the Fourteenth
Amendment to the United States Constitution, “[n]o state shall * * * deprive any
person of life liberty or property without due process of law.” In evaluating whether a
person has a due process claim, a court “must determine whether a property or
liberty interest exists and, if so, what procedures are constitutionally required to
protect that right.” Bzdzuich v. U.S. Drug Enforcement Admin. (C.A.6, 1996), 76 F.3d
738, 742 (6th Cir.1996). In order to establish a procedural due process violation, it
must be shown that the conduct complained of deprived plaintiff of a liberty or
property interest without adequate procedural safeguards. Roe v. Franklin Cty., 109
Ohio App. 3d 772, 779, 673 N.E.2d 172 (10th Dist.1996), citing Bd. of Regents of
State Colleges v. Roth (1972), 408 U.S. 564, 569, 92 S. Ct. 2701 (1972). As such, it
is not the deprivation itself that is actionable, rather it is the deprivation without due
process of law that is actionable. Hahn v. Satullo, 156 Ohio App. 3d 412, 2004-Ohio-
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1057, ¶ 83 (10th Dist.), citing Shirokey v. Marth, 63 Ohio St. 3d 113, 116, 585 N.E.2d
407 (1992).
{¶46} The trial court and appellees cite to Scott v. Bazetta Township Bd. of
Trustees, 11th Dist. No. 96-T-5571, 1997 WL 703374 (Oct. 31, 1977), for the position
that the employee does not have a vested property interest in unpaid vacation pay
when the employee has been laid-off or their position has been abolished. In that
case, a former police lieutenant sued for unpaid vacation and sick leave. The
evidence submitted on summary judgment showed that the lieutenant had been paid
according to statute for the unpaid vacation leave, but there was no policy to
reimburse for unpaid sick leave. The lieutenant argued that he had been promised
by the Chief of Police that he would get paid for unused sick leave, despite the fact
that the county policy provided no such benefit. Summary judgment was granted in
the township’s favor based on the evidence submitted. That decision was affirmed
by the appellate court, which stated, “Since appellant could not produce competent
evidence to show that he was wrongfully denied payment for his unused sick time, he
failed to show that he had any constitutionally protected ‘property interest’ which
would support a claim of violation of his right to due process.” Id.
{¶47} The facts in Scott are akin to the one before us; oral promises were
made concerning a matter that was in conflict with the policy manual. Other than
Porter’s averment there was nothing to corroborate that Sheriff McCort made that
promise, had the authority to make that promise, or could make good on that alleged
promise. Thus, Scott provides a basis for this court to affirm the trial court’s ruling;
Porter could not produce competent evidence to show he was wrongfully denied
vacation days over the cap and thus, he failed to show that he had any
constitutionally protected property interest.
Tortious Interference
{¶48} The trial court held that Porter’s claim that the Belmont County
Commissioners tortious interference with his employment was barred by sovereign
immunity. Porter finds fault with that determination. According to him, Sheriff
Thompson was pressured by the commissioners and CORSA to fire him. He
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contends that Sheriff Thompson’s actions cannot be considered a government
function because he was “caving in” to outside influences.
{¶49} As indicated earlier, the operation of a jail constitutes a government
function and the employment decision made within the exercise of that government
function also falls within a government function to which sovereign immunity applies.
R.C. 2744.01(C); Campolieti, 2009-Ohio-5224, ¶36, citing Western–Southern Life
Ins. Co., 69 Ohio App. 3d 190. It is undisputed that Porter was an at-will employee
and served at the whim of the Sheriff. Furthermore, it is noted that the Fourth
Appellate District has held that generally political subdivisions (commissioners) are
immune from a claim of intentional interference with business relations. Dolan v.
Glouster, 173 Ohio App. 3d 617, 2007-Ohio-6275, ¶ 23. The commissioners were
engaged in a government function and acting in the interests of the county when they
determine the budget of the county. Testimony established that often times the
Sheriff’s Department, which is where the jail’s budget came from, would run out of
money in October or November and have to ask the commissioners for more money
to cover expenses for the last couple months of the year. Due to the economic state
of the county, the commissioners could no longer manage this with the budget.
Thus, to the extent that the termination was based on budgetary concerns, that claim
is barred by sovereign immunity.
{¶50} Porter claims that the commissioner, “through their agent CORSA
mandated Sheriff Thompson to terminate” Porter’s employment. That is an
inaccurate statement of the evidence. Sheriff Thompson stated that CORSA told him
that if Porter was not terminated, the Sheriff’s Department would be dropped from the
insurance policy. There is no evidence that commissioners told CORSA to do this.
Likewise, there is no evidence that CORSA is an arm of the commissioners. CORSA
is a “non-profit political subdivision joint self-insurance pool.” Bell v. Nichols, 10th
Dist. No. 10AP-1036, 2013-Ohio-2559 (no paragraph numbers). As stated earlier,
about 3/4 of Ohio counties belong to CORSA and effectively CORSA is an insurer.
As the trial court pointed out insurers can select the risks it wants to insure. Thus,
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there is no evidence beyond mere allegation that CORSA was acting on behalf of the
commissioners.
{¶51} There is evidence from Sheriff Thompson that his reason for laying
Porter off had nothing to do with the commissioners. Porter’s allegation that the
commissioners wanted him fired stem from the incident involving Randall Homko.
Homko was a jail inmate and mental health patient that was tazered. The matter
occurred in 2007 and in 2009 the investigation was still ongoing by the FBI and state.
Sheriff Thompson testified that in addition to CORSA’s statement about being
dropped from insurance, there were legal issues involving federal indictments.
Sheriff Thompson was informed that if Porter was no longer a member of the sheriff’s
office, the federal grand jury indictments would basically go away. Thompson Depo.
44. He further added that once Porter was laid-off the FBI investigation ended and
no grand jury indictments were handed down. Thompson Depo. 45. Thompson
stated that he informed Porter of the FBI investigation and that the grand jury
investigation would go away if Porter was terminated. Thompson Depo. 44. Thus,
the basis for the lay-off was the potential to be dropped from insurance and to resolve
the FBI investigation.
{¶52} Furthermore, the only commissioner to be deposed was commissioner
Charles Probst. His testimony provides no evidence that the commissioners either
directed CORSA to drop the Sheriff’s Department from the insurance if Porter was
not terminated or an indication that the commissioners ordered Sheriff Thompson to
terminate Porter. Thompson even indicated that it was his decision of whether to
retain Porter or to terminate his employment.
{¶53} Considering the evidence, the trial court correctly concluded that the
tortious interference with employment claim was barred by the doctrine of sovereign
immunity.
{¶54} For all of the above stated reasons, the second assignment of error
lacks merit.
Conclusion
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{¶55} In conclusion, both assignments of error lack merit. Thus, the judgment
of the trial court is hereby affirmed. The trial court did not abuse its discretion when it
denied the motion to amend. Furthermore, the trial court did not err when it granted
summary judgment in appellees’ favor.
Waite, J., concurs.
DeGenaro, P.J., concurs.