State v. Nipps , 66 Ohio App. 2d 17 ( 1979 )

Finding at least the fourth and sixth assignments of error to be well taken, I must respectfully dissent.

In the fourth assignment of error, defendant contends that the verdict was against the manifest weight of the evidence. Although I concur in the finding that R. C. 102.03(A), properly construed, is neither unduly broad nor vague on its face, there is some question as to the broad application of the statute permitted by the trial court; however, the broad application permitted by the trial court was a result of the failure of the trial court to give more definitive instructions to the jury, an issue not raised on appeal, rather than the trial court's constitutional rulings. R. C. 102.03(A) (136 Ohio Laws 3514) reads, in pertinent part, as follows:

"No public official or employee shall represent a client or act in a representative capacity for any person before the public agency by which he is or within the preceding twelve months was employed or on which he serves or within the preceding twelve months had served on any matter with which the person is or was directly concerned and in which he personally participated during his employment or service by a substantial and material exercise of administrative discretion. * * *" (Emphasis added.)

Since this is a criminal statute, it must be strictly construed. Thus, a former public officer or employee is not in violation of the statute unless he actually represents, or acts in a representative capacity for, any person. However, such representation is not prohibited unless the representation occurs before the public agency by which the former public officer or employee was employed. Here, there is a serious question both as to whether defendant acted in a representative capacity and, even if he did, whether he did so before the public agency by which he was previously employed.

The gravamen of the charge against defendant was his attendance at a meeting held on August 30, 1977, between the attorney for P. S. Operations, Inc., d.b.a. Euclid Park Nursing Center (hereinafter referred to as Euclid Park), and a representative of the Attorney General's office, and representatives of the Bureau of Fiscal Review, Ohio Department of Public Welfare. The meeting was essentially a settlement conference prompted by a lawsuit brought by Euclid Park against the director of the Department of Public Welfare as to the rate of payments to be made to Euclid Park.

The primary witness for the state, as to defendant's participation in the meeting, was the attorney for Euclid Park. Concerning defendant's participation in the meeting, the attorney testified as follows:

"Q. And in what capacity was Mr. Nipps present?

"A. Well, it occurred to me that he was there to help me to objectively determine whether what the Department of Welfare was telling me about rates was true, because I had no way of knowing in terms of resolving the lawsuit, what — you know, I'm not an expert in rate setting and — although Mr. Larrabee's been an administrator, he's not an expert either, so this was — he was there to help resolve some of those problems, I believe."

The state also called, as a witness, Gene Larrabee, the administrator of Euclid Park, who testified with respect to defendant's capacity at the meeting, as follows:

"Q. And what was Mr. Nipps's capacity at the meeting?

"A. Basically, he was there as a — as an objective person to look at the facts and the situation. He was a person who, had we ever gotten to trial point, we would have probably subpoenaed as an expert witness; and he was just there to assist and clarify — and in clarifying the Welfare Department's procedures in calculating rate settings."

Thus, defendant attended the meeting primarily for the purpose of giving technical advice to the representatives of Euclid Park, namely its attorney and administrator.

As indicated, there is a serious question as to whether the meeting was a matter "before the public agency" within the contemplation of the statute. Ordinarily, an individual represents someone "before a public agency" when the agency is conducting some type of proceeding to make a determination of the rights or obligations of the person being represented or some other person. While it may not be necessary that the proceedings be formal in nature, it is necessary that there be a matter pending before the public agency for its determination. Here, the meeting was conducted pursuant to an order of the court in the pending litigation. It was essentially a settlement conference; and, it should make no difference as to the place that the meeting was held, whether at the offices of the Department of Public Welfare or in a conference room at the courthouse, or in an attorney's office. For these reasons, the fourth assignment of error should be sustained.

Likewise, the sixth assignment of error (concerning the trial court's ruling on the admissibility of Defendant's Exhibit A) should be sustained since, by failing to admit Defendant's Exhibit A, the trial court excluded the evidence as to the circumstances under which the meeting in question was conducted, namely, the entry of the trial court, in the pending proceedings, ordering the meeting.

The state's contention that the testimony of Euclid Park's attorney was sufficient to explain the order, rendering the order itself inadmissible, is both contrary to the evidence and legally incorrect. The attorney explained the order as follows:

"Q. What would that order have been?

"A. As I recall it, the order called for several things. First thing it called for was the continuation of payments to the nursing home until the case was resolved at the normal rate that they had been paid before the rate cut. The next thing it called for, as I recall, is for the Department of Welfare and its representatives to get together in a conference with my clients, in order to resolve, if at all possible, the issues relating to the rate cut. And I believe that was the substance of that order."

The order itself (Defendant's Exhibit A), however, which the trial court excluded from consideration by the jury, reads as follows:

"This cause came on to be heard on August 26, 1977, and it appearing to the Court that the parties are in agreement that this matter may be settled or compromised if the parties are able to confer with each other at the Department of Welfare, and it also appearing to the Court that the representative of the Ohio Department of Welfare is present, and that said representative has made representations to the effect that the Ohio Department of Welfare will pay to the plaintiff [Euclid Park] a usual monthly vendor check in an amount no less than $21.38 for the month of August payable on or about September 15, 1977.

"It is ordered that defendants, through their authorized agents, and plaintiff meet on August 30, 1977, at 1:00 o'clock p.m. at the Ohio Department of Welfare's office on the 33rd floor of the State Office Tower to discuss the amount in controversy between them.

"It is further ordered that after an agreement has been reached between the parties, the parties shall certify their agreement to the Court.

"It is further ordered that the Ohio Department of Welfare pay to the plaintiff its usual monthly vendor check in an amount no less than $21.38 for the month of August which shall be payable on or about September 15, 1977."

Obviously, the order constitutes the best evidence as to the contents of the order. It is a novel proposition that secondary evidence, consisting only of testimony as to an attorney's recollection as to the contents of the order, precludes the admission of the best evidence as to the contents of the order. As is well settled, ordinarily, secondary evidence is inadmissible, the best evidence being required. The trial court erred in excluding this evidence, Defendant's Exhibit A; and, such exclusion was prejudicial to defendant since the jury was deprived of the information as to the nature and circumstances of the meeting which defendant attended.

Accordingly, I would sustain the fourth and sixth assignments of error, reverse the judgment and remand the cause for a new trial.