Stark Cty. Treasurer ex rel. Ferrero v. Frustaci

[Cite as Stark Cty. Treasurer ex rel. Ferrero v. Frustaci, 2011-Ohio-5094.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STARK COUNTY TREASURER ex rel. JUDGES:
JOHN D. FERRERO, et al. Hon. John W. Wise, P. J.
Hon. Patricia A. Delaney, J.
Appellees Hon. Timothy P. Cannon, V. J.
(From the 11th District, sitting by
-vs- Supreme Court Assignment)
VINCENT FRUSTACI, et al. Case No. 2010 CA 00244
Appellants OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Case No. 2010 CV 02773
(consolidated with Case No. 2010 CV
03025
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: September 30, 2011
APPEARANCES:
For Appellees For Appellants
JOHN D. FERRERO JOSEPH E. CIRIGLIANO
PROSECUTING ATTORNEY MATTHEW W. NAKON
ROSS RHODES AMY L. DELUCA
ASSISTANT PROSECUTOR WICKENS, HERZER, PANZA,
110 Central Plaza South COOK & BATISTA CO.
Suite 510 35765 Chester Road
Canton, Ohio 44702 Avon, Ohio 44011-1262
Stark County, Case No. 2010 CA 00244 2
Wise, P. J.
{¶1} Appellant Gary D. Zeigler appeals the August 25, 2010, decision of the
Stark County Common Pleas Court finding R.C. §321.38 does not violate Article II,
Section 38 of the Ohio Constitution.
{¶2} Appellee is the State of Ohio.
{¶3} This case comes to us on the accelerated calendar. App.R. 11.1, which
governs accelerated calendar cases, provides, in pertinent part:
{¶4} “(E) Determination and judgment on appeal. The appeal will be
determined as provided by App.R. 11.1. It shall be sufficient compliance with App.R.
12(A) for the statement of the reason for the court’s decision as to each error to be in
brief and conclusionary form. The decision may be by judgment entry in which case it
will not be published in any form.”
{¶5} This appeal shall be considered in accordance with the aforementioned
rule.
STATEMENT OF THE FACTS AND CASE
{¶6} In November, 2008, Appellant Gary Zeigler was elected Stark County
Treasurer. During Appellant’s term as treasurer, his chief deputy, Vincent Frustaci, was
alleged to have stolen up to $2,964,560.00 from the county treasury. Upon receiving
notice of Frustaci’s alleged financial misconduct, the state auditor initiated a special
audit of the treasurer's office. In the special audit report, the state auditor found
shortages in the county treasurer's depository balance due to unauthorized
withdrawals. The shortage amounted to $2,964,560.00.
Stark County, Case No. 2010 CA 00244 3
{¶7} On June 25, 2010, Frustaci pleaded guilty to charges filed against him in
the United States District Court for the Northern District of Ohio alleging that he had
stolen $2,464,989.00 from the Stark County treasurer's office.
{¶8} In July, 2010, the Stark County auditor requested that the Stark County
prosecuting attorney initiate a lawsuit against Zeigler pursuant to R.C. §321.37 to
recover the stolen funds. The prosecutor then requested by letter that Zeigler repay the
$1.5 million deficit in the treasurer's accounts that would remain after all other sources
of repayment had been exhausted. The prosecutor advised Zeigler that he was
personally liable by statute, regardless of any lack of evidence of Zeigler's culpability
regarding the stolen funds, and he further advised Zeigler that a civil suit would be
considered if Zeigler failed or refused to respond.
{¶9} Zeigler did not respond.
{¶10} On July 28, 2010, a Complaint was filed in the Stark County Court of
Common Pleas, in the name of the office of the Stark County Treasurer, the state of
Ohio, and the board of commissioners for recovery of the money from Frustaci, Zeigler,
and sureties on bonds given by Zeigler for his term of office as county treasurer.
{¶11} The board of commissioners issued notices for special meetings to be
held on August 2 and 12, 2010, “[t]o consider the status of the Treasurer's Office in
light of [the] pending action by the Stark County Prosecutor pursuant to [R.C.] 321.37.”
{¶12} The Common Pleas Court granted a temporary restraining order on behalf
of Zeigler, who wished to maintain the status quo pending resolution of a constitutional
challenge that he intended to bring to R.C. §321.38 insofar as it permits the removal of
Stark County, Case No. 2010 CA 00244 4
the county treasurer by the board of commissioners upon institution of a suit under
R.C. §321.37.
{¶13} Zeigler then filed an action in the Stark County Court of Common Pleas
court for declaratory and injunctive relief, seeking to prevent the board of
commissioners from invoking R.C. §321.38 to remove him from office, on grounds that
R.C. §321.38 is unconstitutional. The trial court consolidated the case with the
prosecutor's recoupment action under R.C. §321.37.
{¶14} On August 18, 2010, the board of commissioners adopted a resolution to
hold a special meeting and hearing on August 23rd to “consider the Special Audit
Report and the Complaint,” “determine whether GARY D. ZEIGLER, Stark County
Treasurer, has failed to make a settlement or to pay over money as prescribed by law,”
and “determine whether the Board should remove such Stark County Treasurer
pursuant to R.C. 321.38.” The board further specified that copies of the resolution, the
special audit report, and the prosecutor's complaint filed under R.C. §321.37 would be
delivered to Zeigler and that he would be “afforded an opportunity to appear, with or
without counsel, and be heard at the aforesaid special meeting and hearing.”
{¶15} Zeigler declined to attend the special meeting and hearing on grounds that
“R.C. §321.38 is unconstitutional and that no action taken by the Stark County
Commissioners to hold a special meeting or otherwise attempt to remedy the due
process deficiencies contained in the statute correct[s] the constitutional shortfalls.”
Zeigler additionally stated that four days' notice “is insufficient time to allow for a proper
constitutional hearing.”
Stark County, Case No. 2010 CA 00244 5
{¶16} On August 23, 2010, the date of the special hearing, the trial court
declared that “R.C. 321.38 when read in pari materia with R.C. 321.37 does not violate
Article II, Section 38, of the Ohio Constitution,” that the “due process clause of the
Fourteenth Amendment to the United States Constitution is not applicable to the within
action,” and that “[a]ny due process issue under either the United States or Ohio
Constitution[ ] is resolved by the Board's resolution of August 18, 2010.” The trial court
denied Zeigler's motions for injunctive relief.
{¶17} Zeigler filed the instant appeal from the trial court's order with this Court.
{¶18} On that same day, the board of commissioners conducted an evidentiary
hearing at which the board found that “the evidence presented demonstrated that there
is no factual question that * * * $2,964,560 * * * came into the county treasury, and that
said money is missing, * * * that Treasurer Zeigler failed to make settlement or to pay
over money that is prescribed by law,” and “the evidence showed that the theft from the
Stark County Treasury was not an isolated incident, but occurred over a long period of
time during Treasurer Zeigler's tenure.” The board further found that “although
Treasurer Zeigler committed no crime or malfeasance, [he] fail[ed] to appear and be
heard about procedures he has implemented to restore the public's confidence that
their tax dollars are protected in the future.” At the conclusion of the hearing, the board
voted to remove Zeigler immediately from the office of Stark County treasurer pursuant
to R.C. §321.38. The board appointed Deputy Treasurer Jaime Allbritain to be acting
county treasurer.
Stark County, Case No. 2010 CA 00244 6
{¶19} On September 7, 2010, Zeigler filed an action for a writ of quo warranto
with the Ohio Supreme Court seeking to oust Allbritain and to be reinstated to the office
of Stark County treasurer.
{¶20} The appeal filed in this Court was stayed pending the resolution of the quo
warranto case.1
{¶21} Allbritain filed an answer and a motion for judgment on the pleadings, but
Kenneth N. Koher, appointed as Stark County treasurer on September 20, was
substituted as respondent. The motion for judgment on the pleadings was denied, and
an alternative writ was granted by the Ohio Supreme Court. State ex rel. Zeigler v.
Koher, 127 Ohio St.3d 1443, 2010-Ohio-5762, 937 N.E.2d 1034.
{¶22} A November 2, 2010, election was held to fill Zeigler's unexpired term, and
Koher was defeated by Alexander A. Zumbar, who was then automatically substituted
as the respondent in Supreme Court case.
{¶23} The quo warranto action proceeded before the Supreme Court and on
June 23, 2011, the Supreme Court held that R.C. 321.38 is incompatible with Section
38, Article II of the Ohio Constitution and is unconstitutional on its face because it
“does not require a complaint and hearing before authorizing a board of county
commissions to remove a county treasurer.” (State ex rel. Zeigler v. Zumbar, 129 Ohio
St.3d 240, 2011-Ohio-2939.)
1 The Supreme Court allowed the quo warranto action on a finding that Appellant did
not have an adequate remedy at law by way of his appeal to this court from the
common pleas court judgment in his action for declaratory relief, finding that such could
not result in the ouster of the respondent. (See State ex rel. Zeigler v. Zumbar, 129
Ohio St.3d 240, 2011-Ohio-2939.
Stark County, Case No. 2010 CA 00244 7
{¶24} The stay in this matter has been lifted and Appellant’s appeal is now
before this Court. Appellant assigns the following error for review:
ASSIGNMENTS OF ERROR
{¶25} “I. THE TRIAL COURT ERRED WHEN IT DECLARED R.C. 321.38
CONSTITUTIONAL AND DENIED APPELLANT’S REQUEST FOR INJUNCTIVE
RELIEF, AS THAT SECTION OF THE OHIO REVISED CODE VIOLATES ARTICLE II,
SECTION 38 OF THE OHIO CONSTITUTION.”
I.
{¶26} The sole issue raised in this appeal is whether R.C. 321.38 violates
Section 38, Article II of the Ohio Constitution.
{¶27} As this issue has been determined in the affirmative by the Ohio Supreme
Court in its decision in State ex rel. Zeigler v. Zumbar, 129 Ohio St.3d 240, 2011-Ohio-
2939, we find Appellant’s sole assignment of error moot.
{¶28} For the reasons stated in the foregoing opinion, the appeal of the
judgment of the Court of Common Pleas of Stark County, Ohio, is dismissed.
By: Wise, P. J.
Delaney, J., and
Cannon, V. J., concur.
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JUDGES
JWW/d 0831
Stark County, Case No. 2010 CA 00244 8
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STARK COUNTY TREASURER ex rel. :
JOHN D. FERRERO, et al. :
:
Appellees :
:
-vs- : JUDGMENT ENTRY
:
VINCENT FRUSTACI, et al. :
:
Appellants : Case No. 2010 CA 00244
For the reasons stated in our accompanying Memorandum-Opinion, the appeal
of the judgment of the Court of Common Pleas of Stark County, Ohio, is dismissed.
Costs assessed to Appellees.
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JUDGES