Watson v. Cuyahoga Metro. Hous. Auth.

[Cite as Watson v. Cuyahoga Metro. Hous. Auth., 2014-Ohio-1617.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99932
KIM WATSON, ET AL.
PLAINTIFFS-APPELLEES
vs.
CUYAHOGA METROPOLITAN HOUSING
AUTHORITY, ET AL.
DEFENDANTS-APPELLANTS
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-11-761704
BEFORE: Kilbane, J., Boyle, A.J., and Jones, J.
RELEASED AND JOURNALIZED: April 17, 2014
ATTORNEYS FOR APPELLANTS
Christopher P. Thorman
Mark D. Griffin
J. Matthew Linehan
Thorman, Petrov, Griffin Co., L.P.A.
3100 Terminal Tower
50 Public Square
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEES
Thomas H. Barnard
Michelle R. Arendt
Josephine S. Noble
Ogletree, Deakins, Nash, Smoak, Stewart
127 Public Square
4130 Key Tower
Cleveland, Ohio 44114
MARY EILEEN KILBANE, J.:
{¶1} Plaintiffs-appellants Kim Watson (“Watson”), Linda Stamper (“Stamper”),
and William Lowe (“Lowe”) appeal from the order of the trial court that awarded
summary judgment to defendants-appellees the Cuyahoga Metropolitan Housing
Authority (“CMHA”) and George Phillips-Oliver (“Phillips-Oliver”) in plaintiffs’ action
for wrongful termination. Plaintiffs assign the following errors for our review:
I. The trial court erred when it failed to determine that the CMHA
videos were public records.
II. The trial court erred when it held that a public employee may be
fired for requesting public records that embarrass the employer.
III. The trial court erred by failing to consider separately each
Appellant’s claim.
IV. The trial court erred when it refused to order discovery of
evidence then granted summary judgment to CMHA and as to
Appellants’ affirmative defenses citing lack of evidence.
V. The trial court erred in concluding that convicted felon
Phillips-Oliver is entitled to immunity.
{¶2} Having reviewed the record de novo, and by application of the controlling
case law, we find the assignments of error lack merit. We therefore affirm the judgment
of the trial court.
Pre-Litigation Events
{¶3} On May 6, 2010, CMHA police arrested Navario Banks (“Banks”) for
carrying a concealed weapon, drug possession, and theft of a motor vehicle. On May 24,
2010, Banks’s mother, Watson, who was employed by CMHA, approached Stamper, the
CMHA manager of daily operations. Watson asked to view CMHA video surveillance
in order to substantiate Banks’s assertion that at the time of the offenses being
investigated by CMHA police, he was at the King Kennedy housing complex. Stamper
informed Watson that she did not know how to play back the footage and that Watson
would have to check with Lowe, the security camera specialist for CMHA. Watson,
Lowe, and Stamper subsequently viewed the portion of surveillance video that depicted
Banks’s activities. Stamper then allowed Watson, with the assistance of Lowe, to make
a copy of the videotape.
{¶4} Banks received a copy of the video, but was unable to view it, so he
requested that Lowe come to his attorney’s office to play the video. On June 29, 2010,
Lowe went to the office of Banks’s attorney and played the video, and also agreed to
Banks’s request that he testify as a witness for him in the pending criminal matter.
Following that meeting, Lowe informed his boss, Don Butler, IT director at CMHA, of
the video and the request for testimony.
{¶5} CMHA conducted an investigation into the matter and obtained, inter alia,
letters from Watson about her actions, as well as statements from Stamper and Lowe.
CMHA held a pre-disciplinary hearing and subsequently determined that plaintiffs had
performed personal business for the benefit of a third party while on duty. CMHA
additionally concluded that they had used their position to access and obtain information
that was the property of CMHA for the purpose of assisting a third party with an adverse
interest to CMHA, in violation of the conflict of interest policy. All three plaintiffs were
terminated on July 9, 2010.1
Litigation
{¶6} On August 10, 2011, plaintiffs filed suit against CMHA and its then-Chief
Executive Officer, Phillips-Oliver. In their first amended complaint for relief, plaintiffs
alleged that they were wrongfully discharged in violation of public policy because
“CMHA police [have] a duty to disclose evidence materially favorable to an accused
criminal defendant,” and because “Ohio has a * * * public policy committed to open
records.” They further alleged that their firings were unrelated to their job performance
or employer policies, and that they were terminated for requesting and obtaining public
records.
Summary Judgment
{¶7} On May 9, 2012, defendants moved for summary judgment. In support of
this motion, defendants presented evidence that plaintiffs accessed CMHA property while
on work time, contrary to CMHA policies and practices, and without proper
authorization. In relevant part, defendants presented Administrative Order 18,
promulgated in 2003, that requires the law department to review and authorize the release
of any and all records requested in a public records request. The records are not
1OnSeptember 22, 2010, Banks pled guilty to attempted carrying concealed
weapons in violation of R.C. 2923.02 and 2923.12, a first-degree misdemeanor.
provided until a review is conducted and if the records are to be released, the requesting
party pays a copying fee. According to CMHA Ombudsman Dorothy Noga-McCarthy,
there is a “general understanding that if you don’t know where else to go” she can handle
questions about public records. She refers requests to the legal department and goes to
the CMHA police for issues involving videos.
{¶8} CMHA general counsel Audrey Davis testified in deposition that all public
records requests are considered on a case-by-case basis. According to this witness, the
video in question is not a public record, but rather, is a confidential law enforcement
investigatory record. In addition, CMHA’s conflict of interest policy bars the misuse of
CMHA’s confidential information and prohibits, among other things, the providing to any
person, in a preferential manner, aid or documents that are not available to the general
public, and using the employee’s position to achieve personal gain that ordinarily would
not have been available to the employee. These disciplinary policies are set forth in
Administrative Order 11, copies of which Watson and Lowe acknowledged receiving.
{¶9} CMHA also presented evidence that the CMHA police must be consulted in
responding to a request for video surveillance. According to CMHA Detective William
Higginbotham (“Detective Higginbotham”), all video surveillance is monitored by the
police. In addition, according to CMHA director of asset management Carolyn Gaiter,
and Detective Higginbotham, 2 under CMHA policy, a CMHA police officer must be
2 DetectiveHigginbotham and his partner were also involved in arresting
Banks after Detective Higginbotham’s partner, Sergeant Herensky, had observed
him in connection with a stolen motor vehicle.
present to rollback and view previously recorded footage, and to download and copy
surveillance footage.
{¶10} Defendants’ evidence demonstrated that the foregoing procedures were not
followed in this matter. Rather, according to evidence presented by defendants, during
the workday, Watson admitted that she came to Stamper and asked to view surveillance
footage from King Kennedy, telling Stamper that the CMHA police had accused her son
of stealing a van, and that the “camera would validate that he couldn’t have possibly been
at the location that CMHA police said he was at committing a crime.” Stamper could
not rewind the footage so she directed Watson to contact Lowe. Lowe admitted that
during the discussion with Watson, Watson informed him that “her son was being ask[ed]
questions and was detained by CMHA police * * * and asked if she could see the video.”
He then let her have a copy of it. Approximately ten days later, Lowe met with Banks at
a nearby McDonald’s and explained to him how to view the recording and he also met
with Banks’s attorney, and assisted her in viewing it.
{¶11} Defendants also presented deposition testimony from Mark Hunt, director
of human resources, that if the matter had related to CMHA business, Stamper was
authorized to obtain the record. Stamper had no such authority, however, when the
matter involved personal business, rather than CMHA business. Lowe’s position
involved getting the cameras in place, setting them up and making sure that they were
working.
{¶12} Further, CMHA Police Chief Andreas Gonzalez (“Gonzalez”) testified
during deposition that he had informed Lowe and other management leaders, prior to this
matter, that requests to rollback and copy video surveillance footage had to be submitted
to the CMHA police department. Emails predating this incident also reminded Lowe to
contact the CMHA police to have the review and download the videotape of where
alleged illegal activity has occurred. According to Detective Higginbotham, there was
no “chain of custody” for the video Watson obtained, and after learning of this incident,
Gonzalez told Lowe that he had interfered with a criminal investigation.
{¶13} Gonzalez concluded that plaintiffs had breached CMHA security when
they downloaded the video. Plaintiffs were ultimately terminated for violating the
conflict of interest policy and taking actions to benefit a third party (Banks) who had an
adverse interest to CMHA, and disclosing CMHA property to a third party without proper
authorization. Defendants maintained that there was no evidence that plaintiffs were
terminated for making a public records request. Finally, defendants maintained that the
circumstances of the terminations do not jeopardize public policy, and there was no
evidence that the reasons offered for the terminations were a pretext.
{¶14} In opposition, plaintiffs asserted that the terminations violated Ohio’s
public policy favoring open public records, and the duty to provide exculpatory evidence
to a criminal defendant, and that CMHA retaliated against plaintiffs. They maintained
that the videotape was generally available to the public, and that CMHA had waived any
claim that disclosure of the videotape should have been conducted within the parameters
of Civ.R. 16.
{¶15} Plaintiffs presented deposition testimony from CMHA Ombudsman
Dorothy Noga-McCarthy who stated that requests for public records must be made during
working hours and do not have to be made in writing. Plaintiffs also presented evidence
that Watson did not know of the public records procedure, that CMHA’s public records
policy was never distributed to employees and that there are no written rules prohibiting
Lowe from giving copies of security footage to anyone. Plaintiffs also presented
deposition testimony from Stamper in which she stated that she understood her job as
requiring her to fulfill requests “[w]hen the public requests anything that was public.”
She did not believe that she had to go through the legal department or the police
department. Stamper stated that she had authority to provide the public with police
reports, and had previously rewound and inspected videos.
{¶16} The evidence presented by plaintiffs further indicated that time was of the
essence because security cameras at CMHA continually record over prior videos.
Plaintiffs also presented evidence that in prior years requests for video surveillance had to
be reported to CMHA police but, according to plaintiffs, after Lowe became CMHA
camera specialist, Lowe routinely handled such requests. Lowe averred that he never
received a written public records policy, and was never instructed to consult with the legal
department in responding to public records requests. He admitted, however, that the
DVD that recorded the footage was password protected.
{¶17} As to the issue of pretext, plaintiffs noted that Phillips-Oliver had
conceded that it would negatively impact the housing authority’s reputation in the
community if evidence established that CMHA withheld exculpatory evidence in
connection with a prosecution. This admission, as well as Phillips-Oliver’s convictions
for lying to investigators and bribery in an unrelated federal corruption probe, were,
according to plaintiffs, “highly probative” in determining whether the offered reasons for
the terminations (violation of conflict of interest and public records policies) were simply
a pretext.
Plaintiffs’ Motion to Compel
{¶18} On November 21, 2012, plaintiffs filed a motion to compel discovery in
which they asserted that defendants failed to comply with a court order requiring them to
produce the electronic versions of the pre-disciplinary letters and termination letters, and
other documents. Plaintiffs asserted that they are entitled to communications from
CMHA general counsel Audrey Davis, “decision-maker notes,” and other documents, and
that the documents are not privileged. Defendants opposed the motion and on December
20, 2012, the trial court held a hearing on the matter, at which the trial court heard
extended argument. On January 14, 2013, the trial court issued the following order:
Plaintiffs’ mtn to compel discovery and for sanctions is granted and denied
in part. * * * Defts have chosen to not waive certain atty client
privileges relative to counsel [Audrey] Davis and CMHA. That declaration
means certain of the discovery pltfs sought by this motion can not be
ordered by this court. The parties advised that contact information for
certain witness was previously produced and therefore that part of pltfs’
motion is moot. This court is satisfied that defts have thoroughly searched
its computer records for all versions of the pre-disciplinary and termination
letters and this court will not order defts to look further. This may well
leave pltfs with evidence and argument to the jury that such letters did exist
but were not produced by defts despite proper request therefor. In all other
respects, pltfs’ motion is denied.
Trial Court’s Final Order
{¶19} On May 1, 2013, the trial court granted defendants’ motion for summary
judgment. In a 28-page opinion, the trial court determined that there was no evidence
that Phillips-Oliver acted with a malicious purpose, in bad faith or in a wanton or reckless
manner, so it found him immune from liability under R.C. 2744.03(A)(6)(3).
{¶20} The court also concluded that defendants were entitled to judgment as a
matter of law on plaintiffs’ claim of wrongful discharge in violation of public policy since
defendants, a public housing entity and official, have no duty to provide plaintiffs with
evidence under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
The evidence also established that plaintiffs’ actions were motivated by a desire to help
Banks, and were not motivated by conduct related to public policy concerning public
records. The court stated that there was no indication that had plaintiffs accessed the
video consistently with their employer’s interest, they would have been terminated.
{¶21} The undisputed evidence established that Banks had received the video at no
charge and without review by the CMHA police or legal department, and the court noted
that the “objective of R.C. 149.43 is not to allow employees of public offices to use their
superior position of employment to gain access to any record, for any purpose, at any
time, without proper checks and balances,” and at no charge to Banks.
{¶22} The court concluded that plaintiffs’ termination did not jeopardize the goals
of the public records act because “they had available remedies under R.C. 149.43(C); and
Banks had rights under Crim.R. 16[.]” Finally, the trial court concluded that defendants
had articulated a legitimate reason for the dismissals and that plaintiffs failed to present
evidence that this reason was a mere pretext in order to terminate plaintiffs for viewing a
public record.
Review of Ruling on Motion to Compel Discovery
{¶23} Within the fourth assignment of error, plaintiffs assert that the trial court
erred in denying their November 21, 2012 motion to compel discovery in which they
sought communications, including decision-maker notes, and drafts of documents from
CMHA general counsel Audrey Davis, in order to discover her role in the terminations,
the advice she provided, and whether that advice was heeded.
{¶24} Trial courts have broad discretion over discovery matters. State ex rel.
Duncan v. Middlefield, 120 Ohio St.3d 313, 2008-Ohio-6200, 898 N.E.2d 952, ¶ 27.
Generally, if the discovery issue involves an alleged privilege, as in this case, it is a
question of law that must be reviewed de novo. Med. Mut. of Ohio v. Schlotterer, 122
Ohio St.3d 181, 2009-Ohio-2496, 909 N.E.2d 1237, ¶ 13. However, the Supreme Court
has characterized the determination of whether materials are protected by the attorney
work-product privilege and the determination of the good-cause exception to that
privilege, not as questions of law, but as discretionary determinations to be made by the
trial court. State ex rel. Greater Cleveland Reg. Transit Auth. v. Guzzo, 6 Ohio St.3d
270, 271, 452 N.E.2d 1314 (1983).
{¶25} Under Civ.R. 26(B)(1), the scope of pretrial discovery is broad and parties
may obtain discovery regarding any matter that is not privileged and is relevant to the
subject matter. Under the attorney-client privilege, (1) where legal advice of any kind is
sought (2) from a professional legal adviser in his capacity as such, (3) the
communications relating to that purpose, (4) made in confidence (5) by the client, (6) are
at his instance permanently protected, (7) from disclosure by himself or by the legal
adviser, (8) unless the protection is waived. State ex rel. Leslie v. Ohio Hous. Fin.
Agency, 105 Ohio St.3d 261, 2005-Ohio-1508, 824 N.E.2d 990, ¶ 21. See also R.C.
2317.02.
{¶26} The attorney-client privilege applies to pertinent communications between
attorneys and their corporate clients, just as between attorneys and their individual clients.
Leslie at ¶ 22; MA Equip. Leasing I, LLC v. Tilton, 10th Dist. Franklin Nos. 12AP-564
and 12AP-586, 2012-Ohio-4668, ¶ 33 (in general, the privilege extends to the
communications of in-house counsel.). Moreover, an attorney “does not become any
less of an attorney by virtue of state agency employment.” State ex rel. ESPN, Inc. v.
Ohio State Univ., 132 Ohio St.3d 212, 2012-Ohio-2690, 970 N.E.2d 939, ¶ 38, quoting
Leslie at ¶ 29.
{¶27} R.C. 2317.02(A) provides the exclusive means by which privileged
attorney-client communications can be waived by the client: (1) the client expressly
consents; or (2) the client voluntarily testifies on the same subject. State v. McDermott,
72 Ohio St.3d 570, 1995-Ohio-80, 651 N.E.2d 985.
{¶28} Furthermore, pursuant to Civ.R. 26(B)(3), the work-product doctrine
provides for a limited privilege that protects documents, electronically stored information
and other tangible things “prepared in anticipation of litigation or for trial by or for
another party or by or for that other party’s representative * * *only upon a showing of
good cause therefor.”
{¶29} The work-product privilege belongs to the attorney, and protects the
attorney’s mental processes in preparation of litigation, so that the attorney can analyze
and prepare their client’s case free from scrutiny or interference by an adversary. Squire,
Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp., 127 Ohio St.3d 161,
2010-Ohio-4469, 937 N.E.2d 533, ¶ 55. Attorney work product may be discovered upon
a showing of good cause if it is directly at issue in the case, the need for the information is
compelling, and the evidence cannot be obtained elsewhere. Id. at ¶ 60.
{¶30} In this matter, the record reflects that plaintiffs deposed CMHA general
counsel Audrey Davis during the course of discovery, on July 11, 2012. She was
involved in the investigation of this matter, and was involved in pre-termination meetings
with plaintiffs. She was not a member of the management committee, but rather, gave
legal advice in executive sessions with managers who made the decision to terminate
plaintiffs. She stated that there was no privilege as to meetings in the presence of
plaintiffs but she was not waiving the privilege as to her role in advising CMHA. She
stated that the video was subject to CMHA’s public records policy but she denied that it
was a public record, and that Crim.R. 16 offers the sole means of its disclosure. She also
stated that it was not the role of CMHA police to provide Banks with exculpatory
evidence, and that such responsibility rested with the prosecutor’s office. CMHA also
asserted the attorney-client privilege, and produced a privilege log on June 28, 2012.
{¶31} At the December 20, 2012 hearing, CMHA emphasized that Davis’s role
was to provide legal advice to CMHA. Defense counsel offered to let the court examine
various documents in its privilege log to determine if there was discoverable information.
The record indicates that Davis was not part of the management team and that she
provided legal advice in anticipation of a specific concern for possible litigation. The
record does not support the plaintiffs’ claim that Davis simply assisted CMHA with its
business decisions or a human relations matter. Moreover, plaintiffs did not make the
requisite showing in order to obtain information protected by work product. We
therefore conclude that this portion of the assignment of error is without merit.
{¶32} Plaintiffs also raise the related argument that the trial court erred insofar as
it allowed defendant Phillips-Oliver to use the defense of sovereign immunity because it
was premised upon his reliance upon the advice of counsel, without requiring the
disclosure of the content of the communications between him and his attorney.
{¶33} As an initial matter, we note that the key issue in overcoming sovereign
immunity is whether Phillips-Oliver’s acts or omissions were manifestly outside the scope
of his employment or official responsibilities or whether he acted with malice, in bad
faith, or in a wanton or reckless manner. See R.C. 2744.03(A)(6). In this connection,
Phillips-Oliver maintained that he exercised reasonable care in his decision and that he
terminated plaintiffs after a thorough investigation.
{¶34} In any event, the exclusive means of waiver of attorney-client privilege set
forth in R.C. 2317.02(A) were not met because the client did not expressly consent, and
the individual CMHA employees may not waive a privilege that is owned by the entire
organization. Carver v. Deerfield Township, 139 Ohio App.3d 64, 742 N.E.2d 1182(11th Dist.2000); Riggs v. Richard, 5th Dist. Stark No. 2007CA00328, 2008-Ohio-4697,
¶ 18.
{¶35} The fourth assignment of error is without merit.
Phillips-Oliver’s Immunity
{¶36} Plaintiffs next assert, in the fifth assignment of error, that the trial court
erred in determining that Phillips-Oliver was entitled to sovereign immunity as a matter of
law. Plaintiffs contend that he waived this affirmative defense by failing to timely and
explicitly raise it, and by failing to appeal the trial court’s denial of his motion to dismiss
pursuant to Civ.R. 12(B)(6). They further argue that they presented evidence to create a
jury question as to whether he acted with malice, in bad faith, or in a wanton or reckless
manner. See R.C. 2744.03(A)(6).
{¶37} As an initial matter, the trial court’s denial of Phillips-Oliver’s motion to
dismiss the complaint under Civ.R. 12(B)(6), which asserted the affirmative defense of
sovereign immunity, did not preclude the trial court from later awarding him summary
judgment, because the two motions are governed by entirely different standards. Pyle v.
Ledex, Inc., 49 Ohio App.3d 139, 143, 551 N.E.2d 205 (12th Dist.1988); Civ.R. 12(B)(6)
and 56.
{¶38} As to the issue of timeliness, the trial court’s decision granting leave to file
an answer out of rule is reviewed for an abuse of discretion. Sherrills v. Enersys Del.,
Inc., 8th Dist. Cuyahoga No. 98319, 2012-Ohio-5183, ¶ 11. Here, the record reveals that
plaintiffs’ first amended complaint was filed on November 28, 2011. On December 12,
2011, Phillips-Oliver filed a motion to dismiss the complaint in which he asserted the
defense of sovereign immunity. On June 28, 2012, the trial court denied this motion and
on August 17, 2012, he filed a motion for leave to file an answer with affirmative
defenses that the trial court granted on December 14, 2012. The trial court subsequently
determined that “reasonable minds could only conclude that [Phillips-Oliver] acted inside
the scope of his employment and did not act with malicious purpose, in bad faith, or in a
wanton or reckless manner * * * therefore this Defendant is immune from liability.” We
conclude that the trial court acted within the proper exercise of its discretion in permitting
him to file his answer with affirmative defenses in this matter.
{¶39} As to whether the trial court erred in awarding Phillips-Oliver summary
judgment, he testified in deposition that CMHA’s duty is to comply with the public
records law and not simply release records. He stated that plaintiffs’ actions impacted
the operations of CMHA, had a direct bearing on a criminal matter, and had the potential
to do great harm to CMHA. He noted that Don Butler of the IT department, and the
police are to be notified when copies of videos are requested, and that did not occur
herein.
{¶40} On the record, there was no evidence that Phillips-Oliver acted manifestly
outside the scope of his employment, or that he acted with willful misconduct, an
intentional deviation from a clear duty or from a definite rule of conduct, a deliberate
purpose not to discharge some duty necessary to safety, or purposefully doing wrongful
acts with knowledge or appreciation of the likelihood of resulting injury. Anderson v.
Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266, ¶ 32-34. Likewise,
there was no evidence that he failed to exercise any care toward those to whom a duty of
care is owed in circumstances in which there is great probability that harm will result.
Id. The trial court therefore properly awarded him summary judgment.
{¶41} The fifth assignment of error is without merit.
The Video as a Public Record
{¶42} Within their first assignment of error, plaintiffs assert that the trial court
erred when it failed to determine that the video is a public record.
{¶43} A “public record” is “any record that is kept by any public office,” with
certain specified exceptions. R.C. 149.43(A)(1). Nonetheless, certain records, such as
confidential law-enforcement investigatory records, are exempt from disclosure under
R.C. 149.43(A). Records that are discoverable under Crim.R. 16 are not thereby subject
to release as a “public record” under R.C. 149.43. State ex rel. Fuqua v. Alexander, 79
Ohio St.3d 206, 207, 1997-Ohio-169, 680 N.E.2d 985.
{¶44} When it receives a proper public records request, the custodian must
provide inspection of the requested records promptly and within a reasonable period of
time. R.C. 149.43(B). In addition, R.C. 149.43(B)(1) provides that copies of public
records shall be made available “at cost.”
{¶45} In this matter, CMHA general counsel Audrey Davis testified that she
believed that the video was a confidential law enforcement record so it was exempt from
disclosure. Nonetheless, CMHA’s legal department was deprived of the opportunity to
determine whether the record was subject to disclosure or whether it was exempt as a
confidential law enforcement. As noted by the trial court:
This dispute has no significance here because at the time of Plaintiffs’
conduct which resulted in their firing, CMHA did not know about the video
footage of Banks and was not actively factoring it into his prosecution. * *
* Whether a public records request or not, Plaintiffs were reviewing video
surveillance footage for non-employment purposes which clashed with [the]
employer’s interests in detecting and prosecuting lawbreakers on their
property.
{¶46} The record demonstrates that plaintiffs’ actions provided Watson with an
immediate, free copy of the video after Banks had been arrested and charged with a crime
by CMHA officers. In addition, Lowe assisted Banks’s attorney in viewing the video
footage. In making the decision to terminate plaintiffs, CMHA determined that plaintiffs
used for “their personal benefit or the gain of another, any confidential information
obtained” through their employment, “providing in a preferential manner, information,
aid or documents * * * not available or open to the general public,” and also made a
general determination that plaintiffs “engaged in activity * * * which conflicts with the
interest of CMHA.” We therefore conclude that the first assignment of error is without
merit.
Review of Award of Summary Judgment to CMHA
{¶47} A reviewing court reviews an award of summary judgment de novo.
Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336, 671 N.E.2d 241;
Mitnaul v. Fairmount Presbyterian Church, 149 Ohio App.3d 769, 2002-Ohio-5833, 778
N.E.2d 1093 (8th Dist.). Therefore, this court applies the same standard as the trial
court, viewing the facts in the case in the light most favorable to the nonmoving party and
resolving any doubt in favor of the nonmoving party. Viock v. Stowe-Woodward Co., 13
Ohio App.3d 7, 12, 467 N.E.2d 1378 (6th Dist.1983).
{¶48} Pursuant to Civ.R. 56(C), summary judgment is proper if:
(1) No genuine issue as to any material fact remains to be litigated; (2) the
moving party is entitled to judgment as a matter of law; and (3) it appears
from the evidence that reasonable minds can come to but one conclusion,
and viewing such evidence most strongly in favor of the party against whom
the motion for summary judgment is made, that conclusion is adverse to
that party.
Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977).
{¶49} Once a moving party satisfies its burden of supporting its motion for
summary judgment with sufficient and acceptable evidence pursuant to Civ.R. 56(C), the
nonmoving party must set forth specific facts, demonstrating that a “genuine triable issue”
exists to be litigated for trial. State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d 447,
449, 1996-Ohio-211, 663 N.E.2d 639.
{¶50} With regard to the substantive law, we note that in 1990, the Ohio Supreme
Court recognized an exception to the employment-at-will doctrine that applies when an
at-will employee is discharged or disciplined for reasons that contravene clear public
policy expressed by the legislature in its statutes. Greeley v. Miami Valley Maintenance
Contrs., Inc., 49 Ohio St.3d 228, 551 N.E.2d 981 (1990), paragraph one of the syllabus.
In order to prevail on a cause of action for wrongful termination in violation of public
policy, a plaintiff must prove that: (1) a clear public policy exists as manifested in a state
or federal constitution, statute, or administrative regulation, or in the common law (the
“clarity element”); (2) dismissing employees under the circumstances presented would
jeopardize the public policy (the “jeopardy element”); (3) the plaintiff’s dismissal was
motivated by conduct related to the public policy (the “causation element”); and (4) the
employer lacked an overriding legitimate business justification for the dismissal (the
“overriding-justification element”). Sutton v. Tomco Machining, Inc., 129 Ohio St.3d
153, 2011-Ohio-2723, 950 N.E.2d 938, ¶ 9.
{¶51} The clarity and jeopardy elements are questions of law to be decided by the
court. Collins v. Rizkana, 73 Ohio St.3d 65, 70, 1995-Ohio-135, 652 N.E.2d 653.
When analyzing the jeopardy element, a court must inquire “into the existence of any
alternative means of promoting the particular public policy to be vindicated by a
common-law wrongful-discharge claim.” Wiles v. Medina Auto Parts, 96 Ohio St.3d
240, 244, 2002-Ohio-3994, 773 N.E.2d 526. If a statutory remedy already exists that
adequately protects society’s interests already exists, then there is no need to recognize a
claim for wrongful discharge in violation of public policy. Id. The causation and
overriding justification elements are questions of fact. Rizkana at 70.
{¶52} With regard to the first element, the plaintiffs advanced the contention that
Ohio public policy prohibits the termination of an employee for accessing public records,
and also prohibits the termination of an employee who seeks exculpatory evidence for a
criminal defendant. The trial court rejected both of those claims and determined, as a
matter of law, that plaintiffs could not meet the clarity or jeopardy elements of their
claim for relief. The court stated:
The Ohio Public Records Act nor the federal Freedom of Information Act]
do not apply as neither statute clearly affords protection to employees who
violate procedures. Also, both statutes list certain exemptions to disclosure
and therefore the right to access public records is not automatic or without
limitation. * * *
* * * [As to the claim regarding exculpatory evidence,] the undisputed
evidence shows that Defendants were not Banks’ prosecutors, but CMHA’s
police caused and [were] supporting his prosecution. More to the point,
Plaintiffs were not obligated to fulfill the prosecutors’ duties and provide
Banks with exculpatory information.
Plaintiffs do not argue that they were motivated by these laudatory goals in
their actions; they admit that their actions were to benefit Watson’s son who
faced criminal charges.
{¶53} The trial court additionally held that plaintiffs’ claims failed because they
could not show that the circumstances of their terminations jeopardized public policy.
The Court noted:
Plaintiffs were not terminated for merely requesting a public record. They
were terminated for their conduct in obtaining the employer’s video in
pursuit of a purely private matter which happened to be adverse to the
employer’s interest in prosecuting those who commit criminal acts on their
property. There is no indication that had plaintiffs accessed the video in
pursuit of their job duties consistent with their employer’s interest they
would still have been terminated. It cannot be said that other employees
will be discouraged from requesting public records for purposes related to
CMHA’s interests. The objective of R.C. 149.43 is not to allow employees
of public offices to use their superior position of employment to gain access
to any record, for any purpose, at any time, without proper checks and
balances. CMHA’s policies and procedures, implemented to ensure the
agency functions properly, cannot be secondary to its duty to maintain
public records and make them available to requesters. * * * The Court
concludes that adequate protections exist for Public records under Ohio
laws.
{¶54} This cogent reasoning follows as a matter of law from the undisputed
evidence of record. The record supports the conclusion that plaintiffs used their
employment in order to provide Watson with an immediate, free record, without review
by CMHA legal staff. They acted outside of CMHA’s public records policy, and
inconsistent with the Ohio Public Records Act. In addition, they did not pursue evidence
through the prosecutor’s office under the Brady v. Maryland framework, or within the
procedures outlined in Crim.R. 16.
{¶55} Moreover, the formal pursuit of public records is protected by the remedies
set forth in the act. Banks likewise had access to exculpatory evidence under the
framework of Crim.R. 16. Given the court oversight and the penalties for failure to
produce public records and for failing to provide exculpatory evidence, we conclude that
Ohio’s public policy is not jeopardized by plaintiffs’ discharge. Accordingly, these
essential elements of the claim for relief cannot be established as a matter of law, so we
find that the trial court properly awarded defendants summary judgment on plaintiffs’
claim for wrongful discharge in violation of public policy.
{¶56} The second and fourth assignments of error are without merit.
Failure to Consider Plaintiffs’ Individual Claims
{¶57} For their third assignment of error, plaintiffs assert that the trial court erred
by failing to separately consider and address each of their claims. They contend that
Watson acted properly in seeking a public record from Stamper, that Stamper had no
interest in impermissibly assisting Watson and Banks, and that Lowe simply fulfilled his
required job duty in providing the video footage.
{¶58} In the amended complaint, plaintiffs did not set forth individual claims.
Rather, they collectively asserted that “defendants disciplined and terminated Plaintiffs
employment because they requested, inspected or disclosed the public records.” They
further allege that the terminations were “for reasons unrelated to their job performance.”
{¶59} The record demonstrates that the trial court’s analysis gave proper
consideration to the actions of each individual plaintiff because it concluded:
The undisputed evidence here is that Watson was seeking help with a
personal matter unrelated to her employment with CMHA, and that both
Lowe and Stamper were aware of the personal nature of Watson’s request
for help. The Court finds that there can be no exception to the employment
at-will doctrine for such circumstances.
{¶60} The third assignment of error is without merit.
{¶61} Judgment affirmed.
It is ordered that appellees recover from appellants costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MARY EILEEN KILBANE, JUDGE
MARY J. BOYLE, A.J., and
LARRY A. JONES, SR., J., CONCUR