DocketNumber: Case No. 2001-P-0146.
Judges: DONALD R. FORD, P.J.
Filed Date: 4/18/2003
Status: Non-Precedential
Modified Date: 4/17/2021
{¶ 2} The following facts are relevant to this appeal. According to Chief of Police Mark Lombardi ("Chief Lombardi"), on November 1, 2000, appellant delayed in dispatching the fire department to the scene of a fatal accident and also "failed to dispatch the road officer to a call of an injury accident in a timely manner."2 As a result, Assistant Chief Lynn Scott filed a formal complaint against appellant. Chief Lombardi conducted an investigation, and on November 24, 2000, supplied appellant with a written notice of her suspension pursuant to R.C.
{¶ 3} Upon conducting an inquiry, Mayor Bielecki issued a judgment of dismissal on November 29, 2000, permanently removing appellant from the police department.5 As a result, appellant appealed the mayor's determination to the village council where a hearing was conducted on December 12, 2000. Although appellant had the opportunity to personally appear at the hearing, she declined to do so and instead was represented by her attorney during the proceedings. The village counsel considered the evidence and, by motion, unanimously upheld Mayor Bielecki's decision to terminate appellant's employment.6
{¶ 4} On December 21, 2000, appellant filed a statutory administrative appeal in the Portage County Court of Common Pleas from the decision of the village council.7 Although this notice of appeal was predicated upon R.C.
{¶ 5} As grounds for her appeal, appellant alleged that her right to procedural due process had been violated because Mayor Bielecki "failed to give [her] any meaningful pretermination [sic] notice and opportunity to be heard prior to her termination." Appellant also claimed that the village council failed to pass a resolution or an ordinance adopting the mayor's decision to terminate appellant's employment, and that Mayor Bielecki and the village council erred when they discharged her. Moreover, appellant argued that the decision was "unsupported as a matter of law or by any substantial, properly admitted evidence."8
{¶ 6} As the matter proceeded, appellant filed a "motion for judgment with brief" on February 26, 2001. Therein, appellant maintained that the village council erroneously affirmed Mayor Bielecki's decision to terminate her employment by motion rather than by a resolution or an ordinance. Appellant also claimed that she was entitled to a pre-termination hearing with Mayor Bielecki prior to the mayor making her decision. Accordingly, appellant concluded that she had met her burden of showing that procedural errors occurred in this case and that appellees could not meet their burden that appellant's conduct warranted termination of her employment.
{¶ 7} On March 21, 2001, appellees countered by filing a "brief in opposition to [appellant's] motion for judgment and motion for summary judgment[,]" in which they essentially argued that the procedure set forth in R.C.
{¶ 8} Upon consideration, the trial court issued a lengthy judgment entry on November 2, 2001, affirming the decision of the village council to terminate appellant's employment as a dispatcher. Specifically, the trial court concluded that the dismissal process was conducted pursuant to law, and that appellant's discharge was supported by substantial, reliable and probative evidence. The court also granted appellees' motion for summary judgment on appellant's claim for wrongful discharge and dismissed her request for declaratory relief.
{¶ 9} From this judgment, appellant filed a timely notice of appeal with this court. She now submits the following assignments of error for our consideration:
{¶ 10} "[1.] The trial court erred in denying appellant's motion to strike and for default[.]
{¶ 11} "[2.] The trial court erred in dismissing appellant's complaint for declaratory judgment[.]
{¶ 12} "[3.] The trial court erred in determining that Village Council's action approving wrongful discharge was proper by motion alone[.]
{¶ 13} "[4.] The trial court erred in determining that appellant had no right to a pre-termination hearing before the Mayor who was the decision maker[.]
{¶ 14} "[5.] The trial court erred in considering materials filed by the Village outside the schedule set by the trial court[.]
{¶ 15} "[6.] The trial court erred in failing to strike the Chief's affidavit and exhibits[.]
{¶ 16} "[7.] The trial court erred in denying appellant's motion for summary judgment[.]"
{¶ 17} In assignment of error one, appellant contends that the trial court erred in denying her motion for default judgment and her motion to strike the answer filed by appellees.
{¶ 18} On January 22, 2001, appellees filed an answer through their attorney, John D. Latchney ("Attorney Latchney") of Tomino Latchney. However, on February 26, 2001, appellant filed a "motion to strike and for default," arguing that no answer had been timely filed by a village solicitor.
{¶ 19} Appellees responded by filing a brief in opposition to appellant's motion in which they maintained that based on the village's insurance policy, outside legal counsel was authorized to file an answer on their behalf. Appellees further emphasized that the village council had passed a resolution on February 13, 2001, which was retroactive to January 9, 2001, hiring the law firm of Tomino Latchney to represent them in this matter.10 Upon consideration, the trial court issued a judgment entry on March 12, 2001, denying appellant's motion for default judgment and to strike appellees' answer.
{¶ 20} Appellant now challenges this decision in her first assignment of error. Specifically, she contends that a copy of the minutes from the village council meeting shows that the village already had an existing solicitor, Thomas Reitz, to represent appellees.11 As a result, appellant believes that Attorney Latchney had no authority to appear in appellees behalf, thereby requiring the January 22, 2001 answer to be stricken.
{¶ 21} Essentially, the question before this court is whether the village council had the authority to hire legal counsel to defend the village and its officials in a civil action when the village already employed a village solicitor. Contrary to appellant's contention, R.C.
{¶ 22} "When it deems it necessary, the legislative authority of a village may provide legal counsel for the village, or for any department or official thereof, for a period not to exceed two years, and provide compensation for such counsel."12
{¶ 23} Such legal counsel's duties are delineated by R.C.
{¶ 24} "The village solicitor *** shall act as the legal advisor to and attorney for the municipal corporation, and for all officers of the municipal corporation in matters relating to their official duties. ***"13
{¶ 25} No where in R.C.
{¶ 26} Even if the village council was prohibited from hiring outside legal counsel, appellant has failed to show any prejudice resulting therefrom. Hence, any error which may have occurred by having appellees represented by legal counsel other than the existing village solicitor was harmless. Civ.R. 61. See, generally, State v. Benner
(1988),
{¶ 27} In assignment of error two, appellant contends that the trial court erred in dismissing appellant's request for declaratory judgment. As to this point, we note that appellant's notice of appeal also sought injunctive relief. Thus, according to appellant, declaratory and injunctive relief actions can be joined with a R.C.
{¶ 28} In Community Concerned Citizens, Inc. v. Union Twp. Bd. ofZoning Appeals (1993),
{¶ 29} In her third assignment of error, appellant submits that the trial court erred in determining that the village council's action of upholding appellant's termination solely by way of passing a motion was proper. To support her position, appellant cites to R.C.
{¶ 30} In Woods, the plaintiff was employed as a police officer for the village of Bettsville. During a village council meeting, a motion was passed to lay off the plaintiff "due to the lack of operating funds."Id. at 2. Upon consideration, the Third Appellate District determined that such action by the village council was inappropriate:
{¶ 31} "We find nothing in the Ohio statutes permitting action by a village council to terminate a policeman's employment or to lay him off indefinitely by a motion approved by council and, in our opinion, since such lay off would not be of a general and permanent nature and was not for cause action by village council could be taken by the adoption of a resolution to such effect as contrasted with an ordinance." Woods at 2.
{¶ 32} This court, however, does not find the holding announced in Woods to be persuasive. This is because a review of R.C.
{¶ 33} In assignment of error four, appellant raises a procedural due process argument. Specifically, appellant maintains that she was entitled to a pre-termination hearing before Mayor Bielecki could make her decision to affirm Chief Lombardi's recommendation of discharge.
{¶ 34} R.C.
{¶ 35} Furthermore, when the mayor removes an employee, he/she has the right to a hearing before the village legislative authority to appeal the mayor's decision. R.C.
{¶ 36} Finally, if the legislative authority affirms the removal, the employee has the right to appeal to the common pleas court. Id. When the village council affirmed Mayor Bielecki's decision, appellant appealed to the Portage County Court of Common Pleas, which also affirmed her removal.
{¶ 37} The preceding discussion highlights that each of the statutory procedures contained in R.C.
{¶ 38} Under her fifth assignment of error, appellant takes issue with the trial court granting appellees' motion for a two-day enlargement of time. She argues that appellees were given an ex parte extension of time to file their brief in opposition to appellant's motion for judgment, which allowed them to unfairly interject a "partial record."
{¶ 39} A review of the record, however, shows that the trial court's March 20, 2001 judgment entry granting appellees a two-day extension was, indeed, mailed to appellant's counsel on March 21, 2001. Accordingly, appellant received notice of the extension. Likewise, the certificate of service attached to appellees' motion for enlargement of time indicated that their motion was sent "via facsimile U.S. Mail" [sic] to appellant's counsel on March 19, 2001. Thus, contrary to appellant's contention, she had notice of both appellees' motion for enlargement of time and the trial court's grant of such an extension.
{¶ 40} Furthermore, any prejudice caused by the trial court granting appellees' motion for extension of time was harmless. This is because appellant requested and received her own five-day enlargement of time to file a response to appellees' brief in opposition to appellant's motion for judgment and motion for summary judgment. Therefore, appellant's fifth assignment of error is meritless.
{¶ 41} In assignment of error six, appellant contends that paragraphs four, five, six, seven, eleven, fourteen, and fifteen of Chief Lombardi's affidavit should have been stricken because Chief Lombardi failed to properly authenticate certain documents attached as exhibits to appellees' brief in opposition to appellant's motion for judgment and motion for summary judgment.15
{¶ 42} Even if the trial court erred in failing to strike certain paragraphs contained in Chief Lombardi's affidavit, such error was harmless because some of the documents referred to in Chief Lombardi's affidavit were already made part of record by appellant prior to the filing of this affidavit. These documents included the minutes from the village council meeting held on December 12, 2000, a copy of Chief Lombardi's written notice of suspension and notification of formal charges to appellant, and a copy of Mayor Bielecki's decision to uphold the discharge of appellant. For these reasons, appellant's sixth assignment of error is without merit.
{¶ 43} Finally, in her seventh assignment of error, appellant argues that the trial court erred in denying her motion for summary judgment. She maintains that appellees failed to provide any evidence that they had complied with the proper procedures when terminating her employment. Appellant also argues that her conduct did not warrant termination of her employment as "[appellees] never came forward with any evidence that any policy or rule required dispatching anyone within a certain amount of time."
{¶ 44} As we noted earlier in this opinion, because this case was brought pursuant to R.C.
{¶ 45} If appellant wanted to assert individual claims for wrongful discharge and for violations of her right to procedural due process, she should have pursued a separate action. Having failed to do so, the trial court was able to consider these arguments only in the context of the administrative appeal. As a result, the trial court should have dismissed that portion of appellant's appeal seeking damages for appellees' actions in this case, rather than grant appellees summary judgment, as any claim for damages was not properly before the court at that time.
{¶ 46} In light of this, the trial court's decision granting appellees summary judgment was improper. Appellant's seventh assignment of error has merit to the limited extent indicated.
{¶ 47} Pursuant to the foregoing analysis, appellant's first, second, third, fourth, fifth, and sixth assignments of error are without merit. Appellant's seventh assignment of error, however, has merit to the limited extent indicated. The judgment of the trial court, therefore, is affirmed in part and reversed in part, and the matter is remanded so that the trial court can enter a dismissal with respect to appellant's claims for wrongful discharge and for violations of her right to procedural due process.
WILLIAM M. O'NEILL and CYNTHIA WESTCOTT RICE, JJ., concur.
"Except as otherwise provided in Title VII of the Revised Code, the legislative authority of a city, by ordinance or resolution, shall determine the number of officers, clerks, and employees in each department of the city government, and shall fix, by ordinance or resolution, their respective salaries and compensation, and the amount of bond to be given for each officer, clerk, or employee in each department of the government, if any is required. Such bond shall be made by such officer, clerk, or employee, with surety subject to the approval of the mayor."
R.C.
"(A) The following procedures shall apply to the passage of ordinances and resolutions of a municipal corporation:
"(1) Each ordinance and resolution shall be read by title only, provided the legislative authority may require any reading to be in full by a majority vote of its members.
"(2) Each ordinance or resolution shall be read on three different days, provided the legislative authority may dispense with this rule by a vote of at least three-fourths of its members.
"(3) The vote on the passage of each ordinance or resolution shall be taken by yeas and nays and entered upon the journal.
"(4) Each ordinance or resolution shall be passed, except as otherwise provided by law, by a vote of at least a majority of all the members of the legislative authority.
"(B) Action by the legislative authority, not required by law to be by ordinance or resolution, may be taken by motion approved by at least a majority vote of the members present at the meeting when the action is taken."
Furthermore, R.C.
"Notwithstanding any conflicting provision of section