Bowman v. S. ViennaBowman v. S. Vienna
Rendered on the 29th day of December, 2021.
JASON P. MATTHEWS, Atty. Reg. No. 0073144 & MATTHEW C. SCHULTZ, Atty. Reg. No. 0080142, 130 West Second Street, Suite 924. Dayton, Ohio 45402 Attorneys for Appellee
JEFFREY C. TURNER, Atty. Reg. No. 0063154, DAWN M. FRICK, Atty. Reg. No. 0069068 & BENJAMIN J. REEB, Atty. Reg. No. 0100018, 8163 Old Yankee Street, Suite C, Dayton, Ohio 45458, Dayton, Ohio 45440 Attorneys for Appellant
EPLEY, J.
I. Facts and Procedural History
{¶ 2} Bowman was hired as an auxiliary police officer for the Village of South Vienna in April 2017. A few years later, on July 22, 2020, she was hired as police chief for the village. Bowman was to serve a probationary period of one year from her date of hire, and an evaluation was to be completed in six months. If, however, “things were not working out,” the council, with proper documentation, had the ability to terminate her, or she could resign.
{¶ 3} The mayor noted many occasions of unsatisfactory behavior from Bowman, culminating in an incident in which she left a loaded shotgun, a computer with a LEADS (a state law enforcement database) program on it, and a village gas card in her cruiser when she dropped it off for repair. As a result, it was determined that Bowman did not satisfactorily serve her probationary term, and at the council meeting on March 8, 2021, she was given the option to resign or be fired. Instead, Bowman left the meeting, cleaned out her office, and exited the building without notifying council of her decision. The council then fired her.
{¶ 4} In March 2021, Bowman filed a notice of appeal in the Clark County Court of
{¶ 5} The Village of South Vienna has filed a timely appeal with two assignments of error.
II. Bowman was still a probationary employee, even after the six-month statutory period had lapsed
{¶ 6} In its first assignment of error, the Village of South Vienna argues that the trial court erred by finding that, upon completion of the six-month statutory probationary period set forth in
Standard of Review
{¶ 7} To begin our analysis of the case, we must determine the appropriate standard of review as the parties differ in their interpretations. The Village of South Vienna asserts that we should review the judgment de novo because, ultimately, we must determine whether the trial court correctly interpreted the law. Conversely, Bowman contends that the trial court‘s judgment should be reviewed under an abuse of discretion standard. We agree with the Village of South Vienna.
Statutory Interpretation
{¶ 9} Both parties do agree that the outcome of this case depends on statutory interpretation. “The primary goal of statutory construction is to ascertain and give effect to the legislature‘s intent,” as expressed in the plain meaning of the statutory language. State v. Lowe, 112 Ohio St.3d 507, 2007-Ohio-606, 861 N.E.2d 512, ¶ 9. See also Gabbard v. Madison Local School Dist. Bd. of Edn., Ohio Slip Opinion No. 2021-Ohio-2067, __ N.E.3d __, ¶ 13. “To discern that intent, we first consider the statutory language, reading all words and phrases in context and in accordance with the rules of grammar and common usage. We give effect to the words the General Assembly has chosen, and we may neither add to nor delete from the statutory language.” (Citations omitted.) Gabbard at ¶ 13. When the statutory language is clear and unambiguous, we apply the words as written. “An unambiguous statute is to be applied, not interpreted.” Meeks v. Papadopulos, 62 Ohio St.2d 187, 190, 404 N.E.2d 159 (1980).
{¶ 10} The Ohio Revised Code, in
{¶ 11} The next section,
* * * [I]f the mayor of a village has reason to believe that a duly appointed marshal of the village has been guilty of [fire-able offenses] in the performance of the marshal‘s official duty, the mayor shall file with the legislative authority of the village written charges against that person setting forth in detail the reason for the charges and immediately shall serve a true copy of the charges upon the person against whom they are made.
Charges filed under this section shall be heard at the next regular meeting of the legislative authority * * * [and] [t]he person against whom those charges are filed may appear in person and by counsel at the hearing, examine witnesses, and answer all charges against that person.
At the conclusion of the hearing, the legislative authority may dismiss the charges, suspend the accused from office, * * * or remove the accused from office.
Statutory Analysis
{¶ 12} We first turn our attention to
{¶ 13} After the mayor has completed the first two actions, the statute indicates that whether the probationary police chief is appointed to full-time status or removed is discretionary – “[the mayor] may * * * remove or finally appoint the employee.” While step one and step two are mandatory, as evinced by the statute‘s affirmative language, the final step is not and gives the mayor some leeway; the statutory language does not require the mayor to remove or appoint the employee.
{¶ 14} In this case the mayor of the Village of South Vienna did not take the affirmative step to “finally appoint” Bowman, according to the statute. Consequently, she had not yet reached permanent status and, thus, was still probationary. That means, according to the plain language of the next section,
{¶ 15} Our interpretation of the statute is shared by other courts as well. In Curby v. Archon, 216 F.3d 549 (6th Cir.2000), a deputy marshal, no longer in his probationary period but not yet appointed permanently, was terminated without the due process provided by
{¶ 16} Recently, the United States District Court for the Northern District of Ohio examined the topic in Dalton-Webb v. Wakeman, N.D. Ohio No. 3:19 CV 630, 2020 WL 4926233 (Aug. 21, 2020). In Dalton-Webb, an officer was fired after his probationary period had expired but before being duly appointed by the mayor and council. In rejecting
{¶ 17} While the caselaw favors of the Village of South Vienna, the trial court in its decision below and Bowman in her brief to this Court cite to several cases which, at first blush, seem to be in her favor. For instance, the trial court cited to Dillon v. Macedonia, 43 Ohio App.3d 17, 538 N.E.2d 1085 (9th Dist.1988) and Roberts v. Wellston, 4th Dist. Jackson No. 03CA14, 2004-Ohio-606, for the proposition that Bowman was “entitled to a presumption that she completed the six month probationary period satisfactorily and cannot be dismissed or demoted absent notice and a hearing to show cause.” Appellee‘s Brief at 6. Both cases, though, are distinguishable as both the Dillon and Roberts courts were reviewing
{¶ 18} Bowman‘s strongest argument, one with which we agree, is that the construction of
{¶ 19} Despite the concerning policy argument, it is not our duty to re-write a statute, but instead to interpret the language used by the legislature. In this case, it is clear, based on the plain language of
{¶ 20} The trial court erred in its judgment, and the Village of South Vienna‘s first assignment of error is sustained.
III. Trial Court Jurisdiction
{¶ 21} In its second assignment of error, the Village of South Vienna asserts that the trial court lacked the jurisdiction to even hear Bowman‘s appeal. While the trial court did not address the matter, it proceeded as though it had jurisdiction.
{¶ 22} For an administrative act to be appealable under
{¶ 23} As a probationary employee, Bowman did not have a property interest in
{¶ 24} Stated another way, a trial court does not have jurisdiction to hear appeals brought by probationary employees governed by
{¶ 25} We conclude, then, that there was not a quasi-judicial proceeding and the administrative act was not appealable to the common pleas court under
{¶ 26} The Village of South Vienna‘s second assignment of error is sustained.
IV. Conclusion
{¶ 27} The judgment of the trial court is reversed.
TUCKER, P. J. and WELBAUM, J., concur.
Copies sent to:
Jason P. Matthews
Matthew C. Schultz
Jeffrey C. Turner
Dawn M. Frick
Benjamin J. Reeb
Hon. Douglas M. Rastatter