CONRAD A. CURREN, Plaintiff-Appellant, vs. CITY OF GREENFIELD, HARVEY L. EVERHART, EARLENE SCOTT, JOHN N. WAGONER, AND CHARLES V. BOWMAN, Defendants-Appellees.
Case No. 11CA30
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HIGHLAND COUNTY
Released: October 1, 2012
[Cite as Curren v. Greenfield, 2012-Ohio-4688.]
McFarland, J.
APPEARANCES:
Jon C. Hapner, Hapner & Hapner, Hillsboro, Ohio, for Appellant.
Lawrence E. Barbiere, Schroeder, Maundrell, Barbiere & Powers, Mason, Ohio, for Appellees.
McFarland, J.:
{¶1} Appellant, Conrad Curren, appeals the trial court‘s grant of summary judgment in favor of Appellees, City of Greenfield, Harvey Everhart, Earlene Scott, John Wagoner and Charles Bowman. On appeal, Appellant raises a single assignment of error, contending that the trial court erred when it granted Appellees’ motion for summary judgment. After construing the record and all inferences therefrom in Appellant‘s favor, we find there are no genuine issues of material fact, Appellees are entitled to
FACTS
{¶2} After adopting a city manager form of government, on September 18, 2008, the city of Greenfield adopted Ordinance 26-08 appointing Appellant as law director of the city of Greenfield for a period of one year. Prior to this, Appellant was the duly elected and acting law director for the city. Ordinance 26-08 provided that Appellant was being appointed to an unclassified position in the non-bargaining unit.
{¶3} On October 1 and November 4, 2008, city council took formal action to terminate Appellant‘s employment as law director. This is reflected in meeting minutes from the public council hearings that were held, and it also appears in a resolution made during a public hearing. Subsequently, on November 10, 2008, the city of Greenfield passed Ordinance 29-08, which terminated Appellant from the position of law director, effective immediately. Appellant contends that the actions of council were improperly performed during executive session and in violation of Sunshine Law. In the interim, on October 19, 2008, members of city
{¶4} Appellant filed a complaint against Appellees herein on January 3, 2011, and then filed an amended complaint on January 12, 2011.1 Appellant‘s amended complaint alleged that he was wrongfully terminated, and claimed that Appellees had fraudulently conspired against him in his termination, as well as the report to the Disciplinary Counsel. Appellant‘s complaint also alleged violations of Ohio‘s Open Meetings Act, commonly referred to as the Sunshine Law, under
{¶5} Appellees moved the court for summary judgment on June 30, 2011, which the trial court denied on August 10, 2011. As a result, Appellees filed a notice of appeal with this Court on August 11, 2011. However, by agreement of the parties and at the request of the trial court, the appeal was dismissed and Appellees re-briefed and re-filed their motion for
ASSIGNMENT OF ERROR
“I. THE TRIAL COURT ERRED IN GRANTING A SUMMARY JUDGMENT IN THIS CAUSE.”
ISSUES
- “Does the plaintiff hold office for one year, as the ordinance ordained, since said ordinance was not repealed?”
- “Did any ground exist for termination in that differences of opinion existed as to law, and such differences are not breaches of faith or violation of fiduciary duties[?]”
- “Would the members of Council have immunity if there is a lack of good faith?”
- “The issue of the Sunshine Law was not terminated by the statute of limitations, and does a violation of the Sunshine Law invalidate the acts of Council?”
SUMMARY JUDGMENT STANDARD OF REVIEW
{¶6} When reviewing a trial court‘s decision on a motion for summary judgment, we conduct a de novo review governed by the standard set forth in
{¶7} The burden of showing that no genuine issue of material fact exists falls upon the party who moves for summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 294, 662 N.E.2d 264, (1996). To meet its burden, the moving party must specifically refer to “the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action,” that affirmatively demonstrate that the nonmoving party has no evidence to support the nonmoving party‘s claims.
{¶8} Further, the present case involves questions, which are discussed more fully below, as to whether certain affidavits offered by Appellant were properly stricken. “For evidentiary material attached to a summary judgment motion to be considered, the evidence must be admissible at trial.” See
{¶9}
ISSUE 4
{¶10} For ease of analysis, we address Appellant‘s fourth sub issue out of order. In his fourth sub issue raised under his sole assignment of error, Appellant contends that the issue of the Sunshine Law2 was not terminated, and questions whether a violation of the Sunshine Law invalidates acts of Council. A review of the record reveals that the trial court granted summary judgment to Appellees on all issues related to Sunshine Law violations. Particularly, the trial court determined that
{¶11}
{¶12} In granting summary judgment to Appellees on Appellant‘s Sunshine Law claim, the trial court indicated that Appellant‘s original complaint filed in 2009 did not raise the issue of the Sunshine Law violation and that the time expired before the filing of the amended complaint, per
{¶13} We do not have the record from the original complaint filed in 2009. ” ‘Pursuant to App.R. 9(A), the record on appeal must contain “[t]he original papers and exhibits thereto filed in the trial court, the transcript of proceedings, if any, including exhibits, and a certified copy of the docket and journal entries prepared by the clerk of the trial court[.]” ’ ” State v. Bailey, 4th Dist. No. 09CA3287, 2010-Ohio-2239, ¶ 57; citing State v. Dalton, 9th Dist. No. 09CA009589, 2009-Ohio-6910, ¶ 25, quoting
{¶14} As Appellant has not provided us with the record from the 2009 case, we have nothing to review in regards to the statute of limitations on the Sunshine Law issue. Thus, “we must presume the regularity of the trial court proceedings;” i.e., we must presume that the original complaint filed in
ISSUES 1 AND 2
{¶15} We address Appellant‘s first and second sub issues together, as they are interrelated. The first issue raised by Appellant questions whether Appellant held office for one year, as the ordinance ordained, since the ordinance was not repealed. The second issue raised by Appellant questions whether any grounds for termination existed where differences of opinion as to law existed, and where such differences were not breaches of faith or violations of fiduciary duties.
{¶16} Appellant‘s issues are premised on his contention that he was not an unclassified employee. Specifically, Appellant contends that he was entitled to hold the office of law director for one year, pursuant to Ordinance 26-08, and that because Ordinance 29-08, which purported to terminate him, did not expressly repeal Ordinance 26-08, he continues to be entitled to hold that office. Further, Appellant challenges the idea that he was hired on an
{¶17}
{¶18} The Supreme Court of Ohio has held that “an administrative judge * * * is not authorized to enter into an employment agreement with employees of the court.” Malone v. Court of Common Pleas of Cuyahoga County, et al., 45 Ohio St.2d 245, 344 N.E.2d 126, syllabus (1976) (with respect to employees that serve “during the pleasure of the judge.“). In
{¶19} We are further persuaded of Appellant‘s status as an unclassified, at-will employee by two Attorney General opinions on the topic. Opinions released by the Ohio Attorney General are not binding authority, but are considered persuasive authority. State ex rel. North Olmstead Fire Fighters Assn. v. North Olmstead, 64 Ohio St.3d 530, 533, 597 N.E.2d 136 (1992). In 1991 Ohio Op. Atty. Gen. No. 91-011, it was reasoned that
“[a]bsent a collective bargaining agreement, a board of county commissioners does not have the authority to enter into an employment contract which contains a specific term of employment with an individual serving in a position determined, pursuant to
R.C. 124.11 to be in the unclassified service.”
Appellant was expressly placed into a non-bargaining unit position. Further, although this opinion specifically deals with the authority of county commissioners, we find the reasoning to be equally applicable to city council.
{¶20} Additionally, opinion 91-011 notes that “it is well established that individuals in the unclassified service hold their positions at the pleasure of their appointing authority, and are subject to dismissal from their positions without cause.” Citing State ex rel. Trimble, supra. The opinion also noted that because “positions in the unclassified service involve policy making and fiduciary responsibilities, it follows reasonably that the appointing authority should be able to have people of his own choosing in
{¶21} As such, we conclude that Appellant was appointed to the position of law director in an unclassified capacity. This appointment created an at-will employment situation in that Appellant had no entitlement to a particular term of employment, and he could be terminated without cause and without a hearing. It is well-established under Ohio law “that either party to an employment-at-will arrangement may terminate the relationship for any or no reason, ‘provided that the termination is not otherwise unlawful.’ ” Slyman v. Shipman, Dixon & Livingston, Co., L.P.A., 2nd Dist. No. 2008-CA-35, 2009-Ohio-4126, ¶ 10; quoting Smiddy v. Kinko‘s, Inc., 1st Dist. No. C-020222, 2003-Ohio-446, ¶ 8; citing Greeley v. Miami Valley Maintenance Contrs., Inc., 49 Ohio St.3d 228, 234, 551 N.E.2d 981 (1990), and Chapman v. Adia Services, Inc., 116 Ohio App.3d 534, 541, 688 N.E.2d 604 (1997). Thus, an at-will employee may only maintain a tort
{¶22} As such, in answer to Appellant‘s stated issues, we conclude that in light of his termination, Appellant was not entitled to hold office for one year, and that city council was entitled to terminate Appellant without cause. Thus, we conclude that there are no genuine issues of material fact as to Appellant‘s employment status or city council‘s ability to terminate him. Accordingly, the trial court‘s grant of summary judgment in Appellees’ favor on these issues was proper.
ISSUE 3
{¶23} In his third sub issue raised under his sole assignment of error, Appellant questions whether members of Council have immunity if there is lack of good faith. In raising this issue, Appellant seems to be referencing two distinct acts by city council: 1) council‘s termination of Appellant as law director; and 2) council‘s report to the disciplinary counsel regarding alleged activities of Appellant. Appellant essentially argues that council
{¶24}
{¶25} Second,
“Except as otherwise provided in sections 3314.07 and 3746.24 of the Revised Code, political subdivisions are liable for injury, death, or loss to person or property caused by the negligent performance of acts by their employees with respect to proprietary functions of the political subdivisions.”
{¶26} Finally, if liability exists under
“The political subdivision is immune from liability if the injury, death, or loss to person or property resulted from the exercise of judgment or discretion in determining whether to acquire, or how to use, equipment, supplies, materials, personnel, facilities, and other resources unless the judgment or discretion was exercised with malicious purpose, in bad faith, or in a wanton or reckless manner.” (Emphasis added).
Whether a political subdivision is entitled to statutory immunity under
{¶27} In the case sub judice, the parties do not dispute that Appellant is entitled to the general grant of immunity under
{¶28} We have already determined that Appellee was entitled to terminate Appellant at any time, without cause, as Appellant was an unclassified, at-will employee. Further, because Appellant failed to allege any violation of public policy in connection with his termination, he has failed to allege facts sufficient to support a claim for the tort of wrongful discharge. Here, however, Appellant seems to suggest that Appellees were not immune from liability, by virtue of what Appellant characterizes as acts done in “bad faith.” Specifically, Appellant contends that the trial court erred in striking the affidavit of Pat Hayes, which purported to prove that council‘s plan was to hire Appellant in order that they could fire him.3
{¶29} As set forth above, “[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is
{¶30} The affidavit of Pat Hayes essentially entirely consisted of hearsay statements, and was not based upon personal knowledge. Thus, we cannot conclude that the trial court‘s decision to strike this affidavit was an abuse of discretion. As a result, and in light of the foregoing, we conclude that not only are Appellees’ immune from liability, Appellant has failed to properly set forth a cause of action for the tort of wrongful discharge. Accordingly, the trial court properly granted summary judgment in Appellees’ favor, both in their official and individual capacities, on this issue.
{¶31} Appellant next argues that Appellees‘s submission of a report to the Disciplinary Counsel was in bad faith, or even fraudulent, claiming that it contained the forged signature of one council member. Appellant contends this “bad faith” removes Appellees’ immunity under
{¶32} Further, and of importance, this Court has previously recognized that “political subdivisions are immune from claims of fraud.” Dolan v. Glouster, 173 Ohio App.3d 617, 2007-Ohio-6275, 879 N.E.2d 838, ¶ 20; citing Wilson v. Stark Cty. Dept. of Human Servs., 70 Ohio St.3d 450, 452, 639 N.E.2d 105 (1994); see also, Featherstone v. Columbus, 10th Dist. No. 06AP-89, 2006-Ohio-3150, ¶ 11 (stating that governmental immunity “applies particularly to intentional tort claims of fraud * * *.“)
{¶33} Thus, because Appellees’ report to the Disciplinary Counsel has absolute privilege, even if done in bad faith, Appellant has not stated a cause of action against Appellees, either in their official or individual capacities. Further, because political subdivisions are immune from fraud claims, we conclude that the trial court‘s grant of summary judgment was proper on these issues as well.
{¶34} Accordingly, as Appellant has failed to demonstrate the existence of genuine issues of material fact, and reasonable minds can come to but one conclusion, and that conclusion is that Appellees are entitled to judgment as a matter of law, we affirm the trial court‘s decision.
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT BE AFFIRMED and that the Appellees recover of Appellant costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Highland County Common Pleas Court to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Exceptions.
Abele, P.J: Concurs in Judgment and Opinion.
Harsha, J: Concurs in Judgment Only.
For the Court,
BY:
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.