779 N.E.2d 1051 | Ohio Ct. App. | 2002
{¶ 3} On March 9, 2001, Durham accessed the payroll records and deleted her prior direction that additional federal income taxes ($30) be withheld from her pay each week. After the School Board's treasurer discovered this action, Superintendent Rick Delaney sent Durham a letter informing her that he was considering recommending the termination of her employment contract based upon her "inappropriate use and access of the computer system * * * on or about March 9, 2001."
{¶ 4} Delaney delivered the letter on May 15, 2001, and informed Durham that she would have an opportunity to defend herself on May 17, 2001 at 10:00 a.m. The letter stated that if Durham wished to bring a representative to the meeting, she must notify Delaney by May 16, 2001.
{¶ 5} Durham arrived at the meeting without representation. When made aware of the specific actions that Delaney deemed inappropriate, Durham admitted to changing her tax withholdings. Durham asserted that Assistant Treasurer Janet Bobst had authorized her to make those changes. In response, Delaney told Durham that Bobst had not authorized the changes. He denied Durham's request to allow Durham to question Bobst regarding whether she gave Durham authorization.
{¶ 6} Later that evening, the School Board terminated Durham based upon Delaney's recommendation. Durham timely appealed her termination to the trial court in accordance with R.C.
{¶ 7} The School Board argued before the trial court that it provided Durham with adequate due process prior to terminating her employment. In a reply brief, Durham again asserted that she did not receive due process, and discussed in greater detail the manner in which she was deprived of due process, including lack of notice, lack of access to counsel, and lack of the right to cross-examine witnesses against her.
{¶ 8} The trial court determined that the School Board deprived Durham of her due process rights by denying her the right to cross-examine witnesses. Therefore, the trial court declared Durham's termination to be void ab initio and disaffirmed it. The trial court did not award back-pay to Durham.
{¶ 9} The School Board appeals, asserting the following assignments of error: "I. The Common Pleas Court erred when it based its Judgment Entry on an argument raised by Appellee in her Reply Brief[;] II. The Common Pleas Court erred *151 when it determined that Appellant violated Appellee's due process rights by not permitting Appellee to cross-examine a witness at her pretermination hearing."
{¶ 10} Durham cross-appeals, asserting the following assignment of error: "The Court below erred in disaffirming the Cross-Appellant's removal as a non-teaching employee of Cross-Appellee without awarding her backpay for fringe benefits and salary lost until reinstatement occurs."
{¶ 12} Pursuant to App.R. 16(C), reply briefs are only to be used to rebut arguments raised in the appellee's brief. An appellant may not use a reply brief to raise new issues or assignments of error. Sheppardv. Mack (1980),
{¶ 13} Our review of the record in this case reveals that Durham did not raise new arguments in her reply brief. Durham asserted in her original brief to the trial court that she was not afforded her due process rights when she was terminated from employment. Durham's brief also references her attached affidavit, in which Durham averred "[t]hat she was not permitted to appear and to be heard * * * and further was not allowed to; [A.] Present her position, argument, and contentions; [B.] Offer and examine witnesses and present evidence in support; [C.] Cross-examine witnesses purporting to refute her position, arguments, and contentions * * *." In its response, the School board argued that Durham was afforded the essential elements of due process, notice and the opportunity to respond. Durham argued in her reply brief that she did not receive the opportunity to respond, in part because she was not permitted to cross-examine witnesses.
{¶ 14} We find that the argument that Durham was not allowed to cross-examine witnesses falls clearly within the scope of her primary argument, that she was denied due process in the termination of her employment. Consequently, we find that the trial court did not err in considering Durham's affidavit and arguments regarding cross-examination of witnesses.
{¶ 15} Accordingly, we overrule the School Board's first assignment of error.
{¶ 17} R.C.
{¶ 18} R.C.
{¶ 19} "(A) The hearing of such appeal shall proceed as in the trial of a civil action, but the court shall be confined to the transcript as filed pursuant to section
{¶ 20} "(1) The transcript does not contain a report of all evidence admitted or proffered by the appellant;
{¶ 21} "(2) The appellant was not permitted to appear and be heard in person, or by his attorney, in opposition to the final order, adjudication, or decision appealed from, and to do any of the following:
{¶ 22} "(a) Present his position, arguments, and contentions;
{¶ 23} "(b) Offer and examine witnesses and present evidence in support;
{¶ 24} "(c) Cross-examine witnesses purporting to refute his position, arguments, and contentions;
{¶ 25} "(d) Offer evidence to refute evidence and testimony offered in opposition to his position, arguments, and contentions;
{¶ 26} "(e) Proffer any such evidence into the record, if the admission of it is denied by the officer or body appealed from.
{¶ 27} "(3) The testimony adduced was not given under oath;
{¶ 28} "(4) The appellant was unable to present evidence by reason of a lack of the power of subpoena by the officer or body appealed from or the refusal, after request, of such officer or body to afford the appellant opportunity to use the power of subpoena when possessed by the officer or body;
{¶ 29} "(5) The officer or body failed to file with the transcript, conclusions of fact supporting the final order, adjudication, or decision appealed from; *153
{¶ 30} "If any circumstance described in divisions (A)(1) to (5)of this section applies, the court shall hear the appeal upon thetranscript and such additional evidence as may be introduced by anyparty. At the hearing, any party may call, as if on cross-examination, anywitness who previously gave testimony in opposition to such party." (Emphasis added.)
{¶ 31} Thus, R.C.
{¶ 32} In this case, Durham was not permitted to cross-examine the primary witness against her. The trial court held that Durham's termination was void ab initio based upon the School Board's failure to afford her due process prior to her termination.
{¶ 33} The School Board correctly argues that the trial court erred, because no right to confrontation and cross-examination attaches to a pre-termination hearing of a public employee. See OAPSE, AFSCME v.Lakewood City Sch. Dist. Bd. of Edn. (1994),
{¶ 34} In this case, Durham did not receive the opportunity to cross-examine witnesses prior to her termination. We agree with the School Board's assertion that it was not required to permit Durham to cross-examine witnesses in a pre-termination hearing. However, consistent with OAPSE and Loudermill, Durham possesses a right to cross-examine witnesses in a post-termination hearing. Moreover, pursuant to R.C.
{¶ 35} Thus, we find that the trial court erred when it declared Durham's termination to be void ab initio. Instead, the trial court should have scheduled a hearing to permit Durham to cross-examine witnesses and present evidence. Accordingly, we sustain the School Board's second assignment of error.
JUDGMENT REVERSED.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Pike County Court of Common Pleas to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as 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.
Evans, J. Harsha, J.: Concur in Judgment and Opinion.