James A. Telb v. Lucas County Board of County Commissioners
Court of Appeals No. L-13-1069
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
Decided: January 31, 2014
[Cite as Telb v. Lucas Cty. Bd. of Cty. Commrs., 2014-Ohio-343.]
Trial Court No. CI0201103305
Gerald R. Kowalski and Sarah Skow, for appellee.
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PIETRYKOWSKI, J.
{¶ 1} Plaintiff-appellant, James A. Telb, appeals the March 22, 2013 judgment of the Lucas County Court of Common Pleas which granted summary judgment in favor of appellee, Lucas County Board of County Commissioners. Because we find that there are no genuine issues remaining for trial, we affirm.
{¶ 3} On July 14, 2011, the Commissioners filed a motion for judgment on the pleadings arguing that appellant‘s contention that they had a “moral obligation” to reimburse his legal fees was legally unsupportable. In opposition, appellant referred to an Ohio appellate case which found that the county board of commissioners and the prosecuting attorney abused their discretion when they refused to apply to the common pleas court for reimbursement of the board of election employees legal fees incurred in their defense of criminal charges. State ex rel. Dreamer v. Mason, 189 Ohio App.3d 420, 2010-Ohio-4110, 938 N.E.2d 1078 (8th Dist.2010).
{¶ 4} Appellant also filed motion for leave to file an amended complaint for declaratory judgment. The Commissioners opposed the motion. On September 15, 2011,
{¶ 5} On August 1, 2012, the Commissioners filed a motion for summary judgment based on three legal arguments. First, they claimed that Ohio law prohibits reimbursement of a county officer‘s legal fees after the case has concluded. Next, appellant failed to comply with the “strict statutory requirements” for having the Commissioners approve outside counsel. And third, the federal charges against appellant could not be construed as a stemming from a “good-faith” attempt to perform his duties. In support of the motion, the Commissioners relied on appellant‘s deposition as well as the deposition of assistant prosecuting attorney Steven Papadimos.
{¶ 6} On August 3, 2013, appellant filed a motion for summary judgment contending that he was entitled to declaratory relief because the criminal charges arose from the performance of his official duties and he was acquitted. Appellant relied on the Dreamer decision as well as the Supreme Court of Ohio‘s decision on appeal. See State ex rel. Dreamer v. Mason, 129 Ohio St.3d 94, 2011-Ohio-2318, 950 N.E.2d 519. Appellant also relied on his and Papadimos’ deposition testimony. Briefs in opposition to the motions were filed.
{¶ 7} An oral hearing on the cross-motions was held on February 20, 2013. On March 22, 2013, the trial court granted the Commissioners’ motion for summary judgment and denied appellant‘s motion for summary judgment. The court held that
{¶ 8} On appeal, appellant raises the following assignment of error:
The trial court committed error when it granted summary judgment in favor of appellees by finding that appellant failed to comply with
R.C. 309.09(A) .
{¶ 9} We initially note that appellate review of a trial court‘s grant of summary judgment is de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Accordingly, we review the trial court‘s grant of summary judgment independently and without deference to the trial court‘s determination. Brown v. Scioto Cty. Bd. of Commrs., 87 Ohio App.3d 704, 711, 622 N.E.2d 1153 (4th Dist.1993).
{¶ 10} The statutory sections implicated in this action are
The prosecuting attorney shall be the legal adviser of the board of county commissioners, board of elections, all other county officers and boards, and all tax-supported public libraries, and any of them may require written opinions or instructions from the prosecuting attorney in matters connected with their official duties. The prosecuting attorney shall prosecute and defend all suits and actions that any such officer, board, or tax-supported public library directs or to which it is a party, and no county
officer may employ any other counsel or attorney at the expense of the county, except as provided in section 305.14 of the Revised Code.
{¶ 11}
The court of common pleas, upon the application of the prosecuting attorney and the board of county commissioners, may authorize the board to employ legal counsel to assist the prosecuting attorney, the board, or any other county officer in any matter of public business coming before such board or officer, and in the prosecution or defense of any action or proceeding in which such board or officer is a party or has an interest, in its official capacity.
{¶ 12} In his sole assignment of error, appellant argues that the trial court erroneously concluded that
{¶ 13} Appellant asserts that the outcome of this action is “determined” by the above-cited case of Dreamer, 129 Ohio St.3d 94, 2011-Ohio-2318, 950 N.E.2d 519. In Dreamer, the Ohio Supreme Court determined that the county board of elections employees were not “county officers” and, thus, were not entitled to reimbursement of
{¶ 14} In Dreamer, the relators were board of elections employees who were accused of not complying with the statutory provisions regarding a ballot recount. Id. at ¶ 3. Following their indictments they obtained independent counsel. Id. at ¶ 6. Counsel repeatedly requested that the elections board ask the respondents, county commissioners and the prosecuting attorney, to apply to the court of common pleas for authorization for them to employ him as legal counsel. Respondents did not apply to the court because they believed that the prosecutor could find that the relators’ conduct did not constitute a well-intended attempt to perform their official duties. Id. at ¶ 7.
{¶ 15} The appellate court disagreed noting that the affidavits demonstrated that the elections board committed to pay the relators’ legal fees if they were acquitted of the criminal charges. Further, an assistant county prosecutor informed the board members that the county would pay the legal fees if the relators were acquitted. Id. at ¶ 8. The proceedings concluded in September 2008, with no convictions. Id. at ¶ 38. Approximately one year later, relators commenced the mandamus action. Id.
{¶ 16} After initially determining that the relators met the definition of “officers” as provided under
{¶ 17} The final issue addressed by the court was whether the matter had been brought within a reasonable time. The court first noted that the respondents’ wrongful act continued throughout the litigation. Id. at ¶ 39. Distinguishing Ohio Attorney General Opinions which state that reimbursement is precluded after the conclusion of the legal action, the court noted:
[R]elators did not hire independent counsel merely on their own initiative. Relators relied on continuous support and representations from the BOE that their legal fees would be paid. Additionally, relators petitioned the BOE, who, in turn, petitioned respondents to apply for the appointment. In the end, the county refused to provide relators with advice, and respondents refused to make the appropriate application under
R.C. 305.14 . Id. at ¶ 46.
The court concluded that “under the limited circumstances” of the case, mandamus was the appropriate remedy. Id. at ¶ 51.
{¶ 19} In his deposition, appellant stated that he had two pre-indictment telephone conversations with the assistant prosecutor where the prosecutor indicated that he did not believe that the office could represent appellant due to the nature of the charges and that they would not provide private counsel. Following his acquittal, appellant‘s counsel wrote a letter to Assistant Prosecutor Steven Papadimos, dated December 10, 2011, requesting indemnification. Appellant met with the prosecuting attorney and Papadimos and informed them that he felt he should be reimbursed for his legal expenses. According to appellant, they indicated that they would speak with the Commissioners.
{¶ 20} Papadimos’ deposition testimony confirmed that early in the criminal matter appellant had contacted the prosecutor‘s office about representation. Papadimos stated that he informed appellant that he had never encountered a similar situation and that appellant should address it with the Commissioners.
{¶ 22} As noted in Dreamer, the Ohio Attorney General determined that ”
{¶ 23} Based on the foregoing, we find that because appellant neither requested, nor did the Commissioners or prosecuting attorney apply to the court of common pleas
{¶ 24} On consideration whereof, we find that substantial justice was done the party complaining and the judgment of the Lucas County Court of Common Pleas is affirmed. Pursuant to App.R. 24, appellant is ordered to pay the costs of this appeal.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J.
JUDGE
Arlene Singer, J.
JUDGE
Thomas J. Osowik, J.
JUDGE
CONCUR.
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.