Blair v. Sugarcreek Twp. Bd. of Trustees , 2011 Ohio 1725 ( 2011 )

[Cite as Blair v. Sugarcreek Twp. Bd. of Trustees, 2011-Ohio-1725.]
IN THE COURT OF APPEALS FOR GREENE COUNTY, OHIO
KELLY BLAIR :
Plaintiff-Appellant : C.A. CASE NO. 2010 CA 3
v. : T.C. NO. 06CV811
BOARD OF TRUSTEES : (Civil appeal from
OF SUGARCREEK TOWNSHIP, et al. Common Pleas Court)
Defendant-Appellee :
:
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OPINION
Rendered on the 8th day of April , 2011.
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DWIGHT D. BRANNON, Atty. Reg. No. 0021657 and MATTHEW C. SCHULTZ, Atty.
Reg. No. 0080142, 130 West Second Street, Suite 900, Dayton, Ohio 45402
Attorney for Plaintiff-Appellant
THOMAS C. MILLER, Atty. Reg. No. 0075960, Civil Division Chief, Greene County
Prosecutor’s Office, 55 Greene Street, First Floor, Xenia, Ohio 45385 and EDWARD J.
DOWD, Atty. Reg. No. 0018681 and DAWN M. FRICK, Atty. Reg. No. 0069068, One
Prestige Place, Suite 700, Miamisburg, Ohio 45342
Attorneys for Defendant-Appellee
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FROELICH, J.
{¶ 1} The essential facts of this case were set out in our opinion in a prior appeal.
Blair v. Board of Trustees of Sugarcreek Township, Greene App. No. 08CA16,
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2008-Ohio-5640. (Blair I) In that appeal by the Board, we reversed a judgment of the trial
court in which the court had found that the township trustees were prevented from
terminating Blair from his appointment as police constable without prior notice and hearing.
We found that Blair was not terminated as a police constable and remanded “the case for
further proceedings.”
{¶ 2} On remand, a magistrate found that Blair was not terminated from his
constable’s position, “but even if he was terminated, he would not be entitled to back pay for
that designation, because no compensation was attached to that position.” The magistrate
also stated that the “Township was not required to offer him a position in the police
department that he held prior to his appointment as chief.” Blair filed objections to the
magistrate’s decision. The trial court overruled his objections and dismissed Blair’s R.C.
Chapter 2506 appeal.
FIRST ASSIGNMENT OF ERROR
{¶ 3} “THE TRIAL COURT ERRED BY HOLDING THAT KELLY BLAIR HAD
NO RIGHT OF RETENTION AS A CERTIFIED POLICE OFFICER.
{¶ 4} “I. MR. BLAIR’S AMENDED NOTICE OF APPEAL WAS SUFFICIENT
TO RAISE HIS STATUS AS A CERTIFIED POLICE OFFICER AS A BASIS FOR HIS
APPEAL.
{¶ 5} “II. MR. BLAIR’S STATUS AS A CERTIFIED POLICE OFFICER
ENTITLES HIM TO REINSTATEMENT TO HIS LAST POSITION BEFORE
BECOMING TOWNSHIP POLICE CHIEF UPON HIS REMOVAL AS CHIEF.”
SECOND ASSIGNMENT OF ERROR
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{¶ 6} “THE TRIAL COURT ERRED BY HOLDING THAT THIS COURT OF
APPEALS HAD HELD THAT KELLY BLAIR WAS NOT TERMINATED FROM HIS
POSITION AS POLICE CONSTABLE WITH THE SUGARCREEK TOWNSHIP POLICE
DEPARTMENT.”
THIRD ASSIGNMENT OF ERROR
{¶ 7} “THE TRIAL COURT ERRED BY HOLDING THAT THE POSITION OF
POLICE CONSTABLE WITH THE SUGARCREEK TOWNSHIP POLICE
DEPARTMENT WAS AN UNPAID POSITION.”
{¶ 8} We previously held:
{¶ 9} “It is undisputed that Blair served as chief of police at the pleasure of the
Trustees, R.C. 505.49(B), and therefore the Trustees could remove Blair from that position
as they did, without prior notice or hearing. Courts have held that, in that event, any
separate status the employee enjoys as a certified police officer is nevertheless subject to a
relevant notice and hearing requirement. Staley v. St. Clair Twp. Bd. Of Trustees, (Dec. 18,
1987), Columbiana App. No. 87-C-44. Absent a satisfaction of such requirements, the
employee must be retained in that other position. Smith v. Fryfogle (1982), 70 Ohio St.2d
58.” Blair, supra, at ¶16.
{¶ 10} The notice and hearing requirements to which we referred are codified in
R.C. 509.01(B), which provides for designation as police constable persons who are certified
as having completed an approved basic training program, and that such constables may be
removed or suspended only under the conditions and by the procedures in R.C. 505.491 to
505.495. Those sections set out basic due process requirements of notice and opportunity to
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be heard and require findings that support the action taken. The parties agreed with the
magistrate at the March 2007 hearing that its purpose was to take “evidence relating to
whether or not Kelly Blair is a constable or police chief.” (Tr. pg. 3). The trustees,
pursuant to R.C. 505.49(B)(2), chose to appoint Blair chief and, later, to designate him as a
constable (he had not previously been designated as constable). His position as a constable
does not exist necessarily because he was appointed chief, like some sort of emolument.
Regardless, since R.C. 509.01(B) and R.C. 505.49(B)(3) are identically worded, it does not
matter whether his designation as a police constable was pursuant to R.C. 509.01(B) or R.C.
505.49(B)(2). He still is entitled to the procedures set forth in R.C. 505.491 and 505.495
before he can be terminated as a constable. It is not disputed that Blair was not provided
with such statutory due process.
{¶ 11} This, however, is not the issue before us since we found in Blair I, at ¶17, that
Blair was never terminated as a constable. Thus we reversed the magistrate and court’s
decisions that he was terminated, but that it had been done improperly for failure to comply
with R.C. 509.01.
{¶ 12} On remand, the magistrate, probably out of an abundance of caution, allowed
evidence whether Blair was constructively discharged as a constable, even if he had not been
discharged as a constable as a result of a formal Resolution by the trustees. The arcane
intricacies of bar, res judicata, collateral estoppel, claim or issue preclusion, or law of the
case aside, the question of whether Blair had been terminated - by any means - has been
argued and decided. To the extent Appellant then or now argues that he had been
constructively terminated, as opposed to a termination by a Township Resolution, the
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question was resolved by Blair I. Appellant’s Second Assignment of Error is overruled.
{¶ 13} Further, based on the record of the hearings, we cannot say that the magistrate
and judge’s finding that no compensation attached to the constable position was an abuse of
discretion. Appellant’s Third Assignment of Error is overruled.
{¶ 14} The First Assignment of Error asserts that the court after remand erred by not
finding that Blair was entitled to reinstatement as a certified police officer with the township
when he was terminated as chief of police. The Appellant argues that any automatic
surrender, upon being appointed chief, of the tenure and due process protections that a
certified police officer enjoys creates a “destructive disincentive for experienced police
officers ever to accept such a promotion.” (Appellant’s Brief, p. 14). He cites Staley v. St.
Clair Township Board of Trustees (December 15, 1987), Columbiana County No. 87-C-44
for the principle that “a patrolman, other police district employee, or police constable. . .may
be removed or suspended only under the conditions and by the procedures. . .set forth in the
Revised Code” which, it is agreed, were not followed in Blair’s case.
{¶ 15} The first part of the First Assignment states that Blair’s “Amended Notice of
[Administrative] Appeal was sufficient to raise his status as a certified police officer.” His
brief, pg. 7, argues that “paragraph 8, references both Mr. Blair’s status as a constable and a
certified officer. . .” and that he was “removed from office in violation of the law.” This,
according to the brief, “is, in a nutshell, the entire purpose of Kelly Blair’s appeal after
remand.”
{¶ 16} Blair’s Amended Notice of Administrative Appeal appeals “from the decision
of the Trustees enforced on September 18, 2006, terminating Appellant’s employment.” As
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we stated in Blair I, Resolution 2006-09-18-12, adopted on September 18, 2006, refers to
Blair’s service “as an unclassified employee of Sugarcreek Township in the capacity of
Chief of Police since April 25, 1998. . .[and determines] to remove Kelly E. Blair as Chief of
Police.” Id. ¶15. The only decision on September 18, that Blair could administratively
appeal, therefore, was his termination as chief. Believing the Township had also terminated
him as a constable, Blair appealed that action (and we subsequently held that he was not
terminated as a constable).
{¶ 17} Further, in his Amended Notice of Administrative Appeal, paragraph 7, he
states he “is a police constable who was awarded a certificate attesting to his satisfactory
completion of an approved basic training program. . .[and thus] he was named constable by
Sugarcreek Township Trustees in 1998. . .[and that he] has been removed from office. .
.without following the procedures set forth in the Ohio Revised Code for constables.”
Paragraph 8 is identical with the exception of the last sentence which alleges that he “has
been terminated. . .” whereas paragraph 7 says he “has been suspended and will be
terminated. . .”
{¶ 18} There is no reference in the Notice to “certified police officer” or “police
officer.” It does mention that he completed a basic training program, but such completion
does not ipso facto make one a “certified police officer,” or even a “police officer,” let alone
one that was employed and terminated as such by the township, and is just as consistent with
his appealed termination as a constable. Similarly, the allegation that he was wrongfully
“removed from office” can only be read as referencing his position as a “police constable.”
A further indication of grounds of the original administrative appeal is that at the 2007
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hearings, Blair testified as to his belief that when he became chief he gave up any position in
the classified service as a certified police officer employee of the township. He stated that
he believed “that becoming a constable gave [him] job security with the township” (Tr. pg.
34) and that “every chief I worked for told me to make sure that if you become chief you
become a constable. That is the only protection you have.” (Tr. pg. 34).1 Thus, if we
stopped here, we would hold that Blair did not administratively appeal anything regarding
his status as a former certified police officer with Sugarcreek Township.
{¶ 19} The confusion arises from dicta in Blair I: “Blair argues that he enjoys
certain rights as a certified police constable and/or former certified police officer of which
the Trustees’ action deprived him. That contention involves issues the trial court did not
reach. Blair may present evidence on those matters in the course of future proceedings.”
Id. ¶18. Construing this broadly, the parties, on remand, presented evidence and briefs
regarding whether Blair had any rights as a “former certified police officer.”
{¶ 20} Removal or suspension of a “certified police office” is governed by R.C.
505.49(B)(3):
{¶ 21} “Except as provided in division (D) of this section, a patrol officer, other
police district employee, or police constable, who has been awarded a certificate attesting to
the satisfactory completion of an approved state, county, or municipal police basic training
program, as required by section 109.77 of the Revised Code, may be removed or suspended
only under the conditions and by the procedures in sections 505.491 to 505.495 of the
1
This testimony was “clarified” in the 2009 hearings when Appellant
testified that his belief that he had the right to return to his old job figured into his
decision to take the job as chief (April 30, 2009, transcript pg. 35).
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Revised Code. Any other patrol officer, police district employee, or police constable shall
serve at the pleasure of the township trustees. In case of removal or suspension of an
appointee by the board of township trustees, that appointee may appeal the decision of the
board to the court of common pleas of the county in which the district is situated to
determine the sufficiency of the cause of removal or suspension. The appointee shall take
the appeal within ten days of written notice to the appointee of the decision of the board.”
{¶ 22} R.C. 505.49(C)(1) provides that division (B) does not apply to larger
townships that have a civil service commission; instead such townships are required to
comply with the procedures in Chapter 124 of the Revised Code. R.C. 505.49(C)(2) then
provides that, in such a township, a person appointed as chief who is removed or who
resigns “shall be entitled to return to the classified service on the township police
department, in the position that person held previous to the person’s appointment as chief of
police.” Both parties agree that Sugarcreek is not such a township; therefore, R.C.
505.49(B)(3) governs the return of a certified police officer to Sugarcreek Township.
{¶ 23} If the certified police officer employed by a township as such who is
appointed chief is always still a certified police officer employed by a township as such even
when employed as chief of police, there is no need for R.C. 505.49(C), regardless of the size
of the township. The statute gives a right to a chief in larger townships to return to his or
her position “held previous” which implies that as chief he or she does not hold the position.
Further, even this right is not imposed by the legislation on smaller townships without a
civil service commission.
{¶ 24} To the extent the Assignments of Error raise issues concerning Blair’s alleged
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current status as a “certified police officer,” Appellant was a former certified police officer
employee with the township and is not automatically entitled to return to the classified
service in the position that he held previous to his appointment as chief.
{¶ 25} The judgment of the trial court will be affirmed.
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FAIN, J.,
GRADY, P.J., dissenting:
{¶ 26} In the prior appeal, Blair v. Board of Trustees of Sugarcreek Township,
Greene App. No. 08CA16, 2008-Ohio-5640 (“Blair I”), we found that, Plaintiff-Appellant
Blair had not been removed or suspended from his position as a police constable. That
finding reflected the fact that the resolution of Defendant-Appellee Board of Trustees of
Sugarcreek Township (the “Board”) removing Blair from his position as chief of police
made no reference to Blair’s position as a constable.
{¶ 27} On remand, the trial court found that Blair, even if he was not terminated
from his constable’s position, has no right that can be vindicated by proceedings pursuant to
R.C. 505.491 to 505.495, to which Blair insists he is entitled pursuant to R.C. 509.01(B),
because Blair benefitted from no compensation or other emolument of office from his
constable’s position. In the present appeal, the Board agrees with that finding, and points
out that Blair’s designation as a constable was done by the Board pursuant to R.C.
505.49(B)(2), adjunct to his appointment as chief of the township police district. The Board
argues that Blair’s removal as chief therefore encompassed his removal from his constable’s
position.
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{¶ 28} R.C. 509.01(B) provides that persons designated police constables who also
hold a training certificate, as Blair does, “may be removed or suspended only under the
conditions and by the procedures in sections 505.491 to 505.495 of the Revised Code.” The
adjunct designation of police chiefs as constables authorized by R.C. 505.49(B)(2)
incorporates the protections of that section by reference with respect to removal or
suspension of constables designated pursuant to R.C. 505.49(B)(2). Those same protections
with respect to suspension or removal also appear in R.C. 505.49(B)(3).
{¶ 29} R.C. 505.491 states:
{¶ 30} “Trustees to prefer charges against delinquent police personnel
{¶ 31} “Except as provided in division (D) of section 505.49 or in division (C) of
section 509.01 of the Revised Code, if the board of trustees of a township has reason to
believe that a chief of police, patrol officer, or other township police district employee
appointed under division (B) of section 505.49 of the Revised Code or a police constable
appointed under division (B) of section 509.01 of the Revised Code has been guilty, in the
performance of the official duty of that chief of police, patrol officer, other township police
district employee, or police constable, of bribery, misfeasance, malfeasance, nonfeasance,
misconduct in office, neglect of duty, gross immorality, habitual drunkenness, incompetence,
or failure to obey orders given that person by the proper authority, the board immediately
shall file written charges against that person, setting forth in detail a statement of the alleged
guilt and, at the same time, or as soon thereafter as possible, serve a true copy of those
charges upon the person against whom they are made. The service may be made on the
person or by leaving a copy of the charges at the office or residence of that person. Return of
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the service shall be made to the board in the same manner that is provided for the return of
the service of summons in a civil action.”
{¶ 32} In Smith v. Fryfogle (1982), 70 Ohio St.2d 58, the Supreme Court considered
the predecessor version of R.C. 505.49(C)(2), which contained the same reference to the
protections afforded by R.C. 505.491 to 505.495. Smith distinguished the “quasi-judicial”
action of a board of trustees in removing or suspending a police chief for the causes in R.C.
505.491 from the board’s exercise of its “executive function” when removing a chief who
serves at the pleasure of the board, without cause. Smith states: “R.C. 505.491 applies to
the chief, among others, but only when the trustees have reason to believe the officer is
guilty of neglect of duty or other named offense.” Id., at 60. (Emphasis supplied.)
{¶ 33} The statutory provision that township chiefs of police serve at the pleasure of
the board of trustees in R.C. 505.49(B)(2) does not, by its terms, extend to constables.
However, the holding in Smith is not limited to removal or suspension of chiefs. With
respect to the applicability of R.C. 505.491 to 505.495, Smith applies to chiefs, “among
others.” Those others reasonably include any other employee of the police district,
including police constables. As a result, the quasi-judicial causes and procedures in R.C.
505.491 to 505.495 apply to the removal or suspension of such persons only when done for
cause, specifically the causes in R.C. 505.491. Any other removal or suspension of an
officer by the board is an executive function, to which those sections have no application.
{¶ 34} Blair’s contention that his removal from his position as police constable,
whether actual or constructive, may only be done pursuant to R.C. 505.491 to 505.495, is
inconsistent with and contrary to the holding in Smith. Furthermore, it could lead to absurd
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results the General Assembly never intended. R.C. 505.49(B)92) directs a township board
of trustees to “appoint a chief of police for the district, determine the number of patrol
officers and other personnel required by the district, and establish salary schedules and other
conditions of employment for the employees of the police district.” That mandate would
authorize a board to order a reduction in force for fiscal reasons, terminating some of its
employees. To limit the board’s power to do that by requiring the board to then comply
with the quasi-judicial procedures in R.C. 505.491 to 505.495 governing removal or
suspension for cause would unreasonably hamstring the board in its exercise of the executive
authority conferred by R.C. 505.49(B)(2).
{¶ 35} Having said all of that, we remain confronted by the Board’s failure to
terminate Blair from his constable’s position. Notwithstanding the fact that Blair was so
designated pursuant to R.C. 505.49(B)(2), adjunct to his appointment as chief, Blair’s
termination as chief did not likewise terminate his constable’s position. Each position is
recognized by statute, and each therefore reasonably requires a termination from that
position to be effective. The Board’s failure to terminate Blair from his constable’s position
not only leaves him in a state of limbo in that regard. It also presents a risk of liability for
the Board should Blair exercise the remaining authority the Board conferred on him in some
improper way. It could conceivably also work to the Board’s detriment by extending the
basis for calculating Blair’s retirement benefits and the Board’s contribution to his public
retirement account.
{¶ 36} For the foregoing reasons, I would remand the case to the Board for the
purpose of considering whether the Board should adopt a resolution terminating Blair from
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his designated position as a police constable.
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Copies mailed to:
Dwight D. Brannon
Matthew C. Schultz
Thomas C. Miller
Edward J. Dowd
Dawn M. Frick
Hon. Michael Buckwalter