IN TT-IEI SUPREME COURT OF OHIO
State ex reL Danny E. Lyons, Case No. 07-1875
Relator/Appellee, On Appeal from the Athens County Court of Appeals, Fourth Appellate District
The Village of Chauncey, Ohio and Pearl Henry
Respondents/Appellants.
REPLY BRIEF OF APPELLANTS' THE VILLAGE OF CHAUNCEY, OHIO AND PEARL HENRY
Robert J. Shostak (0045216) (COUNSEL OF RECORD) Solicitor for the Village of Chauncey 8 North Court Street, Suite 506 Athens, Ohio 45701 (740) 593-5828 (tele) (740) 594-6446 (fax)
COUNSEL FOR APPELLANTS, THE VILLAGE OF CHAUNCEY, OHIO AND PEARL HENRY
David J. Winkelmann (0063806) (COUNSEL OF RECORD) Biddlestone, Winkelmann, & Bradford Co., LPA 8 North Court Street, Suite 308 Athens, Ohio 45701 (740) 592-6399 (tele)
COUNSEL FOR APPELLEE, STATE ex rel. DANNY E. LYONS
i".WY 05 If'G^' ULERK f)(= GUURT ^-----.,,.-SUPETEM^ CUU4T + f^F OHIO TABLE OF CONTENTS
TABLE OF AUTHORITIES ...... :...... ui
COUNTER STATEMENT OF FACTS ...... 1
ARGUMENT ...... 2
Proposition of Law A mayor of a statutory viRage is authorized to initiate removal proceedings for niisconduct in office by a village council member pursuant to the grant of authority contained in R. C. 733.35... 2
POWER. OF SELF-GOVERNMENT ...... 2
NINTH DISTRICT COURT OF APPEALS IN ACCORD ...... 4
CONCLUSION ...... 5
PROOF OF SERVICE ...... 6
ii TABLE OF AUTHORITIES
CASES:
Buckeye Community Hope Foundation v. Cuyahoga Falls, (1998), 82 Ohio St 3d 539 ...... 3
Beachwood v. Cuyahoga Cty Bd OfElections, (1958), 167 Ohio St 369, 370-71 ...... 3
Reese v. Village of Boston Heights, (Jan 22, 1992) Summit App. No. 15156, unreported ...... 4
Roseman v. Village OfReminderville (Ninth Dist. 1984) 14 Ohio App. 3d 124,470 N.E. 2d 224 ...... 4
Stidham v. Village Of New Miami, (2008) 145 Ohio Misc 2d 92, 883 N.E. 2d 1128 ...... 4
OHIO CONSTITUTION:
Article XVIII §3 ...... 2
STATUTES:
R.C. 3.07 ...... 3
R.C 731.09 ...... 2
--R.C. 731.13 ...... _.._..._ ...... -._. _._-.-....-... . _....-.-...... --2
R.C. 733.35 ...... 1, 2, 3, 4, 5
R.C. 733.72 ...... 2,3
iii Counterstatement of Facts
Appellee Danny E. Lyons recites a litany of irrelevant facts in an effort to
sway this Court to sympathize with Appellee. However, this Court deals only with
relevant facts which bear on the legal issue presented for determination. Indeed, it
is important to note that Appellee Lyons presented no evidence at the evidentiary hearing provided to him under the process used by the Mayor and Chauncey
Village Council to remove him.
It was on the basis of the facts Village Council had before it that lead to
Lyons' removal, not some nefarious conspiracy woven in Lyons' imagination.
Those facts are set forth in the record and need not be repeated here.
Had Lyons. refuted the serious charges against him recited in the Mayor's letter to Council, the result may have been different. Thus, the facts that lead
Council to remove Lyons stand unrefuted and fully support their decision.
-The question presented -to tliis Court is whether the statute atlt C^ 73335 - authorized the Mayor to initiate removal proceedings before Village Council against Lyons, a member of Village Council.
1 Renly Argument in Support of Proposition of Law
Proposition of Law: A mayor of a statutory village is authorized to initiate removal proceedings for niisconduct in office by a village council member pursuant to the grant of authority contained in R.C. 733.35.
Appellee argues that the removal remedy provided to electors in R.C. 733.72 preempts the removal remedy provided to the mayor and council in R.C. 733.35 because of the exception clause in 733.35. That argument ignores the opening sentence of R.C. 733.35 which grants supervisory authority to the mayor over
"each department and the officers provided for in Title VII of the Revised Code."
Since members of council are provided for in Title VII, for example in R.C. 731.09
(which empowers elected members to hold office for a term of four years) and
R.C. 731.13 (which authorizes council to fix compensation for "elective officers" in the Village which includes members of council), the statute necessarily includes within its purview persons who hold the office of member of council such as
Lyons.
Power of Self-Government
The Home Rule amendment to the Ohio Constitution provides additional support for the proposition. Article XVIII § 3 of the Ohio Constitution grants to
2 municipalities "all powers of self-government...." It is submitted that one. such
power is the power of the legislative authority to regulate the conduct of its own
council members.
It is not inconceivable that the legislature intended to. provide a self-
regulatory mechanism to municipalities as part of an expansive view of Home Rule
authority when R.C. 733.35 was enacted. This constitutional grant of self-
governing removal power is in addition to and not in conflict with the removal
authority bestowed on the probate courts by R.C. 733.72 (upon initiation of village
electors) and by the removal power granted to the courts of common pleas by R.C.
3.07 et seq. (upon initiation of electors or the governor). This construction is consistent with the liberal advances of the principle of Home Rule embraced by this Court in dealing with local legislation. See Buckeye Community Hope
Foundation v. Cuyahoga Falls (1998), 82 Ohio St. 3d 539; Beachwaod v.
Cuyahoga Cty. Bd. Of Elections (1958), 167 Ohio St. 369, 370-71, "the power of local self-government granted to municipalities by Article XVIII relates solely to the government and administration of the internal affairs of the municipality, and, in the absence of statute conferring a broader power, municipal legislation must be confined to that area."
3 While R.C. 733.35 is not a locally enacted law, it is a broad power grant of
an administrative self-regulatory process initiated by the mayor and tried by
council on the municipal level of government as an alternative to the removal
power of the courts. It does not conflict with the removal of elected officers by
initiation of a court proceeding but merely provides an alternative method to the
internal governance by local governnient of a municipality. See Dissent, Opinion below.
Ninth District Court of Appeals in Accord
In Roseman v. Village of Reminderville (Ninth Dist. 1984), 14 Ohio App. 3d
124, 470 N.E. 2d 224, the Court of Appeals for Summit County overruled an
assignment of error alleged by a removed council member of the Village of
Reminderville which challenged the invocation of removal under R.C. 733.35 by the acting mayor. The Court held in Roseman that removal proceedings against a sitting council member could be commenced by the mayor, either acting or elected, under R.C. 733.35. Id at 128. See in accord Reese v. Village of Boston Heights
(Jan. 22, 1992), Summit App. No. 15156, 1992 WL 10150. (unreported) Copy attached hereto.
Notwithstanding the Reese v. Village of Boston Heights and Roseman decisions validating Appellants' proposition of law, Appellants note that
4 Honorable Judge Charles Pater of the Court of Common Pleas of Butler County
disagrees with the Ninth District Court of Appeals as expressed in his published
opinion in Stidham v. Village of New Miami (2008), 145 Ohio Misc 2d 92, 883
N.E. 2d 1128, 2008 Ohio 458. Judge Prater opines that both Roseman and Reese were incorrectly decided because in his view, R.C. 733.35 does not apply to a member of the legislative authority.
Appellants disagree with the opinion in Stidham and with the opinion of the
Court of Appeals of Athens County in the case sub judice. Appellants argue that
Reese and Roseman correctly decided that R.C. 733.35 provides an alternate remedy to the remedies in R.C. 733.72 or in R.C. 3.08.
Conclusion
Appellants argue that the statute providing a removal remedy of a council member under R.C. 733.35 to the mayor and council does not conflict with other remedies for removal of municipal officials which can be initiated by electors in the court of common pleas or the probate court.
Appellants further submit that the authority of a village council to self- regulate its own proceedings and its own members' conduct comports with the constitutional grant of self-governance to Ohio municipalities. Appellants urge the
5 Court to affirm the Appellants' proposition of law.
Robert J. Shostak, Counsel of Record Solicitor for the Village of Chauncey COUNSEL FOR APPELLANTS, THE VILLAGE OF CHAUNCEY, OHIO, AND PEARL HENRY
PROOF OF SERVICE
I certify that a copy of this Memorandum in Support of Jurisdiction of Appellant The Village of Chauncey, Ohio, et al. was sent by ordinary U.S. mail to counsel for appellees, David J. Winkelmann of Biddlestone, Winkelmann, & Bradford., LPA, 8 North Court Street, Suite 308, Athens, Ohio 45701 on May ,-2008.
COUNSEL FOR APPELLANTS, THE VILLAGE OF CHAUNCEY, OHIO, et al.
6 APPENDIX
Unreported Case:
Reese v. Village of Boston Heights (Jan. 22, 1992), Summit App. No. 15156, unreported.
7 Not Reported in N.E.2d Page 1 Not Reported in N.E.2d, 1992 WL 10150 (Ohio App. 9 Dist.) (Cite as: Not Reported in N.E.2d, 1992 WL 10150)
IP tion of four of the charges. Consequently, council Reese v. Village of Boston Heights voted to remove Reese from office. Ohio App. 9 Dist.,1992. Only the Westlaw citation is currently available. Pursuant to R.C. Chapter 2506, Reese appealed council's decision to the court of common pleas. CHECK OHIO SUPREME COURT RULES FOR The trial court reversed council's removal decision, REPORTING OF OPINIONS AND WEIGHT OF finding that it was not supported by the evidence LEGAL AUTHORITY. and that Reese had been denied due process.
Court of Appeals of Ohio, Ninth District, Summit The village appeals, raising three assignments of er- County. ror. Reese also raises four cross-assignments of er- Sherril L. REESE, Plaintiff-Appellee, ror. v. VILLAGE OF BOSTON HEIGHTS, et al., Defend- Assignment of Error I ants-Appellants. No. 15156. "The trial court erred in finding that charges two, three and four as specified in the notice of Septem- Jan. 22, 1992. ber 27, 1989, and brought against Sherril L. Reese Apptal from Judgment entered in the Common by the Mayor of the Village of Boston Heights, Pleas Court County of Summit, No. CV 89 11 were unsupported by the preponderance of substan- 3506. tial, reliable and probative evidence under R.C. 2506.04." Thomas A. Kondzer, Westlake, for plaintiff. Richard S. Kasay, Cuyahoga Falls, for defendants. Cross-Assignment of Error I DECISIONAND JOURNAL ENTRY "Charge 6(C) was not supported by the evidence." *1 This cause was heard upon the record in the trial The council found Reese in violation of the follow- court. Each error assigned has been reviewed and ing charges: the following disposition is made: QUILLIN, Presiding Judge. . ® 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. Not Reported in N.E.2d Page 2 Not Reported in N.E.2d, 1992 WL 10150 (Ohio App. 9 Dist.) (Cite as: Not Reported in N.E.2d, 1992 WL 10150) thereby endangering the emergency communica- The bills for lawn care were truly recurrent, and tions of the village. Reese herself admitted that she had refused to pay these bills. She claimed she had withheld payment because the pool manager had informed her of a "6.C. 1988 Annual Report: problem with the lawn care. It was within council's role as trier of fact to pass on Reese's credibility "1. Although required to be submitted to the State and either accept or reject her explanation. See of Ohio by Ohio Revised Code Section 117.38, no State v. DeHass (1967), 10 Ohio St.2d 230, para- 1988 Annual Report was provided by the Clerk- graph one of the syllabus. Treasurer on September 20, 1989, and was never filed." According to the bills from Village Lawn Mainten- ance, this account had carried a past due balance for Our review of this case does not involve a determ- several months. Two monthly payments of $745 inationas to the weight of the evidence. The in- were made, neither of which covered the outstand- quiry by this court is limited to whether, as a matter ing balance, which continued to grow. The council's of law, we can say that there did exist a preponder- conclusion that Reese had refused and neglected to ance of reliable, probative and substantial evidence pay recurrent bills was supported by a preponder- to support oouncil's finding that Reese had violated ance of reliable evidence. these four charges. Dudukovich v. Housing Author- Charge 4 was also supported by a preponderance of tty (1979), 58 Ohio St.2d 202, 208. evidence. In a notice dated July 28, 1989, Mobile We cannot say that the trial court erred in fmding Comm informed the village that its pager service that charge 2 was not supported by a preponderance would be intermpted unless Mobile Comm received of evidence. There was substantial evidence to sup- payment for the past due balance of $99 by August port council's conclusion that Reese had neglected 15. Reese testified that she had delayed the pay- to supply financial statements, but there was no ment at the direction of the mayor. She further testi- evidence that she ever refused to do so. The testi- fied that she did make a payment before the August mony of both Reese and Busko indicated that Reese 15, 1989 deadline. However, the service interrup- did not prepare financial statements, or supply them tion notice demanded full payment of $99, yet the to the mayor or council. However, there was no September bill reflected a payment of only $49.50 evidence that she was required to do so. In fact, in the month of August. The current charges for both witnesses testified that when asked, Reese did September brought the balance back up to $99. supply financial information, although not in the Reese testified that the pagers were in fact mmed form of financial statements. off. She admitted that the pagers had been turned off because the bill had not been paid, and the may- *2 However, council's conclusion that Reese had or had complained to her about the situation. committed the violations in charges 3 and 4 was su po eahy a preponderance of reliable evidence. T-he-triai-court-found-thaftherewaraufftcletit evtd^ Itis true that most of the bills supporting charge 3 ence to support council's finding that Reese had were one-time bills, and not technically "recurrent." failed to file the 1988 Annual Report as alleged in However, each was left unpaid for several months, charge 6C. We agree. even though two of the bills specified that payment Reese contends that this charge was supported was due within the month. Reese also testified that solely by an auditor's report which was inadmiss- she had received phone calls concerning past due ible hearsay, and thus was not supported by reliable bills. evidence. Even if the report were inadmissible, 0 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. Not Reported in N.E.2d Page 3 Not Reported in N.E.2d, 1992 WL 10150 (Ohio App. 9 Dist.) (Cite as: Not Reported in N.E.2d, 1992 WL 10150) Reese's own testimony supported council's finding mitted to present witnesses in her defense. on this charge. Reese admitted that the 1988 Annu- However, Reese was allowed to testify in her own al Report was due on March 31, 1989, but she still defense. The only witness she was not allowed to had not filed it as of October 11, 1989. present was Gene McKenna, the attorney represent- ing the village in these proceedings. Reese intended Accordingly, the first assignment of error is sus- to elicit testimony from McKenna conceming tained in part and overruled in part. The first cross- Reese's contention that the mayor had brought these assignment of error is overruled. charges because of his personal bias against Reese. This would be of questionable relevance. Her ques- Assignment of Error II tioning of McKenna would have concetned state- ments allegedly made by the mayor to a police of- "The trial court erred in finding that Sherril L. ficer and other individuals. Reese claimed that Reese was deprived of her due process rights at the McKenna had heard these statements, and that the hearing on October 11, 1989, thus rendering the conversation was tape recorded. Reese's only effort council of the Village of Boston Heights' decision to present this evidence was to attempt to call McK- subject to reversal under R.C. 2506.04." enna. There is nothing in the record to suggest that she tried to present the tape or any other witnesses *3 The trial court reviewed the transcript and con- who heard these statements. Thus, Reese has failed cluded that Reese had been denied due process. The to demonstrate that she was prejudiced by McK- trial court based this legal conclusion on three fac- enna's failure to testify. tual conclusions: 1) council relied on evidence not presented at trial, 2) Reese was not permitted to Finally, the trial court concluded that council was present witnesses in her defense, and 3) council was not an impartial tribunal because McKenna was act- not an impartial tribunal. ing as the village's attotney and was also advising council. However, we find no impropriety in McK- The trial court cited no authority to support its con- enna's dual role in these proceedings. MeKenna clusion that Reese had been denied due process. In merely advised council regarding the legal require- fact, the only case the court did cite was Roseman ments of these proceedings. He did not participate v. Reminderville (1984), 14 Ohio App.3d 124, in the deliberations, nor is there anything in the re- which actually supports a contrary conclusion. As cord to suggest that he exercised any influence over we stated in Roseman," * * * the hearing must council's decision. The trial court's conclusion that merely afford the accused the opportunity to hear council merely followed McKenna's instructions the charges against him and defend against those and did not act as an impartial tribunal is unfoun- accusations. * **."Id. at 127. ded. In fact, Councilman Busko even made an extra gesture to ensure the integrity of these proceedings The trial court concluded that there was insufficient when he abstained from the vote because he had evidence to support council's conclusions regarding been awitness. See Roseman v. Reminderville,__ ------charges-2, 3-and 4, and therefore; that-counuilznust- supra (Two councilmen who testified at hearing have relied on other evidence. However, because also participated in vote to remove clerk-treasurer). we have detennined that there was sufficient evid- The second assignment of error is sustained. ence to support council's findings on charges 3 and 4, we will assume that council's decision was based on this evidence. There is nothing in the record to Assignment of Error III support a conclusion to the contrary. *4 "The trial court erred in reversing the decision The trial court also found that Reese was not per- of the council of the Village of Boston Heights to 0 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. Not Reported in N.E.2d Page 4 Not Reported in N.E.2d, 1992 WL 10150 (Ohio App. 9 Dist) (Cite as: Not Reported in N.E.2d, 1992 WL 10150) remove Shevil L. Reese from the position of clerk- bate judge * * * by any elector * * *, signed and treasurer when the trial court had found one of the approved by four other electors thereof, the judge charges brought against Reese to be supported by shall forthwith issue a citation to any person the preponderance of substantial, reliable, and pro- charged in the complaint ***. The complaint shall bative evidence under R.C. 2506.04." charge any of the following: The trial court overruled council's decision because it found that Reese " * * * was denied her due pro- cess rights and council did not consider substantive, "(C) That * * * an offrcer * * * has been guilty of reliable and probative evidence in arriving at its de- misfeasance or malfeasance in office." cision. * * *." In light of the fact that we have now " * * *:' [Emphasis added.] reversed the trial court's determinations regarding the sufSoiency of the evidence and due process vi- As the trial court correctly concluded, this language olations, council's decision to remove Reese as does not mandate such a procedure for the removal clerk-treasurer must be reinstated. of elected officers. Rather, it provides an additional procedure so that electors, as well as the mayor, Council's removal was supported by its findings have the ability to initiate removal proceedings. that charges 3, 4 and 6C had been proved. The as- signnient of error is sustained. Furthermore, we have previously impliedly held that R.C. 733.35 does give a village council juris- Cross Assignment of Error II diction to remove an elected clerk-treasurer from office. Roseman, supra. The second cross-as- "The action of the Council of the Village of Boston signment of error is overruled. Heights purporting to remove Sherril L. Reese as clerk-treasurer is void ab initio because the council Cross-Assignment of Error III lacked jurisdiction to remove Ms. Reese from her elected position as clerk-treasurer." "Assuming arguendo that the Village of Boston Heights had jurisdiction to proceed under Ohio Re- According to R.C. 733.35, vised Code section 733.35 the proceedings under "*** When the mayor has reason to believe that section 733.35 were improperly commenced." the head of a department or such officer has been *5 Reese contends that council did not follow the guilty, in the performance of his official duty, of * proper notice procedure prior to the special meeting * * misfeasance, malfeasance, nonfeasance, * * * at which the hearing was held. However, she admit- he shall immediately file with the legislative au- ted that she received notice. Thus, Reese has failed thority, except when the removal * * * is otherwise to demonstrate how the notice procedure prejudiced provided for, written charges against such person, * her in any way. -- * *[-.'=[-Emphasis-added:]---- . The remainder of Reese's argument relies on the Reese contends that the action to remove her from lack of evidence that certain procedural require- office should not have been brought under R.C. ments were followed. However, because Reese 733.35, because the removal was "otherwise raised this assignment of error, she has the burden provided for" by R.C. 733.72(C). R.C. 733.72 of supplying us with a record which demonstrates states in part, the error. See Volodkevich v. Volodkevich (1989), "When a complaint under oath is filed with the pro- 48 Ohio App.3d 313, 314. We are unable to find m 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. Not Reported in N.E.2d Page 5 Not Reported in N.E.2d, 1992 WL 10150 (Ohio App. 9 Dist.) (Cite as: Not Reported in N.1;.2d,1992 WL 10150) evidence in the record of any procedural irregularit- ies. Therefore, we must presume regularity in the proceedings below. The third cross-assignment of error is ovemiled. Cross-Assignment of Error IV "Charge 3, failure to pay recurrent bills, did not give sufficient notice of the charge; therefore, it cannot provide the basis for removal of the clerk- treasurer." Reese contends that she was not given sufficient notice of the specifics of this charge. Thus, she ar- gues, she was unable to prepare an adequate de- fense. However, Reese did give testimony regard- ing each one of the bills at issue. Tlierefore, it ap- pears that she received sufficient notice to prepare her defense. Moreover, Reese has failed to make any showing of prejudice. The fourth cross- assignment of error is overruled. The judgment of the trial court is reversed and council's judgment is reinstated. CACIOPPO and REECE, JJ., concur. Ohio App. 9 Dist.,1992. Reese v. Village of Boston Heights Not Reported in N.E2d, 1992 WL 10150 (Ohio App. 9 Dist.) END OF DOCUMENT 0 2008 Thomson/4Vest. No Claim to Orig. U.S. Govt. Works.