The opinion
[Cite as State ex rel. Holloway v. Personnel Appeals Bd., 2012-Ohio-628.]
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
STATE OF OHIO EX REL. :
JOHNNY HOLLOWAY, JR.
Plaintiff-Appellee : C.A. CASE NO. 24635
vs. : T.C. CASE NO. 09CV1568
PERSONNEL APPEALS BOARD, et al.: (Civil Appeal from
Common Pleas Court)
Defendant-Appellant :
. . . . . . . . .
O P I N I O N
Rendered on the 17th day of February, 2012.
. . . . . . . . .
Henry A. Arnett, Atty. Reg. No. 0011379, 135 Dublin Road, Suite
108-B, Columbus, OH 43215
Attorney for Plaintiff-Appellee
Matthew D. Stokely, Atty. Reg. No. 0062611; Joshua M. Kin, Atty.
Reg. No. 0086965, 2700 Kettering Tower, Dayton, OH 45423
Attorneys for Defendant-Appellant
. . . . . . . . .
GRADY, P.J.:
{¶ 1} This appeal is brought by the Personnel Appeals Board
of the City of Huber Heights (the “Board”) from a final order
granting a motion for summary judgment filed by Johnny Holloway
in an action Holloway commenced on a petition for a writ of mandamus.
{¶ 2} In 2008, Holloway was terminated from his position of
Battalion Chief in the City of Huber Heights’ Fire Division.
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Holloway requested a review of his termination by the Board.
Holloway’s counsel received a letter from the City Attorney for
Huber Heights, stating that Holloway had no right of appeal to
the Board. Holloway then filed a petition for a writ of mandamus
in the court of common pleas, asking that the Board be ordered
to hear an appeal of his termination.
{¶ 3} The common pleas court granted a motion for summary
judgment filed by the Board, finding that Holloway’s termination
was not subject to an appeal to the Board under provisions of the
Charter of the City of Huber Heights creating that right of appeal.
Therefore, the Board had no clear legal duty to hear an appeal,
and Holloway had no clear legal right to an appeal to the Board.
{¶ 4} Holloway appealed to this court from the final judgment
of the common pleas court. On review, we found that Holloway did
have a right of appeal to the Board from his termination under
applicable provisions of the City’s Charter. We therefore held
that the common pleas court erred when it granted summary judgment
for the Board on the grounds on which the court relied, and we
remanded the case to the common pleas court “for further
proceedings, consistent with this opinion.” State of Ohio, ex
rel. Johnny Holloway, Jr. v. Personnel Appeals Board, City of Huber
Heights, 2d Dist. Montgomery No. 23836, 2010-Ohio-4754, ¶ 21.
{¶ 5} Holloway had also filed a motion for summary judgment
when the Board did. On remand, the common pleas court granted
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Holloway’s motion, finding that Holloway has a clear legal right
to an appeal to the Board, that the Board has a clear legal duty
to hear and decide Holloway’s appeal, and that Holloway has no
plain and adequate remedy for his termination from employment in
the ordinary course of law. (Dkt. 1).
{¶ 6} The Board filed a notice of appeal from the final order
granting Holloway’s motion for summary judgment. The Board’s
brief on appeal does not include a statement of the specific error
or errors assigned for our review. See App.R. 16(A)(3). However,
we construe the following “Statement of Issues” to encapsulate
the error the Board assigns:
{¶ 7} Issue 1: The trial court erred in granting Holloway’s
motion for summary judgment without any evidence concerning the
lack of a legal remedy and without conducting further proceedings,
as this Court previously ordered, on the remaining elements
required to grant the extraordinary relief in mandamus.
{¶ 8} Civ.R. 56(C) provides that, upon motion, “[s]ummary
judgment shall be rendered forthwith if the pleadings, deposition,
answers to interrogatories, written admissions, affidavits,
transcripts of evidence, and written stipulations of fact, if any,
timely filed in the action, show that there is no genuine issue
as to any material fact and that the moving party is entitled to
judgment as a matter of law.”
{¶ 9} To be entitled to a writ of mandamus compelling the
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Board to hear his appeal, Holloway must establish a clear legal
right to that relief, a corresponding clear legal duty on the part
of the Board to provide it, and the lack of an adequate legal remedy
in the ordinary course of the law. State ex rel. Am. Subcontractors
Assn., Inc. v. Ohio State Univ., 129 Ohio St.3d 111, 2011-Ohio-2881,
950 N.E.2d 535, ¶ 20.
{¶ 10} In the prior appeal, we found that the first and second
prongs of Holloway’s burden of proof were satisfied. The Board
argues that the trial court erred when it granted Holloway’s motion
for summary judgment because the record fails to support a finding
in Holloway’s favor on the third prong, that Holloway has no
adequate legal remedy in the ordinary course of law. On that point
the Board contends that R.C. Chapter 2506 provides an adequate
legal remedy.
{¶ 11} R.C. 2506.01 states:
{¶ 12} (A) Except as otherwise provided in sections
2506.05 to 2506.08 of the Revised Code, and except as
modified by this section and sections 2506.02 to 2506.04
of the Revised Code, every final order, adjudication,
or decision of any officer, tribunal, authority, board,
bureau, commission, department, or other division of
any political subdivision of the state may be reviewed
by the court of common pleas of the county in which the
principal office of the political subdivision is located
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as provided in Chapter 2505. of the Revised Code.
{¶ 13} (B) The appeal provided in this section is
in addition to any other remedy of appeal provided by
law.
{¶ 14} (C) As used in this chapter, “final order,
adjudication, or decision” means an order, adjudication,
or decision that determines rights, duties, privileges,
benefits, or legal relationships of a person, but does
not include any order, adjudication, or decision from
which an appeal is granted by rule, ordinance, or statute
to a higher administrative authority if a right to a
hearing on such appeal is provided, or any order,
adjudication, or decision that is issued preliminary
to or as a result of a criminal proceeding.
{¶ 15} Holloway argues that he cannot invoke a right of appeal
under R.C. 2506.01 because the Board never entered an “order,
adjudication, or decision,” denying him a right of appeal. The
Board responds that the letter Holloway received from the City
Attorney notifying him that he lacked a right of appeal to the
Board satisfies the requirement of R.C. 2506.01.
{¶ 16} Holloway’s motion for summary judgment (Dkt. 13, Case
No. 09CV01568, our Case No. 23836) is supported by his affidavit.
The affidavit attaches what Holloway represents are “true and
correct copies” of documents relative to his claim. Page 28 is
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a copy of Holloway’s notice of appeal to the Board and requesting
a hearing, which also identifies Attorney Henry A. Arnett as
Holloway’s legal representative for that purpose. Page 29 is a
copy of a letter dated December 8, 2008, to Attorney Arnett from
an attorney with the law firm whose senior partner is City Attorney
for Huber Heights. The letter states:
{¶ 17} Dear Mr. Arnett:
{¶ 18} I have reviewed your letter of December 3,
2008 and respectfully disagree with your conclusion that
Battalion Chief Holloway is entitled to appeal his
dismissal to the Personnel Appeals Board. Nowhere in
the City Charter is the position of Battalion Chief
designated as a position in the non-exempt service.
However, Charter Section 8.02 specifically includes
“directors of departments and their assistants, division
heads and the Director of personnel” as constituting
positions in the exempt service of the City.
{¶ 19} Pursuant to Ordinance 2006-0-1617, adopted
February 13, 2006, the fire Chief and Battalion Chief’s
serve as assistants to the Director of Public Safety.
A copy of the Ordinance is attached for your review.
{¶ 20} Thus, there is no inconsistency between the
City Charter and Resolution No. 2008-R-4987 which
designates the position of Battalion Chief as being in
the exempt service.
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{¶ 21} If you have any questions or wish to discuss
this matter further, please feel free to contact me at
your convenience at 937-223-1130.
{¶ 22} Very truly yours,
{¶ 23} Pickrel, Schaeffer & Ebeling, L.P.A.
{¶ 24} Scott T. Stirling
{¶ 25} In State ex rel. Lane v. City of Pickerington, 130 Ohio
St.3d 225, 2011-Ohio-5454, 957 N.E.2d 29, on similar facts, the
Supreme Court held that absent any authority for a city attorney
to act on behalf of a board, a letter from a city attorney that
did not say it was being issued on behalf of a board is not a final
order, adjudication, or decision of the board for purposes of R.C.
2506.01. The Court distinguished its prior decision in State ex
rel. Henderson v. Maple Heights Civil Service Commission, 63 Ohio
St.2d 39, 406 N.E.2d 1105 (1980), in which “there was no question
that the civil service commission itself refused to hear the
discharged employee’s appeal and that the commission’s legal
counsel merely communicated the commission’s own decision to the
employee.” Lane, ¶ 16.
{¶ 26} At oral argument, counsel for the Board conceded that
the letter to Holloway from the City Attorney contains no
representation that the Board itself had acted to refuse or dismiss
Holloway’s appeal. The Board argues that, nevertheless, the City
Attorney is or may be authorized to act on behalf of the Board.
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The Board relies on Section 7.05 of the charter of the City of
Huber Heights, a copy of which is attached to the Board’s brief.
Section 7.05 states:
{¶ 27} DEPARTMENT OF LAW.
{¶ 28} There shall be a Department of Law, the head
of which shall be the City Attorney. The City Attorney
shall be an attorney-at-law, qualified to practice law
in the State of Ohio, appointed by and subject to the
direction of the Council.
{¶ 29 } A law firm, as well as an individual
attorney, may serve as the City Attorney and in that
case, the person designated by the law firm shall serve
with the title of City Attorney, and other persons so
designated by the law firm shall serve with the title
of City Attorney, and other persons so designated may
serve as Acting City Attorney with all the powers, duties
and functions of the City Attorney when the person
designated as City Attorney is not available. The City
Attorney shall serve as the chief legal advisor to
Council, the City manager, and all City departments,
divisions, offices and other agencies, boards or
commissions. The City Attorney shall represent the City
in all legal proceedings and shall perform any other
duties prescribed in this Charter, by ordinance or
resolution or by the Administrative Code or the general
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laws of Ohio, except that the person or firm holding
the office of City Attorney shall not be required to
represent any school district or any other unit of
government other than the City, by virtue of holding
the office of City Attorney. When necessary, the
Council may appoint special legal counsel to represent
the City, together with or in place of the City Attorney.
{¶ 30} Section 7.05 provides that the City Attorney “shall
serve as chief legal advisor to . . . agencies, boards, or
commissions” of Huber Heights. That provision presents no basis
to find that the City Attorney is authorized to act on behalf of
those entities in the functions they are charged to perform.
{¶ 31} Section 7.05 also provides that “[t]he City Attorney
shall represent the City in all legal proceedings and shall perform
any other duties prescribed in this Charter, by ordinance or
resolution or the Administrative Code or the General Laws of Ohio.”
{¶ 32} The Board, while unable to identify any other matters
that would authorize the City Attorney to act on behalf of the
Board, argues that the case should be remanded to determine whether
any such provisions exist or apply, because whether any do presents
a genuine issue of material fact that precludes the Civ.R. 56
summary judgment for Holloway the trial court ordered.
{¶ 33} The Board filed its notice of appeal to this court on
May 11, 2011. Lane was decided on October 27, 2011, shortly after
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the briefing in this case was complete. Holloway filed a Notice
of Supplemental Authority, relying on Lane, on December 27, 2011.
The Board had filed no memorandum in response to that Notice when
oral argument was held on January 31, 2012.
{¶ 34} Whether any Charter provision, ordinance,
Administrative Code or Revised Code section authorized the City
Attorney to act on behalf of the Board presents not an issue of
fact but an issue of law. Courts, including appellate courts,
are authorized to take judicial notice of such matters. Indeed,
the Board relied on that expedient in attaching a copy of Section
7.05 of the City Charter to its brief on appeal. If any such
authority exists, the Board could have done the same in opposing
Holloway’s reliance on Lane, but didn’t. On this record, and
concerning the possible existence of legal authority that would
render the City Attorney’s letter a final order for purposes of
R.C. 2506.01, no genuine issue of material fact remains for
determination which precludes the summary judgment the trial court
ordered is shown.
{¶ 35} Construing the letter dated December 8, 2008 and its
contents most strongly in favor of the Board, we find that
reasonable minds could only conclude that the letter neither
represents nor portrays a final order, adjudication, or decision
of the Board to not hear Holloway’s appeal of his termination.
The letter is no more than the stated opinion of the Board’s legal
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advisor that the Board should not hear the appeal. There is no
evidence that the City Attorney was authorized to act on behalf
of the Board in that respect.
{¶ 36} The trial court correctly found that Holloway has no
right of appeal pursuant to R.C. Chapter 2506 from his termination.
The Board does not argue that Holloway had any other avenue of
legal relief except for R.C. Chapter 2506, and we are aware of
none. The trial court did not err when it granted summary judgment
for Holloway on his motion. Our order of remand required the trial
court to conduct no proceedings other than to decide the merits
of the pleadings and motions before it, which the court did.
{¶ 37} The assignment of error is overruled. The judgment
from which the appeal is taken will be affirmed.
FAIN, J., And DONOVAN, J., concur.
Copies mailed to:
Henry A. Arnett, Esq.
Matthew D. Stokely, Esq.
Joshua M. Kin, Esq.
Hon. Gregory F. Singer