Porter v. Probst

[Cite as Porter v. Probst, 2014-Ohio-3789.]

STATE OF OHIO, BELMONT COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

ALLEN PORTER, )

) CASE NO. 13 BE 36

PLAINTIFF-APPELLANT, )

)

VS. ) OPINION

)

CHARLES PROBST, et al., )

)

DEFENDANTS-APPELLEES. )

CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas Court,

Case No. 12CV330.

JUDGMENT: Affirmed.

APPEARANCES:

For Plaintiff-Appellant: Attorney Daniel Balgo

Attorney Scot McMahon

156 Woodrow Avenue

St. Clairsville, Ohio 43950

For Defendants-Appellees: Attorney Timothy Rankin

266 North Fourth Street, Suite 100

Columbus, Ohio 43215-2511

JUDGES:

Hon. Joseph J. Vukovich

Hon. Cheryl L. Waite

Hon. Mary DeGenaro

Dated: August 29, 2014

[Cite as Porter v. Probst, 2014-Ohio-3789.]

VUKOVICH, J.

{¶1} Plaintiff-appellant Allen Porter appeals the decision of the Belmont

County Common Pleas Court granting summary judgment for defendants-appellees

Charles Probst, Matt Coffland, Virginia Favede acting as the Board of County

Commissioners of Belmont County; Fred Thompson, Sheriff of Belmont County; and

Andrew Sutak, Auditor of Belmont County. The first issue is whether the trial court

abused its discretion when it denied Porter’s motion to amend his complaint. The

second issue is whether the trial court’s grant of summary judgment is supported by

the record.

{¶2} For the reasons expressed below, the decision of the trial court is

hereby affirmed. The trial court did not abuse its discretion when it denied the motion

to amend the complaint, nor did it commit error when it granted summary judgment in

appellees’ favor.

Statement of the Facts and Case

{¶3} Porter was hired in 1985 by Sheriff McCort of Belmont County for the

position of Jail Administrator. Porter continuously held that position until June 19,

2009, when he was laid-off by Sheriff Thompson. The alleged reason for the lay-off

was budgetary concerns. The Jail Administrator position is undisputedly a fiduciary,

non-classified position that serves at the whim of the Sheriff.

{¶4} Following his lay-off, Porter applied for and received unemployment

benefits for about a month. About a month after his lay-off, he contacted the Public

Employees Retirement System and retired; he did not notify Belmont County of his

retirement until November 2009.

{¶5} As a result of his severance from employment with Belmont County,

Porter received his accumulated vacation leave payment. However, Belmont County

did not give him his sick leave payment because according to it the employee

handbook indicates that in order to be eligible for this benefit the employee must

retire from active service.

{¶6} As a result of the above, Porter filed a complaint against the

Commissioners, Sheriff and Auditor on September 23, 2010. That complaint was

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voluntarily dismissed in July 2011. In July 2012, Porter re-filed his complaint. In that

complaint, he alleged that he requested and received assurances from Sheriff

Thompson as to his continued employment and that he ignored potential positions for

employment elsewhere in reliance on those assurances. He also claimed that as Jail

Administrator he was unable to be absent from his jail position and that the previous

Sheriff, Sheriff McCort, allowed him to accumulate vacation hours and sick leave

hours in excess of those allowed by the policy manual. However, during his tenure

under Sheriff Thompson, two audits were performed and that resulted in reducing his

vacation hours. The first audit was an internal audit that caused a reduction because

the hours were not being computed correctly by the administrative assistant; the

hours were incorrectly being computed under the union formula rather than the

nonunion formula. The second audit was performed by the state and dealt with caps

to vacation hours; employees were being permitted to accrue vacation hours over the

caps that were permitted by the rule. Following the second audit, the vacation hours

were reduced to the cap level. Porter however, claimed that Sheriff McCort, the

previous sheriff, had authorized management positions to exceed the cap because

they could not take vacations due to their positions. He was not given notice of either

reduction and was not afforded a hearing on the reductions. He also claimed that the

Commissioners told Sheriff Thompson to lay him off or they would not ensure that the

Sheriff had sufficient levels of funds to ensure continued operation. Since he was

laid-off and not permitted to retire, he was unable to obtain his accumulated sick

leave benefit, which was $5,358.73. He contended that the Commissioners’ action

was made in “bad faith,” interfered with his business rights, and “was without

justification or privileged as the Sheriff was the sole appointing authority and officer to

appoint or remove” him from his position of employment. He sought loss of income

(amount of annual salary), compensation for unpaid accrued vacation pay and sick

leave respectively in the sums of $21,175.37 and $5,358.73, and other relief.

{¶7} Appellees answered asserting sovereign immunity, privilege, and

statute of limitations defenses. A pretrial/scheduling conference was held in

February 2013. Following that conference, the trial court issued a “Trial Date and

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Scheduling Conference Order.” That order was amended in June 2013. It provided

that Porter had until June 21, 2013 to disclose his expert witness and that all other

witnesses had to be disclosed 90 days prior to trial. That order also set the trial date

as November 12, 2013. The order likewise indicated that dispositive motions had to

be filed by August 12, 2013.

{¶8} Appellees complied with that order and filed a timely joint motion for

summary judgment on the August 12, 2013 deadline. Porter, however, was still

conducting discovery. The three depositions he took all occurred on September 10,

2013. On September 12, 2013, Porter filed a motion to Amend the Complaint to add

CORSA (County Risk Sharing Authority) as a party and asserted that CORSA

intentionally interfered with Porter’s business relations. On September 20, 2013,

appellees filed a motion in opposition to the motion to amend the complaint. That

same day, Porter filed his motion in opposition to summary judgment.

{¶9} On October 11, 2013, the trial court denied the motion to amend the

complaint. Approximately a week later, the trial court ruled on the summary judgment

motion and granted summary judgment in appellees’ favor. 10/22/13 J.E. That

decision was largely based on the doctrine of sovereign immunity. Porter timely

appeals from those two decisions.

First Assignment of Error

{¶10} “Granting Plaintiff’s motion for leave to file an amended complaint would

not have caused any actual prejudice.”

{¶11} As aforementioned, Porter moved to amend his complaint to add

CORSA as a defendant and claim that CORSA interfered with his employment, a

tortious interference with business relation claim. CORSA is the County Risk Sharing

Authority. Deposition testimony revealed that CORSA is “a self –insured entity that

insures counties and county work forces” and that out of the 88 counties in Ohio

about 66 counties are insured by CORSA. Thompson Depo. 12. The basis for the

request to amend was Sheriff Thompson’s statement, during his deposition, that he

was informed by CORSA that if Porter was not terminated from his position as jail

administrator the Belmont County Sheriff’s Department would be dropped from the

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insurance. Thompson Depo. 12, 18. CORSA’s demand was allegedly based on a

situation that occurred in 2007 with a jail prisoner, Randall Homko. Thompson Depo.

12. The situation involved tazering that individual who was not only a prisoner but a

mental patient. The FBI was investigating the matter in 2009 when Porter was laid-

off.

{¶12} Civ.R. 15(A) governs amendments to pleadings. It states:

A party may amend its pleading once as a matter of course

within twenty-eight days after serving it or, if the pleading is one to

which a responsive pleading is required within twenty-eight days after

service of a responsive pleading or twenty-eight days after service of a

motion under Civ.R. 12(B), (E), or (F), whichever is earlier. In all other

cases, a party may amend its pleading only with the opposing party's

written consent or the court's leave. The court shall freely give leave

when justice so requires. Unless the court orders otherwise, any

required response to an amended pleading must be made within the

time remaining to respond to the original pleading or within fourteen

days after service of the amended pleading, whichever is later.

Civ.R. 15(A).

{¶13} While the rule allows for liberal amendment, motions to amend

pleadings pursuant to Civ.R. 15(A) should be refused if there is a showing of bad

faith, undue delay, or undue prejudice to the opposing party. Turner v. Cent. Local

School Dist., 85 Ohio St.3d 95, 99, 706 N.E.2d 1261 (1999). The decision to grant or

deny a motion to amend is within the trial court’s discretion. Id. Thus, an appellate

court reviews such a ruling under an abuse-of-discretion standard of review. Id. The

Ohio Supreme Court has repeatedly explained that “[t]he term ‘abuse of discretion’

connotes more than an error of law or of judgment; it implies that the court’s attitude

is unreasonable, arbitrary or unconscionable.” Huffman v. Hair Surgeon, Inc., 19

Ohio St.3d 83, 87, 482 N.E.2d 1248 (1985).

{¶14} The trial court denied the motion to amend for two reasons. First, it

found that appellees would be prejudiced by the delay the amendment would cause.

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Second, it found that the cause of action sought to be added was barred by the

statute of limitations.

{¶15} The trial court found prejudice because the matter had been pending off

and on for over 3 years and allowance of the amendment clearly would have delayed

the proceedings because it would have resulted in additional discovery, “including the

retaking of some depositions previously administered as well as [the filing of] an

additional Motion for Summary Judgment.” 10/11/13 J.E. That reasoning is

supported by the record. In February 2013, a trial date and scheduling conference

order was issued which set forth certain deadlines for witness disclosures, dispositive

motions and a trial date. That order was amended in June 2013. In the amended

order, trial was set for November 12, 2013; witnesses were required to be disclosed

90 days prior to trial and although no discovery deadline was set, it was ordered that

dispositive motions were to be filed no later than August 12, 2013. 06/07/13 Order.

Thus, when the motion to amend was filed on September 12, 2013, the deadline for

witness disclosures had passed, the deadline for dispositive motions had passed,

and the trial was slated to occur in two months. Thus, the motion to amend was filed

in the eleventh hour. Furthermore, despite the fact that Porter had months to

complete discovery, he did not depose anyone until September 10, 2013. On that

date three depositions were taken – Kitty Paboucek, Commissioner Charles Probst

and Sheriff Fred Thompson. As can be seen, this was done after the deadline for

witness disclosures and dispositive motions.

{¶16} In contrast to Porter’s actions, appellees complied with the scheduling

order. Porter Depo. 07/18/13 (before the disclosure deadline). Also their motion for

summary judgment was timely filed.

{¶17} Consequently considering the above, the trial court did not abuse its

discretion in finding undue prejudice as the basis for denying the Civ.R. 15 motion to

amend the complaint.

{¶18} However, as aforementioned, that was not the only reason for denying

the motion to amend. The trial court also found that the tortious interference claim

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against CORSA was barred by the statute of limitations. We also agree with that

finding.

{¶19} All parties concede that the tortious interference with a business

relation claim has a four year statute of limitations and that at the time of the motion

to amend, that limitations period had expired. R.C. 2305.09(D). The controversy is

whether the claim is subject to the discovery rule. Porter contends that it is;

appellees contend that it is not.

{¶20} The discovery rule in R.C. 2305.09 provides:

If the action is for trespassing underground or injury to mines, or

for the wrongful taking of personal property, the causes thereof shall not

accrue until the wrongdoer is discovered; nor, if it is for fraud, until the

fraud is discovered.

R.C. 2305.09(E).

{¶21} In finding that the discovery rule is not applicable to negligence claims

brought under R.C. 2305.09(D), the Ohio Supreme Court stated:

While expressly providing a discovery rule for certain actions

arising under R.C. 2305.09, no such rule was extended to general

negligence claims. The General Assembly's failure to include general

negligence claims under the discovery rule set out in R.C. 2305.09

argues strongly that it was not the legislature's intent to apply the

discovery rule to such claims. See Kirsheman v. Paulin (1951), 155

Ohio St. 137, 146, 44 O.O. 134, 139, 98 N.E.2d 26, 31 (explaining the

statutory significance of the Latin phrase, expressio unius est exclusio

alterius). The legislature's express inclusion of a discovery rule for

certain torts arising under R.C. 2305.09, including fraud and

conversion, implies the exclusion of other torts arising under the statute,

including negligence. See id.

Investors REIT One v. Jacobs, 46 Ohio St.3d 176, 181, 546 N.E.2d 206 (1989).

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{¶22} Applying this reasoning to the matter at hand, since the statute does not

expressly provide for application of the discovery rule for tortious interference claims,

the discovery rule is inapplicable.

{¶23} Despite the language of statute and the reasoning in Investors, Porter

argues that it would be against public policy to not extend the discovery rule to claims

for tortious interference. We do not find this argument persuasive. Public policy

arguments are better directed to the General Assembly; it is for the legislature of

Ohio to define the public policy of the state. State ex rel. Cincinnati Enquirer v.

Dupuis, 98 Ohio St.3d 126, 2002–Ohio–7041, 781 N.E.2d 163, ¶ 21 (“the General

Assembly is the ultimate arbiter of public policy”).

{¶24} Regardless, even if we could apply the discovery rule, there is a strong

argument that Porter cannot satisfy its mandates because he did not exercise

reasonable diligence. Under the discovery rule, the statute of limitations does not

begin to run until the plaintiff discovered, or through the exercise of reasonable

diligence, should have discovered, the complained of injury. Sullivan v. Westfield Ins.

Co., 11th Dist. No. 2012-L-004, 2013-Ohio-146, ¶ 32. For example, if the cause of

action is for fraud, the cause does not accrue until either the fraud is discovered, or in

the exercise of reasonable diligence, the fraud should have been discovered. Id.

Thus, the applicable statute of limitations is triggered by the “constructive knowledge

of facts, rather than actual knowledge of their legal significance * * *.” Id. quoting

Flowers v. Walker, 63 Ohio St.3d 546, 549, 589 N.E.2d 1284 (1927).

{¶25} The claimed injury was Porter’s termination as jail administrator. All of

the complaints filed by Porter, even the one that was voluntarily dismissed, asserted

a claim for tortious interference with his employment; Porter was always under the

belief that Sheriff Thompson was directed by someone to fire Porter. Porter,

however, thought that it was the commissioners. It was not until Porter deposed

Sheriff Thompson that he found out that CORSA informed the sheriff that if he was

not terminated then the Sheriff’s Department would be dropped from the insurance.

That information is the basis of the tortious interference claim that Porter sought to

add to the complaint. This information was easily discoverable through a timely

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deposition or interrogatories. However, Porter waited until 2013 to depose the sheriff

who has always been a defendant in this action and is the person who would know

whether or not someone directed him to terminate Porter. Thus, Porter had

constructive knowledge of injury and Porter’s actions do not amount to reasonable

diligence. Even if the discovery rule is applicable, he cannot meet its requirements.

Consequently, for the above reasons, this assignment of error lacks merit.

Second Assignment of Error

{¶26} “The trial court erred in granting Defendant’s motion for summary

judgment because there were many issues of material fact to be decided by a jury.”

{¶27} We review an appeal from summary judgment under a de novo

standard of review. Grafton v. Ohio Edison Co., 77 Ohio St .3d 102, 105, 671 N.E.2d

241 (1996). Civ.R. 56(C), provides that summary judgment is appropriate when, after

construing the evidence most favorably for the party against whom the motion is

made, reasonable minds can only reach a conclusion that is adverse to the

nonmoving party. Zivich v. Mentor Soccer Club, 82 Ohio St.3d 367, 369–370, 696

N.E.2d 201 (1998).

{¶28} The claims remaining at the time of the summary judgment motion

were: 1) promissory estoppel, 2) sick leave benefit; 3) due process, and 4) tortious

interference with business rights/employment. The basis for the promissory estoppel

claim was the loss of employment and reliance on continued employment. Porter

claimed that Sheriff Thompson promised him his job was secure and that he relied on

these assurances when he did not pursue other job opportunities. The next claim

concerns his retirement benefits, specifically his sick leave benefit. Belmont County

did not give him a sick leave benefit because he did not retire from “active” duty. His

due process claim was based on his loss of vacation hours though the audits that

capped his vacation hours. He claims he should have received a hearing before

those hours were taken away. His interference claim was against the commissioners

alleging that they made Sheriff Thompson lay-off Porter.

{¶29} The trial court found that the promissory estoppel claim was barred by

sovereign immunity and that his claim for losing possible job opportunities was

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speculative at best. The trial court found that the Belmont County Personnel Policy

Manual concerning his sick leave benefit clearly dictated that he had to be active duty

to be entitled to it. As for the due process claim, the trial court found that in order to

be entitled to due process, the employee must first have a vested property right.

Here, the court found there was no property right given the language in the

Personnel Policy Manual. As to the interference claim against the commissioners,

the court found that the claim was barred by sovereign immunity.

{¶30} Porter finds fault with all of those decisions. Each cause will be

addressed in turn.

Promissory Estoppel

{¶31} The Ohio Supreme Court has clearly stated that the “[p]rinciples of

equitable estoppel generally may not be applied against the state or its agencies

when the act or omission relied on involves the exercise of a governmental function.”

Sun Refining & Marketing Co. v. Brennan, 31 Ohio St.3d 306, 307, 511 N.E.2d 112

(1987). See also Hortman v. Miamisburg, 110 Ohio St.3d 194, 2006-Ohio-4251, 852

N.E.2d 716, ¶ 25. R.C. 2744.01(C) defines a government function as:

“Governmental function” means a function of a political

subdivision that is specified in division (C)(2) of this section or that

satisfies any of the following:

(a) A function that is imposed upon the state as an obligation of

sovereignty and that is performed by a political subdivision voluntarily or

pursuant to legislative requirement;

(b) A function that is for the common good of all citizens of the

state;

(c) A function that promotes or preserves the public peace,

health, safety, or welfare; that involves activities that are not engaged in

or not customarily engaged in by nongovernmental persons; and that is

not specified in division (G)(2) of this section as a proprietary function.

(2) A “governmental function” includes, but is not limited to, the

following:

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***

(h) The design, construction, reconstruction, renovation, repair,

maintenance, and operation of jails, places of juvenile detention,

workhouses, or any other detention facility, as defined in section

2921.01 of the Revised Code;

R.C. 2744.01(C).

{¶32} Thus, the operation of a jail constitutes a government function.

Furthermore, employment decisions made in the exercise of a government function

fall within this protection. Campolieti v. Cleveland, 184 Ohio App.3d 419, 2009-Ohio-

5224, ¶ 36 (8th Dist.2009), citing Western–Southern Life Ins. Co. v. Fridley, 69 Ohio

App.3d 190, 590 N.E.2d 325 (1st Dist.1990). Consequently, the claim is barred by

sovereign immunity.

{¶33} However, even if it was not, summary judgment was still appropriate.

“The elements necessary for a promissory estoppel claim are (1) a clear and

unambiguous promise, (2) reasonable and foreseeable reliance by the party to whom

the promise is made, and (3) injury by the reliance by the party claiming estoppel.”

Landpor Contrs., Inc. v. C&D Disposal Tech. L.L.C., 7th Dist. No. 11-JE-28, 2013-

Ohio-1436, ¶ 34. “‘To be successful on a claim of promissory estoppel “[t]he party

claiming the estoppel must have relied on conduct of an adversary in such a manner

as to change his position for the worse and that reliance must have been reasonable

in that the party claiming estoppel did not know and could not have known that its

adversary's conduct was misleading.”’” Filo v. Liberato, 7th Dist. No. 11MA18, 2013-

Ohio-1014, 987 N.E.2d 707, ¶ 10, quoting, Olympic Holding [Co., L.L.C. v. ACE Ltd.,

122 Ohio St.3d 89, 2009-Ohio-2057, 909 N.E.2d 93,] ¶ 39, quoting Shampton v.

Springboro, 98 Ohio St.3d 457, 2003-Ohio-1913, 786 N.E.2d 883 ¶ 34.

{¶34} The focus here is that Porter had to change his position for the worse.

The evidence brought forth during depositions does not create a genuine issue of

material fact as to this element. The evidence is that Porter received two invitations

to apply for two jobs. One was at a new county detention facility in Omaha,

Nebraska. Porter Depo. 22. The other was for a local jail inspector position for the

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Ohio Bureau of Adult Detention. Porter Depo. 22-23. These were invitations to

submit his resume for these positions. He never submitted applications for the

positions, nor did he ever interview for the positions. Porter Depo. 25. Thus, it is

unclear whether Porter would have been hired for either of these positions. Had he

been offered one of the jobs and had turned it down based on the alleged promises

that his job was secure, there would be a clear argument that he changed his

position for the worse. However, given these facts, as the trial court indicated, his

claim for losing other possible job opportunities is speculative at best.

Sick Leave Benefit

{¶35} As aforementioned, despite having accumulated sick time, Belmont

County Commissioners refused to pay him a sick leave benefit. The basis of its

denial was that when he retired he was not an active employee.

{¶36} The Belmont County 2008 Personnel Policy Manual provides the

following:

A. A County employee, with ten (10) years of service who retires

in accordance with the provisions of PERS or any retirement plan

offered by the state, shall be paid one-fourth (1/4) of the value of his or

her earned but unused leave credit. The maximum of such payment,

however, shall be for thirty (30) days of sick leave.

B. Such payment shall be based on the employee’s hourly rate

of pay at the time of retirement.

C. Such payment shall be made only once and shall eliminate

all sick leave credit accrued by the employee.

D. Eligible County employees retiring from active service shall

request such payment in writing, in order to initiate the payment

process.

2008 Belmont County Personnel Policy Manual Rule 6.4.

{¶37} A similar provision regarding the “active service” requirement is found in

Rule 5.4 of the 1984 Personnel Policy Manual (manual in effect when he was hired).

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Both policy manuals were appropriately attached to the summary judgment motion by

means of an affidavit.

{¶38} The trial court found that the above language required retirement from

active service. It concluded that since Porter was laid-off and then retired, he did not

retire from active service, and therefore, was not entitled to the sick leave benefit.

{¶39} The trial court’s assessment that Porter was laid-off and then retired is

accurate. He was laid off June 19, 2009 and in mid-July 2009 he notified PERS that

he was retiring. He did not notify Belmont County until November 6, 2009 that he

wanted his sick leave benefit. In that letter it does not specifically use the word retire,

however, it does reference Section 6.4 of the policy manual. Therefore, it appears

that this letter is a notification of retirement.

{¶40} That said, the language of the policy manual is “retiring from active

service.” Porter, at the time of his retirement, was not retiring from active service. He

was retiring after being laid-off and applying for unemployment. There is no case law

specific to this fact pattern that defines active service. However, in the context of

police and firefighters, statutes and case law clearly indicate active service is different

from being laid-off. See R.C. 742.27; R.C. 742.371; State ex rel. Abde v. Police &

Firemen's Disability & Pension Fund, 10th Dist. No. 96APD02-126, 1996 WL 362083

(June 25, 1996). Therefore, when one is laid-off and then retires, that retirement is

not a retirement from active service. Accordingly, the trial court construed the

language of the policy correctly.

Due Process

{¶41} Regarding this claim, the arguments that were raised in the complaint

and to the trial court were that Porter’s due process rights were violated when his

vacation hours were capped. He claims that Sheriff McCort, the sheriff prior to

Sheriff Thompson, promised him that the caps in the Belmont County Policy Manual

did not apply to him and that his vacation hours would not be capped. During Sheriff

McCort’s tenure and during part of Sheriff Thompson’s tenure, Porter acquired

vacation hours in excess of the caps. As aforementioned, sometime after Sheriff

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McCort left office two audits were performed of employees’ vacation and sick hours.

During one of the audits, Porter’s vacation hours were adjusted to reflect the caps.

{¶42} The caps to the vacation hours are found in Rule 6.2 of the Belmont

County Personnel Policy Manual. That rule states that employees working 40 hour a

week with at least 15 years of service, but less than 25 years of service, are entitled

to 160 hours of vacation a year. The maximum carryover allowed is three years.

Thus, there is a cap of 480 vacation hours for an employee with at least 15 years of

service, but less than 25 years of service.

{¶43} Other than an alleged promise by Sheriff McCort, there is no other

indication that an exception to the cap was made. Porter admitted in his deposition

that he never saw a written exception to the cap rule. Rather, he claims that Sheriff

McCort made that promise orally to all management personnel who according to

Porter could not take vacation as they wanted because of the positions they were in.

{¶44} Porter’s argument and statements appear to raise a promissory

estoppel argument, as well as a due process argument. As mentioned above,

sovereign immunity bars a promissory estoppel argument. Therefore, that argument

fails.

{¶45} As to due process, it has been explained that under the Fourteenth

Amendment to the United States Constitution, “[n]o state shall * * * deprive any

person of life liberty or property without due process of law.” In evaluating whether a

person has a due process claim, a court “must determine whether a property or

liberty interest exists and, if so, what procedures are constitutionally required to

protect that right.” Bzdzuich v. U.S. Drug Enforcement Admin. (C.A.6, 1996), 76 F.3d

738, 742 (6th Cir.1996). In order to establish a procedural due process violation, it

must be shown that the conduct complained of deprived plaintiff of a liberty or

property interest without adequate procedural safeguards. Roe v. Franklin Cty., 109

Ohio App.3d 772, 779, 673 N.E.2d 172 (10th Dist.1996), citing Bd. of Regents of

State Colleges v. Roth (1972), 408 U.S. 564, 569, 92 S.Ct. 2701 (1972). As such, it

is not the deprivation itself that is actionable, rather it is the deprivation without due

process of law that is actionable. Hahn v. Satullo, 156 Ohio App.3d 412, 2004-Ohio-

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1057, ¶ 83 (10th Dist.), citing Shirokey v. Marth, 63 Ohio St.3d 113, 116, 585 N.E.2d

407 (1992).

{¶46} The trial court and appellees cite to Scott v. Bazetta Township Bd. of

Trustees, 11th Dist. No. 96-T-5571, 1997 WL 703374 (Oct. 31, 1977), for the position

that the employee does not have a vested property interest in unpaid vacation pay

when the employee has been laid-off or their position has been abolished. In that

case, a former police lieutenant sued for unpaid vacation and sick leave. The

evidence submitted on summary judgment showed that the lieutenant had been paid

according to statute for the unpaid vacation leave, but there was no policy to

reimburse for unpaid sick leave. The lieutenant argued that he had been promised

by the Chief of Police that he would get paid for unused sick leave, despite the fact

that the county policy provided no such benefit. Summary judgment was granted in

the township’s favor based on the evidence submitted. That decision was affirmed

by the appellate court, which stated, “Since appellant could not produce competent

evidence to show that he was wrongfully denied payment for his unused sick time, he

failed to show that he had any constitutionally protected ‘property interest’ which

would support a claim of violation of his right to due process.” Id.

{¶47} The facts in Scott are akin to the one before us; oral promises were

made concerning a matter that was in conflict with the policy manual. Other than

Porter’s averment there was nothing to corroborate that Sheriff McCort made that

promise, had the authority to make that promise, or could make good on that alleged

promise. Thus, Scott provides a basis for this court to affirm the trial court’s ruling;

Porter could not produce competent evidence to show he was wrongfully denied

vacation days over the cap and thus, he failed to show that he had any

constitutionally protected property interest.

Tortious Interference

{¶48} The trial court held that Porter’s claim that the Belmont County

Commissioners tortious interference with his employment was barred by sovereign

immunity. Porter finds fault with that determination. According to him, Sheriff

Thompson was pressured by the commissioners and CORSA to fire him. He

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contends that Sheriff Thompson’s actions cannot be considered a government

function because he was “caving in” to outside influences.

{¶49} As indicated earlier, the operation of a jail constitutes a government

function and the employment decision made within the exercise of that government

function also falls within a government function to which sovereign immunity applies.

R.C. 2744.01(C); Campolieti, 2009-Ohio-5224, ¶36, citing Western–Southern Life

Ins. Co., 69 Ohio App.3d 190. It is undisputed that Porter was an at-will employee

and served at the whim of the Sheriff. Furthermore, it is noted that the Fourth

Appellate District has held that generally political subdivisions (commissioners) are

immune from a claim of intentional interference with business relations. Dolan v.

Glouster, 173 Ohio App.3d 617, 2007-Ohio-6275, ¶ 23. The commissioners were

engaged in a government function and acting in the interests of the county when they

determine the budget of the county. Testimony established that often times the

Sheriff’s Department, which is where the jail’s budget came from, would run out of

money in October or November and have to ask the commissioners for more money

to cover expenses for the last couple months of the year. Due to the economic state

of the county, the commissioners could no longer manage this with the budget.

Thus, to the extent that the termination was based on budgetary concerns, that claim

is barred by sovereign immunity.

{¶50} Porter claims that the commissioner, “through their agent CORSA

mandated Sheriff Thompson to terminate” Porter’s employment. That is an

inaccurate statement of the evidence. Sheriff Thompson stated that CORSA told him

that if Porter was not terminated, the Sheriff’s Department would be dropped from the

insurance policy. There is no evidence that commissioners told CORSA to do this.

Likewise, there is no evidence that CORSA is an arm of the commissioners. CORSA

is a “non-profit political subdivision joint self-insurance pool.” Bell v. Nichols, 10th

Dist. No. 10AP-1036, 2013-Ohio-2559 (no paragraph numbers). As stated earlier,

about 3/4 of Ohio counties belong to CORSA and effectively CORSA is an insurer.

As the trial court pointed out insurers can select the risks it wants to insure. Thus,

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there is no evidence beyond mere allegation that CORSA was acting on behalf of the

commissioners.

{¶51} There is evidence from Sheriff Thompson that his reason for laying

Porter off had nothing to do with the commissioners. Porter’s allegation that the

commissioners wanted him fired stem from the incident involving Randall Homko.

Homko was a jail inmate and mental health patient that was tazered. The matter

occurred in 2007 and in 2009 the investigation was still ongoing by the FBI and state.

Sheriff Thompson testified that in addition to CORSA’s statement about being

dropped from insurance, there were legal issues involving federal indictments.

Sheriff Thompson was informed that if Porter was no longer a member of the sheriff’s

office, the federal grand jury indictments would basically go away. Thompson Depo.

44. He further added that once Porter was laid-off the FBI investigation ended and

no grand jury indictments were handed down. Thompson Depo. 45. Thompson

stated that he informed Porter of the FBI investigation and that the grand jury

investigation would go away if Porter was terminated. Thompson Depo. 44. Thus,

the basis for the lay-off was the potential to be dropped from insurance and to resolve

the FBI investigation.

{¶52} Furthermore, the only commissioner to be deposed was commissioner

Charles Probst. His testimony provides no evidence that the commissioners either

directed CORSA to drop the Sheriff’s Department from the insurance if Porter was

not terminated or an indication that the commissioners ordered Sheriff Thompson to

terminate Porter. Thompson even indicated that it was his decision of whether to

retain Porter or to terminate his employment.

{¶53} Considering the evidence, the trial court correctly concluded that the

tortious interference with employment claim was barred by the doctrine of sovereign

immunity.

{¶54} For all of the above stated reasons, the second assignment of error

lacks merit.

Conclusion

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{¶55} In conclusion, both assignments of error lack merit. Thus, the judgment

of the trial court is hereby affirmed. The trial court did not abuse its discretion when it

denied the motion to amend. Furthermore, the trial court did not err when it granted

summary judgment in appellees’ favor.

Waite, J., concurs.

DeGenaro, P.J., concurs.