The opinion
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Drouhard v. Morrow Cty. Bd. of Commrs., Slip Opinion No. 2020-Ohio-4160.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2020-OHIO-4160
THE STATE EX REL. DROUHARD v. MORROW COUNTY BOARD OF
COMMISSIONERS ET AL.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Drouhard v. Morrow Cty. Bd. of Commrs., Slip
Opinion No. 2020-Ohio-4160.]
Prohibition—R.C. 339.02(H)—An appointing authority is empowered to remove a
member of a county hospital board of trustees—Each county commissioner
possesses an individual vote on an appointing authority—Writ denied.
(No. 2019-1043—Submitted January 28, 2020—Decided August 25, 2020.)
IN PROHIBITION.
________________
DEWINE, J.
{¶ 1} This matter comes before us on a request for a writ of prohibition to
prevent the three members of a board of county commissioners from going forward
with a show-cause hearing to consider the removal of a member of the board of
trustees of the county hospital. We conclude that the three commissioners
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constitute the majority of the “appointing authority” that is empowered by law to
remove a member of the county hospital board. As a consequence, the
commissioners do not patently and unambiguously lack jurisdiction to proceed with
the show-cause hearing. Further, the hospital-board member possesses an adequate
remedy by way of an appeal following the show-cause hearing. Thus, we deny the
writ.
I. A Dispute About the Authority to Remove Hospital Trustees
{¶ 2} At bottom, this is a dispute about who has the authority to appoint and
remove members of the Morrow County Hospital Board of Trustees. On one side
are the three members of the Morrow County Board of Commissioners; collectively
and individually, they are the respondents in this action (“the Commissioners”). On
the other side is Patrick Drouhard, the relator in this action. At the time the lawsuit
was filed, Drouhard was the chairman of the Morrow County Hospital Board of
Trustees.
{¶ 3} The Morrow County Hospital is a county-owned hospital, established
by the Morrow County Board of Commissioners through the procedures set forth
in Chapter 339 of the Ohio Revised Code. It is governed by a board of trustees
(“the Hospital Board”). See R.C. 339.01(B); R.C. 339.02(B). The Revised Code
specifies that the hospital trustees shall be appointed by “[t]he board of county
commissioners together with the probate judge of the county senior in point of
service and the judge of the court of common pleas of the county senior in point of
service.” R.C. 339.02(B). This appointing authority may remove any hospital
trustee for neglect of duty, misconduct, or malfeasance in office. R.C. 339.02(H).
{¶ 4} The makeup of the appointing authority is at the center of this dispute.
The Commissioners claim that in accordance with the historical practice in Morrow
County, the appointing authority is a five-member body, with each commissioner
having one vote. Drouhard has a different view. He argues that it is a three-member
body, with the board of commissioners having a single, collective vote. In
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Drouhard’s view, the other two votes belong to Judge Robert C. Hickson Jr. Judge
Hickson is the more senior of the two judges who sit on the Morrow County Court
of Common Pleas. Under a unique statutory provision, the judges of the Morrow
County Court of Common Pleas “also shall perform the duties and functions of the
judge of the probate division.” R.C. 2301.02(C).
A. The Commissioners Seek to Hold a Show-Cause Hearing to Remove
Drouhard
{¶ 5} In June 2019, the Commissioners sought to schedule a show-cause
hearing to remove Drouhard as chairman of the Hospital Board. The
Commissioners cited two instances of misconduct that they claimed warranted
Drouhard’s removal.
{¶ 6} The first asserted ground for removal involved a dispute about a
contract for hospital-management services. The Hospital Board had entered into
an agreement with OhioHealth Corporation to manage the hospital. The
Commissioners sought to move the hospital in a different direction and exercise
their authority under R.C. 339.09 to lease the hospital to a nonprofit organization.
They notified the Hospital Board that they were pursuing a “long-term
lease/purchase option,” instructed the Hospital Board not to enter into any new
management agreements, and issued a request for proposals. Drouhard, with the
approval of the Hospital Board, responded by sending a cease-and-desist letter to
the Commissioners, demanding that they halt all activities associated with their
solicitation. The Commissioners rejected Drouhard’s demand.
{¶ 7} The second asserted ground for removal concerned the appointment
of a new trustee. In early 2019, two Commissioners and Judge Hickson met to
consider the replacement of a member whose term was expiring. Although a
motion was made at that meeting to appoint Earl Desmond as a hospital trustee, the
motion was tabled without a vote.
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{¶ 8} In March 2019, the three Commissioners approved a resolution,
appointing Desmond as a hospital trustee for six years. Judge Hickson did not
participate in the approval of the resolution. Subsequently, Judge Hickson wrote a
letter to the Commissioners reiterating that he had made no decision on possible
nominees for the vacant hospital-trustee position. After speaking with Judge
Hickson, Drouhard determined that Desmond’s appointment was defective because
the appointing authority had not finalized its decision on his appointment.
According to the Commissioners, Drouhard failed to treat Desmond as a member
of the Hospital Board and excluded him from participating in meetings, even
though Desmond was present at the meetings.
{¶ 9} Based upon these two purported instances of misconduct, the
Commissioners adopted a resolution expressing their “unanimous sense” that
Drouhard should be removed from office. The resolution set a hearing for July 8
so that Drouhard could appear and show cause why he should not be removed as
chairman of the Hospital Board. The resolution was signed by all three
Commissioners, but not by Judge Hickson.
{¶ 10} On July 5, Judge Hickson wrote a letter to the Commissioners in
which he stated that he “recently became aware, through a newspaper article,” of
the resolution scheduling the show-cause hearing. Judge Hickson wrote that he was
unable to attend on that date and asked that the meeting be rescheduled. He closed
by noting that “[i]f the Board of Commissioners is unwilling to reschedule this
meeting, please take notice that I am opposed to the removal of Patrick Drouhard
as Chairperson of the Hospital Board.”
{¶ 11} Drouhard appeared for the show-cause hearing on July 8. However,
the hearing was postponed to a later date. The parties dispute the reason for
rescheduling. The Commissioners say that Drouhard requested a continuance,
while Drouhard maintains that the meeting was rescheduled because the
Commissioners recognized that they had erred in acting on their own initiative.
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B. The Hearing Is Rescheduled and Drouhard Seeks a Writ of Prohibition
{¶ 12} On July 17, 2019, the Commissioners passed an amended resolution
setting the show-cause hearing for August 1. The document was not signed by
Judge Hickson. (According to an affidavit filed by one of the Commissioners, that
date was selected “based on Judge Hickson’s known schedule.”) Two days later,
Judge Hickson wrote to the Commissioners that he was “in receipt” of their
correspondence but was not available on the date that the Commissioners set. Judge
Hickson maintained that as both the probate judge and the common-pleas-court
judge senior in point of service, he “make[s] up the majority of the Appointing
Authority” and should have been consulted about scheduling.
{¶ 13} Drouhard filed his complaint for a writ of prohibition on July 30,
2019, before the scheduled date for the show-cause hearing. We issued an
alternative writ and ordered the parties to file briefs and submit evidence in
accordance with S.Ct.Prac.R. 12.05. 156 Ohio St.3d 1474, 2019-Ohio-3114, 128
N.E.3d 230.
II. A Few Preliminary Procedural Matters
{¶ 14} Before we reach the merits of the case, we address several motions
filed by the parties. Drouhard has filed two motions for leave to supplement the
record. Because the supplemental evidence Drouhard wishes to introduce would
establish facts that are mostly already in the record and not really disputed by the
Commissioners, we deny the motions.
{¶ 15} The Commissioners have also filed a motion to dismiss this action
as moot, asserting that Drouhard is no longer a member of the Hospital Board
because his term on the board expired on March 1, 2020. Drouhard counters that
the dispute is not moot because he remains on the Hospital Board and thus remains
subject to the threat of removal. Drouhard does not dispute that his previous term
expired, but he contends that he has been appointed to—and now is occupying—a
different seat on the board, specifically, the seat to which the Commissioners claim
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to have appointed Desmond. By statute, when a vacancy on a hospital board of
trustees has not been filled by the appointing authority within six months, the
hospital board may fill the vacancy. R.C. 339.02(F)(2). Relying on this provision,
the Hospital Board voted to appoint Drouhard to the seat that the Commissioners
allege is occupied by Desmond.
{¶ 16} Thus, whether this case is moot depends on whether Drouhard is
presently a member of the Hospital Board. That question turns on the same legal
issue we face in this prohibition action—the composition of the appointing
authority. Because the question of mootness is intertwined with the merits of the
action, we deny the request to dismiss as moot and proceed to the question in front
of us.
III. We Deny Drouhard’s Request for a Writ of Prohibition
{¶ 17} To obtain a writ of prohibition, one must establish three elements:
the exercise of judicial or quasi-judicial power, the lack of legal authority for the
exercise of that power, and the lack of an adequate remedy in the ordinary course
of law. State ex rel. Barney v. Union Cty. Bd. of Elections, 159 Ohio St.3d 50,
2019-Ohio-4277, 147 N.E.3d 595, ¶ 11. However, if the absence of jurisdiction is
patent and unambiguous, a petitioner need not establish the lack of an adequate
remedy at law. State ex rel. Sapp v. Franklin Cty. Court of Appeals, 118 Ohio St.3d
368, 2008-Ohio-2637, 889 N.E.2d 500, ¶ 15.
{¶ 18} In opposing Drouhard’s request for a writ, the Commissioners focus
solely on the third element. They contend that there is no patent and unambiguous
lack of jurisdiction and that Drouhard has an adequate remedy at law by way of
appeal from any adverse decision. We agree.
A. There Is an Adequate Remedy by Way of Appeal
{¶ 19} When there is no patent and unambiguous lack of jurisdiction and
the relator has an adequate remedy at law, prohibition will not issue. C.H. v.
O’Malley, 158 Ohio St.3d 107, 2019-Ohio-4382, 140 N.E.3d 589, ¶ 11. Pursuant
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January Term, 2020
to R.C. 2506.01(A), county courts of common pleas have jurisdiction to hear
appeals of “every final order, adjudication, or decision of any * * * authority * * *
of any political subdivision of the state.” See, e.g., State ex rel. Capretta v.
Zamiska, 135 Ohio St.3d 177, 2013-Ohio-69, 985 N.E.2d 454, ¶ 4. Drouhard does
not dispute that he possesses a remedy to challenge a removal decision through an
appeal. Thus, in order for a writ of prohibition to issue, he must demonstrate a
patent and unambiguous lack of jurisdiction.
B. There Is No Patent and Unambiguous Lack of Jurisdiction
{¶ 20} Drouhard seeks to invoke the “narrow exception” that allows a court
to issue a writ of prohibition notwithstanding the existence of an adequate remedy
at law when a tribunal patently and unambiguously lacks jurisdiction. Ohio High
School Athletic Assn. v. Ruehlman, 157 Ohio St.3d 296, 2019-Ohio-2845, 136
N.E.3d 436, ¶ 6. In his view, the Commissioners control only one of three votes on
the appointing authority and therefore lack the power to take action on behalf of the
entire body.
{¶ 21} To evaluate his claim, we turn to the language of the statute. R.C.
339.02(H) provides that a trustee “may be removed from office by the appointing
authority for neglect of duty, misconduct, or malfeasance in office.” Though the
statute doesn’t explicitly define the term “appointing authority,” it does tell us who
has the power to make appointments. R.C. 339.02(B) provides:
Unless a board of county hospital trustees for the county is
in existence in accordance with this section, such board shall be
created pursuant to this section after the board of county
commissioners first determines by resolution to establish a county
hospital. Copies of such resolution shall be certified to the probate
judge of the county senior in point of service and to the judge, other
than a probate judge, of the court of common pleas of the county
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senior in point of service. The board of county commissioners
together with the probate judge of the county senior in point of
service and the judge of the court of common pleas of the county
senior in point of service shall, within ten days after such
certification, appoint a board of county hospital trustees.
{¶ 22} Drouhard has two takeaways from this language: (1) the
Commissioners have only one collective vote on the appointing authority and (2)
Judge Hickson gets two votes because he is both the probate judge senior in service
and the common pleas judge senior in service. Thus, he contends that because the
Commissioners are the minority of the appointing authority, they lacked the
authority to schedule a show-cause hearing and a writ of prohibition will properly
issue to prevent the hearing from taking place.
1. The statute provides for each of the commissioners to have one vote
{¶ 23} Though the statute provides that “[t]he board of county
commissioners” are members of the appointing authority, it does not specifically
say whether this means each county commissioner or the board as a whole. But
when we apply our traditional tools of statutory interpretation, it becomes clear that
the provision means the former.
{¶ 24} Start with the principle that we consider words within the context in
which they are written. See Great Lakes Bar Control, Inc. v. Testa, 156 Ohio St.3d
199, 2018-Ohio-5207, 124 N.E.3d 803, ¶ 9. Here, the statutory scheme provides
the board of county commissioners with the primary responsibility in the creation
of a county hospital and the establishment and oversight of its governing authority.
The “board of county commissioners may purchase, acquire, lease, appropriate, and
construct a county hospital or hospital facilities thereof.” R.C. 339.01(B). Or the
board of county commissioners may choose to designate a county home for use as
a county hospital. R.C. 339.021. A hospital board is created only after “the board
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of county commissioners first determines by resolution to establish a county
hospital.” R.C. 339.02(B). The board of county commissioners determines the
initial size of the board: a hospital board is composed of “six members, unless the
board of county commissioners determines that the board of trustees can more
effectively function with eight or ten members in which case there may be eight or
ten members, as designated by the board of county commissioners.” R.C.
339.02(D). The board of county commissioners sets the compensation for hospital
trustees. See R.C. 339.02(I). The hospital board must file an account of its
expenditures in building and equipping the hospital with the board of county
commissioners and make final settlement with that board. R.C. 339.02(K). The
board of county commissioners must approve the county hospital’s budget. R.C.
339.06(D)(3). And the county commissioners must approve the county hospital’s
bidding and purchasing procedures. See R.C. 339.05(A).
{¶ 25} In all the aforementioned provisions, the legislature vested the sole
authority with the county commissioners, with no provision for a role by any
judicial representative. In light of the extensive and exclusive statutory role granted
to the commissioners in these other areas, it would be incongruent for the board of
county commissioners to be relegated to a minority role in the appointment and
removal of hospital trustees. Drouhard’s assertion that the two judicial
representatives comprise the majority of the appointing authority is inconsistent
with the statutory scheme. Absent some textual indication to the contrary, we are
loathe to ascribe a reading to the disputed provision that is at odds with the other
statutory provisions.
{¶ 26} Another contextual clue about the disputed provision’s meaning
comes from a different provision in the same statute regarding the creation of a
selection committee to assist in the filling of a vacancy on the hospital board. R.C.
339.02(F)(3) provides that “the appointing authority may fill a vacancy by seeking
nominations from a selection committee consisting of one county commissioner
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designated by the board of county commissioners, the chair of the board of county
hospital trustees, and the county hospital administrator.” In this provision, the
legislature clearly specified that the selection committee was to include only “one
county commissioner designated by the board of county commissioners.” The fact
that the legislature did not use the same “one commissioner” language in providing
for the appointing authority lends further weight to the view that the appointing
authority includes each of the three commissioners.
{¶ 27} There is almost no authority interpreting the disputed provision. But
what little there is also supports the notion that each commissioner is entitled to a
vote on the appointing authority. In In re Disqualification of White, 91 Ohio St.3d
1203, 741 N.E.2d 133 (2000), then Chief Justice Moyer noted that the common
pleas judge’s “participation in the appointment process is required by statute and is
limited in that he has only one of the five votes that can be cast in appointing a
trustee.” See also In re Disqualification of Corbin, 91 Ohio St.3d 1205, 741 N.E.2d
134 (2000) (“Moreover, the judge does not have sole authority to appoint the
trustees, but exercises that authority in cooperation with the county commissioners
and the judge of the probate division of the court of common pleas”). It is true that
Chief Justice Moyer’s disqualification decisions cannot be given the same weight
as a decision of this court. But they do suggest that the provision has historically
been read in the manner advocated by the Commissioners.
{¶ 28} Thus, while the statute certainly could have benefited from more
careful draftsmanship, all indications are that each of the county commissioners
possess a vote on the appointing authority, and thus constitute the majority of that
body.1
1. We express no opinion as to Drouhard’s claim that Judge Hickson is entitled to two votes on the
appointing authority. The parties have not briefed that issue, and it is not necessary for us to address
it to decide this case.
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2. The Commissioners had the authority to schedule the show-cause hearing
{¶ 29} The three Commissioners constitute the majority of the appointing
authority. Accordingly, they were well within their authority to schedule a show-
cause hearing on Drouhard’s removal. It is true that the statute requires that
Drouhard be afforded an opportunity for a hearing before the appointing authority.
R.C. 339.02(H). And one can imagine that if the Commissioners fail to provide
notice of the meeting to the judicial members or refuse to allow the judicial
members to participate, their decision might be subject to challenge on appeal. But
the statute does not prescribe the precise manner in which the county
commissioners must interact with the judicial members of the appointing authority
in scheduling a show-cause hearing or in reaching a decision on removal. The issue
here is simply whether there is a patent and unambiguous lack of jurisdiction.
Because the Commissioners hold the majority of the votes on the appointing
authority, it cannot be said that they “patently and unambiguously” lack jurisdiction
to move forward with a removal hearing.
IV. Conclusion
{¶ 30} The members of the Morrow County Board of Commissioners do
not patently and unambiguously lack jurisdiction to proceed with a show-cause
hearing on Drouhard’s removal. If Drouhard is removed from the Hospital Board,
he has an adequate remedy at law by way of appeal to the common pleas court.
Hence, we deny Drouhard’s request for a writ of prohibition.
Writ denied.
O’CONNOR, C.J., and FISCHER, DONNELLY, and STEWART, JJ., concur.
KENNEDY and FRENCH, JJ., not participating.
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Dinsmore & Shohl, L.L.P., William M. Mattes, and Justin M. Burns, for
relator.
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Isaac, Wiles, Burkholder & Teetor, L.L.C., Mark Landes, and Matthew R.
Aumann; and Farthing & Stewart, L.L.P., Brian S. Stewart, and John H. Farthing,
for respondents.
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