The opinion
[Cite as Murtha v. Rossford Exempted Village Schools, 2024-Ohio-1798.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY
Patrick Murtha Court of Appeals No. WD-23-022
Appellee Trial Court No. 2021 CV 0140
v.
Rossford Exempted Village
Schools, et al. DECISION AND JUDGMENT
Appellants Decided: May 10, 2024
*****
R. Ethan Davis, for appellee.
Bryon S. Choka, Lisa E. Pizza, Julia A. Bauer,
and Jessica K. Philemond, for appellants.
*****
ZMUDA, J.
I. Introduction
{¶ 1} Appellant, Dan Creps,1 as well as Rossford Exempted Village Schools
(REVS) and the Rossford Board of Education (board) file this interlocutory appeal of the
1
Rossford Exempted Village Schools and the Rossford Board of Education are
appellant’s co-defendants in the trial proceedings and joined appellant in his notice of
appeal and merit brief. However, because this interlocutory appeal is limited to whether
appellant, as a political subdivision employee, is immune from liability under R.C. Ch.
2744, only appellant has standing. See Thompson v. Buckeye Joint Vocational School
April 20, 2023 order of the Wood County Court of Common Pleas denying their motion
for summary judgment in which they argued in part that as an employee of a political
subdivision, appellant was entitled to immunity from the tort claims brought against him
by appellee, Patrick Murtha. Because we find that the trial court erred in its order
denying summary judgment to appellant on this issue, we reverse the trial court’s order
and remand for further proceedings.
II. Background
{¶ 2} Appellee was formerly the REVS assistant high school principal and athletic
director. The board hired appellee as assistant high school principal in April 2004, and
appellee’s employment ended on July 31, 2019 pursuant to an agreement between
appellee and the board. The agreement was executed following an investigation of three
students’ complaints alleging that appellee had engaged in inappropriate conduct.
{¶ 3} On April 21, 2021, appellee filed a complaint in the Wood County Court of
Common Pleas asserting several claims against appellant—the superintendent of
REVS—as well as against REVS and the board (REVS and the board will be collectively
referred to as Rossford) concerning the events surrounding his separation from
employment. The claims included breach of contract, defamation, false light, intentional
infliction of emotional distress, negligence, and violations of procedural due process,
substantive due process, and appellee’s liberty interests under the Ohio Constitution.
Dist., 2016-Ohio-2804 (noting that the exceptions in R.C. 27044.03(A)(6) to political
subdivision employee immunity apply to an employee sued in his individual capacity).
2.
{¶ 4} Appellant and Rossford moved for summary judgment on all of appellee’s
claims. Among other things, appellant argued that as an employee of a political
subdivision, he was immune from liability for appellee’s tort claims under R.C. Ch. 2744.
The transcripts of the depositions of appellant, appellee, and a Rossford employee,
Megan Spangler, were filed in support. The trial court denied appellant and Rossford’s
motion for summary judgment in part, holding that genuine issues of material fact
remained on whether appellant was immune under R.C. Ch. 2744.2 Appellant filed an
interlocutory appeal pursuant to R.C. 2744.02(C) challenging the trial court’s order solely
on the basis of his immunity under R.C. Ch. 2744.
A. Factual Background
{¶ 5} On February 7, 2019, three female Rossford high school students
complained to the Rossford high school principal that appellee had inappropriately
touched them on their hair, faces, or bodies and that he made inappropriate comments to
them. The principal called appellant, then the superintendent of Rossford, to inform him
that students had made complaints against appellee. Appellant put appellee on a paid
administrative leave beginning February 8, verbally informing appellee that a complaint
had been made against him. On February 11, 2019, appellant sent a letter to appellee
stating that Rossford had received a complaint that appellee had engaged in misconduct
with a student.
2
The trial court granted appellant and Rossford’s motion for summary judgment only as
to appellee’s claim for intentional infliction of emotional distress and denied the motion
in all other respects.
3.
1. Spangler’s Investigation
{¶ 6} Appellant instructed Megan Spangler, a Rossford anti-harassment
compliance officer, to investigate the complaints. Spangler was advised by Rossford’s
legal counsel throughout the investigation. Spangler began conducting interviews on
February 11, and over the next few weeks, she interviewed the complainants, several
students and staff, and appellee in the presence of his attorney. Following her
investigation, Spangler prepared a written report (“Spangler’s report”) addressed to
appellant. In the copy of the report she provided to appellant, Spangler referred to the
students by numbers rather than by their names. In addition, her report contained a
caution that all personally identifiable information of students must be further redacted
before the report could be disseminated, citing the Family Education Rights and Privacy
Act (FERPA), 20 U.S.C. 1232g, 34 C.F.R. Part 99, and R.C. 3319.321.
{¶ 7} Spangler’s report detailed the three complaints made by students whom she
designated as Students 5, 11, and 12. All three complainants alleged that appellee had
inappropriately touched them on their hair, faces, or arms, as well as made inappropriate
comments about their appearances. Student 11 stated that appellee had touched her hair,
ears, or nose over 40 times in the past year, and she had heard appellee make a
derogatory comment about another student’s body. Student 12 stated that appellee had
played with or twirled her hair and massaged her shoulders more than once, and appellee
had looked down her shirt and stared at her chest. Student 5 stated that appellee touched
her hair and had grazed her buttocks with his hand, made inappropriate comments and
4.
jokes, and would stand too close to her. All three stated that they felt uncomfortable due
to appellee’s actions.
{¶ 8} In addition to the complainants, Spangler interviewed nine other students
and several staff members, including interview subjects that appellee requested Spangler
interview. Of the nine students interviewed by Spangler, many were in a different friend
group than the complainants according to Spangler. Of the nine additional students, five
reported that appellee had touched their hair or shoulders. Of these five, two of them said
they did not feel uncomfortable due to the touching, four stated that appellee had stared at
private areas of their body, and one stated that she kept a hoodie to wear when she
worked near appellee’s office. The remaining four students denied any inappropriate
contact from appellee.
{¶ 9} Spangler also interviewed staff members. Spangler noted in her report that
some staff members appeared hesitant to discuss appellee, with some staff members
expressing concern that appellee would retaliate against them and others expressing a
lack of interest in becoming involved in the investigation. Nonetheless, one front office
staff member reported seeing appellee rubbing the shoulders of a female student who was
not one of the complainants. A second staff member from the front office saw appellee
approach a female student—again, not one of the complainants—from behind and pull
the student’s hair into a ponytail. None of the staff members Spangler interviewed had
seen appellee touch any of the complainants.
5.
{¶ 10} During her investigation, Spangler asked students and staff members
whether they knew of anyone who would want to get appellee in trouble, and she
discovered that the complainants likely had a retaliatory motive in making the
complaints. Spangler included approximately two paragraphs summarizing the potential
motive in her investigation report. She testified about this portion of her report at her
deposition as follows:
Q. As reflected in your investigation report were you aware that the
cheerleaders were unhappy with their new uniforms?
A. I did learn that through the course of the investigation.
Q. Okay. And that they had asked [appellee] if they could fund raise and
obtain new replacement uniforms, correct?
A. Correct.
Q. And he said no?
A. Correct.
…
Q. Okay. And ultimately a meeting was scheduled with several
cheerleaders, [appellee] and [Rossford High School] Principal Brashear for
them to make a presentation as to why they felt they needed new uniforms,
correct?
A. Correct.
Q. Okay. And they prepared a Power Point presentation, correct?
A. Correct.
Q. And you had a copy of that in your report?
A. Yes.
Q. Okay. And fair to say they didn't like the color of the uniforms and they
weren't sparkly enough?
…
A. The quality of the uniforms and, they said the color was off and the
quality was poor.
Q. And so after that presentation [appellee] again denied their request,
correct?
A. Yes.
Q. And --
A. I think [Principal] Brashear denied the request at that point.
…
6.
Q. And per your investigation report that presentation occurred during third
period?
…
A. The slide show was presented to [Principal] Brashear and [appellee]
during third period.
Q. And then what did your investigation reveal happened during fourth
period?
A. There were a few of the girls who were cheerleaders, also one that was
not a cheerleader who was discussing the event that happened with
[appellee] in Athens and said that he shouldn't be working with students,
they were going to get him fired.
Q. Okay.
A. As well as the cheerleading adviser.
Q. As well, so immediately following third period when they did their
presentation and they were told no on the new uniforms they were observed
by both teacher and other students to be discussing the 2004 Consent
Agreement?3
A. Yes.
Q. That they wanted to get [appellee] and the cheerleading coach fired,
correct?
A. Yes.
Q. And the teacher, fourth period Spanish, had to break them up and tell
them to knock it off?
A. Yes.
Q. And two students continued their discussion, per your report Student
Number 5 and Student Number 11, correct?
A. Yes.
Q. And who were the students that made their complaints about [appellee]
during the very next period, fifth period?
…
A. Student 11 and Student 5.
Q. Same two students, right?
A. Well, Students 5, 12 and 16 made the presentation, Students 11 and 5
went in to [Principal] Brashear's office after that.
Q. Per your report, I'm about halfway in your paragraph, according to
Student 8, and in fairness they weren't just discussing the 2004 agreement,
3
As discussed in more detail below, before his employment with Rossford, appellee
worked for a school district in Athens, Ohio. He left that employment following
allegations of inappropriate conduct, and the 2004 Consent Agreement was the result of
the Ohio Department of Education's investigation into those allegations.
7.
they were also discussing their frustration with [appellee] following the
slide show presentation per your report, correct?
A. Yes.
Q. Okay. And per your report it says on page seven according to Ms. Sofo,
the Spanish teacher?
A. Yes.
Q. And students in the class, the girls expressed frustration with [appellee]
following the slide show presentation, is that accurate?
A. Yes.
Q. And the conversation detoured, is that what that is?
A. Yes.
Q. Into a discussion of [appellee]’s disciplinary history at Athens City
Schools and related media coverage, correct?
A. Yes.
Q. What related media coverage was there?
A. I do not recall specifically.
Q. Okay. And then Ms. Sofo recalled that Student 5 began the conversation
and that Students 8, 9, 11, 17 and 18 were a part of that group, correct?
A. Yes.
Q. And according to Student 8 the girls said they were going to get
[appellee] fired and also get rid of [the cheerleading advisor]?
…
A. Correct.
Q. [The cheerleading advisor] had no history at Athens school?
A. No.
Q. So that was specific to the uniforms?
A. Yes.
Q. They were going to get her fired because they didn't like that they got
denied their uniforms, correct?
…
A. There were some other issues.
Q. With [the cheerleading advisor]?
A. Yes.
Q. And did they make a complaint about [the cheerleading advisor] as
well?
A. It wasn't, it was more about like who got to stand in the front row versus
the back row, just in general there was a few girls who just like with any
high school sport, you know, aren't happy with the amount of playing time
or their position in the pyramid, you know.
Q. Did they make complaints about [the cheerleading advisor]?
A. No.
8.
Q. And then you go on to say Ms. Sofo put an end to the girls' conversation.
Student 11 went over to Student 5’s desk to speak to her, correct?
A. Yes.
Q. And so that's the two complainants that after it’s broken up or the
teacher breaks up the conversation amongst the one, two, three, four, five,
six, seven girls, right?
A. Yes.
Q. Student 11 and Student 5 continue to talk and then the very next period
they went to the principal and made their complaints about [appellee’s]
misconduct, correct?
A. Correct.
Q. And all of that information is redacted from the publicly released
investigation report, correct?
…
A. Yes.
Q. Within an hour of the denial of the presentation they are making
complaints about [appellee], correct?
A. Yes.
{¶ 11} Finally, appellee was interviewed with his counsel present on February 26,
2019, a week after his interview had been originally scheduled due to a request from
appellee’s attorney, and Spangler documented appellee’s responses in her report.
Appellee was not told the names of the students who had made the complaints, and no
one from Rossford had given him any information regarding the specific nature of the
misconduct allegations before the interview despite an earlier request for more
information from appellee. However, during the interview, appellee admitted that an
acquaintance of his—who was also the mother of a high school student—had called him
in advance to tell him that a student told Spangler that appellee had touched her hair. The
student, who Spangler designated as Student 3, was not one of the complainants but had
been in the second group interviewed by Spangler.
9.
{¶ 12} When questioned, appellee denied ever touching a female student on her
face or hair except on one occasion. Appellee said that on that occasion he pushed
Student 3’s hair out of her eye. Appellee asserted that otherwise he had only touched a
student by giving a “side hug” or a “high five,” or by tapping a student’s shoulder to get
the student’s attention.
{¶ 13} During her investigation, Spangler also reviewed appellee’s prior
employment at Athens. When Rossford hired appellee in spring 2004, appellee was
working as the athletic administrator for Athens City Schools (Athens). In 2003, the
Athens superintendent reprimanded appellee after an athletic trainer complained that
appellee had been inappropriate and sexually harassing. The Athens superintendent
suggested that appellee seek a fresh start elsewhere.
{¶ 14} Accordingly, appellee began searching for a new job, and he interviewed
with Rossford in spring 2004. Appellee did not inform Rossford about the reprimand
against him during his interview. The board hired appellee in April 2004, and appellee’s
employment with Rossford began on August 1, 2004.
{¶ 15} Sometime after appellee’s interview with Rossford, appellee learned that
the Ohio Department of Education (ODE) had opened an investigation into his conduct at
Athens due to a complaint from an Athens parent or community member. On September
14, 2004, appellee and the ODE entered into a consent agreement. The consent
agreement stated that appellee had engaged in “inappropriate touching [of] the hair, face
and/or lower back of various members of the school community.” Under the consent
10.
agreement, appellee had to comply with several requirements to maintain his teaching
license. In addition, the Rossford superintendent had to submit regular reports to the
ODE regarding appellee’s compliance. Sometime after he was hired, but before entering
into the consent agreement, appellee discussed the ODE investigation with the Rossford
superintendent (appellant was not yet the Rossford superintendent).
{¶ 16} Based on her investigation, Spangler found the complainants’ allegations
consistent and credible despite their likely retaliatory motive. Spangler noted that other
students, including those in the group suggested by appellee and who generally supported
him, as well as staff members who had no motive to lie had either experienced or
observed appellee engaging in same type of conduct as in the complaints. Accordingly,
Spangler also found that appellee’s near categorical denial of the allegations was not
credible. Further, Spangler noted appellee’s single admission of potentially inappropriate
conduct also happened to be the exact conduct his friend had warned him about.
{¶ 17} Spangler concluded that although appellee’s conduct had been
inappropriate, his conduct did not rise to the level of sexual harassment as defined by the
board’s policy. Spangler found that appellee’s actions had not been sufficiently severe,
persistent or pervasive to interfere with the complainants’ educational performance or to
create a hostile educational environment. In so finding, Spangler considered the timing
of the complainants’ allegations in connection with appellee’s denial of the cheerleaders’
request for new uniforms.
11.
{¶ 18} Finally, Spangler recommended that, at minimum, appellee should be
disciplined for his conduct. Spangler further recommended that appellee undergo
extensive professional development and training as well as counseling and that he be
closely supervised in the future.
2. The Transition Agreement
{¶ 19} On April 12, 2019, two days after Spangler delivered her report to
appellant, appellee signed a transition agreement. The transition agreement, the terms of
which appellee negotiated with the assistance of his attorney, provided for his separation
from his employment. Appellee did not see Spangler’s report before signing the
transition agreement. Following a vote, the board executed the transition agreement on
April 22, 2019.
{¶ 20} The transition agreement contained the following provisions relevant to this
appeal: (1) the agreement served as written notice that appellee would be “ceasing all
employment” with the board effective July 31, 2019, when his employment contract
expired; (2) the board had not then concluded nor would the board conclude that appellee
had “engaged in any conduct giving rise to assignment, reassignment, discipline, non-
renewal, and/or termination of [appellant’s] employment with the board”; (3) the board
had not then concluded nor would the board conclude that appellee had “committed an
offense under R.C. 3319.31, R.C. 3319.39, and/or any applicable laws”; (4) the board had
not then “initiated any assignment, reassignment, discipline, termination, and/or non-
renewal proceedings with respect to [appellant] nor [would] the board’; (5) appellee was
12.
reassigned to working from home until the end of his contract on July 31, 2019; (6) no
“records of a disciplinary nature issued by the board” were in “any personnel file,
personal information system, or other file or information kept by the board or any board
employee/official regarding [appellee].”
3. The ODE Report
{¶ 21} On April 22, 2019, the same day the board approved the transition
agreement, appellant submitted a report regarding appellee to the ODE on an ODE form
entitled School District, DD Board & Community School Educator Misconduct
Reporting Form (“ODE form”). On the ODE form, appellant checked boxes next to the
following two options as reasons for making the report: (1) “The employee resigned
because of, or in the course of, an investigation regarding an act unbecoming the teaching
profession or an offense described in Ohio Revied Code 3319.31 or 3319.39”; and (2)
“[t]he employee has engaged or may have engaged in conduct unbecoming to the
teaching profession.” Appellant wrote that students had made complaints of misconduct
in February 2019, and after the district investigated the complaints, the district
“concluded that while [appellee] did not engage in sexual harassment as defined in the
policy, he did engage in inappropriate conduct, including unwanted touching of students’
hair and/or shoulders. [Appellee] generally denied any wrong-doing and resigned prior
to any disciplinary proceedings being initiated.”
4. Release of Information regarding the Investigation to the Public
13.
{¶ 22} Many members of the community became aware that appellee was the
subject of an investigation soon after the complaints were made. In mid-February 2019,
two local newspaper articles regarding the investigation were published. The first article
reported on appellee’s discipline in Athens, the details of which the newspaper obtained
from Athens through a public records request. The article stated that a Rossford
spokesperson had declined to provide specifics about the investigation, and a board
member stated that the investigation was “being kept under wraps.” Similarly, the
second article reported that Rossford had not provided any information about the
allegations or the investigation. Rossford received several public records requests during
the investigation into appellee, but Rossford did not provide any information in response
to the requests until after the investigation concluded.
{¶ 23} On April 22, 2019, the same day that the board approved the transition
agreement and appellant submitted the ODE form, appellant also responded to the public
records requests. Appellant released the completed ODE form as well as a redacted
version of Spangler’s report. Identifying details regarding the students, such as any
references to the complainants as cheerleaders, were redacted throughout Spangler’s
report. The entirety of the two paragraphs detailing the timing of the complaints in
relation to the cheerleaders’ request for new uniforms was also redacted.
{¶ 24} A month later, on May 22, 2019, appellant issued a letter (community
letter) addressed to the Rossford Schools community in response to community concerns
about the appellee’s prior discipline in Athens, the complaints, and Rossford’s response
14.
to the complaints. At the outset of the community letter, appellant explained that
Rossford could share only limited information about the investigation with the public due
to FERPA and to prevent the complainants from being revictimized through media
reports.
{¶ 25} Appellant then addressed appellee’s history in Athens, asserting that
appellee did not tell Rossford about the complaints or discipline in Athens at the time of
appellee’s hire and the ODE did not discipline appellee until after appellee had already
started working for Rossford. Appellant emphasized that an entirely new board had been
elected since 2004 and different people were serving as superintendent and high school
principal at that time.
{¶ 26} The letter stated that the district “conclude[d] that while [appellee] did not
engage in sexual harassment as defined in policy, he did engage in inappropriate conduct,
including unwanted touching of students’ hair and/or shoulders.” Appellant further stated
that the board accepted appellee’s resignation rather than pursuing termination to avoid
lengthy termination procedures and so that the students would not have to testify.
Appellant characterized the investigation findings as “disturbing” and appellee’s actions
as “completely unacceptable,” and stated appellee “violated the trust of our students,
community, his fellow employees and [appellant].” Finally, appellant explained he and
Rossford had intended to provide transparency to the community by previously releasing
Spangler’s report and the ODE form.
B. Procedural History
15.
{¶ 27} On April 21, 2021, appellee filed a complaint against appellant and
Rossford asserting several causes of action stemming from appellee’s separation from his
employment with Rossford. In addition to a breach of contract claim and several
constitutional claims, appellee included four tort claims: defamation, false light,
intentional infliction of emotional distress, and negligence.
{¶ 28} In support of his defamation claim, appellee alleged that appellant and
Rossford made false representations and statements to the public that appellee had
engaged in misconduct during his employment and that appellant acted with malice and
recklessness. In support of his negligence claim, appellee alleged that appellant and
Rossford had breached several duties they owed him, including a duty to perform an
accurate and fair investigation, a duty to provide him with information about the
allegations against him in advance of his interview, a duty to give him a hearing, and a
duty to accurately publish information about the investigation findings.
{¶ 29} In their answer, among other things, appellant and Rossford asserted
several affirmative defenses, including appellant’s immunity under R.C. Ch. 2744.
{¶ 30} The parties filed cross motions for summary judgment. In support of their
motion, Rossford and appellant argued in part that appellant was entitled to immunity
from liability. Appellant asserted that he was acting within the scope of his employment
as a political subdivision employee. Appellant alleged that all of his statements were
accurate statements regarding the investigation, its findings, and appellee’s separation
16.
from employment. Accordingly, appellant alleged that appellee could not establish
recklessness or malice to overcome appellant’s immunity.
{¶ 31} In response, appellee conceded that appellant was acting within the scope
of his employment, but argued appellant was not entitled to immunity because appellant
was civilly liable to appellee for his violation of Ohio law. Appellee claimed that in
publishing Spangler’s report and the ODE report, appellant violated Ohio laws that
require the confidentiality of investigations into educator misconduct. Further, appellee
argued the information regarding the complainants’ likely retaliatory motive made their
complaints less credible, and therefore redacting that information from Spangler’s report
misrepresented the credibility of their complaints to the public.4 In addition, appellee
claimed that a jury could conclude appellant acted recklessly or with malice because
appellant did not give appellee a copy of Spangler’s report, tell appellee the names of the
complainants or the specific nature of the alleged misconduct, or give appellee an
opportunity to respond after appellant released Spangler’s report and the ODE report to
the public and issued his letter to the community.
In reply, appellant argued that he was not civilly liable because the law cited by
appellee applied to investigations conducted by the ODE, not investigations conducted by
school districts. Further, appellant claimed he was required by Ohio public records laws
4
In support of this argument, appellee cited the unredacted version of the report and
moved to file the unredacted version of Spangler’s report—the one she delivered to
appellant—under seal. The trial court’s docket does not reflect that the trial court ruled
on the motion.
17.
to release Spangler’s report and the ODE report, and federal law required Rossford to
redact personally identifying information about students, which included information
identifying the complainants as cheerleaders. Indeed, Rossford asserted that they relied
on the advice of counsel in determining which information to redact, which evidences a
lack of recklessness or malice. Finally, appellant asserted that when appellee elected to
separate from his employment pursuant to the transition agreement, he relinquished any
rights he had to notice or a hearing. Appellant pointed out that after the transition
agreement was in effect, appellee was free to contact the media or appear at a public
board meeting to present more information about the credibility of the complaints.
{¶ 32} The trial court denied appellee’s motion for summary judgment. The court
granted in part and denied in part the motion for summary judgment filed by appellant
and Rossford, holding that genuine issues of material fact remained on all of appellee’s
claims except for his claim for intentional infliction of emotional distress, which the court
dismissed. As to appellant’s political subdivision employee immunity, the court agreed
with appellee’s argument that a reasonable juror could conclude that appellant acted
recklessly or with wantonness or malice. The court reasoned that summary judgment was
premature because genuine issues of material fact remained regarding whether Rossford
breached the transition agreement. Therefore, explained the court, the trier of fact must
first determine whether the breach of contract occurred before the court could determine
whether appellant was entitled to immunity. The court did not discuss whether the civil
liability exception to political subdivision employee immunity applied.
18.
III. Assignment of Error
{¶ 33} Appellant timely appealed and assert the following error for our review:
The trial court erred by failing to accord immunity to Appellant School
Board’s employees and Appellant Creps pursuant to R.C. 2744.02 and R.C.
2744.03 with respect to Appellee’s tort claims.
IV. Law and Analysis
{¶ 34} In his sole assignment of error, appellant argues that the trial court
erred in not granting his motion for summary judgment seeking dismissal of
appellee’s tort claims against him based on appellant’s immunity as a political
subdivision employee.
{¶ 35} We review the grant or denial of a motion for summary judgment de novo,
applying the same standard as the trial court. Lorain Natl. Bank v. Saratoga Apts., 61
Ohio App.3d 127, 129 (9th Dist.1989); Grafton v. Ohio Edison Co., 77 Ohio St.3d 102,
105 (1996). Under Civ.R. 56(C), summary judgment is appropriate where (1) no genuine
issue as to any material fact exists; (2) the moving party is entitled to judgment as a
matter of law; and (3) reasonable minds can come to but one conclusion, and viewing the
evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the
nonmoving party. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66 (1978).
{¶ 36} A “material fact” is one which would affect the outcome of the proceeding
under the applicable substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App.3d
301, 304 (6th Dist.1999); Needham v. Provident Bank, 110 Ohio App.3d 817, 826 (8th
Dist.1996), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, (1986).
19.
Additionally, “[w]hether a political subdivision or its employee may invoke statutory
immunity under R.C. Chapter 2744 generally presents a question of law.” Hoffman v.
Gallia Cty. Sheriff's Office, 2017-Ohio-9192, ¶ 38 (4th Dist.).
{¶ 37} On a motion for summary judgment, the moving party has the burden of
demonstrating that no genuine issue of material fact exists. Dresher v. Burt, 75 Ohio
St.3d 280, 292 (1996). In doing so, the moving party must point to some evidence in the
record in the form of “pleadings, depositions, answers to interrogatories, written
admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any,
timely filed in the action[.]” Civ.R. 56(C); Dresher at 292-293. The burden then shifts to
the nonmoving party to provide evidence showing that a genuine issue of material fact
does exist. Dresher at 293. The failure to satisfy this reciprocal burden warrants judgment
against the nonmoving party. Id.
{¶ 38} Here, the trial court held that genuine issues of material fact remained as to
whether the exception to political subdivision employee immunity in R.C.
2744.03(A)(6)(b) applied to appellant in this case. R.C. Ch. 2744 provides immunity from
liability to employees of political subdivisions—including employees of a public school
board—unless one of the following three exceptions apply:
(a) The employee’s acts or omissions were manifestly outside the scope of the
employee’s employment or official responsibilities;
(b) The employee’s acts or omissions were with malicious purpose, in bad faith, or
in a wanton or reckless manner;
20.
(c) Civil liability is expressly imposed upon the employee by a section of the
Revised Code * * *.
R.C. 2744.03(A)(6).
{¶ 39} Once a political subdivision employee establishes that immunity applies, the
burden shifts to the party seeking to impose liability to establish that one of the exceptions
applies. Jones v. Lucas Cty. Sheriff's Med. Dept., 2012-Ohio-1398, ¶ 9 (6th Dist.).
{¶ 40} The parties do not dispute that appellant, as an employee of the board, is an
employee of a political subdivision, and as such, he is entitled to immunity unless one of
the three exceptions apply, nor do the parties dispute that appellant was acting within the
scope of his employment and therefore R.C. 2744.03(A)(6)(a) does not apply. At issue in
this appeal is whether a genuine issue of material fact remains on either of the other two
exceptions in R.C. 2744.03(A)(6).
A. Malicious Purpose, in Bad Faith, or in a Wanton or Reckless Manner
{¶ 41} The exception in R.C. 2744.03(A)(6)(b) to political subdivision
immunity—which requires the plaintiff to prove that the employee acted with malicious
purpose, in bad faith, or in a wanton or reckless manner—presents a high bar. Fabrey v.
McDonald Village Police Dept, 70 Ohio St.3d 351, 356 (1994). The Ohio Supreme
Court recently defined the different types of conduct in R.C. 2744.03(A)(6)(b) as follows:
We have explained that the terms “‘willful,’ ‘wanton,’ and ‘reckless,’ [as
used in R.C. 2744.03(A)(6),] describe different and distinct degrees of care
and are not interchangeable.” Anderson v. Massillon, 134 Ohio St.3d 380,
2012-Ohio-5711, 983 N.E.2d 266, ¶ 31. We defined reckless conduct as
“conscious disregard of or indifference to a known or obvious risk of harm
to another that is unreasonable under the circumstances and is substantially
21.
greater than negligent conduct.” Id. at ¶ 34; see also O'Toole, 118 Ohio
St.3d 374, 2008-Ohio-2574, 889 N.E.2d 505, at ¶ 73 (referring to
recklessness as a “perverse disregard of a known risk”). Wanton
misconduct is “the failure to exercise any care toward those to whom a duty
of care is owed in circumstances in which there is great probability that
harm will result.” Id. at ¶ 33.
Smathers v. Glass, 2022-Ohio-4595, ¶ 33. Of the types of conduct in R.C.
2744.03(A)(6)(b), recklessness may require the lowest showing from a plaintiff, but the
bar for establishing recklessness is still high. O'Toole v. Denihan, 2008-Ohio-2574, ¶ 75.
Summary judgment is appropriate in cases in which a plaintiff alleges the employee acted
recklessly “where the individual’s conduct does not demonstrate a disposition to
perversity.” Id., citing Fabrey at 356.
{¶ 42} Indeed, this court has affirmed summary judgment in favor of an employee
of a political subdivision based on immunity in other cases. In Simon v. Mitchell, 2017-
Ohio-671 (6th Dist.), the plaintiff filed a complaint asserting malicious prosecution and
related torts against a police chief, in part because the police chief and plaintiff had a
history of personal disagreements. This court affirmed the trial court’s order granting
summary judgment because the plaintiff could not establish an exception to political
subdivision employee immunity, and the “charges at issue in [the plaintiff’s] complaint
were investigated and were filed after consultation with the prosecuting attorney.” Id. at
¶ 22.
{¶ 43} The Ninth District addressed political subdivision immunity in the context
of a defamation claim in Nice v. Akron, 2023-Ohio-2230 (9th Dist.). In that case, a
former police chief decided to resign after someone alleged the chief used racist language
22.
to describe his direct supervisor, engaged in title fraud, and committed sexual misconduct
toward a female subordinate. Id. at ¶ 2. The mayor held a press conference the next day
regarding the chief’s resignation and the allegations against him. Id. Because the mayor
did not investigate the allegations and there were reasons to doubt their credibility, the
plaintiff asserted the mayor had acted maliciously or with ill will. Id. at ¶ 20. The
appellate court affirmed the trial court’s order granting summary judgment in favor of the
mayor, explaining that the chief had admitted to using a racist word and resigned rather
than refute the allegations against him, and therefore the mayor was entitled to immunity.
Id. at ¶ 25.
{¶ 44} In contrast, cases in which we have held that summary judgment was
inappropriate regarding immunity have involved significant evidence of tortious conduct
or evidence of a defendant’s ill intent. See, e.g., Stachura v. Toledo, 2013-Ohio-2365
(6th Dist.) (holding that summary judgment dismissing employment-discrimination
claims against city firefighters on the basis of immunity was inappropriate because the
plaintiff’s case involved “extensive claims and vast evidence” spanning “a multi-year
timeframe”); Spitulski v. Bd. of Education of Toledo City School Dist., 2017-Ohio-2692
(6th Dist.) (affirming trial court’s order denying supervisor’s motion for summary
judgment in an age-discrimination claim where the supervisor asked questions about
when the plaintiff was going to retire and stated that the district wanted to discharge him
because he had too much gray hair).
23.
{¶ 45} Here, the trial court’s order denying summary judgment reasoned that
because genuine issues of material fact remained regarding whether the transition
agreement was breached, fact issues remained regarding whether appellant’s conduct fell
under the exception to immunity in R.C. 2744.03(A)(6)(b). Appellee alleges that R.C.
2744.03(A)(6)(b) applies to defeat appellant’s immunity because appellant acted with a
malicious purpose, in bad faith, or in a wanton or a reckless manner in many ways in
connection with appellee’s separation from his employment. Appellee’s allegations
against appellant can be grouped into the following categories: the investigation, the
release of allegedly confidential information regarding the investigation, the release of
allegedly inaccurate or misleading information, and the redaction of the cheerleaders’
motive.5
1. The Investigation Procedures
{¶ 46} In the first category, appellee claims that appellant’s handling of the
investigation was so far outside of Rossford’s policies for such investigations as to make
appellant’s actions reckless. Appellee argues that Rossford was obligated to provide
appellee with more specific information concerning the allegations against him in a
timelier manner, and Spangler was required to get signed written statements from the
5
Appellee also argues that he was subjected to disparate treatment –he claims the school
did not treat allegations that a cheerleading adviser “fat-shamed” a student in the same
way as the allegations against him—which he contends is further evidence of a malicious
purpose, bad faith, or wantonness or recklessness. However, because appellee failed to
raise this argument before the trial court, we cannot consider it on appeal. See Lester v.
Don's Automotive Group, LLC, 2021-Ohio-4397, ¶ 49.
24.
complainants. Appellee also argues that Spangler should have reviewed CCTV video
surveillance footage in the building. Even if true, however, these assertions do not create
a genuine issue of material fact that appellant acted with recklessness, wantonness,
malice, or bad faith.
{¶ 47} Almost immediately after learning of the complaints, appellant contacted
Spangler, the district’s anti-harassment compliance officer, to begin an investigation.
Spangler interviewed twelve students and several staff members, including those
suggested by appellee, and she conducted a lengthy interview of appellee himself before
drafting a detailed report, all with the assistance of legal counsel. Appellee was notified
in writing that he had been accused of misconduct regarding a student soon after he was
placed on leave. At his interview, appellee was represented by counsel (it was
rescheduled so appellee’s attorney could attend).
{¶ 48} Notably, this investigation did not involve an educator who may not have
been fully aware of investigation procedures—as the district’s only other anti-harassment
compliance officer, appellee was expected to be aware of the school’s policies regarding
investigations. Nonetheless, appellee executed the transition agreement waiving claims
involving his separation from employment. Accordingly, appellant’s conduct with
respect to the investigation did not involve a “perverse disregard of a known risk.”
O'Toole, 2008-Ohio-2574, at ¶ 73. Further, whether Rossford breached the transition
agreement does not relate to whether appellant properly followed the investigation
procedures.
25.
2. Appellant’s Characterization of Appellee’s Conduct, Separation, and
Rossford’s Prior Knowledge of Appellee’s Conduct in Athens
{¶ 49} Appellee alleges that appellant released inaccurate or misleading
information about him, thus demonstrating recklessness at minimum. Appellee claims
appellant’s statements on the ODE form and in the community letter that appellee
resigned were inaccurate because appellee worked for Rossford for the remainder of his
employment contract. Appellee also claims that appellant’s characterization of appellee’s
conduct as inappropriate was inaccurate and appellant’s assertion that the district
concluded appellee engaged in inappropriate acts conflicts with the transition agreement,
which provided that the district would not so conclude. Additionally, appellee alleges
that the community letter’s assertion that Rossford was unaware of appellee’s prior
discipline in Athens when appellee was hired must be false because the Rossford
superintendent was required to make regular reports to the ODE as part of appellee’s
consent agreement.
{¶ 50} However, appellee has not set forth sufficient evidence to create a genuine
issue that appellant’s characterization of appellee’s conduct, his separation from
employment in the ODE report or his community letter, or Rossford’s prior knowledge of
appellee’s discipline in Athens was done recklessly, or with wantonness, malice, or bad
faith.
{¶ 51} First, regarding appellee’s prior discipline in Athens, the community letter
stated that Rossford was not aware of appellee’s discipline in Athens or the ODE
investigation at the time that appellee was hired. Appellee conceded that he himself did
26.
not know of the ODE investigation regarding Athens nor did he share any information
regarding his discipline in Athens at the time of his interview. Appellee argues now that
Rossford was aware of his prior discipline and the consent agreement when he was hired
by Rossford in 2004. However, appellee has not submitted any evidence to support that
that argument. On the contrary, when appellee was questioned at his deposition about the
accuracy of the community letter assertion regarding Rossford’s lack of knowledge of the
Athens discipline and consent agreement upon appellee’s hire, appellee testified as
follows:
Q. Yes. When you were hired by Rossford you did not mention your discipline
from this conduct?
A. No, I did not.
Q. Nor did the mention the prior conduct in Athens, correct?
A. I did not mention that. I did not mention that, but the Ohio Department of
Education in receipt because of our, no disclaim received because of when he was
hired by our district, no discipline, the Ohio Department of Education did not
discipline Mr. Murtha for actions in September. So, I just want -- yes.
Q. So that's correct?
A. Yes, that's correct.
{¶ 52} Indeed, Rossford hired appellee in April 2004, and appellee did not enter
into the consent agreement with the ODE until September 2004, so it would have been
impossible for him to inform Rossford about the consent agreement at the time of his
hire. According to appellee’s own testimony, that conversation occurred sometime after
his hire. As such, appellant’s statement that Rossford was unaware of appellee’s history
in Athens at the time of appellee’s hire was supported by appellee’s own deposition
testimony and cannot establish recklessness.
27.
{¶ 53} Next, in the ODE report, appellant stated that the district concluded that
appellee’s conduct was “inappropriate” but not “sexual harassment as defined in policy.”
In the community letter, appellant made a similar statement. Appellant’s characterization
of appellee’s conduct was nearly a direct quote of Spangler’s conclusion from her
investigation report, which she reached after interviewing several witnesses, including
appellee, and consulting with legal counsel. Indeed, in the investigation, students without
any apparent motive to retaliate against appellee reported the exact same type of
inappropriate conduct as the complainants, and staff members who worked near appellee
also reported witnessing appellee’s inappropriate conduct with other students. Further, as
a public employee, appellee had the opportunity to have a hearing to further refute the
allegations against him, and he elected to waive that process by entering into the
transition agreement.
{¶ 54} Just like the defendant’s statements in Simon v. Mitchell, 2017-Ohio-671,
appellant’s statements were made only after an investigation into the allegations. And
just like the plaintiff in Nice v. Akron, 2023-Ohio-2230, appellee chose to cease his
employment rather than to refute the allegations against him. Appellant’s
characterization of appellee’s conduct as “inappropriate” merely reflects the conclusion
of a thorough investigation and therefore does not rise to recklessness or malicious under
R.C. 2744.03(A)(6)(b).
{¶ 55} Similarly, appellant’s characterization of appellee’s separation from his
employment as a “resignation” cannot be construed as reckless. Appellee did remain
28.
employed with Rossford following the transition agreement. He did not, however, return
to most of his duties after the transition agreement, and he agreed his contract would not
be renewed when it expired a few months later. Notably, under Ohio law, most educators
employed under a contract with a school board are entitled to a presumption that their
contract will be renewed, and if either the educator or the school board does not plan to
renew the contract at its expiration, the nonrenewing party must give advance notice. See
R.C. 3319.11. Accordingly, even if appellee’s argument is true and appellant’s
characterization of appellee’s separation from employment as a “resignation” was not
entirely precise—and we express no opinion on whether it was or not—appellant’s
statements cannot be construed as meeting the high bar of R.C. 2744.03(A)(6)(b).
{¶ 56} Further, although appellee argues that appellee’s statements constituted a
breach of the transition agreement—an issue that is not before us and on which we
expressly decline to opine—that is a separate issue from whether appellant acted
recklessly or with malice in repeating the investigation’s conclusion that appellee acted
inappropriately publicly or describing his separation as a resignation. The parties’
arguments about the timing of the conclusion (i.e., was the conclusion reached before or
after the transition agreement was executed) and who made the conclusion (i.e., did
Spangler’s conclusion amount to a conclusion of Rossford) go to the issue of whether the
termination agreement was breached. There is no dispute that appellant’s statements
accurately described the conclusion of an investigation conducted by a Rossford
employee at Rossford’s behest. Accordingly, appellant has set forth sufficient evidence
29.
that appellee failed to rebut that appellant’s statements were not made with recklessness,
malice, wantonness, or bad faith for purposes of R.C. 2744.03(A)(6)(b), especially in
consideration of appellant’s duty to make some of those statements as discussed below.
3. The Redaction of the Complainants’ Retaliatory Motive in Spangler’s Report
{¶ 57} Appellee also argues that by releasing a version of Spangler’s report in
which the two paragraphs discussing the complainants’ likely retaliatory motive was
redacted, appellant withheld from the public all potentially exculpatory information
regarding appellee.6 Appellant contends that state and federal law requires schools to
redact personally identifiable information about students, students without a similar
motive made similar allegations against appellee, and appellee was free to publicly
discuss the motives of the complainants.
{¶ 58} Contrary to appellee’s argument, not all potentially exculpatory
information was redacted from the publicly released version of Spangler’s report. The
publicly released version of the report included statements from staff members and
students who did not witness appellee acting inappropriately toward the complainants as
well as appellee’s own denials of the accusations. The only exculpatory information that
was redacted was the information that identified the complainants as cheerleaders.
{¶ 59} R.C. 3319.321(B) and 20 U.S.C. 1232g(b) prohibit a public school district
from releasing a student’s personally identifiable information. Under federal law, a
6
The unredacted report was not a part of our record. However, the parties do not dispute
the substance of the redactions, and as previously discussed, Spangler’s deposition
testimony includes a lengthy discussion of the redacted sections.
30.
student’s personally identifiable information includes “information that would make the
student’s identity easily traceable.” Baker v. Mitchell-Waters, 2005-Ohio-1572, ¶ 25,
quoting Ellis v. Cleveland Mun. School Dist., 309 F.Supp.2d 1019, 1022 (N.D.Ohio
2004). Because schools are subject to public-records requests, schools must redact
personally identifiable information from documents otherwise subject to public record
requests. See, e.g., State ex rel. ESPN v. Ohio State Univ., 2012-Ohio-2690, ¶ 33
(holding that a university was required to provide access to records containing personally
identifiable information concerning student-athletes after first redacting that information).
{¶ 60} As discussed below, appellee has not presented a meritorious argument to
refute appellants’ contention that the district was legally obligated to release Spangler’s
report in response to public-records requests. The release of the report containing
identifying the complainants as cheerleaders at REVS could have made their identities
easily traceable.
{¶ 61} Appellant’s compliance with state and federal laws cannot be the basis for
a claim that he acted recklessly or with wantonness, bad faith, or malice. Further, the
inclusion of other exculpatory evidence in the publicly released version of the report
supports appellant’s explanation that the redactions were intended to protect student
identities and not to make the complaints against appellee appear more credible to the
public. Therefore, appellee has not met his burden to establish that appellant’s release of
a redacted version of Spangler’s report met the high bar required to overcome appellant’s
immunity under R.C. 2744.03(A)(6)(b).
31.
4. Appellant’s Release of Spangler’s Report, the ODE Form, and the
Community Letter
{¶ 62} Next, appellee argues that all records relating to complaints of an
educator’s misconduct are confidential under Ohio law, and therefore appellant’s actions
in releasing Spangler’s report and the ODE form, and discussing the investigation in his
community letter, defeat appellant’s immunity under R.C. 2744.03(A)(6)(b). However,
appellee’s argument fails as a matter of law.
{¶ 63} First, appellant had an obligation to submit the ODE report under R.C.
3319.313(B), which requires a district to report to the ODE whenever an educator “has
resigned because of or in the course of an investigation by the board of education,
governing board, or chief administrator … regarding whether the employee has
committed an act that is unbecoming to the teaching profession.” R.C. 3319.313(B)(4).
This obligation is so important that the Ohio legislature expressly protected reporters
from liability for making the reports. R.C. 3319.313(G).
{¶ 64} Next, the confidentiality laws cited by appellee do not apply to local school
districts. R.C. 3319.311(A)(1) provides as follows:
The state board of education, or the superintendent of public instruction on behalf
of the board, may investigate any information received about a person that
reasonably appears to be a basis for action… Except as provided in division
(A)(2) of this section, all information received … and all information obtained
during an investigation is confidential and is not a public record under section
149.43 of the Revised Code.
(emphasis added).7
7
Division (A)(2) of that section relates to situations in which an educator is convicted by
a court of an offense and therefore does not apply to this case.
32.
{¶ 65} The first phrase of the statute provides that “the state board of education, or
the superintendent of public instruction on behalf of the board, may investigate,” making
the state board of education or the superintendent of public instructions the investigator,
not a local school district.
{¶ 66} In contrast, R.C. 3319.314 applies specifically to investigation reports
prepared by local school districts. The statute requires school districts to keep
investigation reports in the employee’s personnel file. R.C. 3319.314. The statute further
provides if the ODE performs an investigation and determines no action is required, the
statute requires the district to move the investigation report from the employee’s
personnel file to a “separate public file.” Id. Accordingly, the statute contemplates the
public release of investigation reports even after the ODE performs an investigation.
{¶ 67} Appellee further argues that Adm.Code 3301-73-04 makes the
investigation records confidential and not subject to public records requests. Adm.Code
3301-73-04(A) provides that “[a]ll information obtained during an investigation is
confidential and is not a public record.” Further, “[i]nformation received by the
department, pursuant to an investigation is confidential and not subject to discovery in
any civil action.” Adm.Code 3301-73-04(F). However, this entire chapter of the
administrative code governs proceedings conducted by the state, not local districts.
{¶ 68} Appellee has not pointed to any authority applying the confidentiality
provisions of either Adm.Code 3301-73-04(A) or R.C. 3319.311(A)(1) to local school
districts, nor any other authority requiring a school district to keep investigation records
33.
confidential. Further, R.C. 3319.314’s requirement that district investigation reports for
teachers be kept in personnel files, which are generally subject to public disclosure, and
reports on those who are investigated by the ODE but not disciplined are expressly
subject to public disclosure creates the opposite implication—school districts’
investigation reports are subject to public disclosure.
{¶ 69} Here, Spangler’s report was not created in response to an ODE
investigation. The investigation was conducted entirely within the district by a district
employee, and the report was completed before the ODE was contacted. Further,
appellant only released Spangler’s report after the investigation had concluded—no one
from Rossford spoke to the press while the investigation was underway—and only in
response to public records requests under Ohio public records law to which Rossford was
subject as a political subdivision. See R.C. 149.011(A) and (G); R.C. 149.43(A).
Further, appellant has presented evidence of rising public interest and community
concern about the investigation conclusions. Appellant’s release of the reports and
discussion of the investigation’s conclusions in his community letter in response to the
concern “does not demonstrate a disposition to perversity” as required by R.C.
2744.03(A)(6)(b). O'Toole, 2008-Ohio-2574 at ¶ 75, quoting Fabrey at 356.
34.
B. Civil Liability
{¶ 70} Appellee claims that appellant is liable for releasing the investigation report
and the Educator Misconduct Reporting Form to the media. R.C. 1347.10 creates civil
liability for disclosing personal information in a manner prohibited by law. If the
investigation report and statements in the Educator Misconduct Reporting Form were
confidential, as appellee contends, then their release would be a prohibited disclosure of
personal information.
{¶ 71} Appellant argues that even if the reports were confidential, their release
falls under an exemption in R.C. 1347.04. R.C. 1347.04(A)(1)(e) exempts “[p]ersonal
information systems that are comprised of investigatory material compiled for law
enforcement purposes by agencies that are not described in divisions (A)(1)(a) and (d) of
this section.”
{¶ 72} The trial court’s order denying summary judgment does not address
whether the civil liability exception under R.C. 2744.03(A)(6)(c) applies. Accordingly,
this issue is not ripe for our review, and we remand this case to the trial court for further
proceedings addressing this issue. See Accent Group, Inc. v. Village of N. Randall, 2004-
Ohio-1455, ¶ 15 (8th Dist.).
V. Conclusion
{¶ 73} The trial court erred in holding that genuine issues of material fact remain
on whether the exception to political subdivision employee immunity in R.C.
2744.03(A)(6)(b) applies to appellee’s claims against appellant. Further, because the
35.
parties briefed and argued whether the exception to political subdivision employee
immunity in R.C. 2744.03(A)(6)(c) applies, the trial court erred in not addressing the
issue. Accordingly, we find appellant’s assignment of error well-taken and we reverse
the April 20, 2023 judgment of the Wood County Court of Common Pleas and remand
the case for consideration of whether R.C. 2744.03(A)(6)(c) applies to appellee’s claims
against appellant.
{¶ 74} Appellee is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment reversed,
and remanded.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. ____________________________
JUDGE
Christine E. Mayle, J.
____________________________
Gene A. Zmuda, J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
36.