Federal Court Grants Summary Judgment to Brown Co. Prosecutor's Office in Malicious Prosecution Case
FHKAD Attorneys Dan Downey and Frank Hatfield received summary judgment on behalf of the Brown County Prosecutor's Office. Five officals with the Ohio Department of Natural Resources Department of Wildlife (ODNR) sued teh Brown County Prosecutor alleging, among other accusations, that the Brown County Prosecutor subjected them to a malicous prosecution, falisified evidence, and conspired to deprive them of various rights. Read More.
Federal Court Grants Summary Judgment to Sheriff's Office in Jail Suicide Case
Dan Downey and Paul Bernhart recently received summary judgment on behalf of the Licking County Sheriff's Office in a jail suicide case. William Overbey committed suicide while incarcerated in the Licking County Justice Center awaiting trial on domestic abuse charges. Overbey was placed on "potential suicide risk" by a jail deputy and evaluated by a mental health social worker on the day of the suicide. Read More.
Court of Appeals Affirms Summary Judgment Award in Disability Discrimination Lawsuit
Attorneys Marc Fishel and Paul Bernhart had a Court of Appeals affirm a decision awarding summary judgment to the City of Sandusky in an employment discrimination case brought by a former City firefighter. The firefighter was diagnosed with a neurological discorder in 2004 and disclosed the diagnosis to his supervisors. Read More.
FHKAD Attorneys Win Summary Judgment in Fourth Amendment Case
Dan Downey and Paul Bernhart received summary judgment on behalf of a former Meigs County Sheriff’s Deputy in a federal lawsuit alleging Fourth Amendment violations. The case involved law enforcement officers seizing “potpourri” (synthetic marijuana) from Plaintiff’s roadside stand in August, 2011. Ohio passed a law criminalizing synthetic marijuana in 2011, however the law did not go into effect until October, 2011. Instead, officers seized the synthetic marijuana as a harmful intoxicant pursuant to R.C. Section 2925.32. Plaintiff alleged that the statute did not apply to synthetic marijuana and that synthetic marijuana was not yet illegal in Ohio in August, 2011, when the officers seized it. Read More.
FHKAD Attorneys Win Federal Jury Trial
On November 14, 2014, David Riepenhoff and Daniel Downey received a jury verdict in favor of two Licking County, Ohio Sheriff’s Detectives. The case was Jacqueline Valentino v. Jeff Packard, et al. In the case, Mrs. Valentino alleged the officers violated her Fourth Amendment rights and Indiana Law when they interviewed her as part of a murder investigation. The case was tried in the U.S. District Court for the Southern District of Indiana, Indianapolis Division. Read More.
Sixth Circuit Court of Appeals Affirms Dismissal of Claims in Gallia County
On June 3, 2014, the Sixth Circuit affirmed the District Court’s dismissal of all claims against the Gallia County Board of Commissioners, the County Public Defender Commission, and the County Criminal Defense Corporation (hired by the County and the Commission to provide public defender services). See Bright v. Gallia County, et al., Case. Nos. 13-3451/13-3907. In Bright, Plaintiff, a former Public Defender sued the County, and others, after he was removed from nearly 70 cases before one of the Defendants. As a result of Bright’s removal from 70 cases by one of the Defendants, Bright’s employment was terminated since he could no longer represent a majority of its clients. Bright argued that Defendants should have intervened and protected his employment preventing his termination. The District Court and Sixth Circuit disagreed. A municipality cannot be held liable solely because it employs a tortfeasor—a plaintiff must adequately establish that a violation of federal law occurred under color of state law and that the municipality’s policy or custom caused that violation to happen. The Sixth Circuit affirmed that Bright failed to state sufficient facts that would suggest a violation of federal law.
The Sixth Circuit also overturned the District Court’s denial of immunity to Judge Evans, one of the Defendants in the case. Judge Evans was the Defendant that removed Bright from the 70 cases. Although Judge Evans may have inappropriately removed Mr. Bright from cases, the Judge was still entitled to judicial immunity. His actions were judicial in nature and were taken in cases in which he had jurisdiction.
Arbitrator Can Convert Termination to Resignation Without Employee's Consent
The City of Trention received an arbitration award that was summarized and published in the LRIS Public Safety Labor News' September 2013 Newsletter. Check out the summary on page of 6 by clicking here.
Jackson County EMS Justified in Ceasing Part-Time Benefits
Fishel Hass received a favorable Arbitrators Award from Arbitrator Silver. The Teamsters challenged the Jackson County EMS’ ceasing of sick leave benefits to part-time employees upon the ratification of this first contract between the parties. The Union argued that: (a) past practice was to provide these benefits to part-timers, (a) the Union never intended to give them up and (c) that the ORC indicates that part-time sick leave is required. The Employer argued that the express terms of the collective bargaining agreement states that sick leave will be paid to “full time employees” and that “all past practices are void upon ratification.” Additionally, the Employer argued that the ORC was expressly waived by the express language in the collective bargaining agreement.
Arbitrator Silver found that the inclusion of the verbiage “full-time” in the collective bargaining agreement indicates that the parties meant to exclude “part-time” employees from sick leave. Further, the Arbitrator found that the collective bargaining agreement waived application of the ORC and waived all past practices. Therefore, the Employer was justified in ceasing part-time benefits.
Motion to Dismiss Section 1983 Claim Granted
In Bright v. Gallia County, et al, 2:12-CV-00800-JLG-EPD, Bright, a former Gallia County Assistant Public Defender, brought suit alleging that the County Commissioners and the County Public Defender Commission had a constitutional obligation to prevent a local judge from removing him from all felony criminal cases in the Gallia County Court of Common Pleas. Bright and the Common Pleas Court Judge had a disagreement regarding a potential settlement offer that resulted in the Judge removing Bright from all his pending criminal cases. According to Bright, this removal rendered him unable to do his job. Subsequently, the plaintiff’s employer, a private, non-profit organization created to provide legal services to indigent defendants in Gallia County, terminated his employment.
Plaintiff brought claims against the County Commissioners, the County Public Defender Commission, the Common Pleas Court Judge, and Bright’s former employer in federal court. He alleged violations of his rights under the First and Fourteenth Amendments to the United States Constitution. Finding that the plaintiff failed to plead any facts that could result in liability on the part of the County or the Commission, the Southern District granted the County Defendants’ Motions to Dismiss. Simply, Plaintiff failed to identify any constitutional right that the County defendants even arguably violated. Bright’s claims against his former employer were also dismissed.
Employee Handbook Does Not Alter Appointing Authority's Power to Remove Employees
The Third Appellate District Court held that as the appointing authority a County Home Administrator has the authority to remove employees despite an employee handbook stating the county commissioners are the appointing authority. Lawrence v. Hardin Hills. Ohio App. 3rd Dist. Case No. 6-12-13 (May 20, 2013).
The Hardin Hills Office Manager was removed from her position by the Administrator of the county home. The Office Manager position is in the unclassified civil service and, as such, the Office Manager was employed at-will with no entitlement to due process prior to removal. Nonetheless, upon being removed the Office Manager appealed to the State Personnel Board of Review (“SPBR”). She argued that regardless of classification status, the county home Administrator was not the appointing authority and, thus, the Administrator could not terminate her employment. The Office Manager based her argument on the Employee Handbook which provides that the county commissioners are the appointing authority for county home employees.
The issue of who’s the appointing authority is a matter of law and generally cannot be altered by an entity’s designation. The Court reviewed applicable statutes, case law and Attorney General Opinion’s and found the county home administrator to be the appointing authority for county home employees. The Court added that no legal authority supports the Office Manager’s argument that an appointing authority may be designated via employee handbook.
This case illustrates that long standing principal that civil service rights are purely a matter of law and generally cannot be extended, contracted or altered by other means. That being said, public employers are wise to review policies to ensure they are consistent with civil service law to avoid employees claims based upon contrary policies. For more information regarding this case, civil service matters or to request a copy of the decision, contact Frank Hatfield at firstname.lastname@example.org
Arbitrator Finds that Clear and Unambiguous Contract Language Permits a Recently Self-Demoted Deputy to Bid for Day Shift Position
A Sheriff’s Office posted a highly coveted opening for a deputy on day shift in the road division. During the seven day posting period, ten employees signed the posting, including one deputy who chose to resign his sergeant stripes in order to bid for the open deputy position. The former sergeant had the most seniority and was awarded the position. The Union grieved the award, arguing that the sergeant should not be permitted to resign his stripes during the posting period to compete against deputies (a separate bargaining unit) for the day shift position.
Referencing two specific instances when sergeants had given up their stripes to become deputies, the union argued that past practice established that a sergeant giving up his stripes takes whatever is left open after all deputies bid. The employer responded by arguing that the two instances cited by the union were insufficient to establish a binding past practice and that the contract language was clear and unambiguous. The arbitrator denied the grievance, finding that the language in the collective bargaining agreement was clear and unambiguous and that the union’s position would require the Arbitrator to insert modifying language which was not negotiated. The collective bargaining agreement did not include any requirement that a successful bidder be a member of the bargaining unit at the time a vacancy was posted. As the former sergeant was a bargaining unit member at the time the position was awarded, no contract violation occurred. For a copy of the decision or for any questions, please contact email@example.com
Appellate Ct. Sustains Termination and Upholds Vacating Arb. Award
The Tenth District Ct. of Appeals upheld a decision of the Franklin Co. Common Pleas Ct. vacating an arbitration award of back pay and benefits to a city union member because the arbitrator exceeded his authority under the collective bargaining agreement. In addition, the Appeals Court affirmed the Common Pleas Court’s decision denying the union’s motion to vacate the award on public policy grounds and sustained the member’s termination. Read More »
Federal Court Grants MSJ in Perfume Case
In Core v. Champaign Bd. Co. 3:11-cv-166 (2012), David Riepenhoff and Frank Hatfield were successful in obtaining summary judgment on behalf of Champaign County Board of County Commissioners (“Champaign DJFS”). Ms. Core worked for the Champaign DJFS as a social worker beginning in 2003. Her job duties included, among others, inspecting day care facilities, meeting with clients, performing trainings, and accessing confidential files located only at the Champaign DJFS. Beginning in 2008 Ms. Core claimed to have difficulty breathing when exposed to perfumes and fragrances. Later she claimed Japanese Cherry Blossom perfume triggered her asthma. Plaintiff reported approximately five incidents of perfume exposure from 2008 to early 2010. Ms. Core’s treating nurse practitioner opined that Ms. Core required a work environment free of perfumes, fragrances and/or allergens. Read More »