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Wednesday, Nov. 19, 2008

State Employment Relations Board and City of Cincinnati v. Queen City Lodge No. 69, Fraternal Order of Police, Case no. 2007-2269
1st District Court of Appeals (Hamilton County)

State of Ohio v. Parris Boswell, Case no. 2007-2373
8th District Court of Appeals (Cuyahoga County)

Northeast Ohio Psychiatric Institute v. William W. Wilkins [Richard A. Levin], Tax Commissioner of Ohio, Case no. 2008-0033
State Board of Tax Appeals

Disciplinary Counsel v. Bruce A. Brown (aka B. Andrew Brown, aka Amir Jamal Tauwab, Case no. 2008-1573
Cuyahoga County

State of Ohio v. David L. Harrison, Case no. 2008-0331
12th District Court of Appeals (Auglaize County)

Does Charter Amendment Allow City to Act Contrary to Pre-Existing Collective Bargaining Agreement?

State Employment Relations Board and City of Cincinnati v. Queen City Lodge No. 69, Fraternal Order of Police, Case no. 2007-2269
1st District Court of Appeals (Hamilton County)

ISSUES:

BACKGROUND: In the aftermath of several days of rioting and protests based on alleged improper conduct by city police officers, the Cincinnati City Council placed on the November 2001 election ballot a proposed amendment to the city charter. The amendment, which was approved by voters, specified that all future openings for the position of assistant chief of police would be filled by appointment of the city manager, and that all assistant chiefs of police appointed after the effective date of the amendment “shall be in the unclassified civil service and exempt from all competitive examination requirements.”

After the effective date of the charter amendment, an assistant chief of police position became vacant.  Rather than filling that vacancy by following the past practice of automatically promoting the highest-rated employee on a current promotion-eligibility list, the city manager selected and appointed another person. The Queen City Lodge of the Fraternal Order of Police (FOP), the union representing the city’s police officers, filed an unfair labor practice grievance with the State Employment Relations Board (SERB). The union argued that its then-current collective bargaining agreement (CBA) with the city, which was effective from December 2000 through December 2002, required mandatory negotiation between the city and the union regarding any change in the terms for promotions, and the city had not negotiated before unilaterally abandoning its established past practice and adopting a new appointment procedure for the position of assistant chief.

SERB ruled that the city had not engaged in an unfair labor practice. Its decision held that there was no specific provision in the CBA establishing promotion criteria, and cited past SERB rulings holding that a public employer is not bound by a mandatory negotiation requirement in a CBA when a midterm change in a term subject to negotiation is mandated by the action of a “higher-level legislative body.” In this case, SERB held, the citizens of Cincinnati had functioned as a “higher-level legislative body” when they approved the charter amendment specifying how future openings for assistant police chief positions must be filled, thus requiring the city to abandon its past practice of promoting from an eligible list.

The FOP appealed the SERB decision to the Hamilton County Court of Common Pleas, which ruled that SERB had erred in finding that there was no conflict between the charter amendment and the pre-existing CBA. The common pleas court found that the amendment was in conflict with language in the CBA stating that when an assistant chief position became vacant through a voluntary retirement, the top person on the current promotion-eligibility list must be appointed to fill that vacancy. The court also held that the amendment’s removal of newly appointed assistant chief positions from the classified civil service to unclassified status was in conflict with a provision in the CBA that extended classified employee grievance and appeal rights to all holders of assistant chief positions through December 2002.

The common pleas court held further that in analyzing the union’s unfair labor practice claim against the city, the relevant action was not the voters’ adoption of the charter amendment, but rather city council’s action in placing the amendment on the ballot despite knowing that, if adopted, the amendment would abandon terms and conditions of employment the city had agreed to in its prior negotiations with the FOP. Based on those findings, the common pleas court held that SERB’s decision was unreasonable and that the city was guilty of an unfair labor practice.

The city appealed to the 1st District Court of Appeals, which reversed the trial court’s holding and reinstated the SERB decision in favor of the city. The FOP sought and was granted Supreme Court review of the 1st District’s ruling.

Attorneys for the FOP argue that under the SERB and court of appeals decisions in this case, local government units are effectively permitted to extract concessions from their employees in exchange for specified benefits and civil service protections set forth in collective bargaining agreements, and then escape from unfavorable provisions in those agreements by adopting legislation or placing on the ballot legal changes that renege on the terms of the CBA. They urge the Court to follow past decisions holding that, when application of a new legislative enactment would violate the terms of a pre-existing contract, the new enactment may not be applied retrospectively to deprive a party of vested contractual rights.

Attorneys for Cincinnati and SERB urge the Court to affirm the 1st District’s holding that the common pleas court in this case abused its discretion by failing to defer to SERB’s findings that there was no direct conflict between the charter amendment and the CBA, and that the city was not compelled to negotiate the change in appointment procedures for assistant chiefs because that change was mandated by the voters. They cite past court decisions holding that in cases alleging unfair labor practices by public employers, a reviewing court is required to affirm a SERB ruling if that decision is supported by any credible, substantial evidence. In this case, they assert, SERB analyzed the charter amendment and CBA and found that the purpose of the CBA language cited by the common pleas court was not to set forth an agreed-upon “promotion” process for vacant assistant chief positions. They also contend that SERB made a credible finding that the city did not engage in trickery or gamesmanship in placing the charter amendment on the ballot, but rather responded to an emergency situation by allowing voters to adopt or reject proposals that were drafted by a citizen task force to address a widely perceived need for increased public accountability of the city’s top police officials.

Contacts
Stephen S. Lazarus, 513.721.7300, for Queen City Lodge No. 69, Fraternal Order of Police.

Richard Ganulin, 513.352.3329, for City of Cincinnati.

William P. Marshall, 614.466.8980, for State Employment Relations Board.

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Does Inaccurate Advisement About Post-Release Control Invalidate Offender’s Guilty Plea?

State of Ohio v. Parris Boswell, Case no. 2007-2373
8th District Court of Appeals (Cuyahoga County)

ISSUES:

BACKGROUND: In May 2000 Parris Boswell of Cleveland pleaded guilty to felony counts of aggravated burglary, aggravated robbery, felonious assault and having a firearm while under a disability. In exchange for his guilty pleas, the state agreed not to seek consecutive, rather than concurrent, sentences for his crimes, thereby significantly reducing the potential time he would spend in prison. Before accepting his pleas, the trial court engaged in a required colloquy (discussion) with Boswell to determine that he understood the consequences of his guilty pleas and was entering them knowingly and voluntarily. Because several of his offenses were first-degree felonies, the court was required by law to include in Boswell’s sentence a five-year term of “community control” after his release from prison. In its colloquy, the court informed Boswell that he “may be subject to post-release control,” rather than that he would definitely be subject to such control for a minimum period of five years. At the conclusion of the colloquy, Boswell indicated that he understood and accepted the consequences of his pleas. He was subsequently convicted and sentenced to 16 years in prison.

Boswell did not file a direct appeal of his convictions or sentence within the statutory  time limit for doing so. After two unsuccessful attempts to file delayed appeals, in June 2005 Boswell filed a motion to withdraw his guilty plea under Crim.R. 32.1, which authorizes trial courts to vacate a conviction and allow a defendant to withdraw a guilty plea after sentence has been pronounced “to correct manifest injustice.”  In support of that motion, Boswell argued that his guilty pleas were not entered knowingly and voluntarily because the trial court had failed to accurately advise him that he would be subject to five years of post-release control. The trial court granted Boswell’s motion, vacated his convictions and ordered that he receive a new trial. 

The state appealed that ruling to the 8th District Court of Appeals.  In a 2-1 decision, the court of appeals affirmed the trial court’s action, holding that by failing to accurately inform Boswell about the mandatory term of post-release control, the original trial court had failed to “substantially comply” with the requirement in Crim.R. 11 that a defendant must be advised of the maximum sentence to which a guilty plea will expose him. The majority opinion went on to hold that, in the absence of substantial compliance by the trial court, Boswell was not required to prove that he had been prejudiced by the court’s error (i.e., that but for the error he would not have pleaded guilty).

The state, represented by the Cuyahoga County prosecutor’s office, now asks the Supreme Court to overrule the actions of the trial court and court of appeals and reinstate Boswell’s guilty plea and convictions. 

They argue that the 8th District majority departed from a line of Supreme Court and appellate decisions holding that, when a trial court’s plea colloquy alerts a defendant to the sanction of post-release control but does not fully inform him of the maximum term that can be imposed, a reviewing court must determine whether there was “substantial compliance” with Crim.R. 11 by: 1) examining the totality of circumstances surrounding the plea colloquy, and 2) requiring the defendant to demonstrate that a non-constitutional error in the plea colloquy operated to his “prejudice” i.e., that if the defendant had received a full and accurate advisement regarding community control, he would have rejected the proffered plea bargain and gone to trial.

In this case, they argue, the trial court and 8th< District departed from that standard by improperly granting Boswell’s motion to withdraw his plea without any showing of prejudice, or even a claim by Bosworth that he was prejudiced by the defective colloquy. They point out that Boswell knew at the time of the colloquy that without the proffered plea bargain he was facing consecutive sentences that could add more than 20 years to his prison time. They assert that there is nothing in the record or in Boswell’s Crim.R.32.1 petition suggesting that an accurate advisement about community control would have caused him to change his mind about pleading guilty.

Attorneys for the state also argue that, whether or not the plea colloquy substantially complied with Crim. R. 11,  the trial court abused its discretion by granting Boswell’s motion to withdraw his plea because the defective advisement regarding post-release control was apparent in the record of his case, and errors that are apparent in the record must either be raised on direct appeal or forfeited by application of res judicata.

Attorneys for Boswell argue that the 8th District’s ruling did not abandon precedent or make new law, but rather correctly held that the defective advisement regarding post-release control in his case did not “substantially comply” with the requirement that he be accurately informed about the maximum sentence that could result from his guilty plea. Based on that finding, they assert, the court of appeals properly applied prior decisions holding that a guilty plea entered without a clear understanding of its consequences cannot be intelligent and voluntary, and therefore Boswell was entitled to withdraw his plea and receive a new trial.

With regard to the state’s res judicata argument, they argue that the language of Crim.R.32.1 gives courts wide discretion to waive res judicata and statutory deadlines that would otherwise bar a defendant’s petition to withdraw a guilty plea in cases where the court finds such a waiver is necessary to correct a manifest injustice.

Contacts
Thorin Freeman, 216.443.7800, for the state and Cuyahoga County prosecutor’s office.

Kelly K. Curtis, 614.466.5394, for Parris Boswell.

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Does Non-Profit Owner of Property Leased to Charity Qualify For Ohio Property Tax Exemption?

Northeast Ohio Psychiatric Institute v. William W. Wilkins [Richard A. Levin], Tax Commissioner of Ohio, Case no. 2008-0033
State Board of Tax Appeals

ISSUE:  Does real property that is owned by an organization that qualifies as non-profit under Section 501(c)(3) of the U.S. Internal Revenue Code and that is leased at below-market rates to a charitable organization qualify for exemption from state property tax under Ohio R.C. 5709.121(A)(1)(b)?

BACKGROUND:  The Northeast Ohio Psychiatric Institute (Northeast) is a wholly controlled subsidiary of Portage Path Behavioral Health (PPBH), a charitable provider of mental health and substance abuse services to residents of Summit County. Northeast is the legal owner of a 5,700-square-foot office building in Akron in which it leases about 62 percent of the available space to PPBH and the remainder to a private psychiatric practice and a private medical laboratory. Northeast also operates a psychiatric consulting and staffing placement service and owns a parking lot adjacent to Akron’s downtown minor league baseball stadium.

Northeast applied to the state tax commissioner seeking a 2003 property tax exemption and remission of prior-year taxes it had already paid on the office building housing PPBH. The exemption was sought under Ohio R.C. 5709.121, a provision of state tax law that exempts property that is 1) controlled by a “charitable institution;” 2) made available for use in furtherance of the institution’s charitable purposes; and 3) not made available with a view to profit. The tax commissioner denied the exemption, ruling that Northeast was not a “charitable institution” and that its use of the office building was as a landlord leasing space to PPBH and other tenants in exchange for rent, which does not qualify as a charitable use. 

PPBH appealed the commissioner’s determination to the State Board of Tax Appeals (BTA), which upheld the commissioner’s ruling. PPBH has exercised its right to appeal the BTA’s ruling to the Supreme Court.

Attorneys for PPBH urge the court to overrule the commissioner and BTA and order them to grant the requested tax exemption.  Among other arguments, they contend that because Northeast is recognized as a non-profit organization under Section 501(c)(3), and is a wholly controlled subsidiary of PPBH, which the tax commissioner admits is a charitable institution, the commissioner and BTA erred in holding that Northeast does not qualify as a charitable institution eligible for property tax exemption. With regard to Northeast’s functions as a landlord, they point out that the monthly rent charged to PPBH is at or below Northeast’s costs for that space, and that any excess revenue generated by rent payments from the tenants in the building is returned to PPBH to support its charitable function of providing mental health services to county residents. They argue that denying Northeast’s claim to operate as a charitable institution is comparable to denying the charitable status of the Girl Scouts because they sell cookies to generate revenue that supports their tax-exempt objectives.

Attorneys for the tax commissioner cite numerous prior decisions of the Supreme Court and the BTA that they say have consistently denied “vicarious” tax exemptions for property that is owned by a separate corporate entity and leased to a charity, even when revenues generated by the subsidiary landlord are contributed to the charity. They assert that other arguments advanced by Northeast are superfluous because Northeast does not meet the first requirement in R.C. 5709.12: that property eligible for exemption under that statute must be owned by a charitable institution. Northeast does not meet this threshold test, they contend, because Northeast is not primarily engaged in any qualifying charitable activity but rather exists to serve as landlord of a building that leases space not only to PPBH but also to two for-profit tenants, and also generates revenues through its downtown parking lot and a psychiatric placement and consulting service that competes with similar for-profit providers in the Akron market.

Contacts
Mary C. Henkel, 513.723.4484, for Northeast Psychiatric Institute.

Damion M. Clifford, 614.466.5967, for the State Tax Commissioner.

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Unauthorized Practice of Law

Disciplinary Counsel v. Bruce A. Brown (aka B. Andrew Brown, aka Amir Jamal Tauwab, Case no. 2008-1573
Cuyahoga County

The Board on The Unauthorized Practice of Law has recommended that the Supreme Court impose a civil penalty of $50,000 and take other actions against Bruce A. Brown (aka B. Andrew Brown, aka Amir Jamal Tauwab) of Cleveland based on the board’s findings that Brown engaged in the unauthorized practice of law in five different cases.

The board found that in each case Brown, who was disbarred from the practice of law in New York in 1992 and has never been licensed to practice as an attorney in Ohio, used letterhead and business cards identifying himself as “B. Andrew Brown, Esq.” and his business as “B. Andrew Brown & Associates, LLC,” and otherwise deliberately misled the prospective clients who contacted him regarding legal problems into believing that he was a lawyer.  In each case the board concluded that Brown accepted fees from the “client” to perform work that constituted the practice of law, but subsequently abandoned the client’s case or provided incomplete or defective service that caused legal and/or financial harm to the client.

In light of its additional findings that Brown has twice before been found guilty of unauthorized law practice, and was the subject of a 2003 Supreme Court order enjoining him from any further acts of unauthorized practice,  the board recommended that the Court impose a $10,000 civil penalty for each of the five counts in the current complaint, find Brown in contempt of the Court’s 2003 injunction, order him to cease using the terms “Esq.” “Esquire” or “J.D.” on stationery, business cards and other documents or literature, and reimburse the board and the Office of Disciplinary Counsel for the costs incurred in prosecuting his infractions.

Brown has filed objections to the board’s findings and recommended sanctions. He contends that the services he provided to the five clients at issue in this complaint were undertaken in his various capacities as a credit counselor, collection agent, attorney-in-fact for an estate and preparer of standard bankruptcy forms, and were all activities that may be performed by a non-attorney and therefore do not constitute the practice of law.

He points out that in the Supreme Court’s 2003 order enjoining him from future unauthorized practice, the Court explicitly declined a request to order that he abandon the use of “Esq.” or “J.D.” on his letterhead and business cards, and notes that notwithstanding his disbarment he has earned the degree of Juris Doctor and is therefore entitled to include it on his business literature. He also asserts that the Ohio criminal statute that prohibits unlicensed persons from practicing law, R.C. 4705.07, does not include any express prohibition against the use of “Esq.” or “J.D.” by a non-attorney.

Contacts
Jonathan Coughlan, 614.461.0256, for the Office of Disciplinary Counsel.

Bruce A. Brown, pro se: 216.881.7103.

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May Court Accept Withdrawal of Guilty Plea and Re-Try Offender After Prison Term Completed?

State of Ohio v. David L. Harrison, Case no. 2008-0331
12th District Court of Appeals (Auglaize County)

ISSUES: 

BACKGROUND:  In 2003, former police chief David Harrison of Wapakoneta entered guilty pleas to five charges related to child pornography in exchange for the state’s agreement not to prosecute him on any other charges based on a search of his home and office computers and Harrison’s unlawful actions that led to the computer search. After accepting his guilty pleas, the Auglaize County Court of Common Pleas sentenced him to 12 months in prison. Based on the sexual nature of Harrison’s crimes, the court was legally required to also impose a mandatory five-year term of post-release control. Instead, the judge mistakenly advised Harrison that he would be subject to an optional term of post-release community control of “up to three years.”

Harrison served his prison term and was released from custody. The Adult Parole Authority did not take action to impose a term of post-release control over him.  Seven months after his release, the state filed a motion in the trial court to resentence Harrison to impose a five-year term of post-release control. Harrison opposed the state’s motion, arguing that the court no longer had jurisdiction to resentence him because he had completed the sentence imposed against him at the time of trial. The trial court denied Harrison’s motion and scheduled a resentencing hearing. At that hearing, the trial court advised Harrison that it would immediately resentence him to add a mandatory term of five years of community control to his 2003 sentence unless he withdrew his original guilty plea and negotiated a new plea agreement with the prosecutor. Harrison indicated that under those conditions he would withdraw his earlier guilty plea, and the court allowed him to do so. 

The state subsequently refused to negotiate, dismissed its 2003 indictment, and obtained a new indictment charging Harrison with 26 felony counts arising from the same events that led to his 2003 guilty pleas.  After obtaining a change of venue to Madison County, Harrison filed pretrial motions to dismiss the new charges against him, arguing that they violated his speedy trial and double jeopardy rights. The court denied his motions. Harrison was subsequently tried and convicted on 18 new counts in March 2006. Prior to sentencing, Harrison filed motions invoking the Supreme Court of Ohio’s January 2006 decision in Hernandez v. Kelly which held that, after an offender had completed his prison term, a trial court no longer had jurisdiction to impose a mandatory term of post-release control that was mistakenly omitted from in his original sentence. The Madison County trial court ruled that Hernandez dealt only with resentencing for a former conviction, and was not applicable to its consideration of the new counts against Harrison. The court proceeded to sentence him to six years in prison, with credit for the year he had already served. Harrison appealed his new convictions and sentence to the 12th District Court of Appeals, which upheld the trial court’s decision.

Attorneys for Harrison now ask the Supreme Court to vacate his convictions and sentence arising from the new charges brought against him in the Madison County case. Among multiple arguments, they contend that:

Attorneys for the state respond that the 12th District correctly distinguished Hernandez from this case. They note that in Hernandez it was the Adult Parole Authority, rather than a trial court, which sought to enforce a mandatory post-release control sanction against an offender despite the fact that the trial court had failed to advise the defendant of such a sanction either at the time of sentencing or in the journal entry recording his sentence.  In this case, they point out, the Auglaize County trial court advised Harrison that he would be subject to post-release control both at the time it pronounced sentence and in its sentencing entry.

With regard to the issue of double jeopardy, they assert that Harrison was advised at his 2005 resentencing hearing that he could retain the benefit of his 2003 plea bargain and still challenge the addition of a five-year post-release control sanction by agreeing to be resentenced and then challenging the resentencing order on direct appeal. Rather than following that course, they say, he voluntarily chose to withdraw the guilty plea in return for which the state had dropped other counts against him, thereby empowering the state to dismiss its original complaint and indict him for other counts that were supported by the evidence gathered in its 2003 investigation. By knowingly withdrawing his guilty plea before he had completed the full sentence imposed by the court for his 2003 convictions, they assert, Harrison waived any claim of double jeopardy.

Contacts
Scott A. Longo, 614.644.0731, for the state and Auglaize County prosecutor’s office.

Dean Boland, 216.529.9371, for David Harrison.

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These informal previews are prepared by the Supreme Court's Office of Public Information to provide the news media and other interested persons with a brief overview of the legal issues and arguments advanced by the parties in upcoming cases scheduled for oral argument. The previews are not part of the case record, and are not considered by the Court during its deliberations.

Parties interested in receiving additional information are encouraged to review the case file available in the Supreme Court Clerk's Office (614.387.9530), or to contact counsel of record.