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Tuesday, July 8, 2014

Village of Cardington v. Donald Lee, Case no. 2013-1400
Fifth District Court of Appeals (Morrow County)

Alexander Quarterman v. State of Ohio, Case no. 2013-1591
Ninth District Court of Appeals (Summit County)

221 Market North, Inc., doing business as Napoli’s Italian Eatery v. Ana M. Hambuechen, Case no. 2013-1603
Fifth District Court of Appeals (Stark County)

Disciplinary Counsel v. Jennifer Ann Gorby, Case no. 2014-0541
Columbiana County


Is Employee Protected by Whistleblower Statute When Employer is Aware of Water Contamination by Local Company?

Village of Cardington v. Donald Lee, Case no. 2013-1400
Fifth District Court of Appeals (Morrow County)

ISSUE: Does Ohio’s whistleblower statute apply only to employee reports of criminal offenses allegedly committed by the employer or a fellow employee?

BACKGROUND:
Donald Lee worked for the Village of Cardington from 2000 to 2009. He was a supervisor who oversaw street and sewer maintenance, and the water and wastewater treatment plants. Cardington Yutaka Technologies, which manufactures and supplies parts to Honda, began operations in the town in the late 1990s. It is one of the village’s largest employers.

Cardington’s wastewater treatment plant uses specialized bacteria to break down and treat waste products in a multistage process. Clear fluid and sludge are separated. The treated water is returned to Whetstone Creek, while the sludge is dried and often later used for farm fertilizer.

In the early 2000s, the bacteria that break down the sewage began dying, and the problem worsened in subsequent years. Lee worked with the Ohio Environmental Protection Agency (EPA) to try to identify and resolve the problem, and a 2007 evaluation determined that the village’s processes and procedures were not the source of the contamination. After further investigation, the Ohio EPA determined that the contaminant killing the waste-treating bacteria was coming from Yutaka’s facility. Samples taken by the federal EPA showed the chemical to be glycol, which Yutaka used in its inspection tanks to test for leaks in the auto parts.

Over the years, Lee reported the problems and findings to his supervisor, Dan Ralley, who was the village administrator. Lee also discussed the contamination at a village council meeting, identifying equipment at the plant that had been damaged by glycol.

In April 2009, Lee was placed on paid administrative leave. Two months later, on Ralley’s recommendation, the council voted to fire Lee because of poor job performance, such as not completing jobs, using the village’s van for personal purposes, and requesting an extra week of vacation at the end of a mission trip to Haiti.

Lee filed a lawsuit alleging that he was fired in retaliation for reporting that, because of the destruction of bacteria by the chemical, untreated, toxic water was being released into Whetstone Creek, which provides drinking water to a large number of people who live downstream.

However, the trial court granted Cardington’s request for summary judgment in the case. Lee appealed to the Fifth District Court of Appeals. The Fifth District affirmed part of the trial court’s decision, but ruled that the trial court should have allowed Lee’s claim that Cardington violated Ohio’s whistleblower’s statute to go forward.

The village filed an appeal with the Ohio Supreme Court, which agreed to hear the case.

Attorneys for Cardington assert that the whistleblower statute, R.C. 4113.52, only involves illegal activity of the employer or a co-employee, and does not make an employer responsible for the illegal activity of a third party, such as Yutaka.

According to R.C. 4113.52(A)(1)(a), if an employee becomes aware that the employer has violated a law that the employer “had the authority to correct” and the activity is either a criminal act “likely to cause an imminent risk of physical harm to persons or a hazard to public health or safety, a felony, or an improper solicitation for a contribution,” the employee must orally notify his or her supervisor or other officer of the employer and then file a written report detailing the violation. If the employer fails to act, the employee may then submit a written report with an appropriate outside authority.

Cardington’s attorneys cite Contreras v. Ferro Corp. (1995), in which the Ohio Supreme Court outlined the requirements of this subsection of the whistleblower law: “The statute ‘mandates that the employer be informed of the violation both orally and in writing. An employee who fails to provide the employer with the required oral notification and written report is not entitled to statutory protection for reporting the information to outside authorities.’”

They contend that Lee never submitted a written report to the village. The one written report Lee prepared dealt only with equipment failures caused by the contaminant, not any environmental hazard created by the village, Cardington’s attorneys argue. Nor did Lee verbally inform the council at its meeting that he thought the village was violating environmental laws, they maintain.

A second whistleblower provision, R.C. 4113.52(A)(2), states, “If an employee becomes aware in the course of the employee’s employment of a violation of chapter 3704., 3734., 6109., or 6111. of the Revised Code that is a criminal offense, the employee directly may notify, either orally or in writing, any appropriate public official or agency that has regulatory authority over the employer and the industry, trade, or business in which the employer is engaged.”

While this subsection does not require a written report, Cardington’s attorneys assert that no violation of any of those four chapters occurred so Lee cannot rely on this provision.

Lee has alleged that the village violated R.C. 2927.24, which makes it illegal to knowingly place a hazardous chemical or harmful substance into the public water supply. But Cardington’s attorneys argue if criminal conduct in R.C. 2927.24 occurs, Lee must meet the requirements of division (A)(1) of the whistleblower statute, which they maintain he has not done.

Lee’s attorneys, however, respond that Lee complied with all the elements of division (A)(1). First, they argue, he disclosed what he believed to be a criminal activity.

“[Lee] disclosed that glycol was entering the [wastewater treatment plant],” the attorneys wrote in their brief to the Supreme Court. “[He] indicated that not only was the glycol not being filtered out of the water and was being returned to the Whetstone Creek by the village where it would become an imminent hazard to the drinking water for all users situated below the plant, but also the glycol was upsetting the operation of the [plant]. As stated above, this jeopardized the village’s permit and threatened to cause the village to violate its permit which exposed the village and/or its officials to criminal liability.”

Once village officials were made aware that contaminated water was travelling downstream and threatening drinking water, they had a duty to address and correct the problem, Lee’s attorneys maintain.

They also argue that the written report Lee submitted, which the village has disregarded, included more than information about equipment damaged by glycol. It also explained the problems with the chemical entering the wastewater system and the dangers from toxic water leaving the system and entering the drinking water supply. The potential impact on drinking water was an imminent threat, the attorneys conclude.

Lee’s attorneys also contend that Lee has a claim under division (A)(2). They note that R.C. 6111.04(C) bars the holder of a permit issued by the director of environmental protection from discharging sewage in excess of permitted limits into state waters without permission. Therefore, Lee’s attorneys argue that Lee was not required to submit a written report when he reported a potential violation of Chapter 6111 and was protected by the whistleblower statute from retaliatory firing.

Amicus curiae briefs supporting Donald Lee’s position have been submitted by the Ohio Employment Lawyers Association and the Ohio Environmental Council.

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Contacts
Representing the Village of Cardington: John Latchney, 330.930.4001

Representing Donald Lee: Michael Kolman, 614.255.5441

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Is Mandatory Transfer of Juveniles to Adult Court for Certain Offenses Unconstitutional?

Alexander Quarterman v. State of Ohio, Case no. 2013-1591
Ninth District Court of Appeals (Summit County)

ISSUES:

BACKGROUND:
While watching some friends play cards in November 2011, 16-year-old Alexander Quarterman pulled a gun and stole money and a cell phone.

The criminal complaints alleged that Quarterman was delinquent by committing acts that constituted aggravated robbery. Ohio law requires the juvenile court to transfer the case to the common pleas court for Quarterman to be tried as an adult if the court finds probable cause that he committed the offense.

The court found probable cause, and the case was transferred. Quarterman then pled guilty to aggravated robbery and a firearm specification. The court sentenced him to four years in prison.

Quarterman appealed to the Ninth District Court of Appeals, which affirmed the trial court’s judgment. The Ninth District determined that Quarterman had waived all his arguments, including challenges to the constitutionality of the relevant Ohio statutes, when he pled guilty.

Quarterman appealed to the Ohio Supreme Court, which agreed to hear the case.

Attorneys for Quarterman contend that R.C. 2152.10(A)(2)(b) and R.C. 2152.12(A)(1)(b) are unconstitutional because they mandate the transfer of a juvenile who is 16 or 17 years old to an adult court when probable cause is found. The attorneys argue that the law prevents juvenile court judges from determining on a case-by-case basis whether the transfer is appropriate, as Ohio Supreme Court case In re C.P. (2012) requires.

“For a child, there can be no greater loss than his status as a child; therefore, all children charged with an offense must be afforded the opportunity to have the juvenile court judge give the child the meaningful consideration that due process requires,” the attorneys write in their brief to the Ohio Supreme Court.

The statutes wrongly presume that 16- and 17-year-old juveniles “are as culpable as an adult who commits an identical crime” without any consideration given to their background and youth, the attorneys maintain.

Quarterman’s attorneys also argue that the statutes treat older children differently than younger children – violating the right to equal protection under the law. There is no rational reason for this distinction, his attorneys assert.

To evaluate whether the statutes also constitute cruel and unusual punishment, Quarterman’s attorneys assert that the court must consider whether a national consensus opposes the mandatory transfer of juveniles to adult courts and make an independent judgment of this case’s facts.

They contend that in the last decade many states have moved away from prosecuting juveniles as adults, and polls show that the public supports rehabilitation rather than incarceration of children. In addition, in reviewing Quarterman’s responsibility for his actions, the nature of his offenses, the severity of his punishment, the increased consequences for the rest of his life from being sentenced as an adult, and the justifications for his sanctions, Quarterman’s attorneys conclude that mandatory transfers under these statutes are cruel and unusual punishment.

They quote 2005 guidelines from the National Council of Juvenile and Family Court Judges, which state that “‘waiver and transfer decisions should only be made on an individual, case-by-case basis, and not on the basis of the statute allegedly violated; and affirms that the decision should be made by the juvenile delinquency court judge … [and that] transfer of juveniles to adult court should be rare and only after a thorough considered process.’”

Attorneys from the Summit County Prosecutor’s Office assert that Quarterman’s constitutional claims have not been preserved for review by the Supreme Court and that the case was improvidently accepted.

The prosecutors argue that Quarterman was given due process because a probable cause hearing was held, and the court had to state its reasons for a transfer.

They dispute the U.S. Supreme Court cases cited by Quarterman’s attorneys, arguing that none address laws providing for the mandatory prosecution of juveniles as adults. They contend that status as a juvenile is neither a fundamental nor a constitutional right.

They also argue that several Ohio appeals courts have rejected due process and equal protection challenges to mandatory transfer laws. On the equal protection challenge, the prosecutors maintain in their brief to the court that “there is nothing fundamentally unfairabout transferring juveniles close to adulthood for serious offenses.”

The prosecutors assert that the statutes are not cruel and unusual punishment, but rather only determine the forum where a court may impose a penalty. And the laws have a rational basis, they conclude.

“The statutes properly aim at juveniles at the top end of the juvenile age range who commit firstdegree felonies while in possession of a firearm,” the prosecutors write. “The policy is to punish violent juvenile offenders by denying lenient treatment in Juvenile Court, to reduce crime, and to protect thepublic from such offenders.”

An amicus curiae brief supporting Alexander Quarterman’s position has been submitted collectively by the following organizations:

The Juvenile Law Center, National Juvenile Defender Center, and the Ohio Chapter of the American Academy of Pediatrics have also filed an amicus brief supporting Quarterman.

Ohio Attorney General Michael DeWine has filed an amicus brief supporting the position of the Summit County Prosecutor’s Office.

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Contacts
Representing Alexander Quarterman from the Ohio Public Defender’s Office: Amanda Powell, 614.466.5394

Representing the State of Ohio from the Summit County Prosecutor’s Office: Richard Kasay, 330.643.2800

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When Requesting Review of Civil Rights Commission Decision, What is Deadline for Serving Parties?

221 Market North, Inc., doing business as Napoli’s Italian Eatery v. Ana M. Hambuechen, Case no. 2013-1603
Fifth District Court of Appeals (Stark County)

ISSUE: When seeking review of an Ohio Civil Rights Commission final order, is a party required to initiate service of the petition on the commission and the parties who appeared in the case within 30 days of the date the commission serves the final order?

BACKGROUND:
Ana M. Hambuechen worked as a waitress at Napoli’s Italian Eatery in Canton. Hambuechen announced that she was pregnant, and soon after she was fired.

In early 2007, she filed a charge with the Ohio Civil Rights Commission alleging that Napoli’s fired her because she was pregnant. Following a commission investigation, the case was heard before an administrative law judge. On November 15, 2012, the commission issued an order stating that Napoli’s had illegally fired Hambuechen and ruled that Napoli’s must compensate her with back pay and offer to reinstate her.

Napoli’s filed a request on November 26 for judicial review of the order in the Stark County Court of Common Pleas. The employer sent copies of its petition to the commission and Hambuechen through regular mail, but not through the court clerk.

About a month later, the commission asked the court to dismiss the petition because Napoli’s had not requested service through the court clerk within 30 days of the commission’s order.

The trial court dismissed the case, and Napoli’s appealed to the Fifth District Court of Appeals. The appellate court reversed the trial court’s dismissal. The commission filed an appeal with the Ohio Supreme Court, which accepted the case for review.

The relevant part of R.C. 4112.06, which provides for judicial review of a commission order, states:

(A) Any complainant, or respondent claiming to be aggrieved by a final order of the commission … may obtain judicial review thereof, and the commission may obtain an order of court for the enforcement of its final orders, in a proceeding as provided in this section. Such proceeding shall be brought in the common pleas court of the state ….

(B) Such proceedings shall be initiated by the filing of a petition in court as provided in division (A) of this section and the service of a copy of the said petition upon the commission and upon all parties who appeared before the commission. Thereupon the commission shall file with the court a transcript of the record upon the hearing before it. … The court shall thereupon have jurisdiction of the proceeding and of the questions determined therein ….

(H) If no proceeding to obtain judicial review is instituted by a complainant, or respondent within thirty days from the service of order of the commission pursuant to this section, the commission may obtain a decree of the court for the enforcement of such order ….

Attorneys for the civil rights commission assert that, according to the statute, a party may receive judicial review of a commission order only by initiating proceedings, including service, within 30 days of the order. They contend that division (B) explains that review is “initiated” by both filing a petition and service of the petition. The timing requirement is set out in division (H), they argue, citing the Ohio Supreme Court’s decision in Ramsdell v. Ohio Civ. Rights Comm. (1990).

“In Ramsdell, this Court combined R.C. 4112.06(H)’s 30-day period and R.C. 4112.06(B)’s filing requirement to hold that filing within 30 days of the challenged final order was both mandatory and jurisdictional,” the commission’s attorneys wrote in their brief. “The Court said that the deadline for filing ‘necessarily follows from the practical operation of the statute,’ even if ‘it is conceded that R.C. 4112.06(H) does not literally state that an action must be filed within thirty days of service of a commission order.’”

While Ramsdell dealt specifically with filing petitions, the commission’s attorneys contend that the logic of the opinion, and the language of the statute itself, convey that the service requirement must be met within the same 30 days as the filing.

The Fifth District court, however, decided that court rules for civil cases govern the timeframe for serving the petition, and that the rules grant parties a year to serve a complaint on the other parties.

The commission’s attorneys counter that the appeals court erred by separating service of the petition from its filing.

“[I]t is implausible that ‘initiating’ judicial review could require both filing and service under R.C. 4112.06(B), while ‘instituting’ judicial review under R.C. 4112.06(H) could require only filing,” the brief states.

Based on Ramsdell, they conclude that conflicts between civil rules and statutes must be considered case by case, and the civil rules here cannot override the language of the statute.

Attorneys for Napoli’s respond that R.C. 4112.06 does not clearly require service to be initiated within 30 days. They argue that the statute describes only who must be served, not how or when the service is required.

In their view, the Ramsdell decision addressed only the filing of petitions, and Napoli’s filed its appeal within 30 days as required by the law, so the ruling does not support the commission’s arguments.

Napoli’s attorneys maintain that the commission, in its motion to dismiss the case, asserted that service could only be made through the clerk of courts, based on a court rule for civil cases. The commission wants the civil rules to apply to how an appeal is served, but not to the timeframe for serving the petition to the other parties, Napoli’s attorneys contend.

They argue that when a statute is unclear, the civil rules must govern. In this case, the relevant civil rule provides one year for serving petitions, they conclude.

The commission maintains that a one-year timeframe for serving petitions in commission appeals is inconsistent with its need to do its job expeditiously, which Napoli’s attorneys find ironic because they say it took nearly six years for the commission to decide this case.

“Napoli’s deserves the opportunity for judicial review if the Commission’s determination was wrong, just as much as the Commission and Ms. Haznbuechen deserve the right to enforce the order if it was correct,” the employer’s attorneys wrote.

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Contacts
Representing the Ohio Civil Rights Commission from the Ohio Attorney General’s Office: Eric Murphy, 614.466.8980

Representing 221 Market North, Inc., dba Napoli’s Italian Eatery: Stanley Rubin, 330.455.5206

Representing Ana M. Hambuechen: Todd Evans, 330.430.9300

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Attorney Discipline

Disciplinary Counsel v. Jennifer Ann Gorby, Case no. 2014-0541
Columbiana County

The Board of Commissioners on Grievances & Discipline has recommended that Jennifer Ann Gorby of Salem be suspended from the practice of law for one year, all stayed, for misappropriating client funds while representing her sister in a foreclosure case.

In its report, the board stated that Gorby is a part-time solo practitioner who primarily represents court-appointed clients. In 2011, Donna Adams, Gorby’s sister, asked Gorby to handle a foreclosure action against Adams and her husband. Gorby agreed to represent them at no charge.

Gorby’s sister and brother-in-law sent payments to Gorby to help them save enough money to stop the foreclosure. The board found that Gorby had no client trust account or Interest on Lawyer’s Trust Account (IOLTA), and she instead deposited the money into her business checking account. During 14 months, Gorby withdrew money from the account for personal and business expenses unrelated to the foreclosure.

Adams contacted the state Disciplinary Counsel alleging that Gorby did not return their money. After depositing $5,500 from her husband’s retirement account into her business account, Gorby then reimbursed her sister and brother-in-law.

The board concluded that Gorby misappropriated funds, but there was no harm caused to the Adamses and she fully repaid them. The board determined that Gorby’s misconduct stemmed from a contentious relationship with her sister, and that Gorby poses little threat to the public. She has no prior disciplinary record, the board noted.

In addition to the one-year stayed suspension, the board recommended that Gorby be monitored for one year in law office management with a focus on IOLTA account responsibilities.

The Disciplinary Counsel, which filed the complaint against Gorby, objects to the board’s recommendation that she receive no actual suspension. The Disciplinary Counsel asserts that Gorby wrongly informed the office that she had money to cover the amount that the Adamses had entrusted to her before she actually replaced the funds. Disciplinary Counsel also maintains that Gorby has not acknowledged the wrongful nature of her conduct or taken responsibility for her actions.

The Disciplinary Counsel contends that potential mitigating factors do not include the fact that Gorby and Adams were sisters. Gorby’s breach of trust with her sister is harmful, even when there is no financial harm, Counsel concludes.

Gorby has filed no response in this case, so she will not be permitted to participate in oral arguments.

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Contacts
Representing the Office of Disciplinary Counsel: Scott Drexel, 614.461.0256

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