Curren v. Greenfield

[Cite as Curren v. Greenfield, 2012-Ohio-4688.]

IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HIGHLAND COUNTY

CONRAD A. CURREN, :
:
Plaintiff-Appellant, : Case No. 11CA30
:
vs. : Released: October 1, 2012
:
CITY OF GREENFIELD, HARVEY : DECISION AND JUDGMENT
L. EVERHART, EARLENE SCOTT, : ENTRY
JOHN N. WAGONER, AND :
CHARLES V. BOWMAN, :
:
Defendants-Appellees. :
_____________________________________________________________
APPEARANCES:

Jon C. Hapner, Hapner & Hapner, Hillsboro, Ohio, for Appellant.

Lawrence E. Barbiere, Schroeder, Maundrell, Barbiere & Powers, Mason,
Ohio, for Appellees.
_____________________________________________________________

McFarland, J.:

{¶1} Appellant, Conrad Curren, appeals the trial court’s grant of

summary judgment in favor of Appellees, City of Greenfield, Harvey

Everhart, Earlene Scott, John Wagoner and Charles Bowman. On appeal,

Appellant raises a single assignment of error, contending that the trial court

erred when it granted Appellees’ motion for summary judgment. After

construing the record and all inferences therefrom in Appellant’s favor, we

find there are no genuine issues of material fact, Appellees are entitled to
Highland App. No. 11CA30 2

judgment as a matter of law, and reasonable minds can come to but one

conclusion, and that conclusion is adverse to Appellant. Accordingly, we

overrule Appellant’s sole assignment of error and affirm the judgment of the

trial court.

FACTS

{¶2} After adopting a city manager form of government, on

September 18, 2008, the city of Greenfield adopted Ordinance 26-08

appointing Appellant as law director of the city of Greenfield for a period of

one year. Prior to this, Appellant was the duly elected and acting law

director for the city. Ordinance 26-08 provided that Appellant was being

appointed to an unclassified position in the non-bargaining unit.

{¶3} On October 1 and November 4, 2008, city council took formal

action to terminate Appellant’s employment as law director. This is

reflected in meeting minutes from the public council hearings that were held,

and it also appears in a resolution made during a public hearing.

Subsequently, on November 10, 2008, the city of Greenfield passed

Ordinance 29-08, which terminated Appellant from the position of law

director, effective immediately. Appellant contends that the actions of

council were improperly performed during executive session and in violation

of Sunshine Law. In the interim, on October 19, 2008, members of city
Highland App. No. 11CA30 3

council also filed a complaint with the Disciplinary Counsel regarding

Appellant’s actions as law director. Appellant claims that one of the

signatures on the report which purported to be that of council member

Bernard Hester was forged.

{¶4} Appellant filed a complaint against Appellees herein on January

3, 2011, and then filed an amended complaint on January 12, 2011.1

Appellant’s amended complaint alleged that he was wrongfully terminated,

and claimed that Appellees had fraudulently conspired against him in his

termination, as well as the report to the Disciplinary Counsel. Appellant’s

complaint also alleged violations of Ohio’s Open Meetings Act, commonly

referred to as the Sunshine Law, under R.C. 121.22. Appellees filed their

answer denying the allegations contained in Appellant’s amended complaint

on January 28, 2011.

{¶5} Appellees moved the court for summary judgment on June 30,

2011, which the trial court denied on August 10, 2011. As a result,

Appellees filed a notice of appeal with this Court on August 11, 2011.

However, by agreement of the parties and at the request of the trial court, the

appeal was dismissed and Appellees re-briefed and re-filed their motion for

1
A review of the trial court’s decision and Appellant’s brief indicates that Appellant originally filed a
complaint in 2009, then voluntarily dismissed it pursuant to Civ.R. 41(A) and later re-filed it in 2011.
However, as Appellant has not provided us with the record from the earlier filing, we have not been able to
verify that on appeal.
Highland App. No. 11CA30 4

summary judgment. The trial court issued a decision on October 25, 2011,

granting summary judgment to Appellees, and then issued its entry on

November 15, 2011. It is from this entry that Appellant now brings his

timely appeal, setting forth a single assignment of error for our review.

ASSIGNMENT OF ERROR

“I. THE TRIAL COURT ERRED IN GRANTING A SUMMARY
JUDGMENT IN THIS CAUSE.”

ISSUES

1. “Does the plaintiff hold office for one year, as the ordinance ordained,
since said ordinance was not repealed?”

2. “Did any ground exist for termination in that differences of opinion
existed as to law, and such differences are not breaches of faith or
violation of fiduciary duties[?]”

3. “Would the members of Council have immunity if there is a lack of
good faith?”

4. “The issue of the Sunshine Law was not terminated by the statute of
limitations, and does a violation of the Sunshine Law invalidate the
acts of Council?”

SUMMARY JUDGMENT STANDARD OF REVIEW

{¶6} When reviewing a trial court's decision on a motion for summary

judgment, we conduct a de novo review governed by the standard set forth

in Civ.R. 56. Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833

N.E.2d 712, ¶ 8. Summary judgment is appropriate when the movant has

established (1) that there is no genuine issue of material fact, (2) that
Highland App. No. 11CA30 5

reasonable minds can come to but one conclusion, and that conclusion is

adverse to the nonmoving party, with the evidence against that party being

construed most strongly in its favor, and (3) that the moving party is entitled

to judgment as a matter of law. Bostic v. Connor, 37 Ohio St.3d 144, 146,

524 N.E.2d 881, (1988); citing Harless v. Willis Day Warehousing Co., 54

Ohio St.2d 64, 66, 375 N.E.2d 46, (1978); See also, Civ.R. 56(C).

{¶7} The burden of showing that no genuine issue of material fact

exists falls upon the party who moves for summary judgment. Dresher v.

Burt, 75 Ohio St.3d 280, 294, 662 N.E.2d 264, (1996). To meet its burden,

the moving party must specifically refer to “the pleadings, depositions,

answers to interrogatories, written admissions, affidavits, transcripts of

evidence, and written stipulations of fact, if any, timely filed in the action,”

that affirmatively demonstrate that the nonmoving party has no evidence to

support the nonmoving party's claims. Civ.R. 56(C); See also Hansen v.

Wal–Mart Stores, Inc., 4th Dist. No. 07CA2990, 2008-Ohio-2477, ¶ 8. Once

the movant supports the motion with appropriate evidentiary materials, the

nonmoving party “may not rest upon the mere allegations or denials of the

party's pleadings, but the party's response, by affidavit or as otherwise

provided in this rule, must set forth specific facts showing that there is a
Highland App. No. 11CA30 6

genuine issue for trial.” Civ.R. 56(E). “If the party does not so respond,

summary judgment, if appropriate, shall be entered against the party.” Id.

{¶8} Further, the present case involves questions, which are discussed

more fully below, as to whether certain affidavits offered by Appellant were

properly stricken. “For evidentiary material attached to a summary

judgment motion to be considered, the evidence must be admissible at trial.”

See Civ.R. 56(E) and Pennisten v. Noel, 4th Dist. No. 01CA669, 2002-Ohio-

686, at *2. Although we conduct a de novo review of the trial court's

decision to grant summary judgment, we review the court's rulings on the

admissibility of evidence for an abuse of discretion. Lawson v. Y.D. Song,

M.D., Inc., 4th Dist. No. 97 CA 2480, 1997 WL 596293, *3 (Sept. 23, 1997);

See also, State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343, at paragraph two

of the syllabus (1987). The term “abuse of discretion” implies that the

court's attitude is unreasonable, arbitrary, or unconscionable. State v. Adams,

62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). When applying the abuse-

of-discretion standard, a reviewing court may not substitute its judgment for

that of the trial court. Berk v. Matthews, 53 Ohio St.3d 161, 169, 559 N.E.2d

1301 (1990).

{¶9} Civ.R. 56(E) states: “Supporting and opposing affidavits shall be

made on personal knowledge, shall set forth such facts as would be
Highland App. No. 11CA30 7

admissible in evidence, and shall show affirmatively that the affiant is

competent to testify to the matters stated in the affidavit.” “Personal

knowledge” is “ ‘[k]nowledge gained through firsthand observation or

experience, as distinguished from a belief based on what someone else has

said.’ ” Bonacorsi v. Wheeling & Lake Erie Ry. Co., 95 Ohio St.3d 314,

2002-Ohio-2220, 767 N.E.2d 707, ¶ 26, quoting Black's Law Dictionary (7th

Ed.Rev. 1999) 875. It is “ ‘knowledge of factual truth which does not

depend on outside information or hearsay.’ ” Residential Funding Co.,

L.L.C. v. Thorne, 6th Dist. No. L-09-1324, 2010-Ohio-4271, ¶ 64, quoting

Modon v. Cleveland, 9th Dist. No. 2945-M, 1999 WL 1260318, at *2 (Dec.

22, 1999).

ISSUE 4

{¶10} For ease of analysis, we address Appellant’s fourth sub issue

out of order. In his fourth sub issue raised under his sole assignment of

error, Appellant contends that the issue of the Sunshine Law2 was not

terminated, and questions whether a violation of the Sunshine Law

invalidates acts of Council. A review of the record reveals that the trial

court granted summary judgment to Appellees on all issues related to

Sunshine Law violations. Particularly, the trial court determined that

2
Appellant’s use of the term “Sunshine Law” is a reference to Ohio’s Open Meetings Act, as contained in
R.C. 121.22.
Highland App. No. 11CA30 8

Appellant’s claims based upon violations of the Sunshine Law were barred

by the statute of limitations. For the following reasons, we agree.

{¶11} R.C. 121.22 governs meetings of public bodies and provides in

section (I)(1) that an “action shall be brought within two years after the date

of the alleged violation or threatened violation.” See also Mollette v.

Portsmouth City Council, 179 Ohio App.3d 455, 2008-Ohio-6342, 902

N.E.2d 515, ¶ 25 (4th Dist.). Appellant alleges a violation of the Sunshine

Law occurred in connection with his termination from the position of law

director during a council meeting in October of 2008. Appellant contends

that he filed a complaint against Appellees in February 2009 which claimed

a violation of the Sunshine Law. Appellant further represents that the 2009

complaint was dismissed on a Civ.R. 41(A) motion on January 4, 2010. The

present action was not initiated until January 3, 2011. An amended

complaint was subsequently filed on January 12, 2011. Both of the 2011

filings asserted Sunshine Law violations.

{¶12} In granting summary judgment to Appellees on Appellant’s

Sunshine Law claim, the trial court indicated that Appellant’s original

complaint filed in 2009 did not raise the issue of the Sunshine Law violation

and that the time expired before the filing of the amended complaint, per

R.C. 121.22(I)(1). As such, the trial court determined that the statute of
Highland App. No. 11CA30 9

limitations bars any issues regarding the Sunshine Law. After thoroughly

reviewing the record on appeal, we have been unable to locate a copy of the

2009 complaint. The documents transmitted to this Court begin with the

filing of the January 3, 2011, complaint.

{¶13} We do not have the record from the original complaint filed in

2009. “ ‘Pursuant to App.R. 9(A), the record on appeal must contain “[t]he

original papers and exhibits thereto filed in the trial court, the transcript of

proceedings, if any, including exhibits, and a certified copy of the docket

and journal entries prepared by the clerk of the trial court[.]” ’ ” State v.

Bailey, 4th Dist. No. 09CA3287, 2010-Ohio-2239, ¶ 57; citing State v.

Dalton, 9th Dist. No. 09CA009589, 2009-Ohio-6910, ¶ 25, quoting App.R.

9(A). Furthermore, “ ‘[i]t is the appellant's duty to transmit the [record] to

the court of appeals. * * * This duty falls to the appellant because the

appellant has the burden of establishing error in the trial court.’ ” Bailey at ¶

57; citing Dalton at ¶ 2; citing Knapp v. Edwards Laboratories, 61 Ohio

St.2d 197, 199, 400 N.E.2d 384 (1980) (internal citations omitted).

{¶14} As Appellant has not provided us with the record from the 2009

case, we have nothing to review in regards to the statute of limitations on the

Sunshine Law issue. Thus, “we must presume the regularity of the trial

court proceedings;” i.e., we must presume that the original complaint filed in
Highland App. No. 11CA30 10

2009 did not raise a Sunshine Law violation. State v. Bailey at ¶ 58. As

such, we cannot conclude that the trial court erred in granting summary

judgment in favor of Appellant’s claim, which was barred by the statute of

limitations. Accordingly, Appellant’s fourth sub issue raised under his sole

assignment of error is without merit.

ISSUES 1 AND 2

{¶15} We address Appellant’s first and second sub issues together, as

they are interrelated. The first issue raised by Appellant questions whether

Appellant held office for one year, as the ordinance ordained, since the

ordinance was not repealed. The second issue raised by Appellant questions

whether any grounds for termination existed where differences of opinion as

to law existed, and where such differences were not breaches of faith or

violations of fiduciary duties.

{¶16} Appellant’s issues are premised on his contention that he was

not an unclassified employee. Specifically, Appellant contends that he was

entitled to hold the office of law director for one year, pursuant to Ordinance

26-08, and that because Ordinance 29-08, which purported to terminate him,

did not expressly repeal Ordinance 26-08, he continues to be entitled to hold

that office. Further, Appellant challenges the idea that he was hired on an
Highland App. No. 11CA30 11

at-will basis, and argues that there was no cause for his termination. Thus,

Appellant essentially argues that he was wrongfully discharged.

{¶17} R.C. 124.11 governs unclassified and classified service. R.C.

124.11(A)(9) provides that “unclassified service shall comprise of the

following positions, * * * those persons employed by and directly

responsible to elected county officials or a county administrator and holding

a fiduciary or administrative relationship to such elected county officials

administrator * * *.” While R.C. 124.11(A)(9) addresses county positions,

R.C. 124.11(A)(28) addresses city positions “holding a fiduciary relation to

their principals[.]” The city ordinance appointing Appellant to the position

of law director, Ordinance 26-08, specified that Appellant was “appointed”

and that his salary was “established in the unclassified and non-bargaining

unit[.]” Based upon the description of Appellant’s status in Ordinance 26-

08, as well as the following case law, we conclude that Appellant was an

appointed, unclassified employee, employed at- will by city council.

{¶18} The Supreme Court of Ohio has held that “an administrative

judge * * * is not authorized to enter into an employment agreement with

employees of the court.” Malone v. Court of Common Pleas of Cuyahoga

County, et al., 45 Ohio St.2d 245, 344 N.E.2d 126, syllabus (1976) (with

respect to employees that serve “during the pleasure of the judge.”). In
Highland App. No. 11CA30 12

reaching this decision, the Court reasoned that “ ‘[a] public officer or

employee holds his office as a matter of law and not of contract, nor has

such officer or employee a vested interest or private right of property or

employment.’ ” Malone at 248; citing State ex rel. Gordon v. Barthalow,

150 Ohio St. 499, 83 N.E.2d 393 (1948). Likewise, in Mackin v. City of

Avon Lake, 12 Ohio App.3d 70, 465 N.E.2d 1355, syllabus (1983), the Ninth

District held that “[w]here the city charter provides that a director of law

shall serve at the pleasure of council for a term not exceeding two years, the

director of law has no right to the office for any specified period and the

appointment is not made for a fixed and definite period of time.” See also,

State ex rel. Trimble v. State Board of Cosmetology et al., 50 Ohio St.2d

283, 364 N.E.2d 247, syllabus (1977) (holding that an individual appointed

to a position in the unclassified service is not entitled to a the due process

protection of a hearing before discharge); Dunn v. Bruzzese, 172 Ohio

App.3d 320, 2007-Ohio-3500, 874 N.E.2d 1221 (7th Dist.) (reasoning that

unclassified civil servants are at-will employees).

{¶19} We are further persuaded of Appellant’s status as an

unclassified, at-will employee by two Attorney General opinions on the

topic. Opinions released by the Ohio Attorney General are not binding

authority, but are considered persuasive authority. State ex rel. North
Highland App. No. 11CA30 13

Olmstead Fire Fighters Assn. v. North Olmstead, 64 Ohio St.3d 530, 533,

597 N.E.2d 136 (1992). In 1991 Ohio Op. Atty. Gen. No. 91-011, it was

reasoned that

“[a]bsent a collective bargaining agreement, a board of county

commissioners does not have the authority to enter into an

employment contract which contains a specific term of

employment with an individual serving in a position

determined, pursuant to R.C. 124.11 to be in the unclassified

service.”

Appellant was expressly placed into a non-bargaining unit position. Further,

although this opinion specifically deals with the authority of county

commissioners, we find the reasoning to be equally applicable to city

council.

{¶20} Additionally, opinion 91-011 notes that “it is well established

that individuals in the unclassified service hold their positions at the pleasure

of their appointing authority, and are subject to dismissal from their

positions without cause.” Citing State ex rel. Trimble, supra. The opinion

also noted that because “positions in the unclassified service involve policy-

making and fiduciary responsibilities, it follows reasonably that the

appointing authority should be able to have people of his own choosing in
Highland App. No. 11CA30 14

these positions.” (internal citations omitted). See also, Ohio 1996 Ohio Op.

Atty. Gen. No. 96-040 (reasoning with regard to a county veterans service

commission that “the commission may indicate the period for which it

currently intends to have the executive director serve, but the commission

cannot by contract or resolution alter its legal right under civil service law to

dismiss the executive director without cause at any time, subject to restraints

governing unlawful dismissals.”).

{¶21} As such, we conclude that Appellant was appointed to the

position of law director in an unclassified capacity. This appointment

created an at-will employment situation in that Appellant had no entitlement

to a particular term of employment, and he could be terminated without

cause and without a hearing. It is well-established under Ohio law “that

either party to an employment-at-will arrangement may terminate the

relationship for any or no reason, ‘provided that the termination is not

otherwise unlawful.’ ” Slyman v. Shipman, Dixon & Livingston, Co., L.P.A.,

2nd Dist. No. 2008-CA-35, 2009-Ohio-4126, ¶10; quoting Smiddy v. Kinko's,

Inc., 1st Dist. No. C-020222, 2003-Ohio-446, ¶ 8; citing Greeley v. Miami

Valley Maintenance Contrs., Inc., 49 Ohio St.3d 228, 234, 551 N.E.2d 981

(1990), and Chapman v. Adia Services, Inc., 116 Ohio App.3d 534, 541, 688

N.E.2d 604 (1997). Thus, an at-will employee may only maintain a tort
Highland App. No. 11CA30 15

claim for wrongful discharge against his or her employer “where the

employer discharges the employee in violation of a public policy clearly

expressed in either the state or federal constitutions, state statutes,

administrative rules and regulations, or the common law.” Id. Here,

Appellant has failed to allege a violation of any public policy related to his

termination.

{¶22} As such, in answer to Appellant’s stated issues, we conclude

that in light of his termination, Appellant was not entitled to hold office for

one year, and that city council was entitled to terminate Appellant without

cause. Thus, we conclude that there are no genuine issues of material fact as

to Appellant’s employment status or city council’s ability to terminate him.

Accordingly, the trial court’s grant of summary judgment in Appellees’

favor on these issues was proper.

ISSUE 3

{¶23} In his third sub issue raised under his sole assignment of error,

Appellant questions whether members of Council have immunity if there is

lack of good faith. In raising this issue, Appellant seems to be referencing

two distinct acts by city council: 1) council’s termination of Appellant as

law director; and 2) council’s report to the disciplinary counsel regarding

alleged activities of Appellant. Appellant essentially argues that council
Highland App. No. 11CA30 16

members have no immunity related to these acts, if they were done in bad

faith.

{¶24} R.C. Chapter 2744 establishes a three-step analysis to

determine whether a political subdivision is immune from liability. See, e.g.,

Cramer v. Auglaize Acres, 113 Ohio St.3d 266, 270, 2007-Ohio-1946, 865

N.E.2d 9, ¶ 14. First, R.C. 2744 .02(A)(1) sets forth the general rule that a

political subdivision is immune from tort liability for acts or omissions

connected with governmental or proprietary functions. See, e.g., Cramer;

Colbert v. Cleveland, 99 Ohio St.3d 215, 2003-Ohio-3319, 790 N.E.2d 781,

¶ 7; Harp v. Cleveland Hts., 87 Ohio St.3d 506, 509, 721 N.E.2d 1020

(2000). The statute states: “Except as provided in division (B) of this

section, a political subdivision is not liable in damages in a civil action for

injury, death, or loss to person or property allegedly caused by any act or

omission of the political subdivision or an employee of the political

subdivision in connection with a governmental or proprietary function.”

{¶25} Second, R.C. 2744.02(B) lists five exceptions to the general

immunity granted to political subdivisions under R.C. 2744.02(A)(1). See,

e.g., Cramer; Ryll v. Columbus Fireworks Display Co., 95 Ohio St.3d 467,

470, 2002-Ohio-2584, 769 N.E.2d 372, ¶ 25. Appellant apparently argues

that the exception contained in R.C. 2744.02(B)(2) applies, which states:
Highland App. No. 11CA30 17

“Except as otherwise provided in sections 3314.07 and 3746.24

of the Revised Code, political subdivisions are liable for injury,

death, or loss to person or property caused by the negligent

performance of acts by their employees with respect to

proprietary functions of the political subdivisions.”

{¶26} Finally, if liability exists under R.C. 2744.02(B), R.C.

2744.03(A) sets forth several defenses that re-instate a political subdivision's

immunity. See Cramer at ¶ 16; Colbert at ¶ 9. In the case at bar, Appellant

seems to suggest that R.C. 2744.03(A)(5) applies, which states:

“The political subdivision is immune from liability if the injury,

death, or loss to person or property resulted from the exercise of

judgment or discretion in determining whether to acquire, or

how to use, equipment, supplies, materials, personnel, facilities,

and other resources unless the judgment or discretion was

exercised with malicious purpose, in bad faith, or in a wanton

or reckless manner.” (Emphasis added).

Whether a political subdivision is entitled to statutory immunity under R.C.

Chapter 2744 presents a question of law. See, e.g., Conley v. Shearer, 64

Ohio St.3d 284, 292, 595 N.E.2d 862 (1992); Murray v. Chillicothe, 164

Ohio App.3d 294, 2005-Ohio-5864, 842 N.E.2d 95,¶ 11.
Highland App. No. 11CA30 18

{¶27} In the case sub judice, the parties do not dispute that Appellant

is entitled to the general grant of immunity under R.C. 2744.02(A)(1).

Instead, the dispute focuses on whether the R.C. 2744.02(B)(2) exception to

immunity applies, and, if so, whether R.C. 2744.03(A)(5) re-instates

immunity.

{¶28} We have already determined that Appellee was entitled to

terminate Appellant at any time, without cause, as Appellant was an

unclassified, at-will employee. Further, because Appellant failed to allege

any violation of public policy in connection with his termination, he has

failed to allege facts sufficient to support a claim for the tort of wrongful

discharge. Here, however, Appellant seems to suggest that Appellees were

not immune from liability, by virtue of what Appellant characterizes as acts

done in “bad faith.” Specifically, Appellant contends that the trial court

erred in striking the affidavit of Pat Hayes, which purported to prove that

council’s plan was to hire Appellant in order that they could fire him.3

{¶29} As set forth above, “[s]upporting and opposing affidavits shall

be made on personal knowledge, shall set forth such facts as would be

admissible in evidence, and shall show affirmatively that the affiant is

3
Appellant further argues at this juncture in his brief that “actions taken in violation of the Sunshine Law”
demonstrated bad faith on the part of Appellees in terminating Appellant. However, as we have already
determined that the Sunshine Law claims were barred by the statute of limitations, we do not address this
argument.
Highland App. No. 11CA30 19

competent to testify to the matters stated in the affidavit.” Civ.R. 56(E).

Further, [p]ersonal knowledge” is “ ‘[k]nowledge gained through firsthand

observation or experience, as distinguished from a belief based on what

someone else has said.’ ” Bonacorsi, supra, at ¶ 26. Most importantly, it is “

‘knowledge of factual truth which does not depend on outside information or

hearsay.’ ” Residential Funding Co., L.L.C., supra at ¶ 64.

{¶30} The affidavit of Pat Hayes essentially entirely consisted of

hearsay statements, and was not based upon personal knowledge. Thus, we

cannot conclude that the trial court’s decision to strike this affidavit was an

abuse of discretion. As a result, and in light of the foregoing, we conclude

that not only are Appellees’ immune from liability, Appellant has failed to

properly set forth a cause of action for the tort of wrongful discharge.

Accordingly, the trial court properly granted summary judgment in

Appellees’ favor, both in their official and individual capacities, on this

issue.

{¶31} Appellant next argues that Appellees’s submission of a report to

the Disciplinary Counsel was in bad faith, or even fraudulent, claiming that

it contained the forged signature of one council member. Appellant

contends this “bad faith” removes Appellees’ immunity under R.C. 2744.02.

In Hecht v. Levin, 66 Ohio St.3d 458, 613 N.E.2d 585, at paragraph one of
Highland App. No. 11CA30 20

the syllabus, the Supreme Court of Ohio held that “[a] complaint filed with

the grievance committee of a local bar association is part of a judicial

proceeding.” The Court further held that “[a] statement made in the course

of an attorney disciplinary proceeding enjoys absolute privilege against a

civil action based thereon as long as the statement bears some reasonable

relation to the proceeding.” Id. at paragraph two of the syllabus; see also,

Hughley v. McFaul, 8th Dist. No. 92901, 2009-Ohio-5568, ¶ 9. In reaching

this decision, the Court further reasoned that “the privilege exists * * *

irrespective of whether the statement was made in bad faith.” Hecht at 462;

see also, Young v. Jones, 122 Ohio App.3d 539, 543, 702 N.E.2d 445 (6th

Dist. 1997) (“Such a privilege is applicable even though the statement may

have been made with actual malice, in bad faith and with knowledge of its

falsity.”) (internal citations omitted).

{¶32} Further, and of importance, this Court has previously

recognized that “political subdivisions are immune from claims of fraud.”

Dolan v. Glouster, 173 Ohio App.3d 617, 2007-Ohio-6275, 879 N.E.2d 838,

¶ 20; citing Wilson v. Stark Cty. Dept. of Human Servs., 70 Ohio St.3d 450,

452, 639 N.E.2d 105 (1994); see also, Featherstone v. Columbus, 10th Dist.

No. 06AP-89, 2006-Ohio-3150, ¶ 11 (stating that governmental immunity

“applies particularly to intentional tort claims of fraud * * *.”)
Highland App. No. 11CA30 21

{¶33} Thus, because Appellees’ report to the Disciplinary Counsel has

absolute privilege, even if done in bad faith, Appellant has not stated a cause

of action against Appellees, either in their official or individual capacities.

Further, because political subdivisions are immune from fraud claims, we

conclude that the trial court’s grant of summary judgment was proper on

these issues as well.

{¶34} Accordingly, as Appellant has failed to demonstrate the

existence of genuine issues of material fact, and reasonable minds can come

to but one conclusion, and that conclusion is that Appellees are entitled to

judgment as a matter of law, we affirm the trial court's decision.

JUDGMENT AFFIRMED.
Highland App. No. 11CA30 22

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED and that the
Appellees recover of Appellant costs herein taxed.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing
the Highland County Common Pleas Court to carry this judgment into
execution.

Any stay previously granted by this Court is hereby terminated as of
the date of this entry.

A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Exceptions.

Abele, P.J: Concurs in Judgment and Opinion.
Harsha, J: Concurs in Judgment Only.

For the Court,

BY: _________________________
Matthew W. McFarland, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.