[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. Kramer, Slip Opinion No. 2016-Ohio-5734.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2016-OHIO-5734
DISCIPLINARY COUNSEL v. KRAMER.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Disciplinary Counsel v. Kramer, Slip Opinion No.
2016-Ohio-5734.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct—Relator
had authority to investigate anonymous grievance against respondent—
Conditionally stayed one-year suspension.
(No. 2015-2000—Submitted March 9, 2016—Decided September 13, 2016.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the
Supreme Court, No. 2014-104.
_______________________
O’CONNOR, C.J.
{¶ 1} Respondent, Roger Stephen Kramer of Shaker Heights, Ohio,
Attorney Registration No. 0019210, was admitted to the practice of law in Ohio in
1977. On December 14, 2015, the Board of Professional Conduct filed its report
recommending that Kramer be suspended from the practice of law in Ohio for one
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year, with the suspension stayed in its entirety. Relator, disciplinary counsel,
requests that we reject the board’s recommendation and instead impose a one-year
actual suspension. Kramer requests that any suspension ordered be stayed in its
entirety and that the court consider certain issues that “have broad impact on the
entire disciplinary system in Ohio.” We adopt the board’s recommendation.
RELEVANT BACKGROUND
{¶ 2} In May 2011, the Cuyahoga County Council appointed Kramer, a
former prosecutor, to be a hearing officer at the county’s board of revision. As a
hearing officer, Kramer was a county employee.
{¶ 3} In May 2013, the Cuyahoga County Office of the Inspector General
informed the certified grievance committee of the Cleveland Metropolitan Bar
Association (“CMBA”) that an investigation of Kramer had revealed discrepancies
between his time sheets and his actual hours worked. The inspector general’s
report, dated September 4, 2012, determined that there was “sufficient evidence to
establish reasonable grounds to believe” that Kramer violated county rules,
regulations, and/or policies regarding his work hours and time sheets by some 129
discrepancies between his timesheet and parking garage records. The report stated
that Kramer was aware of the fact that he was paid for work he did not perform and
acknowledged that he owed money to Cuyahoga County as a result. The inspector
general recommended that the matter be referred to the county executive and
human-resources department for potential disciplinary action.
{¶ 4} Prior to the issuance of the inspector general’s report but pending the
results of the investigation, Kramer was placed on administrative leave without pay.
After release of the report, Kramer resigned from his position at the board of
revision on September 14, 2012. In his resignation letter, Kramer denied any
violation of law and asserted that a review of the documents provided to his counsel
“reveal a net discrepancy of six hours.”
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{¶ 5} The committee exercised its discretion and decided not to file a
complaint against Kramer. By letter dated October 24, 2013, the committee
notified the inspector general of the dismissal, stating, “The Committee believes
Mr. Kramer has already been sanctioned by the loss of his employment and that
further disciplinary action is not warranted.” The letter also informed the inspector
general how to obtain review of the committee’s determination pursuant to Gov.Bar
R. V(4)(I)(5) (now Gov.Bar R. V(10)(D)). The inspector general declined to pursue
further review.
{¶ 6} Prior to the committee’s dismissal of the grievance, a separate
anonymous grievance was submitted to disciplinary counsel. According to
disciplinary counsel, the grievance was received on October 17, 2013, and signed
by a “citizen and employee of Cuyahoga County.” Neither the inspector general’s
grievance to the committee nor the anonymous grievance submitted to disciplinary
counsel is included in the record. However, disciplinary counsel described the
contents of the grievance as follows:
In the anonymous grievance, the grievant stated that he or she is
employed by Cuyahoga County and “fear[s] that my employment
might be put in jeopardy by reporting this matter.” Attached to the
anonymous grievant’s letter was a copy of the September 4, 2012
Report of Investigation prepared by the Cuyahoga County Agency
of Inspector General. In the closing paragraph of his or her
grievance, the grievant stated that “I bring this to your attention
because I believe it is important to the legal profession and to
citizens of Cuyahoga County that misconduct be properly reviewed
and appropriate consequences result to insure [sic] integrity in
public life and in the legal profession.”
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{¶ 7} In November 2013, according to disciplinary counsel, he sent a letter
of inquiry to Kramer asking him to reply to the information contained in the
inspector general’s report. In response, Kramer’s counsel informed disciplinary
counsel that the CMBA had already been referred the issue and dismissed a related
grievance. After receiving this information, disciplinary counsel requested a copy
of the CMBA’s file on Kramer and pursued an investigation that, by disciplinary
counsel’s description, “significantly exceeded the scope of the Inspector General’s
investigation.”
{¶ 8} In December 2014, disciplinary counsel filed a formal complaint with
the Board of Commissioners on Grievances and Discipline (now known as the
Board of Professional Conduct) alleging that Kramer’s conduct regarding his
timekeeping violated the Rules of Professional Conduct—specifically,
Prof.Cond.R. 8.4(c) (conduct involving dishonesty, fraud, deceit, or
misrepresentation) and 8.4(d) (conduct prejudicial to the administration of justice).
{¶ 9} Kramer answered the complaint and moved to dismiss, arguing that
the committee’s dismissal of the prior grievance should be dispositive of the matter.
On April 9, 2015, a three-member panel of the board denied the motion to dismiss,
concluding that “[w]hile the first grievance filed by the inspector general arises out
of the same set of facts and circumstances as the grievance that gave rise to the
present complaint, nothing in Gov.Bar R. V precluded the filing of a separate
grievance by a different grievant.” Specifically, the panel found:
CMBA declined to file a complaint based on its view that the
allegations were of the nature of an employment dispute and did not
determine whether any conduct of [Kramer] constituted a violation
of the Rules of Professional Conduct. On the other hand, the
Disciplinary Counsel independently investigated a grievance filed
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by someone other than the Cuyahoga County Inspector General and
discovered facts not reviewed or considered by the CMBA.
{¶ 10} In August 2015, the panel held a formal hearing on the complaint.
On December 14, 2015, the board considered the matter and adopted the panel’s
findings of fact, conclusions of law, and recommendation that Kramer be suspended
from the practice of law in Ohio for one year, stayed in its entirety.
{¶ 11} Disciplinary counsel objects to the board’s recommendation and
requests an actual suspension of one year. Kramer requests that any suspension be
stayed in its entirety and that the court consider addressing issues that, he asserts,
have not been addressed in prior disciplinary decisions. One of these issues is
whether a dismissal of a grievance by a certified grievance committee is final if not
appealed and, relatedly, whether another disciplinary agency must give the prior
dismissal full faith and credit.
MISCONDUCT
{¶ 12} After Kramer had been employed for approximately one year as a
board of revision hearing officer, his supervisor, who was responsible for approving
Kramer’s timesheets, was replaced. Kramer’s new supervisor requested that the
Cuyahoga County inspector general audit her department based on concerns that
her predecessor was too lax and had allowed time theft. The audit revealed two
employees who had misreported their time, including Kramer. Specifically, the
report revealed 129 discrepancies between Kramer’s parking-garage activity and
the times he had reported on his timesheets. The inspector general later testified
that Kramer admitted to “lying on [his] timesheet” when she met with Kramer
during her investigation. Kramer testified that he “may have” made the admission
but could not recall.
{¶ 13} Disciplinary counsel’s investigation covered a broader time period
than the inspector general’s report and revealed additional discrepancies in
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Kramer’s timesheets. His investigation also revealed that Kramer misreported time
by reporting nine hours worked when he had worked only eight (but worked
through lunch) even though this was a prohibited practice.
{¶ 14} In his testimony, Kramer admitted to timekeeping “inaccuracies”
and “mistakes,” including reporting the times he had worked through lunch without
first informing his supervisor that he was doing so. Kramer further testified that
these inaccuracies and mistakes “were wrong.”
{¶ 15} Ultimately, the panel found that Kramer’s testimony regarding the
timekeeping discrepancies was not credible and also found that his conduct
“amounted to taking county resources without completing the work.”
SANCTION
{¶ 16} The board concluded that Kramer’s failure to acknowledge to the
panel the wrongful nature of his conduct dictated a stayed one-year suspension from
the practice of law. Disciplinary counsel filed objections to the board’s report in
this court, asserting that the overwhelming documentary evidence along with
Kramer’s admission of misconduct to the inspector general establish that his
testimony, which the board characterized as “not credible,” was false, deceptive,
and intended to exculpate himself from discipline. Accordingly, disciplinary
counsel asserts, the imposition of a one-year actual suspension from the practice of
law is appropriate.
{¶ 17} There can be no dispute that some discipline is warranted here.
Kramer violated Prof.Cond.R. 8.4(c) and (d) by knowingly falsifying his public-
employee time records. “Lawyers holding public office assume legal
responsibilities going beyond those of other citizens. A lawyer’s abuse of public
office can suggest an inability to fulfill the professional role of lawyers.”
Prof.Cond.R. 8.4, Comment 5. The board’s finding that Kramer failed to
acknowledge to the panel the wrongful nature of his conduct, instead claiming
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ignorance of the timekeeping rules and a lack of culpable intent, is particularly
concerning.
{¶ 18} Typically, misconduct involving dishonesty, fraud, deceit, or
misrepresentation warrants an actual suspension from the practice of law unless
there is significant mitigating evidence to support a departure from that principle.
See Disciplinary Counsel v. Potter, 126 Ohio St.3d 50, 2010-Ohio-2521, 930
N.E.2d 307, ¶ 9-11 (absence of a prior disciplinary record, efforts to rectify the
consequences of the misconduct, full cooperation in the investigation including
self-reporting, and evidence of good character and reputation apart from the
charged misconduct sufficient to stay 12-month suspension for violating fiduciary
duty as the executor of an estate); Disciplinary Counsel v. Niermeyer, 119 Ohio
St.3d 99, 2008-Ohio-3824, 892 N.E.2d 434, ¶ 12-13 (absence of prior misconduct,
cooperation in the disciplinary process including self-reporting, acceptance of
responsibility for misconduct, and evidence of good character and reputation
sufficient to stay 12-month suspension for altering a document to make it appear
that it had been timely filed).
{¶ 19} Here, the board found as mitigating factors the absence of a prior
disciplinary record, attestations from Kramer’s peers and colleagues regarding his
good character, and imposition of other penalties or sanctions—namely, Kramer’s
forced resignation. See Gov.Bar R. V(13)(C)(1), (5), and (6). In addition, the board
noted Kramer’s willing participation in the disciplinary process. See Gov.Bar R.
(V)(13)(C)(4).
{¶ 20} As aggravating factors in this case, the board found the presence of
a dishonest or selfish motive, a pattern of misconduct, multiple offenses, and
Kramer’s refusal to acknowledge to the panel the wrongful nature of his
misconduct. See Gov.Bar R. V(13)(B)(2), (3), (4), and (7). Although the board
found that Kramer’s testimony about his timekeeping was not credible, the board
did not find that it was “false and deceptive” as disciplinary counsel contends. And
7
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although Kramer’s misconduct was repetitive, it was limited to his timekeeping
practice. Finally, despite Kramer’s characterization of his misconduct as
“mistakes” and as “[s]loppy bookkeeping,” he has recognized that the misreporting
of his time was wrong. Consideration of these factors persuades us that Kramer is
unlikely to commit future misconduct. And the primary purpose of the disciplinary
process is to protect the public. Ohio State Bar Assn. v. Weaver, 41 Ohio St.2d 97,
100, 322 N.E.2d 665 (1975).
{¶ 21} Thus, we conclude that the board’s recommendation of a one-year
suspension, fully stayed, is warranted here.
RULEMAKING AND THE DISMISSAL OF A GRIEVANCE
{¶ 22} Initially, Kramer requests that the court determine whether a
dismissal by a certified grievance committee that is not appealed by the grievant
should become final and be given full faith and credit by another disciplinary
agency. In other words, Kramer asks this court to address whether disciplinary
counsel had the authority to investigate and pursue disciplinary action on the
separate, anonymous grievance.
{¶ 23} Article IV, Section 5 of the Ohio Constitution states that the Supreme
Court “shall make rules governing the admission to the practice of law and
discipline of persons so admitted.” Article IV, Section 5(B). “We have previously
held that the foregoing constitutional provision[ ] grant[s] plenary rulemaking
authority to the Supreme Court, which authority is necessary for a uniform,
effective governance of the practice of law in this state.” Melling v. Stralka, 12
Ohio St.3d 105, 106, 465 N.E.2d 857 (1984).
{¶ 24} Under that authority, this court has promulgated the Rules for the
Government of the Bar of Ohio, including Rule V, which sets forth the disciplinary
procedure governing the practice of law. Gov.Bar R. V(2)(A) describes the
exclusive jurisdiction of the Board of Professional Conduct regarding grievances
alleging attorney misconduct:
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January Term, 2016
Section 2. Jurisdiction and powers of the board
(A) Exclusive jurisdiction. Except as otherwise
expressly provided in rules adopted by the Supreme Court, all
grievances involving alleged misconduct by judicial officers or
attorneys, * * * proceedings for the discipline of judicial officers,
attorneys, persons under suspension or on probation, and
proceedings for the reinstatement to the practice of law shall be
brought, conducted, and disposed of in accordance with the
provisions of this rule.
(Emphasis added.) The rules provide that the board shall appoint a disciplinary
counsel, who, among other duties, investigates allegations of misconduct. Gov.Bar
R. V(4)(A). Thus, if we were to find that a limitation on disciplinary counsel’s
authority to investigate a grievance exists, that limitation must be “expressly
provided” by the rules the court has promulgated. If it is not, the limitation is one
that must be introduced and vetted through the rulemaking process, not made by
judicial declaration.
{¶ 25} Gov.Bar R. V(5)(B) provides that a board-certified grievance
committee of any local bar association can investigate misconduct by an attorney
in the geographic area served by that association. Gov.Bar R. V(9)(C)(1) further
provides as follows:
The Office of Disciplinary Counsel or a certified grievance
committee shall review and may investigate a grievance that alleges
facts that, if substantiated, would constitute misconduct by a judicial
officer or attorney * * *. The Office of Disciplinary Counsel and a
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certified grievance committee shall review and may investigate any
matter filed with it or that comes to its attention * * *.
(Emphasis added.) In other words, disciplinary counsel and the certified grievance
committees each enjoy broad authority to review and investigate any grievance that
comes to his or their attention.
{¶ 26} Pursuant to that authority, both disciplinary counsel and a certified
grievance committee may exercise discretion to dismiss an allegation of
misconduct, Gov.Bar R. V(9)(C)(2), or pursue disciplinary action via a complaint,
Gov.Bar R. V(9)(C)(1). If a certified grievance committee determines that a
complaint is not warranted, a grievant who is dissatisfied with that determination
“may secure a review of the determination by filing a written request with the
director of the Board within fourteen days after the grievant is notified of the
determination.” Gov.Bar R. V(10)(D).
{¶ 27} In short, if a grievance investigation does not result in a formal
disciplinary proceeding against the attorney, the rules specifically provide an
appeal procedure for the grievant. However, the existence of an appeal process has
no bearing on the initial investigation of a grievance, and no language limits the
investigation as long as the grievance alleges facts that, if substantiated, would
constitute attorney misconduct.
{¶ 28} Regardless of whether the grievances against Kramer alleged the
same misconduct, nothing in the rules currently limits the authority of disciplinary
counsel to investigate a grievance that alleges attorney misconduct. To the
contrary, Gov.Bar R. V(9)(C) specifically requires disciplinary counsel to review
any matter that comes before it and authorizes it to investigate any matter.
{¶ 29} The dissent erroneously states that “[b]y implication, the lead
opinion asserts that this court must allow multiple proceedings in connection with
the same alleged misconduct involving the same victim unless and until a new rule
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January Term, 2016
is adopted.” Dissenting opinion at ¶ 51. The dissent also states that “[p]ursuant to
the lead opinion, taken to its logical conclusion, a grievance would never achieve
finality.” Id. at ¶ 52. By these statements, the dissent attempts to obfuscate our
straightforward analysis. This reading of our decision is based on the dissent’s own
misinterpretation of the term “grievance” and its refusal to recognize the existence
of multiple grievances here.
{¶ 30} Indeed, the dissent’s distortion of our decision is based on a
mischaracterization of the facts and the rules. Quite simply, nothing in the rules
precludes disciplinary counsel’s review and investigation of the second grievance
that led to the board’s disciplinary recommendation in this case. Kramer and the
dissenting justices essentially request that the Rules for the Government of the Bar
be revised. To do so, the court must follow its rulemaking procedures pursuant to
its constitutional authority to “make rules governing the admission to the practice
of law and discipline of persons so admitted.” Ohio Constitution, Article IV,
Section 5(B). And any change would not affect our decision today, which is
decided based on the current status of the rules.
{¶ 31} Although the Ohio Constitution does not require legislative review
of rules governing the discipline of attorneys, we follow a rulemaking procedure to
promulgate new and amend existing Rules for the Government of the Bar. This
process includes public notice, time for public comment and input from
stakeholders such as interested committees or task forces, and a process for the
justices to consider public comments received and proposed changes before final
approval.
{¶ 32} Should the members of the bench and bar determine it prudent to
pursue a rule or rule amendment regarding the finality of a grievance investigation
when multiple grievances are submitted regarding attorney or judicial misconduct,
such a change should proceed through this court’s rulemaking process. Any change
to the rules—and particularly those (like that which Kramer and the dissenting
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justices request) that are of great import to the public—should not be done without
completing our longstanding process.
{¶ 33} Lawyers on the “qui vive” pursuant to the dissent’s cry are no doubt
aware that judicial decision-making based on the current status of the rules is
required for the uniformity, consistency, and predictability that are hallmarks of an
independent judiciary. The dissent attempts to frame its indefensible stand as an
interpretation of the rules, but it reads into the rules a limitation that does not exist.
The dissent’s approach circumvents the stability inherent in the consistent
application of the Rules of Professional Conduct on a case-by-case basis. This does
our profession no good.
{¶ 34} Because the rules, as they exist today, do not restrict disciplinary
counsel’s authority to investigate the anonymous grievance that is the basis of this
disciplinary action, nothing precludes the imposition of the board-recommended
sanction here.
CONCLUSION
{¶ 35} For these reasons, we find against relator and adopt the
recommendation of the board. Accordingly, Roger Stephen Kramer is suspended
from the practice of law in Ohio for one year, with the suspension stayed in its
entirety on the condition that he engage in no further misconduct. If Kramer fails
to comply with the condition of the stay, the stay will be lifted and he will serve the
entire one-year suspension. Costs are taxed to Kramer.
Judgment accordingly.
LANZINGER and O’NEILL, JJ., concur.
FRENCH, J., concurs in judgment only.
KENNEDY, J., dissents, with an opinion joined by PFEIFER and O’DONNELL,
JJ.
_________________
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KENNEDY, J., dissenting.
{¶ 36} I dissent. Lawyers across Ohio, be on the qui vive! Certified
grievance committees be damned! Like the sinners in Dante Alighieri’s Canto VII
of the Divine Comedy: Inferno, the lead opinion’s interpretation of our rules would
subject members of the Ohio bar to the prospect of multiple disciplinary
proceedings in connection with the same alleged misconduct involving the same
alleged victim.
{¶ 37} Because the cornerstone of our disciplinary procedure is the filing,
investigation, and disposition of “a grievance,” Gov.Bar R. V(9), and the
grievances at issue here involve the same victim (the taxpayers of Cuyahoga
County) and the same misconduct (the falsification of timesheets), I would give full
faith and credit to the disposition of the grievance before the Cleveland
Metropolitan Bar Association (“CMBA”) as explicitly required by the finality
provision set forth in Gov.Bar R. V(10)(D), overrule the recommendation of the
board, and grant the motion filed by respondent, Roger Kramer, to dismiss this
action. Therefore, I dissent.
{¶ 38} The lead opinion recasts respondent’s argument as a challenge to the
investigative authority of disciplinary counsel. But respondent’s argument actually
focuses on the question whether finality attaches to a grievance after a certified
grievance committee investigates the grievance and a majority of that committee
votes not to file a formal complaint. Construing the provisions of Gov.Bar R. V(9)
and (10) together, the answer to that question is yes.
{¶ 39} This is a question of first impression, and because we have not had
occasion to interpret these particular Rules for the Government of the Bar, there is
scant relevant case law. However, when interpreting other administrative rules in
past cases, we have applied our rules of statutory construction. See, e.g., State ex
rel. Brilliant Elec. Sign Co. v. Indus. Comm., 57 Ohio St.2d 51, 54, 386 N.E.2d
1107 (1979); McFee v. Nursing Care Mgt. of Am., Inc., 126 Ohio St.3d 183, 2010-
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Ohio-2744, 931 N.E.2d 1069, ¶ 27. Therefore, our role in this case is to apply
traditional rules of statutory construction and construe the applicable rules together,
harmonizing them to give full effect to each provision. See State ex rel. Thurn v.
Cuyahoga Cty. Bd. of Elections, 72 Ohio St.3d 289, 294, 649 N.E.2d 1205 (1995).
{¶ 40} By failing to do so, the lead opinion reaches a conclusion that is
contrary to the intention distinctly reflected in our rules—i.e., that following an
investigation, a grievance achieves finality 14 days after a certified grievance
committee decides not to file a formal complaint and an appeal is not filed. Gov.Bar
R. V(10)(D).
{¶ 41} Focusing on the identity of the anonymous grievant in this case, the
panel baldly asserted that the anonymous grievance was “filed by someone other
than the Cuyahoga County Inspector General,” who filed the grievance investigated
by the CMBA, and that “nothing in Gov.Bar R. V precluded the filing of a separate
grievance by a different grievant.” The board adopted the panel’s reading of the
rules and concluded that since the inspector general was the source of the grievance
before the CMBA and the source of the grievance before relator was anonymous,
“it is likely there are two different grievants.” The lead opinion tacitly relies on
this speculation and accepts the board’s reasoning by restating the panel’s bald
assertion.
{¶ 42} However, an overview of the rules establishes a systematic
framework for the filing, investigation, and disposition of “a grievance.” Gov.Bar
R. V(9). The identity of the grievant is not relevant.
{¶ 43} Gov.Bar R. V(9)(C) specifically establishes the broad power of a
local certified grievance committee to investigate a grievance. In conjunction with
the controlling use of the term “grievance,” Gov.Bar R. V(9) establishes that the
focal point of an investigation is the allegation of misconduct. See Gov.Bar R.
V(9)(B) and (C). Conversely, the only other reference in Gov.Bar R. V(9) to a
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“grievant” concerns the right of a grievant to receive notice of a “potential right to
an award” from the Lawyers’ Fund for Client Protection. Gov.Bar R. V(9)(F).
{¶ 44} Our rules do not define the term “grievance” or “grievant.” Giving
these terms their plain and ordinary meaning, see Northeast Ohio Regional Sewer
Dist. v. Bath Twp., 144 Ohio St.3d 387, 2015-Ohio-3705, 44 N.E.3d 246, ¶ 12,
“grievance” is defined as “[a]n injury, injustice, or wrong that potentially gives
ground for a complaint,” Black’s Law Dictionary 818 (10th Ed.2014). In the past,
we have used the word “grievance” to mean a complaint alleging misconduct. See
Columbus Bar Assn. v. Troxell, 129 Ohio St.3d 133, 2011-Ohio-3178, 950 N.E.2d
555, ¶ 12.
{¶ 45} Typically used in an employment-law context, “grievant” is defined
as “[a]n employee who files a grievance and submits it to the grievance procedure
outlined in a collective-bargaining agreement.” Black’s Law Dictionary 818 (10th
Ed.2014).
{¶ 46} The distinction of use between the terms “grievance” and “grievant”
in Gov.Bar R. V(9) continues in Gov.Bar R. V(10), which controls the filing of a
complaint. In Gov.Bar R. V(10), the term “grievance” is used in conjunction with
the terms “allegation” or “complaint,” see Gov.Bar R. V(10)(A) and (C), while the
term “grievant” is used exclusively in connection with a grievant’s right to receive
notice of a certified grievance committee’s intent not to file a complaint and a
grievant’s right to file an appeal from that decision, see Gov.Bar R. V(10)(C) and
(D). Explicit in Gov.Bar R. V(10) is that following an investigation, a grievance
will achieve finality. See Gov.Bar R. V(10)(C) and (D).
{¶ 47} If a grievance is reviewed and investigated by disciplinary counsel
and disciplinary counsel disposes of the grievance by declining to file a formal
complaint, the grievant has the right to notice of that disposition but no right to
review by the board. See Gov.Bar R. V(10)(C) and (D). In contrast, if after a
review and investigation a majority of a certified grievance committee votes to
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dispose of the grievance by declining to file a formal complaint, then the grievant
is entitled to notice and the right to file an appeal with the board within 14 days,
and that appeal is reviewed pursuant to an abuse-of-discretion or error-of-law
standard. Gov.Bar R. V(10)(B) through (D).
{¶ 48} Construing these provisions together in a manner that gives full
effect to each, when a certified grievance committee has disposed of a grievance by
declining to file a formal complaint, that grievance achieves finality after 14 days
in the absence of an appeal. Any other construction of these rules would render
meaningless the time limits imposed by Gov.Bar R. V(9)(D) on the investigation
of grievances, the notice requirements imposed by Gov.Bar R. V(10)(C) following
a certified grievance committee’s determination not to file a complaint, and the
grievant’s right to review and the standard of review set forth in Gov.Bar R.
V(10)(D).
{¶ 49} Disciplinary counsel and the lead opinion both emphasize that
Gov.Bar R. V(9)(C)(1) authorizes disciplinary counsel to review and investigate
any grievance or matter brought to his attention. Gov.Bar R. V(9)(C)(1) does grant
this authority to disciplinary counsel, but the rule does not explicitly recognize the
finality of a certified grievance committee’s determination not to file a complaint
under Gov.Bar R. V(10)(D). Moreover, Gov.Bar R. V(10)(D) does not explicitly
acknowledge disciplinary counsel’s authority under Gov.Bar R. V(9)(C)(1) to
investigate any grievance. Therefore, these two provisions conflict.
{¶ 50} The rules of statutory construction provide that “ ‘where a statute
couched in general terms conflicts with a specific statute on the same subject, the
latter controls.’ ” State v. Taylor, 113 Ohio St.3d 297, 2007-Ohio-1950, 865 N.E.2d
37, ¶ 12, quoting Humphrys v. Winous Co., 165 Ohio St. 45, 48, 113 N.E.2d 780
(1956). Therefore, the specific finality provision of Gov.Bar R. V(10)(D) controls
over the more general provision in Gov.Bar R. V(9)(C) granting investigatory
authority to disciplinary counsel.
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{¶ 51} By implication, the lead opinion asserts that this court must allow
multiple proceedings in connection with the same alleged misconduct involving the
same victim unless and until a new rule is adopted. Nonsense. All we need to do
is to give effect to the intention clearly reflected in our existing rules. See
Summerville v. Forest Park, 128 Ohio St.3d 221, 2010-Ohio-6280, 943 N.E.2d 522,
¶ 19 (in statutory construction, the primary rule is to give effect to the intention of
the legislature). To that end, while we liberally construe the provisions of Gov.Bar
R. V “for the protection of the public, the courts, and the legal profession,”
Disciplinary Counsel v. Heiland, 116 Ohio St.3d 521, 2008-Ohio-91, 880 N.E.2d
467, ¶ 34, we should refrain from a construction that produces an unreasonable or
absurd result, State ex rel. Asti v. Ohio Dept. of Youth Servs., 107 Ohio St.3d 262,
2005-Ohio-6432, 838 N.E.2d 658, ¶ 28. We have long held that the disciplinary
process “is neither a criminal nor a civil proceeding,” In re Judicial Campaign
Complaint Against Carr, 76 Ohio St.3d 320, 322, 667 N.E.2d 956 (1996), and that
“[t]he standards of due process in such proceedings are not those in a criminal
proceeding,” Ohio State Bar Assn. v. Illman, 45 Ohio St.2d 159, 162, 342 N.E.2d
688 (1976), but until today we have never declared that a determination by a
certified grievance committee not to file a formal complaint after review and
investigation of a grievance lacks finality. The lead opinion’s declaration renders
meaningless Gov.Bar R. V(10)(C) and (D) and the broad authority that the lead
opinion proclaims a certified grievance committee shares with disciplinary counsel
to review and investigate grievances.
{¶ 52} Motivated by the belief that “some discipline is warranted,” lead
opinion at ¶ 17, the author and joiners of the lead opinion offer in support of their
desired outcome an analysis that is unnecessary “ ‘to protect the public, the courts
and the legal profession,’ ” Disciplinary Counsel v. Dann, 134 Ohio St.3d 68, 2012-
Ohio-5337, 979 N.E.2d 1263, ¶ 20 (noting the purpose of a disciplinary sanction),
quoting In re Disbarment of Lieberman, 163 Ohio St. 35, 41, 125 N.E.2d 328
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(1955). Pursuant to the lead opinion, taken to its logical conclusion, a grievance
would never achieve finality: even disciplinary counsel’s determination not to file
a formal complaint under Gov.Bar R. V(10)(C), which is not subject to review,
would be subject to reinvestigation by a certified grievance committee, see Gov.Bar
R. V(9)(C)(1).
{¶ 53} This interpretation would permit the repeated filing of a grievance
with both disciplinary counsel and the certified grievance committee, and—
depending on who reviews the incoming grievance, who disciplinary counsel
happens to be, and the composition of the committee—a new investigation may
arise and ultimately lead to a formal complaint. Meanwhile, the subject of a
grievance would be left in perpetual limbo. This interpretation also would permit
a grievant to circumvent the appellate process and would supplant the abuse-of-
discretion and error-of-law standards of review with a de novo review standard.
See Gov.Bar R. V(10)(C) and (D).
{¶ 54} In this case, respondent underwent an investigation by the CMBA
that lasted five months. After being advised that the matter was being dismissed
without the filing of a formal complaint, he was notified by a letter dated November
19, 2013, that an investigation into the same misconduct involving the same victim
was beginning again. One year and 26 days later, disciplinary counsel filed a
formal complaint.1
1
This court independently reviews attorney-discipline cases. Cincinnati Bar Assn. v. Statzer, 101
Ohio St.3d 14, 2003-Ohio-6649, 800 N.E.2d 117, ¶ 8. During that review in this case, it was
discovered that disciplinary counsel never requested an extension of the investigative time limits
and failed to complete the investigation within one year. See Gov.Bar R. V(9)(D). Gov.Bar R.
V(9)(D)(3) provides that the time limits are not jurisdictional and that a grievance is subject to
dismissal when “there has been an unreasonable delay and * * * the rights of the respondent to have
a fair hearing have been violated.” Although Gov.Bar R. V(9)(D)(3) provides that an investigation
that extends beyond one year is per se unreasonable, there is no evidence in the record to support a
determination that that violation implicated respondent’s right to a fair hearing. Therefore,
consideration of respondent’s underlying argument was required.
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{¶ 55} The lead opinion states that the anonymous grievance was filed prior
to dismissal by the CMBA, but that is irrelevant to this determination. The
disposition of the grievance before the CMBA achieved finality 14 days after
respondent was notified of that determination—in early December 2013. The
formal complaint filed by disciplinary counsel was time-stamped by the board as
filed on December 15, 2014. That was more than 12 months after the CMBA’s
disposition of the grievance achieved finality.
{¶ 56} While we should recognize the independence of the investigative
entities in our system of discipline, that independence does not supersede our duty
to reasonably interpret our rules so that all rules are given full effect. Disciplinary
counsel may investigate, but the finality provision of Gov.Bar R. V(10)(D)
precludes us from allowing the anonymous grievance to proceed, since it involves
the same victim and the same misconduct alleged by the inspector general’s
grievance. Any other outcome here renders meaningless Gov.Bar R. V(10)(C) and
(D).
{¶ 57} In Ohio there are 33 certified grievance committees. Office of
Disciplinary Counsel, 2015 Annual Report 7, http://www.supremecourt.ohio.gov/
DisciplinarySys/odc/annualReports/2015.pdf (accessed Aug. 9, 2016). Members
of those certified grievance committees perform an invaluable service in our system
of professional discipline. We entrust them with fulfilling an important mission—
to protect the citizens, the courts, and the honor and nobility of our great profession.
See Heiland, 116 Ohio St.3d 521, 2008-Ohio-91, 880 N.E.2d 467, at ¶ 34. Our
rules afford those committees a measure of great deference. It is only when a
disposition is appealed and there is a finding that the certified grievance committee
acted unreasonably, unconscionably, or arbitrarily that its determination is subject
to reversal. See Gov.Bar R. V(10)(D).
{¶ 58} While a majority of this court may believe that the CMBA got it
wrong and that respondent should be sanctioned, that is not the question that we
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must answer. The only issue before us is whether a certified grievance committee’s
determination not to file a formal complaint ever achieves finality and whether we
should respect and give full faith and credit to that disposition when we later find
that a formal complaint filed by disciplinary counsel alleged the same misconduct
involving the same victim as a grievance that the committee already investigated
and disposed of.
{¶ 59} Because the cornerstone of our disciplinary procedure is the filing,
investigation, and disposition of “a grievance,” Gov.Bar R. V(9), and the
grievances at issue here involve the same victim (the taxpayers of Cuyahoga
County) and the same misconduct (the falsification of timesheets), I would give full
faith and credit to the disposition of the grievance before the CMBA as required by
the finality provision explicitly set forth in Gov.Bar R. V(10)(D), overrule the
recommendation of the board, and grant respondent’s motion to dismiss this action.
Therefore, I dissent.
PFEIFER and O’DONNELL, JJ., concur in the foregoing opinion.
_________________
Scott J. Drexel, Disciplinary Counsel, for relator.
Mary L. Cibella, for respondent.
_________________
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