Hurt v. Liberty Twp., No. 17 CAI 05 0031

• Court: United States Court of Appeals (Ohio)
• Writing for the Court: Gwin, J.
• Citation: 97 N.E.3d 1153,2017 Ohio 7820
• Parties: James HURT, et al., Plaintiffs–Appellees v. LIBERTY TOWNSHIP, DELAWARE COUNTY, Ohio, Defendant–Appellant
• Decision Date: 22 September 2017
• Docket Number: No. 17 CAI 05 0031

97 N.E.3d 1153
2017 Ohio 7820

James HURT, et al., Plaintiffs–Appellees
v.
LIBERTY TOWNSHIP, DELAWARE COUNTY, Ohio, Defendant–Appellant

No. 17 CAI 05 0031

Court of Appeals of Ohio, Fifth District, Delaware County.

September 22, 2017

JAMES HURT, 2081 Bunty Station Road, Delaware, OH 43015, MARK GERGER, 5212 Sheffield Avenue, Powell, OH 43065, For Plaintiffs–Appellees

STEPHANIE SCHOOLCRAFT, DAVID A. RIEPENHOFF, 400 South Fifth Street, Suite 200, Columbus, OH 43215–5095, For Defendant–Appellant.

JUDGES: Hon. Patricia A. Delaney, P.J., Hon. W. Scott Gwin, J., Hon. John W. Wise, J.

OPINION

Gwin, J.

{¶ 1} Respondent-appellant Liberty Township, Delaware County, Ohio ["Liberty Township"] appeals from the March 29, 2017 final order and entry of the Ohio Court of Claims adopting the Special Master's Report and Recommendation that granted the public record request of Requestor-appellees James Hurt ["Hurt"] and Mark Gerber ["Gerber"]¹ .

Facts and Procedural History

{¶ 2} This action is based on public records requests for interview notes taken by a private person statutorily designated to carry out an official function, the investigation and preparation of charges for removal of a township fire chief.

{¶ 3} On March 21, 2016, the Board of Trustees ("Board") of Liberty Township passed Resolution # 16–0321–11, "to designate Douglas Duckett ["Duckett"] to investigate the conduct of Fire Chief Tim Jensen and prepare the necessary charges pursuant to Section 505.38 of the Ohio Revised Code * "."

{¶ 4} R.C. 505.38 defines a process that is preliminary to the removal of an employee of the fire department or the fire chief. Pursuant to R.C. 505.38(A), an employee or a fire chief continues in office until removed from that office. In order to be removed from that office, the appointing authority must follow the removal proceedings contained in R.C. 733.35 to 733.39. Consistent with R.C. 505.38(A), a board of township trustees may institute removal proceedings of the employee or fire chief when it has reason to believe the employee or fire chief is guilty of, "... bribery, misfeasance, malfeasance, nonfeasance,

97 N.E.3d 1158

misconduct in office, gross neglect of duty, gross immorality, or habitual drunkenness..." in the performance of the fire chief's official duties. R.C. 733.35.

{¶ 5} The board may designate a private citizen or the fire chief to investigate any alleged misconduct by the employee or the fire chief. The fire chief or the private citizen acting as the investigator may prepare any necessary charges in accordance with R.C. 733.35 to 733.39. R.C. 505.38(A). The investigator will prepare charges if the investigation concludes the employee or the fire chief has violated general or specific standards of conduct. R.C. 733.35. The charges written by the investigator must include detailed statements of alleged guilt, and those charges are then filed with the board and served upon the employee or the fire chief. Id. Once the charges are filed, the charges must be heard at the next regular meeting of the Board unless the employee or fire chief seeks an extension of time. R.C. 733.36. The Board of Trustees acts as a quasi-judicial authority during the hearing.

{¶ 6} As part of Duckett's investigation, Duckett created and maintained notes related to sixteen interviews of Township trustees, Township employees, and others (defined in the Complaint at ¶ 5, 6 and 8 as the "Duckett notes").²

{¶ 7} Duckett submitted the final copy of his report to Attorney Kim on May 10, 2016. The Board then directed Duckett to prepare charges against Jensen, which he filed on June 6, 2016. (Trustee Eichhorn Affidavit at 5–6).

{¶ 8} A three-day administrative hearing was scheduled for the Board to hear the charges against Jensen, beginning August 8, 2016. (Trustee Eichhorn Affidavit, ¶ 7). Prior to the administrative hearing before the Board, Jensen's counsel filed a subpoena for the "notes Mr. Duckett took during the interviews of witnesses during his investigation." (Trustee Eichhorn Affidavit, ¶ 7–8). Duckett objected to the production of the notes. (Id. at ¶ 8–9; Trustee Leneghan Affidavit, ¶ 8–9; Trustee Mitchell Affidavit, ¶ 8–19).

{¶ 9} At the beginning of the hearing on August 8, the Board of Trustees heard arguments regarding whether or not it should grant attorney Bittner's subpoena. (Trustee Eichhorn Affidavit, ¶ 10; Trustee Leneghan Affidavit, ¶ 10; Trustee Mitchell Affidavit, ¶ 10). After the Board of Trustees heard these arguments, as well as arguments in favor and in opposition of various procedural matters, the Board adjourned to executive session. (Id.).

{¶ 10} The Board considered the subpoena, "and announced it was granting Mr. Bittner's subpoena and requiring Mr. Duckett to produce the notes he took during witness interviews to Mr. Bittner." (Trustee Eichhorn Affidavit, ¶ 10–11). The individual trustees and the Township administrator assert in their affidavits that, other than the mechanical process of handing the subpoenaed notes to Jensen's counsel at the August 8, 2016 hearing, the Duckett notes were never in their individual physical possession, and were not introduced into evidence at the hearing. (Id. at ¶ 12–15).

97 N.E.3d 1159

{¶ 11} During the third day of the hearing, August 10, 2016, the Board of Trustees, Bittner, and Jensen agreed to pursue mediation and the administrative hearing was stayed pending the outcome of mediation. (Trustee Eichhorn Affidavit, ¶ 19). The parties engaged in mediation on August 25, 2016, and came to a settlement agreement where the Board agreed to dismiss the charges against Jensen and Jensen agreed to become a Fire Prevention Officer for the Township. (Id. at ¶ 20). Because of the settlement, the Board did not make any findings or issue a decision based upon the evidence presented at the August 8–10, 2016 hearing, (Id. at ¶ 21).

{¶ 12} On May 5, 2016, Hurt made the first of his and Requester Gerber's public records requests to Township Administrator Matt Huffman for various items, including the Duckett notes. Over the next three months, Huffman provided some of the requested items, but responded that the interview notes were kept by Duckett as personal records and therefore did not meet the definition of "records."

{¶ 13} On September 2, 2016, Huffman sent an e-mail to Hurt relaying the Township legal counsel's advice that "[t]hose notes are not a public record since the Township does not have possession of those documents. The documents were never introduced as exhibits and are not in the record. They were given to Mr. Bittner as a result of a subpoena." (Requesters' Exhibit C). On October 12, 2016, Hurt and Gerber sent a joint e-mail to both Huffman and Duckett, repeating their requests for the Duckett notes. On October 13, 2016, Duckett sent an e-mail to Gerber that stated:

You are incorrect as a matter of law that I am "holding public records on behalf of Liberty Township...."

Under the express terms of Section 149.43(A)(1) of the Ohio Revised Code, "Public record means records kept by any public office, including ... township[s]...." I am not a "public office"; I am an attorney with a private law practice. My records are thus not "public records." This has nothing to do with attorney-client privilege; none of my records are public records by statutory definition.

Accordingly, I am not providing any documents in response to your request. You need to focus your request on the public office, i.e., Liberty Township.

(Requesters' Exhibit F). On September 23, 2016, Township employee Cathy Buehrer provided Hurt with transcripts of the Duckett interviews of Jensen, and offered access to the audio recordings of those interviews. (Requesters' Exhibit G).

{¶ 14} On November 21, 2016, Requesters filed a complaint against the Township under R.C. 2743.75 alleging denial of access to a public record in violation of R.C. 149.43(B), attaching copies of the original records requests and related correspondence.

{¶ 15} Consistent with the mandates included in R.C. 2743.75, the parties participated in mediation, which was unsuccessful. Notice Referring Public Records Complaint to Mediation, Ohio Court of Claims, Case No. 2016–00856–PQ (November 22, 2016); Notice of Scheduled Mediation Conference , Ohio Court of Claims, Case No. 2016–00856–PQ (January 3, 2017).

{¶ 16} Liberty Township filed a motion to dismiss Requestor's Complaint as well as a response to the Complaint. Motion to Dismiss and Response to Complainants ORC 2743.75 Complaint , Ohio Court of Claims, Case No. 2016–00856–PQ (February 1, 2017). Liberty Township asked the Court to find that Duckett's personal notes were not public records for three reasons: Duckett was a private individual not subject to Ohio's Public Records Act, that

97 N.E.3d 1160

Duckett's notes were personal notes not public records, and finally, that Liberty Township did not possess, and had never possessed, Duckett's notes.

{¶ 17} The Special Master assigned to the case issued a Report and Recommendation on February 22, 2017, finding that Duckett's notes were public records. Report and Recommendation, Ohio Court of Claims, Case No. 2016–00856–PQ (February 22, 2017).

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