Margaret R. Scarpelli v. Village of Put-In-Bay, Ohio

• Court: Ohio Court of Appeals
• Decision Date: 30 June 1995
• Docket Number: OT-94-037,95-LW-0845
• Citation: Margaret R. Scarpelli v. Village of Put-In-Bay, Ohio, 95-LW-0845, OT-94-037 (Ohio App. Jun 30, 1995)
• Parties: Margaret R. Scarpelli, Appellee, v. Village of Put-In-Bay, Ohio, et al., Appellants. Court of Appeals

Margaret R. Scarpelli, Appellee, v. Village of Put-In-Bay, Ohio, et al Appellants.

No. OT-94-037

95-LW-0845 (6th)

Court of Appeals of Ohio, Sixth District Ottawa

June 30, 1995

Trial Court No. 93-CVH-153

William Smith, Jr., for appellee.

Gary Kohli, for appellants.

DECISION

This case is on appeal from the June 16, 1994 judgment of the Ottawa County Court of Common Pleas, which granted judgment in favor of appellee, Margaret R. Scarpelli. On appeal appellant, the village of Put-in-Bay, presents the following assignment of error for review:

"THE TRIAL COURT ERRED IN FINDING THAT THE VILLAGE OF PUT-IN-BAY COUNCIL MISAPPLIED FUNDS OF THE VILLAGE, OR ABUSED ITS LEGISLATIVE POWERS OR PERFORMED A CONTRACT IN CONTRAVENTION OF THE LAW, UNDER R.C. 733.56, IN THE REINSTATEMENT OF OFFICERS BULGER AND COVER AFTER OFFICERS BULGER AND COVER WERE REMOVED FROM THEIR POSITIONS WITHOUT CONCURRENCE OF COUNCIL."

Margaret R. Scarpelli initiated this taxpayer action against the village of Put-in-Bay, the members of the village Council, and the Clerk/Treasurer of the village pursuant to R.C. 733.59. Scarpelli sought to enjoin the village from continuing to pay wages and benefits to Steve Cover and Tim Bulger because they were not properly appointed deputy marshals of the village and the payment of their wages and benefits constituted an illegal expenditure of public funds. She also sought to have the court declare that the actions of council reinstating these employees was invalid, that only the mayor can discharge a probationary employee, and that the council cannot hire nor fire police officers without the mayor's recommendation. Scarpelli also sought an order compelling the council to take action to recover wages and benefits paid to the officers after the mayor terminated their employment.

The village of Put-in-Bay operates as a village under Chapter 703 of the Ohio Revised Code. It maintains a small police force with some full-time officers and some part-time officers. The village needs only a few officers year-round and adds more officers in the summer months to handle the additional influx of visitors to the island. Before this dispute, the mayor chief of police, and council hired officers by informal consensus. In 1992, the chief of police laid off one deputy officer. That officer was later reinstated with back pay because his lay off had not been done in accordance with state law and the department's policy and procedure manual conflicted with state law. That event seems to have triggered the dispute about the status of Bulger's and Cover's employment.

In June 1991, Richard Schwable was appointed as chief of police. After his appointment, the chief met with the mayor to discuss plans for staff officers. At that time, there were two full-time, year-round deputy officers besides the chief. That same year, Bulger and Cover were hired as deputy officers. The chief testified that the mayor was aware that these two officers were hired as full-time, year-round officers. However, the mayor denies that he authorized these two officers to be hired on that basis. The mayor testified that he did not believe that the island needed five full-time officers during the winter months.

The council interpreted state law as providing that the council must concur with the final appointment or discharge of a probationary employee. Therefore, they requested that the mayor forward the employment records for Bulger and Cover to council along with his recommendations. The mayor refused to do so on the ground that he interpreted state law as giving him the sole authority to discharge the officers. The mayor never recommended to the council that it appoint these officers to their posts.

During the period from October through December, the mayor, chief, and council debated the status of the officers.

On January 6, 1993, the mayor notified Bulger and Cover that they were laid off from the police department. On January 14, 1993, the council in effect nullified the mayor's actions by passing Ordinance 600-93 that listed the present employees of the village. The council passed this ordinance before the names were added to it. Later, the clerk of the village amended the ordinance to include the names of five full-time, year-round police officers, which included Bulger and Cover. The complete ordinance was submitted to the mayor for signature sometime in February. The mayor disputed that these officers should have been included. On February 11, 1993, council passed another ordinance reinstating the officers to their probationary status. Again, on March 9, 1993, the mayor notified Bulger and Cover that their employment with the police department had been terminated.

Believing that the mayor alone had the authority to terminate Bulger's and Cover's employment, Scarpelli brought this action. The lower court ruled in Scarpelli's favor holding that the mayor properly terminated the employment of these officers on January 6, 1993, and that the council could not reinstate them to their positions.

The issue raised on appeal is whether the trial court correctly interpreted R.C. 737.16 and R.C. 737.17 when it held that the council could not reinstate the officers to their positions.

Those code provisions read as follows:

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