Mayer v. Bodnar

• Docket Number: 22 CAE 05 0041
• Decision Date: 27 December 2022
• Citation: 204 N.E.3d 731
• Parties: Wesley W. MAYER, Plaintiff-Appellant v. Lee R. BODNAR, et al., Defendants-Appellees
• Court: Ohio Court of Appeals

204 N.E.3d 731

Wesley W. MAYER, Plaintiff-Appellant

v.Lee R. BODNAR, et al., Defendants-Appellees

No. 22 CAE 05 0041

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

Date of Judgment Entry: December 27, 2022

JOSHUA J. BROWN, 5086 North High St., Suite A, Columbus, OH 43214, For Plaintiff-Appellant.

PAUL-MICHAEL LA FAYETTE, CARA M. WRIGHT, 65 E. State St., Suite 2550, Columbus, OH 43125, GARY A. REEVE, 5354 Cemetery Road, Hilliard, OH 43026, For Defendants-Appellees.

JUDGES: Hon. Earle E. Wise, Jr., P.J., Hon. William B. Hoffman, J., Hon. Patricia A. Delaney, J.

OPINION

Delaney, J. {¶1} Plaintiff-Appellant Wesley W. Mayer appeals the April 27, 2022 judgment entry of the Delaware County Court of Common Pleas.

FACTS AND PROCEDURAL HISTORY

Orange Township Governance

{¶2} Orange Township, located in Delaware County, Ohio, is governed by four elected officials: three trustees and one fiscal officer. On October 9, 2019, Plaintiff-Appellant Wesley W. Mayer was the Fiscal Officer for Orange Township. Mayer was appointed as the Fiscal Officer in September 2018. He was up for re-election in November 2019, for a four-year term starting April 1, 2020.

{¶3} Non-elected employees manage the general operations of Orange Township. On October 9, 2019, Defendant-Appellee Lee R. Bodnar was the Township Administrator.

Car Trouble

{¶4} On October 9, 2019, Mayer was driving a rental car because his personal vehicle was recently in an accident. While at an intersection on U.S. State Route 23 in Orange Township, Mayer's rental vehicle ran out of gas and stopped, blocking the traffic at the intersection. Mayer was not conducting Orange Township business when the rental car stalled.

{¶5} After the rental car stalled, Mayer first called the Orange Township Fire Chief for assistance. The Fire Chief was unable to assist Mayer. Mayer next called Aaron James, the Orange Township Roads Superintendent, for assistance. James testified in his April 14, 2021 deposition as to his recollection of the exchange with Mayer:

Q. So October 9th, 2019, did you get a call from Wes Mayer?

A. Yes.

Q. And what did Wes say on the call?

A. He said he was in a rental car, he was broke down, thinks he ran out of gas on 23 * * *. I said, I'll come down and see if I could help you out.

Q. Okay. Did he ask you to come down?

A. Yes, could you help – he asked if I could help him.

Q. Okay. And do you – do you have a strong recollection of the specific wording that you just talked about?

A. Yes. When I answered the phone, Wes said, do you know who this is? This is Wes. Can you help me out? I'm broke down on the side of the road in the rental car. I don't know if that's the exact wordage that he said to me, but that was – you know, that was the gist of it, can you come help.

Q. Okay.

A. So I was going to help – I was going to help anybody that worked for the township.

Q. How long do you think the conversation lasted?

A. Probably maybe a minute, if that.

(James Depo., T. 8-9).

{¶6} James and an Orange Township employee drove to the intersection in an Orange Township vehicle with one to two gallons of gasoline. When they got to the intersection, they observed Mayer outside of his vehicle, attempting to direct traffic around the stalled rental vehicle. James put gas in the rental vehicle, which started immediately, allowing Mayer to drive to a gas station. James remained at the intersection to clear the traffic congestion.

{¶7} On October 11, 2019, Mayer wrote Orange Township a check for $40.00 to reimburse the township for any expenses related to his rental car difficulties.

Township Administrator Investigation of the October 9, 2019 Incident

{¶8} Unbeknownst to Mayer, the Orange Township Human Resources Communications Manager, Amanda Sheterom, was in the office with the Fire Chief when Mayer called the Fire Chief for assistance. When she went to lunch, Sheterom observed Mayer's rental car stalled on Route 23 and Mayer being aided by Orange Township employees in an Orange Township vehicle. The Human Resources Communications Manager informed Bodnar, the Township Administrator, what she observed.

{¶9} Bodnar contacted the Fire Chief for a summary of his conversation with Mayer and asked the Fire Chief to submit a statement to that effect.

{¶10} After James returned to his office on October 9, 2019, he was called to Bodnar's office for a meeting with him and Sheterom. Bodnar asked James what happened with Mayer on Route 23. James related the incident to Bodnar and the Human Resources Director. James did not see any recording devices while he told the story. Bodnar then asked James to write and sign a statement about the October 9, 2019 incident.

The James Recording

{¶11} Bodnar recorded the meeting with James on Bodnar's personal cell phone (hereinafter "James Recording"). Bodnar used his personal cell phone to make the recording because it was an Apple 10 with better technology than the Township's cell phones. At some point in time, Bodnar downloaded the James Recording to his personal iTunes account. At some point of time, while in his Orange Township office, Bodnar downloaded the James Recording from his personal iTunes account and burned it onto two CDs.

{¶12} Bodnar could not remember when he burned the CDs or what he did with the CDs. Bodnar's employment as Township Administrator was terminated without cause on January 21, 2020. He remembered cleaning out his office and thought he gave the CDs to Sheterom. Orange Township eliminated the Human Resources Communications position in May 2020.

Orange Township Trustee Special Meeting

{¶13} On October 10, 2019, the Township notified the public that a special meeting would be held on October 11, 2019.

{¶14} At the October 11, 2019 special meeting, the Defendant-Appellant Orange Township Board of Trustees, Deborah S. Taranto, Ryan F. Rivers, and Lisa Knapp, went into executive session. Bodnar and Sheterom were invited to the session. Mayer attended the special meeting but was not invited to the executive session.

{¶15} After the executive session, the Trustees resumed the public meeting. The public meeting is recorded with audio and video. The video recording is uploaded to YouTube, which Deborah Taranto testified in her deposition that the recording of the meeting and the upload to YouTube happened at the same time. (Taranto Depo, T. 23). The following occurred at the October 11, 2019 special meeting:

RR (Ryan F. Rivers) This meeting's adjourned. (Gavel)

LK (Lisa Knapp) You take that back.

* * *

LK You have no legal right. We're still in session. You need a second to adjourn the meeting. You have no legal right. We're going to continue * * * You did not adjourn the meeting. You must have a second to adjourn the meeting. That's Roberts Rules of Order. You have no legal right whatsoever to adjourn a meeting without a second. That's Roberts Rules of Order.

* * *

LK So, we are going to continue. We have to have a second.

RR We never have a second to adjourn a meeting.

* * *

LB (Lee Bodnar) I understand, Mr. Chairman. What does the board wish of me? I'm being told to shut off things.

* * *

LK We are going to keep going and we are going to continue.

RR That's the way it has been. (interrupted and talked over by LK). RR proceeded to leave the building

LK You must have a second to adjourn the meeting. So, it's come to our attention that two days ago, on Wednesday, October 9th, an employee was called when he was on official duty working for the Township. Mr. Mayer contacted him and asked him to meet him and provide him with gas because he had run out of gas in his personal vehicle while on a personal errand. He tried to call several employees. He ended up getting one employee. He said to him that he had run out of gas and he needed him to bring gas immediately. He even said, "Do you know who I am?" to this employee. I believe this is a violation of the law. I believe it is a violation of the Ethics Law. I'm going to see this sent to the Ethics Commission. I believe this is an abuse of authority. He was also using a Township vehicle, gas, and 2 employees arrived. So, he was using all three of those items for his own personal benefit without authorization from the board or authorization from Lee (Bodnar) who unintelligible. These employees work for the board of trustees and Mr. Bodnar. They do not work for the fiscal officer. Both of Mr. Mayer's employees were present at the building and he did not contact them, which I don't understand and, Mr. Mayer, have you paid the gas back for that?

WM (Wesley Mayer) I have not yet, but I indicated that I would when they came to assist me.

* * *

LK I'm going to make a motion for Mr. Bodnar to contact the Ethics Commission and file this on behalf of 2 trustees.

DT (Deborah S. Taranto) It was my understanding in Executive Session that a decision had to be made in public, that we couldn't make a decision in Executive and the only way to do that would be in Public and when a situation is brought from an employee to us, we can't ignore it. So, I second.

WM You could have asked me into executive session to explain what happened rather than (cut off by LK).

LK OK. Let's go back into Executive Session so you can explain. I make a motion to go into executive session.

WM(Rises from seat) I'm not going to attend.

LK Why not?

WM I'm finished with this. (as he left) And I'm finished with you. (He left the room.)

* * *

LK I'm very ... I have to absolutely have to put a stop to the fiscal officer instructing our employees who are Mr. Bodnar's employees. Just like his employees do not work for us, our employees do not work for the fiscal officer. I'm really disappointed that this happened. (To LB) so you will keep us posted?

LB I will.

LK I make a motion to adjourn.

DT Second

LK Meeting adjourned. (There was no vote on the motion to adjourn.)

(Ex. 4, Mayer Response to Summary Judgment, March 4, 2022).

{¶16} Approximately 30 minutes after the adjournment of the October 11, 2019 special meeting, Mayer averred that he was contacted by reporters from the Columbus...