State ex rel. Drouhard v. Morrow Cnty. Bd. of Comm'rs
| Decision Date | 25 August 2020 |
| Docket Number | No. 2019-1043,2019-1043 |
| Citation | 161 Ohio St.3d 357,163 N.E.3d 518 |
| Parties | The STATE EX REL. DROUHARD v. MORROW COUNTY BOARD OF COMMISSIONERS et al. |
| Court | Ohio Supreme Court |
Dinsmore & Shohl, L.L.P., William M. Mattes, and Justin M. Burns, Columbus, for relator.
Isaac, Wiles, Burkholder & Teetor, L.L.C., Mark Landes, Columbus, and Matthew R. Aumann ; and Farthing & Stewart, L.L.P., Brian S. Stewart, Malone, and John H. Farthing, Circleville, for respondents.
DeWine, J. {¶ 1} This matter comes before us on a request for a writ of prohibition to prevent the three members of a board of county commissioners from going forward with a show-cause hearing to consider the removal of a member of the board of trustees of the county hospital. We conclude that the three commissioners constitute the majority of the "appointing authority" that is empowered by law to remove a member of the county hospital board. As a consequence, the commissioners do not patently and unambiguously lack jurisdiction to proceed with the show-cause hearing. Further, the hospital-board member possesses an adequate remedy by way of an appeal following the show-cause hearing. Thus, we deny the writ.
{¶ 2} At bottom, this is a dispute about who has the authority to appoint and remove members of the Morrow County Hospital Board of Trustees. On one side are the three members of the Morrow County Board of Commissioners; collectively and individually, they are the respondents in this action ("the Commissioners").
On the other side is Patrick Drouhard, the relator in this action. At the time the lawsuit was filed, Drouhard was the chairman of the Morrow County Hospital Board of Trustees.
{¶ 3} Morrow County Hospital is a county-owned hospital, established by the Morrow County Board of Commissioners through the procedures set forth in Chapter 339 of the Ohio Revised Code. It is governed by a board of trustees ("the Hospital Board"). See R.C. 339.01(B) ; R.C. 339.02(B). The Revised Code specifies that the hospital trustees shall be appointed by "[t]he board of county commissioners together with the probate judge of the county senior in point of service and the judge of the court of common pleas of the county senior in point of service." R.C. 339.02(B). This appointing authority may remove any hospital trustee for neglect of duty, misconduct, or malfeasance in office. R.C. 339.02(H).
{¶ 4} The makeup of the appointing authority is at the center of this dispute. The Commissioners claim that in accordance with the historical practice in Morrow County, the appointing authority is a five-member body, with each commissioner having one vote. Drouhard has a different view. He argues that it is a three-member body, with the board of commissioners having a single, collective vote. In Drouhard's view, the other two votes belong to Judge Robert C. Hickson Jr. Judge Hickson is the more senior of the two judges who sit on the Morrow County Court of Common Pleas. Under a unique statutory provision, the judges of the Morrow County Court of Common Pleas "also shall perform the duties and functions of the judge of the probate division." R.C. 2301.02(C).
{¶ 5} In June 2019, the Commissioners sought to schedule a show-cause hearing to remove Drouhard as chairman of the Hospital Board. The Commissioners cited two instances of misconduct that they claimed warranted Drouhard's removal.
{¶ 6} The first asserted ground for removal involved a dispute about a contract for hospital-management services. The Hospital Board had entered into an agreement with OhioHealth Corporation to manage the hospital. The Commissioners sought to move the hospital in a different direction and exercise their authority under R.C. 339.09 to lease the hospital to a nonprofit organization. They notified the Hospital Board that they were pursuing a "long-term lease/purchase option," instructed the Hospital Board not to enter into any new management agreements, and issued a request for proposals. Drouhard, with the approval of the Hospital Board, responded by sending a cease-and-desist letter to the Commissioners, demanding that they halt all activities associated with their solicitation. The Commissioners rejected Drouhard's demand.
{¶ 7} The second asserted ground for removal concerned the appointment of a new trustee. In early 2019, two Commissioners and Judge Hickson met to consider the replacement of a member whose term was expiring. Although a motion was made at that meeting to appoint Earl Desmond as a hospital trustee, the motion was tabled without a vote.
{¶ 8} In March 2019, the three Commissioners approved a resolution appointing Desmond as a hospital trustee for six years. Judge Hickson did not participate in the approval of the resolution. Subsequently, Judge Hickson wrote a letter to the Commissioners reiterating that he had made no decision on possible nominees for the vacant hospital-trustee position. After speaking with Judge Hickson, Drouhard determined that Desmond's appointment was defective because the appointing authority had not finalized its decision on his appointment. According to the Commissioners, Drouhard failed to treat Desmond as a member of the Hospital Board and excluded him from participating in meetings, even though Desmond was present at the meetings.
{¶ 9} Based upon these two purported instances of misconduct, the Commissioners adopted a resolution expressing their "unanimous sense" that Drouhard should be removed from office. The resolution set a hearing for July 8 so that Drouhard could appear and show cause why he should not be removed as chairman of the Hospital Board. The resolution was signed by all three Commissioners, but not by Judge Hickson.
{¶ 10} On July 5, Judge Hickson wrote a letter to the Commissioners in which he stated that he had "recently bec[o]me aware, through a newspaper article," of the resolution scheduling the show-cause hearing. Judge Hickson wrote that he was unable to attend on that date and asked that the meeting be rescheduled. He closed by noting that "[i]f the Board of Commissioners is unwilling to reschedule this meeting, please take notice that I am opposed to the removal of Patrick Drouhard as Chairperson of the Hospital Board."
{¶ 11} Drouhard appeared for the show-cause hearing on July 8. However, the hearing was postponed to a later date. The parties dispute the reason for rescheduling. The Commissioners say that Drouhard requested a continuance, while Drouhard maintains that the meeting was rescheduled because the Commissioners recognized that they had erred in acting on their own initiative.
{¶ 12} On July 17, 2019, the Commissioners passed an amended resolution setting the show-cause hearing for August 1. The document was not signed by Judge Hickson. (According to an affidavit filed by one of the Commissioners, that date was selected "based on Judge Hickson's known schedule.") Two days later, Judge Hickson wrote to the Commissioners that he was "in receipt" of their correspondence but was not available on the date that the Commissioners had set. Judge Hickson maintained that as both the probate judge and the common-pleas-court judge senior in point of service, he "make[s] up the majority of the Appointing Authority" and that he should have been consulted about scheduling.
{¶ 13} Drouhard filed his complaint for a writ of prohibition on July 30, 2019, before the scheduled date for the show-cause hearing. We issued an alternative writ and ordered the parties to file briefs and submit evidence in accordance with S.Ct.Prac.R. 12.05. 156 Ohio St.3d 1474, 2019-Ohio-3114, 128 N.E.3d 230.
{¶ 14} Before we reach the merits of the case, we address several motions filed by the parties. Drouhard has filed two motions for leave to supplement the record. Because the supplemental evidence Drouhard wishes to introduce would establish facts that are mostly already in the record and not really disputed by the Commissioners, we deny the motions.
{¶ 15} The Commissioners have also filed a motion to dismiss this action as moot, asserting that Drouhard is no longer a member of the Hospital Board because his term on the board expired on March 1, 2020. Drouhard counters that the dispute is not moot, because he remains on the Hospital Board and thus remains subject to the threat of removal. Drouhard does not dispute that his previous term expired, but he contends that he has been appointed to—and now is occupying—a different seat on the board, specifically, the seat to which the Commissioners claim to have appointed Desmond. By statute, when a vacancy on a hospital board of trustees has not been filled by the appointing authority within six months, the hospital board may fill the vacancy. R.C. 339.02(F)(2). Relying on this provision, the Hospital Board voted to appoint Drouhard to the seat that the Commissioners allege is occupied by Desmond.
{¶ 16} Thus, whether this case is moot depends on whether Drouhard is presently a member of the Hospital Board. That question turns on the same legal issue we face in this prohibition action—the composition of the appointing authority. Because the question of mootness is intertwined with the merits of the action, we deny the request to dismiss as moot and proceed to the question in front of us.
{¶ 17} To obtain a writ of prohibition, one must establish three elements: the exercise of judicial or quasi-judicial power, the lack of legal authority for the exercise of that power, and the lack of an adequate remedy in the ordinary course of law. State ex rel. Barney v. Union Cty. Bd. of Elections , 159 Ohio St.3d 50, 2019-Ohio-4277, 147 N.E.3d 595, ¶ 11. However, if the absence of jurisdiction...
To continue reading
Request your trial
-
Schlegel v. Sweeney
... ... course of law. State ex rel. Drouhard v. Morrow Cty. Bd ... of ... ...