State ex rel. Morgan v. City of New Lexington

• Decision Date: 20 December 2006
• Docket Number: No. 2006-0714.,2006-0714.
• Citation: 857 N.E.2d 1208,2006 Ohio 6365,112 Ohio St.3d 33
• Parties: [The STATE ex rel.] MORGAN v. CITY OF NEW LEXINGTON.
• Court: Ohio Supreme Court

857 N.E.2d 1208

112 Ohio St.3d 33

2006-Ohio-6365

[The STATE ex rel.] MORGAN v. CITY OF NEW LEXINGTON.

No. 2006-0714.

Supreme Court of Ohio.

Submitted September 19, 2006.

Decided December 20, 2006.

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Bailey Cavalieri, L.L.C., Dennis D. Grant, and Sabrina C. Haurin, Columbus, for relator.

Eugene Nevada, Dublin, for respondent.

PER CURIAM.

{¶ 1} This is an original action for a writ of mandamus to compel a city to provide access to certain records related to an employee's discharge from employment.

{¶ 2} Respondent, the city of New Lexington, Ohio,¹ employed relator, Victoria Morgan, as the clerk of the mayor's court and the payroll clerk. New Lexington had entered into a collective-bargaining agreement with the American Federation of State, County and Municipal Employees that had been effective until December 2003 and that had provided rights and benefits to Morgan. After the collective-bargaining agreement expired, it continued to govern city employee work rules, benefits, and conduct.

{¶ 3} In 2004, New Lexington disciplined Morgan for failure to properly report payroll information to the state Police and Fire Pension Fund, which resulted in the city's being fined several thousand dollars. After the police chief received complaints from the Fraternal Order of Police of payroll errors and miscalculation of leave balances by Morgan, he and the mayor requested payroll and leave records for all employees from Morgan. Morgan failed to provide her own payroll and leave records.

{¶ 4} The police chief then conducted a preliminary investigation of Morgan and found sufficient evidence to warrant turning the matter over to the State Auditor and the Ohio Bureau of Criminal Identification and Investigation ("bureau"). By letter dated January 28, 2005, the police chief notified the mayor that based upon his investigation, Morgan "received compensation that she was not entitled to, and that she falsified official documents to gain said compensation." The police chief included an investigative report and copies of payroll sheets, check stubs, and canceled checks. A few days later, the Supreme Court of Ohio notified the city that the mayor's court had failed to submit quarterly statistical reports as required by R.C. 1905.033. According to the police chief, the delinquencies in reporting were the result of Morgan's neglect.

{¶ 5} On February 11, 2005, the police chief turned over the criminal investigation to the bureau. The police chief noted that "evidence has been uncovered that indicates that the payroll clerk was receiving compensation that she was not entitled to," that "she falsified payroll records to conceal the alleged theft," and that it appeared that "she forged official documents to conceal time she was taking off."

{¶ 6} On February 18, 2005, the city notified Morgan that it would conduct a predisciplinary conference on February 22, 2005, because charges against her—if substantiated by evidence—would constitute a basis for firing her. The city noted that the conference had been continued twice before on Morgan's request. The city specified 18 separate charges against Morgan, including "[d]ereliction of duty in failing to timely and properly file reports with the Ohio Supreme [C]ourt," "failure to file reports and make timely payments to public employee retirement systems on behalf of city employees," "failure to timely file IRS reports and documents," "failure to make timely payments on accounts after having withheld money from employee pay checks," "misappropriation of funds in making unauthorized and unapproved payments" to herself, misrepresentation of her hours worked, insubordination by failing to follow the mayor's directives, dishonesty by lying to the mayor, neglect of duty in failing to make timely reports and payments, and violations of the city's computer policy.

{¶ 7} On February 22, 2005, the city held the predisciplinary conference. The city ultimately fired Morgan. Morgan had indicated that she would file a civil or administrative action challenging her termination.

{¶ 8} Nearly a year later, on February 17, 2006, Morgan, through counsel, requested access from the mayor and the city to all records relating to her discharge from employment, including those related to each of the city's 18 charges against her specified in the city's February 18, 2005 letter. More particularly, Morgan requested "[a]ll records or documents which show or purport to show" the misconduct alleged in the city's charges. For example, Morgan requested "[a]ll records or documents which show or purport to show that prior to February 22, 2005, Ms. Morgan misappropriated any funds by making unauthorized or unapproved payments to herself" and "[a]ll records or documents which show or purport to show that prior to February 22, 2005, Ms. Morgan failed to follow any directives of the Mayor concerning Ms. Morgan's use of overtime, including copies of the Mayor's alleged directives and copies of Ms. Morgan's timesheet(s) or payroll record(s) showing the alleged failure."

{¶ 9} In addition to the records supporting the city's 18 charges against her, Morgan requested the following:

{¶ 10} "(20) All records or documents which show or purport to show that Ms. Morgan was advised of her right to have union representation at the February 22, 2005, pre-disciplinary `conference.'

{¶ 11} "(21) Ms. Morgan's entire personnel file.

{¶ 12} "(22) Any published City policies or rules of conduct for employees and any applicable provisions of any collective bargaining agreement which relate to employee conduct or discipline, including any policies, rules or collective bargaining agreement provisions relating to progressive discipline."

{¶ 13} Morgan's request noted that the records relating to the city's 18 charges against her had been "compiled or readily available to the City" for her February 22, 2005 predisciplinary conference and assumed that the remaining records were "readily available to the City."

{¶ 14} By letter dated February 22, 2006, the city denied Morgan's request. The city noted that "virtually every document falling within the scope of the twenty-two (22) numbered paragraphs of your letter has been turned over to the investigators who are handling the criminal investigation, and parallel the State Auditor's investigation." The city stated that based on the foregoing, the requested records were no longer in the city's physical possession, and they constituted exempt trial-preparation records and confidential law-enforcement investigatory records. The city further claimed that Morgan's records request was "so broadly worded that it is defective on its face," that the city would not be able to "perform `research'" for her, and that the file clerk could not make a judgment about which records she requested. The city requested that Morgan identify "by date and author" the records she sought.

{¶ 15} In Morgan's response, dated February 24, 2006, to the city's denial of her records request, she noted that she was merely "seeking all public records utilized by New Lexington to support any of the charges against [her] as set forth in its letter of February 18, 2005." That is, Morgan emphasized that she was requesting only those "records which supposedly supported the charges; which were created, compiled or retained in the ordinary course of the City's business; and which existed prior to the time the City prepared its written charges." She was "not seeking any records that were specifically compiled in reasonable anticipation of litigation or were prepared by any law enforcement official as part of any investigation then under way."

{¶ 16} On March 24, 2006, the State Auditor issued a draft report finding that the amount paid to Morgan during her employment with New Lexington exceeded the amount permissible under the city's collective-bargaining agreement with the employees' union and an ordinance salary schedule and that this excess amount was attributable to overtime paid to Morgan without proper preapproval. The State Auditor further determined that she had a leave-hour deficit of 110.71 hours, which she had improperly taken as leave. Based on the audit, the State Auditor issued findings of recovery against Morgan for over $10,500.

{¶ 17} At some unspecified time, all of the documents relating to Morgan that were in the possession of the city, including payroll and overtime records, canceled checks, and leave reports, had been turned over to the bureau and the State Auditor for their investigations, but they were returned to New Lexington on May 19, 2006. These records are in storage boxes and are being sorted and packaged for transfer to the Perry County Prosecuting Attorney for presentation to the grand jury.

{¶ 18} According to the city, as of early 2005, "there were no specific `personnel files' for municipal employees that were ever designated by New Lexington as such," and as of early 2006, there were no published personnel policies.

{¶ 19} On April 10, 2006, Morgan filed this action for a writ of mandamus to compel New Lexington to produce the requested records pursuant to R.C. 149.43, the Public Records Act. The city submitted an answer, and on June 21, 2006, we granted an alternative writ. State ex rel. Morgan v. New Lexington, 109 Ohio St.3d 1504, 2006-Ohio-2998, 849 N.E.2d 1026. The parties then filed evidence and briefs.

{¶ 20} This cause is now before the court for a consideration of the merits.

S.Ct.Prac.R. VI(2)(B)(4)

{¶ 21} New Lexington claims that the court need not address the merits of Morgan's mandamus claim and that this case should be dismissed because Morgan's merit brief does not comply with S.Ct.Prac.R. VI(2)(B)(4). In original actions filed in this court, "[a]ll merit briefs shall conform to the requirements set forth in S.Ct.Prac.R. VI and VIII, to the extent those rules are applicable." S.Ct.Prac.R. X(8). Under S.Ct.Prac.R. VI(...