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Criminal Indictment Filed Against Superintendent Dismissed As Filed Too Late

In State of Ohio v. Fox, 2016-Ohio-2745, an Ohio appellate court affirmed the decision to dismiss a criminal case against a superintendent – who is a public servant – for allegedly unlawfully failing to disclose gifts received while a superintendent. The trial court dismissed the criminal case against the superintendent because the Ohio Attorney General missed the two-year statute of limitations set forth in R.C. 2901.13(C)(1)(a) by seven months.

On September 6, 2012, the superintendent was placed on an unpaid suspension pending the outcome of the R.C. 3319.16 termination process.

On April 2, 2013, the school board formally terminated the superintendent pursuant to R.C. 3319.16. And the school board’s termination decision was ultimately affirmed by the appellate court on September 29, 2017, which can be read in our blog by clicking here.

While the superintendent was criminally indicted on March 11, 2015, the superintendent argued that the two-year statute of limitation began on the date the superintendent was placed on an unpaid suspension (i.e., September 6, 2012) and not on the date in which the superintendent was ultimately terminated by the school board (i.e., April 2, 2013). Both the trial and appellate courts agreed with the superintendent.

In support of its conclusion that the statute of limitations ran upon the date of unpaid suspension and not upon the date of termination, the Ohio appellate court concluded that:

On September 6, 2012, [the superintendent] was again suspended without pay from the school superintendent position. September 6, 2012, was the final day [the superintendent] performed any services as school superintendent. After September 6, 2012, [the superintendent] was banned from being present on school grounds and was required to return his office keys and all school property.

The record further reflects that September 6, 2012, was the final day appellee received a salary as school superintendent. After September 6, 2012, [the superintendent’s] school district furnished life insurance policy, medical insurance, prescription drug insurance, dental insurance, and vision insurance were all canceled. Consistent with these actions, on September 6, 2012, the school district contributions to [the superintendent’s] state retirement fund ceased. The school board resolution memorializing [the superintendent’s] September 6, 2012 cessation of employment as school superintendent occurred on April 2, 2013.

***

A series of decisive and all-encompassing actions were taken by [the superintendent’s] employer culminating in [the superintendent] no longer being obligated to perform any duties or obligations of any kind in connection to the former superintendent position. [The superintendent] received no further salary or benefits of any kind, [the superintendent] was barred from the premises, [the superintendent’s] residual leave balances were cashed out and furnished to him, thereby meeting the handbook definition of separation from employment, appellee was obligated to return all property belonging to the school district and all keys that had enabled access by appellee, and a deputy superintendent thereafter occupied [the superintendent’s] former office and performed [the superintendent’s] former job duties and obligations.

In light of these facts and circumstances, we find that the record reflects that the only tenable interpretation of the events of September 6, 2012, is that [the superintendent’s] period of service as a public servant ceased on that date for purposes of R.C. 2901.13(C)(1)(a) statute of limitations calculations applicable to any subsequent allegations of wrongdoing by [the superintendent] during his tenure as a public servant.

2016-Ohio-2745, at ¶¶ 8-9, 24-25.

The conclusion in the case appears to directly contradict the statutory provisions of R.C. 3319.16, which specifically provides that: “If the decision [of the school board], after hearing, is against termination of the contract, the charges and the record of the hearing shall be physically expunged from the minutes, and, if the [superintendent] has suffered any loss of salary by reason of being suspended, the [superintendent] shall be paid the [superintendent’s] full salary for the period of such suspension.” Nonetheless, this case was not appealed so it remains good law – at least in the Sixth Appellate District (i.e., the Erie, Fulton, Huron, Lucas, Ottawa, Sandusky, Williams, and Wood Counties) – until another court holds otherwise.

This case is yet another reminder that all statutory deadlines matter – and it is always best to measure deadlines conservatively.

To read this case, please click here.

To read the blog on the case affirming the school board’s decision to terminate the superintendent, please click here.

Authors: Matthew John Markling and Patrick Vrobel

Note: This blog entry does not constitute – nor does it contain – legal advice. Legal jurisprudence is like the always changing Midwestern weather. As a result, this single blog entry cannot substitute for consultation with a McGown & Markling attorney. If legal advice is needed with respect to a specific factual situation, please feel free to contact a McGown & Markling attorney.

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