State ex rel. Henderson v. New Richmond

[Cite as State ex rel. Henderson v. New Richmond, 2020-Ohio-4875.]



                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                         CLERMONT COUNTY




 STATE OF OHIO EX REL. FLOYD                           :
 HENDERSON, et al.,
                                                       :             CASE NO. CA2019-11-089
        Appellant,
                                                       :                  OPINION
                                                                          10/13/2020
     - vs -                                            :

                                                       :
 THE VILLAGE OF NEW RICHMOND,
 OHIO, et al.,                                         :

        Appellees.




ADMINISTRATIVE APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
                        Case No. 2019CVF00068


Lazarus & Lewis, LLC, Gary R. Lewis, Cincinnati Club Building, Suite 915, 30 Garfield Place,
Cincinnati, Ohio 45202, for appellant

Schroeder, Maundrell, Barbiere & Powers, Scott A. Sollmann, 5300 Socialville-Foster Road,
Suite 200, Mason, Ohio 45040, for appellees



        PIPER, J.

        {¶1}    Floyd Henderson appeals the decision of the Clermont County Court of

Common Pleas, which dismissed his claims against the village of New Richmond, Ohio ("the

Village") and other defendants. For the reasons that follow, this court affirms the decision.

        {¶2}    The following facts derive from Henderson's pleading and its attachments and
                                                                    Clermont CA2019-11-089

for purposes of this appeal are presumed true.         In 1987, the New Richmond Police

Department ("NRPD") hired Henderson as a patrolman.               In 2011, NRPD promoted

Henderson to the position of police corporal, which was a supervisory position.

       {¶3}   Henderson remained the only corporal employed by NRPD until November

27, 2018, when the council for New Richmond ("Village Council") voted to adopt Ordinance

2018-18, which authorized the immediate elimination of the position of corporal within

NRPD. The ordinance, attached to Henderson's complaint, explained the reasoning behind

its passage, which was that the corporal position had originally been intended to act as

NRPD's primary investigator but that NRPD's patrol officers had been conducting their own

investigations. In addition, the NRPD currently had a total of three supervisory positions to

supervise three full-time patrol officers and the police chief informed Village Council there

was no practical need for three supervisors. Finally, eliminating the corporal position would

result in a cost savings. The ordinance further resolved that the Village would offer the

employee currently filling the corporal position a full-time patrolman position.

       {¶4}   Two weeks after the ordinance's adoption, the police chief asked to meet with

Henderson and give him a letter. The letter, attached to the complaint, was addressed to

Henderson from the police chief and informed Henderson that pursuant to Ordinance 2018-

18, the position of corporal had been eliminated and that the Village was offering him a full-

time patrolman position. The offered rate of pay for the patrolman position was a reduction

of $3.09 from Henderson's hourly wage as a corporal, resulting in a salary reduction of

approximately $6,760. The document ended with a signature line and informed Henderson

that he if accepted the offer, he would need to sign the document and return it to the police

chief by December 20, or 9 days later.

       {¶5}   On December 20, Henderson met with the police chief and returned the offer

letter. On the signature line, Henderson wrote: "I respectfully object to the terms and

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                                                                     Clermont CA2019-11-089

conditions of this letter and are protesting same." Henderson told the police chief that he

was represented by counsel and provided the chief with his lawyer's business card.

       {¶6}   The police chief told Henderson that if did not sign the letter he would no longer

be an officer with NRPD. Henderson did not sign the letter. The next day, December 21,

2018, the Village's law director sent Henderson a letter memorializing that Henderson's

position had been eliminated by Ordinance 2018-18, that Henderson had not accepted the

Village's offer of employment as a patrolman and therefore, effective as of the close of

business December 20, 2018, Henderson was no longer an employee of NRPD.

       {¶7}   On January 22, 2019, Henderson filed a pleading styled "consolidated notice

of appeal and verified complaint" against the Village, its administrator, mayor, interim police

chief, and the six members of the Village Council. With regard to the "notice of appeal," the

pleading indicated it was an "administrative-related appeal" from a "final order" of the Village.

Henderson attached the "final order" to the complaint, which was the Village law director's

December 21, 2018 letter. The pleading further indicated that Henderson's appeal was

pursuant to R.C. Chapters 119, 124, 2505, and 2506.

       {¶8}   The complaint portion of the pleading listed five causes of action. Count one

was for a writ of mandamus, alleging that Henderson had a clear legal right to immediate

reinstatement to the rank of corporal and its attendant employment benefits and that

Henderson had no adequate remedy at law. Count two was titled "Violations of Law" and

indicated that Henderson had the right to continued employment with NRPD until he was

"removed for cause, in the manner provided by Ohio law." Henderson further alleged that

the passage of Ordinance 2018-18 violated the statutes of Ohio, although the pleading did

not specify which statutes were violated.

       {¶9}   Counts three and four alleged facial and as-applied challenges to Ordinance

2018-18, alleging violations of the United States Constitution, the 14th Amendment, 42

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                                                                 Clermont CA2019-11-089

U.S.C. 1983, and procedural due process. Henderson averred that he had a property

interest in continued employment with NRPD and was entitled to due process of law before

being deprived of his employment. Henderson further averred that Ordinance 2018-18 was

unconstitutional because it did not provide him with a hearing or other meaningful

opportunity to be heard. Finally, in count five, Henderson asked the court for a declaratory

judgment.    Henderson alleged a justiciable controversy existed between him and the

defendants and requested that the court issue a "judicial determination construing the legal

relationships between the parties."

       {¶10} Henderson asked the court to order his reinstatement as a NRPD corporal and

to make him whole with respect to various employment-related benefits. Henderson further

requested damages and attorney fees.

       {¶11} The defendants moved for judgment on the pleadings. With respect to the

appeal portion of the pleading, the defendants argued that Henderson was not entitled to

appeal the adoption of Ordinance 2018-18 under any of the cited statutory provisions. The

defendants further argued that Henderson was not entitled to relief on any of the counts set

forth in the complaint.

       {¶12} After the matter was fully briefed, the trial court issued a decision granting

judgment on the pleadings. The court agreed that Henderson had no statutory right or other

basis to appeal Ordinance 2018-18. With respect to Henderson's request for a writ of

mandamus and "violations of law," the court found that Henderson had not established a

clear legal right to continued employment as a corporal with NRPD or that the Village

violated any laws in the adoption of Ordinance 2018-18. With respect to the two counts

alleging violations of due process, the court concluded that Henderson could not

demonstrate any property interest in his former position with NRPD, and thus could not

demonstrate that he had been unfairly deprived of due process of law when his position was

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                                                                       Clermont CA2019-11-089

eliminated.   Finally, the court found that Henderson was not entitled to a declaratory

judgment because he could not demonstrate any justiciable issue.

       {¶13} Henderson appeals, raising one assignment of error:

       {¶14} THE TRIAL COURT SUBSTANTIALLY ERRED TO THE PREJUDICE OF

HENDERSON IN GRANTING DEFENDANT'S MOTION FOR JUDGMENT ON THE

PLEADINGS.

       {¶15} Henderson divides his assignment of error into five issues for review.

Henderson contends that his appeal was authorized by statute and case law and that his

termination was unlawful pursuant to various Revised Code provisions. For purposes of his

due process claims, Henderson contends that he had a property right in his former position.

Alternatively, Henderson claims to have a clear legal right to reinstatement to the rank of

corporal, no adequate remedy at law, and therefore is entitled to a writ of mandamus.

       {¶16} The trial court granted judgment on the pleadings pursuant to Civ.R. 12(C),

which provides that "[a]fter the pleadings are closed but within such time as not to delay the

trial, any party may move for judgment on the pleadings." Civ.R. 12(C) motions are

specifically for resolving questions of law. Whaley v. Franklin Cty. Bd. of Commrs., 92 Ohio

St.3d 574, 581 (2001). Therefore, this court's standard of review is de novo. Cyrus v. Home

Depot USA, Inc.,12th Dist. Clermont No. CA2007-09-098, 2008-Ohio-4315, ¶ 18.

       {¶17} When considering a Civ.R. 12(C) motion for judgment on the pleadings, the

trial court is restricted to consider only the allegations in the pleadings and must construe

as true all the material allegations in the complaint, and all reasonable inferences that can

be drawn from the complaint are in favor of the nonmoving party. Whaley at 581. Dismissal

is appropriate under Civ.R. 12(C) when, after construing all material allegations in the

complaint in favor of the nonmoving party, the court finds beyond doubt that the plaintiff can

prove no set of facts in support of its claim that would entitle it to relief. State ex rel. Midwest

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                                                                                  Clermont CA2019-11-089

Pride IV, Inc. v. Pontious, 

75 Ohio St. 3d 565

, 570 (1996).

                 Henderson's Appeal pursuant to R.C. Chapters 2505 and 2506

        {¶18} Henderson argues that he was entitled to appeal the Village Council's

elimination of the NRPD corporal position under R.C. Chapters 2505 and 2506 and that the

law director's letter constituted the final order from which he timely appealed pursuant to

R.C. 2506.01(A). R.C. Chapter 2506 authorizes appeals to the common pleas court of the

administrative decisions of political subdivisions. Auxier Trucking v. Tate Twp. Bd. of

Trustees, 12th Dist. Clermont No. CA2001-01-012, 

2001 WL 1652078

, *3 (Dec. 24, 2001).1

However, "in order for an administrative act to be appealable under R.C. 2506.01 such act

must be the product of quasi-judicial proceedings." M.J. Kelley Co. v. Cleveland, 32 Ohio

St.2d 150, 153 (1972). The statute "does not provide for appeals from legislative bodies or

from resolutions of administrative bodies promulgated in a delegated legislative capacity."

Tuber v. Perkins, 

6 Ohio St. 2d 155

, 156 (1966).

        {¶19} Thus, "[t]he decision being appealed must have resulted from an exercise of

administrative power resulting from a quasi-judicial proceeding." Ohio Multi-Use Trails

Assn. v. Vinton Cty. Commrs., 4th Dist. Vinton No. 08CA670, 2009-Ohio-2061, ¶ 9. A court

does not have subject-matter jurisdiction to hear appeals based on legislative functions.

Id. The test for

determining whether an action of a governmental body is legislative or

administrative is "whether the action taken is one enacting a law, ordinance or regulation,

or executing or administering a law, ordinance or regulation already in existence." Donnelly

v. Fairview Park, 

13 Ohio St. 2d 1

(1968), paragraph two of the syllabus.

        {¶20} Village Council adopted Ordinance 2018-18, a new ordinance, which




1. R.C. 2506.01(A) provides that "every final order, adjudication, or decision of any officer, tribunal, authority,
board, bureau, commission, department, or other division of of any political subdivision of the state may be
reviewed by the court of common pleas * * *."

                                                      -6-
                                                                    Clermont CA2019-11-089

eliminated the position of corporal within NRPD. The reasons set forth for the ordinance,

including cost savings and streamlining the operations of NRPD, are all legitimate matters

of concern for a village legislative body. In passing the ordinance, the Village Council neither

executed nor administered an existing ordinance.          The Village Council's adoption of

Ordinance 2018-18 also did not involve quasi-judicial proceedings. There is no indication

in the record that Ordinance 2018-18 was in any way related to employee discipline. In fact,

the ordinance offered continued employment to the affected employee through the offer of

a patrolman position. Accordingly, the adoption of Ordinance 2018-18 was a legislative act

that is not an appealable "final order, adjudication, or decision" under R.C. 2506.01(A).

       {¶21} In his appellate brief, Henderson presented no argument as to why this court

should consider the adoption of Ordinance 2018-18 as anything other than a legislative act.

Instead, he simply refers to it as an administrative decision. For the reasons set forth,

Ordinance 2018-18 was not an administrative decision.

       {¶22} However, Henderson cites several cases allegedly supporting the argument

that he could appeal the elimination of his position under R.C. 2506.01. Henderson first

cites Williams v. Yellow Springs, 2d Dist. Greene No. 2004 CA 130, 2005-Ohio-5011. There,

the court held that a discharged police officer could appeal the decision of a village appeals

board, which affirmed his discharge by the village manager.

Id. at ¶ 21.

Williams is

distinguishable as it involved a terminated employee and an administrative decision

resulting from a quasi-judicial proceeding, neither of which is present in this case.

       {¶23} Henderson next cites Goins v. Village of New Boston, 4th Dist. Scioto No.

00CA2701, 

2000 WL 1800519

(Nov. 22, 2000) and Stephen v. Village of Barnesville, 7th

Dist. Belmont No. 97 BA 12, 

1999 WL 669491

(Aug. 20, 1999). These cases are also

distinguishable as both involved the suspension of an officer for cause pursuant to R.C.

737.19(B), which statute addresses suspension and removal of village police officers for

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                                                                    Clermont CA2019-11-089

cause. As will be discussed in more detail later in this opinion, R.C. 737.19(B) is inapplicable

because Henderson was not suspended or removed for cause. His position was eliminated

by legislative act.

       {¶24} Henderson also cites Fraternal Order of Police of Manchester v. Village of

Manchester, 4th Dist. Adams Nos. 368 and 371, 

1981 WL 2657

(Dec. 15, 1981), for the

proposition that R.C. Chapter 2506 authorized an appeal of a village's decision to eliminate

the positions of certain police officers for budgetary reasons. The Manchester decision does

indicate that the officers' appeal was authorized by R.C. 2506.

Id. at *4.

While the court did

not explain its rationale, it cited In Re Locke, 

33 Ohio App. 2d 177

(4th Dist.1972) and Atwood

v. Judge, 

63 Ohio App. 2d 94

(7th Dist.1977).

Id. Upon review, neither

of these cases stand

for the proposition that a village police officer may appeal the elimination of his position by

legislative act pursuant to Chapter 2506.      Additionally, both those cases involved city

employees with greater protections through the civil service system than a village employee.

Manchester is not persuasive.

       {¶25} Finally, Henderson argues that "there is an issue as to whether the Law

Director of New Richmond had the authority to terminate Henderson's employment by letter

dated December 21, 2018." In this regard, Henderson cites Fogle v. Village of Carlisle, 12th

Dist. Warren No. CA2000-04-037, 

2000 WL 1819118

(Dec. 11, 2000). The issue in that

case was whether a village law director had authority under a village charter to accept a

police officer's resignation.

Id. at *2.

  This case does not involve the administrative

application of a village charter. Furthermore, in this case, the law director did not terminate

Henderson's position. Henderson's position was eliminated by Village Council's adoption of

Ordinance 2018-18. The law director's letter informed Henderson of that ordinance and

confirmed that Henderson had not accepted the Village's offer of employment. Accordingly,

this court finds no error in the trial court's determination that Henderson had no right to

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                                                                    Clermont CA2019-11-089

appeal Ordinance 2018-18 pursuant to R.C. Chapters 2505 and 2506.

            Appeal Pursuant to R.C. Chapter 737 and R.C. 124.34 and 119.12

       {¶26} Next, Henderson argues that the termination of his employment violated

provisions of R.C. Chapter 737 and his right to appeal derived from those violations.

Henderson argues that his removal violated R.C. 737.17, which he implies provides the

exclusive grounds for the removal of a village police officer without cause. R.C. 737.17

provides:

              All appointments [of village police officers] * * * shall be for a
              probationary period of six months' continuous service, and none
              shall be finally made until the appointee has satisfactorily served
              his probationary period. At the end of the probationary period the
              mayor shall transmit to the legislative authority of the village a
              record of such employee's service with his recommendations
              thereon and he may, with the concurrence of the legislative
              authority, remove or finally appoint the employee.

       {¶27} Henderson argues that the elimination of the corporal position through

Ordinance 2018-18 violated this statute because it provides that only the mayor may remove

him. However, this court interprets R.C. 737.17 as granting the village mayor a discretionary

right, with the agreement of the village council, to either appoint or remove a village police

officer at the end of the officer's six-month probationary period. Henderson was not a police

officer at the end of his six-month probationary period and had been a village officer for

decades. Thus, this statute is inapplicable to the present case.

       {¶28} R.C. 737.17 also does not expressly or impliedly limit the statutory authority of

a village council in making employment decisions with respect to village employees. In this

regard, R.C. 731.10 provides such authority: "[t]he legislative authority may provide such

employees for the village as it determines, and such employees may be removed at any

regular meeting by a majority of the members elected to such legislative authority." Accord

Toth v. Elmwood Place, 

20 Ohio App. 3d 188

(1st Dist.1984) (holding that a village council


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                                                                  Clermont CA2019-11-089

has the authority under R.C. 731.10 to remove police officers to relieve a financial

emergency). Consequently, this court does not find that the Village Council's adoption of

Ordinance 2018-18 violated R.C. 737.17.

       {¶29} Henderson next argues that the elimination of his position violated R.C.

737.19, which outlines the procedures when the village marshal intends to suspend or

remove deputies, officers, or employees of a village police department for cause. The

statute provides that the village marshal "has the exclusive right to suspend any of the

deputies, officers, or employees in the village police department who are under the

management and control of the marshal for incompetence, gross neglect of duty, gross

immorality, habitual drunkenness, failure to obey orders given them by the proper authority,

or for any other reasonable or just cause." R.C. 737.19(B). The statute further prescribes

various procedures following the suspension, including removal of the officer from the police

department after approval by the mayor, and the right to appeal to the village legislative

authority.

Id. {¶30} As previously

stated, R.C. 737.19 is not applicable to this case and does not

provide Henderson with a right to appeal the adoption of Ordinance 2018-18. Henderson

was not suspended for cause by the police chief and he was not removed from the

department by the village mayor.      Henderson's former position was eliminated by a

legislative act of the Village Council, which this court has determined was not appealable.

       {¶31} Next, Henderson argues that his appeal was authorized under R.C. 124.34

and 119.12. But neither statute provides Henderson with any right to appeal Ordinance

2018-18. R.C. 124.34 relates to civil service employees and is inapplicable to village

employees. Doughton v. Village of Mariemont, 

16 Ohio App. 3d 382

(1st Dist.1984), citing

Christensen v. Hagedorn, 

174 Ohio St. 98

(1962); State ex rel. Heffernan v. Serp, 125 Ohio

St. 87, 88 (1932). R.C. 119.12 governs appeals from agency orders denying or revoking

                                           - 10 -
                                                                     Clermont CA2019-11-089

various licenses or admissions to examinations. There is no agency in this case and there

are no agency orders to be appealed. Accordingly, Henderson has not established any right

to appeal based on R.C. Chapter 737, or R.C. 124.34 and 119.12.

                                     Due Process Claims

       {¶32} In support of his claims for due process violations, Henderson argues that he

had a property right to his former position with NRPD. Henderson does not cite any statutory

authority that imbued him with such a right. Instead he argues that he had certain rights as

a civil service employee. Though as this court just noted, Henderson was not in the civil

service system.

       {¶33} Henderson also argues that the mayor and police chief violated his substantive

and procedural rights by failing to follow the procedures set forth in R.C. 737.19. Though

this court has already determined that R.C. 737.19 is inapplicable to this case, another court

has examined and rejected this same argument in the context of a due process claim.

       {¶34} In Kraven v. Village of Oakwood, N.D. Ohio No. 1:12CV01795, 

2013 WL 3893340

(July 25, 2013), a village eliminated the position of police lieutenant for budgetary

reasons.

Id. at *3.

The officer argued that R.C. 737.19(B) conferred him with a property

interest in his position.

Id. at *4.

In rejecting this argument, the court wrote:

              Plaintiffs are mistaken in their assertion that O.R.C. § 737.19(B)
              creates a property interest upon which their due process claims
              may rely, because Ohio law establishes that a public employee
              does not have a property interest in a position that is eliminated
              for budgetary reasons. State ex. rel. Robinson v. Dayton, 

984 N.E.2d 353

, 358 (Ohio App.2012). A civil service employee who
              by statute may be terminated only for cause may have a property
              interest in his or her continued employment in a position.
              However, that employee does not have a property interest in the
              existence of the position.

Id. For the same

reasons, this court agrees that R.C. 737.19(B) did not provide Henderson

with a property interest in his former position for purposes of a due process claim. This court


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                                                                       Clermont CA2019-11-089

finds no error in the trial court's dismissal of Henderson's counts premised on alleged due

process violations.

                       Henderson's Entitlement to a Writ of Mandamus
                             and Appeal Under Chapter 2506

       {¶35} In order to sustain his claim for a writ of mandamus, Henderson must have

pled facts sufficient to show that (1) that he has a clear legal right to the relief prayed for, (2)

that the defendants are under a clear legal duty to perform the acts, and (3) that Henderson

has no plain and adequate remedy in the ordinary course of the law. State ex rel. Berger v.

McMonagle, 

6 Ohio St. 3d 28

, 29 (1983). Henderson's complaint indicated that he had a

"clear legal right to immediate reinstatement" but failed to cite to any authority for that right.

His appellate brief provides no further detail as to the basis of this claimed right.

Presumably, Henderson bases his argument on the alleged property right conferred by R.C.

737.19(B). This court finds that Henderson has not articulated any clear legal right to

reinstatement to NRPD and therefore failed to properly plead a claim in mandamus.

                                     Declaratory Judgment

       {¶36} Finally, Henderson argues that he was entitled to declaratory relief and that

an actual controversy existed between him and the defendants because he had a property

interest in his former position. However, Henderson failed to establish that he had any such

property interest.     For the foregoing reasons, this court overrules Henderson's sole

assignment of error.

       {¶37} Judgment affirmed.


       M. POWELL, P.J., and S. POWELL, J., concur.




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