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IN T. HE SUPREIv1E COURT OF OHIO

Charle.s Bi.ggert, Jr.,

.^.ppellant,

v.

I-Iighland County Board ofDeveloprnental Disabilities,

^.ppellee.

^ ,^ .,.N. ^ ^^^ ^ y¢^ ^ ^' ^ ^

: On Appeal from the I-Iighland: County Court of Appeals,: Fourth ^1.ppellate I?istrict

MEMORANDUM IN SUPPORT OF JURISDICTIONOF ^PPELI=,ANT CH^IRLES BIGGERT, JR.

Gary r'^. Reeve (0064872) (COUNSEL OF RECORD)La^r Offices of Gary ^. Reeve, LLCP.O. Box 7^66Columbus. C)hio 43207(614) ^0^-1$& l.Fax N.o.: (614) 44^-3040greeveCr.eevelaw.net

C(^UNSEL FOR ^.PPELLANT, CH^I.RLES BIGGERT; JR.

Mark Lancles (0027227) (COUNSI;L OF RI:CORD)^^aron M. Glasgow (0()75466)Isaac, Brant, Ledman 8^ Teetor, LLP250 East Broad Street, Ste. 900Columt^us, Ohio 432I5(61.4)221-2121Fax No.: (614) 365-9516m1^,isaacbrant.comanc^g;3i saacbrant. com

<^^;^; '% f`. ^^i%^r..F>;COL^'SEL FOR APPELLEES, HICrIIL^I^1I^ COII^TTY 'BO.nRD OF DEVELOPMENT AL DIS^BILITIES ' ^'S , <y` ;f ': `^ ^ ^"-'# s^. ,<<^

r y^;ss'js:^st: ,Ht€If" € !r; r,;;"%3. ......... .........,......^ < ^s, :..^

TABLE OF CONTENTS

1. Explanation of why this case is a case of public or great general interest andinvolves a substantial Constitutional question

Il. Statement of the case and facts

III. flz:gurzients in Support of Proposition of Law

2

6

Pr^position of Law NnlThe Board's use of factual information not contained in the "Notice of Charges"to support its decision to terrninate Biggert constituted a violation of Biggert'sdue process rights. 6

IV. Conclusion

Certificate of Service

Appendix

12

13

Opinion and Judgment Entry of the Highland County Coui-t of Appeals (May 16,2013) 1

Opinion of the Highland County Court of Common Pleas (Aug. 20, 2012)25

Notice of Final Appealable Order from Highland County Court of Common Pleas(Sept. 13, 2012) 39

Referee's Report and Recommendation (Dec. 16, 2011) 43

i

I. Explanation of why this case is a case of public or great general interest and involves asubstantial Constitutional question.

The question presented is one of Constitutional due process in regards to a relatively

high-ranking County employee. It is accepted that he had a property right in his employment,

and that removal of that property right was therefore subject to the due process requiremerits of

the Fifth and Fourteenth Amerzdments to the U.S. Constitution as explained by the U.S. Supreme

Court in C'levelcind Bci. ofL^cluc. v. Louclersnill. 470 U.S. 532, 105 S.Ct. 487, 84 L,.Ed.2d 494

(1985).

Appellant Charles Biggert ("Biggert") was the Superintendent of the Board of

Developmental Disabilities for Ilighland County. Contr.acts for Superintendents of Boards of

DevelopinentaI Disabilities are governed by R.C. 5126.23. The statute requires that if a Board is

goizig to terin'rnate a Superintendent's contract involuntarily, then it must be for one of the

offenses in a short list set forth in R.C. 5126.23(B), i.e. his property right cail be talz:en for only

thosereasons. Subsections (C) through (1-1) of R.C. 5126.23 set forth what constitutes due

process if a Superintendent does not agree that the decision to terminate his contract complies

with one of the grounds set forth in R.C. 5126.23(13). T'he issue in this case is the due process

eifect and meaning of the statutory requirement that the employee be "notii:ied in writing of the

charges" as that is used in R.C. 5126.23(C). Biggert asserts that the "notified in writing of the

charges"' is subject to the due process considerations set forth in LoucleJ-naill and its progeny

regarding an "explanation of the evidence" sufficient to allow him to mount a defense to the

charges. see Louclernzill at 546. Biggert asserts that the Board did not supply a sufficient

"explanationof the evidence." and that the Board, in violation of the Louderinill standard, was

allowed to utilize evidence that was not set forth by the Board until it was presented during the

Referee's hearing set forth in R.C. 5126.23(D). The Highland County Cornmon :Pleas Court and

the Fourth District Couxt of Appeals subsequezltly affirmed that all of the evidence presented was

able to be used against Biggert throughout the appeals process, thereby cementing the due

process violation through all appellate levels.

Care of the developmentally disabled through County Boards is important enough to

public policy to be accorded an extensive chapter to itself in the Revised Code. The Ohio

legislature has considered the importance of securing the employment of skilled management

persons in the area of care for the disabled by enacting R.C. 5126.23. In that statute, the Ohio

legislature demonstrated its determination that management employees of Boards of

Developmental Disabilities were (1) entitled to job security unless they committed some

infraction; and, (2) that if an infraction important enough to cause termination arose, the

nianagement employee should be allowed a delineated due process to oppose that decision. The

importance to the public interest is that such skilled professionals feel confident that they will be

treated properly and fairly under the law, so as to encourage them to become employed, and

reniain eznployed, in the Counties of Ohio by the various County Boards. If these skilled

professionals are led to believe that their employment, even though it is contractual, might as

well be at-will and subject to political whim, they may well be discouraged from seeking

employment in this State. Due process must have a meaning for these professionals to see Ohio

as a desirous place to bring their talents.

I[. Statement of the Case and Facts

Biggez-t was employed by the Board under a three-year contract to act as its

Superintendent from January 1, 2009 until December 31, 201 l. 'I'he job entailed Biggert acting

as chief executive officer for the Board, administering the school, adult training center, and other

2

progranis. In his service to the Board, Biggert succeeded in significantly improving the Board's

finazicial condition, and achieving a 5-year accreditatiozi with the State of Ohio. This financial

improvement was at the cost of making unpopular decisions involving prograzn cutbacks, payroll

cutbacks (including a 5% across-the-board reduction for all employees), and layoffs. Biggert's

job evaluations were rariging from "good, competent" to "highly effective" in most areas.

Biggert was never subject to any progressive discipline from the Board.

Various management issues came up in 2010 and early-2011, and the staff became

disgruntled and began using members of the Board as its receptacle for complaints about

Biggert's management style. In addition, the Board was losing and gaining members during this

time, and not necessarily taking the proper procedural steps in filling vacancies. Biggert became

involved in this process, and thereby became ensnared in the local political wrangling that went

with that involvement. Certain members of the Board, as well. as some other Highland County

officials, began amassing what they considered to be reasons to terminate Biggert's contract.

These reasons were eventually reduced to a writing called the "Notice of Charges." In pertinent

part, the Notice of Charges contained the following Charges:

6. Mr. Biggert's management style lacks integrity and violates the CountyBoard's Code of Ethics and Values. He do not behave consistentlycausing staff not to know what to expect; he comes across as and isdescribed by staff as erratic and teznperamental; he uses profanity whenangry; he is neither approachable nor accessible; he does not vohuxtarilyadmit mistakes and instead digs in and defends his actions. Mr. Biggert isarrogant and fails to see value in the contributions of others. Mr. Biggert'scharacter results in the impairment of the efficiency of the organization.

7. Mr. Biggert's management style lacks character and violates the CountyBoard's Code of Ethics and Values. He do not behave consistentlycausing Staff not to know what to expect; he comes across as and isdescribed by staff as erratic and temperamental; he uses profanity whenangiy; he is neither approachable nor accessible; and he does notvoluntarily admit mistakes and instead digs in and defends his actions.Mr. Biggert is arrogant and fails to see value in the contributions of others.

3

Mr. Biggert's character results in the impairment of the efficiency of theorganization.

8. Mr. Biggez t has threatened retaliation against staff for voicingcomplaints to the Board in violation of the County Board's Code of Ethicsand Values, Anti-l-Iarassment Policy, and Work Rules.

9. Mr. Biggert's regular use of profanity in the course of his duties as5uperinteudent is in violation of the County Board's Code of Ethics andValues, A.nti-Harassment Policy, and Work Rules.

10. Mr. Biggert has violated the County Board's Staff Attendance andWork Rules by falsely repoi-ting that he was attending out-of-office (in-service) meetings during work hours.

11. Mr. Biggert has violated the C;ourzty Board's Staff Attendance andWork Ru1es by routinely failing to notify, his Administrative Assistant ofhis location during work hours when he was not in the office.

12. Mr. Biggert has acted in violation of board and county policy thatprohibits personal use of his county owned e-mail address.

nn or about Septeniber 27, 2011, Biggert was given notice by the Board of a Pre-

Disciplinary Hearing scheduled for October 3, 2011, pursuant to §5126.23(C). That notice had

attached to it the Notice of Charges setting forth the charges against Biggert. Biggert informed

the Board in advance that he could not attend the predisciplizlary conference as scheduled due to

a prior family comrnitment, but could attend any other day that week. The predisciplinary

conference went forward on October 3, 2011, without him. The Board thereafter decided that

Biggert's contract would be terminated for good cause pursuant to R.C. 5126.23 as of that date.

Biggei-t requested an appeal before a Referee, pursuant to R.C. 5126.23(D), and a full evidentiary

hearing took place on December 8-9, 2011. During the time between the notification of

termination and the Referee's Hearing, the Board refused Biggert's repeated requests to expand

upon the facts set forth in the Notice of Charges.

4

At the Referee's Hearing, held on December 8-9, 2011, the Board was permitted to bring

any and all evidence it chose, notwithstanding whether it applied to specific factual incidents set

forth in the Notice of Charges. The Board was essentially allov,Ted to paint whatever factual

picture it wished to support the vague charges contained in 6-12 of the Notice of Charges

regarding Biggert's allegedly objectionable management style and other generalized issues.

Without prior notice of these factual allegations, Biggert was left to isszte a personal denial, but

not to amass and prepare witnesses that might have helped him disprove the specifics of these

allegations. On December 16, 2011, the Referee issued her Report and Recommendation

affirming the termination.

On Januaxy 12, 2012, the Board adopted the Report and Reconiniendation of the Referee.

On February 10, 2012, Biggert filed a timely appeal of the Referee's decision with the Common

Pleas Court of Highlaxld County, pursuant to §5126.23(G). On April 27, 2012, Biggert requested

an additional evidentiaty hearing with the Common Pleas Court, pursuant to §5126:23(CT). On

June 13, 2012, the Common Pleas Court denied that request. Briefing to the Common Pleas

Court took place, and, on August 20, 2012, the Court rendered it decision upholding the actions

of the 13oard in terininating Biggert's contract, and left other matters to be resolved by the parties

before a final appealable order would be issued. On September 13, 2012, the other matters

having been dealt with by the parties, a final appealable order was issued. Biggert appealed the

Common Pleas Court decision in a timely fashion to the Fourth District Coiart of Appeals on

October 12, 2012. On May 16, 2013, that Court issued its decision affirming the Common Pleas

Court's decision.

5

M. Arguments in Support of Proposition of Law

Proposition of Law No. 1----------The Board's use of factual information not contained in the "Notice of Charges" tosupport its decision toter.minateBiggert constituted a violation of Biggert's dueprocess rights.

'I'lie only written version of the charges against him Biggert ever received was the Notice

of Charges attached to the predisciplinazy conference notice. Due process considerations

inherent in R.C. 5126.23 dictate that the charges that could be utilized by the Board to justify

Biggert's termination must be linl:ited to those charges for which an "explanation of the

evidence" was provided in the Notice of Charges. "The tenured public employee is entitled to

oral or written notice of the charges against him, ari explanation of the eniployer's evicience. and

azi opportunity to present his side ofthestory." C,'leveland 13d. qf'Edatc. r. Louderrnill, 470 U.S.

532, 546, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). (_)hio cotirts have found that the due process

provisions of R.C. 5126.23(C) arecoznpatihle with the Louderrnill model, and that the

Louderrvill standards shoiild be utiliied for determi»hig due process under the statute. Keyldcrll r:

Coshocion Cty.. I3c.l c?f fWRDD, 5th Dist. No. 2009CA00023, 2010-Ohio-4643, ^1,12. Providing an

employee such specific infonnation so as to afford him the opportunity to respond prior to

termination "would impose neither a significant administrative burden nor intolerable delays."

Lozcdertnill at 544. The su.fficiency of the "explanation of the evidence" rLins through the whole

process for those who are entitled to a f:ull evidentiary hearing, sucll as that afforded by R.C.

§5126.23(C). see Ohio v. Clay Hills, 8 Dist. No. 78546, 2002-Ohio-497, City of'Sandusky v.

Nuesse, 6th D.ist. No.1;-10-039, 2011-Ohio-6497, Clipps v. City (^f Cleveland, 8th Dist. No.

86887, 2006-Ohio-3154,18, and Arnett v. Fiaanklin AlanroeLocal Bd.of Educ., 2d Dist. No.

1567, 2002-Qhio-3559. T'his is also irt keeping with the dictates of §5126.23(E). which states

6

that any Hearing "...shall be confined to the charges enumerated at the predisciplin:ary

conference."

As to Biggert's failure to attend the predisciplinaryconference due to a prior conflicting

commitment, it has been proven time and again that the requirement to afford a prediscipliz7ary

conference to a public employee in Ohio is perfunctory, at best (i.e. form over substance). It is

clear, therefore, that in this situation the law dictates that a predisciplinary conference be held,

and that is the practical extent of the requirement. For example, it was decided that a

predisciplinary conference that lasted two (2) minute.s was sufficient to satisfv the Louderinill

standard. Martinez v. Greeiie, 8th Dist. No. 9531 l, 2011-Ohio-1359, fn. 2. It is also well

established that the employer need not conduct anything even remotely resembling an

evidentiary hear.ing during the predisciplinary conference, and that this is especially true where

an evidentiazy hearing will later be held as a matter of law. Washington v. City of Cleveland Civ.

Serv. Conznt'n, 8th Dist. No. 9496, 2010-Ohio-5Ci0$,'^j29. "'Indeed, courts construing the

Supreme Court's language in Loudef-•mill have required only the barest of a pretermination

procedure, especially when an elaborate post-termination procedure is in place."' Local 4501,

Cornnzunications WoNh:ers ofAnzerica v. The Ohio .State Univ., 49 Ohio St.3d 1, 3, 550 N.E.2d

164 (1990), quoting Loa-cderinill v. Cleveland Bt.l. of.Edn., 844 F.2d 304, 310-312 (6th Cir. 1988).

This proves that, though Biggert may have asked questions at the predisciplinary conference,

those questions need not have been answered by the Board. "I'he Board has never claimed that it

was prepared to set forth any more detailed evidence at the prediscipiinaiy conference beyond

that set forth in the Notice of Charges. Biggert also made repeated written requests for further

explanation of the evidence behind the Notice of Charges in the time prior to the Referee's

Hearing, and the Board refused to provide any explanation beyond the Notice of Charges. This

7

leads one to the reasonable conclusion that the Board would more likely than not have been

equally vague at the predisciplinaiy conference, had: Biggert attended.

Three di:stinct factors must be considered when assessing this due process recluirement:

(1) the private interest that will be affected by the official action; (2) the risk of an erroneous

deprivation of such interest through the procedures used, and the probable value, if any, of

additional or substitute procedural safeguards; and, (3) the Board's interest, including the

function involved and the fiscal and administrative burdens that the additional or substitute

procedural recEuirement would entail. ,-'t7athews v. Ir'ldridge; 424 U.S. 319, 335, 96 S.Ct. 893, 47

L.Ed.2d 18 (1976). The private interest affected was Biggert's right to an income and to finish

his contract. T'he risks of an erroneous deprivation were many, in that without the ability to

prepare and call the proper witnesses, Biggert was unable to answer the many falsehoods

portrayed by allegations that were not set forth to him prior to the Referee's hearing. 'I'he

additional safeguard of a reasonably complete "explanation of the evidence" would have allowed

proper preparation and a fairer picture of the situation as it unfolded for the Referee to consider.

It is difficult if not impossible to contend that the Board would have been prejudiced in any way

by having to set forth a more complete explanation of the evidence. The cost and time expended

would have been minimal (if there would have actually beeii any extra cost). In any eveiit,

"procedural due process rules are shaped by the risk of error inherent in the truth linding process

as applied to the generality of cases, not the rare exceptions." Mathews at 344. In general, it will

always serve the truth finding process better to have a full "explanation of the evidence" against

a party utilizing a st.atutorily niandated hearing process, then to allow incompleie disclosure.

8

In a further attempt to receive a fair hearing for which he could prepare ad.equate

responses to all charges made in the Notice of Charges, Biggert moved the Common Pleas Cotirt

for a further evidentiary hearing pursuant to R.C. §5126,233(G) (which allows the Common Pleas

Court to hold such further evidezitiary hearings as it deems advisable). (see Plaintiffs

Memorandum in Support of Additional Evidentiary Hearing, filed Apri127, 2012) In his

Memorandum on the subject, Biggert cited to the f oudermill standard as being violated, and

gave specific examples from the 1-Iearing before the Referee. (see Memorandum in Support of

Additional Evidentiary Hearing, filed April 27, 2012) The Common Pleas Court utilized its

discretion to deny Biggert's Mortion, therefore freezing in place the prior due process problem

caused by the inadequacies contained in (or omitted from) the Notice of Charges. (see Decision,

dated June 13, 2012)

The due process "explanation of the evidence" requires that the party attempting to take

the property right set forth the specific evidence upon which it intends to rely. Ohio v. Clay Hills,

8 Dist. No. 78546, 2002-Ohio-497. This is true "even in the most limited constitutionally-

protected proceedin.gs...to allow preparation of a defense." Id.

In order to have any substantive m.eaning, the concepts of notice and anopportunity to be heard must include an opportunity to prepare, and theopportunity to prepare a defense must be focused, at some level, byknowledge of the charges and evidence against which one is defending.

.Id This requirement lends meaning to the term "due process" by allowing the employee to

utilize tlie process as effectively as the enlployer. If the employer is allowed to hide the ball until

the actual final evidentiary hearing, the employee cannot know what witnesses, exhibits andlor

other evidence he might use to refute the charges. In this way, the "explanation of the evidence"

part of the due process requirement is in some ways equal to the discovery rules in civil

proceedings. Responses to discovery in civil proceedings are required so that an effective

9

hearing on the merits of all claims and defenses may finally be held, with all witnesses and

documents available to create a full and fair picture of what actually occurred. The "explanation

of the evidence" requirement of due process provides a microcosm of the discovery procedure,

thereby affording at least a minimum opportunity to the charged party to prepare his defense to

that which may cause him to lose his property right to his public employment.

The Courts of Ohio have previously declared due process violations in an employment

discharge in which general allegations were noticed without specific incidents being set forth to

support the discharge. City af Sccndusky v. Nuesse, 6th Dist. No. E-10-039, 2011-Ohio-6497. The

employee in Alizess.e was charged with "failure. ,.to display absolute honesty." Mriesse at T62.

The Nuesse Court looked to the disciplinary decision for factual notice and support. Id. Four

incidents were used to justify the dishonesty charge. Nuesse at 1,763. The disciplinary decision

referred to a separate report that was known to the employee, and the Nuesse Court therefore

allowed the contents of the report as a further "explanation of the evidence.' Ia' The iVuesse

Court found only one of the four incidents in the report, and thereby disallowed use of the other

three incidents to support the decision to discharge. Nuesse at ^,164, citing Clipps v. City of

Cleveland, 8th Dist. No. 86887, 2006-Ohio-3154, Tj 18 (employee`s due process rights were

violated where the city did not izlform the employee that other sexual harassment incidents were

being considered against her); Arnett v. Franklin lllonroe Local 13d of.Educ., 2d Dist. No. 1567,

2002-Ohio-3559 (school bus driver's due process rights were violated where he was not told that

an alleged conversation regarding a complaint that he almost struck a student with his bus, and

during which he stated that he was not trying to hit the student, but merely was trying to scare

him, would be used to evaluate whether he should be terminated),

10

The Appeals Court mistook the argument regarding due process to be one of form, when

the argument was one of substance. Biggert does not argue that a pre-disciplinary conference

was not held. Biggert does not argue that he was not given adequate notice of that conference.

Neither of those issues addresses the suffrcienc7> of the explanation of the evidence set forth in

the Notice of Charges.

None of the charges contained inIjfi6-12 of the Notice of Charges contain all three

reasonably required components for a complete "explanation of the evidence": (1) dates; (2)

persons affronted; and (3) specific subject matter. see City of.Scrndusky v, Nuesse, 6th Dist. No.

E-10-039, 2011-Ohio-6497, Clipps v. City of Cleveland, 8th Dist. No. 86887, 2006-Ohio-3154,

Ti 18, and Arnett v. Franklin Nlonroe Local Bd ©f.Educ., 2d Dist. No. 1567, 2002-Ohio-3559.

The Notice of Charges ^Ti6 and 7 amount to generalized character assassination without factual

backing of any kind. The Notice of Charges^T.8-12, while citing to more specific areas of the

Board's rules, still do not set forth any dates, witnesses or other facts that Biggert may refer to in

preparing to defend against the allegations. As a matter of due process, 'Vi^16-12 of the Notice of

Charges do not set forth any due process "explanation of the evidence" necessary to support the

conclusions tllerein. Nonetheless, the Referee stated that these Charges were proven at the

Referee's Hearing, and she utilized them to come to her decision that the Board's decision to

terminate Biggert was a proper one pursuant to R.C. 5126.23(13). The Common Pleas Court also

supported that these Charges were proven and could be utilized to support the Board's

termination of Biggert, as well. Finally, the Appeals Couit also decided that these Charges had

been proven, and could be utilized to support the Board's terinination of Biggert.

There seems to be an obvious tension in the case law which, on the one hand, cites to no

need for an elaborate, evidence-filled pre-disciplinary process, yet also requires an adequate

11

"explanation of the evidence" prior to a full evidentiary hearing being held so as to allow the

employee a meaningfiil opportunity to rebut the charges made against him. Biggert asserts that

this tension must be resolved in favor of the employee to the extent that, at some point in the

process, it is not too much to ask that the public employer set forth an explanation of the

evidence that contains dates, persons affronted, and specific subject matter so that the employee

may attetnpt to adequately defend themselves against the charges. It would not "intrude to an

unwarranted extent on the government's interest in quickly removing an unsatisfactory

employee" to require this explanation at some point between removal and a Referee's Hearing

held pursuant to R.C. 5126.23(D). It would eiasure that the employee receive a meaningful due

process with full opportunity to be heard and to defend themselves.

IV. Conclusion

At most, Biggert's terrnxnation should be voided for lack of due process. At the very

least, Biggert deserves another Referee's Hearing at which only the incidents set forth properly

by an "explanation of the evidence" standard can be used as evidence to support the Board's

decision to terminate.

Respectfully submitted,

-- - -- - ----------A. Reeve (0064872)

Attornev for PlaintiffLaw Offices of Gary A. Reeve, LLC513 East Rich Street, Ste. 109Columbus, Ohio 43215(614) 808-1881

12

CERTIFICATE OF SERVICE--------------

This is to certify that a true copy of Biggert's Memorandum was served via regiilar U.S.

mail on Appellee's counsel Mark Landes and Aaron M. Glasgow, Isaac,l3rant, Ledman &

Teetor, LLP, 250 East Broad Street, Ste. 900, Columbus, Ohio 43215 this 25th day of June,

2013.

^------- - -------------Gary A. R^:eve

7.3

APPENDIX

CERTIFICATE TO COPY CoA # 12cA19

CASE #t 12CV0055

ORIGINAL ON FILE

THE STATE OF OHIO, HIGHLAND COUNTY:

FOURTH DISTRICT COURT OF APPEALS

I, the und^ersigned; clerk of the 4th District Court ofAyyeaG^s, within and'for sauCCounty andin whose custodythe FiCes, JournaCs andRecord"s of saufCout are requiredfy

the lativs of the State of Ohio to be kept, do hereby cert^fy thatthe forepoing is taken and'co_piedfrom, the origi.naC, now onfile in said'Court, that sai.cfforegaing has been comyared6yme with the originaC d'ocurnent ancCthat it is a true andcorrect coyy thereo_ f

IN 9-MMONJ -WHEREOF, I

hereunto subscribe my name offcciaCCy

andaffix the seaCof sar`.dCourt, at the

Court House, in 3-CMCs6oro, Ohio in andfor saidCounty, this as'I'l day of -MAy,

2013.

D`WIGHTO. 3-fOD SON

CLER.K OF CUR?'S

3frcH-C.aND couarry co-Ma2oarPlE.2LS C04(R7

APPX000001

a

IN TI-IE COLTRT OF APPEALS OF OHIOFOI.7RTH APPELLATE DISTRICT

I-IIGI-ILAND COtJNTY

CHARLES BIGGERT, JI'̂ ..,^ .<

• eG^ ^..k.F'^ -f }

Appellant-Appollant, Case No. l2CA19. ---.-^ ^ ^M .. ...

vs.

HIGHLAND COUNTY BOARD DECISION AND JUDGMENTOF DEVELOPMENTAL : E1tiTIZ:YDISABILITIES,

Appellee-Appellee. APPEAR.ANCES:

Gary A. Reeve, Law Offices of Gary A. Reeve, LLC, Columbus, Ohio, forAppellant.

Mark Landes and Aaron M. Glasgow, Isaac, Brant, Ledman & Teetor, LLP,Columbus; Ohio, for Appellee.

McFarland, P.J.

f¶X} Charles Biggct-t appeals the decision of the Highland Coz.inty

Co-urt of Common Pleas wliich affirmed Appellant's ter.mination froin his

contract position as sLiperintendent of Hi.gl^;land County Board of

Developmental Disabilities, Appellee I-ierein. On appeal, Appellant contends

that the trial cotia-t coinrnitted,orror by 1) finding that Appellee gave proper

due process to Appellant for all charges, pursuant to R.C. 5126.23; and 2) by

APPX000002

Highland App. No. 12CA 19

finding that Appellee terminated Appellant's contract for good cause,

pursuant to R.C. 5126.23.

{¶Z} In light of our determination that Appellant was afforded due

process with respect to the notice of charges against him, and that the trial

2

court did not err or abuse its discretion in denying Appellant's request for an

additional, evidentiary hearing, we find no merit to the arguments raised

under Appellant's first assignment of error and it is therefore overruled.

Further, because we find the trial court's decision affirming Appellant's

termination for cause was supported by a preponderance of reliable,

probative and substantial evidence in the record, we cannot conclude that the

trial court abused its discretion in reaching its decision. Appellant's second

assignment of error is also overruled.

{^3} Accordingly, having found no merit to the arguments raised by

Appellant, the decision of the trial court is affirnned.

FACTS

{14} Appellant became employed as superintendent of Appellee,

Highland County Board of Developmental Disabilities, on December 16,

2008. Appellant's employment contract was for the period of January 1,

2009, through December 31, 2011. During the summer of 2011, problems

began to occur related to Appellant's management style, as well as his

APPX000003

Highland App. No. 12CA19

dealings with outside offices, including the county commissioners' office

and the county prosecutors' office. Other problems occurred, including

Appellant's attempt to have several board members removed for various

different reasons. These issues lead the board to make a decision not to

renew Appellant's contract, which was accomplished by formal vote on June

28,2011.

{¶5} On August 23, 2011, the board reassigned Appellant to work on

a specific project from home for the duration of his contract. Subsequently,

on September 29, 2011, the board provided Appellant with a notice of

termination and notice of charges, and informed him that a pre-disciplinary

conference would be held on October 3, 2011. The notice of charges was

five pages in length and contained twelve bullet pointed items, which

included more detailed information and allegations under each bullet point.

{¶6} Although Appellant was provided with notice of the conference,

he failed to attend. The record indicates Appellant had a scheduling conflict

and requested that the conference be held on a different date, which request

was denied by the board. During the pre-disciplinary conference on October

3, 2011, the board voted to terminate Appellant's contract. As a result,

APPX000004

H2ghland App. No. 12CA 19

Appellant filed a request for a hearing before a referee pursuant to R.C.

5126.23 (D).'

4

{17} On December 8 and 9, 2011, a hearing was held before a referee.

After hearing two days of testimony, which included ten witnesses on behalf

of the board, Appellant and one other witness on Appellant's behalf, the

referee issued a report and recommendation that Appellant's contract be

terminated December 16, 2011. On January 12, 2012, the board voted to

accept the referee's report and recommendation and terminated Appellant's

contract. Appellant subsequently filed a notice of appeal in the Highland

County Court of Common Pleas on February 10, 2012.

{¶S} In addition to appealing the board's decision to adopt the report

and recommendation of the referee that he be terminated, Appellant filed

claims alleging breach of contract related to his termination and the failure

to pay him his unused leave. Appellant also requested that an additional

evidentiary hearing be held by the trial court, which request was denied on

June 13, 2012. After reviewing the administrative hearing transcripts and

exhibits, the trial court issued findings of fact and conclusions of law in a

written decision dated August 20, 2012, ultimately determinin.g that

Appellee board's adoption of the referee's recommendation and report and

' R.C. 5126.23 govezns the disciplinary procedure for employees of county boards of developmentaldisabilities.

APPX000005

tlighl and App. No. 12 CA 19

tormination of Appellant was done in compliance with R.C. 5126.23 and

was for good cause. In arriving at its decision, the trial court further found

that the evidence supported a finding that Appellant was insubordinate,

which it pointed out is also grounds for termination. As such, the trial court

denied all of Appellant's claims related to the termination of his contract,

leaving only one issue to be determined, which was Appellant's claim

regarding his unused leave.

{19} Once the trial court received notification that the parties had

settled the issue of Appellant's unused leave, the trial court issued a final

judgment entry on September 13, 2012, incorporating by reference its earlier

June 13, 2012, and August 20, 2012, decisions. It is from this final

judgment entry that Appellant now brings his current appeal, assigning the

following errors for our review.

AS SIGNMENTS OF ERROR

"I. THE COMMON PLEAS COURT COMMITTED ERROR BYFINDING THA.T THE BOARD GAVE THE PROPER DUEPROCESS TO BIGGERT FOR ALL CHARGES, PURSUANT TOR.C. 5126.23.

II. THE COMMON PLEAS COURT COMMITTED ERROR BYFINDING THAT THE BOARD TERMINATED BIGGERT'SCONTRACT FOR GOOD CAUSE, PURSUANT TO R.C. 5126.23."

APPX000006

Highland App. No. 12CA 19

STANDARD OF REVIEW

{T1O} The appeal of Appellee board's decision is governed by R.C.

5126.23(G). Benincasa v. Stark County Board of MRDD, S"' Dist. No.

6

2003CA00350, 2004-Ghio-4941, ¶ 18. In an appeal to the court of common

pleas, the court must affirm the decision if it determines that the board's

decision is supported by a preponderance of reliable, probative and

substantial evidence. The common pleas court may consider the entire

record, including the credibility of the witnesses and the weight and

probative character of the evidence. Univ. of Cincinnati v. Conrad, 63 Ohio

St.2d 108, 111, 407 N.E.2d 1265 (1980). The common pleas court may not,

however, substitute its judgment for that of the agency. Instead, if a

preponderance of reliable, probative and substantial evidence exists, the

court must affirm the agency's decision. Dudukovich v. Lorain Metro.

Housing A uth., 58 Ohio St.2d 202, 207, 389 N.E.2d 1113 (1979).

{111} Conversely, in an appeal to the court of appeals, the court is not

permitted to re-weigh the evidence. Benincasa at ¶ 19. Instead, our review

is limited to a question of whether the trial court abused its discretion in

finding a preponderance of reliable, probative and substantial evidence

exists to support the decision of the board. Dudukovich at 207. In order to

find an abuse of discretion, we must determine that the trial court's decision

APPX000007

Highland App. No. 12CA 19

was unreasonable, arbitrary or unconscionable and not merely an error of

law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450

N.E.2d 1140 (1983). Absent an abuse of discretion, we must affirm the

judgment of the trial court. Benincasa at ¶ 19; citing Doll v. Stark County

Board o, fAD?DD, 5g' Dist. No.2001 CA00255, 2001-Ohio-7052; citing Unit.

Hosp., llniv, of Cincinnati College qf.Medicine v. State Emp. Relations Bd.,

63 Ohio St.3d 339, 344, 587 N.E.2d 835 (1992).

ASSICaNMENT OF ERROR I

{¶12} In his first assignment of error, Appellant contends that the trial

court erred by finding that Appellee board afforded him proper due process

for all charges, pursuant to R.C. 5126.23. Specifically, Appellant argues that

several of the charges, charges seven through twelve in particular, were

vague, lacking in evidence, and did not constitute notice under the law.

Appellant fizrther argues that the trial court "failed to cure the due process

issue" by denying his request for an additional evidentiary hearing.

(113) R.C. 5126.23 governs the disciplinary procedure, required

notice, referee determination and appellate procedure related to employees

of county boards of developmental disabilities. R.C. 5126.23 provides in

section (C) as follows:

APPX000008

Highland App. No. I2CA 19

"Prior to the removal, suspension, or demotion of an employee

pursuant to this section, the employee shall be notified in

writing of fthe charges against the employee. Except as

otherwise provided in division (H) of this section, not later than

thirty days after receiving such notification, a predisciplinary

conference shall be held to provide the employee an

opportunity to refute the charges against the employee. At least

seventy-two hours prior to the conference, the employee shall

be given a copy of the charges against the employee.

* * * If the removal, suspension, or demotion action is directed

against a superintendent, the conference shall be held by the

members of the board or their designees, and the board shall

notify the superintendent within fifteen days after the

conference of its decision with respect to the charges."

(Emphasis added).

R.C. 5126.23 further provides in section (D) as follows:

"Within fifteen days after receiving notification of the results of

the predisciplinary conference, an employee may file with the

board a written demand for a hearing before the board or before

a referee, and the board shall set a time for the hearing which

8

APPX000009

Highland App. No. 12CAI9

shall be within thirty days from the date of receipt of the written

demand, and the board shall give the employee at least twenty

days notice in writing of the time and place of the hearing."

9

Additionally, R.C. 5126.23 provides in section (G) that on appeal to a

common pleas court, the court "shall examine the transcript and record of

the hearing and shall hold such additional hearings as it considers advisable,

at which it may consider other evidence in addition to the transcript and

record."

{114} Here, a review of the record reveals that Appellant was

provided with a notice of charges on September 29, 2011, and was informed

at that time that a pre-disciplinary conference would be held on October 3,

2011. Although Appellant was provided notice of the conference, he did not

attend. Appellee Board voted to terrninate Appellant during the conference

and, as a result, a notice of termination was provided to Appellant on

October 5, 2011. Appellant thereafter demanded a hearing before a referee,

which hearing was held on December 8 and 9, 2011. The referee issued a

report and recommendation on December 16, 2011, finding Appellant's

termination was supported by a preponderance of evidence establishing good

cause for ternlination under R.C. 5126.23(B). Thus, our review of the record

APPX000010

Highland App.1lTo. 12CA19 10

indicates that the proper procedure was followed and Appellant was afforded

the notices and hearings required under R.C. 5126.23.

{¶15} However, Appellant argues that the content of the notice of

charges was lacking and that he was, denied due process as a result. As

indicated above, the notice of charges was five pages in length and contained

twelve bullet points, Generally, the notice charged Appellant with: 1) being

dishonest in relation to a public statement he made during a June 28, 2011,

board meeting wherein he represented he had emailed and received direction

from county prosecutor Anneka Collins on a particular issue, when in fact he

had not (this bullet point contained additional details, including that the

email in question related to Sam Snyder's eligibility to serve on the board);

2) routinely treating employees in a discourteous and aggressive manner

based upon bullying and intimidation (this bullet point mentioned two

employees and situations, in particular: Appellant's aggressive, threatening,

bullying and intimidating behavior towards employee Kim Gilbert with

respect to an issue regarding the placement of a client, and Appellant's

unprofessional and retaliatory behavior towards employee Sherry Morrison

regarding her use of sick leave); 3) routinely treating board members in a

discourteous and aggressive manner based upon bullying and intimidation

(this bullet point specifically detailed Appellant's efforts to either prevent or

APPX000011

IHighland App. No. 12CA19

remove certain individuals as board members, including board president

Linda Allen, former board member Gary Boatman, as well as the then

current members Karen Adams and Sam Snyder;2 4) routinely treating

county officials in a discourteous and aggressive manner based upon

bullying and intimidation (this bullet point detailed Appellant's

unprofessional and inappropriate dealings with Anneka Collins, the county

prosecutor, Tom Horst, a county commissioner, and the commissioners

office in general, which included "threatening public disclosure of

II

embarrassing information" and ultimately resulted in the county prosecutor's

and county commissioners' refusal to communicate with Appellant directly);

5) routinely treating the public and community in a discourteous and

aggressive manner based upon bullying and intimidation (this bullet point

detailed Appellant's unprofessional and inappropriate dealings with Doug

Wagoner, the board's insurance agent, Robert Morrison, the husband of

employee Sherry Morrison, and employees of the State of Ohio

Rehabilitation Services, which jeopardized the board's receipt of a grant); 6)

lacking integrity in his management style, resulting in unfair treatment of the

staff, fear and lack of trust amongst the staff, which had an adverse affect of

the health of the organization; 7) lacking character in his management style,

2 These efforts included contacting board members' employers and making threats, as well as challengingtheir residency and eligibility to serve on the board.

APPX000012

Highland App.No.12CA 19 12

resulting in inefficiency of the organization; 8) threatening retaliation against

staff for voicing complaints; 9) regular use of profanity; 10) violation of the

county board's staff attendance policy by reporting he was attending an out-

of-office in-service during work hours; 11) violating the county board's

rules by failing to notify his administrative assistant of his location during

work hours; and 12) violating board and county policy that prohibits

personal use of his county owned email address.3

{116) The referee's report found that Appellant engaged in bullying

and intimidation with respect to employees, county offices and board

members. It further found that Appellant tried to either keep certain people

from serving as board members or have certain board members removed,

believing they had some sort of personal vendetta against him. The report

further indicated that Appellant had engaged in dishonesty in his dealings

with the county prosecutor, his submission for mileage reimbursement, and

his work attendance. The report also found credible the allegation that

Appellant lacked integrity in his management style.

(¶17} On appeal to this Court, Appellant particularly takes issue with

the information contained in the notice of charges six through twelve. Upon

3 Charges six through twelve alleged that Appe[lant's actions detailed therein also violated the CountyBoard's Code of Ethics and Values, Anti-Harassment Policy and Work Rules. The record also indicatesthat Appellant's emplQyment contract contained a provision entitled "Application of Board Policies" whichbound Appellant to all offcialboard policies applicable to all other employees.

AFPX0oo013

Highland App. No. 12CA 19

review of the trial court's decision, we note that the trial court specifically

13

found that charges seven, eight, nine and twelve were not proven. Thus, we

limit our discussion to charges six, ten and eleven, which the trial court

determined were proven. We initially note that after a review of the record,

we conclude that the notice of charges were sufficiently detailed so as to put

Appellant on notice of the allegations being made against him, and thus, we

cannot conclude that Appellant was deprived of due process with regard to

the substantive content of the notice.

ۦ1$} Further, Appellant argues that the referee impermissibly relied

on information presented at the administrative hearing that was not

contained in the notice of charges, in reaching her decision. While charge six

generally alleged that Appellant's management style lacked integrity in that

employees did not trust and feared- Appellant and were treated unfairly, a

review of the record indicates that there is a preponderance of reliable,

probative and substantial evidence in the record to support this fmding. For

instance, Kim Gilbert, an employee who was specifically mentioned under

charge two, testified that the work atmosphere was stressful, that Appellant

was intimidating and threatening, that she was fearful, and that during one

episode she thought Appellant was going to strike her. This testimony alone

supports charge six as well as a portion of charge two. Additionally,

APPX000014

Highland App. No. 12CA19 14

although charge six simply references "staff," Appellant knew who his staff

members were. Appellant could have attended the pre-disciplinary

conference and could have clarified if he had a question, though he chose

not to attend. Further, he had two months to prepare for the administrative

hearing during which he could have requested more specific information if

he was unclear.

(119) Charges ten and eleven collectively alleged that Appellant

violated county board attendance and work rules by falsely reporting that he

was attending an out-of-office in-service during work hours when he was

not, and by routinely failing to notify his administrative assistant of his

location during work hours when he was not in the office. These charges

were straightforward and self-explanatory. The trial court determined that

these charges were proven in their entirety and we agree. Thus, we cannot

conclude that the trial court abused its discretion in finding that the record

contains a preponderance of reliable, probative and substantial evidence to

support the decision of the board.

{120} Appellant also argues certain testimony was introduced to

support the allegations contained in charges two through five, that was not

included in the notice of charges. It is important to note that the trial court

found only the allegations as to Kim Gilbert were proven as to charge two,

APPX000015

Highland App. No. 12CA 19 15

and Kim Gilbert's testimony supports this finding. Further, with respect to

charge three, which related to Appellant's treatment of board members, the

testimony of board member Linda Allen and county commissioner Tom

Horst supports this finding. As to the fourth charge, which related to

Appellant's treatment of county officials, the testimony of county

commissioner Tom Horst and county prosecutor Anneka. Collins supports

this finding. Finally, with regard to the fifth charge, the trial court only

found the portion of the charge relating to Appellant sending an

inappropriate text message to employee Sherry Morrison's husband, Robert

Morrison, to be proven. By Appellant's own testimony, the referenced text

message was indeed sent. Thus, our review of the record indicates that the

trial court did not abuse its discretion in finding the charges proven, as

specified above, as the record contains a preponderance of reliable,

probative and substantial evidence to support the decision of the board.

(¶21) Finally, Appellant argues that the trial court erred in denying

his request for an additional evidentiary hearing. As set forth above, R.C.

5126.23(C7) provides that on appeal to a court of common pleas, the court

"shall examine the transcript and record of the hearing and shall hold such

additional hearings as it considers advisable, at which it may consider other

evidence in addition to the transcript and record." The statute fails to

APPX000016

Highland App. No. 12CA 19 16

provide specific guidance as to when it might be appropriate for a trial court

to conduct additional hearings or consider additional evidence. However,

according to the plain language of the statute, the decision whether to

consider additional evidence is at the discretion of the court.

{122) R.C. 5126.23(G) also provides that an appeal may be taken

from a decision of a court of common pleas "pursuant to the Rules of

Appellate Procedure and, to the extent not in conflict with those rules,

Chapter 2505 of the Revised Code,"4 Further, Chapter 2506 governs appeals

from orders of administrative officers and agencies. R.C. 2506.01

"supplements the provision of Revised Code Sections 2505.01 to 2505,45."

Grimes v. City of Cleveland, 17 Ohio Misc. 193, 194, 243 N.E.2d 777

(1969). R.C. 2506.01 govems appeals from agencies of political

subdivisions and specific guidance is provided in R.C. 2506.03 as to when

additional evidence may be considered in an administrative appeal. In the

absence of clear guidance on this particular issue in R.C. 5126,23, we look

to the language of R.C. 2506.03.

The pertinent portion of R.C. 2506.03 provides as follows:

"(A) The hearing of an appeal taken in relation to a fmal order,

adjudication, or decision covered by division (A) of section

" Chapter 2505 of the Revised Code governs procedure to be followed on appeal.

APPX000017

Highland App. No. 12CA19

2506.01 of the Revised Code shall proceed as in the trial of a

civil action, but the court shall be confined to the transcript

filed under section 2506.02 of the Revised Code unless it

appears, on the face of that transcript or by affidavit filed by the

appellant, that one of the following applies:

(1) The transcript does not contain a report of all evidence

admitted or proffered by the appellant.

(2) The appellant was not permitted to appear and be heard in

person, or by the appellant's attomey, in opposition to the final

order, adjudication, or decision, and to do any of the following:

(a) Present the appellant`s position, arguments, and contentions;

(b) Offer and examine witnesses and present evidence in

support;

(c) Cross-examine witnesses purporting to refute the appellant's

position, arguments, and contentions;

(d) Offer evidence to refute evidence and testimony offered in

opposition to the appellant's position, arguments, and

contentions;

(e) Proffer any such evidence into the record, if the admission

of it is denied by the officer or body appealed from.

17

APPX000018

Highland App. No. I 2CA 19

(3) The testimony adduced was not given under oath.

(4) The appellant was unable to present evidence by reason of a

lack of the power of subpoena by the officer or body appealed

from, or the refusal, after request, of that officer or body to

afford the appellant opportunity to use the power of subpoena

when possessed by the officer or body.

(5) The officer or body failed to file with the transcript

conclusions of fact supporting the fmal order, adjudication, or

decision."

As noted by Appellee in its brief, Appellant did not argue any of these

18

grounds applied at either the trial court level, or on appeal. Further, in light

of our determination that Appellant was afforded the due process required

under R.C. 5126.23 with respect to the notice of charges, coupled with the

fact that Appellant received a two-day hearing before a referee in which he

was represented by counsel, was permitted to cross examine witnesses, call

witnesses on his behalf and present evidence, we cannot conclude that the

trial court erred or abused its discretion in denying Appellant's request for

an additional evidentiary hearing. Accordingly, Appellant's first assignment

of error is overruled.

APPX000J19

Highland App. No. 12CA 19

(3) The testimony adduced was not given under oath.

(4) The appellant was unable to present evidence by reason of a

lack of the power of subpoena by the officer or body appealed

from, or the refusal, after request, of that officer or body to

afford the appellant opporhxnity to use the power of subpoena

when possessed by the officer or body.

(5) The officer or body failed to file with the transcript

conclusions of fact supporting the final order, adjudication, or

decision."

As noted by Appellee in its brief, Appellant did not argue any of these

18

grounds applied at either the trial court level, or on appeal. Further, in light

of our determinatzon that Appellant was afforded the due process required

under R.C. 5126.23 with respect to the notice of charges, coupled with the

fact that Appellant received a two-day hearing before a referee in which he

was represented by counsel, was permitted to cross examine witnesses, call

witnesses on his behalf and present evidence, we cannot conclude that the

trial court erred or abused its discretion in denying Appellant's request for

an additional evidentiary hearing. Accordingly, Appellant's first assignment

of error is overruled.

APPX000020

Highland App. No. 12CA.19

ASSIGNMENT OF ERROR II

{¶23} In his second assignment of error, Appellant contends that the

trial court erred by finding that Appellee terminated him for good cause,

pursuant to R.C. 5126.23. As set forth above, R.C. 5126.23 governs the

19

disciplinary procedure, required notice, referee determination and appellate

procedure related to employees of county boards of developmental

disabilities. R.C. 5126.23 provides in section (B) as follows:

"An employee may be removed, suspended, or demoted in

accordance with this section for violation of written rules set

forth by the board or for incompetency, inefficiency,

dishonesty, drunkenness, immoral conduct, insubordination,

discourteous treatment of the public, neglect of duty, or other

acts of misfeasance, malfeasance, or nonfeasance."

We have already considered each charge contained in the notice of charges

and determined that they sufficiently put Appellant on notice of the

allegations being made against him and thus, that Appellant was not

deprived of due process in this regard. Further, as part of that analysis, we

reviewed the trial court's determinations as to which allegations were proven,

under each charge. While some of the allegations were not proven, a

multitude of the allegations were proven. The ones that were proven, which

APPX000021

Highland App. No. 12CA I 9

have been discussed in detail under Appellant's first assignment of error,

20

more than demonstrate acts of dishonesty, as well as acts of misfeasance or

malfeasance, which under R.C. 5126.23(B), constitute grounds for removal.

{124} Additionally, as noted above, Appellant's actions violated

official board policies, specifically the code of conduct and work attendance

rules, which were expressly referenced in Appellant's employment contract.

Thus, we carinot conclude that the trial court abused its discretion by finding

that Appellee board terminated him for good cause, pursuant to R.C.

5126,23. Accordingly, Appellant's second assignment of error is overruled.

{1251 Having found no merit in the assignm.ents of error raised by

Appellant, and having found that the board's decision to terminate Appellant

was supported by a preponderance of reliable, probative and substantial

evidence, the trial court did not abuse its discretion in upholding the decision

of the board. As such, the decision of the trial court is affirmed.

JUDGMENT AFFIltMEb.

APPX000022

Highland App. No. 12CA 19

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED and that theAppellee recover of Appellant costs herein taxed.

The Court finds there were reasonable grounds for this appeal,

It is ordered that a special mandate issue out of this Court directingthe Highland County Common Pleas Court to carry this judgment intoexecution.

21

Any stay previously granted by this Court is hereby terminated as ofthe date of this entry.

A certified copy of this entry shall constitute the mandate pursuant toRule 27 of the Rules of Appellate Procedure.Exceptions.

Abele, J. & Hoover, J.: Concur in Judgment and Opinion.

For the Court,

BY: V" 'Matthew W. McFarlandPresiding Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a finaljudgment entry and the time period for further appeal commences fromthe date of filing with the clerk.

APPX000023

is

IN THE COURT OF APPEALS OF OHIO

FOURTH APPELLATE DISTRICT

HIGHLAND COUNTY

CHARLES BIGGERT, JR,

PLAINTIFF/APPELLANT

Case No. 12CA19

VS.

HIGHLAND COUNTY BOARD OF

DEVELOPMENTAL DISABILITIES

DEFENDANTJAPPELLEE

.,-^^,_ {«

u>;

i ^I.. t,f.^. £„ c,.1tJ'r:f^'•r . . 3 r'+1 , ri?^€ti

Pursuant to Appellate Rule 30-A you are hereby notified that a

Decision and Judgment Entry, copy hereto attached, was filed in this Court on

MAY 15, 2013.

DWIGHT O. HODSON

HIGHLAND COUNTY CLERK OF COURTS

i^-,;-^--

AFPX0oaa24-

, •

"0812012012 MON 12:09 FAX 933939$7$ HTG[iLAND CO CLERx COURT U001/014

IN '1'f-lE COURT OF COMMON PLEASHICiHLAND COUNTY, OHIO

CHARLES BIGGERT. JR.

HIGHLAND COIJNTY sOARD OF I L 9DEVELOPMENTAL DISABILITIES

NICii^lA^l^f F C'^(NfiY, ^fbdtQ

Defendant Appellee AUG 2 0 2512

CASE NO: 12 CV 055

Plaintiff-Appellatit: , DECYSION'AFFIRMiNG TI-1E,TERMINATTON OF TIIE

v. APPELLANT'S CONTRACTAND DENYING HLS APPEAL

• ^.

PROCEDURAL POSTrJRE O UPIKUFL^1ur^T8^' THE CA-^"

The Plaintiff-Appellant (hereinafter referred to as "Appellant") was employed by the

i7efcndant-Appellee (hereinafter referred to as "A.ppellee") to act as its Superintendent and

the Director of !he Help Me Grow prol;ram on Decernber 16, 2008 for a period of three years

commencing January 1, 2009 and termYnating on December 31, 2411, On October 3,2011, the

Appe[lee' board voted to terluinate the Appellant's contract effective on that date. The

Appellant filed a request for a hearing before a Referee pursuant to RC. 5126.23(D).

A. hearing was held before Referee Monica R. Bohlen, Esq. on December 8 and 9, 2011.

The parties submitted written arguxzaents to the Referee. She issued her recommendation that the

Appellee's cantract be terrninated on December 16, 2011. On January 12, 2012, the Appellee

voted to accept the referee's report and recommendation and terminated the Appellant's contract.

The Appellant filed his notice of appeal to this Court on February 10, 2012. Be also filed

cla.irns al.leging breach of contract as to the termination an.d for failure to pay him unused paid

leave. He also filed a claim alleging that the Appellee's actions were null and void due to

ineligible members serving on the board and voting on the temlination of his eontra+ct.

1

APPX000025

_.. _ .:_08/20/2012 MON 12:09 FAX 933939878 13IGHLAND CO CLERK COURT 0002/014

3

The Court issued its decision on June 13, 2012 in which the Court determined that the

issue of the termination of the Appellant's contract was an administrative appeal and that there

was no basis for an additiona.l evidentiary hearing. The Court further ruled that the Appellant's

claim that the Defendant's board did not have a legal quorum due to the ineligibility of certain

ruembers of the board was not a basis for an appeal in this case because even if that were the

case, they were de facto officers at the time of the votes and their actions as such were vatid,

Ihe Court incorporates that decision herein by reference.

The parties have submitted memoranda in accordance with the Court's scheduling order.

The Court has reviewed those meu9oxanda, has read the transcripts of the hearing before the

referee and reviewed all of the exhibits admitted in the hearing before the referee, This decision

is l"uztited to the administrative appeal of the t,e:rmination of Appellant's contract pursuant to R.C.

5126.23(G). The issues regarding the unpaid leave have been settled according to the parties.

The Court notes that at the hearing before the referee, b®t.h parties presented exhibits that were

nuu.abered, The Court wi.11 refer in this decision to those exhibits admitted at that hearing on

bchalf of the Appellee as "Board Ex." and those admitted on behalf of the Appellant as "Biggert

Ex."

FL-NDINGS OF FACT

Based upon the Court's review of the transcripts, the exhibits and the referee's report and

recomrnendation. the Court has made Findings of fact as hereinafter set forth regarding the

factual basis for the tertn.ina^,tion of the Appellant's contract. The Appellee is a county board of

developmental disabilities organized and acting pursuant to Chapter 5126 of the Revised Code.

The Appellee employed the Appellant as its Superintendent and the Director of the Help Me

Grow prog3ram on December 16, 2008 for a term of three years commencing on January 1, 2009

2

APPX000026

08/20/2012 MON 12;09 FAX 933939878 HIGHLAND CO CLERK COURT 0003j014

and ending on December 31, 2011 (Board Ex. 3). Article XVIII provided that the Appellant

would he bound by official policies of the Appellee. Article XV provided the conditions under

which the contract could be terminated. This included good cause in accordance with R.C.

5126.23.

.A.ppellant was not popular with staff ofthe agency. He attributed this to the fact that he

had implemented various cost cutting measures including a 5% pay cut for employees.

However, testimony from va7ious witnesses including Kim Gilbert, Becky Pollard, Tammy Hidy

and Bryan Miller indicated that he was a "my way or the highway" manager and on occasion

vvas intimidating to employees. The work en.vironrnent was very stressfiil,

The testimony before the referee demonstrated that in the first half of 2011, the Appellant

felt that board members Gary Boatman and Sam Snyder wanted to terminate his employment

Appellant, in an email dated May 25, 2011 sent to the Appellee's board members (Board Bx. 12),

stated that two board members and a county commissioner (Tom Horst) had a personal vendetta

against him. Appellant even contacted Mr. Boatman's supervisor at his place of employment

indicating that if Mr. Boatman did not resign from the board, certain inforrnation that would be

negative would coine out. Mr. Boatman subsequently resigned from the board.

Appellant realized that he was losing support of the Appellee's Board President, Linda

Atlen who is employed as the Director of SATH, a non-profit organization. Appellant. told her

that if she did not do the right fih.ing, be would contact her employer. Appellant followed through

with that threat and contacted Charles Emery, the President of the SATH board to tell him that

her actions on the board were jeopardizing a grant,

Appellant raised a question as to the eligibility of Karen Adams, who was appointed to

the board by Judge Kevin Greer in June of 2011. He told Bryan Miller, the business manager for

3

APPX000027

08/20/2012 MON 12[09 FAX 933939878 HIGHLAND CO CLERK COURT 0004/014

the Appeitee that he felt she was being put on the board to help to terminate his employment. He

c®ntacted Anneka Collins, the Highland CountyProseGuting Attorney and was advised that Ms.

Adams was qualified to serve on the board (Board Ex. 7). She also informed him in that email

that any notary public could administer the oath of ot^xce to new board members.

Appellant then sent an email to Judge Greer on June 27`t' (Board Ex. 37) and advised

Judge Gree.r that it was the board's wish that Judge Greer administer the oath before the June 26th

meeting and if.he was unavailable, then before the next meeting would be acceptable. This

would have meant that Ms. Adams would not have been able to vote on the issue of the non-

renewal of the AppelIant's contract at the June 280' rneeting. There was no evidence in the

record that Ms. Adams or the board had spoken to Appellant about her oath. She was apparently

swom in by someone prior to the meeting on June 28`h as she did participate in that xizeeting,

Sam Sn.yder was appointed as a member of the Appellee's board by the Highland County

Commissioners in January of 2011. He was not infortned that he was tn execute a declaration

pursuant to R.C. 5126.024 prior to his appointment. He did execute the declaration in March of

2011 which was in the board files. Snyder was one of the board members that Appellant felt had

a personal vendetta against him. Appellant ra.ised an objection in May of 2011 as to Snyder's

eligi'bility to serve on the board.

Prior to the meeting of June 28th, Appellant contacted Snyder by telephorte and advised

him that he was not validly appointed to the board and could not participate in the board meeting

that night. Snyder called County Commissioner Tom Horst who called Prosecuting Attorney

Collins. She advised him that she had not received any email from Appellant and had not

renidered any opinion to him about Snyder's serving on the board.

4

APPX000028

_ _ . , . ._ ,.,.._

08/20/2012 MON 12:10 FAX 933939878 HIGHLAND CO CLERR COQRT 00051014

Mr. Horst went to the Appellant's office before the meeting of the board that evening to

discuss the issues regarding Mr. Snyder with the Appellant_ He was told by Appellant that he had

sent Ms. Collins an email about Mr. Snyder and that he was doing what Ms. Collins had advised

him to do. Horst indicated to Appellant that he had talked to Ms. Collins and she advised him

that she had not talked with Appellant. Horst stated that they should call Ms_ Collins on laer cell

phone, but Appellant told him to get out of his office or he would call the police.

The board meeting went forward as scheduled on June 28^', it appears to have been a

contentious meeting. Commissioner Horst asked Appellant if he had actually contacted the

Prosecuting Attom.ey regarding Snyder and Appellant statcd that he "was almost certain" that be

had sent her an email According to the newspaper article admitted as Board Ex. 3, although

present, Mr. Snyder did not vote due to the Appellant's objections to his eligibility to serve. The

Appellee's board did vote to non-renew the Appellant's contract unan%xnously. According to the

article, there were five board members who voted on the motion, not including Snyder_ This

meant that the Appellant would not be employed by Appellee after the expiration of his contract

on December 31, 2011 (Board Ex. 8).

After the June 28m rneeting, various email correspondence between Collins and Appellant

took place in which he admitted that hc had not sent her an email before the June 28 th meetitzg.

She later informed Appetlee's Board President, Linda Alten that she did not want to

communicate with Appellant beeause she did not trust hixn (Board Eac 1).

On. August 10, 2011, the Appellant left a message after speaking by telephone with

Debbie SansOne, the Clerk to the County Comtnissioaters for the commissioners (Board Ex. 38).

He informed Mrs. Sansone that he wanted a new member appointed to the Appellee's board

before the next meeting and that he did not want to embarrass anyone with public disclosure of

5

APPX00o029

08/20/2012 MON 12:10 NAX 933939878 HIGHLAND CO CLERK COURT (^['I006/014

embarrassing information regarding Snyder and a cornmissioner. As a result of that message, On

August 12, 2011, the County Commissioners sent a letter to Appellee Board President Linda

Alleza (Board Ex. l) in which they stated that they viewed the message as a threat and strong arm

tactic.

After the notice of non-renewal, the Appellee adopted a resolution at its August 23rd

meeting to reassign the Appellant (Board Ex. 13). In that resolution he was to vacate his office

and work from another location. He wa.s not to take aay action on behalf of the Appellee without

prior approval or authorization. He was given notice of this by letter dated August 23d from the

board president (Board Ex. 14). Appellant did vacate his office and worked from home on a

project assigned to him.

In spite of this directive, on September 21, 2011, he sent Bryan Miller, the business

msrnager for Appellee an email stating that he was amending the procedure on mileage

r.eimbursement to increase the amouut of time that staff had to submit a request .for payment for

mileage (Board Exhibit 34). Mr. Miller later discovered that Appellant had been paid on two

occasions for mileage for meetings which he had not attended. Appellant testified that these

were simply mistakes.

On Septembex 29, 2011, the Appellee' board voted to notify the Appellant of its intent to

terminate his contract prior to the December 31' expiratlon date (Board Ex. 9). A notlce was

given to him that the Board would conduct a pre-drsciplinary conferenee on October 3`d (Board

Ex. 10). Appellant notified the Board attnrney tlaat he had plans to be at his grandchild's

birthday party on that date and would be available on any other date. The Appellant did not

reschedule the conference. After the Appeltsnt did not appear, the Board proceeded and voted to

terminate his contract effective on October 3`d (Board Ex. 1$).

6

APPX000030

08/20/2012 MON 12:10 F'AX 933939878 FJIi",HLAND CO CLERX COURT 0007/014n ----

REFERREE'S PROCEEDINGS AND REPORT

Upon convening of the 12eari:ng on December 9, 20] 1 before the referee, Appellant's

counsel raised an objet;tion to the notice of charges (I3iggert Ex. 21). He argued that they were

vague, insufficie:n.t and lacked specificity, The referee proceeded with the hearing. The notice of

charges is five pages long arnd contains twelve different charges, some of which have several

bullet points of allcgations.

The charges are summarized as foilows:

1. Dishonesty in Appellant's statement at the June 28th board meeting that he was almost

certain that he had sent the Prosecuting Attorney an emni.l.

2. Treatmeitt of employees is routinely discourteous, aggressive and based on bullying

tactics and intirxiidation.

3. Treatunent of board members is routinely discourteous, aggressive and based upon

bullying and i.ntimidation.

4. Treatment of county officials is routinely discourteous, aggressive and based on

bullying and fntimidation.

5. Treatment of the public%ommunity members is routinely discourteous, aggressive

and based upon bullying and irntimidation.

6. Management style lacks integnty and violates the Appellee's Code of Ethics and

Values, is perceived as untrEYstworthy by staff, does nvt treat people fairly, uses his

position as leverage for his own advancement, and there is a high dcgree of'fear

among sCaff,

7. Mana.gement style lacks character and violates the Appellee's Code of Ethics due to

his behavior, use of profanity and arrogance.

7

APPX000031

^^^

_ _ . . . , ._. .08/20/2012 3f®N 12:10 FAX 933939878 HIGHLAND CO CLERK COURT 1Z006/014

8. Threatened retaliation against staff for voicing com.plaints to the Board.

9. Kegular use of profanity in course of his duties.

10. False reporting of attendance at out of office meetings,

11. Failing to notify adminisErative assistant of his location during work hours.

12. Personal use of county email.

The referee issued m eleven page report and recommendation dated December 16, 2011.

She made various findings of fact in pages one throug}i eight. She specifically found on page

eight "Mr. Biggert was not credible in his response to the aIIegations." The Court agrees with

this conclusion based on its ceview of the testimony and the exhibits in the record. She further

stated that: "There was much testimony about Ws dishonesty both involving the above

allegations and on other matters taragential, to these proceedings," The latter appears to refer to

testimony elicited on cross exami.zaa.tion of the Appellant regarding his prior employment as well

as other testimony contradicted by the Appellee's witnesses on rebuttal.

Tn. b.er conclusior,s of law, the referee found that the Appellee laad complied with the

provisions of R.C. 5126.23 and that the Appellee's cUntract should be terminated. She found

that the Appellant's interactions with the prosecuting attomey, his subtnission of false nzileage

reqiiests and his lack of accountability for his attendance constituted dishonesty. She found that

he had engaged in extensive bullya.ng-intimidation conduct as alleged in the notice of charges

which was a violation of the Appellee's Code of Ethics and Values (Board Ex, 9) and that it

constituted discourteous treatment of the public, and acts of misfeasance and malfeasance. She

further found that the Appellee's perception that certain board members had a vendetta against

lzim constituted a violation of the written rules of the board, discourteous treatment of the pubIic,

and acts of misfeasance and matteasance.

APPX000032

.. _. . . _ _.- . . ,... - .08/20/2012 NIDN 12:10 FA_}t 933939878 HIGE3I,.A13D GO CLERK COURT [^009l0I4

LEGAL ISSUES

R.C. 5126.23(B) provides as follows: "An employee may be removed, suspended, or

desnoted in accordance with this section for violation of written rules set forth by the board or for

incompetency, inefficiency, dishanesty, drunkerwess, immoral conduct, insubordination,

discourteous treatment of the public, neglect ofdu.ty, or other acts of misfeasance, malfeasance,

or nonfeasa,.nce." This is the provision under which Appellee proceeded with termination of the

Appellee's contract. His contract also included this as one of the grounds for termination.

R.C. 5126.23(G) provides for an appeal by an employee who is disciplined to the court of

common pleas. The court is required to examine the transcript and record and hold such

additional hearings as it considers advisable, at which it may but is not required to consider other

evidence in addition to the transcript and the record. The Court has found that this is an

adaii'nistrative review and that the Court's standard of review of the Appellant's termination of

Appellee's contract is that set forth in R,C. 2506.04 which is that it can be set aside if it is found

to be unconstitutional, illegai, arbitrary, capricious, unreasonabie, or unsupported by the

preponderance of substantial, rcliable and probative evidence on, the whole record.

CONCLUSIONS OF LAW

The Court finds that the Appellee did comply with R.C. 5126.23(C) which requires that a

board of developmental disabilities give notice in writing of the charges against an employee and

within thirty days of the notice being given; provide a predisciplinary conference to provide the

etnployc;e an opportunity to refute the charges. In this case, the record is clear by the Appellee's

own testirrzony that he received notice of the charges and the conference (Transcri.pt, Vol. II,

pages 339-341,422). It is clear that he chose not to attend the conference due to a birthday party

9

APPX000033

_. - . _ .. . _ , . .. _

0$/20/2012 MON 12:10 FAX 933939878 HIGHLAND CO CLERK COURT ^';07.D/014----------- ^.^

for his grandchild. While i.t rnay have been harsh for the Appellee to refuse to continue the

corrfez'c.̂ nce, the Court finds that is within the discretion of its board.

'The purpose of a predisciplinary conference is an opportunity for an employee to offer

information to refute the charges, but it is not an adversarial proceeding with witnesses testifying

under oath and being subject to cross exatnination. That is the fiiriction of the hearing before the

referee which did occur in this case. Therefore, the Appellant was not prejudiced by not being

able to attend the predisciplinaxy conference.

Appellant also argued that the charges were too vague and lacked specificity. The Court

finds this to be incorrect. The charges were five pages long. I'here were specific references to

incidents and events. A criminal indictment can be stated in terms of the statute and is sufficient

to apprise a defendant of the charge against him. In this case, the notice of charges was fairly

extensive and contained sufficient detail to inform the Appellee of the reasons .for the

termination. Further, the record demonstrates that the Appellee had nearly almost two months to

prepare for the hearing, to file subpoenas, and to request discovery orders from the referee.

Therefore, the Court finds that the record does not support his claim that he was unable to mount

a defense against the charges.

Appellant argues in his memoranda that the evidence admitted in the hearing before the

referee shows that the accusations were false, grossly exaggerated, not supported by the evidence

or were simply a misunderstanding. He also argues that the Appellee failed to comply with the

provisions of R.C. 5126.23(C) in that he did not receive a pre-disciplinazy conference and he was

not given fair notice of the charges so that he could mount a defense to them.

Appellant also argued that the evidence was insufficient to support a finding that his

contract should be tertninated. He correctly notes that several of the allegations were not proven,

10

APPX000034

. _ _ ,. .

08/20/2012 MON 12:11 PAX 933939878 HrGEHLAxD CO CLERK COURT 0011/014

which Appellee does not deny. He also argues that since several of the charges were not proven

or abandoned by Appe[lee that this should call into serious question the credibiiity of the

testimony as to the other charges. This is a specious argument. A party often sets f©rth claitns or

defenses in a legal proceeding that are later not pursued, The issues in this case are what was

proven and was that sufficient tp _justify the termination of the Appellee's contract under the law?

The referee made extensive findilzgs of fact in pages one through eight of her report. The

Court finds these findings to be supported by a preponderazce of substantial, reliable and

probative evidence. Appellant engaged in conduct that was totally unprofessional and designed

to try to force the Appellee to renew his contract. He suecessfully forced Gary Boatman, a board

member he felt was going to vote for termination of his contract off of the board after Appellee

talked with Roatman's supervisor at his place of employanen:t and stated that there could be

negative publicity that would be harmful to the employer. What this was is unclear but it was

likely a bluff that wor;ked.

Appellant tried the same tactic unsuccessfully with Board President Linda Allen's

employer. He tried to prevent Kim Adams from being appointed or being swvorn in before the

meeting of June 280' by suggesifng to Judge Greer that if he was not available to swear her in

before the meeting, it could be done at a later date. He was able to keep Sam Snyder from voting

and eventually terraporarlly off of the board by raising the issue of his declaration not being filed

before his appointmex►t to the board.

While he was correct regarding that issue, it is clear to the Court that the issue was not

raised because Appellee wanted to insure all things were being done correctly, but to try to keep

the board from voting to non-renew his contract. He was able to get Gary Boatman to resign, get

11

APPX000035

,,. _ _ . . ... ;.>' _08/20/2012 MOh 12:11 FAR 933939878 HIGHLAND CO CLERK COURT 00121014

Sam Snyder off temporarily, and tried to challenge the appointment of Karen Adams. All of

these efforts were clearly done with the goal of saving the Appellant's job.

Appellant's conduct towards other county officials was appalling. He tried to intimidate

the county commissioners by leaving a message that he did not want to have embarrassing

information about Nir. Snyder and a commissioner disclosed to the public. During the meeting

with Commisszoner Horst before the meeting on June 28'b, he claimed that he was following

advice from the Prosecuting Attorney regarding Sam Snyder by saying he was not eligible to

serve on the board, when in fact, she had not told him this. When, florst said they should call the

Prosecuting Attorney on the telephone, he ordered Horst out of his office and threatened to call

the police.

Appellant's conduct in this regard clearly violated the Codc of Ethics and Values which

provides that he was to deal horiestly with others including board members and to respect the

others' point of view and to be open to constructive discussion. His conduct in regard to the

Prosecuting Attorney, the County Commissioners and those board members he felt were not

going to supporti his reemployment was clearly designed to help him keep his job. It served no

constructive purpose. The Court would found based on the evidence that Appellant was

insubordinate in the way he dealt with board members Boatman and Allen by contacting their

employers.

Goin:g tltrough the list of charges set forth in the Notice of Charges (Biggert Ex. 21,

Board Ex. 17A) individually, the Court finds that a preponderance of substantial, reliable, and

probative evidenee in'ttte record supports a finding that they were proven while others were not

proven as follows:

12

APPX000036

__.. ... ,, : •. _ .,08/20/2012 MON 12:11 FAX 93393987$ HIGHLAY317 CO CLERK COURT 0013/019

F-

1. The Court finds that the allegation that the Appellant was dishonest in his statement

in the June 28`' public meeting when he stated that he was almost certain he had sent

the Prosecuting Attomey an email was proven. He talked with the Prosecuting

Attornev before tlut meeting and was clearly told he had not sent her one. Further, he

was dishonest in telling Commissioner Horst that Iie was foll.owing the Prosecutor's

legal advice regarding Sam Snyder when he had not been given any such, advice and

k.new that. Therefore, making that remark in the context of the conversations with

Ms. Collins and. Mr. Eiorst prior to the meeting was in the Court's view, a dishonest

statement, not a mistake of memory.

2. The Court finds the evidence supported the Referee's findings regarding the incident

with Kim Gilbert. It did not support the remainder of the allegations which is not

denied by the Appellee.

3. The Court finds the evidence proved this allegation in its entirety.

4. The Court finds the evidence proved this allegation in its entirety.

5. The Court fsn.ds there was no evidence offered regarding the allegations regarding

Mr. Wagoner or the sr,ate of O1aio Rehabilitation Servic:es employees. It did prove the

allegations regarding the incident with Mr. Morrison as to the text message that he

sent him, but not the remainder of the allegation regarding that incident.

6_ The Court finds that the evidence proved this allegation in its entirety.

7. The Court finds that the evidence did not prove this allegation.

8. The Court finds that the evidence did not prove this allegation.

9. The Court f.uids that the evidence did not prove this allegatiorL

10. The Court finds the evidence did prove this allegation in its entirety.

13

APPX000037

08/20/2012 MON 12:11 FAX 933939878 HIGHLAND CO CLERK COURT [Z014/014

11. The Court finds the evidence did prove this allegation in its entirety.

12. The Court finds that the evidence did not prove this allegation.

It is therefore the conclusion of the Court that the referee's report and recommendation,

and the subsequent adoption of said report by the Appellee and the terrnination of the Appellee's

contract was in compliance with R.C. 5126.23 and was for good cause for the reasons set forth in

the report and recommendation. Additionally, the Court finds the evidence would have

supported a fin.ding that Appellant was insubordinate which is also grounds for termination. All

claims of the Plaintiff regarding the termination of his contract set forth in his complaint are

therefore denied.

This is not yet a. final appealable order since the issue regarding the Plaintiff's claim

for unused vacation leave has not yet been adjudicated. The parties notified the Couirt that the

issue has been settled, The parties are ordered to file a notice of settlement and dismissal of that

claim by September 10, 2012. If such notice is not filed, the Court will disnxiss that claim

pursuant to Civil Rule 41(B). t3nco that claim has been disrnissed by the Plaintiff or by the

Courty the Court will file a final judgmerzt entry in this case adopting the decisions of tlie Court.

ENTER:

^ ^7 /̂f^/̀ ' •

; . l.. /L-

c .A: Coss, Judge

14

APPX000038

HIGHLAND Cq"I^^VNl^nPLEAS COURT

NOTICE OF FINAL APPEALABLE ORDER

TO: CHARLES BIGGERT JRHIGHLANI? CO BD OF DEVELOPi!%IENTAL DISABILITIES

CaraCN^ ^OjUDRT

NiGNiAND C;OUNTY, OHIO

SEP 13 20'2

HIGHlANO COUNIY CI_ERK OF COURTS

PLEASE TAI4E NOTICE THAT A.IUDGIVIENT ENTRY HAS BEEN FILED AND ENTERED'

UPON THE JOURNALS IN THE OFFICE OF TIiE CLERK OF COURTS, HIGHLAND

COUNTY, OHIO ON: SEPTEMBER 13,2012

IN CASE NUMBER: 4 2C'170O5S

CHARLES BIGGERT JR vs. t1IGHLAtdD COUNTY BOARD OF DEVELOPMENTAL DISABILITIE

COPY OF 7UDC'r:u1ENT ENTRY ATTACT44ED.

nWIGHT 0 HODSONCLERK OF COURTS

BY DEPUTY

CC: ATTY GLASGOW

ATTY LANDESATTY LILLARD

APPX000039

IN THE COURT OF COMMON PLEASHIGHLAND COUNTY, OHIO

CHARLES BIGGERT, JR. . CASE NO: 12 CV 0055

Plain.tiff-Appellant . FINAL JUDGMENT ENTRY

V.

HIC''aHILAND COUNTY BOARD OF . F I L E DDEVELOPMENTAL DISABILITIES coM MON PLEAS CfOURT

HiGHLANp C:OLtNTY, OHIO

Defend.ant-Appellee ^E"" 13 2062

HGHLAND COUNTY CLERK OF COURTS

The Plaintiff-Appellant filed his complaint on February 10, 2012 which set forkh. three

claims for relief as follows: (1) appeal of his dismissal as superintendent of the Defendant-

Appellee pursuant to R.C. 5126.23(Cr), (2) breach of contract for terminating him without just

cause, and (3) alleging that actions of the Defendant-Appellee were void due to ineligibility of

board xnembers,

The Court issued a decision filed on June 13, 2012 ruling that there was no reason to

conduct an additional evidentiary hearing on the appeal claim, and that count three did not

constitute a valid claim because even if the members were not legally eligible, they were de facto

public officers at the time of the alleged acts and were therefore entitled to vote usitil they were

found.not to be eligible as a matter of law.

The Court also determined that the appeal was a matter of law to be determined by the

Court and that the breach of contract claini which sought recovery of accumulated unused paid

leave would be tried by a jury. 'T'he Court ordered a briefing schedule on the appeal claim.

On August 20, 2012, the Court filed its decision affirming the terniination of the Plaintiff-

Appellant's contract as superintendent and denying his appeal. The parties submitted evidence

APPX000040

of the settlement of the claim for accumulated unused paid leave on September 10, 2012 which

resolves all of the claims set forth in the complaint.

The Court hereby incorporates by reference its decisions filed on June 13, 2012 and

August 20, 2012 as part of this judgment entry. For the reasons set forth in those two decisions,

judgment is hereby rendered in favor of Defezadant-Appellee and against Plaintiff-Appellant on

the first and third claims in the complaint. The Defendant-Appellee's termination of the

Plaintiff-Appellant's contract as superintendent is hereby affir.nted and his appeal is denied. The

Court dismisses the third claim as it failed to state a claim and is not a basis for relief. The

Plaintiff-Appellant has dismissed his claim as to the breach of contract in the second claim.

Therefore, it is ordered and adjudged that the Plaintiff-Appellant's appeal of his

termination as superintendent is hereby denied, said termination is affirmed and judgment is

entered in favor of Defendant-Appellant and against the Plaintiff-Appellant on the first and third

claims in the complaint. Plaintiff-Appellant is ordered to pay the costs of this action within

thirty days of the filing of this entry. Failure to do so may result in the Court issuing a citation

for contempt of court.

The Court finds that there is no just cause for delay and that this is a final appealable

order. The Clerk of Courts shall deliver a copy of this final judgment entry to all parties and

counsel of record as provided by law.

IT IS SO ORDERED.

E1rTTER:

Rocky A. Coss, Judge

IT IS SO ORDERED.

APPXQ00041

ENTF^

Itocky' a Coss, 1 dge

APPX000042

HIGHLAND COUNTY BOARD OF DEVELOPMENTAL DISABILITIES

In The Matter Of The Termination Of:Charles Biggert Jr.

Referee:MONICA R. BOHLEN

REFEREE'S REPORT AND RECOMMENDATIOt

1. PROCEDURAL IiISTORYc

On September 29, 2011, the Higttland County Board of Developmental Disabilities(Board) passed a resolution to consider the termination of its Superintendent Charles Biggert Jr.(Mr. Biggert). Board Exhibit 17. The Board scheduled a pre-discipliszary conference for October3, 2011 and notified Mr. Biggert more then 72 hours prior to the conference by a call from Boardcounsel, by email and by overaiight mail. Mr. Biggert was at his home near Toledo at the time ofreceiving this notice. Mr. Biggert did not attend the pre-disciplinary conference. On. October 3,2011, the Board resolved to terininate Mr. Biggert. Board Exhibit I S.

On October 13, 2011, Mr. Biggert requested a hearing before a referee to challenge thetermination decision. Appellant Exhibit 13. Subsequently, Mr. Biggert requested from the OhioSuperintendent of Public Instruction (OSPI) a list of referees to consider the hearing requested byMr. Biggert and the Superintendent submitted to the Board a list of three potential referees. TheBoard and Biggert agreed on the undersigned as the referee and said referee was appointed by theOSPI on October 25, 2011.

A hearing was originally scheduled for November 17, 2011 but was continued toDecember 8, 2011 at the joint request of the parties. Testimony was taken on December 8, 2011.Both parties submitted written closing arguments on Decexnn6er 12, 2011 and the Boardsubmitted its reply on. December 13, 2011.

II. FINDINGS OF FACT:

Testifying at the hearing were Anneka Collins, the Highland County prosecutor, DebbySansone, clerk of the county commissioners, Tom Horst, a county commissioner, Linda Allen,President of the Board, Kim Gilbert, a case manager, Tamrn.y Hidy, a case manager, TheresaSmith, the executive secretary, Charles Etnery, chairman of the SATH Board, Becky Pollard, theprogram nurse, Bryan Miller, the assistant superuatendent/business rnana^ger,Mr. Biggert and Mr.Reichert, the employment manager with the Ohio Rehabilitative Services Commission.

Mr. Biggert has been the superintendent of the Board, located in Highland County, sinceJanuary 1, 2009, serving under a three year contract, ending on December 31, 2011. Appellant

APPX000043

Exhibit 3. Prior to January 1, 2009, Biggert served as Interim superintendent for approximatelysix months.

Mr. Biggert has a Masters in Education Technology with an emphasis in HumanResources Development and training. Appellant Exliibit 2. Prior to his hire by the Board, he wasmost recently employed as the Superintendent of the Witliams County Board of DD.

Mr. Biggert's job duties were to serve as the chief executive officer for the Board for theadministration of the school, adult training center, and other program components. Board Exhibit8. In addition, he was to serve as Project Director of the Help Me Grow Project (HlMG), agovemmental project separate from the county board.

A.fter his hire, Mr. Biggert and his spouse bought a home in lIi.ghland County, but theydid not give up their permanent residence near Toledo and his spouse did not move to FlighllandCounty. Board Exhibit 12. Mr, Biggert traveled back and forth between his homes during histenure.

The pertinent events leading up to this proceeding occurred primarily in 2011. It wasundisputed that prior to 2011, Biggert had accomplished much improvement to the financialsituation of the Board, including achieving a 5-year accreditation with the state. To accomplishthis he had made some tough decisions about cut-backs, pay-cuts and job layoffs. Early in histenure, he entered into an agreement with employees that there would be an across the board paycut of 5% to avoid additional layoffs.

His evaluations over the past two and a half years showed he received mostly "good,competent" to "highly effective" performance evaluations. Appellant Exhibits 5, 6, and 7.Evaluations were completed at the end of each year or beginning of the following year. His lastevaluation was in November 201 Q. Appellant Exhibit 7. His highest evaluation was in 2009. Hislowest ratings were in the categories of "personnel development & relationships" and"community-agency relationships." Appellant Exhibits 5, 6, and 7. He was repeatedly advised bythe Board to improve in those areas. Instead his performance trended downward in those areas.

In 2011, W. Biggert's conduct deteriorated.

Biggert's Contract

Mr. Biggert's employment with the Board was governed by an eight page contract.Appellant Exhibit 3. Paragraph XV of the contract addressed "Contract Ternaination; Discipline"and spelled out the tbree alternative ways that the contract may be terminated: 1. Mutualagreement of the parties, 2. Reti.rement, disability, or death of the Superintendent; or 3.Terizunationby the Board for cause in accordance with §5126.23. In Paragraph XVIII, under"Notices" it was stated that any notice required to be given under the contract was to be inwriting and shall be "personally delivered or when mailed by first class mail, registered or

2

APPX000044

certified, return receipt requested....... addressed to the parties at their respective addresses setforth at the end of this contract." The contract was signed by Mr. Biggert but contained noaddress.

Another document relied on by the board in support of the termination was a documententitled "Code ofJEthics and Values" and it, too, was signed by Mr, Biggert at the time of hishire. Board Exhibit 9. This doctunent identifies the core values of the Board to guide the actionsof staff and board members - respect for each other, conciliation, honesty and trust. Thisdocument including various codes of ethics, including those for treatment of persons receivingservices, staff members, Board members, and treatmennt of community members. Manyprovisions are gerrnane to these proceedings.

Violations of Board Directives

An incident occurred in April, 2011. Mr. Biggert had approached the Board presidentabout his desire to terminate his administrative assistant, Ms. Morrison, who had been employedfor 30 years, quit, then had been re-hired to train his new administrative assistant. Because of thisemployee's long tenure at Hills and Dales, the Board president had given him advice on thisissue, cautioning him from ternmlinating the employee. The matter came to a head on April 20,2011 at the Board meeting, The Board advised Biggert to develop a plan for essentially creating asoft landing for her and to work with her on the terms of her retirement, specifically instructinghirn not to fire the employee before the next Board meeting (the May meeting). Neverthelless,lVtr.Biggert fired her the next day.

Bullying - Intimidation

Mr. Biggert had a reputation with many serving under him and in the community of beinga bully and dictator and managing by intimidation. In late 2010 and 2011, there were a number ofincidents of bullying or xn,timidation by Mr. Biggert.

The main center of Board activities was the Hills and Dales Training Center. InSeptember, 2010, Mr. Biggert had proposed to a case manager that she explore moving one ofher clients from one placement to another with another client as that would save the Board fi►nds.The case manager was upset because she had found a wonderful home for this client severalmon.ths earlier that Mr. Biggert had approved. The client was happy there and she did not want tomove. The case manager tried to convince Mr. Biggert to consider other options. She thencontacted the client's legal representative before taking the action Mr. Biggert wanted her to take.Several days later, Mr. Biggert came into her office and when he learned of what action she hadtaken he became red in the face, was angry, and stormed out of her office. The case manager andanother case manager in the office felt that he was so angry he was about to hit her. Mr. Biggertpromptly e-mailed her and threatened her with a proposed three day suspension without pay perthe disciplirnary policy. Board Exhibits 19,22. Although the Notice of Charges erroneouslycharacterized this incident as a removal of a child from the Help Me Grow Program, W. Biggert

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had no misunderstanding about the nature of the incident with Ms. Gilbert.

Other staff members reported feeling that Mr.Biggert was a"dictatoz" and "bully", that itused to be a happy place to work, but now people just tried to avoid the Superintendent. Staffdreaded seeing Mr. Biggert's car in the parking lot. He treated suggestions of staff at meetingswith disdain. Mr. Biggert's own administrative assistant described his management style as "youbetter do it if he told you to do something," and he was frequently "heated and loud."

The program nurse, a 16 year employee, had several run-ins with Mr. Biggert, whodisallowed her custom of working flex hours so she could fit in her second job as a teacher,causing her to have to give up her teaching job. He cautioned her strongly to choose her wordscarefully when she turned down an offered teaching position. Feeling that Mr. Biggert wassomewhat hypocritical about attendance, in early 2011 she decided to check his attendance andkeep notes on her desk calendar of days that Mr. Biggert was not at work. Later, she providedthat information to Mr. Miller, the assistant superintendentfbusirtess manager, who sought anexplanation from Mr. Biggert about how to characterize his absences on those days. BoardExhibit 40.

Mr. Biggert's management style affected client services in other ways. He discouragedthe practice of providers picking up clients at workshops for leisure activities (that clientsenjoyed) because it affected the county reimbursement of transportation services to the Board(better for the Superintendent's bottom line).

Before the April, 2011 Board meeting, members of Biggert's staff had arranged a secretmeeting with some Board members to report that they believed Biggert's conduct wasunprofessional, intzmidating, and led to diminished staff morale. The Board cautioned Biggert to►mprove his behavior that was impairing the efficiency of the organizatiort.

Subsequent to the firing of Ms. Morrison, at the May 20, 2011 Board meeting, one of theBoard members, Mr. Snyder, brought up an article that had appeared in The Highland CountyPress entitled "Harassment Report Filed on Board of DD Superintendent." Board Exhibit 11.This article coxACerned a disagreement which had occurred between Mr. Biggert and Ms.Morrison's spouse at a golf course. Mr. Morrison was unhappy with W. Biggert's action infring his spouse and confronted him ip the parking lot, using profanity. Hours later, aftermidnight, Mr. Biggert had sent a text to the husband stating "You will receive what you deserve.It is uncalled for but your choice. We are Friends! We need to Talk!! Please." W. Morrison fileda report with the Police Department against Mr, Biggert. Biggert's explanation that he did notintend the first line of the text as a threat was not credible.

Mr. Biggert sent a rambling email to the Board on May 25, 2011 in which he respondedto the allegations that were being made about him. In that email he admitted to threateningemployees with disciplinary action if they disagreed with his actions or spread rumors about him.

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On August 10, 2011, Mr. Biggert called the county commissioner's office and spoke tothe clerk, Debby Sansone. Mr. Biggert told her to teld the commissioners he wanted them toappoint a tzew board member to replace Mr. Snyder before the August 16,2011 Board meetingbecause Sam "doesn't fit on the Board" as it would be better to have someone with a financialbackground. Further, Mr. Biggert threatened public disclosure of embarrassing information abouta commissioner and Mr. Snyder. The clerk took notes on her message pad and orallycommunicated the contents of Mr. Biggert's statements immediately to the commissioners. Thecommissioners viewed his message as a threat. As a result of this communication, the countycommissioners stated they would not tolerate such "strong-arm tactics" and stated they would nolonger communicate with Mr. Biggert. Board Exhibit I.

Throughout 201 I, Mr. Biggert was on good terms with the Board President, Linda Allen.Ms. Allen and all Board members serve as volunteers. That relationship soured in the summer of2011 based on his perception that he was losing her support. Mr. Biggert told Ms. Allen that ifshe did not make the right choices on the Board, he would go to her employer, SATH (theSupplemental Assistance to the Handicapped program), After the Board's vote to reassign Mr.Biggert, Mr. Biggert called Charles Emery, the chairman of the SATH Board, to report that shewas overstepping her boundaries on the HCBDD and he thought he needed to know that. BoardExhibit 39.

Mr. Biggert at a staff meeting cautioned staff against voicing complaints to the Board,even complaints about him. Because staff:feared him based on his management style this was anattempt to curtail complaints about him to Board members in violation to the Board's Code ofEthxes.

Vencl.etta

Mr. Biggert was concerned that he may be in jeopardy of not having his contract renewedby the Board. Mr. Biggert also confided in Mr. Miller that he believed Mr. Boatman and Mr.Snyder were "against him," he "did not want them on the Board," and he would seek to "removethem from the Board." Mr. Biggert also expressed his coneern about a newly appointed Boardmember, Karen Adams, who may be "against hizn" and that he would try to find a way to keepher off the Board.

Mr. Biggert contacted Mr. Boatman's employer and threatened to take information publicthat would shed a negative light on the employer if Mr. Boatman did not resign from the Board.Mr. Boatman resigned within a matter of days.

On May 25, 2011, in his long e-mail to the Board, Mr. Biggert requested that the Boardconsider a five year renewal of his contract. In the email, he expressed his belief that the Boardmembers, Mar. Boatman and Mr. Snyder, and a county commissioner, Mr. Horst, had a personalvendetta against him. Board Exhibit 12. Further, he stated that he was going to take affirmativeaction to remove Mr< Boatman and Mr. Snyder from the Board and he described action he had

APPX000047

already taken against Mr. Boatman. W. Biggert was concerned that these Board members wouldnot support him in I1is bid for axenewal of his contract.

Next, Mr. Biggert focused on preventing Ms. Adams from serving on the Board. Mr.Biggert raised a question about her residency. She had been a long-time resident of anothercounty, but had purchased a home in Highland County. On June 27, 2011, the day before theBoard meeting, W. Biggert spoke to Ms. Collins, the county prosecutor, to request an opinionabout Ms. Adams' residency and an opinion about who could administer the Oath of Office to aBoard member. Ms. Collins agreed to research that issue.

Mr. Biggert then sent an email to Judge Greer, who had appointed Ms. Adams,suggesting, in his experience, the appointing Judge was the appropriate person to administer theOath, that there was no tirne for Nis. Coliins to research that issue and invited him to administerthe Oath on the following day. He further advised Judge Greer that if that was not convenient hecould administer it at the July board meeting. Board Exhibit 37. Later in the day, Ms. Collinsresponded that there was no residency issue with Ms. Adarns and that either a Judge or a notarypublic could administer the Oath. Board Exhibit 7. If Ms. Adams was not sworn in at the JuneBoard meeting she would not have been eligible to vote on Mr. Biggert's renewal. Mr. Biggert'semail to Judge Greer was an attempt to delay the swearing in of Ms. Adams.

Around the same time, Mr. Biggert also focused on removing Mr. Snyder from the Board.Sam Snyder was appointed to the Board and began serving in January, 2011. Appellant Exhibit25. Mr. Snyder was a former school teacher, principal and administrator and was well-known andrespected in the area. Throughout his early term on the Board, W. Snyder questioned Mr.Biggert about topics duruzg Board meetings and, as noted above, brought the newspaper articleabout him to the attention of the Board. Mr. Biggert's contract renewal was to be voted on at theJune 28, 2011 Board meeting. Mr. Biggert discovered that Mr. Snyder had not signed theDisclosure Statement required by state law prior to being swom in. It was not disputed that Mr.Snyder had signed the Disclosure Statement in March, 2011. Appellant Exhibit 14.

Mr. Biggert and Ms. Allen sought an opinion from the Ohio Association of CountyBoards of Developmental Disabilities and the Association agreed with his interpretation that Mr.Snyder's appointment was void. Appellant Exhibit 14. Mr. Biggert considered no other optionsas to how to resolve the issue, such as swearing him in anew. Instead he contended that Mr.Snyder had to wait a year before he could serve, showing his motivation to remove him from theBoard prior to his contract renewal being voted on.

A couple of hours before the June 2$1 Board meeting, Mr, Biggert notified Mr. Snyderabout the issue and advised him he could not vote at the Board meeting. W. Snyder inun.ediatelycalled Tom Horst, a Highland County commissioner to report this and Mr. Horst advised Mr.Snyder to attend the meeting and he would accompany him. Mr. Horst then contacted Ms.Collins to inquire about this. Ms. Collins advised Mr. Horst that Mr. Snyder could lawfully serveon the Board if he submitted the proper paperwork. (Ms. Collins was not made aware that Mr.

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Snyder had taken care of this in March).

W. Horst went directly to Mr. Biggert's office before the Board meeting to discuss thematter with him. Mr. Biggert told W. Horst that he had contacted Ms. Collins and that she hadsupported his position. Mr. Horst told Mr. Biggert that he had just spoken to her and she did notsay that. When Mr. Horst suggested they contact Ms. Collins right then and there, Mr. Biggertbecame very agitated and belligerent and told Mr. Horst to "get out of his office." This incidentwas witnessed by W. Biggert's secretary in the outer office.

Mr. Biggert then called 1Vls. Collins to discuss the issue and told her he had sent her anemail about the issue about Mr. Snyder. Ms. Collins informed him that she had received no suchemail. At the Board meeting on June 281h, Mr. Horst confronted Mr. Biggert about why he raisedthe issue about Mr. Snyder's eligibility to serve shortly before this Board meeting when he hadserved since January, 2011. Mr. Horst further asked if Mr. Biggert had contacted Ms. Collins foran opinion on the issue of Mr. Snyder.lVlr. Biggert responded that he was "almost certain" thathe had sent Ms. Collins an email requesting an opinion. The Board unanimously voted not torenew Mr. Biggert's contract after it expired. Board Exhibit 14.

Dishonestv

Ms. Collins became upset when she read the account of her actions in the HighlandCounty Press that contained statements by Mr. Biggert about his interaction with her that wereuntrue. Mr. Biggert told the press that he was "almost certain" that he had sent Ms. Collins anemail. He admitted later that he had not as it was still in his email "draft" folder. Standing alone,this might not have been an untrue statement, but in the context of what transpired earlier thatday around this incident (that he told commissioner Horst that he had actually obtained anopinion from her supporting his position about Mr. Snyder) and c.onsidering his motivation toconvince the Board and the public that he was correct about Mr. Snyder's inability to serve, itwas a false and misleading statement about a matter of consequence. A series of emails ensuedbetween Ms. Collins and Mr. Biggert, culminating in an email to Ms. Allen stating that shewould only conununicate about Board issues with her rather than Mr. Biggert as she did "nottrust him." Board Exhibit 3; Appellant Exhibit 15.

Mr. Biggert was dishonest when he falsely reported that he was attending out-of-officemeetings during work hours. Mr. Biggert subrxzitted mileage reimbursement requests to Mr.Miller for two meetings that he did not attend. Board Exhibits 30, 31, 33 and 34. On September21, 2011, while on reassignment from his regular job duties, Mr. Biggert attempted to change therules on seeking mileage reimbursements to extend the time, which benefitted hian.

Mr. Biggert kept his own calendar and did not allow his secretary to keep his calendar. Hedid not inform her of his whereabouts on days that he was not at the office, only that he wouldnot be at work on given days. Mr. Biggert violated the Board attendance rules by concealing hiswhereabouts and he was secretive and not accountable to anyone for his attendance. Board

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Exhibit 10.

Mr. Biggert's management style lacked integrity. He was perceived by staff as not beingtrustworthy, not treating staff fairly, using his position for his own advancement. His lack oftrustworthiness affected the health of the organization.

Reassignment

Based on the above events leading up to August 23', the Board passed a resolutioninstructing Mr. Biggert to vacate his office and work only on projects as specifically assigned tohim by Ms. Allen. Board Exhibit 13. On August 3&, Ms. Allen gave Mr. Biggert a laptop, alongwith a draft Personnel Policy Masaual, instriacting him to adopt the manual to the Board'srequirements and submit a written deliverable pursuant to a schedule attached. Board Exhibit 16.The first submittal was due September 301. Ma. Biggert did not submit any written work inresponse to the assignnnent, although he was paid for the month of September.

Termination

During the reassignment period the Board continued to investigate Mr. Biggert's conduct.Ms. Allen spent time at Hills and Dales, interviewing employees. She interviewed manyemployees and the result of the investigation was the Notice of Charges against Mr. Biggert.Board Exhibit 17. Upon receiving the notice of the pre-disciplinary conference, Mr. Biggertadvised Board counsel that he could not attend because he had a previously scheduled birthdayparty for his grandchild, but that he could attend any other time that week. The Board did notgrant Mr. Biggert's request and proceeded to conduct the pre-disciplinary conference on October3, 2011 in Mx. Biggert's absence. According to the resolution, the Board believed that Mr.Biggert's conduct constituted grounds for termination under §5126.23 and warranted terminationwithout pay, effective iniaanediately.

On October 5, 2011, Ms. Allen notified of his termination and requested the return of allBoard property, including the laptop computer, and all records and other Board property. W.Biggert returned the Board property and subsequently submitted a bill for rnileage reimbursem.entfor the trip from his home in Genoa, Ohio to Hitls and Dales (428 miles round trip). BoardExhibit 35.

Mr. Biggert was not credible in his response to the allegations. There was much testimonyabout his dishonesty both involving the above allegations and on other matters that weretangential to these proceedings.

IV. BZGGERT'S POSITION:

Mr. Biggert contends initially that the termination was invalid because of two reasons: 1.The notice regarding his termination and pre-disciplinary conference was not sent to him

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according to the terms of his contract, and 2. The Board proceeded with the conference after henotified Board counsel that he was unavailable. Further, Mr. Biggert contends that the Board didnot prove that the termination was for "just cause" as defined by §5126.23, claiming that it failedto put on any evidence of certain of the allegations of the Notice of Charges and the Board faitedto carry its burden on the remaining allegations. Mr. Biggert argues that he should not beterminated because of his good perforrnance reviews and what he accomplished financially.Further, Mr. Biggert argues that the decision must be based solely on grounds alleged in theNotice of Charges and not other allegations.

V. BOARD'S POSITION:

The Board contends that the conduct of Mr. Biggert warranted termination, even if allallegations in the Notice of Charges were not proven because the allegations that were provenwere sufficient to support the termination. The Board concedes that it failed to prove allallegations in the Notice of Charges, specifically Items 2 (the second and third bullets), 3(thefirst and third bullets), 9 and 12, but that all other allegations were proven. As to Ntr. Biggert'scontention that the termination was invalid because of defects in the notice requirements and theBoard's proceeding with the pre-disciplinary conference without him, the Board contends thatMr. Biggert had actual notice of the conference more than 72 hours before the conference andthat he chose not to attend. The Board argues that its failure to serve him according to the noticerequirement in the contract is not dispositive because the contract requirements are just to ensurethat the Superintendent does get notice and he did.

VI. CONCLUSIONS OF LAW:

Termination of superintendent contracts are govetned by §5125.23 (B). According to§5126.23(B), a superintendent of a county board of developmental disabilities may be removed,suspended, or demoted in accordance with this section for violation of wrritten rules set forth bythe board or for incompetency, inefficiency, dishonesty, drunkenness, immoral conduct,insubordination, discourteous treatrnent of the public, neglect of duty, or other acts ofmisfeasance, malfeasance, or nonfeasance.

§5126.23(I3) also outlines the procedural requirementsincluding that the board shallfurnish the superintendent in writing of the charges against the employee. Not later then 30 daysafter receiving such notification, a pre-disciplinary conference shall be held to provide theemployee an opportunity to refute the charges against the employee. At least 72 hours prior to theconference, the employee shall be given a copy of the charges against the employee. The pre-disciplinary conference shall be held by the members of the Board and the Board shall notify thesuperintendent within 15 days after the conference of its decision with respect to the charg;es.

The Board complied with the requirements of the statute. Mr. Biggert received actualnotice in a timely fashion, he chose to attend his grandson's birthday party instead of the pre-disciplinary conference to ref-ute the charges, and the Board conducted the hearing in his absence.

APPX000051

The superintendent may demand a hearing before the board or before a referee and in thiscase Mr. Biggert chose a hearing before a referee. The hearing was conducted by a referee agreedupon pursuant to §5126.23(B).

The Board's adoption of a code of ethics and values consiitates written rul.es set forth bythe Board under §5126.23(B) and violation of those rules ca.n be grounds for disrnissal ofemployees, including the Superintendent.

The decision to terminate a superintendent's contract is comprised of two parts: (1) Thefactual basis for the allegations giving rise to the allegation; and (2) Judgment as to whether thefacts, as faund, constitute a violation of the statutory grounds.

The grounds for termination contained in the notice to Mr. Biggert, excluding theallegations that the Board concedes were not proven, were all established by reliable, probativeand substantial evidence and this conduct constitutes violation of the written rules set forth bythe Board and constitutes dishonesty, insubordination, discourteous treatment of the public,neglect of duty, and other acts of misfeasance and malfeasance.

The allegations involving Mr. Biggert's interactions with the prosecuting attorney, hissubmission of false mileage requests and his lack of accountability for his attendance constituteddishonesty.

The extensive bullying-intimidation conduct of Mr. Biggert referenced in the Notice ofCharges constituted a violation of the written rules set forth by the Board, as stated in its Code ofEthics, and constituted discourteous treatment of the public, and acts of misfeasance andmalfeasance.

The conduct that resulted from Mr. Biggert's perception that certain Board members hada vendetta against him constituted a violation of the written rules set forth by the Board,discourteous treatment of the public, and acts of rnisfeasance and malfeasance.

The Board was warranted in terminating Mr. Biggert's employment.

Mr. Biggert's conduct that formed the basis of his termination was not a single isolatedincident, but rather was a course of conduct over months during 2011. W. Biggert's persistencein his course of conduct, even after the decision to reassign him for the balance of his contractyear, propelled this into a termination, instead of the reassignment for the rest of his terin. Hepersisted in this conduct. Although many of these incidents would have been enough bythemselves to warrant a termination, the cumulative effect of all of them solidified the decisionof the Board to terminate him.

VI1[. RECOMMENDATION

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Based on the foregoing findings of fact and conclusions of law, the Board was warrantedin terminating Superintendent Biggert.

2^t^^1`. ' &2L -Monica. R. Bohlen 0017983Referee2020 URS Center36 East Seventh StreetCincinnati, Ohio 45202(513) 621-9660

December 16, 2011Date

CERTIFICATE OF SERVICE

I hereby certify that on this the 161 day of December, 2011, the Referee's Report hasbeen served upon the Highland County Board of Developmental Disabilities, ATTN: LindaAllen, 8915 U.S. Route 50 East, Hillsboro, OH 45133, and a true copy has been served uponJames J. Hughes III, Bricker and Eckler, 100 South Third Street, Columbus, OH 43215-4291,Samuel Lillard, McNees Wallace & NuriciG LLC, Fifth Third Center, 21 East State Street, Suite1700, Columbus, OH 43215, at their ezxtail addresses.

Monica R. Bohlen 0017983

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