[Cite as State v. Fox,
2016-Ohio-2745.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
ERIE COUNTY
State of Ohio Court of Appeals No. E-15-033
Appellant Trial Court No. 2015-CR-0120
v.
Frederick Fox DECISION AND JUDGMENT
Appellee Decided: April 29, 2016
…
Mike DeWine, Ohio Attorney General, and Micah R. Ault,
Assistant Attorney General, for appellant.
James L. Murray, for appellee.
…
OSOWIK, J.
{¶ 1} This is an appeal from a May 6, 2015 judgment of the Erie County Court of
Common Pleas, granting appellee’s motion to dismiss based upon the failure to file prior
to the expiration of the governing statute of limitations. For the reasons set forth below,
this court affirms the judgment of the trial court.
{¶ 2} On March 11, 2015, appellant, the state of Ohio, indicted appellee, Frederick
Fox, the former school superintendent of the city of Huron school district, alleging that
appellee unlawfully failed to disclose gifts valued at $1,007.32 in 2011, while appellee
was a public servant in his capacity as a public school superintendent.
{¶ 3} All parties concur that the key issue underlying this case is the date upon
which appellee ceased being a public servant so as to commence the governing two-year
statute of limitations established by R.C. 2901.13(C)(1)(a).
{¶ 4} Appellant sets forth the following sole assignment of error:
The trial court erred by granting Fox’s Motion to Dismiss for failure
to bring an action within the Applicable Statute of Limitations because Fox
did not cease to be a public servant on the date of his suspension on
September 6, 2012, but rather remained a public servant until the date of his
termination on April 2, 2013.
{¶ 5} The following undisputed facts are relevant to this appeal. In July 2001,
appellee initially began employment as the superintendent of the city of Huron school
district. Appellee subsequently continued serving as superintendent until 2012 via a
series of successive contracts with the board of education.
{¶ 6} On June 6, 2012, a member of the board of education submitted a report
alleging various acts of misconduct by appellee during 2010-2011. The multiple
allegations pertain to claims such as alleged financial improprieties in connection to a
2010 golfing trip to Wisconsin, alleged financial improprieties in connection to a 2011
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Arizona trip, and allegedly conveying false insinuations of an improper relationship with
a school district employee.
{¶ 7} On June 19, 2012, appellee was suspended without pay pending an
investigation into the above-described claims. However, on June 25, 2012, appellee’s
initial suspension was rescinded.
{¶ 8} On September 6, 2012, appellee was again suspended without pay from the
school superintendent position. September 6, 2012, was the final day appellee performed
any services as school superintendent. After September 6, 2012, appellee was banned
from being present on school grounds and was required to return his office keys and all
school property.
{¶ 9} The record further reflects that September 6, 2012, was the final day
appellee received a salary as school superintendent. After September 6, 2012, appellee’s
school district furnished life insurance policy, medical insurance, prescription drug
insurance, dental insurance, and vision insurance were all canceled. Consistent with
these actions, on September 6, 2012, the school district contributions to appellee’s state
retirement fund ceased. The school board resolution memorializing appellee’s
September 6, 2012 cessation of employment as school superintendent occurred on
April 2, 2013.
{¶ 10} On March 11, 2015, appellee was indicted on one count of filing a false
statement as a public official, in violation of R.C. 102.02(D), and one count of making a
false statement as a public official, in violation of R.C. 2921.13(A)(7). Both counts were
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based upon appellee’s alleged failure to disclose gifts in 2011 while a public servant
valued at $1,007.32.
{¶ 11} On April 10, 2015, appellee filed a motion to dismiss based upon the cases
being filed after the governing R.C. 2901.13(C)(1)(a) two-year statute of limitations
expired. On April 29, 2015, an evidentiary hearing was held on the motion to dismiss.
Witness testimony was taken by appellee and the school board president. In addition,
various related written exhibits were admitted into evidence.
{¶ 12} Appellee asserted that his employment as a public servant ceased on
September 6, 2012, thereby commencing the statute of limitations on that date.
Conversely, appellant asserted that appellee’s employment continued until April 2, 2013,
the date of the subsequent board resolution memorializing the September 6, 2012
conclusion of appellee’s employment as school superintendent.
{¶ 13} On May 6, 2015, the trial court granted appellee’s motion to dismiss. The
trial court determined in relevant part:
[T]he proper analysis is when Defendant no longer performed his duties as
a public servant … [T]his Court determines that for purposes of
interpretation of the criminal statute of limitations R.C. 2901.13(C)(1)(a)
this court finds that Defendant was separated from his duties as a public
servant on September 6, 2012, the date of his final suspension. Defendant
was not compensated after September 6, 2012 and did not accumulate sick
or vacation time. Further, defendant received payment of his earned and
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unused sick and vacation time on September 7, 2012. Defendant’s
employment contract with the Huron City School District references the
Administrative Fringe Benefits originally approved December 19, 2005 and
modified June 19, 2007. Section Three of the Administrative Fringe
Benefits document states “any unused vacation days shall be paid to the
administrator at the time of separation”. (Emphasis added).
{¶ 14} Following the trial court granting appellee’s motion to dismiss, this appeal
ensued.
{¶ 15} In the sole assignment of error, appellant asserts that the trial court erred in
granting the motion to dismiss. In support, appellant reiterates the position that
appellee’s employment as a public servant for purposes of the R.C. 2901.13(C)(1)(a)
statute of limitations did not cease until April 2, 2013, so as to render the indictment
timely filed. We do not concur.
{¶ 16} We note at the outset that the resolution of this matter is fundamentally
statutory in nature and entails application of the underlying facts to the governing
statutes.
{¶ 17} R.C. 2921.01(A) defines a public official as, “[A]ny elected or appointed
officer, or employee, or agent of the state or any political subdivision, whether in a
temporary or permanent capacity.” In conjunction with this, R.C. 2921.01(B)(1)(a)
defines a public servant as, “Any public official.”
5.
{¶ 18} R.C. 2901.13(C)(1)(a) is the controlling statute of limitations for filing
criminal actions against public servants. It defines the applicable period of limitation as,
“For an offense involving misconduct in office by a public servant, at any time while the
accused remains a public servant, or within two years thereafter.”
{¶ 19} Lastly, the statutory construction mandate of R.C. 2901.04(A) requires that,
“[S]ections of the Revised Code defining offenses or penalties shall be strictly construed
against the state, and liberally construed in favor of the accused.”
{¶ 20} Given the governing statutory framework outlined above, we concur with
the trial court conclusion that the key issue in this case is, “[W]hen Defendant Frederick
Fox ceased to be a public servant,” for purposes of R.C. 2901.13(C)(1)(a) statute of
limitations considerations.
{¶ 21} In support of its position, appellant argues that the trial court should have
interpreted R.C. 2901.13 pursuant to R.C. 2901.04(B), rather than R.C. 2901.04(A). R.C.
2901.04(B) provides in relevant part that, “[S]ections of the Revised Code providing for
criminal procedure shall be construed so as to affect the fair, impartial, speedy, and short
administration of justice.”
{¶ 22} We find that even if, assuming arguendo, R.C. 2901.04(B) applies rather
than R.C. 2901.04(A), appellant nevertheless has failed to demonstrate how the granting
of the motion to dismiss in this matter was in breach of R.C. 2901.04(B). While
appellant unilaterally concludes that a, “[S]tandard more favorable to Fox was
significantly detrimental to the state of Ohio,” the fact that the outcome was adverse to
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appellant’s position does not demonstrate that it was therefore in breach of a controlling
statute.
{¶ 23} Returning to our review of the statutory analysis undertaken by the trial
court in support of its judgment, we note that the record encompasses overwhelming
evidence demonstrating that appellee’s tenure as a public servant ceased on September 6,
2012.
{¶ 24} A series of decisive and all-encompassing actions were taken by appellee’s
employer culminating in appellee no longer being obligated to perform any duties or
obligations of any kind in connection to the former superintendent position. Appellee
received no further salary or benefits of any kind, appellee was barred from the premises,
appellee’s residual leave balances were cashed out and furnished to him, thereby meeting
the handbook definition of separation from employment, appellee was obligated to return
all property belonging to the school district and all keys that had enabled access by
appellee, and a deputy superintendent thereafter occupied appellee’s former office and
performed appellee’s former job duties and obligations.
{¶ 25} In light of these facts and circumstances, we find that the record reflects
that the only tenable interpretation of the events of September 6, 2012, is that appellee’s
period of service as a public servant ceased on that date for purposes of R.C.
2901.13(C)(1)(a) statute of limitations calculations applicable to any subsequent
allegations of wrongdoing by appellee during his tenure as a public servant.
7.
{¶ 26} Accordingly, we find that the two-year statute of limitations governing this
matter commenced on September 6, 2012. Thus, the March 11, 2015 indictment was
filed approximately seven months after the expiration of the controlling statute of
limitations. Appellee’s motion to dismiss, based upon statute of limitations grounds, was
properly granted by the trial court. Appellant’s assignment of error is found not well-
taken.
{¶ 27} On consideration whereof, the judgment of the Erie County Court of
Common Pleas is hereby affirmed. Appellant is ordered to pay the costs of this appeal
pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Arlene Singer, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
James D. Jensen, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.sconet.state.oh.us/rod/newpdf/?source=6.
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