[Cite as Smith v. Nelsonville,
2023-Ohio-2844.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ATHENS COUNTY
GREGORY SMITH, :
:
Appellant-Appellee, : Case No. 22CA4
:
v. :
:
CITY OF NELSONVILLE, OHIO, : DECISION AND
et al., : JUDGMENT ENTRY
:
Appellees-Appellants. : RELEASED 8/07/2023
_____________________________________________________________
APPEARANCES:
Patrick Kasson and Kent Husion, Reminger Co., L.P.A., Columbus, Ohio, for
Appellants.
Daniel H. Klos, Lancaster, Ohio, for Appellee.
_____________________________________________________________
Smith, P.J.
{¶1} The appellants in this matter consist of the City of Nelsonville as well
as Dan Sherman, Toni Dunfee, Elizabeth Jones, Justin Booth, Carla Grant, and
Cory Taylor, all members of the Nelsonville City Council. The appellee in this
matter is Gregory Smith, a former member of the Nelsonville City Council.
Appellants are appealing the judgment of the Athens County Court of Common
Pleas reversing the council’s removal of Smith from his elected seat on the council.
On appeal, Appellants contend 1) that the trial court erroneously held that council
was required to request the county prosecutor to prosecute the removal proceedings
Athens App. No. 22CA4 2
via an ordinance or resolution; 2) that even if it ran afoul of the charter, the
council’s appointment procedure constituted harmless error; 3) that even if the
appointment procedure prejudiced him, Appellee waived his right to challenge the
appointment; and 4) that while it did not expressly reverse the council’s decision
based upon the sufficiency of the evidence, the trial court abused its discretion in
providing a cursory evaluation of the evidence below.
{¶2} However, because we find that council was required to contact the
county prosecutor via ordinance or resolution, that such contact was a prerequisite
to the appointment of special council, and that the failure of the council to act by
resolution or ordinance did not constitute harmless error, but instead rendered
Appellee’s removal from council a nullity, Appellants’ first and second
assignments of error are overruled. We likewise find no merit to Appellants’
argument that Appellee waived his right to challenge the appointment of the
special prosecutor and therefore, Appellants’ third assignment is overruled.
Finally, in light of our disposition of Appellants’ first, second, and third
assignments of error, their fourth assignment of error has been rendered moot and
we need not address it. Accordingly, the judgment of the trial court is affirmed.
FACTS
{¶3} The current appeal stems from what the record reveals was the
Nelsonville City Council’s third attempt to remove Appellee from his elected seat
Athens App. No. 22CA4 3
on the council. The third removal attempt, which is central to the present appeal,
appears to have been initiated on August 16, 2021. Council member Cory Taylor
issued a notice of probable cause for the removal of Appellee based upon his claim
that Appellee had failed to maintain continuous residence in the city and that he
instead resided in either Belpre, Ohio or Waterford, Ohio.
{¶4} In commencing the third removal attempt, it appears that the members
of city council relied on a prior request made by the city manager to the county
prosecutor, which was made as part of one of the previous removal attempts,
asking that the county prosecutor prosecute the removal proceedings. It also
appears that upon receiving a request to prosecute either Appellee’s first or second
removal from the council, the county prosecutor indicated he was not interested in
doing so. There is some suggestion in the record that the city manager may have
also requested the county prosecutor’s assistance in the third removal attempt, but
the facts surrounding that request are very limited. In any event, the parties herein
agree that any request that was made to the county prosecutor was done so by the
city manager, not city council, and that no formal resolution or ordinance was
passed authorizing that the county prosecutor be contacted. Although there is no
formal document evidencing the county prosecutor’s refusal to prosecute the
present matter, the record reveals that council appointed a special prosecutor to
Athens App. No. 22CA4 4
prosecute Appellee’s removal from city council. This appointment was
accomplished through the passage of Resolution No. 2246 on August 23, 2021.
{¶5} An administrative hearing was held on September 2, 2021. Cory
Taylor, the charging party, presented one witness, as did Appellee. At the
conclusion of the hearing, council voted to remove Appellee from his elected seat
on city council for failing to continuously be a resident of the city. The council
then formally removed Appellee via Resolution No. 2247. Appellee thereafter
filed a notice of appeal to the Athens County Court of Common Pleas, which
ultimately reversed the administrative decision removing Appellee from his seat on
the council. The trial court found that council’s removal of Appellee was a nullity
because the council was required by the Nelsonville City Charter to request the
county prosecutor prosecute the removal action by either an ordinance or
resolution, and that the failure to do so precluded the appointment of the special
prosecutor and essentially rendered Appellee’s removal from council a nullity.
{¶6} Appellants’ have now appealed the judgment of the trial court to this
Court, setting forth four assignments of error for our review.
ASSIGNMENTS OF ERROR
I. THE TRIAL COURT ERRONEOUSLY HELD THAT
COUNCIL WAS REQUIRED TO REQUEST THE
[COUNTY PROSECUTOR] TO PROSECUTE THE
REMOVAL PROCEEDINGS VIA AN ORDINANCE
OR RESOLUTION.
Athens App. No. 22CA4 5
II. EVEN IF IT RAN AFOUL OF THE CHARTER, THE
COUNCIL’S APPOINTMENT PROCEDURE
CONSTITUTED HARMLESS ERROR.
III. EVEN IF THE APPOINTMENT PROCEDURE
PREJUDICED HIM, MR. SMITH WAIVED HIS RIGHT
TO CHALLENGE THE APPOINTMENT.
IV. WHILE IT DID NOT EXPRESSLY REVERSE THE
COUNCIL’S DECISION BASED ON THE
SUFFICIENCY OF THE EVIDENCE, THE TRIAL
COURT ABUSED ITS DISCRETION IN PROVIDING
A CURSORY EVALUATION OF THE EVIDENCE
BELOW.
ASSIGNMENTS OF ERROR I & II
{¶7} For ease of analysis we address Appellants’ first and second
assignments of error in conjunction with one another. In their first assignment of
error, Appellants contend that the trial court erroneously held that council was
required to request the county prosecutor to prosecute the removal proceedings via
an ordinance or resolution. More specifically, Appellants argue that the
Nelsonville City Charter does not require council to pass an ordinance or
resolution that requests the county prosecutor’s participation in a member’s
removal proceeding and that because the passage of an ordinance or resolution was
not required, the council properly appointed special counsel to try the removal
proceedings. Appellee counters by arguing that the Nelsonville City Charter
provides that council may only act by ordinance or resolution and points out that
Appellants admit they did not pass an ordinance or resolution that requested the
Athens App. No. 22CA4 6
county prosecutor oversee Appellee’s removal proceeding. Appellee alternatively
argues that if the Nelsonville City Charter is interpreted to permit “some formal
action such as the removal of an elected Council member, it must comply with
R.C. 121.22 and be adopted in an open meeting or it is otherwise invalid.”
Appellee further notes that “[t]he record is entirely devoid of any action meeting
the mandates of R.C. 121.22 by Council to comply with the requirement of NCC
§11.08 to contact the [county prosecutor] by anyone at anytime for Mr. Smith’s
removal in this instant action.”
{¶8} In their second assignment of error, Appellants contend that even if the
appointment procedure for the special prosecutor “ran afoul” of the city charter, the
appointment procedure that was used constituted harmless error. Appellants
further argue that the appointment procedure used in appointing the special
prosecutor did not affect Appellee’s substantive rights or interests and thus,
Appellant can not and has not demonstrated prejudice. Appellee counters by
arguing that the procedure used by Appellants to remove him from council was in
conflict with the city charter’s directives and was therefore a nullity. He further
argues that there is no distinction between procedural versus substantive due
process rights as applied to the removal of elected officials from office.
Athens App. No. 22CA4 7
Standard of Review
{¶9} R.C. 2506.01 governs “[a]ppeal[s] from decisions of any agency of any
political subdivision” and provides that every final order, adjudication, or decision
of any officer, tribunal, authority, board, bureau, commission, department, or other
division of any political subdivision of the state may be reviewed by the Court of
Common Pleas. The decision made by the Nelsonville City Council to remove
Appellee was first appealed to the Athens County Court of Common Pleas by
Appellee, which resulted in a judgment in Appellee’s favor. Appellants have now
filed an administrative appeal to this Court pursuant to R.C. 2506.04, which
provides that “[t]he judgment of the court may be appealed by any party on
questions of law as provided in the Rules of Appellate Procedure and, to the extent
not in conflict with those rules, Chapter 2505. of the Revised Code.”
{¶10} Administrative appeals at the municipal level are governed by R.C.
Chapter 2506. Willoughby Hills v. C.C. Bar's Sahara, Inc., 64 Ohio St.3d 24, 26,
591 N.E.2d 1203 (1992). Under R.C. Chapter 2506, the court of common pleas
may find that the order, adjudication or decision of the administrative agency is
“unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by
the preponderance of substantial, reliable, and probative evidence on the whole
record.” R.C. 2506.04. Consistent with its findings, the court of common pleas
may then “affirm, reverse, vacate, or modify the order, adjudication, or decision, or
Athens App. No. 22CA4 8
remand the cause to the officer or body appealed from with instructions to enter an
order, adjudication, or decision consistent with the findings or opinion of the
court.” R.C. 2506.04. “[I]n weighing evidence, the court may not ‘blatantly
substitute its judgment for that of the agency, especially in areas of administrative
expertise.’ ” AT&T Communications of Ohio, Inc. v. Lynch,
132 Ohio St.3d 92,
2012-Ohio-1975,
969 N.E.2d 1166, ¶ 13, quoting Dudukovich v. Lorain Metro.
Hous. Auth.,
58 Ohio St.2d 202, 207,
389 N.E.2d 1113 (1979). Accordingly, the
court of common pleas must affirm the agency's decision if it is supported by “a
preponderance of reliable, probative, and substantial evidence.” Burchfield v.
Jackson Twp. Bd. of Zoning Appeals, 4th Dist. Pickaway No. 07CA11, 2008-Ohio-
1228, ¶ 8.
{¶11} However, reviews by appellate courts under R.C. 2506.04 are more
limited in scope than the court of common pleas. Three Wide Entertainment v.
Athens Bd. of Zoning Appeals, 194 Ohio App.3d 1,
2011-Ohio-2304,
954 N.E.2d
191, ¶ 9 (4th Dist.). “ ‘This statute grants a more limited power to the court of
appeals to review the judgment of the common pleas court only on “questions of
law,” which does not include the same extensive power to weigh “the
preponderance of substantial, reliable and probative evidence,” as is granted to the
common pleas court.’ ” Henley v. Youngstown Bd. of Zoning Appeals, 90 Ohio
Athens App. No. 22CA4 9
St.3d 142, 147,
735 N.E.2d 433 (2000), quoting Kisil v. Sandusky,
12 Ohio St.3d
30, 34,
465 N.E.2d 848, fn. 4 (1984).
“It is incumbent on the trial court to examine the evidence. Such
is not the charge of the appellate court. … The fact that the
court of appeals … might have arrived at a different conclusion
than the administrative agency is immaterial. Appellate courts
must not substitute their judgment for those of an administrative
agency or a trial court absent the approved criteria for doing so.”
Henley at 147, quoting Lorain City School Dist. Bd. of Edn. v. State Emp.
Relations Bd., 40 Ohio St.3d 257, 261,
533 N.E.2d 264 (1988).
{¶12} The court of common pleas' ruling “may be appealed by any party on
questions of law.” R.C. 2506.04. Thus, the standard of review we apply is more
limited in scope; appellate courts are limited in an R.C. 2506.01 appeal to
reviewing questions of law. Lorain City School Dist. at 261. See also Burchfield
at ¶ 9. However, “ ‘[w]ithin the ambit of “questions of law” for the appellate
review would be abuse of discretion by the common pleas court,’ ” in choosing or
applying the law. Henley at 148, quoting Kisil at 34. An abuse of discretion
constitutes more than an error of law or judgment; rather, it implies that the trial
court's attitude was unreasonable, arbitrary, or unconscionable. See, e.g., Landis v.
Grange Mut. Ins. Co.,
82 Ohio St.3d 339, 342,
695 N.E.2d 1140 (1998); Malone v.
Courtyard by Marriott L.P.,
74 Ohio St.3d 440, 448,
659 N.E.2d 1242 (1996).
Athens App. No. 22CA4 10
Legal Analysis
{¶13} As set forth in Appellants’ brief, “[t]his dispute centers on the proper
interpretation of the prosecutorial appointment procedure, as a prerequisite to a
Member’s removal proceeding ….” In determining that Appellants failed to
comply with the proper procedure for appointing a special prosecutor and, as a
result, that Appellants also failed to comply with the Nelsonville City Charter in
removing Appellee from his elected seat on the council, the trial court applied
Nelsonville City Charter §4.09 and §11.08 in reference to one another. Appellants
urge this Court to find that these two charter provisions were irreconcilable with
one another and thus, could not be read and interpreted in pari materia.
{¶14} The trial court found and this Court agrees that the city charter
provides that membership on city council is expressly restricted to those who are
“qualified electors” who have been “continuously a resident” for one year prior to
their election and who “continue to be a resident and qualified elector of the City
throughout [their] term ….” Nelsonville City Charter §4.02. All parties further
agree that the charter permits council to remove a member for failing to possess or
maintain those qualifications. Nelsonville City Charter §11.08 addresses the
removal of officials and provides in section (A) that “[t]he Council members and
members of boards of commissions shall be removed for cause” for various
reasons set forth in the charter. At issue here is whether Appellee was
Athens App. No. 22CA4 11
“continuously a resident” during the course of his term on council. Appellants did
not challenge that Appellee was a “qualified elector.”
{¶15} Article XI of the city charter is entitled “General Provisions” and
contains §11.08, which is entitled “Removal of official.” §11.08(F) states as
follows regarding the process for the removal of a member of city council:
Council shall request the County Prosecutor or his designee to
prosecute the removal proceedings before the Council and any
reviews thereof by the Courts. If the County Prosecutor refuses
to accept the responsibility, Council shall appoint a Special
Prosecutor who shall prosecute the removal proceedings before
the Council and any reviews thereof by the Courts. If a person
accused is not finally removed, the City shall pay the reasonable
costs of the defense of such persons and any compensation
withheld pending the appeal of the action of the Council.
Article IV of the city charter is entitled “The Council” and contains §4.09, which is
entitled “Forms of action by Council.” §4.09 states as follows:
The action of Council shall be by ordinance or resolution. On all
matters of a general or permanent nature, or granting a franchise,
or levying a tax, or appropriating money, or contracting
indebtedness, or issuing bonds or notes, or for the purchase, lease
or transfer of property, action shall be taken formally, by
ordinance, in the manner hereinafter provided. Action on all
other matters of a temporary or informal nature may be taken by
resolution.
{¶16} Appellants contend that despite §4.09’s language stating “[t]he action
of Council shall be by ordinance or resolution[,]” §11.08 does not require the
passage of an ordinance or resolution to “request” the county prosecutor to
prosecute removal proceedings. In support of their argument, Appellants direct our
Athens App. No. 22CA4 12
attention to the fact that several other sections of the city charter explicitly state
that passage of an ordinance or resolution is necessary to accomplish certain acts,
whereas §11.08(F) does not. Appellants argue that if §4.09 were interpreted to
require the passage of an ordinance or resolution for essentially every action taken
by council, these certain other provisions of the city charter that expressly require
the passage of an ordinance or resolution would be rendered “superfluous.”
{¶17} Appellants do not dispute that no ordinance or resolution was passed
empowering the council to request the county prosecutor handle the removal
proceedings prior to moving forward with the passage of a resolution appointing a
special prosecutor to handle the matter. The trial court found this flaw in the
removal of Appellee to a be a fatal one, resulting in the nullification of the
removal. Because the trial court found the council’s failure to pass either an
ordinance or resolution formally requesting that the county prosecutor prosecute
the removal to be a fatal flaw that nullified the action of council, it did not reach
the merits of Appellee’s additional argument below that the determination that he
had failed to continuously be a resident was not supported by a preponderance of
reliable, probative and substantial evidence. For the following reasons, we believe
the trial court correctly disposed of the appeal based upon this question of law
without the need for addressing the substantive question of whether the council’s
Athens App. No. 22CA4 13
stated grounds for removal were supported by the evidence introduced during the
administrative hearing.
{¶18} In reaching its decision, the trial court relied on the reasoning set forth
in State ex rel. Gerhardt v. Krehbiel, 38 Ohio St.2d 90,
310 N.E.2d 251 (1974). In
Gerhardt, the Supreme Court of Ohio held that “[w]here a municipal charter
prescribes the manner for removal of municipal officers, any attempt by the
municipality’s legislative body to remove an officer in a manner at variance or in
conflict with the charter’s directives is a nullity.”
Id. at syllabus. Here, the trial
court found that although council was empowered to remove one of its own
members for a designated cause, it had to do so in strict compliance with the city
charter. The trial court further found that because a prerequisite to the prosecution
of such action by a special prosecutor was the passage of an ordinance or
resolution requesting the county prosecutor to prosecute the removal, along with
the denial thereof by the county prosecutor, and because there was no dispute that
council failed to pass either an ordinance or resolution approving a request be
made to the county prosecutor, the removal attempt was a nullity and therefore
“illegal and unreasonable within the meaning of R.C. 2506.04.”
{¶19} After reviewing the record, which includes the city charter as well as
the administrative hearing transcript and related exhibits, we cannot conclude that
the trial court abused its discretion in its application of the law to the facts of this
Athens App. No. 22CA4 14
case. Not only do we find Gerhardt to be applicable and controlling, we are
mindful of a prior decision issued by this Court finding that where a village
ordinance required the passage of a resolution to accomplish a particular action, the
passage of such resolution was “the only manner in which the board may act.”
Village of New Holland v. Murphy, 4th Dist. Pickaway No. 18CA6, 2019-Ohio-
2423, ¶ 17. In that case, we found the absence of a resolution, coupled with our
conclusion that the board could only act by resolution, to be central to the
disposition of the case. Id. at ¶ 15.
{¶20} Here, in reaching our decision, we reject Appellants’ argument that
§§4.09 and 11.08 of the Nelsonville City Charter are irreconcilable. As set forth
above, §4.09 states as follows:
The action of Council shall be by ordinance or resolution. On
all matters of a general or permanent nature, or granting a
franchise, or levying a tax, or appropriating money, or
contracting indebtedness, or issuing bonds or notes, or for the
purchase, lease or transfer of property, action shall be taken
formally, by ordinance, in the manner hereinafter provided.
Action on all other matters of a temporary or informal nature
may be taken by resolution. (Emphasis added).
§4.09 obviously appears first, chronologically, in the city charter. It specifies that
the action of council “shall be by ordinance or resolution.” For matters of a
general or permanent nature, action shall be taken by ordinance “in the manner
[thereafter] provided.” Action on “all other matters of a temporary or informal
nature may be taken by resolution.”
Athens App. No. 22CA4 15
{¶21} §11.08 appears later in the charter, chronologically, falling under
Chapter XI, entitled “General provisions.” Reading §4.09 in pari materia with
§11.08(F), we conclude the charter provides that the removal of an official is a
“general” matter by definition in the charter. Thus, at the very least, such action
requires the passage of a resolution, but likely requires the passage of an ordinance.
Again, reading these two charter provisions in pari materia, action to remove a
council member shall be taken by ordinance (or resolution as noted), “in the
manner hereinafter provided,” which here would be the manner set forth in §11.08.
§11.08(F) states that before appointing a special prosecutor to handle a removal
action, council first “shall request the County Prosecutor or his designee to
prosecute the removal proceedings ….” If, and only if, the county prosecutor
refuses, may council proceed with the appointment of a special prosecutor. We
conclude that the charter itself makes clear that council was required to request the
county prosecutor’s involvement by ordinance (or at the least, by resolution).
{¶22} We find no irreconcilable conflict between these two charter
provisions. Instead, we find that §4.09 is a provision that overarches the rest of the
charter and informs the reading of subsequent provisions, such as §11.08. We
further reject Appellants’ argument that interpreting the charter to require the
passage of a resolution or ordinance to contact the prosecutor for a removal action
renders superfluous other charter provisions that expressly require the passage of
Athens App. No. 22CA4 16
an ordinance or resolution. The fact that certain other charter provisions expressly
state that an ordinance or resolution is required, whereas §11.08(F) does not
include that express requirement, does not remove §11.08(F) from the application
of §4.09. To the extent the drafting of these other provisions of the charter may
appear illogical in light of the mandate contained in §4.09, we note that the
Supreme Court of Ohio has stated “that the feasibility or wisdom of charter
provisions is ‘not a matter for our consideration.’ ” State ex rel. Cater v. Olmsted,
69 Ohio St.3d 315, 324,
631 N.E.2d 1048 (1994), quoting Fuldauer v. Cleveland,
32 Ohio St.2d 114, 118,
290 N.E.2d 546 (1972) (noting the Court’s prior reasoning
that municipalities have the right in adopting charters “to make provisions that may
be silly and unwise[,]” and that “the remedy is in the hands of the people who have
adopted the charter”).
{¶23} Here, because the record is clear that neither an ordinance or
resolution was passed, council failed to strictly comply with the requirements of
the charter in the removal of Appellee. Thus, because council failed to strictly
comply with the process for removal of an elected official as set forth in the city
charter, Appellee’s removal from council was rendered a nullity. Accordingly, we
find no merit to the arguments raised under Appellants’ first assignment of error.
Additionally, in light of the fact that we have not found that a resolution or
Athens App. No. 22CA4 17
ordinance was unnecessary, we need not address Appellee’s alternate argument in
support of affirmance which alleges violations of the Sunshine Act.
{¶24} Appellants’ further contend, however, under their second assignment
of error, that even if the appointment procedure used to appoint the special
prosecutor ran afoul of the city charter, any error was harmless because Appellee’s
substantive due process right were unaffected. In making this argument,
Appellants contend that Gerhardt involved a denial of substantive due process, by
virtue of the fact that a member was removed with fewer than the required number
of votes, as opposed to the situation here, where Appellee was removed without
strict adherence to the process for requesting the participation of the county
prosecutor in the removal process before appointing a special prosecutor.
Appellants describe any deficiencies from the required procedure in the present
case to be merely procedural, trivial, or ministerial. As such, Appellants argue that
Gerhardt is inapplicable to the present case.
{¶25} First, we note that Gerhardt involved the removal of a city manager
as opposed to an elected official. State ex rel. Gerhardt at 91. Second, in
Gerhardt, a resolution was actually passed removing the city manager from office.
Id. The Gerhardt court determined that despite the fact that a resolution was
passed for the removal, the resolution was in conflict with provisions of the charter
specifying the number of votes required to effect removal.
Id. at 93-94. In holding
Athens App. No. 22CA4 18
that the removal of “an officer in a manner at variance or in conflict with the
charter’s directives is a nullity[,]” the Court reasoned as follows:
“If the members of a legislative body can ignore, with impunity,
the mandates of a … city charter, than [sic] it is certain that the
faith of the people in constitutional government will be
underminded [sic] and eventually eroded completely.”
Id. at 94, quoting Cleveland ex rel. Neelon v. Locher,
25 Ohio St.2d 49, 52,
266
N.E.2d 831 (1971).
{¶26} Third, in reaching its decision, the Supreme Court of Ohio drew no
distinctions between substantive versus procedural due process when it came to
strict compliance with a city charter in removing an official.
{¶27} Despite Appellants’ arguments that the harmless error doctrine
applies and that Appellee must demonstrate prejudice in order to warrant reversal,
we are not inclined to hold that a city council’s failure to comply with its charter to
the extent that its purported action has been rendered a nullity can be considered
harmless error. See generally Button v. Button, 2nd Dist. Montgomery No. 16122,
1997 WL 337666, * 7 (1997) (finding that where Button was entitled to notice and
an opportunity to be heard but denied those rights, any judgment rendered against
him was void, a nullity, and of no effect regardless of whether the judgment was
prejudicial). As set forth above, the purported removal of Appellee was completed
without the passage of either an ordinance or resolution requesting the county
prosecutor initiate the removal proceedings. The passage of an ordinance or
Athens App. No. 22CA4 19
resolution was the very mechanism by which council is empowered to act under
§4.09 of the city charter. Thus, the purported removal was void and of no effect,
regardless of whether or not it was prejudicial to Appellee. Id. We simply find
that the harmless error doctrine is inapplicable here, where council lacked authority
to act by virtue of its failure to pass an ordinance, or at the very least a resolution.
Such a procedural deficiency is more than just trivial or ministerial. Thus, we
reject Appellants’ argument that council’s failure to pass a resolution authorizing
the county prosecutor be requested to initiate Appellee’s removal from council
constituted harmless error.
{¶28} Accordingly, having found no merit in Appellants’ first or second
assignments of error, they are overruled.
ASSIGNMENT OF ERROR III
{¶29} In their third assignment of error, Appellants’ contend that even if the
appointment procedure prejudiced Appellee, he waived his right to challenge the
appointment of a special prosecutor. Appellants argue that Appellee failed to
timely object to the procedural error at issue and thus waived his right to raise it on
appeal. Appellants further argue that council appointed a special prosecutor on
August 23, 2021, and that Appellee failed to object to the appointment procedure
until the close of Appellants’ case-in-chief, which occurred on September 2, 2021.
Athens App. No. 22CA4 20
However, we find no merit in Appellants’ argument that Appellee waived his right
to challenge the appointment of the special prosecutor.
{¶30} Contrary to Appellants’ representations to this Court, the record
indicates that Appellee made two inquiries to the Athens County Prosecutor’s
Office, described by Appellee as public records requests, in an attempt to obtain
information regarding the manner in which the county prosecutor was consulted
and the manner in which the county prosecutor refused the request. The first
request was made on August 20, 2021, and received no response. The second
request was made on August 25, 2021, and resulted in the provision of a copy of a
letter from the city manager, not city council, to the county prosecutor dated March
8, 2021, which was prior to the date the current removal proceedings were
initiated. During the administrative hearing, only one witness was introduced on
behalf of the charging party, Cory Taylor. During the cross-examination of the
charging party’s sole witness, Appellee’s counsel repeatedly attempted to inquire
into the process used to consult with the county prosecutor and eventually appoint
the special prosecutor. The special prosecutor, however, objected to every
question on the basis of attorney-client privilege and the objections were sustained
by Mr. Dunfee. Despite this challenge, Appellee was able to establish through
cross-examination that no resolution or ordinance was passed authorizing contact
with the county prosecutor.
Athens App. No. 22CA4 21
{¶31} In light of the foregoing, it appears from the record that Appellee
preserved this issue for purposes of appeal to the common pleas court and the issue
was further preserved at the common pleas level for purposes of appeal to this
Court. Accordingly, because we conclude that Appellee did not waive his right to
challenge the appointment of the special prosecutor, Appellants’ third assignment
of error is overruled.
ASSIGNMENT OF ERROR IV
{¶32} In their fourth assignment of error, Appellants contend that although
the trial court did not expressly reverse the council’s decision based on the
sufficiency of the evidence, the trial court abused its discretion in providing a
cursory evaluation of the evidence below. However, in light of our disposition of
Appellants’ first three assignments of error, any errors raised under this assignment
of error have been rendered moot and we decline to address them.
CONCLUSION
{¶33} Having found no merit to Appellants’ first three assignments of error,
and having found Appellants’ fourth assignment of error moot, the judgment of the
trial court is affirmed.
JUDGMENT AFFIRMED.
Athens App. No. 22CA4 22
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to
Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Athens County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
Hess, J. and Wilkin, J. concur in Judgment and Opinion.
For the Court,
_____________________________
Jason P. Smith
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.
