Opinion
No. A-93-01843.
Decided April 9, 1993.
Richard L. Creighton, Jr., for plaintiff.
Fay Dupuis, City Solicitor, and Karl P. Kadon, Assistant City Solicitor, for defendant.
This matter is before the court upon motion for preliminary injunction filed on behalf of plaintiff.
The Finance and Labor Committee of the Cincinnati City Council met in regular session on March 1, 1993. During said session, Councilmen Peter Strauss and John Mirlisena submitted a motion for an executive session, which motion was adopted by a roll call vote. The motion read in pertinent part as follows:
"We move that there be an Executive Session * * * this day, March 1, 1993, * * * as allowed by law in Section 121.22(G)(1) of the Ohio Revised Code to consider the appointment, employment, dismissal or discipline of the City Manager and to discuss, for the purpose of inquiry, the recent appointments and resignation of Directors for the Departments of Public Utilities, Public Works, Water Works and Economic Development." (Emphasis added.)
Plaintiff asserts that the executive session violated various provisions of the "Sunshine Law," and that, therefore, this court should declare any resolution, rule or formal action taken by council during the executive session invalid, order council to pay a civil forfeiture in the amount of $100, order council to pay reasonable attorney fees and costs incurred by plaintiff in bringing this action, and enjoin the members of city council from further violations of the Sunshine Law.
The major bone of contention in this matter is part of one sentence from R.C. 121.22(G)(1), to wit:
"The members of a public body may hold an executive session * * * for the sole purpose of the consideration of any of the following matters:
"(1) To consider the appointment, employment, dismissal, discipline, promotion, demotion, or compensation of a public employee or official, or the investigation of charges or complaints against a public employee, official, licensee, or regulated individual, unless the public employee, official, licensee, or regulated individual requests a public hearing."
The Sunshine Law and this sentence in particular have proven difficult at times to interpret:
"The whole sentence is poorly written. * * *" (Carol Dressman, English teacher, witness in this case.)
"In all my research on R.C. 121.22 I can find no case which says the statute is so inartfully drafted it has caused more problems than the problem it was enacted to solve. One reading the statute and the cases is, however, led invariably to that conclusion." In re Appeal of Allen (June 12, 1981), Scioto App. No. 1275, unreported, 1981 WL 5944 (Grey, P.J., dissenting).
Plaintiff Gannett Satellite Information Network, Inc. would interpret the sentence in question to mean that notice must be given to a public employee of a special session wherein either his dismissal was to be considered, or charges against him were to be considered. The city interprets the sentence to mean that a public employee is entitled to notice of the executive session if charges against him are to be considered, but not if merely his dismissal is to be considered.
The testimony of Carol Dressman regarding the meaning of the sentence is straightforward, clear, and, in this court's opinion, convincing. Dressman has been a teacher for thirty years, has taught advanced placement English at the junior and senior high levels, and has done extensive work with grammar and grammar analysis. Evidence in this matter includes a diagram of the sentence, meticulously drafted by Dressman, about which she testified at length at the hearing on March 19, 1993.
Dressman states in her affidavit, consistent with her testimony at the hearing:
"[T]he only possible meaning of this section is that members of a public body can meet in executive session to consider the dismissal of a public employee, unless that public employee requests a public hearing."
In brief, Dressman agrees with Gannett's interpretation of the meaning of the statute. Interpreted in this fashion, the statute requires, by reasonable inference, that the public employee whose dismissal is to be considered must be given notice of the special session and the opportunity to demand a public hearing. If notice is given, and the public employee does not request a public hearing, the hearing need not be public. In the instant matter, Gannett alleges that the public employee (City Manager Newfarmer) was not given notice of the executive session, or at least of the purpose of the session.
Although this court accepts Dressman's interpretation of the meaning of the English sentence which she has so ably interpreted, unfortunately the matter does not end there. Interpretation of statutes is often a ticklish matter requiring courts to resort to the use of rules of construction established by statute or by case law, and to consider other portions of the same or similar statutes — the result sometimes being an interpretation quite different from the meaning of a sentence considered abstractly and alone.
R.C. 121.22(G)(1) has been interpreted in several cases relevant to the instant dispute:
"We believe that R.C. 121.22(G)(1) was intended to bring the other provisions of that section into conformity with existing statutes, such as R.C. 3319.16, which prescribe the procedure applicable to public employee termination actions. We do not believe that the words `unless the public employee * * * requests a public hearing * * *' were intended to grant the right to a hearing where none existed previously * * *.
"* * *
"We now turn to appellants' contention that R.C. 121.22(G)(1) grants non-tenured teachers a right to demand that a school board conduct all its deliberations on contract renewals in open session.
"* * *
"* * * [W]e hold that R.C. 121.22 authorizes a school board to conduct private deliberations upon the renewal of a limited teaching contract. Nothing in this section grants a non-tenured teacher the right to demand that those deliberations be made in public." Matheny v. Frontier Local Bd. of Edn. (1980), 62 Ohio St.2d 362, 367-368, 16 O.O.3d 411, 414-415, 405 N.E.2d 1041, 1045-1046.
"[A]ppellant's claim * * * [is] * * * wrongful termination of her employment as a secretary to the superintendent of the Sheffield-Sheffield Lake school system.
"* * *
"On June 28, 1988, the board held an executive session at which the board members discussed the termination of appellant's employment. Following this executive session, the board held an open meeting at which appellant's employment was formally terminated. Appellant filed suit, claiming * * * violations of Ohio's `Sunshine Law,' R.C. 121.22. * * *
"* * *
"Appellant further argues that the executive session was illegal because the board failed to provide her with notice and a hearing, which she claims is required under R.C. 121.22(G)(1). This argument is also without merit. The Supreme Court of Ohio, in Matheny v. Bd. of Edn. (1980), 62 Ohio St.2d 362, 367, 16 O.O.3d 411, 414, 405 N.E.2d 1041, 1045, stated that:
"`We do not believe that the words "unless the public employee * * * requests a public hearing * * *" were intended to grant the right to a hearing where none existed previously, as in the instance of contract considerations of non-tenured teachers.'
"* * * The court further observed that `the term "public hearing" in subdivision (G)(1) of this statute refers only to the hearings elsewhere provided by law.' * * * As discussed under the first assignment of error, appellant was an unclassified civil servant, and therefore by law had no right to continued employment, nor to any procedural safeguards before termination.
"Appellant contends that Matheny is inapplicable here because that case involved a nontenured teacher while the present case involves a nonteaching employee. As we read Matheny as establishing a general principle applicable beyond its specific facts, and as appellant offers no rationale to justify distinguishing Matheny on its facts, we find no merit in this contention." Davidson v. Sheffield-Sheffield Lake Bd. of Edn. (May 23, 1990), Lorain App. No. 89CA004624, unreported, 1990 WL 72316.
"The Matheny court noted that when enacting R.C. 121.22(G)(1), the legislature intended to leave undisturbed the provisions of R.C. Chapter 3319 relating to teacher employment. Nothing in R.C. 121.22(G)(1) grants a non-tenured teacher the right to demand that deliberations on whether to renew his contract be held in public.
"Although appellee enjoys tenure as a teacher, he does not enjoy such status as a principal. We find the reasoning in Matheny equally applicable to non-tenured principals." State ex rel. Floyd v. Rock Hill Local School Bd. of Edn. (Feb. 10, 1988), Lawrence App. No. 1862, unreported, 1988 WL 17190.
"As noted in the opinion, appellee, as a non-tenured elementary school principal, was not entitled to a `public hearing' upon request pursuant to R.C. 121.22(A) and 121.22(G)(1). Matheny v. Board of Edn. (1980), 62 Ohio St.2d 362 [16 O.O.3d 411, 405 N.E.2d 1041]." State ex rel. Floyd v. Rock Hill Local School Bd. of Edn. (Feb. 10, 1988), Lawrence App. No. 1862, unreported, 1988 WL 17190 (Stephenson, J., concurring).
"Although Matheny deals with non-tenured teachers, whereas this case deals with a teacher on a continuing contract, we feel that the decision stands for the proposition that the Sunshine Law creates no substantive rights to any school board employee." Coburn v. Greenfield Local Bd. of Edn. (Sept. 30, 1980), Highland App. No. 398, unreported.
It is clear that the Cincinnati City Manager holds his position at the pleasure of council ( i.e., "at will"), and that he is in the unclassified civil service:
"The council shall appoint a city manager who shall be the chief executive and administrative officer of the city. * * * The city manager shall be appointed for an indefinite term. * * * He shall be removable at any time at the pleasure of the council. * * *" Cincinnati Charter, Section 1, Article IV.
"The unclassified service has been said to include `those offices, positions, and employments to which appointments may be made * * * at the discretion of the appointing officer or board and from which the incumbent may be removed, suspended or reduced at the pleasure of some superior board or officer.'" 14 Ohio Jurisprudence 3d (1979) 612, Civil Servants, Section 30.
Under the rationale of Matheny and its progeny, there can be no doubt that the Cincinnati City Manager has no right, pursuant to the Sunshine Law, to demand a hearing at a special session wherein his dismissal is to be considered. The cases, beginning with Matheny, are virtually uniform in holding that "we do not believe that the words `unless the public employee * * * requests a public hearing * * *' were intended to grant the right to a hearing where none existed previously." The above-cited authority also uniformly distinguishes at-will employees and unclassified civil servants from employees who have a vested interest in their jobs — only the latter being entitled to notice of a hearing involving consideration of their dismissal.
Changes in the wording of R.C. 121.22(G)(1) have not changed the meaning of the section. Therefore, the authority above cited remains in force at the present time.
One case seems to vary from the rationale of Matheny and its progeny, to wit: In re Removal of Smith (May 15, 1991), Morgan App. No. CA-90-11, unreported, 1991 WL 87166. This one-page decision cites no authority other than R.C. 121.22, apparently in grand ignorance of Matheny, or because the court perceived, but failed to communicate, some set of facts distinguishing the case from Matheny. In any case, the Smith case carries no weight in this matter for failure of an adequate rationale and for apparently contradicting the clear mandates of the Supreme Court in Matheny.
The Cincinnati City Charter (Section 1, Article IV) provides for a hearing in the case of dismissal:
"If removed at any time after he has served six months, he [the city manager] may demand written charges and the right to be heard thereon at a public meeting of the council prior to the date on which his final removal shall take effect, but pending and during such hearing, the council may suspend him from office. The action of the council in suspending or removing the city manager shall be final, it being the intention of this charter to vest all authority and fix all responsibility for any such suspension or removal in the council."
The wording of this charter provision obviously provides for a hearing after the council has already had a hearing and decided upon a dismissal. Therefore, former City Manager Newfarmer would have no grounds under civil service law to complain that he was not notified of the hearing concerning his dismissal. In like manner, the Sunshine Law would not require notice of the dismissal hearing because such hearing was not otherwise required by law.
Gannett attempts to distinguish the Matheny case and its progeny from the instant situation by making a distinction between the right of a public employee to a hearing, before dismissal, under civil service law, and the right of the public (or a newspaper) to a public hearing under the Sunshine Law. Gannett has brought this action pursuant to the following portion of the Sunshine Law:
" Any person may bring an action to enforce the provisions of this section. Upon proof of a violation or threatened violation of this section in an action brought by any person, the court of common pleas shall issue an injunction to compel the members of the public body to comply with its provisions." (Emphasis added.) R.C. 121.22(I)(1).
What Gannett overlooks is the fact that the phrase "any person" applies equally to Gannett, or to the city manager, or to anyone else. Thus, if the city manager is not entitled to notice of a hearing, or a hearing, neither would any other person. These considerations were part of the Matheny rationale, because the Supreme Court specifically stated that the appellants therein had no valid claim to a hearing either under some independent preexistent right, or under the Sunshine Law.
Considering the affidavits of the Clerk of Council and Rule 10.4 of the Rules of Council, the court is satisfied that the special session in question was properly called. The affidavits of the clerk also indicate that no official action was taken by the special session; nor, as Council Rules 10.4, 10.7, and 10.8 make clear, could official action have been taken. A vote, if any, taken at the special session could only have amounted to a poll of the current attitudes of those present.
In summation, plaintiff Gannett is correct in interpreting R.C. 121.22(G)(1) (the Sunshine Law) to mean, taken by itself, that a public employee is entitled to notice that a special session is going to consider his dismissal. However, the Supreme Court and appellate courts of this state have indicated that the Sunshine Law is not to be interpreted in isolation from other statutes. The Supreme Court has determined that, with respect to "at will" unclassified public employees, the Sunshine Law has not created a new right to notice, or to a public hearing, that did not previously exist, and that, traditionally, "at will" unclassified public employees are in fact not entitled to notice or hearing pertaining to their dismissal. Therefore, City Manager Newfarmer, being an "at will" unclassified civil servant, was not entitled to notice of a special session of council considering his dismissal. Additionally, Gannett has no right greater than the city manager to notice or to a public hearing.
One issue remains that has not been addressed by either side. The motion for an executive session, in addition, to the dismissal of the city manager, included the following topics:
"[A]nd to discuss, for the purpose of inquiry, the recent appointments and resignation of Directors for the Departments of Public Utilities, Public Works, Water Works and Economic Development."
The meaning of this phrase is not clear. If it is meant to do nothing more than describe some of the factors that might be considered at a special session regarding the possible dismissal of the city manager, the nature of the special session would not be changed, and neither notice to the city manager nor a public hearing would be required.
If, however, the phrase was meant to indicate that a discussion was to occur at the special session regarding a wide range of topics in addition to the possible dismissal of the city manager, the court may have to address the Sunshine Law issue further, perhaps with the taking of additional evidence.
This matter is scheduled for report on April 16, 1993 at 1:00 p.m. If counsel agree that the phrase just discussed pertains only to the possible dismissal of the city manager, the court will sign an entry denying the motion for a preliminary injunction. If such an agreement cannot be reached, then the court and counsel will discuss the possibility of further proceedings in this matter.
Reporter's Note: A judgment entry denying preliminary and permanent injunctive relief was journalized on April 22, 1993. No appeal has been taken from the judgment of the court.
Judgment accordingly.