SUPREME COURT OF OHIO .us

[Pages:16]IN THE SUPREME COURT OF OHIO

RICK ARONHALT . CASE NO. 13-0094

Plaintiff/Appellant,

. ON APPEAL FROM THE FRANKLIN COUNTY COURT OF

V. . APPEALS, TENTH APPELLATE

DISTRICT

DR. STEVE CASTLE, et al.

Defendants/Appellees.

COURT OF APPEALS CASE NO. 12AP-196

APPELLEES' MEMORANDUM CONTRA JURISDICTION

RICK A. ARONHALT 4820 Yoest Drive Westerville, OH 43081 Telephone: (614) 273-9260 Facsimile: (614) 222-4555 Pro Se Appellant

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JOHN C. ALBERT (0024164) CRABBE, BROWN & JAMES 500 S. Front Street, Suite 1200 Columbus, OH 43215 Telephone: 614-229-4528 Facsimile: 614-229-4559 Email: Counselfor Defendants/Appellees

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CLERK OF COURT

SUPREME COURT OF OHIO

TABLE OF CONTENTS

1. TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

II. THIS IS NOT A CASE OF PUBLIC OR GREAT GENERAL INTEREST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

III. STATEMENT OF THE CASE AND FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

IV. ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW . . . . . . . . . . . . . . . . . . . . 9

Response to Proposition of Law No. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Pursuant To R.C. 4117.01(L), A "Management Level Employee" Is An Individual Who Formulates Policy On Behalf Of The Public Employer, Or Who Responsibly Directs The Implementation Of Policy

Response to Proposition of Law 2: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

R.C. 3319.171(C) Requires Administrative Personnel To Be Given The Opportunity To Provide Advice, Opinion And Comment About A Proposed Administrative Personnel Suspension Policy. Mason v. Bexley City School Dist., 2:07-cv-654 (S.D. Ohio 2010), Cited And Followed. Response to Proposition of Law 3 : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Pursuant To R.C. 4113.52(D), An Employee Must Bring His Or Her Whistleblower Action Within 180 Days After The Date That The Employer Takes The Disciplinary Or Retaliatory Action.

V. CONCLUSION ...... .................................................. 12

VI. CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

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TABLE OF AUTHORITIES

Page No.

Cases:

In re: New Jersey Turnpike, ACTA, 150 N.J. 331, 337 (1997) ........................................................................................10

In re: University of Cincinnati SERB No. 98-003 (February 26,1998) ................................................................................1,10

Lorain Cty. School Dist. Of Edn. v. State Emp. Relations Bd., 40 Ohio St.2d 257, 260 (1988) .............................................................................................1

Mason v. Bexley City Sch. Dist. 2010 WL 987047 (Dist. Ct. S.D. Ohio) ...........................................................................1,10,11

State ex rel. Hlysnky v. Osnaburg Local School Dist. Bd. Of Ed 11 Ohio St.3d 194, 196 (1984) ...........................................................................................12

Statutes: R.C. 3319.171(C) .....................................................

.............................

..........1,10,12

R.C. 4113.52(D) ...................................................... .................................................................... .1.11

R.C. 4117.01(L) ...................................................... ......................................................................1,9,10

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II. THIS IS NOT A CASE OF PUBLIC OR GREAT GENERAL INTEREST. Contrary to Appellant's assertions, this case contains no legal or factual issues of public or

great general interest. The award of summary judgment has been reviewed at this point by four (4) judges: the trial judge, and three (3) appellant judges de novo, and affirmed. This case involves the standard application of well-established law and statutes to the undisputed facts, with nothing unusual or of public/great general interest.

Appellant claims this case is of general interest for three (3) basic reasons. The first one is because the Tenth Appellate District cited a SERB case for the definition of a "management level employee," pursuant to the longstanding statute, R.C. 4117.01(L). Appellant criticizes the Appellate Court for citing the SERB decision, In re: Univ. of Cincinnati, SERB No. 98-003 (February 26, 1998). However, this Court held over twenty (20) years ago that SERB possesses the authority to interpret R.C. Chapter 4117. Lorain City School Dist. OfEdn. v. State Emp. Relations Bd., 40 Ohio St.2d 257, 260 (1988). As such, there is no public or great general interest in a further determination of what constitutes a "management level employee."

Appellant's second basis for convincing this Court to accept jurisdiction relates to R.C. 3119.171(C), which allows school districts to adopt policies providing for the suspension of administrators' contracts. Appellant focuses on the "input" requirement. This issue was already considered and resolved by the Federal Court in Mason v. Bexley City Sch. Dist., 2010 WL 987047 (Dist. Ct. S.D. Ohio), which held that the statute requires the administrators to be given the "opportunity" for input. Otherwise, an administrator would simply ignore the opportunity, and then later claim that the adoption of the policy was invalid. This is simply not an issue that occurs frequently with school districts and does not apply to the public in general. There is no compelling reason for the Court to reconsider the analysis set forth by the District Court in the Mason case.

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The third reason propounded by Appellant regards Ohio's longstanding whistleblower statute, and the applicable statute of limitations, which are not in dispute. (R.C. 4113.52). The statute of limitations is well-established and does not need to be reconsidered. Appellant's case is fact-specific, said facts already having been reviewed by the trial court as well as three (3) judges in the Court of Appeals. Likewise, with regard to Plaintiff's claims of equitable estoppel and tolling. These are longstanding, well-established and explained concepts that need no further consideration.

This case involves nothing more than a school Board abiding by the will of its voters. It was clear that after ten (10) years of growth and construction, the voters were not willing to authorize new levies for further construction/improvements. As a result, Appellant, after being duly warned by his friends and supervisors, no longer had job duties to perform to justify his $90,000-plus per year employment salary. As a result, the Board, being prudent as it should, legally suspended the Appellant's contract under Ohio law. After using the good letter of recommendation provided by the Superintendent to find new employment, Appellant chose to sue the Board, despite having willingly been promoted and receiving significant raises in salary and benefits for more than seven (7) years. This case is of no great general interest to the public or this Court. III. STATEMENT OF THE CASE AND THE FACTS.

Plaintiff was hired by Defendant District in 1997 for maintenance and custodial purposes. (Aronhalt Deposition, pgs. 17 - 18). Plaintiff identified Defendants' Exhibit 1 as all of his contracts while working for the District. He signed each one of the contracts and accepted the pay and benefits that each one provided. He also received a raise each time a new contract was signed. Each one increased his salary. (Id., at pgs. 19 - 31, Defendants' Deposition Exhibit 1.) Plaintiff was hired as a facilities coordinator with a two (2) year contract commencing August 18, 1997. Approximately one and a half years into that contract, the prior Superintendent Johnson changed Plaintiff's duties

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as a supervisor over the maintenance employees, and assigned him additional tasks coordinating all construction for the District. The District was expanding, and had significant construction projects which needed a coordinator. When his initial contract expired, over the next ten (10) years Plaintiff entered into a continuing sequence of contracts up until the last one, ending in 2009. Because of the change of his duties, the contract signed March 18, 2002 changed his title to "Facilities Construction Coordinator." Plaintiff agreed to this new title and contract, as indicated by his signature thereon, as well as the three (3) subsequent two (2) year contracts thereafter. Thus, Plaintiff kept the title of Facilities Construction Coordinator for a little over seven (7) years before his contract was suspended for lack of work in 2008. He received a salary and benefits increase every contract. He never filed any type of legal action with regard to these four (4) contracts, and willingly accepted the title of Facilities Construction Coordinator as well as the increased salary and benefits that came with it. Plaintiff was always a classified employee, and never claimed that he was not an administrator, and there was no labor union for administrators in the District. (Id., at pgs. 29 - 31.) As Facilities Construction Coordinator, Plaintiff was part of the leadership team, that met approximately every two (2) weeks with the Superintendent, the Treasurer, the Business Manager, Principals of all the schools, and all the other administrators. They discussed curriculum, student activities, the direction of the District, updates on any construction, maintenance, custodial, Board policy changes and overall departmental updates. When it was necessary, he would provide an update with regard to the ongoing construction in the District. Thirteen (13) or more administrators attended these meetings. (Id., pgs. 31 - 35.) Plaintiff received regular emails that were sent to the leadership team and was evaluated by Superintendent Castle and thereafter Mr. Stark as well. Plaintiff never denied he was an administrator, never objected to being included in the leadership meetings with the other administrators. He had his own office in the current Board of Education Offices. (Id., at pgs. 34 -

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38.) As Facilities Construction Coordinator his primary duties included the construction process,

design and development, construction review, facilitating new building openings, and "running herd" on the contractors. At times he would disagree with the contractors, walk through the job sites, talk to them about construction that was not being done on time or correctly, reviewing the change orders, reviewing pay applications, and deciding whether pay should be withheld. He had to be tough at times to make sure the contractors were performing the work correctly. Starting in 1997 and thereafter, he supervised the construction of the K-5 elementary school, the K-1 building and the middle school, the K-1 elementary school, the high school expansion, the athletic facility, and the performing arts center. (Id., at pgs. 39 - 44.) These projects lasted from approximately 1997 to March of 2008. These projects were funded through a vote of the community through bond issues. The renovation of the HVAC system in the high school was funded through a House Bill 264 project. Plaintiff admittedly could not identify any other funding that would have been available for these projects if a bond issue had not passed. (Id, at pg. 45 - 49.) Plaintiff begrudgingly admitted at page 49:

Q. Okay. Well, as facilities construction coordinator you were aware that if a bond didn't pass that those construction plans wouldn't take place, correct?

A. Yes. Q. When was the last construction bond passed? A. Again, - - - the last one passed I think it was `02 `03 I'm

guessing. Q. Could it have been 2001? A. Could have.

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Thus, there is no dispute that even by Plaintiff s own recollection, the last construction bond had passed somewhere between 2001 - 2003. Simply put, there was no more funding for any additional construction work in the District after the projects Plaintiff had supervised were completed, the last one in 2008.

Plaintiff identified Deposition Exhibit 6 as part of his presentation to the Board. He admits that while on page 16 it references total construction remaining on the campus in excess of $60,000,000, which came from the master campus planning report, none of the funding for any of that construction had been approved. He testified at page 78:

Q. But at the time you wrote this none of the funding for that had been approved, correct?

A. Correct. Q. No bonds had been issued for that construction, correct? A. Correct. Q. As we sit here today two years later still no funding for that

construction, correct? A. Correct. (Id., at pages 77 - 78, Defendants' Deposition Exhibit 6.) Plaintiff admitted that in March 2007 Superintendent Castle recommended to the Board that his last two (2) year contract be approved, and it was approved by the Board. Plaintiff also admits that after his last contract was approved there was a bond issue in approximately May of 2007 that failed. The purpose of that bond issue was to construct a fifth/ sixth grade building and to expand a kindergarten and a first grade building to accommodate enrollment growth. Plaintiff also admits that a bond issue failed in November 2007 as well. It is clear the voters were not approving these bonds and therefore, there could be no further construction. (Id., at pgs. 49 - 50.) Plaintiff admitted

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