^ h

No.

IN THE SUPREME COURT OF OHIO

JAMES A. TELB,

PLAINTIFF-APPELLAN'T,

V.

LUCAS COUNTY BOARD OF COUNTY COMMISSIONERS,

DEFENDANT-APPELLEE.

ON DISCRETIONARY APPEAL FROM THE

COUI2T OF APPEALS, SIXTH API'ELLA'rE DISTRIC

LUCAS COUNTY, C3HIo

CASE No. L-13-1069

MEMORANDUM IN SUPPORTOF JURISDICTION

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Richard M. Kerger (0015864)Kimberly A. Conklin (0074726)Kerger & Hartman, LLC33 S. Michigan Street, Suite 100Toledo, Ohio 43604Telephone: (419) 255-5990Fax: (419) 255-5997rk^erPkergerlaw.comkconklinP kergerlaw.com

Gerald R. Kowalski (0022323)Sarah K. Skow (0081468)Cooper & Kowalski, L.P.A,900 Adams StreetToledo, Ohio 43604Telephone: (419) 241-1200Facsimile: (419) 242-5675kowalski@cklpa.comskow@cklpa.com

Counselfor Plaintiff-Appellant,James A. Telb

^^^E=

MAR 10 2014

Counsel for Defendant-Appellee,Lucas County Board of Commissioners

CLERK OF COURTSUPREME COURT OF OHIO

TABLE OF CONTENTS

TABLE OF CONTENTS .............................................................................................................................. i

EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERALINTEREST AND INVOLVES A SUBSTANITAL CClNSTITUIONAL QUESTION . ....... 1

II. STATEMENT OF CASE AND FACTS ...................................................................................... 3

III. ARGUMENT IN SUPPORT OF PROPOSITION OF LAW ..................................................6

Proposition of Law: Where A Prosecuting Attorney Has Failed To Comply WithR.C. 309.09(A), A Court Of Common Pleas MayAuthorize The RetroactiveAppointment Of Counsel And Reimbursement Of Legal Expenses....... .................... 6

CONCLUSICIN............................................................................................................................................11

CERTIFICATE OF SERViCE ..................................................................................................................11

I. EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREATGENERAL INTEREST AND INVCULVES A SUBSTANITAL CONSTITUIONAL

QUESTION.

This case is of public and great general interest because it involves the

interpretation and enforcement of a statute meant to provide protection and legal

representation for county officials in Ohio and a fundamental conflict between

appellate districts regarding the proper extent of that protection. At issue is

whether R.C. 305.14(A) precludes, as a matter of law, the retroactive application and

reimbursement for appointment of outside counsel for county officials involved in a

legal dispute. Further at dispute is whether R.C. 309.09(A) imparts affirmative

duties on a county official, as opposed to the county prosecutor, to undertake steps

to obtain legal representation in matters related to their duties as a county official.

The decision of the Sixth District Court of Appeals holding that R.C,

305.14(A) precludes the retroactive application and reimbursement for

appointment of outside would be a matter of first impression for this Court and

involves a clear conflict between the District Courts of Appeals.

In State ex rel Dreamer, et al. v. Mason, et a1., the Eighth District Court

of Appeals held that a trial court "upon finding that [appellees] acted in good faith

and a well-intended manner in performing their official job duties, may authorize

retroactive appointment of counsel and reimbursement of legal expenses in an

amount fixed by the commissioners." 189 Ohio App.3d 420, 2010-Ohio-4110, 938

N.E.2d 1078, 152.. [Emphasis added.] The Eighth District's Dreamer decision

1

overruled previous Ohio Attorney General Opinions stating that R.C. 305.14(A) did

not allow for retroactive requests for reappointment of counsel, See Ohio

Atty.Gen.Ops. No. 88-055.

Upon review of the Eighth District's Dreamer decision, this Court did

not reach the issue of whether R.C. 305.14(A) allowed for retroactive appointment

as it ruled on other grounds. State ex. rel Dreamer, et aL v. Mason, et al. 129 Ohio

St.3d 94, 2011-Ohio- 2318, 950 N.E.2d 519, ¶ 18. Resolving this conflict now, in a

case in which there is no dispute that the request is being made by a person who is

clearly a county official and entitled to the relief he seeks, is a matter of great public

importance.

R.C. 309.09(A) states without ambiguity that county prosecutors are

the legal representatives of county officials in all legal matters. If the conflict

between the Sixth and Eighth Districts is not resolved, that duty to provide legal

representation becomes very unclear the minute a county prosecutor decides not to

act as required under R.C. 309.09(A). The issues that are left unresolved by the

Sixth and Eighth districts are whether a county prosecutor has a duty to

immediately petition the county commissioners for the appointment of counsel, or

to tell a county official of the right to have outside counsel appointed or whether the

county official can simply refuse to represent the official on the hopes that the

county official fails to seek the appointment of outside counsel or the

reimbursement of attorney fees before the pending legal action concludes.

2

This case presents the ideal vehicle for this Court to address this

matter of first impression and it is important to the operation of county

governments in this state.

II. STATEMENT OF CASE AND FACTS

James A. Telb served as the Sheriff of Lucas County, Ohio for over 26

years. At some point prior to 2010 the Federal Bureau of Investigation began

looking into the death of an inmate at the Lucas County Jail. During this

investfgation, Sheriff Telb began to suspect that he was a target. Sheriff Telb called

the Chief Assistant Lucas County Prosecutor for the Civil Division, Steven

Papadimos, and requested legal representation. Papadimos expressed doubt as to

whether he could provide Telb representation and said that he would. get back with

him. Papadimos Jater told Telb that the Prosecutor's Office would not defend Telb in

a criminal case and took no fiirther action. Papadimos did not provide Telb a reason

for the refusal to represent and did not advise Telb that he had a right to have

outside counsel appointed.

On April 14, 2009, a Federal Grand Jury indicted Sheriff Telb and three

other rnembers of Lucas County Sheriffs Department on various charges related to

an alleged cover-up of trfle circumstances surrounding the inmate's death. In the

wake of this event Sheriff Telb contacted Papadimos again and again was told that

the Prosecutor's office would not represent him. Again he was not provided with

any reason and was not told that he had a right to have outside counsel present.3

Telb secured his own criminal defense counsel at his own cost. The matter

proceeded through trial whereupon a jury of his peers acquitted Sheriff Telb of all

charges.

Following his exoneration, Sheriff Telb again approached the Lucas

County Prosecutor's office and now the Appellee Lucas County Commissioners to

request reimbursement for his legal fees. Clearly the jury's verdict resolved any

doubt that he was acting in furtherance of his official duties as Sheriff. Sheriff Telb

sent letters to the Commissioners and met individually with each. Although the

Commissioners agreed to provide Sheriff Telb legal representation in a civil

wrongful death suit brought by the inmate's family, they once again refused to

indemnify him for his criminal defense.

On May 15, 2011 Appellant James A. Telb filed a Complaint for

Declaratory judgment in the Lucas County Court of Common Pleas seeking an order

that Defendant Lucas County Board of Commissioners reimburse him for legal fees.

On August 1, 2012, following a period of discovery, the Appellee Commissioners

filed a Motion for Summary Judgment in which they sought dismissal of Telb's

complaint on two grounds: (1) Sheriff Telb had not followed the "strict statutory

procedures" to have counsel appointed for him and, (2) The criminal charges did not

"arise" from his official duties as Sheriff.

Sheriff Telb also filed a motion for summary judgment in which he

pointed out that under State ex. rel Dreamer, et al. v. Mason, et al., 129 Ohio St.3d 94,

4

2011 -Ohio- 2318, 950 N.E,2d 519, the Court had the authority to order the

Commissioners to retroactively follow the procedures to seek fees for outside

counsel.

At oral argument on the Motions for Summary Judgment, the

Commissioners argued tha.t the County Prosecutor had the discretion to deny

representation to Sheriff Telb based upon the determination that the criminal

charges did not arise from a "good faith well-intended attempt to perform public or

official duties". Once the County Prosecutor made that decision, the argument was it

was then incumbent upon Sheriff Teib to file a Mandamus action prior to the end of

the criminal matter in order to obtain relief from this determination. Since he did

not do this, argued the Commissioners, there was no remedy. ( ld, at p. 11.) The trial

court agreed with the Commissioners and granted summary judgment concluding

that Sheriff Telb had "failed to cornplywith the requirements of R.C. 309.09(A)."

On January 31, 2014, the Sixth District Court of Appeals affirmed,

finding that pursuant to Ohio Revised Code §305.14(A), because Appellant neither

requested nor did the Commissioner or prosecuting attorney apply to the Court of

Common Pleas for appointment of outside counsel, Appellant was precluded from

seeking reimbursement now.

5

III. ARGUMENT IN SUPPORT OF PROPOSITION OF LAW

Proposition of Law: Where A Prosecuting Attorney Has Failed ToComply With R.C. 309.09(A), A Court Of Common Pleas MayAuthorize The Retroactive Appointment Of Counsel AndReimbursement Of Legal Expenses.

Both the tr-ial_ court and the appellate court held that the Appellant's

request for reimbursemerit of fees was barred because an application for fees had

not been brought while the underlying action was pending pursuant to R.C.

305.14(A). However, R.C. 305.14(A) does expressly preclude the retroactive

application for appointment of counsel or the reimbursement for fees. Indeed the

statute is completely silent as to the timing of an application for the appointment of

counsel or the reimbursement for fees. Moreover, this holding punishes the county

official because the county prosecutor failed to take action.

R.C. 305.14(A) states:

"The court of common pleas, upon the application of theprosecuting attorney and the board of county commissioners,may authorize the board to employ legal counsel to assist theprosecuting attorney, the board, or any other county officer inany matter of public business coming before such board orofficer, and in the prosecution or defense of any action orproceeding in which such board or officer is a party or has aninterest, in its official capacity."

R.C. 309.09(A) states:

"The prosecuting attorney shall be the legal adviser ofthe board of county commissioners, board of elections, allother county officers and boards, and all tax-supported publiclibraries, and any of them may require written opinions orinstructions from the prosecuting attorney in mattersconnected with their official duties. The prosecuting attorney

6

shall prosecute and defend all suits and actions that any suchofficer, board, or tax-supported public library directs or towhich it is a party, and no county officer may employ any othercounsel or attorney at the expense of the county, except asprovided in section 305.14 of the Revised Code."

The language of these statutory provisions is clear and unambiguous.

The prosecutor "shall" be the advisor and "shall" defend all officers in "all suits and

actions". If the prosecutor requires assistance to fulfil this obligation, then R.C.

305.14(A) provides the mechanism by which the county prosecutor or county

commissioners go about appointing outside counsel.

The statutes do not impose a duty upon the county official to seek the

appointment of counsel.

This Court has previously acknowledged a prosecuting attorney's

affirmative duty to either represent a county official or seek the appointment of

counsel. In State ex rel. Corrigan v. Seminatore, 66 Ohio St.2d 459, 463, 423 N.E.2d

105 (1981) this Court ruled that where a prosecuting attorney or the board of

county commissioners refused to afford counsel to a county board in defense of an

action pending against the members of that board, mandamus would be an

appropriate remedy to compel the prosecuting attorney and the board to make

application to the common pleas court, "because failure to do so constitutes an

abuse of discretion." (Emphasis added.)

But what happens when a county official does not file a petition for

mandamus while the criminal action is pending? It certainly does not make the

7

refusal to represent or the refusal to appoint counsel any less of an abuse of

discretion. In this matter, the trial court and the court of appeals both held that

because Sheriff Telb had "failed to follow the duties of R.C. 305.14(A)", it was too

late to seek relief.

This finding ignores the "abuse of discretion" noted in State ex reL

Corrigan v. Seminatore and furthermore imposes a duty on county official to act

where the statute gives him no authority to act. R.C. 309.09(A) does not require a

county official to take any action. Indeed the statute precludes such conduct. The

only directives in R.C. 309.09(A) and R.C. 305.14 are to the county commissioners

and the prosecuting attorney.

R.C. 309.09(A) should not be interpreted to allow a county prosecutor

to simply to tell the county official, in effect, "You are on your own" and then do

nothing. The statute requires representation or for the prosecutor to go to the

county commissioners to secure permission to seek appointment of special counsel.

The County Prosecutor cannot simply stop the process by telling the public official,

"Take care of it yourself."

In the current case, Sherif Telb never had a chance to even have the

court of common pleas consider whether he was entitled to have counsel appointed

or be reimbursed simply because he waited until the federal criminal matter was

over before he sought relief on his own. And yet his lawyer, the Lucas County

8

Prosecutor failed to advise him that he had the right to seek a remedy or that he

needed to do it before the criminal matter was over.

Appellant was the Sheriff. He was not a lawyer. His lawyer, by statute,

was the Lucas County Prosecutor. As such, that office was bound by R.C. 309.09(A)

to give him legal counsel and if that meant that outside counsel be appointed under

R.C. 305.14(A) it was that office's duty to see that this took place or to at the very

least advise him of his rights. Furthermore, it was the County Commissioners' duty

to demand that that take place upon request from the Appellant.

The trial court and appellate court's interpretation of the statutory

scheme allows the County Commissioners to avoid having to provide representation

to a county official as required by law, by simply pointing to the failure of its

prosecuting attorney to abide by its duties under R.C. 309.09(A). The interpretation

is unjust and unrealistic.

In Dreamer, supraf the Ohio Supreme Court dealt with a request for

reimbursement of legal fees made after the representation that occurred. This Court

overturned the lower court's ruling because those seeking reimbursements were

not county officials. In this case the Appellant was clearly a county official. What

this Court should do to affirm and adopt what the Eighth District Court of Appeals

held in its underlying decision: that a trial court "upon finding that [appellees] acted

in good faith and a well-intended manner in performing their official job duties, may

authorize retroactive appointment of counsel and reimbursement of legal

9

expenses in an amount fixed by the commissioners." 189 Ohio App.3d 420, 2010-

Ohio-4110, 938 N.E.2d 1Q78,152. [Emphasis added.]

This finding does not run contrary to the statutory scheme and indeed

upholds the protections the statute is meant to afford. This finding will further

make certain that public officials who have dedicated their lives to serving the

citizens of Ohio, like Sheriff Telb, are not required to sacrifice their life savings to

defend themselves against claims which relate directly to their performance of

duties as a public official. To allow county commissioners to hide behind the

improper conduct of their lawyer is wrong.

10

CONCLUSION

This case involves matters of public and great general interest. The

Appellant respectfully requests that this Court accept jurisdiction in this case

and clarify a prosecuting attorney's duty to represent county officials under R.C.

309.09(A) and R.C. 305.14(A) and to allow the retroactive appointment of counsel

and reimbursement of fees where a prosecuting attorney refuses to act.

Respectfully submitted,

RICHARD M. KERGER (0015864)

KIMBERLYA. CONKLIN (007472(

By .G='

nsel for Plaintz^`f-AppellantKERGER & I-IAR'rMAN, LLC

33 S. Michigan St., Suite 100Toledo, OH 43604Telephone: (419) 255-5990FAX: (41.9) 255-5997

CERTIFICATE OF SERVICE

This is to iertify that a copy of the foregoing was mailed this&iay of

March, 2014 to:

Gerald R. Kowalski, Esq.Sarah K. Skow, Esq.

Cooper & Kowalski, LPA900 Adams StreetToledo, OH

1

r, - a` f ^ `^'^ (j• 03

IN THE COURT OF APPEALS OF OHIOSIXTH APPELLATE DISTRICT

LUCA.S COUNTY

James A. Telb

Appellant

V.

Court of Appeals No. L-13-1069

Trial Court No. CI020I 103305

Lucas County Board of CountyCommissioners

Appellee

DECISION AND JUDGMENT

Decided:?JAN 3 12014

Richard M. Kerger and Kimberly A. Conklin, for appellant.

Gerald R. Kowalski and Sarah Skow, for appellee.

PIE'I'RYKOVVSKI, J.

J¶ 11 Plaintiff-appellant, James A. Teib, appeals the March 22, 2013 judgment of

the Lucas County Court of Common Pleas which granted summary judgment in favor of

appellee, Lucas County Board of County Commissioners. Because we find that there are

no genuine issues remaining for trial, we affirm.

L E-JOURNALIZEDJAN 3 12014

{^ 2) Appellant commenced this declaratory judgment action on May 16, 2011.

At all times relevant herein, appellant was employed as the elected Sheriff of Lucas

County, Ohio_ Appellant reqtiested that the court declare that the Lucas County Board of

County Commissioners ("the Commissioners") reimburse him for legal expenses

incurred following a criminal indictment and trial in the United States District Court for

the Northem District of Ohio. The April 14, 2009 indictment stemmed from allegations

that appellant provided false statements in an attempt to conceal the circumstances of the

death of an inmate at,the Lucas County Jail. Following a five-week trial, appellant was

acquitted of the charges.

{$ 31 On July 14, 2011, the Commissioners filed a motion for judgment on the

pleadings arguing that appellant's contention that they had a "moral obligation" to

reimburse his legal fees was Iegallyunsupportabie. In opposition, appellant referred to

an Ohio appellate case which found that the county board of commissioners and the

prosecuting attomey abused their discretion when they refused to apply to the common

pleas court for reimbursement of the board of election employees legal fees incurred in

their defense of criminal charges. State ex rel. Dreamer v.1llason, 189 Ohio App.3d 420,

2010-Ohio-4110, 938 N.E.2d 1078 (8th Dist.2010).

{¶ 41 Appellant also filed motion for leave to file an amended complaint for

declaratory judgment. The Commissioners opposed the motion. On September 15, 2011,

2.

the trial court granted appellant's motion for leave and denied the Conunissioners'

motion for judgment on the pleadings. The amended complaint contained claims for

unjust enriclunent and breach of duty

{¶ 51 On .August 1, 2012, the Commissioners filed a motion for summary

judgment based on three legal arguments. First, they claimed that Ohio law prohibits

reimbursement of a county officer's legal fees after the case has concluded. Next,

appellant failed to comply with the "strict statutory requirements" for having the

Commissioners approve outside counsel. And third, th r federal charges against appellant

could not be construed as a stemming from a "good-faith" attempt to perform his duties.

In support of the motion, the Conzinissioners relied on appellant's deposition as well as

the deposition of assistant prosecuting attorney Steven Papadimos.

{T b} On August 3, 2013, appellant filed a motion for sunn'm:ary judgment

cc-irtending that he was entitled to declaratory relief because the criminal charges arose

from the performance of his official duties and he was acquitted. Appellant relied on the

Dreamer decision as well as the Supreme Court of Ohio's decision on appeal. See State

ex rel. Dreamer v. ,llason, 129 Ohio St.3d 94, 2011-Ohio-2318, 950 N.E.2d 519.

Appellant also relied on his and Papadimos' deposition testimony. Briefs in opposition to

the motions were filed.

{^ 71 An oral hearing on the cross-motions was held on February 20, 2013. On

March 22, 2013, the trial court granted the Comxnissioners' motion for sumznary

judgment and denied appellant's motion for summary judgment. The court held that

3.

because appellant failed to request that the prosecutor and the Commissioners petition the

court of common pleas for appointment of outside counsel until after the matter had

concluded, he failed to comply with the statutory requirements under R.C. 309.09(A).

The court indicated that appellant could have written a letter to the Commissioners and

the prosecuting attorney demanding action or could have commenced an action seeking

to compel the prosecuting attomey to represent him or for permission to retain counsel at

county expense. The court also relied on two Ohio Attorney Qeneral Opinions which

indicated that the application for counsel tuust be naade.prior.to the conclusion of the

matter. The-court further commented that because the factual scenario in Dreamer, was

too divergent from the present facts it was "inapposite." Finally, the court noted that if

there had been a breach of duty, it was by the prosecuting attorney who was not a party to

the action. This appeal followed.

$¶ 8} On appeal, appellant raises the following assignnient of error:

The trial court committed error when it granted summary judgment

in favor of appellees by finding that appellant failed to comply with R.C.

309.09(A).

{^ 9} We initially note that appellate review of a trial court's grant of summary

judgment is de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E..2d

241 (1996). Accordingly, we review the trial court.'s grant of summary judgment

independently and without deference to the trial court's determination. Brown v. Scioto

Cty. Bcl. of Commrs., 87 Ohio App.3d 704, 711, 622 N.E.2d 1153 (4th Ltist.1993).

4.

Summary judgment will be granted only when there remains no genuine issue of material

fact and, when construing the evidence most strongly in favor of the nonmoving party,

reasonable minds can only conclude that the moving party is entitled to judgment as a

matter of law. Harless v. lVillis Day Warehousing Co., 54 Ohio St.2d 64, 66, 375 N.E.2d

46 (1978). The btirden of showing that no genuine issue of material fact exists falls upon

the party who moves for summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 294,

662 N.E.2d 264 (1996). However, once the movant supports his or her motion with

appropriate evidentiary materials, the nonmoving party "may not rest upon the mere

allegations or denials of the party's pleadings, but the party's response, by affidavit or as

otherwise provided in this rule, must set forth specific facts showing that there is a

genuine issue for trial." Civ..R. 56(E).

{T 10} The statutory sections implicated in this action are R.C. 309.09(A) and

305.14(A). R.C. 309.09(A) provides:

The prosecuting attorney shall be the legal adviser of the board of

county commissioners, board of elections, all other county officers and

boards, and all tax-supported public libraries, and any of them may require

Nvritten opinions or instructions from the prosecuting attorney in matters

connected with their official duties. The prosecuting attorney shall

prosecute and defcnd all suits and actions that any such officer, board, or

tax-supported public library directs or to which it is a party, and no county

5.

{

£

officer inay employ any other counsel or attomey at the expense of the

county, except as provided in section 305.14 of the Revised Code.

f^ ll} R.C. 305.14(A) states:

The court of common pleas, upon the application of the prosecuting

attorney and the board of county commissioners, may authorize the board

to employ legal counsel to assist the prosecuting attomey, the board, or any

other county officer in any inatter of public business coming before;such

b,oard or officer, and in the prosecution or defense of any action or

proceeding in which such board or officer is a party or has an interest, in its

official capacity.

1¶ 12} In his sole assignment of error, appellant argues that the trial court

erroneously concluded that R.C, 309.09(A) imposed an affirmative duty vn appellant. He

states that the statutory provisions place a duty on the Lucas County Prose>.:uting

Attorney and the Conun.issioners to either defend appellant in the criminal prosecution or

petition the court of .,ommon pleas for the retention of outside counsel. Appellant

contends that the prosecuting attomey and the Commissioners further failed to act when

they failed to petition the court of conunon pleas to appoint him outside counsel.

{T 13} Appellant asserts that the autcome of this action is "determined" by the

above-cited case of Dreamer, 129 Ohio St.3d 94, 201l-Ohio-2318, 950 N.E.2d 519. In

Dreamer, the Ohio Supreme Court determined that the county board of elections

employees were not "county officers" and, thus, were not entitled to reimbursement of

6.

legal fees under R.C. 309.14(A), The court, however, did not address the issue decided

in the lower court regarding whether mandamus was the proper remedy where the board

of commissioners failed to apply for the appointment outside counsel for board of

elections employees. Dreamer, 189 Ohio App.3d 420, 2010-Ohio-4110, 938 N.E.2d

1078.

{¶ 14} In Dreamer, the relators were board of elections employees who were

accused of not complying A ith the statutory provisions regarding a ballot recount.: Id. at

¶ 3. Following their indictments they obtained independent counsel. Id. at ¶ 6. Counsel

repeatedly requested that the elections board ask the respondents, county conunissioners

and the prosecuting attorney, to apply to the court of common pleas for authorization for

them to employ him as legal counsel. Respondents did not apply to the court because

they believed that the prosecutor could find that the relators' conduct did not constitute a

well-intended attempt to perform their official duties. Id. at !^ 7.

{¶ 15} The appellate court disagreed noting that the affidavits demonstrated that

the elections board committed to pay the relators' legal fees if they were acquitted of the

crirninal charges. Further, an assistant county prosecutor informed the board members

that the county would pay the legal fees if the relators were acquitted. Id.atT 8. The

proceedings concluded in September 2008, with no convictions. Id. at ¶ 38.

Approximately one year later, relators commenced the mandamus action. Id.

{¶ 16} After initially determining that the relators met the definition of "officers"

as provided under R.C, 309.09(A) (the finding that was reversed on appeal), the court

7.

tumed to the merits of the action. In granting realtors' motion for summaryjudgment,

the court found that due to the prosecuting attomey's conflict of interest, the respondents

had a clear legal duty to apply for the appointment of outside counsel in the court of

common pleas. The court noted that based on the specific facts of the case,

representation of relators created a conflict of interest and the failure to make the

application was an abuse of d1scretion. Id. at ¶ 34. The court then found that the relators

had no other adequate remedy at la1A: Id. at ^ 36.

{¶ 17} The final issue addresse°d by the court,was whether the matter had been

brought within a reasonable time. The court first noted that the respondents' wrongful

act continued throughout the litigation. Id. atT 39. Distinguishing Ohio Attorney

General Opinions which state that reimbursement is precluded after the conclusion of the

legal action, the court noted:

[R]elators did not hire :,ndependent counsel merely on their own

initiative. Relators relied on continuous support and representations from

the BOE that their legal fees would be paid. Additionally, relators

petitioned the BOE, who, in turn, petitioned respondents to apply for the

appointment. In the end, the county refused to provide relators with advice,

and respondents refused to make the appropriate application under R.C.

305.14. Id. at'[[ 46.

The court concluded that "under the limited circumstances" of the case, mandamus was

the appropriate remedy. Id. at^ 5 l.

8.

{¶ 18) Unlike Drercmer, it is undisputed that appellant is a county officer as

provided under R.C. 309.09(A) and that the county prosecuting attomey was the "legal

advisor" to appellant. Also distinguishable from Dreamer is the critical fact that neither

appellant nor his counsel ever requested that the prosecuting attorney or the

Commissioners apply to the court for the appointment of outside counsel until after the

conclusion of the federal action on December 3, 2010. At no point were representations

made that the county would reiniburse appellant for his legal expenses. Moreover,

Dreamer involved a mandamus, rather thaza a declaratory judgment action.

{¶ 191 In his deposition, appellant stated that he had two pre-indictment telephone

conversations with the assistant prosecutor where the prosecutor indicated that he did not

believe that the office could represent appellant due to the nature of the charges and that

they would not provide private counsel. Following his acquittal, appellant's counsel

wrote a letter to Assistant Prosecutor Steven Papadimos, dated December 10, 2011,

requesting indemnification. Appellant met with the prosecuting attorney and Papadimos

and informed them that he felt he should b° reimbursed for his legal expenses.

According to appellant, they indicated that they would speak with the Comniissioners.

{¶ 20} Papadimos' deposition testimony confirmed that early in the criminal

matter appellant had contacted the prosecutor's office about representation. Papadimos

stated that he informed appellant that he had never encountered a similar situation and

that appellant should address it with the Commissioners.

9.

s

{¶ 21} On January 10, 2011, appellant wrote letters to each of the three

Commissioners requesting indemnification for his legal expenses. Appellant admitted

that he had had no prior oral or written communication with the Commissioners on the

subject. Following the letters, appellant met separately with each commissioner.

According to appellant, no promises to pay were made but that there were indications that

the matter would be investigated.

{¶ 221 As noted in Dreamer, the Ohio Attoraey General determined that "R.C.

309.09 and R.C. 305;14 do not authorize a board of -,ounty commissioners to reimburse a,

county officer for expenses incurred in a legal actio;t which is no longer pending." 1988

Ohio Atty.Gen.Ops. No. 88-055, at syllabus. In reaching his decision, the attomey

general observed that the cost-saving policy considerations in R.C. 305.17, which

authorizes the boaid of commissioners to set the coznpensation of all individuals

appointed or employed under R.C. 305.14, would b^ undercut by ad hoc requests for

reimbursement. Further, he considered the languagF^ used in R.C. 305.14, which permits

"employment" of outside counsel (a prospective ac°+ion), not reimbursement. Accord

1990 Ohio Atty.Gen.Ops. No.90-096 (where no application to the court of common pleas

was sought as required under R.C. 305.14(A), the board could not reimburse the county

children services executive secretary for expenses of privately retained legal counsel.)

{^ 231 Based on the foregoing, we find that because appellant neither requested,

nor did the Commissioners or prosecuting attorney apply to the court of common pleas

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for the employment of outside counsel under R.C. 305.14(A), appellant is precluded from

seeking reimbursement. Accordingly, there are no genuine issues remaining for trial and

appellant's assignment of error is not well-taken.

{¶ 24} On consideration whereof, we find that substantial justice was done the

party complaining and the judgment of the Lucas County Court of Common Pleas is

affrrmed. Pursuant to App.R. 24, appellant is ordered to pay the costs of this appeal.

Judgment affirmed.

A certified copy of this entry shall constitute the manifate pursuant to App.R. 27. Seealso 6th Dist.Loc.App,R, 4.

Mark L. Pietrykowski, J.

Arlene ;in er. J.

Thomns J. Osowik, J.CONC' JR.

This decisio!: is subject to further editing by the Supreme Court ofOhio'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/newpcif/?source-6.

11.

7 41) E