Tuesday, March 12, 2024
Erica Barga v. Village Council of the Village of St. Paris, Case No. 2023-0637
Second District Court of Appeals (Champaign County)
State of Ohio v. Mario D. Mays, Case No. 2023-0839
Sixth District Court of Appeals (Lucas County)
Mahoning County Bar Association v. Brian J. Macala, Case No. 2023-1561
Mahoning County
Is Executive Session Permitted in Council Meeting Considering Removal of Police Chief?
Erica Barga v. Village Council of the Village of St. Paris, Case No. 2023-0637
Second District Court of Appeals (Champaign County)
ISSUES:
- When a village council considers the dismissal of its police chief and the chief requests a public meeting on the dismissal, is council barred from holding an executive session during the meeting?
- What standard of review must a trial court follow in an appeal of a village council decision?
BACKGROUND:
In June 2017, Erica Barga was hired as a part-time police officer for the Village of St. Paris in Champaign County. When the St. Paris police chief resigned, Mayor Joseph Reneer recommended Barga as chief. She was appointed to the post in February 2018.
When Reneer left office, Brenda Cook was appointed as the new mayor and was elected in November 2019 to the position. A year later, Cook suspended Police Chief Barga, alleging insubordination and misconduct.
Barga asked for a public hearing on the charges before the village council. A hearing was held, and the council says it devoted 16 hours over three council meetings to the Barga matter.
Cook testified that as mayor, she has a duty to oversee the police department and direct Barga’s work. Cook asked the chief for weekly schedules and activity reports. The mayor said she wanted weekly meetings with Barga, but Barga avoided them. The mayor also stated that the chief communicated in June 2020 that she would no longer interact face to face with the mayor and that their future communications had to be in writing.
Barga alleged that the mayor interfered with the police department’s day-to-day operations, changed the chief’s official work hours, and wanted her to be available at any hour every day. According to Barga, the mayor also improperly intervened for a resident who got a traffic ticket and said the chief could resign if she didn’t want to work as directed. Barga argued she was harassed and bullied by the mayor and that the mayor made unreasonable demands.
Council Deliberates Privately on Removing Police Chief
After the testimony and evidence were presented, the council voted to go into executive session to deliberate on the proposed dismissal of Barga. After close to two hours in executive session, the council resumed the public hearing and voted 4-2 to dismiss the police chief.
Barga appealed the decision to the Champaign County Common Pleas Court, which in May 2022 upheld the police chief’s removal from office. Barga appealed to the Second District Court of Appeals, which overruled the chief’s claim that the council violated the Open Meetings Act when it went into executive session. The Second District also returned the case to the trial court, concluding that the incorrect standard of review was used.
Barga appealed the decision on the Open Meetings Act to the Supreme Court of Ohio, which agreed to review the issue. The Supreme Court also accepted a cross appeal from St. Paris on how the trial court is to review the evidence in the case.
Former Police Chief Argues Executive Session Violated Open Meetings Law
Barga notes that R.C. 737.171 allows a mayor to file written charges with a village council to remove a marshal or police chief. The law states that the charges must be heard at the next regular meeting of the legislative authority and that the police chief can appear at the hearing and respond to the charges.
The council meeting is governed by R.C. 121.22, Barga maintains. The statute explains that a public entity can hold an executive session with a majority vote and at a regular or special meeting to consider certain things, including:
“(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.”
Barga emphasizes the last part beginning with “unless” and points to the Supreme Court of Ohio decision in Matheny v. Frontier Local Bd. of Educ. (1980). The Court ruled that “a public body may meet in executive session to consider the employment of a public employee, unless the public employee ‘requests a public hearing.’ In that event, an open session must be held.”
The former police chief contends that, according to Matheny, a public entity may not meet in executive session to consider someone’s employment. The village council was required to keep the meeting on her dismissal public, Barga maintains. She rejects the assertion that there is an exception to this requirement for a quasi-judicial hearing on employment issues. That claim contradicts the language of R.C. 121.22, she concludes.
Village Contends That Deliberations at Public Meeting Can Be Closed
St. Paris responds that Barga requested and received a public hearing on the charges. Ohio case law has established that the Open Meetings Act applies to meetings of public entities but not to certain hearings, St. Paris contends. The act applies to public entities performing public functions at public meetings but does not apply when the public entity is performing a quasi-judicial function, the village maintains.
Even when a party can receive a public hearing, that doesn’t automatically mean that the public entity must deliberate on the evidence in an open session, St. Paris argues. When the public entity is acting in a quasi-judicial role, the hearing process isn’t a meeting and deliberations can be held in a private executive session, St. Paris contends.
“Barga received adequate due process, a multi-day public hearing on the charges filed against her, where she presented evidence and questioned witnesses, even during the Covid pandemic,” the St. Paris brief argues. “Village Council lawfully deliberated the charges filed and prosecuted by its Mayor in private, and returned to vote in public. The Open Meetings Act does not apply to quasi-judicial proceedings.”
Village and Former Chief Disagree on Trial Court Standard
The cross-appeal from St. Paris objects to the position that the trial court had to conduct an independent review of the evidence. The village argues that a hybrid review of the evidence is instead the correct standard. With a hybrid review, the trial court decides, as it did in this case, whether there is enough evidence in the record to support the village council’s decision with deference to the council’s actions, St. Paris argues.
Barga counters that her type of appeal requires the trial court to conduct an independent review of the evidence, not a hybrid review. The trial court didn’t owe deference to how the village council evaluated the evidence, and the court was free to substitute its judgment for that of the council, Barga maintains.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Erica Barga: Dwight Brannon, dbrannon@branlaw.com
Representing the Village Council of the Village of St. Paris: Lynnette Dinkler, lynnette@dinkler-law.com
What Is Required on Verdict Form to Convict for Elevated Offense?
State of Ohio v. Mario D. Mays, Case No. 2023-0839
Sixth District Court of Appeals (Lucas County)
ISSUE: To convict a defendant of a more serious offense, does a verdict form that lists the relevant section of state law meet the requirement that the form must state either the degree of the offense or that there was an additional aggravating element?
BACKGROUND:
Mario Mays and C.B. have four children together and are divorced. C.B. has reported to police over the years that Mays has abused her on multiple occasions. She obtained protection orders in 2007, 2011, and 2017. The 2017 order, which was in effect until 2022, prohibited Mays from contacting her.
Mays violated the protection order and was convicted in September 2017 of a misdemeanor for the violation.
Ex-Husband Indicted for Violating Protection Order Again
In March 2020, Mays was indicted on counts of menacing by stalking and violating a protection order, based on events that occurred between November 2019 and February 2020. In November 2019, C.B. attended her grandson’s first birthday party. She was told that Mays wouldn’t be attending. However, he showed up. C.B. said that Mays noticed she was wearing a ring and grabbed her hand, asking whether she had gotten married.
Mays also allegedly attended their son’s Christmas program that year even though C.B. was there. The next month, she reported Mays to police. She informed them that the divorce decree required exchanging their children at a police station for visitations and prohibited Mays from keeping them overnight. She said she was instead doing whatever Mays told her to do regarding the children because she feared for her life and it minimized arguments.
C.B. said she received a call a few weeks later from someone who identified themself as Mays’ lawyer. Based on what was said, she took the children to a police station to deliver them to their father for an overnight weekend visit. At the station, a police officer reminded Mays of the court order prohibiting overnight stays. Mays started screaming and cussing, caused a disturbance in the lobby, and eventually left.
At the October 2021 jury trial, Mays testified. He said that at the birthday party, he played games with the children. While there, he at one point made eye contact with C.B. and decided it was time to leave. He said he only communicated with C.B. in response to her texts, and he blamed his attorney for the situation at the police station.
Specific Findings Necessary for Jury to Convict on Felony
Mays was charged with a fifth-degree felony offense of violating a protection order. To convict Mays on the felony, the jury had to agree that he violated the protection order, that the violation was reckless, and that he had previously been convicted of or pled guilty to violation of a protection order under a domestic violence statute.
The jury found Mays guilty of violating the protection order but acquitted him of menacing by stalking. The trial court sentenced him to 90 days in jail and three years of community control.
Mays appealed to the Sixth District Court of Appeals. He argued that the verdict form signed by the jury was worded in a way that was insufficient to convict him of a felony. In June 2023, the Sixth District disagreed, determining that the verdict form references to certain sections of the Revised Code met the requirements in state law to convict Mays of the felony.
The Sixth District noted, though, that its decision conflicts with one from the Third District Court of Appeals. The Supreme Court of Ohio agreed and will review the conflict between the appeals courts.
Verdict Forms Require Certain Information to Elevate Offense
According to R.C. 2945.75(A)(2), when there is a factor that elevates a crime to a more serious offense, the “guilty verdict shall state either the degree of the offense … or that such additional element or elements are present.” If a verdict form doesn’t include the information, then the conviction is for the lowest level of the charged offense.
The Sixth District noted in its opinion that the verdict form didn’t explicitly state that Mays had been charged with a fifth-degree felony or what the additional aggravating element was. The Sixth District concluded, however, that the verdict form cited relevant sections of state law, including R.C. 2919.27(B)(3), which could only be a fifth-degree felony.
The Third District in State v. Gregory (2013) ruled, though, that listing the statutes doesn’t meet the requirement for verdict forms. The Third District pointed to the Supreme Court of Ohio decision in State v. Pelfrey (2007), which concluded that the verdict form requirement “cannot be fulfilled by demonstrating additional circumstances, such as that the verdict incorporates the language of the indictment, or by presenting evidence to show the presence of the aggravated element at trial or the incorporation of the indictment into the verdict form, or by showing that the defendant failed to raise the issue of the inadequacy of the verdict form.”
Listing Statute Not Enough to Elevate Offense to Felony, Ex-Husband Maintains
Mays argues that listing statutes on the verdict form doesn’t meet the requirement in the verdict form law. To determine the felony level in his case, it would be necessary to go beyond the verdict form and explore additional circumstances, such as evaluating the statutes cited on the form, he maintains. Those additional steps are prohibited by Pelfrey, he contends.
Noting that R.C. 2919.27(B)(3) has three subsections, he asserts that the form also lacked reference to the subsection the jury relied on for its finding. If the Supreme Court rules that listing a statute on the form is adequate, then the statute listed must communicate which of the three subsections in R.C. 2919.27(B)(3) the jury used to find him guilty, Mays argues.
“The verdict form in this case is devoid of the offense level, of the additional circumstances which would enhance the matter to a felony, and a complete code section which would reflect that it is a felony, and the subsection which identifies why it is a felony,” his brief concludes.
Statute Listed on Form Showed Offense Was Felony, State Argues
The Lucas County Prosecutor’s Office disagrees, pointing to the Sixth District ruling. It stated, “The Pelfrey court did not explicitly or implicitly hold that references to specific statutory sections within the verdict form cannot ‘state the degree of the offense’ as required by R.C. 2945.75(A)(2).”
The prosecutor notes that the verdict form in the Mays case listed R.C. 2919.27(B)(3). The listing of that statute meets the requirements of Pelfrey because the reference didn’t require further information outside of the verdict form to determine the offense level, the prosecutor maintains. The reference to R.C. 2919.27(B)(3) on the verdict form makes clear that the offense could only be a fifth-degree felony, the prosecutor contends. Regardless of which subsection applied, the offense was still a fifth-degree felony, the prosecutor notes.
Four other appeals courts have held that a statutory reference on a verdict form is sufficient to elevate the offense, the prosecutor adds.
Attorney General Submit Brief, Asks to Appear at Oral Argument
An amicus curiae brief supporting the Lucas County prosecutor’s position was submitted by the Ohio Attorney General’s Office. The Supreme Court agreed to allow the attorney general to share the time allotted to the prosecutor at oral argument.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Mario D. Mays: Joseph Patituce, attorney@patitucelaw.com
Representing the State of Ohio from the Lucas County Prosecutor’s Office: Evy Jarrett, ejarrett@co.lucas.oh.us
Reprimand Proposed for Attorney Who Forged Signatures on Court Documents
Mahoning County Bar Association v. Brian J. Macala, Case No. 2023-1561
Mahoning County
The Mahoning County Bar Association urges the Supreme Court of Ohio to impose a sanction harsher than a public reprimand on an attorney who forged the signatures of five individuals on two documents submitted to probate court.
The Board of Professional Conduct has recommended that the Supreme Court publicly reprimand Brian J. Macala for his misconduct. The county bar association argues a fully stayed one-year suspension is necessary to convey the seriousness of Macala’s dishonesty.
Attorney Signs Names of Client and Beneficiaries to Court Documents
In early 2020, Macala was in private practice and was also the elected law director of the city of Campbell in Mahoning County. In his private practice, Sandra Billec hired him to represent the estates of family members Marie and Ronald Harris. The estates were relatively complex, and Macala did substantial work for more than two years to identify the estates’ assets.
In April 2022, a probate magistrate scheduled a May hearing for Macala to explain why he was delinquent in filing an estate account form and a status report. Under probate court rules, Macala was required to satisfactorily explain why the information wasn’t filed on time or risk being barred from serving as an attorney in any new estate case.
Three days before the hearing, Macala filed waivers of partial accounts for both estates with the court. Under Ohio law, a partial account must be reported to the court when a final account of the distribution of an estate isn’t completed within a certain amount of time. The heirs and executors of estates can seek to waive the partial account report.
For the Marie Harris estate, Macala forged Billec’s signature on the waiver of partial account document without her knowledge or authorization. For the Ronald Harris estate, Macala forged Billec’s signature as the executor and the names of four estate beneficiaries without the knowledge or signature of any of them. None of the signatures were notarized. After receiving the signed documents, the magistrate canceled the hearing.
A few months later, Billec discovered the forgeries and sent a letter to Macala terminating his services. Macala called Billec to apologize and said he understood why she fired him. He cooperated with Billec in transitioning the estates to another attorney. There was no indication that his conduct impacted the outcome of the administration of the estates and did not harm the interests of the estates or any of the beneficiaries. Macala did not receive any fee for his services.
Beneficiary Files Grievance
One of the beneficiaries whose signature was forged filed a grievance against Macala with the Mahoning County Bar Association. Macala admitted to the bar association that he forged the signatures without the knowledge or consent of his client or the beneficiaries. The bar association filed a complaint against Macala with the Board of Professional Conduct.
After a hearing, the board found Macala violated three professional conduct rules. He failed to communicate to his client and the family that he filed falsified waivers; he made a false statement to the probate court by filing the falsified documents; and he engaged in conduct involving fraud, dishonestly, deceit, or misrepresentation.
When considering a recommended sanction in a disciplinary case, the board considers aggravating circumstances that could increase the penalty and mitigating factors that could lead to a lesser sanction. The board found Macala acted with a dishonest or selfish motive and committed multiple offenses. The board also noted that Macala had no prior disciplinary actions, cooperated fully with the bar association and board, and provided evidence of good character and reputation.
The board noted that for a violation of the rule involving dishonesty, an actual suspension from the practice of law is presumed. However, mitigating factors may warrant a lesser sanction. The board compared Macala’s misconduct with other attorneys whom the Supreme Court has sanctioned for forging signatures. It also noted that Macala's actions weren’t taken in his official capacity as the city law director. Based on all the aggravating and mitigating circumstances, the board recommended that Macala be publicly reprimanded.
The bar association objected to the board’s recommendation, which triggered an oral argument before the Supreme Court.
Stayed Suspension Appropriate, Bar Association Asserts
The bar association notes that during Macala’s representation of the Harris estates, the probate court issued multiple notices of missed filing deadlines. Macala’s filing of the forged documents was a misguided effort to appease an impatient court, the bar association asserts. The Supreme Court has issued several fully stayed suspensions in cases of isolated dishonesty in which mitigating factors are present. Macala’s forgeries are acts of dishonesty toward his client, the beneficiaries, and the court, the bar association notes, but because no one was harmed, the Court would be justified in not actually suspending him. However, one downward step from an actual to a stayed suspension is appropriate, not multiple downward steps to a reprimand, the bar association maintains.
The bar association notes the board compared Macala’s case to other attorneys sanctioned for forgery. The group maintains that the cases the board selected dealt with less egregious instances of forgeries, mostly where the attorney had the client's consent. The bar association cites other cases where the Court has issued a stayed suspension, arguing that those cases include the type of secretive signing Macala committed. The group asserts the stayed suspension sends the appropriate message to Macala and other attorneys that this type of behavior can lead to an actual suspension if they continue their dishonest practices.
Reprimand Protects Public, Lawyer Argues
Macala notes that Court sanctions in disciplinary cases are unpredictable because each case has unique circumstances. The attorney argues the bar association presented the board with the same set of cases it submitted to the Court to argue for the stayed suspension. After reviewing several past cases cited by both parties, the board opted for the public reprimand and concluded that a public reprimand best suits Macala.
Macala notes the stated purpose of attorney discipline is to protect the public and punish the offending lawyer. He states the local news coverage of the proposed reprimand has humbled and embarrassed him to the point that the recommended sanction will ensure he doesn’t repeat his mistakes.
Macala reiterates that his misconduct didn’t affect the probate cases or the clients, and he admits that his actions were foolish but were meant to help, not harm, his clients.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Mahoning County Bar Association: J. Michael Thompson, mthompson@hendersoncovington.com
Representing Brian J. Macala: John Juhasz, jbjuhasz@gmail.com