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Bode v. Concord Township Board of Trustees

Court of Appeals of Ohio, Eleventh District, Lake

July 1, 2019

DOUGLAS BODE, Plaintiff-Appellant,
v.
CONCORD TOWNSHIP BOARD OF TRUSTEES, Defendant-Appellee.

          Civil Appeal from the Lake County Court of Common Pleas, Case No. 2017 CV 000750. Judgment: Affirmed.

          David C. Comstock, Jr. and Christopher F. Mars, Bonezzi Switzer Polito & Hupp Co., LPA, (For Plaintiff-Appellant).

          Michael C. Lucas and Stephanie E. Landgraf, Wiles and Richards, (For Defendant-Appellee).

          OPINION

          TIMOTHY P. CANNON, J.

         {¶1} Appellant, Douglas Bode ("Mr. Bode"), appeals a judgment in the Lake County Court of Common Pleas dismissing his administrative appeal based on subject matter jurisdiction for failure to timely file under the limitation period established in R.C. 505.38. We affirm the trial court's judgment.

         {¶2} The facts in the matter are not in dispute. Mr. Bode was suspended for six months and demoted from a part-time lieutenant to a part-time firefighter/paramedic with the Concord Township Fire Department following a series of incidents alleging unacceptable conduct.

         {¶3} The suspension was originally discussed by the Concord Township Board of Trustees (the "Board") at a March 27, 2017 meeting during an executive session for which Fire Chief Matthew Sabo ("Chief Sabo") was invited to attend. Following the meeting and that same day, Chief Sabo drafted a two-page letter to Mr. Bode informing him that he would be suspended and demoted, outlining the unacceptable conduct, citing the Standard Operating Guidelines that were violated, and stating that the suspension and demotion was "effective immediately." Mr. Bode signed the letter where prompted, acknowledging receipt.

         {¶4} Thereafter, the Board approved the suspension and demotion orally at its regularly scheduled April 5, 2017 meeting. The minutes of that meeting, which contained the vote in favor of Mr. Bode's suspension and demotion, were approved by the Board on April 19, 2017.

         {¶5} On May 8, 2017, Mr. Bode filed a notice of appeal of the administrative decision to the Lake County Court of Common Pleas, citing a litany of failures by the Concord Township Fire Department and the Board to comply with mandated procedures for imposing removal. Among them, Mr. Bode argued that (1) the allegations made against him were not properly investigated; (2) charges were not properly prepared; (3) Chief Sabo failed to follow the statutory requirements imposed upon him as Fire Chief; (4) the Board failed to properly consider the charges-which were never prepared or presented to the Board; and (5) he was denied a hearing and a chance to present evidence and testimony to defend himself, in violation of his rights to due process.

          {¶6} The Board filed a motion to dismiss the appeal as time-barred under R.C. 505.38(A). Mr. Bode responded, contending that the 10-day limitation period contained in R.C. 505.38(A) is not applicable to his appeal, and that the 30-day limitation contained in R.C. 2505.07 applied.

         {¶7} On October 26, 2017, the trial court denied the Board's motion to dismiss based on a factual mistake. The court stated an incorrect date of May 8, 2017, as the date that the Board adopted the meeting minutes approving Mr. Bode's suspension and demotion, rather than the correct date of April 19, 2017.

         {¶8} On November 3, 2017, the Board filed a motion for reconsideration in light of the mistaken date, and the trial court acknowledged the error. The appeal was dismissed by the court for want of jurisdiction under R.C. 505.38(A) because more than 10 days had passed from the adoption of the meeting minutes on April 19, 2017, before the filing of the notice of appeal on May 8, 2017.

         {¶9} Mr. Bode filed a timely notice of appeal from the dismissal and raises the following assignment of error for our review:

         {¶10} "The trial court erred in granting appellee's motion to dismiss and dismissing appellant's administrative appeal as untimely because the ten (10) day limitation period for filing an administrative appeal set forth in R.C. ...


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