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Desmond v. Mahoning County Prosecutor's Office

Court of Appeals of Ohio, Seventh District, Mahoning

November 27, 2019

Martin Desmond Appellant
Mahoning County Prosecutor's Office Appellee

          Court of Appeals No. 2018 MA 0109 Trial Court No. 2017 CV 02675


         This case is before the court upon a motion to certify a conflict, filed by defendant-appellee, the Mahoning County Prosecutor's Office ("the prosecutor's office"). Plaintiff-appellant, Martin Desmond, filed a response brief, and the prosecutor's office filed a reply brief in support of its motion.

         The prosecutor's office contends that there exists a conflict between our judgment and the judgment of the Tenth District Court of Appeals in Haddox v. Ohio Atty. Gen., 10th Dist. Franklin No. 07AP-857, 2008-Ohio-4355. Because we conclude that our judgment did not involve the same question as Haddox and did not set forth a rule of law that conflicts with Haddox, we find the motion of the prosecutor's office not well-taken.

         I. Background

         Desmond was employed as an assistant prosecuting attorney with the Mahoning County prosecutor's office until April 5, 2017, when the elected prosecutor, Paul Gains, terminated his employment. Desmond claims that his employment was terminated in retaliation for making a report against a co-worker under R.C. 124.341, Ohio's whistleblower statute.

         Desmond appealed the decision to terminate his employment to the State Personnel Board of Review ("SPBR"). SPBR dismissed his appeal for lack of jurisdiction. It found, inter alia, that the whistleblower statute includes a good-faith requirement, and it concluded that the content and context of Desmond's report make clear that it was not made in good faith because (1) Desmond had knowledge of his co-worker's alleged misconduct for approximately ten months before reporting it to his supervisors; (2) he had months to prepare a written report, but did not do so until after his supervisors were already aware of the alleged misconduct; and (3) he made his report only after his supervisors ordered him to submit a written report.

         Desmond appealed SPBR's decision to the Mahoning County Court of Common Pleas. The trial court affirmed, and Desmond appealed to this court. In a decision released on October 3, 2019, we reversed. Desmond v. Mahoning Cty. Prosecutor's Office, 2019-Ohio-4282, -- N.E.3d -- (7th Dist.). We found that SPBR misinterpreted R.C. 124.341 when it dismissed Desmond's case for lack of jurisdiction. We explained that under R.C. 124.341, an employee seeking to establish that his or her employer's action was in retaliation for a whistleblower activity must show that he or she (1) filed a written report, (2) with his or her supervisor, appointing authority, state inspector general, or other appropriate legal official, (3) that identifies "a violation of state or federal statutes, rules, or regulations, or the misuse of public resources." Given that R.C. 124.341 provides no time frame for making a report, contains no requirement that a supervisor be unaware of the conduct reported, and does not specify that the protections of the statute will be lost if an employee is directed by his employer to make a report, we held that the SPBR imposed additional requirements upon Desmond not contained in the statute.

         The prosecutor's office now moves this court to certify a conflict between our decision and the decision of the Tenth District Court of Appeals in Haddox, 10th Dist. Franklin No. 07AP-857, 2008-Ohio-4355. It proposes the following conflict question:

Is there a good-faith requirement, pursuant to which the content and the context of a written report must be considered to establish a R.C. 124.341 whistle-blower claim?

         II. Legal Standard

         Section 3(B)(4), Article IV of the Ohio Constitution provides that, "[w]henever the judges of a court of appeals find that a judgment upon which they have agreed is in conflict with a judgment pronounced upon the same question by any other court of appeals of the state, the judges shall certify the record of the case to the supreme court for review and final determination." The Ohio Supreme Court has explained that three conditions must be met before certifying a case under Section 3(B)(4), Article IV of the Ohio Constitution: (1) "the certifying court must find that its judgment is in conflict with the judgment of a court of appeals of another district and the asserted conflict must be 'upon the same question'"; (2) "the alleged conflict must be on a rule of law-not facts"; and (3) "the journal entry or opinion of the certifying court must clearly set forth that rule of law which the certifying court contends is in conflict with the judgment on the same question by other district courts of appeals." (Emphasis omitted.) Whitelock v. Gilbane Bldg. Co., 66 Ohio St.3d 594, 596, 613 N.E.2d 1032 (1993).

         III. Haddox v. Ohio Attorney General

         The prosecutor's office insists that our decision is in conflict with Haddox. In Haddox, the plaintiff was an assistant attorney general ("AAG") who, in addition to her duties to represent the attorney general's office ("AGO") in workers' compensation matters, also had supervisory responsibilities for subordinate attorneys. Haddox became displeased with the performance of one of her employees (Pinkerton), and she reported this to her immediate supervisor (Barnes).

         In particular, Haddox questioned the legitimacy of Pinkerton's accrual of compensatory time. Haddox met with Pinkerton about this in early October 2005. In late October 2005, Barnes submitted an internal report to AGO auditors that detailed employee hours and accrual of compensatory time. Pinkerton's name was omitted from the report. Haddox believed that the omission was intentional. She told a ...

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