[Cite as Shelby Ct. Bd. of Commrs. v. Kimpel, 2014-Ohio-3191.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               SHELBY COUNTY




THE SHELBY COUNTY BOARD
OF COMMISSIONERS,

        PLAINTIFF-APPELLANT,                                     CASE NO. 17-13-20

        v.

DEAN KIMPEL,                                                     OPINION

        DEFENDANT-APPELLEE.




                 Appeal from Shelby County Common Pleas Court
                           Trial Court No. 12CV000400

                                     Judgment Affirmed

                             Date of Decision: July 21, 2014




APPEARANCES:

        William D. Maynard and Judith B. Goldstein for Appellant

        Michael A. Rumer and Andrea M. Brown for Appellee
Case No. 17-13-20


WILLAMOWSKI, P.J.

      {¶1} Plaintiff-appellant the Shelby County Board of Commissioners (“the

Board”) brings this appeal from the judgment of the Court of Common Pleas of

Shelby County granting summary judgment to defendant-appellee Dean Kimpel

(“Kimpel”). For the reasons set forth below, the judgment is affirmed.

      {¶2} The following background was provided by the parties in their briefs

and agreed upon by the parties as the underlying facts of this case. On August 21,

2011, Kimpel was indicted by the Auglaize County Grand Jury on one count of

sexual battery, a felony of the third degree in violation of R.C. 2907.03(A)(2).

Kimpel at that time was the elected Sheriff of Shelby County. On September 22,

2011, the prosecuting attorney gave notice pursuant to R.C. 3.16(B)(1) to the

Chief Justice of the Ohio Supreme Court that Kimpel had been charged with a

felony.   The prosecuting attorney requested that the Chief Justice appoint a

commission to investigate and to impose a suspension on Kimpel. This filing was

based solely upon the charge pending in Auglaize County.

      {¶3} On September 29, 2011, Kimpel was indicted by the Shelby County

Grand Jury on five counts of unauthorized use of the Ohio Law Enforcement

Gateway in violation of R.C. 2913.04(D), all fifth degree felonies. No notice of

these charges was provided to the Supreme Court at this time. On October 6,

2011, Kimpel and the prosecuting attorney entered an agreed entry provisionally


                                       -2-
Case No. 17-13-20


suspending Kimpel from his duties as Sheriff during the pendency of the Auglaize

County case. The entry was signed by the trial judge in Auglaize County.

      {¶4} On October 19, 2011, the special commission, established pursuant to

R.C. 3.16(C)(2), entered a notice of preliminary determination finding the

Auglaize County indictment to be sufficient cause to support Kimpel’s suspension.

No appeal of the determination was made. On November 14, 2011, the Special

Commission issued its notice of final determination. This notice, which was not

appealed, imposed a suspension, which was effective from the date of the agreed

provisional suspension.

      {¶5} On April 13, 2012, Kimpel entered a plea of guilty to one amended

count of the Shelby County indictment.        The plea was to one count of

Unauthorized Use of a Computer in violation of R.C. 2913.04(B), a felony of the

fifth degree.   The remaining counts of the Shelby County indictment were

dismissed. Kimpel then appeared in the Auglaize County Court of Common Pleas

where it was agreed that the prosecutor would enter a nolle prosequi with

prejudice. However, the decision was made to delay this action until after Kimpel

was sentenced in Shelby County so that his suspension would not be terminated

prior thereto. Subsequently, Kimpel appeared in the Shelby County Court of

Common Pleas and was sentenced.        Kimpel also tendered his resignation as

Sheriff of Shelby County at that time. Kimpel then returned to Auglaize County


                                       -3-
Case No. 17-13-20


where the motion to nolle prosequi with prejudice was granted. On August 21,

2012, the prosecuting attorney filed with the Ohio Supreme Court a suggestion of

disposition informing the Court of the disposition of the Auglaize County case as

well as that of the Shelby County case. This was the first time the Shelby County

case had been officially brought to the attention of the Court.

       {¶6} On December 24, 2012, the Board filed a complaint in the Shelby

County Court of Common Pleas to recover the salary paid to Kimpel during his

suspension. Doc. 1. Kimpel filed his answer denying that he owed the salary to

the Board on January 22, 2013.         Doc. 7.    Kimpel’s answer also alleged a

counterclaim seeking a declaratory judgment that the Board had no right to recoup

his salary when the underlying charge for which he was suspended was dismissed

by nolle prosequi with prejudice, and to recover reasonable attorney fees,

expenses, and costs. Id. The Board filed its answer to the counterclaim on

February 13, 2013. Doc. 12.

       {¶7} On June 7, 2013, the Board filed a motion for summary judgment.

Doc. 24.    Kimpel filed his response to the motion and his cross-motion for

summary judgment on June 26, 2013. Doc. 29. The Board filed its response to

Kimpel’s motion on July 12, 2013. Doc. 33. On October 4, 2013, the trial court

filed its findings and opinion. Doc. 40. The trial court overruled the Board’s

motion for summary judgment and granted Kimpel’s motion for summary


                                         -4-
Case No. 17-13-20


judgment and filed its judgment entry on October 21, 2013.           Doc. 45.   On

November 18, 2013, the Board filed its notice of appeal from this judgment. Doc.

51. The Board raises the following assignments of error on appeal.

                           First Assignment of Error

      Whether the trial court committed error when it ruled as a
      matter of law that a felony plea or finding giving rise to an
      obligation of repayment of compensation by a suspended public
      official pursuant to R.C. 3.16(E) must occur in a case which
      deals with the subject matter for which the official was
      suspended.

                         Second Assignment of Error

      Whether the trial court committed error in characterizing the
      felony charge to which [Kimpel] entered a plea in Shelby County
      Common Pleas Court as an “unrelated matter” to the felony
      charge out of Auglaize County Common Pleas Court that was
      the case out of which [Kimpel’s] suspension under R.C. 3.16
      originated. Specifically, did the trial court construe the evidence
      in the light most favorable to [the Board] in making that
      determination.

      {¶8} Both assignments of error allege that the trial court erred in granting

summary judgment. Thus, they will be addressed together.

      An appellate court reviews a trial court’s summary judgment
      decision de novo, independently and without deference to the
      trial court’s decision. Ohio Govt. Risk Mgt. Plan v. Harrison,
      115 Ohio St.3d 241, 2007-Ohio-4948, 874 N.E.2d 1155, at ¶ 5,
      citing Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833
      N.E.2d 712, at ¶ 8. Summary judgment is appropriate only
      “when the requirements of Civ.R. 56(C) are met.” Adkins v.
      Chief Supermarket, 3d Dist. No. 11-06-07, 2007-Ohio-772, at ¶ 7.
      The party moving for summary judgment must establish: (1)
      that there are no genuine issues of material fact; (2) that the

                                       -5-
Case No. 17-13-20


      moving party is entitled to judgment as a matter of law; and (3)
      that reasonable minds can come to but one conclusion and that
      conclusion is adverse to the nonmoving party, said party being
      entitled to have the evidence construed most strongly in his
      favor. Id., citing Civ.R. 56(C); Horton v. Harwick Chem. Corp.
      (1995), 73 Ohio St.3d 679, 653 N.E.2d 1196, at paragraph three
      of the syllabus. In ruling on a motion for summary judgment, a
      court may not “weigh evidence or choose among reasonable
      inferences * * *.” Id., at ¶ 8, 653 N.E.2d 1196, citing Jacobs v.
      Racevskis (1995), 105 Ohio App.3d 1, 7, 663 N.E.2d 653. Rather,
      the court must consider the above standard while construing all
      evidence in favor of the non-movant. Jacobs, at 7, 663 N.E.2d
      653.

      The party moving for summary judgment must identify the
      basis of the motion to allow the non-movant a “meaningful
      opportunity to respond.” Mitseff v. Wheeler (1988), 38 Ohio
      St.3d 112, 116, 526 N.E.2d 798. In its motion, the moving party
      “must state specifically which areas of the opponent’s claim raise
      no genuine issue of material fact and such assertion may be
      supported by affidavits or otherwise as allowed by Civ.R.
      56(C).” Id. at 115, 526 N.E.2d 798, citing Harless v. Willis Day
      Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 375 N.E.2d 46,
      citing Hamlin v. McAlpin Co. (1964), 175 Ohio St. 517, 519-520,
      196 N.E.2d 781; Dresher v. Burt (1996), 75 Ohio St.3d 280, 293,
      662 N.E.2d 264. If the moving party fails to meet its burden,
      summary judgment is inappropriate; however, if the moving
      party meets its initial burden, the non-moving party has a
      “reciprocal burden outlined in Civ.R. 56(E) to set forth specific
      facts showing that there is a genuine issue for trial * * *.”
      Dresher, at 294, 662 N.E.2d 264.

Lillie v. Meachem, 3d Dist. Allen No. 1-09-09, 2009-Ohio-4934, ¶21-22.

      {¶9} In this case, there are no questions of fact. The sole issue involves the

interpretation of the statutory language of R.C. 3.16. This statute deals with the




                                       -6-
Case No. 17-13-20


suspension of a public official who has been charged with a felony.           The

applicable version of the statute reads in pertinent part as follows.

       (B)(1) If a public official is charged with a felony in a state or
       federal court and * * * if the prosecuting attorney with
       responsibility to prosecute the case determines that the felony
       relates to the public official’s administration of, or conduct in
       the performance of the duties of, the office of the public official,
       the [prosecuting attorney] shall transmit a copy of the charging
       document to the chief justice of the supreme court with a request
       that the chief justice proceed as provided in division (C) of this
       section. * * *

       (2) Upon transmitting a copy of a charging document and a
       request to the chief justice of the supreme court [the prosecuting
       attorney] shall provide the public official with a written notice
       that, not later than fourteen days after the date of the notice, the
       public official may file with the attorney general or prosecuting
       attorney, whichever sent the notice, a written statement either
       voluntarily authorizing [the prosecuting attorney] to prepare a
       judgment entry for the judge presiding in the case to
       provisionally suspend the public official from office or setting
       forth the reasons why the public official should not be suspended
       from office.

       If the public official voluntarily authorizes [the prosecuting
       attorney] to prepare a judgment entry for the judge presiding in
       the case to provisionally suspend the public official from office
       as described in this division, [the prosecuting attorney] shall
       prepare a judgment entry for the judge presiding in the case to
       provisionally suspend the public official from the office
       immediately upon receipt of the [judgment] entry and shall
       notify the chief justice of the supreme court of the provisional
       suspension. Upon receipt of the judgment entry, the judge
       presiding in the case shall sign the judgment entry and file the
       signed judgment entry in the case. The signing and filing of the
       judgment entry provisionally suspends the public official from
       office. [The prosecuting attorney’s] request to the chief justice
       that was made under division (B)(1) of this section remains

                                          -7-
Case No. 17-13-20


      applicable regarding the public official, and the chief justice
      shall establish a special commission pursuant to division (C)(1)
      of this section. A provisional suspension imposed under this
      division shall remain in effect until the special commission
      established by the chief justice enters its judgment under
      division (C)(3) of this section. After the special commission so
      enters its judgment, divisions (C)(3) and (4) of this section shall
      govern the continuation of the suspension. Division (E) of this
      section applies to a provisional suspension imposed under this
      division.

      ***

      (C)(2) Once established under division (C)(1) of this section, a
      special commission shall review the document that charges the
      public official with the felony, all other documents and materials
      pertaining to the matter that were provided by the chief justice *
      * *, and the facts and circumstances related to the offense
      charged. Within fourteen days after it is established, the special
      commission shall make a preliminary determination as to
      whether the public official’s administration of, or conduct in the
      performance of the duties of, the official’s office, as covered by
      the charges, adversely affects the functioning of that office or
      adversely affects the rights and interests of the public and, as a
      result, whether the public official should be suspended from
      office. Upon making the preliminary determination, the special
      commission immediately shall provide the public official with
      notice of the preliminary determination. * * * [The] notice shall
      inform the public official that the public official may contest the
      preliminary determination by filing with the special commission
      and within fourteen days after the date of the notice to the public
      official a notice contesting the determination.

      ***

      If the public official does not filed a notice contesting the
      determinations within fourteen days after the date of the notice
      to the public official, the special commission’s preliminary
      determination automatically shall become its final determination
      for purposes of division (C)(3) of this section.

                                      -8-
Case No. 17-13-20



      ***

      (3) Upon making the final determination * * *, the special
      commission shall issue a written report that sets forth its
      findings and final determination. * * * Upon the issuance of the
      report, one of the following applies:

      ***

      (b) If the special commission in its final determination
      determines that the public official’s administration of, or
      conduct in the performance of the duties of, the official’s office,
      as covered by the charges, adversely affects the functioning of
      that office or adversely affects the rights and interests of the
      public, the special commission shall include in the report a
      holding that the public official be suspended from office. The
      holding that the public official be suspended from office and the
      suspension take effect immediately upon the special
      commission’s issuance of the report. If the public official was
      provisionally suspended from office * * *, the holding that the
      public official be suspended from office shall continue and
      suspension immediately upon the special commission’s issuance
      of the report. * * *

      (4) A suspension imposed or continued under division (C)(3) of
      this section shall continue until one of the following occurs:

      ***

      (b) All charges are disposed of by dismissal or by a finding or
      findings of not guilty;

      ***

      (E) Any public official suspended from office under this section
      shall not exercise any of the rights, powers, or responsibilities of
      the holder of that office during the period of suspension. The
      suspended public official, however, shall retain the title of the
      holder of that office during the period of the suspension and

                                      -9-
Case No. 17-13-20


       continue to receive the compensation that the official is entitled
       to receive for holding that office during period of the suspension,
       until the public official pleads guilty to or is found guilty of any
       felony with which the public official is charged. * * *

       A political subdivision may file a civil action in the appropriate
       court to recover from any former public official of the political
       subdivision the amount of compensation paid to that former
       public official in accordance with this division from the date of
       the former public official’s suspension to the date the former
       public official pleads guilty to or is found guilty of any felony
       with which the former public official was charged.

R.C. 3.16.

       {¶10} This court notes that this is an issue of first impression in Ohio. The

issue before this court is the statutory interpretation of what was meant by the use

of the language “any felony” as used in the statute. A review of the statute as a

whole indicates that the legislative intent was to provide for notice and a hearing at

every stage of the proceedings. Multiple chances to appeal both the request for a

finding by the special commission and the actual findings are provided. The

statute also clearly requires that there be a connection between the conduct that

forms the basis of the charge resulting in the suspension and the performance of

the public official’s duties. Not just “any felony” will result in a suspension, only

those that are determined by the commission to have a relationship to the public

official’s office. To determine that any felony, regardless of its relationship to the

suspension, is sufficient to result in a recovery of the money paid during the

suspension is illogical. If the felony for which the public official is convicted is

                                        -10-
Case No. 17-13-20


one which would not result in a suspension, not only would such an interpretation

be illogical, it would deny the public official the due process of a hearing on

whether the felony for which he or she was convicted was related to the

suspension. This does not appear to be the intent of the statute, which throughout

requires a relationship between the felony and the suspension. Additionally, the

language of the statute provides that a political subdivision, upon the public

official’s conviction of a felony, may recover for the salary paid during the

suspension as provided by R.C. 3.16. This would seem to require that the felony

at least stem from the charge for which the suspension was imposed. The term

“any felony” applies to any felony directly related to the basis of the suspension,

such as a lesser included offense, for which the salary was paid pursuant to R.C.

3.16(E). That is not the case before us.

      {¶11} Here, Kimpel was suspended from charges arising out of Auglaize

County. No mention was made to the special commission regarding the charges in

Shelby County, although it was the same prosecutor and he could easily have filed

on those charges as well. He did not. As a result, Kimpel never received an

opportunity to address the Shelby County charges as a basis for the suspension and

the special commission did not review the Shelby County charges to determine

whether suspension on those charges would be appropriate. In addition, there was

no agreed suspension in the Shelby County case. The suspension solely stemmed


                                       -11-
Case No. 17-13-20


from the case in Auglaize County. The dismissal1 of that case was delayed until

after sentencing in Shelby County because the prosecuting attorney realized that if

it was dismissed prior to Kimpel’s resignation, the suspension would immediately

end and Kimpel would again be Sheriff of Shelby County. Thus, the record is

clear that everyone understood the suspension was not connected to the Shelby

County case. Since the suspension was not connected to the Shelby County case

and the Shelby County charges were never reviewed to determine if they would

form sufficient basis for suspension, they are not covered by R.C. 3.16. The result

is that the Board cannot recover under R.C. 3.16 for a felony conviction in Shelby

County when the felony charge in Shelby County was never brought to the

attention of the special commission for determination of whether a suspension

should be imposed based upon it. The trial court did not err in finding as a matter

of law that Kimpel was entitled to summary judgment. The assignments of error

are overruled.

        {¶12} Having found no prejudice in the particulars assigned and argued, the

judgment of the Court of Common Pleas of Shelby County is affirmed.

                                                                            Judgment Affirmed

ROGERS and SHAW, J.J., concur.

/jlr


1
 Although the Board argues the case was not dismissed, but was nolle prosequi, the nolle prosequi was
with prejudice. Thus, the effect was the same as if the case was dismissed.

                                               -12-
