[Cite as Hubbard v. Defiance, 2013-Ohio-2144.]




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




STEPHEN F. HUBBARD,

        PLAINTIFF-APPELLANT,
        -and-                                    CASE NO. 4-12-22

TIMOTHY C. HOLTSBERRY,

        PLAINTIFF-APPELLEE,

        v.                                       OPINION

CITY OF DEFIANCE, OHIO,

        DEFENDANT-APPELLEE.




STEPHEN F. HUBBARD,

        PLAINTIFF-APPELLEE,
        -and-                                    CASE NO. 4-12-23

TIMOTHY C. HOLTSBERRY,

        PLAINTIFF-APPELLANT,

        v.                                       OPINION

CITY OF DEFIANCE, OHIO,

        DEFENDANT-APPELLEE.
Case Nos. 4-12-22, 4-12-23




             Appeals from Defiance County Common Pleas Court
               Trial Court Nos. 10-CV-10454 and 11-CV-41357

                 Judgments Reversed and Causes Remanded

                        Date of Decision: May 28, 2013




APPEARANCES:

      Alan J. Lehenbauer for Appellant, Stephen F. Hubbard

      William P. Lang and Suzanne F. Jucaitis for Appellee,
                           City of Defiance

      Timothy C. Holtsberry, Appellant



PRESTON, P.J.

      {¶1} Plaintiffs-appellants, Stephen F. Hubbard, Esq. and Timothy C.

Holtsberry, Esq., pro se, appeal the Defiance County Court of Common Pleas’

judgment entries granting the motions for summary judgment filed by defendant-

appellee, the City of Defiance, and denying their cross-motions for summary

judgment. For the reasons that follow, we reverse.

      {¶2} Appellants are city council members who had previously utilized

publicly-subsidized group health insurance provided by Defiance through Buckeye


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Case Nos. 4-12-22, 4-12-23


Ohio Risk Management Association (“BORMA”) at a cost to them of

$38.00/month. On February 6, 2007, Defiance City Council enacted Ordinance

No. 6768, Codified Ordinance No. 121.04, which required council members to pay

100% of their health insurance premium. In light of Ordinance No. 6768, the

2007 city budget did not include any appropriation for council members’ BORMA

premiums. (Complaint, Doc. No. 1).

       {¶3} Appellant Hubbard elected to continue receiving BORMA group

health insurance in 2007, costing $13,815.00 for himself and his dependents, and

in 2008, costing $14,115.60 for himself and his dependents. (Id.). In 2009,

Hubbard maintained BORMA group health insurance for himself for a total out-

of-pocket cost of $5,392.08, and he obtained private insurance for his dependents

costing $4,665.72. (Id.). Holtsberry also kept BORMA group health insurance

during 2007 and 2008 but discontinued it in 2009. (Holtsberry Complaint, Trial

Court Case No. 11-CV-41357, Ex. G).            Appellants sent letters to Defiance

requesting reimbursement of the monies they expended for BORMA group health

insurance to no avail. (Hubbard Complaint, Doc. No. 1, Exs. A-C); (Hubbard

Amended Complaint, Doc. No. 12, Exs. B-D).

       {¶4} On February 2, 2010, Hubbard filed a complaint for declaratory

judgment against Defiance in the Defiance County Court of Common Pleas. (Doc.

No. 1). Hubbard requested that the trial court declare that Defiance illegally failed


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Case Nos. 4-12-22, 4-12-23


to appropriate money in the budget for his insurance premiums; illegally enacted

Codified Ordinance 121.04 in violation of Section 2.07 of the Charter; and,

illegally terminated his BORMA group health insurance from January 2007

through December 31, 2009. (Id.). Hubbard demanded judgment in the amount of

$40,678.56 as reimbursement for his BORMA group health insurance premiums

from 2007 through 2009. (Id.). The case was assigned trial court no. 10-CV-

40454.

         {¶5} In the meantime, on February 9, 2010, Holtsberry filed a writ of

mandamus in this Court seeking to compel the mayor, city council members, and

other elected officials to adopt and approve an appropriation ordinance in the

amount of $40,258.56 for reimbursement of his BORMA group health insurance

premiums for 2007 through 2009. State ex rel. Timothy C. Holtsberry v. The

Honorable Robert Armstrong, Mayor of the City of Defiance, et al., 3d Dist. No.

4-10-03 (June 7, 2010). This Court denied the writ, however, concluding that

Holtsberry had an adequate remedy at law. (Id.).1

         {¶6} On April 7, 2011, Defiance filed a motion for summary judgment in

trial court case no. 10-CV-40454. (Doc. No. 35). On April 22, 2011, Hubbard

filed a cross-motion for summary judgment. (Doc. No. 38).




1
  A copy of our previous opinion appears in the record and provides more of the legislative history relevant
to this case. (Holtsberry Aff., Doc. No. 40, attached).

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Case Nos. 4-12-22, 4-12-23


       {¶7} On May 25, 2011, after this Court denied mandamus relief, Holtsberry

filed a complaint for declaratory judgment against Defiance. (Complaint, Trial

Court Case No. 11-CV-41357). Holtsberry alleged that Defiance reduced his

compensation during his term of office as Council President in violation of R.C.

731.07 and Section 2.07 of the Charter. (Id.). Holtsberry also alleged promissory

estoppel based upon his reliance upon the City Law Director’s opinions that an in-

term salary decrease was unlawful. (Id.). Holtsberry sought judgment in the

amount of $59,124.92 as reimbursement for his BORMA group health insurance

premiums from 2007 through 2011. (Id.). The case was assigned trial court case

no. 11-CV-41357.

       {¶8} On November 21, 2011, the trial court ordered that Holtsberry’s case,

11-CV-41357, be consolidated into Hubbard’s case, 10-CV-40454, and stayed the

motions in Hubbard’s case pending resolution of Holtsberry’s case. (Doc. No.

57).

       {¶9} On March 13, 2012, Defiance filed a motion for summary judgment in

Holtsberry’s case. (Doc. No. 66). On March 29, 2012, Holtsberry filed a response

and cross-motion for summary judgment. (Doc. No. 67).

       {¶10} On May 2, 2012, Defiance filed objections to the affidavit of Fred

Schultz, a former mayor of Defiance, alleging that portions of his affidavit were

not made on personal knowledge as required under Civ.R. 56(E). (Doc. No. 77).


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Case Nos. 4-12-22, 4-12-23


On May 8, 2012, Holtsberry filed a memo in opposition. (Doc. No. 79). On July

3, 2012, the trial court struck portions of paragraphs four, six, seven, and eight of

Schultz’s affidavit from the record. (Doc. No. 81).

       {¶11} On September 14, 2012, the trial court granted Defiance’s motions

for summary judgment against Holtsberry and Hubbard, concluding that they were

not entitled to BORMA group health insurance since BORMA was compensation,

which was not established by ordinance as required under Section 2.07 of the

Defiance Charter. (Doc. Nos. 82-83). The trial court also denied appellants’

cross-motions for summary judgment as moot. (Id.).

       {¶12} On September 17 and 18, 2012, Hubbard and Holtsberry,

respectively, filed notices of appeal. (Doc. Nos. 84-85). Hubbard’s appeal was

assigned appellate case no. 4-12-22, and Holtsberry’s appeal was assigned

appellate case no. 4-12-23. Since the appeals concern similar facts and issues of

law, we sua sponte consolidate them for purposes of our opinion. App.R. 3(B).

       {¶13} Hubbard and Holtsberry now appeal raising eight and five

assignments of error, respectively.     The assignments of error Hubbard and

Holtsberry raise can be grouped into three categories: procedural, evidentiary, and

substantive. We will address Hubbard and Holtsberry’s assignments of error in

that order and combine them for discussion where appropriate.




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Case Nos. 4-12-22, 4-12-23


                                   Procedural Issues

                    Holtsberry’s Assignment of Error No. I

       The trial court erred in sua sponte combining the Hubbard and
       Holtsberry cases.

       {¶14} In his first assignment of error, Holtsberry argues that the trial court

erred by sua sponte consolidating his case with Hubbard’s. While Holtsberry

acknowledges that the facts are similar, he argues that their entitlement to

BORMA group health insurance is different since they hold different offices. He

also argues that Hubbard’s case, unlike his, involved an allegation that Defiance

violated the public records law.

       {¶15} Whether to consolidate cases is within the trial court’s discretion;

and therefore, an appellate court will not reverse absent an abuse of discretion.

McDonnold v. McDonnold, 98 Ohio App.3d 822, 827 (11th Dist.1994); BancOhio

Nat. Bank v. Schiesswohl, 51 Ohio App.3d 130, 132 (9th Dist.1988); Civ.R. 42(A).

An abuse of discretion is more than an error of judgment; rather, it implies that the

trial court’s attitude was unreasonable, arbitrary, or unconscionable. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219 (1983).

       {¶16} Holtsberry argues that the cases were dissimilar because he held a

different office than Hubbard. We disagree. The facts and the law surrounding

these cases are very similar since they both involve the interplay between Codified

Ordinance 121.04 and Section 2.07 of the Defiance Charter.              Holtsberry’s

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Case Nos. 4-12-22, 4-12-23


compensation as president of council stems from Section 2.07 of the Charter just

like Hubbard’s compensation as a council member. Furthermore, Hubbard did not

allege a public records violation as Holtsberry alleges. At most, it appears that

Hubbard threatened to amend his complaint to allege public record violations

during the settlement process. (Doc. No. 25, Ex A). Hubbard did not thereafter

amend his complaint to add these allegations, however. Therefore, we cannot

conclude that the trial court abused its discretion by consolidating the cases.2

         {¶17} Holtsberry’s first assignment of error is, therefore, overruled.

                                          Evidentiary Issues

                          Holtsberry’s Assignment of Error No. II

         The trial court erred in not considering testimonial evidence
         properly before the court.

                         Holtsberry’s Assignment of Error No. III

         The trial court erred in striking portions of the affidavit of Fred
         Schultz.

                           Hubbard’s Assignment of Error No. II

         The court erred by excluding the city law director’s written
         opinions and by not accepting statements made by the city law
         director as admissions of defendant-appellee pursuant to
         evidence rule 801(D)(2).




2
  As a further matter, it would be unreasonable for us to conclude that the trial court abused its discretion
for consolidating the cases when we have sua sponte consolidated the cases for the purpose of writing our
opinion.

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Case Nos. 4-12-22, 4-12-23


       {¶18} In his second assignment of error, Holtsberry argues that the trial

court erred by excluding the affidavits of five former city council members since

all of the affidavits, including that of former Mayor Schultz, were made upon

personal knowledge. Holtsberry argues that if the contents of the affidavits were

hearsay, they would nevertheless be admissible as statements against interest. In

his third assignment of error, Holtsberry argues that the trial court erred by

excluding portions of Schultz’s affidavit from evidence for the same reasons

offered in support of the other affidavits.

       {¶19} In his second assignment of error, Hubbard argues that the trial court

erred by excluding from evidence the city law director’s legal opinions since the

same are admissions by a party-opponent under Evid.R. 801(D)(2). Defiance, on

the other hand, argues that the trial court did not abuse its discretion by excluding

the law director’s legal opinions since it is the trial court’s province to determine

legal issues, and Hubbard’s estoppel claim, for which the legal opinions were

offered, fails as a matter of law.

       {¶20} A trial court has broad discretion in the admission and exclusion of

evidence; and therefore, a reviewing court will not interfere with such a decision

unless the trial court has clearly abused its discretion, and the defendant has been

materially prejudiced. Dardinger v. Anthem Blue Cross & Blue Shield, 98 Ohio




                                          -9-
Case Nos. 4-12-22, 4-12-23


St.3d 77, 2002-Ohio-7113, ¶ 193, citing State v. Hymore, 9 Ohio St.2d 122, 128

(1967).

       {¶21} “Supporting and opposing affidavits shall be made on personal

knowledge, shall set forth such facts as would be admissible in evidence, and shall

show affirmatively that the affiant is competent to testify to the matters stated in

the affidavit.”   Civ.R. 56(E).   “‘Personal knowledge’ is ‘[k]nowledge gained

through firsthand observation or experience, as distinguished from a belief based

on what someone else has said.’” Bonacorsi v. Wheeling & Lake Erie Ry. Co., 95

Ohio St.3d 314, 2002-Ohio-2220, ¶ 26, quoting Black’s Law Dictionary (7th

Ed.Rev.1999) 875. “A belief is no more than a conviction of the truth of a

proposition which is subjectively held. It arises not from actual perception or

knowledge, but by way of inference, or from evidence received or information

derived from others.” Haack v. Bank One, 2d Dist. No. 16131, *2 (Apr. 11, 1997),

citing Black’s Law Dictionary (5th Ed.1979) 141. Therefore, beliefs are not a

form of “personal knowledge” required by Civ.R. 56(E).             Id.   Statements

contained in affidavits also cannot be legal conclusions. State v. Licsak, 41 Ohio

App.2d 165, 169 (10th Dist.1974).

       {¶22} Prior to rendering its summary judgment decision, the trial court

granted, in part, Defiance’s request to strike portions of Mayor Schultz’s affidavit,

finding that it contained inadmissible legal conclusions and belief statements


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Case Nos. 4-12-22, 4-12-23


based upon hearsay. (July 3, 2012 Order, Doc. No. 81). Similarly, in its summary

judgment decision, the trial court stated:

       * * * the Court will not consider many of the exhibits submitted by

       Mr. Holtsberry in support of his response to the city’s motion for

       summary judgment and cross-motion for summary judgment. They

       are unauthenticated documents, and hearsay statements and legal

       conclusions in affidavits that are inadmissible and improper

       summary judgment evidence.

(Sept. 14, 2012 JE, Doc. No. 83).

       {¶23} With regard to Mayor Schultz’s affidavit, the trial court struck only

those portions of the affidavit that were inadmissible. In particular, the trial court

struck statements in Schultz’s affidavit indicating that there was no delineation

between full-time and part-time elected officials on the basis that this statement

was not properly supported and an opinion. (July 3, 2012 Order, Doc. No. 81).

The trial court also struck most of Schultz’s averments concerning the law

director’s statements to city council and council’s motivation in enacting

legislation. (Id.). The trial court did not strike those portions of the affidavit

which were admissible, but those which were statements of opinion, statements of

hearsay, and legal conclusions. Therefore, we conclude that the trial court did not

abuse its discretion in striking portions of Schultz’s affidavit.


                                         -11-
Case Nos. 4-12-22, 4-12-23


       {¶24} Holtsberry argues that the trial court excluded the affidavits

submitted by council members Upp, Hubbard, Butler, and Walter. Quite frankly,

after reviewing the trial court’s summary judgment decision, it is unclear whether

the trial court excluded the affidavits in their entirety or only those portions of the

affidavits that were inadmissible. The affidavits contained statements of fact that

would have been admissible and statements of beliefs and legal conclusions that

would not be properly admissible. Therefore, we cannot conclude that the trial

court’s decision was unreasonable based on the record. Nevertheless, we will

consider those portions of the affidavits Holtsberry submitted that would have

been admissible for purposes of our review of the summary judgment decision.

See Baggs v. Clarklift of Columbus, 10th Dist. No. 95APE11-1501, *3 (Apr. 9,

1996), appeal dismissed by 77 Ohio St.3d 1419 (1996). Even if we were to

assume that the trial court excluded the affidavits in their entirety, we could not

sustain Holtsberry’s assignment of error since he suffered no material prejudice,

because Defiance stipulated to many of the facts presented in the affidavits, and

the facts were established elsewhere in the record.

       {¶25} Holtsberry’s second and third assignments of error are, therefore,

overruled.

       {¶26} Hubbard’s assignment of error lacks merit factually and legally. As

a factual matter, the trial court did not exclude the entirety of the law director’s


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Case Nos. 4-12-22, 4-12-23


opinions from its consideration—only the portions that offered legal opinions

concerning the issues presented in the case. (Sept. 14, 2012 JE, Doc. No. 82).

The trial court objected to the admission of the legal opinions as expert witness

testimony concerning the precise legal issues, but allowed the opinions to the

extent they provided relevant facts and historical perspective. For example, the

trial court mentions on page ten of its decision that Defiance’s legislative history

concerning Codified Ordinance 35.16 was “gleaned from the law director’s

opinion.” (Id.).

       {¶27} Legally, we find no abuse of discretion in the trial court’s decision to

disregard the law director’s legal opinion with respect to its legal conclusions

since it is ultimately the province of the court to interpret the law. “An expert

witness is not permitted to give an opinion relating to the law, and a trial court that

allows such an opinion abuses its discretion.” Witzmann v. Adam, 2d Dist. No.

23352, 2011-Ohio-379, ¶ 62, citing Kraynak v. Youngstown City School Dist. Bd.

of Edn., 118 Ohio St.3d 400, 2008-Ohio-2618, ¶ 21. To the extent that Hubbard

used the law director’s opinion as part of his estoppel claim, equitable estoppel is

inapplicable to a political subdivision when it is engaged in a governmental

function.   Hortman v. Miamisburg, 110 Ohio St.3d 194, 2006-Ohio-4251,

syllabus. See also Gamel v. Cincinnati, 1st Dist. No. C-110613, 2012-Ohio-5152,

¶ 18 (retired city employees could not assert equitable estoppel claim against the


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Case Nos. 4-12-22, 4-12-23


city for reducing their healthcare benefits). A city law director has a statutory duty

to issue opinions when council members have legal questions pertinent to their

legislative function; therefore, the law director’s issuance of such opinions

constitutes a governmental function. R.C. 733.54; State ex rel. Cody v. Stahl, 8th

Dist. No. 83037, 2003-Ohio-6180, ¶ 14 (law director’s legal opinions are

governmental functions for which equitable estoppel does not apply).

Consequently, the trial court did not err by excluding the law director’s opinions

as they related to Hubbard’s equitable estoppel claim.

       {¶28} Hubbard’s second assignment of error is, therefore overruled.

              HUBBARD’S ASSIGNMENT OF ERROR NO. VII

       The trial court erred by excluding indisputed [sic] public
       records.

            HOLTSBERRY’S ASSIGNMENT OF ERROR NO. IV

       The trial court erred in not considering documentary evidence
       properly before the court.

       {¶29} In his seventh assignment of error, Hubbard argues that the trial court

erred by excluding “certain public records,” which were self-authenticating or

were authenticated in his affidavit. He also alleges that counsel for Defiance

instructed the Council Clerk not to meet with him to authenticate the records.

Similarly, Holtsberry, in his fourth assignment of error, argues that the trial court




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Case Nos. 4-12-22, 4-12-23


erred by excluding documents he submitted during the summary judgment

proceedings.

       {¶30} Hubbard’s arguments lack merit. Contrary to Hubbard’s allegations

on appeal, the trial court did not exclude the public records. (Sept. 14, 2012 JE,

Doc. No. 82). The trial court found that it “should not consider the affidavits

submitted by [Hubbard], to the extent that they relate to matters not within the

affiants’ personal knowledge, the old ordinances, and the health and dental care

plan documents.” (Id.) (Emphasis added). Nevertheless, the trial court decided

that “since both parties cite to the documents which are unrefuted, the Court will

indulge [Hubbard] and consider all evidentiary submissions.” (Id.). Since the trial

court considered the evidentiary submissions, we do not need to discuss Hubbard’s

allegation that the council clerk refused to authenticate documents. (Doc. No. 46).

       {¶31} Hubbard’s seventh assignment of error is, therefore, overruled.

       {¶32} Next, we turn to Holtsberry’s arguments concerning the documents

he submitted in support of his summary judgment motion. We have already

determined that the trial court appropriately struck portions of the Shultz affidavit,

so we will not discuss that affidavit further. Also, we have already decided to

consider the admissible portions of the Upp, Hubbard, Butler, and Walter

affidavits for purposes of our decision herein since it is unclear whether the trial

court excluded the affidavits in their entirety. So, we will not discuss these


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Case Nos. 4-12-22, 4-12-23


affidavits any further. The other documents Holtsberry cited in his summary

judgment motion were documents attached to his complaint, including Defiance

Codified Ordinances, the Charter of Defiance, Resolutions, and legal opinions;

and, documents he requested during discovery, including the BORMA health and

dental plans, Defiance City Council Meeting Minutes, legal opinions from the City

Law Director, and numerous Codified Ordinances, including several appropriation

ordinances.   (Doc. No. 73).       Defiance objected to the admission of these

documents since they were not properly authenticated under Evid.R. 902(4) and

could not be considered under Civ.R. 56(C). (Doc. No. 74).

      {¶33} Civ.R. 56(C) provides, in pertinent part:

      Summary judgment shall be rendered forthwith if the pleadings,

      depositions,   answers     to    interrogatories,   written   admissions,

      affidavits, transcripts of evidence, and written stipulations of fact, if

      any, timely filed in the action, show that there is no genuine issue as

      to any material fact and that the moving party is entitled to judgment

      as a matter of law. No evidence or stipulation may be considered

      except as stated in this rule.

(Emphasis added).

      {¶34} The term “pleading” in Civ.R. 56(C) does not include attached

exhibits; instead, the proper method for introducing such matters is to incorporate


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Case Nos. 4-12-22, 4-12-23


them by reference in a properly framed affidavit pursuant to Civ.R. 56(E).

Skidmore & Assoc. Co., L.P.A. v. Southerland, 89 Ohio App.3d 177, 179 (9th

Dist.1993), citing State ex rel. Corrigan v. Seminatore, 66 Ohio St.2d 459, 467

(1981); Biskupich v. Westbay Manor Nursing Home, 33 Ohio App.3d 220, 222-

223 (8th Dist.1986); State ex rel. Freeman v. Morris, 62 Ohio St.3d 107 (1991).

“Documents submitted in opposition to a motion for summary judgment which are

neither sworn, certified, nor authenticated by affidavit have no evidentiary value.”

Green v. B.F. Goodrich Co., 85 Ohio App.3d 223, 228 (9th Dist.1993).

        {¶35} Evidence Rule 901 governs authentication and provides, in relevant

part:

        The requirement of authentication or identification as a condition

        precedent to admissibility is satisfied by evidence sufficient to

        support a finding that the matter in question is what its proponent

        claims.

        ***

        By way of illustration only, and not by way of limitation, the

        following    are   examples    of    authentication   or   identification

        conforming with the requirements of this rule:

        (1) Testimony of witness with knowledge. Testimony that a matter

        is what it is claimed to be.


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Case Nos. 4-12-22, 4-12-23


Evid.R. 901(A)-(B)(1) (emphasis added). Concerning the admissibility of public

records in particular, Evid.R. 902(4) provides:

       Extrinsic evidence of authenticity as a condition precedent to

       admissibility is not required with respect to * * * [a] copy of an

       official record or report or entry therein, or of a document authorized

       by law to be recorded or filed and actually recorded or filed in a

       public office, including data compilations in any form, certified as

       correct by the custodian or other person authorized to make the

       certification * * *.

See also R.C. 731.42 (concerning the admissibility of municipal records).

       {¶36} Upon review of the record herein, we find that the trial court abused

its discretion by failing to admit the documents into evidence. Defiance argues

that the documents were public records not properly authenticated by the

custodian of the records as required under Evid.R. 902(4). Defiance’s argument,

however, fails to consider other means of authentication. Holtsberry and Hubbard

both submitted affidavits indicating that the public records were true and accurate

copies of the originals (Doc. Nos. 53-54). Holtsberry served as president of

council and Hubbard served as a council member, so they had personal knowledge

of many of these public records. Furthermore, Holtsberry, as council president,

had the statutory duty to authenticate ordinances, bylaws, and resolutions of


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Case Nos. 4-12-22, 4-12-23


council for legislative purposes. R.C. 731.20. Besides the affidavits submitted in

support of the documents’ authenticity, most of the documents Holtsberry used in

support of his summary judgment motion were provided by Defiance during

discovery.   (Doc. No. 73, attached).     Essentially, Defiance argued that the

documents it provided during summary judgment were not trustworthy—we find

this argument disingenuous.

      {¶37} Additionally, after Defiance challenged the authenticity of Hubbard’s

documents, Hubbard contacted the council clerk to certify the public records as

true and accurate copies of the original. (Doc. Nos. 44-46). Defiance then filed a

motion for sanctions alleging that Hubbard violated the Ohio Ethics Rules for

contacting a “represented party.”    (Doc. No. 47).    Afterwards, Hubbard filed

supplemental affidavits from Holtsberry and himself authenticating the public

records and a motion seeking a hearing on the matter if the trial court wanted

certified copies of the records. (Doc. Nos. 53-55). The trial court never held a

hearing on this issue before granting Defiance summary judgment. In light of this

history, it is not surprising that Holtsberry would attempt to authenticate the

records by means other than the council clerk’s certification. Aside from this, all

of the documents the trial court found objectionable in Holtsberry’s case, except

the appropriation ordinances, it considered in Hubbard’s case since both parties

cited to the various documents in support of their arguments. We find the trial


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Case Nos. 4-12-22, 4-12-23


court’s decision to allow the documents in Hubbard’s case but exclude them from

Holtsberry’s case unreasonable.

      {¶38} After reviewing the facts of this particular case, we conclude that the

trial court abused its discretion by excluding the documents submitted by

Holtsberry in support of his motion for summary judgment. In particular, we find

it unreasonable that the trial court considered many of these same documents in

Hubbard’s case but did not consider them in Holtsberry’s case when the cases

were consolidated and concerned the same issues.

      {¶39} Holtsberry’s fourth assignment of error is, therefore, sustained.

                                  Substantive Issues

                    Hubbard’s Assignment of Error No. V

      The trial court erred by finding that plaintiff-appellant’s health
      insurance premiums were not established by ordinance.

                   Hubbard’s Assignment of Error No. IV

      The trial court erred in finding that the city charter does not
      prohibit an in-term salary reduction of council members.

                   Hubbard’s Assignment of Error No. VI

      The trial court erred in finding that codified ordinance 121.04 is
      applicable to plaintiff-appellant and similarly situated council
      members.

                   Holtsberry’s Assignment of Error No. V

      The trial court erred in granting summary judgment in favor of
      appellee on the issue of the president of council’s entitlement to

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Case Nos. 4-12-22, 4-12-23


       public subsidized health insurance when it was a matter of law
       that the appellant should have been granted summary judgment.

                     Hubbard’s Assignment of Error No. I

       The trial court erred in granting defendant-appellee’s motion
       for summary judgment in that such judgment is against the
       manifest weight of the evidence.

                   Hubbard’s Assignment of Error No. VIII

       The trial court erred in not granting plaintiff-appellant’s motion
       for summary judgment in that there was no genuine issue as to
       material fact and that plaintiff-appellant was entitled to
       judgment as a matter of law.

       {¶40} In his fifth assignment of error, Hubbard argues that the trial court

erred by failing to conclude that council members’ group health insurance

premiums were established by ordinance. Hubbard argues that the prior codified

ordinances detailing council members’ eligibility for group health insurance have

since been replaced by the BORMA plan document, which allows council

members to participate on similar terms as regular full-time city employees.

       {¶41} In his fourth assignment of error, Hubbard argues that the trial court

erred by concluding that Section 2.07 does not prohibit an in-term reduction in

salary. In particular, Hubbard argues that Section 2.07 must be harmonized with

general laws concerning the same issue, all of which prohibit in-term reductions in

salary. He also argues that the trial court erred by failing to address the effective




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Case Nos. 4-12-22, 4-12-23


date of Codified Ordinance 121.04, and the earliest effective date is January 1,

2008.

        {¶42} In his sixth assignment of error, Hubbard argues that the trial court

erred by concluding that Codified Ordinance 121.04 applied to him and similarly

situated council members. In particular, Hubbard argues that the ordinance was

not effective prior to the deadline established by Section 2.07 of the Charter, and

the ordinance is not applicable since the Employee Health Care Cost Containment

Committee (“EHCCCC”) has not changed the BORMA plan.

        {¶43} In his first assignment of error, Hubbard argues that the trial court

erred in granting Defiance summary judgment since the same was against the

manifest weight of the evidence. In his eighth assignment of error, Hubbard

argues that the trial court erred by failing to grant his cross-motion for summary

judgment, because Codified Ordinance 121.04 does not apply to him since the

City Charter prevents in-term changes in compensation.

        {¶44} In his fifth assignment of error, Holtsberry argues that the trial court

erred in granting Defiance summary judgment since Ordinance No. 4994,

requiring council members to pay for their own health insurance, does not apply to

him as president of council.

        {¶45} Many of the issues raised by Hubbard in his fourth, fifth, and sixth

assignments of error are more properly characterized as “issues of law,” that


                                         -22-
Case Nos. 4-12-22, 4-12-23


should have been raised under his first and eighth assignments of error relating to

the grant of summary judgment. Since these issues are all related to the trial

court’s grant of summary judgment, we will review them as part of our discussion

of the trial court’s grant of summary judgment.

      {¶46} We review a decision to grant summary judgment de novo. Doe v.

Shaffer, 90 Ohio St.3d 388, 390 (2000). Summary judgment is proper where there

is no genuine issue of material fact, the moving party is entitled to judgment as a

matter of law, and reasonable minds can reach but one conclusion when viewing

the evidence in favor of the non-moving party, and the conclusion is adverse to the

non-moving party. Civ.R. 56(C); State ex rel. Cassels v. Dayton City School Dist.

Bd. of Edn., 69 Ohio St.3d 217, 219 (1994).

      {¶47} Before proceeding to the appropriateness of the trial court’s grant of

summary judgment in favor of Defiance, we must address a preliminary

evidentiary issue. Since we review summary judgment de novo, the trial court

erred by excluding the public records in Holtsberry’s case, and the cases were

consolidated below and consolidated on appeal, we will review all of the public

records for purposes of reviewing the trial court’s grant of summary judgment.

      {¶48} The relevant history concerning the health care benefits for city

council members is not in dispute. On March 19, 1968, city council passed




                                       -23-
Case Nos. 4-12-22, 4-12-23


Ordinance No. 2538, known as Codified Ordinance 35.16, which provided, in

pertinent part:

         The Board of Control of the City is hereby authorized to accept

         proposals and enter into a contract or contracts for group * * *

         insurance for employees and elected officials of the City and their

         dependents. Each full-time regular employee and each full-time

         elected official of the City, working a minimum of thirty-two (32)

         hours per week, shall be eligible for insurance under the group

         insurance contract. The City shall pay the full costs of insurance on

         employees and full-time elected officials out of the general

         administration fund.

(Defiance MSJ, Doc. No. 66, Ex. 4, attachment 1). Section 35.16 was amended in

1970 and 1972, but the benefit to participate in the group health insurance contract

remained limited to full-time elected officials working a minimum of 32 hours per

week. (Hubbard MSJ, Doc. No. 38, Ex. J); (Holtsberry Complaint, Ex. A).3

         {¶49} On November 8, 1983, the voters approved the city charter.

(Holtsberry Complaint, Ex. B).


3
  It appears that Section 35.16 was originally enacted by Ordinance No. 1892 (eff. 5/1/59), though the
substance of the section as it existed then is not in the record. (Holtsberry Complaint, Ex. A). This section
later became known as Section 35.161, but it was deleted from the code sometime between 1979 and 1988.
(1/25/07 Opinion, Holtsberry Complaint, Ex. E). Although not clear from the record, it appears that
Codified Ordinance 35.161 was eliminated sometime after Defiance adopted its Charter and council
established the EHCCCC. Defiance agreed that Section 35.161 was no longer applicable and had been
superseded in the proceedings below.

                                                   -24-
Case Nos. 4-12-22, 4-12-23


       {¶50} On September 15, 1987, Defiance formed the Employee Health Care

Cost Containment Committee (“EHCCCC”) to act as the city’s representative to

take bids and determine heath care coverage for city employees. (Defiance MSJ,

Doc. No. 66, Ex. 5, attachment 1); (Resolution No. 2071, Holtsberry Complaint,

Ex. C).

       {¶51} On December 13, 1988, council passed Ordinance No. 4994, which

established the annual salary of council members on and after January 1, 1990.

(Defiance MSJ, Doc. No. 66, Ex. 4, attachment 2). The ordinance provided, in

pertinent part, “[t]hat any Council member who chooses to join in the health

benefit package of the City of Defiance shall be allowed to do so at their own

expense.” (Id.).

       {¶52} On May 17, 1989, council passed and the mayor signed Ordinance

No. 5044 entitled “AN ORDINANCE AUTHORIZING THE MAYOR TO

ENTER INTO A CONTRACT WITH BUCKEYE OHIO RISK MANAGEMENT

ASSOCIATION (BORMA) FOR BASIC, MAJOR MEDICAL AND DENTAL

HEALTH BENEFITS FOR ALL ELIGIBLE CITY EMPLOYEES.” (Id., Ex. 4,

attachment 3).4

       {¶53} On or about August 1, 1989, Defiance entered into a contract with

BORMA to provide group health insurance for all eligible city employees.


4
  Ordinance No. 5044 stated that the EHCCCC negotiated the BORMA agreement and recommended the
same to City Council. (Defiance MSJ, Doc. No. 66, Ex. 4, attachment 3).

                                            -25-
Case Nos. 4-12-22, 4-12-23


“Eligible” city employees were defined under the plan as:                            “[a]ll full-time

employees regularly scheduled to work at least thirty-two (32) hours per week or

members of the City Council shall be eligible to enroll for coverage under the

Plan. This does not include temporary or seasonal employees.” (Holtsberry Aff.,

Doc. No. 40); (Hubbard MSJ, Doc. No. 38, Exs. F, G) (emphasis added).5

        {¶54} On December 20, 1994, council passed Ordinance No. 5612, “AN

ORDINANCE FIXING THE COMPENSATION OF ELECTED OFFICIALS * *

*,” including the mayor, council members, and council president, on and after

January 1, 1996.         (Doc. No. 73, attached).             In pertinent part, the ordinance

provided “[t]he annual salary of the President and Members of Council for terms

commencing prior to January 1, 1996, shall be fixed by Ordinance 4994 * * *.”

(Id.). The ordinance did not mention group health insurance, however. (Id.).

        {¶55} On October 20, 1998, council passed Ordinance No. 5970, “AN

ORDINANCE ESTABLISHING THE COMPENSATION OF ELECTED

OFFICIALS,” including the mayor, city council members, and city council

president, for the years 2000 through 2005. (Defiance MSJ, Doc. No. 66, Ex. 4,

attachment 4). Like Ordinance No. 5612 before it, Ordinance No. 5970 also did

not mention group health insurance. (Id.).



5
 A copy of the 1989 BORMA plan is not in the record, but Holtsberry and Hubbard both averred that it
defined “eligible” city employees the same as the 2002 and 2007 amended versions in the record to include
members of City Council. (Doc. Nos. 40, 68, 70).

                                                 -26-
Case Nos. 4-12-22, 4-12-23


       {¶56} In 1999, during his campaign for Mayor, Fred Schultz represented to

the voters that he wanted all elected city officials to be justly compensated for

their hard work. (Schultz Aff. Doc. No. 76). To that end, in 2002 and after being

elected, Mayor Schultz included a $47,530.00 appropriation in the budget for

“employee benefits,” including group health insurance for council members,

which passed on March 26, 2002. (Id.); (Ordinance No. 6281, Doc. No. 73,

attached). The city budgets for 2003, 2004, 2005, and 2006 included similar

appropriations for council members’ BORMA group health insurance. (Ordinance

Nos. 6368, 6450, 6518, and 6634, Doc. No. 73, attached).

       {¶57} Beginning in 2005, however, a new mayor, Robert Armstrong,

expressed alarm at the rising cost of health insurance provided to council

members. (Holtsberry Aff., Doc. No. 68). Although he included an appropriation

for this benefit in the 2006 budget, Mayor Armstrong submitted a proposed budget

for 2007, which allocated no funding for council members’ health insurance. (Id.).

Mayor Armstrong also threatened to veto any appropriations ordinance that

allocated funds for the payment of council members’ health insurance. (Id.). On

December 19, 2006, council passed Ordinance No. 6886, an appropriation

ordinance for 2007, which allocated zero funding for council members’ health

insurance. (Id.); (Doc. No. 73, attached).




                                        -27-
Case Nos. 4-12-22, 4-12-23


      {¶58} On February 6, 2007, council passed Ordinance No. 6768 and

codified Section 121.04 of the Codified Ordinances of the City of Defiance,

entitled “AN ORDINANCE ESTABLISHING THE PREMIUM CO-PAYMENT

OBLIGATION OF MEMBERS OF COUNCIL ELECTING TO PARTICIPATE

IN MUNICIPAL INSURANCE PLANS.” (Defiance MSJ, Doc. No. 66, Ex. 4,

attachment 5).    Section 121.04(A) of the Codified Ordinances provides, in

pertinent part, “Members of Council electing to enroll in [BORMA] * * * or

similar insurance coverage for the benefit of Municipal employees and/or officials

shall pay 100% of the premiums assessed by the underwriter for coverage

extended to the Member of Council and his or her insured dependents.” (Id.).

Section 4 provided that “[t]his Ordinance shall be effective on the earliest date

permitted by Section 2.07 of the Charter of the City of Defiance, Ohio.” (Id.).

      {¶59} Since the passage of Ordinance No. 6768, Defiance has not paid for

council members’ BORMA group health insurance premiums. Instead, council

members, like Holtsberry and Hubbard, who desired to maintain their BORMA

group health insurance were required to pay 100% of the plan premiums. To that

end, council passed appropriation ordinances for 2008, 2009, and 2010, all of

which omitted funding for council members’ BORMA group health insurance.

(Ordinance Nos. 6752, 7005, 7100, Doc. No. 73, attached).




                                       -28-
Case Nos. 4-12-22, 4-12-23


      {¶60} Hubbard elected to continue receiving BORMA group health

insurance in 2007, costing $13,815.00 for himself and his dependents, and in

2008, costing $14,115.60 for himself and his dependents. (Complaint, Doc. No.

1). In 2009, Hubbard maintained BORMA group health insurance for himself for

a total out-of-pocket cost of $5,392.08 and obtained private insurance for his

dependents costing $4,665.72. (Id.). Holtsberry also maintained BORMA group

health insurance during 2007 and 2008 but discontinued it in 2009. (Holtsberry

Complaint, Trial Court Case No. 11-CV-41357, Ex. G). Appellants sent letters to

Defiance requesting reimbursement for the cost of their BORMA group health

insurance to no avail. (Hubbard Complaint, Doc. No. 1, Exs. A-C); (Hubbard

Amended Complaint, Doc. No. 12, Exs. B-D).

      {¶61} Afterwards, Hubbard and Holtsberry filed complaints against

Defiance seeking declaratory judgment. Hubbard requested that the trial court

declare that Defiance: illegally failed to appropriate money for his BORMA group

health insurance premiums; illegally enacted Codified Ordinance 121.04 in

violation of Section 2.07 of the Charter; and, illegally terminated his BORMA

group health insurance benefit from January 2007 until December 31, 2009.

Similarly, Holtsberry alleged that Defiance reduced his compensation during the

term of his office as council president in violation of R.C. 731.07 and Section 2.07

of the Charter of the City of Defiance.       Holtsberry also alleged promissory


                                       -29-
Case Nos. 4-12-22, 4-12-23


estoppel based upon the city law director’s representations that terminating council

members’ BORMA group health insurance benefit was unlawful.

       {¶62} The trial court disagreed with Hubbard and Holtsberry, concluding

that the Charter requires that council members’ salary be established by ordinance;

“salary” includes other compensation such as BORMA group health insurance;

Ordinance No. 5970, establishing council members’ salary, did not provide for an

insurance benefit; and therefore, Hubbard and Holtsberry were not entitled to

BORMA group health insurance. (Sept. 14, 2012 JEs, Doc. Nos. 82-83). The trial

court further concluded that council had overcompensated Hubbard and

Holtsberry by previously paying their BORMA group health insurance premiums.

(Id.). The trial court further reasoned that, since neither Hubbard nor Holtsberry

were entitled to BORMA group health insurance, Codified Ordinance 121.04 did

not change their salary and was validly enacted. (Id.).

       {¶63} The first issue, raised in Hubbard’s fifth assignment of error, is

whether or not council members were entitled to participate in the BORMA group

health insurance plan. We answer this question in the affirmative.

       {¶64} Defiance is a Home Rule Charter Municipality under Article XVIII

of the Ohio Constitution. Determining the salaries of municipal officers is a

matter within the powers of local self-government. Loux v. Lakewood, 120 Ohio

App. 415 (8th Dist.1963), appeal dismissed by 176 Ohio St. 154 (1964). See also


                                        -30-
Case Nos. 4-12-22, 4-12-23


Mansfield v. Endly, 38 Ohio App. 528, 536-538 (5th Dist.1931) (non-charter city).

To that end, Section 2.07 of the Defiance City Charter provides:

        The salary of Council members shall be established by ordinance,

        but no member of Council, at the time of the enactment of any

        ordinance increasing such salaries, shall receive the benefit of any

        such increase during his or her then current term of office. Any

        change in the salary of members of Council shall be effective

        commencing with the terms of office of members of Council elected

        at the next regular Municipal election; said ordinance providing for a

        change in salary shall be passed on or before the filing deadline for

        the declaration of party candidacy for members of Council.

(Defiance Charter, Holtsberry Complaint, Ex. B). Both parties cited State ex rel.

Parsons v. Ferguson in the proceedings below for the proposition that the term

“salary” in Section 2.07 of the Charter should be interpreted synonymously with

the term “compensation,” including BORMA group health insurance.6 46 Ohio

St.2d 389 (1976).        As the Court in Parsons, noted:

        Fringe benefits, such as [premiums for a group medical plan], are

        valuable perquisites of an office, and are as much a part of the

        compensations of office as a weekly pay check. It is obvious that an


6
  We also note that Section 2.07 is, in fact, entitled “Compensation” further evidencing the fact that it
encompasses more than salary alone.

                                                 -31-
Case Nos. 4-12-22, 4-12-23


       office holder is benefitted and enriched by having his insurance bill

       paid out of public funds, just as he would be if the payment were

       made directly to him, and only then transmitted to the insurance

       company.

Id. at 391.   Accordingly, the parties agreed that Section 2.07 of the Charter

required that council members’ BORMA group health insurance be established by

ordinance. However, the parties disagreed that council had, in fact, established

council members’ BORMA group health insurance benefit by ordinance.

       {¶65} Defiance argued, in part, that council members’ BORMA group

health insurance was not established by ordinance because Ordinance No. 5970,

which established council members’ salaries, did not mention group health

insurance. The trial court agreed. We do not agree, however, because the trial

court’s interpretation of Section 2.07 effectively added the terms “a single” or “the

same” before the word “ordinance,” which is contrary to well-established rules of

statutory interpretation.   Section 2.07’s plain language does not require that

council members’ salary/compensation be established by “a single” or “the same”

ordinance. To interpret a municipal charter provision, courts must apply general

rules of statutory construction. State ex rel. Commt. for Proposed Ordinance to

Repeal Ordinance No. 146-02, West End Blight Designation, v. Lakewood, 100

Ohio St.3d 252, 2003-Ohio-5771, ¶ 19, citing Commt. for Charter Amendment,


                                        -32-
Case Nos. 4-12-22, 4-12-23


City Trash Collection, 97 Ohio St.3d 100, 2002-Ohio-5302, ¶ 28.             When

interpreting a statute, courts may not add or delete words. See e.g. State ex rel.

Lorain v. Stewart, 119 Ohio St.3d 222, 2008-Ohio-4062, ¶ 36 (citations omitted).

Section 2.07 only requires that council members’ BORMA group health insurance

benefit be established by ordinance, so any ordinance will suffice.

       {¶66} Defiance alternatively argues that Ordinance No. 4994 clearly

established that council members participating in BORMA must do so at their own

expense. Ordinance No. 4994 was enacted on December 15, 1988 and specified

council members’ salaries. The ordinance also required council members to pay

100% of the premium to participate in BORMA. However, Ordinance No. 4994

was temporary and subsequently replaced by Ordinance No. 5612 on December

20, 1994, which did not include the same stipulation regarding council members’

participation in BORMA. Ordinance No. 5612 established council members’

salaries for 1996 through 1999, and specifically stated that Ordinance No. 4994

would govern the salaries of council members whose terms commenced prior to

January 1, 1996.    Ordinance No. 5612 was also temporary and subsequently

replaced by Ordinance No. 5970 on October 20, 1998, which established council

members’ salaries for 2000 through 2005.       Ordinance No. 5970, like Ordinance

No. 5612 before it, also failed to include any provision concerning council

members’ group health insurance benefit.          Ordinance No. 5612 was also


                                        -33-
Case Nos. 4-12-22, 4-12-23


temporary and subsequently replaced by Ordinance No. 7012, which established

council members’ salaries for 2010 through 2015. Ordinance No. 7012, like

Ordinance Nos. 5790 and 5612 before it, did not include any provision concerning

council members’ group health insurance benefit. Since Ordinance No. 4994 has

been superseded by multiple other salary ordinances, we are not persuaded that

Hubbard and Holtsberry’s claims are defeated by this ordinance.

          {¶67} Holtsberry alternatively argues in his fifth assignment of error that

Ordinance No. 4994 did not apply to him because it did not mention “president of

council.”      Holtsberry points out that Section 2.06 of the Charter identifies

president of council as a separate office from council members with distinct

duties.     While the Charter unquestionably provides for a separate office of

“president of council” who serves a distinct role, president of council is

nonetheless a “council member” for purposes of Section 2.07 governing

compensation. If this were not so, president of council would not be entitled to

any compensation since Section 2.07 is the only Charter section authorizing

compensation. This explains why Ordinance Nos. 5612, 5790, and 7012 establish

the same salaries for president of council as other council members. Although

Ordinance No. 4994 did not specifically refer to “president of council,” it is clear

that council intended the term “council member” to include “president of council”

since Section 3 of Ordinance No. 5612, which replaced Ordinance No. 4994,


                                          -34-
Case Nos. 4-12-22, 4-12-23


provided that “[t]he annual salary of the President and Members of Council for

terms commencing prior to January 1, 1996 shall be as fixed by Ordinance

4994[.]” The fact that council used only the term “council member” in Ordinance

No. 4994 further evidences the fact that the president of council is governed under

Section 2.07 of the Charter for salary/compensation purposes.                        Consequently,

Holtsberry’s BORMA group health insurance benefit is not dependent upon his

position as president of council but his status as a “council member” under Section

2.07—the very same entitlement Hubbard claims.

        {¶68} Hubbard claims that council members’ group health insurance

benefit was established by Ordinance No. 5044, which authorized the mayor to

enter into a contract with BORMA. We agree. Council authorized the mayor to

enter into the BORMA contract after the EHCCCC, a committee authorized by

Resolution No. 2071 and delegated authority to take bids and determine heath care

coverage for city employees, evaluated and approved the BORMA plan.7

Significantly, the BORMA plan defined “eligible” city employees to include

council members. While the text of Ordinance No. 5044 did not contain the whole

BORMA plan—a plan that is over 63 pages—the term “establish” in Section 2.07

of the Charter does not require such an overly-technical and burdensome result. It


7
 That city council was required to establish the salary/compensation of its members by ordinance did not
prevent council “from appointing agents and empowering them to make contracts, or from appointing
committees and investing them with duties of a ministerial or administrative character.” Hengst v.
Cincinnati, 9 Ohio Dec. 730, *3 (Ohio Super.1899).

                                                 -35-
Case Nos. 4-12-22, 4-12-23


is enough that Ordinance No. 5044 authorized the BORMA plan, which included

council members, to conclude that council members’ group health insurance

benefit was “established” by ordinance.

       {¶69} Since we have determined that council members’ BORMA group

health insurance was established by ordinance within the meaning of Section 2.07,

we sustain Hubbard’s fifth assignment of error. We overrule Holtsberry’s fifth

assignment of error to the extent it relies upon his status as president of council.

       {¶70} The second question presented by Hubbard’s fourth and sixth

assignments of error is whether Defiance lawfully terminated council members’

BORMA group health insurance, effective January 1, 2007, by enacting Codified

Ordinance 121.04. Hubbard presents three separate reasons Defiance did not.

First, Hubbard argues that Codified Ordinance 121.04 violated Section 2.07

because its effective date was March 8, 2007, well past the date required by

Section 2.07. Second, he argues that the ordinance cannot be applied to council

members, like him, whose terms were January 1, 2006 through December 31,

2009 since its application would constitute an in-term decrease in compensation

prohibited under Section 2.07. Third, he argues that Codified Ordinance 121.04 is

not applicable to him since the EHCCCC has not terminated or changed council

members’ group health insurance coverage.           Fourth, he argues that even if




                                         -36-
Case Nos. 4-12-22, 4-12-23


Ordinance 121.04 was validly enacted, January 1, 2008 was the earliest effective

date for its application.

       {¶71} Hubbard’s first argument is refuted by Section 2.07’s plain language.

Section 2.07 provides, in pertinent part: “said ordinance providing for a change in

salary shall be passed on or before the filing deadline for the declaration of party

candidacy for members of Council.” (Emphasis added). Contrary to Hubbard’s

argument, it is the passage date and not the effective date of the ordinance that

matters. Hubbard admits that the ordinance was passed prior to the February 22,

2007 deadline for the declaration of party candidacy for council members;

therefore, the ordinance was timely passed in accordance with Section 2.07.

       {¶72} Hubbard’s second argument also lacks merit. Section 2.07 of the

Charter provides, in relevant part:

       * * * no member of Council, at the time of the enactment of any

       ordinance increasing such salaries, shall receive the benefit of any

       such increase during his or her then current term of office. Any

       change in the salary of members of Council shall be effective

       commencing with the terms of office of members of Council elected

       at the next regular Municipal election;

(Emphasis added).       Section 2.07’s plain language establishes two different

effective dates for salary/compensation changes depending upon whether the


                                        -37-
Case Nos. 4-12-22, 4-12-23


change is an increase or decrease. The effective date for salary increases is

governed by the first sentence of Section 2.07, which provides: “* * * no member

of Council, at the time of the enactment of any ordinance increasing such salaries,

shall receive the benefit of any such increase during his or her then current term

of office.”    (Emphasis added).    Since this language refers to “no member”

(singular) of Council” and “his or her” (singular) then term (singular) of office,”

the effective date of a salary/compensation increases depends upon each council

member’s then term of office.          Practically speaking, then, increases in

salary/compensation commence at different times for different council members

depending upon their individual term of office.

       {¶73} The effective date of salary/compensation decreases, on the other

hand, is governed by the second sentence of Section 2.07, which provides: “[a]ny

change in the salary of members of Council shall be effective commencing with

the terms of office of members of Council elected at the next regular Municipal

election[.]”    (Emphasis added).     This is significantly different than the

commencement date for salary/compensation increases governed by the first

sentence of Section 2.07.     Rather than referring to a “member of Council”

(singular) and “his or her (singular) then term (singular) of office,” the second

sentence of Section 2.07 refers to “members of Council” (plural) and “terms

(plural) of office of members” (plural); therefore, the effective date of


                                       -38-
Case Nos. 4-12-22, 4-12-23


salary/compensation decreases is not dependent upon the particular term of any

individual council member, like the effective date of salary/compensation

increases under the first sentence of Section 2.07. Rather, the effective date of

salary/compensation decreases is simultaneous for all members of council—

January 1st of an even-numbered year following the next regular municipal

election when the newly elected members take office—regardless of whether that

results in an in-term decrease in salary/compensation for particular council

members who may not be up for election in the next regular municipal election.

         {¶74} Although it could be argued that the phrase “[a]ny change in salary”

appearing in the second sentence of Section 2.07 refers to increases and decreases

in salary/compensation, this interpretation would create contradictory results for

salary/compensation increases. The more sensible interpretation is that the first

sentence of Section 2.07 governs increases in salary/compensation, and the second

sentence of Section 2.07 governs all other changes, including decreases.8

Decreases in salary/compensation are clearly not governed by the first sentence of

Section 2.07 since it plainly refers to “increases.”                          Instead, decreases in

salary/compensation fall under the category of “[a]ny change in salary” used in the

second sentence of Section 2.07. “Statutes must be construed, if possible, to

operate sensibly and not to accomplish foolish results.” State ex rel. Saltsman v.

8
  It is possible to have neutral changes to salary in salary/compensation. For example, council could
decrease their salary by $1,000.00 per year but provide for a $1,000.00 per year in travel costs. While this
is neither an increase nor a decrease in overall compensation, it is a “change” in salary/compensation.

                                                   -39-
Case Nos. 4-12-22, 4-12-23


Burton, 154 Ohio St. 262, 268 (1950). It is perfectly reasonable to conclude that

the drafters of the Charter wanted to prevent council members from increasing

their salary/compensation during their current terms of office for their own self-

interest. As written, Section 2.07 requires any council member who voted for a

salary/compensation increase to stand for reelection before he or she can gain the

benefit. This same concern, however, is not present for decreases in

salary/compensation. The fact that a salary/compensation decrease applies to all

council members simultaneously also prevents the majority on council from

punishing the minority for political reasons. If the majority passes an ordinance

decreasing salary/compensation, they must also suffer the decrease in

salary/compensation at the same time as members in the minority, regardless of

whether members in the majority are in-term when the decrease commences.

Based upon the foregoing, we conclude that the second sentence of Section 2.07

governs decreases in salary/compensation.

       {¶75} Hubbard argues that Section 2.07 of the Charter must be harmonized

with   other   existing   general   laws      forbidding   in-term   decreases   in

salary/compensation for municipal officials, county officials, general assembly

members, state officials, and judges. R.C. 731.07; R.C. 325.22; Article II, Section

20 of the Ohio Constitution; Article III, Section 19 of the Ohio Constitution; and,

Article IV, Section 6(b) of the Ohio Constitution. We disagree.


                                       -40-
Case Nos. 4-12-22, 4-12-23


      {¶76} Provisions in a municipal charter must be harmonized with general

laws relating to the same subject whenever possible. State ex rel. The Ryant

Commt. v. Lorain Cty. Bd. of Elections, 86 Ohio St.3d 107, 112 (1999). However,

if a portion of a municipal charter expressly conflicts with parallel state law in a

matter of local self-government, the charter provision prevails.      State ex rel.

Ditmars v. McSweeney, 94 Ohio St.3d 472, 475 (2002), citing State ex rel. Fenley

v. Kyger, 72 Ohio St.3d 164, 165 (1995), quoting State ex rel. Lightfield v. Indian

Hill, 69 Ohio St.3d 441, 442 (1994); Sections 3 and 7, Article XVIII, Ohio

Constitution. Determining the salaries of municipal officers is a matter within the

powers of local self-government. Loux, 120 Ohio App. 415, appeal dismissed by

176 Ohio St. 154. See also Endly, 38 Ohio App. at 536-538 (non-charter city).

      {¶77} While all of the general laws cited by Hubbard prohibit decreases in

salary/compensation for elected officials during their current term of office, the

only general law governing municipal legislative officers is R.C. 731.07, which

provides:

      The salary of any officer of a city shall not be increased or

      diminished during the term for which he was elected or appointed.

      This section does not prohibit the payment of any increased costs of

      continuing to provide the identical benefits provided to an officer at

      the commencement of his term of office.


                                       -41-
Case Nos. 4-12-22, 4-12-23


(Emphasis added). Comparing R.C. 731.07’s language to Section 2.07 of the

Defiance Charter, it is apparent that the two provisions are not the same. As we

explained above, Section 2.07 provides different commencement dates for

salary/compensation changes depending upon whether the change is an increase or

a decrease (or other change).9 R.C. 731.07, on the other hand, provides one

commencement date for both increases and decreases in compensation, which is

tethered to the particular term of the individual municipal legislative officer. At

the time of the Charter’s drafting, the current version of R.C. 731.07 had already

been enacted (1980 S.B. 299, eff. 1-9-81); therefore, we must presume that the

charter’s drafters knew the general law (R.C. 731.07) on this issue and consciously

deviated from it. See e.g. Carey v. Commrs. of Montgomery County, 19 Ohio 245,

271 (1850) (“Legislatures are presumed to know, when passing any act, what the

existing law is.”); East Ohio Gas Co. v. Akron, 2 Ohio App.2d 267, 270 (9th

Dist.1965).             Since Section 2.07 conflicts with R.C. 731.07 and the

salaries/compensation of local officers is a matter of local self-government, the

former need not be harmonized with the latter, and the former prevails herein.

           {¶78} Hubbard’s third argument also lacks merit. While council delegated

a portion of its authority to the EHCCCC to take bids and determine heath care

coverage for city employees, council retained its authority via Section 2.07 of the



9
    See Fn. 8, supra.

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Case Nos. 4-12-22, 4-12-23


Charter to change the health care benefit for its members. It is also important to

note that council, not the EHCCCC, ultimately authorized the BORMA plan by

passing Ordinance No. 5044. If council has the power to create that benefit

(which Hubbard admits), it logically follows that council has the power to

eliminate that benefit—absent any action by the EHCCCC.

       {¶79} Fourth, Hubbard argues that even if Codified Ordinance 121.04 was

validly enacted, its earliest effective date was January 1, 2008. We agree.

       {¶80} Ordinance No. 6768, now known as Codified Ordinance 121.04, was

passed and approved on February 6, 2007. Section 4 of the ordinance provides:

“[t]his ordinance shall be effective on the earliest date permitted by Section 2.07

of the Charter of the City of Defiance, Ohio.” Pursuant to the second sentence of

Section 2.07, decreases in salary/compensation shall be “effective commencing

with the terms of office of members of Council elected at the next regular

Municipal election[.]” Section 2.01 of the Charter provides that “[a]ll members

[of Council] shall be elected for four (4) year terms, beginning January 1

following the Municipal elections * * *.” Municipal elections for city council

members are held in each odd-numbered year; therefore, the terms of office for

council members commence on January 1 of each even-numbered year. R.C.

731.03(A). The next municipal election after the passage of the ordinance was

held in November 2007. The terms of office of members elected during that


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Case Nos. 4-12-22, 4-12-23


municipal election began on January 1, 2008; therefore, January 1, 2008 is the

earliest effective date of Codified Ordinance 121.04.

      {¶81} It is undisputed that Defiance applied Codified Ordinance 121.04

effective January 1, 2007 to deny both Holtsberry and Hubbard BORMA group

health insurance. While Defiance’s enactment of Codified Ordinance 121.04 did

not violate Section 2.07 of the Charter, its application of the ordinance prior to

January 1, 2008 was unlawful since Section 2.07 of the Charter establishes

January 1, 2008 as the effective date of the ordinance. Therefore, we sustain

Hubbard’s fourth assignment of error and Holtsberry’s fifth assignment of error to

the extent that Defiance applied Codified Ordinance 121.04 prior to January 1,

2008. Since we have determined, however, that council’s enactment of Codified

Ordinance 121.04 was not in violation of Section 2.07 of the Charter, we overrule

Hubbard’s sixth assignment of error.

      {¶82} Since Defiance unlawfully applied Codified Ordinance 121.04 prior

to its effective date of January 1, 2008, we must also sustain Hubbard’s first and

eighth assignments of error and Holtsberry’s fifth assignment of error concerning

the trial court’s grant of summary judgment.            Hubbard and Holtsberry’s

declaratory claim for entitlement to BORMA group health insurance for 2007 has

merit, and they were entitled to a declaration of the same. However, Defiance’s

application of Codified Ordinance 121.04 on January 1, 2008 and thereafter was


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Case Nos. 4-12-22, 4-12-23


lawful under Section 2.07 of the Charter; and therefore, Hubbard and Holtsberry

were not entitled to a declaration of entitlement to BORMA group health

insurance for January 1, 2008 and thereafter. We remand this matter for the trial

court to grant Hubbard and Holtsberry summary judgment as it relates to their

claim for BORMA group health insurance for 2007, and for the trial court to grant

Defiance summary judgment as it relates to Hubbard and Holtsberry’s claim for

BORMA group health insurance for January 1, 2008 forward.

       {¶83} Hubbard’s fifth assignment of error is, therefore, sustained.

       {¶84} Hubbard’s first, fourth, and eighth assignments of error are sustained

only to the extent that Codified Ordinance 121.04’s effective date is January 1,

2008 according to Section 2.07 of the Charter, and Defiance unlawfully applied

Codified Ordinance 121.04 to Hubbard prior to its effective date.

       {¶85} Hubbard’s sixth assignment of error is, therefore, overruled.

       {¶86} Holtsberry’s fifth assignment of error is sustained only to the extent

that Codified Ordinance 121.04’s effective date is January 1, 2008 according to

Section 2.07 of the Charter, and Defiance unlawfully applied Codified Ordinance

121.04 to Holtsberry prior to its effective date.

                     Hubbard’s Assignment of Error No. III

       The court erred by applying codified ordinance 35.16 to
       plaintiff-appellant’s claims.



                                         -45-
Case Nos. 4-12-22, 4-12-23


       {¶87} In his third assignment of error, Hubbard argues that the trial court

erred in applying Codified Ordinance 35.16 to his claims. Our conclusion that

Hubbard is entitled to summary judgment as it relates to his entitlement to

BORMA group health insurance benefits for 2007 renders this assignment of error

moot, and we decline to address it. App.R. 12(A)(1)(c).

       {¶88} Having found error prejudicial to the appellants herein in the

particulars assigned and argued, we reverse the judgments of the trial court and

remand for further proceedings consistent with this opinion.

                                                          Judgments Reversed and
                                                                Cause Remanded

WILLAMOWSKI and ROGERS, J.J., concur.

/jlr




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