[Cite as State v. Fox, 2016-Ohio-2745.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                        ERIE COUNTY


State of Ohio                                         Court of Appeals No. E-15-033

        Appellant                                     Trial Court No. 2015-CR-0120

v.

Frederick Fox                                         DECISION AND JUDGMENT

        Appellee                                      Decided: April 29, 2016

                                          *****

        Mike DeWine, Ohio Attorney General, and Micah R. Ault,
        Assistant Attorney General, for appellant.

        James L. Murray, for appellee.

                                          *****

        OSOWIK, J.

        {¶ 1} This is an appeal from a May 6, 2015 judgment of the Erie County Court of

Common Pleas, granting appellee’s motion to dismiss based upon the failure to file prior

to the expiration of the governing statute of limitations. For the reasons set forth below,

this court affirms the judgment of the trial court.
       {¶ 2} On March 11, 2015, appellant, the state of Ohio, indicted appellee, Frederick

Fox, the former school superintendent of the city of Huron school district, alleging that

appellee unlawfully failed to disclose gifts valued at $1,007.32 in 2011, while appellee

was a public servant in his capacity as a public school superintendent.

       {¶ 3} All parties concur that the key issue underlying this case is the date upon

which appellee ceased being a public servant so as to commence the governing two-year

statute of limitations established by R.C. 2901.13(C)(1)(a).

       {¶ 4} Appellant sets forth the following sole assignment of error:

              The trial court erred by granting Fox’s Motion to Dismiss for failure

       to bring an action within the Applicable Statute of Limitations because Fox

       did not cease to be a public servant on the date of his suspension on

       September 6, 2012, but rather remained a public servant until the date of his

       termination on April 2, 2013.

       {¶ 5} The following undisputed facts are relevant to this appeal. In July 2001,

appellee initially began employment as the superintendent of the city of Huron school

district. Appellee subsequently continued serving as superintendent until 2012 via a

series of successive contracts with the board of education.

       {¶ 6} On June 6, 2012, a member of the board of education submitted a report

alleging various acts of misconduct by appellee during 2010-2011. The multiple

allegations pertain to claims such as alleged financial improprieties in connection to a

2010 golfing trip to Wisconsin, alleged financial improprieties in connection to a 2011




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Arizona trip, and allegedly conveying false insinuations of an improper relationship with

a school district employee.

       {¶ 7} On June 19, 2012, appellee was suspended without pay pending an

investigation into the above-described claims. However, on June 25, 2012, appellee’s

initial suspension was rescinded.

       {¶ 8} On September 6, 2012, appellee was again suspended without pay from the

school superintendent position. September 6, 2012, was the final day appellee performed

any services as school superintendent. After September 6, 2012, appellee was banned

from being present on school grounds and was required to return his office keys and all

school property.

       {¶ 9} The record further reflects that September 6, 2012, was the final day

appellee received a salary as school superintendent. After September 6, 2012, appellee’s

school district furnished life insurance policy, medical insurance, prescription drug

insurance, dental insurance, and vision insurance were all canceled. Consistent with

these actions, on September 6, 2012, the school district contributions to appellee’s state

retirement fund ceased. The school board resolution memorializing appellee’s

September 6, 2012 cessation of employment as school superintendent occurred on

April 2, 2013.

       {¶ 10} On March 11, 2015, appellee was indicted on one count of filing a false

statement as a public official, in violation of R.C. 102.02(D), and one count of making a

false statement as a public official, in violation of R.C. 2921.13(A)(7). Both counts were




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based upon appellee’s alleged failure to disclose gifts in 2011 while a public servant

valued at $1,007.32.

       {¶ 11} On April 10, 2015, appellee filed a motion to dismiss based upon the cases

being filed after the governing R.C. 2901.13(C)(1)(a) two-year statute of limitations

expired. On April 29, 2015, an evidentiary hearing was held on the motion to dismiss.

Witness testimony was taken by appellee and the school board president. In addition,

various related written exhibits were admitted into evidence.

       {¶ 12} Appellee asserted that his employment as a public servant ceased on

September 6, 2012, thereby commencing the statute of limitations on that date.

Conversely, appellant asserted that appellee’s employment continued until April 2, 2013,

the date of the subsequent board resolution memorializing the September 6, 2012

conclusion of appellee’s employment as school superintendent.

       {¶ 13} On May 6, 2015, the trial court granted appellee’s motion to dismiss. The

trial court determined in relevant part:

       [T]he proper analysis is when Defendant no longer performed his duties as

       a public servant * * * [T]his Court determines that for purposes of

       interpretation of the criminal statute of limitations R.C. 2901.13(C)(1)(a)

       this court finds that Defendant was separated from his duties as a public

       servant on September 6, 2012, the date of his final suspension. Defendant

       was not compensated after September 6, 2012 and did not accumulate sick

       or vacation time. Further, defendant received payment of his earned and




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       unused sick and vacation time on September 7, 2012. Defendant’s

       employment contract with the Huron City School District references the

       Administrative Fringe Benefits originally approved December 19, 2005 and

       modified June 19, 2007. Section Three of the Administrative Fringe

       Benefits document states “any unused vacation days shall be paid to the

       administrator at the time of separation”. (Emphasis added).

       {¶ 14} Following the trial court granting appellee’s motion to dismiss, this appeal

ensued.

       {¶ 15} In the sole assignment of error, appellant asserts that the trial court erred in

granting the motion to dismiss. In support, appellant reiterates the position that

appellee’s employment as a public servant for purposes of the R.C. 2901.13(C)(1)(a)

statute of limitations did not cease until April 2, 2013, so as to render the indictment

timely filed. We do not concur.

       {¶ 16} We note at the outset that the resolution of this matter is fundamentally

statutory in nature and entails application of the underlying facts to the governing

statutes.

       {¶ 17} R.C. 2921.01(A) defines a public official as, “[A]ny elected or appointed

officer, or employee, or agent of the state or any political subdivision, whether in a

temporary or permanent capacity.” In conjunction with this, R.C. 2921.01(B)(1)(a)

defines a public servant as, “Any public official.”




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       {¶ 18} R.C. 2901.13(C)(1)(a) is the controlling statute of limitations for filing

criminal actions against public servants. It defines the applicable period of limitation as,

“For an offense involving misconduct in office by a public servant, at any time while the

accused remains a public servant, or within two years thereafter.”

       {¶ 19} Lastly, the statutory construction mandate of R.C. 2901.04(A) requires that,

“[S]ections of the Revised Code defining offenses or penalties shall be strictly construed

against the state, and liberally construed in favor of the accused.”

       {¶ 20} Given the governing statutory framework outlined above, we concur with

the trial court conclusion that the key issue in this case is, “[W]hen Defendant Frederick

Fox ceased to be a public servant,” for purposes of R.C. 2901.13(C)(1)(a) statute of

limitations considerations.

       {¶ 21} In support of its position, appellant argues that the trial court should have

interpreted R.C. 2901.13 pursuant to R.C. 2901.04(B), rather than R.C. 2901.04(A). R.C.

2901.04(B) provides in relevant part that, “[S]ections of the Revised Code providing for

criminal procedure shall be construed so as to affect the fair, impartial, speedy, and short

administration of justice.”

       {¶ 22} We find that even if, assuming arguendo, R.C. 2901.04(B) applies rather

than R.C. 2901.04(A), appellant nevertheless has failed to demonstrate how the granting

of the motion to dismiss in this matter was in breach of R.C. 2901.04(B). While

appellant unilaterally concludes that a, “[S]tandard more favorable to Fox was

significantly detrimental to the state of Ohio,” the fact that the outcome was adverse to




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appellant’s position does not demonstrate that it was therefore in breach of a controlling

statute.

        {¶ 23} Returning to our review of the statutory analysis undertaken by the trial

court in support of its judgment, we note that the record encompasses overwhelming

evidence demonstrating that appellee’s tenure as a public servant ceased on September 6,

2012.

        {¶ 24} A series of decisive and all-encompassing actions were taken by appellee’s

employer culminating in appellee no longer being obligated to perform any duties or

obligations of any kind in connection to the former superintendent position. Appellee

received no further salary or benefits of any kind, appellee was barred from the premises,

appellee’s residual leave balances were cashed out and furnished to him, thereby meeting

the handbook definition of separation from employment, appellee was obligated to return

all property belonging to the school district and all keys that had enabled access by

appellee, and a deputy superintendent thereafter occupied appellee’s former office and

performed appellee’s former job duties and obligations.

        {¶ 25} In light of these facts and circumstances, we find that the record reflects

that the only tenable interpretation of the events of September 6, 2012, is that appellee’s

period of service as a public servant ceased on that date for purposes of R.C.

2901.13(C)(1)(a) statute of limitations calculations applicable to any subsequent

allegations of wrongdoing by appellee during his tenure as a public servant.




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         {¶ 26} Accordingly, we find that the two-year statute of limitations governing this

matter commenced on September 6, 2012. Thus, the March 11, 2015 indictment was

filed approximately seven months after the expiration of the controlling statute of

limitations. Appellee’s motion to dismiss, based upon statute of limitations grounds, was

properly granted by the trial court. Appellant’s assignment of error is found not well-

taken.

         {¶ 27} On consideration whereof, the judgment of the Erie County Court of

Common Pleas is hereby affirmed. Appellant is ordered to pay the costs of this appeal

pursuant to App.R. 24.

                                                                         Judgment affirmed.



       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.



Arlene Singer, J.                                _______________________________
                                                             JUDGE
Thomas J. Osowik, J.
                                                 _______________________________
James D. Jensen, P.J.                                        JUDGE
CONCUR.
                                                 _______________________________
                                                             JUDGE


              This decision is subject to further editing by the Supreme Court of
         Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
              version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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