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Disciplinary Counsel v. Aaron Anthony Ridenbaugh, Case no. 2008-2493
Summit County
State of Ohio ex rel. Dillard Department Stores, Inc. v. Marsha P. Ryan, Administrator, Ohio Bureau of Workers' Compensation, et al., Case no. 2007-2225
10th District Court of Appeals (Franklin County)
State ex rel. Paul Perrea v. Cincinnati Public Schools, Case no. 2008-0748
Original Action in Mandamus
Attorney Discipline
Disciplinary Counsel v. Aaron Anthony Ridenbaugh, Case no. 2008-2493
Summit County
The Board of Commissioners on Grievances & Discipline has recommended that the license of Cuyahoga Falls attorney Aaron A. Ridenbaugh be indefinitely suspended for engaging in illegal voyeuristic conduct that resulted in his conviction on multiple criminal counts including felony charges of intercepting electronic or oral communications and pandering sexually oriented matter involving a minor. Ridenbaugh’s law license has been under an interim suspension since February 2008.
While Ridenbaugh’s criminal acts were not committed in the performance of his duties as a lawyer, the board found that his conduct violated the state attorney discipline rules that prohibit an attorney from engaging in criminal conduct involving moral turpitude and from engaging in conduct that reflects adversely on the attorney’s fitness to practice law. The three-member hearing panel that reviewed the charges against Ridenbaugh recommended that he be suspended from practice for two years, with no credit for the time he has been under the interim suspension, with reinstatement conditioned on his compliance with several requirements including continuing psychiatric treatment and compliance with a recovery contract with the Ohio Lawyers Assistance Program. After reviewing the panel’s findings, the full disciplinary board increased the recommended sanction to an indefinite license suspension with no credit for time served, with the same conditions for reinstatement.
Ridenbaugh has filed objections to some of the board’s findings and its recommended sanction. He argues that the board’s report and recommendation do not give adequate weight to the mitigating factors that he cooperated fully with judicial and disciplinary investigations of his conduct, fully admitted the wrongness of his actions and expressed sincere remorse for the harm that it caused to others, that he suffers from substance abuse and diagnosed psychological disorders that contributed to his misconduct and that he has aggressively and faithfully pursued treatment for his mental illness and recovery from his substance abuse problems for more than 18 months. In light of those considerations, Ridenbaugh asks the Court to impose a less severe sanction than the board has recommended.
The Office of Disciplinary Counsel, which prosecuted the charges against Ridenbaugh before the board, has filed an answer to Ridenbaugh’s objections. Disciplinary Counsel urges the Court to impose an indefinite suspension as recommended by the board, pointing to the number and seriousness of Ridenbaugh’s criminal acts, and the fact that they involved a great number of individual incidents of illegal conduct that were engaged in over a period of approximately three years.
Contacts
Jonathan E. Coughlan, 614.461.2056, for the Office of Disciplinary Counsel.
Richard C. Alkire, 216.674.0550, for Aaron A. Ridenbaugh.
Does Claimant’s ‘Double Dismissal’ of Workers’ Comp Appeal Constitute Judgment In Favor of Employer?
State of Ohio ex rel. Dillard Department Stores, Inc. v. Marsha P. Ryan, Administrator, Ohio Bureau of Workers' Compensation, et al., Case no. 2007-2225
10th District Court of Appeals (Franklin County)
ISSUE: Under the “double dismissal” provision of Ohio Civil Rule 41(A)(1), when a self-insured employer has appealed an award of disability benefits by the Bureau of Workers Compensation to one of the employer’s workers, does a second voluntary dismissal of the appeal complaint by the injured worker constitute a “judgment” of the trial court that disallows the employee’s workers’ compensation award and thereby entitles the employer to recover its outlays on behalf of the employee from the state Workers’ Compensation Surplus Fund?
BACKGROUND: Under Ohio’s workers’ compensation program, some employers pay premiums into a state-controlled insurance fund while others are self-insured. When an injured employee of a self-insured company is granted an award of benefits by the Bureau of Workers’ Compensation (BWC), the company must immediately pay the claimant’s medical bills and compensate the worker for lost wages from a pool of its own funds set aside for that purpose. If the employer disputes a BWC order granting benefits to one of its employees, the employer may file an appeal in the local common pleas court. Because of the nature of worker’s compensation benefits, an employer’s appeal is initiated by having the employee file the initial complaint, after which the employer files responsive pleadings disputing BWC’s award of benefits. If the common pleas court ultimately enters a judgment holding that the BWC erred in granting the employee’s claim for benefits, a self-insured employer is entitled to obtain a refund from a BWC-administered surplus fund for all amounts the employer has paid to or on behalf of the employee based on the BWC’s erroneous grant of benefits.
In this case, BWC awarded benefits to Pamela Scott for a back injury she suffered in the course of her employment with Dillard Department Stores. Dillard is a self-insured employer. Dillard disputed the bureau’s decision awarding benefits to Scott. Accordingly, Scott filed an appeal complaint in the Trumbull County Court of Common Pleas and Dillard filed responsive pleadings seeking reversal of the BWC’s grant of benefits. Scott later unilaterally dismissed her complaint, terminating the appeal action. She subsequently refiled the appeal complaint, reinstating Dillard’s appeal. While the appeal action remained pending, Scott entered into a settlement agreement with Dillard in which she received $15,000 in exchange for agreeing to enter a second voluntary dismissal of her complaint. Under Ohio Civil Rule 41(A)(1), a second voluntary “notice” dismissal of a civil lawsuit by the plaintiff operates as a “judgment on the merits” in favor of the defendant.
Dillard and Scott submitted a copy of their settlement agreement to the BWC along with an application seeking the bureau’s approval of the agreement. Following the expiration of a statutory 30-day waiting period after which settlement agreements become effective unless rejected by the state, Scott filed with the common pleas court a second notice of voluntary dismissal of her complaint, stating in that notice that the dismissal was “with prejudice.” Several months later, Dillard’s third-party insurance administrator filed an application seeking reimbursement from the state of all of Dillard’s payments to and on behalf of Scott based on her back injury claim. In its application, Dillard asserted that its settlement with Scott became final and binding on the parties after the 30-day revocation period had expired; and that under the two-dismissal provision of Civil Rule 41(A)(1), Scott’s second voluntary dismissal of her appeal complaint was the equivalent of a “judgment on the merits” granting Dillard’s appeal of the BWC award.
The BWC denied Dillard’s application for reimbursement, holding that Scott’s second dismissal of her appeal complaint did not constitute a “judicial determination” by the common pleas court that the bureau had erred in awarding benefits for her back injury, and therefore that dismissal did not entitle Dillard to reimbursement of its outlays arising from that injury. Dillard subsequently filed a mandamus action asking the 10th District Court of Appeals to order BWC to grant its application for reimbursement. The 10th District denied the requested writ. Dillard now asks the Supreme Court to reverse the court of appeals and issue an order requiring BWC to reimburse the company for its expenditures arising from Scott’s back injury claim.
Attorneys for Dillard argue that, because the claimant in a workers’ compensation appeal bears the burden of proving his or her claim is valid, and Scott’s second voluntary dismissal of her appeal complaint barred any future litigation of that issue, the trial court’s dismissal of the appeal complaint “with prejudice” constituted a final judicial determination that Scott was not entitled to benefits for the disputed back injury, and Dillard was therefore eligible for reimbursement of its outlays based on that now-disallowed claim.
Attorneys for BWC respond that the purpose of the “double dismissal” provision in Civil Rule 41(A)(1) is to prevent irresponsible or vexatious litigators from tying up opposing parties and judicial resources by repeatedly filing and then withdrawing the same civil lawsuit. They argue that the second dismissal of the appeal complaint in this case was a deliberate attempt by Dillard and Roberts to “subvert” the dismissal rule and the workers’ compensation appeal process. By entering into a private settlement agreement to which the BWC did not agree, they say, Dillard’s undisguised objective was to obtain a refund from the state of $41,000 in benefits Dillard had already paid by paying Roberts $15,000 to abandon her appeal complaint.
They point out that, by law, the BWC is a party in every appeal of a benefit award by a self-insured employer precisely because the resources of the state are at risk if there is a finding that an award was improperly approved and the employer is therefore entitled to a refund. They urge the Court to affirm the 10th District’s denial of mandamus on the basis that the purely procedural dismissal of the appeal complaint under Civil Rule 41(A)(1) in this case was not a “judicial determination” that the BWC erred in granting Roberts’ back injury claim, and therefore Dillard is not entitled to a refund of its outlays arising from that claim.
Contacts
Stephen D. Plymale, 614.466.4861, for the Ohio Bureau of Workers’ Compensation.
Michael J. Bertsch, 216.621.1000, for Dillard Department Stores, Inc.
Are a Public School System’s Standardized Tests Subject to Disclosure Under Ohio Public Records Act?
State ex rel. Paul Perrea v. Cincinnati Public Schools, Case no. 2008-0748
Original Action in Mandamus
ISSUE: Are the contents of a public school system’s standardized semester examinations subject to mandatory public disclosure under the state’s public records act?
BACKGROUND: Paul Perrea of Cincinnati, a teacher at Hughes High School, has filed an original action in the Supreme Court seeking a writ of mandamus to compel the superintendent and other officials of the Cincinnati Public Schools system (CPS) to comply with Perrea’s request under the Ohio Public Records Act that he be provided with copies of the standardized examinations that are administered to all CPS 9th grade students at the end of each semester to measure their achievement in four different academic subjects.
Perrea’s records request was presented to CPS officials in 2008 along with a petition signed by him and 60 other teachers. The group sought disclosure of the actual examination questions and other documents related to the “creation, administration and grading” of the CPS semester examinations for the stated purpose of obtaining an outside expert assessment of the “fairness, accuracy and validity of the exams.” CPS denied the records request, asserting that the exam questions and other requested documents are exempt from disclosure under specific exceptions in the Public Records Act for trade secrets and copyrighted materials. Perrea subsequently filed this mandamus action, asking the Supreme Court to compel disclosure of the request materials.
Attorneys for Perrea urge the Court to follow its 1998 decision in Rea v. Ohio Department of Education, in which a 4-3 majority held that the contents of the statewide 12th Grade Proficiency Test were subject to disclosure under the Public Records Act, and specifically rejected claims by the state that test questions which had been seen by thousands of students and teachers qualified as “trade secrets” or were exempt from disclosure as copyrighted material. They also argue that the state has a strong public policy interest in assuring that testing instruments used to determine the academic achievement of thousands of public school students accurately measure student learning, are not culturally biased, and are statistically valid. In this case, they say, CPS has produced no documentation indicating that its 9th grade semester tests have been evaluated by impartial experts, and effective public oversight of the schools’ performance requires disclosure and objective third-party review of the exam contents and the district’s testing methodology.
Attorneys for CPS respond that a key premise underlying the 1998 majority holding in Rea, i.e., that it was legally questionable whether a public agency could have “trade secrets,” has since been overturned by Supreme Court of Ohio decisions in Besser v. Ohio State University (2000) and Carr v. City of Akron (2006). In both Besser and Carr, they say, this Court not only held that information held by a state university and a municipality can qualify as trade secrets, but ruled that specific records on file at those public agencies, including the contents of a civil service examination, did constitute trade secrets and were therefore exempt from disclosure under the Public Records Act.
They point to extensive security measures CPS has put in place to prevent the semester exam questions from being copied or even seen by teachers or students at any times other than the 2 ½-hour period during which the exams are actually administered. They note that the test questions were developed by a third-party contractor which retained ownership rights to the content of the examinations that would be greatly impaired or destroyed if the test contents are held to “public records” subject to total disclosure. They also argue that because CPS uses the same test questions year after year, in lieu of paying hundreds of thousands of dollars to have new questions developed and tested each year, public disclosure of the test questions will cause the district serious financial harm by rendering its current examinations worthless in the future as a measure of what students have actually learned through their class work.
Contacts
Ted L. Wills, 513. 721.5707, for Paul Perrea.
Mark J. Stepaniak, 513.381.2838, for Cincinnati Public Schools.
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