The Court will hear cases dealing with the rights of local government to hire, fire, and sue for faulty construction.

The Court will hear cases dealing with the rights of local government to hire, fire, and sue for faulty construction.

Disputes over the rights of local government to insist its residents are hired for construction projects, sue contractors for faulty construction, and to claim immunity from employee lawsuits have drawn the interest of national and statewide organizations, which weighed in on upcoming cases before the Ohio Supreme Court.

Among the cases the Supreme Court will hear during its March 5 and 6 oral arguments is one about Cuyahoga County’s effort to dismiss a defamation lawsuit filed against it and the Cleveland Plain Dealer newspaper by a fired employee. The case stems from the fallout of the county leaders corruption scandal that sparked voters to change to a new county executive-led government in 2009.

The Court is also hearing challenges to two state laws, one pre-empting the right of cities to set aside 20 percent of hours worked in government construction project jobs for city residents, and another capping the right to initiate a faulty construction lawsuit to 10 years after project completion. Some of Ohio’s largest cities — along with groups representing local governments, large and small businesses, manufacturers, and construction firms as well as legal scholars, legal associations, and taxpayer groups — submitted amicus curiae briefs in the cases.

Firing by First Executive Prompts Lawsuit
Cuyahoga County voters adopted a new form of county government that called for the elimination of some elected offices, including the county auditor. Ed FitzGerald was elected the first county executive. Marcella Piazza was hired by former County Auditor Frank Russo in 2003 and subsequently assigned to be an office manager for the boards of revision — a body that hears taxpayer challenges to property values and fell under Russo’s authority.

In June 2010, the Plain Dealer published more than 30 articles exposing illegal practices and problems with the boards of revision. In August 2010, Piazza was transferred to the county’s Department of Justice Affairs where she served as a victim’s advocate. That year Russo was sentenced to 22 years in federal prison for accepting bribes and several other charges, and he cooperated in the prosecution of other county elected leaders.

In March 2011, Piazza was informed she was fired. About 90 minutes later, a Plain Dealer reporter contacted Piazza for a comment. Shortly after, the newspaper website published a story headlined, “Cuyahoga County Executive Ed FitzGerald fires three employees tied to the boards of revision scandal.” Piazza had no involvement in the scandal, and the county didn’t allege that she did. FitzGerald told the Plain Dealer that he couldn’t justify keeping reassigned boards of revision workers in other positions.

Piazza filed a lawsuit against the county and the Plain Dealer for “false light invasion of privacy.” She alleged the county linked her to the nationally reported corruption scandals without ever indicating that she was involved or was ever accused of poor work performance. The county argued it had immunity from lawsuits and asked the trial court to dismiss the case. The court denied the motion, and the county filed an interlocutory appeal. In Piazza v. Cuyahoga County, the Supreme Court is hearing the county’s appeal, and the original defamation case is on hold pending the appeal’s outcome.

The Fraternal Order of Police of Ohio and the Ohio Employment Lawyers Association jointly submitted a brief supporting Piazza’s cause. The county claims it was immune because Piazza was no longer a county employee when FitzGerald made the statements allegedly associating Piazza to the scandal. The organizations siding with Piazza argue that most local government employees don’t sue their employers until after they are fired and the law doesn’t protect government employers for wrongful actions even after the employee is dismissed.

Hiring Preference Law On the Line
In 2003, Cleveland passed an ordinance requiring that every contract for public construction projects of $100,000 or more must use Cleveland residents to perform at least 20 percent of the total construction-worker hours on the project. Several cities, including Columbus and Akron, then passed similar laws.

The Ohio General Assembly passed a law in 2016 to counteract these city ordinances. Cleveland sued the state, claiming the state law is an unconstitutional attempt to override its power of local self-government, as provided in the home-rule provision of the Ohio Constitution.

The trial court issued a permanent injunction to stop enforcement of the state law in January 2017.

On behalf of the state, the Ohio Attorney General’s Office appealed. In Cleveland v. State, the attorney general argues that Cleveland’s law creates residency “quotas” for local construction projects and that the Ohio Constitution allows the legislature to pass laws, like it did here, for the general welfare of employees in the state.

Several organizations filed individual and joint briefs supporting the state including the Associated General Contractors of Ohio and the Ohio Chamber of Commerce. Groups supporting Cleveland filed briefs including Akron, the Columbus city attorney, and the Ohio Municipal League.

Faulty Construction Lawsuit Time Limit Tested
Seneca County’s New Riegel Local School District spent $12.5 million in state and local funds on a new kindergarten-through-12th-grade school building that opened in 2002. The district later learned the faulty design and construction of the roof had caused $5 million in damages. Thirteen years after completion, the district filed a lawsuit against the contractors for breach of contract. The contractors argue the 2005 version of Ohio’s “statute of repose” prevents any lawsuit from being filed later than 10 years after the building opened. In New Riegel Local School District v. the Buehrer Group Architecture & Engineering Inc., the Court will consider whether the law applies to breach-of-contract claims.

Groups filing briefs in support of the contractors’ claim include the American Institute of Architects (AIA) Ohio, the Ohio Insurance Institute, and Ohio Manufacturers’ Association. Groups supporting New Riegel include: the County Commissioners Association of Ohio, the Ohio Township Association, and the Ohio School Boards Association

Oral Argument Details
The local government cases are among the eight cases the Supreme Court will consider during two days of oral arguments. Arguments in four cases, including Piazza v. Cuyahoga County, begin at 9 a.m., March 5, at the Thomas J. Moyer Ohio Judicial Center in Columbus. Cleveland v. State and three other appeals will be heard beginning at 9 a.m. on March 6. All arguments are streamed live online at sc.ohio.gov and broadcast live and archived on The Ohio Channel.

Case Previews Published
Along with the information provided in this article, the Supreme Court’s Office of Public Information today released in-depth previews of the cases.

Tuesday, March 5
The case In re Application of 6011 Greenwich Windpark concerns a dispute over the addition of new wind-turbine models to the development of a Huron County wind farm. The Ohio Power Siting Board approved the new models in 2016, but a group of nearby property owners believes the changes were an amendment to the original 2014 certificate authorizing the wind farm. Amended certificates are subject to different setback requirements for the distance between the turbines and adjacent properties, the property owners argue. The wind-farm operator maintains that the appeal is a maneuver by opponents to thwart a properly approved wind farm.

A jury found a man guilty of assaulting a police officer in a Newark grocery store. The trial court sentenced the man to prison and ordered him to pay court costs. In State v. Davis, the man, whom the court found was indigent, argues his trial counsel was ineffective because the attorney didn’t ask the court during sentencing to waive the court costs. If the issue isn’t addressed at sentencing, he has to request a waiver post-conviction, and he has no right to an attorney at that point, the man states. He notes that unpaid court costs compound into greater debt. The prosecutor responds that under state law a person can ask for court costs to be waived at any time, so no harm results if a waiver isn’t requested at sentencing.

Wednesday, March 6
An Adams County man was arrested and charged for possessing the chemicals used to make methamphetamine. Because of his prior conviction for meth-making, the prosecution argued that under R.C. 2925.04(C)(1), the man should receive a mandatory five-year prison sentence. The trial court agreed, but the offender successfully appealed, arguing another law, R.C. 2929.14(A)(3), limits his sentence to three years. In State v. Pribble, the Court will decide which of the conflicting statutes controls the length of the prison sentence.

A Putnam County father reported to police in 2006 that he drove over his 2-year-old son with an all-terrain vehicle. In a plea deal, the father agreed to plead guilty to child endangering, and the prosecutor dropped an involuntary manslaughter charge.  After serving a prison term, the father told police in 2016 he actually had beaten his son to death. Now indicted for murder and other offenses, the father’s case hasn’t gone to trial because an appeals court ruled he can’t be prosecuted again due to protections against double jeopardy. Applying a U.S. Supreme Court legal test, the prosecutor in State v. Soto contends that the man can be prosecuted on the new charges because none of the elements needed to prove them were needed to prove child endangering.

A Lorain County attorney contests a proposed one-year suspension with six months stayed based on claims of professional misconduct after losing a client’s settlement check. In Lorain County Bar Association and Disciplinary Counsel v. Weir, the bar association alleged the lawyer’s lack of response to his client led in a more than two-year delay in settling her case. The Court also will consider a claim that the attorney failed to competently represent his clients when filing a malpractice lawsuit against another lawyer.