Court News Ohio
Court News Ohio
Court News Ohio

Wednesday, February 8, 2017

State of Ohio v. Raymond Morgan, Case no. 2015-0924
Tenth District Court of Appeals (Franklin County)

In the Matter of the Application of Buckeye Wind LLC, Case no. 2015-1715
Ohio Power Siting Board

Mary McGowan, M.D. v. Medpace, Inc., Case no. 2015-1756
First District Court of Appeals (Hamilton County)

Ashtabula County Bar Association v. Thomas C. Brown, Case no. 2016-1147
Ashtabula County

Does Juvenile Court’s Failure to Appoint Guardian Ad Litem Nullify Transfer of Teen’s Case to Adult Court?

State of Ohio v. Raymond Morgan, Case no. 2015-0924
Tenth District Court of Appeals (Franklin County)


  • Does a trial court’s failure to appoint a guardian ad litem for a teen accused of several crimes — whose parents both died before his hearing to consider transferring his case to adult court — constitute an error that would nullify the transfer?
  • To win a new proceeding, does a child need to show an appeals court that a juvenile court’s failure to appoint a guardian ad litem prejudiced his case?

In 2012, Raymond Morgan, 16 years old at the time, along with Rashod Draper, and Morgan’s younger brother, Joshua, were accused of stealing two guns and a camera from a Columbus home. That night, a man was shot in the leg and another in the back, both suspecting the Morgans and Draper of the shooting. The next evening Joshua Morgan attempted to hold up Jimmie White at gunpoint, but White drew a utility knife and stabbed Joshua. White grabbed the gun and shot Draper, who was coming at him with a gun. The Morgans fled the scene.

Police were able to determine that Raymond Morgan and Draper were responsible for the home theft and all three shootings, while Joshua was only in involved in the encounter with White. Police determined the stolen guns were used to shoot the two men, and the stolen camera was found in the Morgans’ home.

Raymond Morgan was charged with 13 delinquency counts filed in juvenile court. About a month before the crimes, Morgan’s father died. His mother was in ill health but attended all of Morgan’s juvenile proceedings, including a probable cause hearing, where the parties stipulated that there was probable cause to charge Morgan with the crimes.

Hearing Occurs Without Parents
Prior to an amenability hearing to determine if Morgan was a candidate for care and rehabilitation in the juvenile system, his mother died. At the hearing was a woman only identified in the courtroom as Morgan’s “godsister” and was said to have “taken over in the role of mom” to Morgan. The woman wasn’t related to Morgan.

At the hearing Morgan had no parent, guardian, or legal custodian. Dr. Barbara Bergman testified that she conducted a psychological evaluation of Morgan and recommended to the court that he was amenable to care and rehabilitation.

The state had sought transfer of the case to the common pleas court’s general division to try Morgan as an adult. Morgan was represented by an attorney, and at times during his representation Morgan sought to have the attorney replaced, alleging the attorney wasn’t adequately representing him. The juvenile judge refused to remove the attorney, and the attorney argued against transferring Morgan to adult court. The juvenile court found the “the particularly egregious nature of this gun violence spree” outweighed Bergman’s findings and transferred the case.

Morgan was indicted on 13 counts but pleaded guilty to four counts including two counts of felonious assault, one count of burglary, and one count of aggravated robbery. Three of the four charges carried an additional three years in prison for a firearm specification. He was sentenced to 18 years in prison.

Morgan Claims Guardian Appointment Required
Morgan appealed to the Tenth District Court of Appeals, arguing the juvenile court committed reversible error when it failed to appoint a guardian ad litem (GAL) at the amenability hearing as required by R.C. 2151.281(A)(1) and by Juvenile Rule 4(B)(1). He maintained that transferring his case for criminal prosecution violated his due process rights guaranteed under the U.S. and Ohio constitutions.

The state opposed Morgan’s appeal, and the parties disagreed as to the standard of review required. Morgan maintained the failure to comply with the requirement to appoint a GAL was “reversible error as a matter of law,” which would force the appeals court to vacate his conviction. The state argued the appeals court could only review for “plain error,” which required Morgan to prove that the lack of a GAL prejudiced his case.

The Tenth District held Morgan wasn’t prejudiced, agreeing with the state’s position that the GAL would’ve advocated for not binding Morgan over to adult court, which was exactly what Morgan’s attorney argued. The appeals court noted that Morgan didn’t request a GAL and failed to show how a lack of a GAL prejudiced him. In affirming Morgan’s conviction, the Tenth District also found it compelling that a comprehensive and favorable psychological evaluation of Morgan was presented by Bergman and that the godsister provided Morgan support. Morgan appealed to the Supreme Court, which agreed to hear the case.

Morgan Objects to Plain Error Review
Morgan argues there are two paths the Supreme Court can take to reverse the Tenth District’s decision. First, if it adopts the Tenth District position that a plain error review is appropriate, then it should presume Morgan was prejudiced when the court didn’t follow the law requiring the appointment of a GAL during the amenability stage of the proceedings. Second, if it agrees with Morgan that a plain error review isn’t appropriate, then the Court could find a “structural error” with his case and find his due process rights were violated, which prompted his transfer to adult court.

In his brief, Morgan cites the U.S. Supreme Court’s 1967 In re Gault decision that found children are entitled to “due process and fair treatment.” He argues that expecting a child to request a GAL, rather than the juvenile court taking its own initiative to appoint a GAL “falls woefully short” of what is expected under Gault.

Morgan asserts the amenability hearing is a critical stage of the process because it determines if a juvenile is going to face a civil “delinquency adjudication” or an adult criminal sanction which carries the label “felon” if convicted. He argues while representation by an attorney is indispensable in order to protect his constitutional rights, courts have found the roles of parents at this stage are important. He notes that’s why the General Assembly requires that if a child doesn’t have parents, a guardian, or legal custodian to help represent the best interests of the child, a GAL must be appointed.

“Once the juvenile court was aware that Raymond was an orphan, the appointment of a GAL was required by law,” the brief stated. “A child should not be required to request that the juvenile court fulfill its mandatory duty to ensure fair treatment in the procedures established by the General Assembly. And, a child should not be required to request that the juvenile court ensure that his or her best interests are represented.”

Requiring Morgan to prove that the lack of a GAL affected the outcome of the case is unfair, Morgan argues, stating the Tenth District focused on the outcome rather than ensuring the procedure was followed. Morgan advocates that a structural error be found in his case and that structural error permeated the entire proceeding. Because the law wasn’t followed, he suggests this calls into question the accuracy, fairness, and constitutionality of the hearing and the decision to transfer him to adult court.

“The General Assembly has required that a GAL be appointed and notified of all hearings when a child is without parents ‘in order to meet the requirements of a fair hearing’ and measure up to the essentials of due process. And, this Court has never balked at the opportunity to acknowledge the protections that Ohio affords to children during critical transfer proceedings,” he concluded.

Lack of Appointment Not a Rights Violation, State Maintains
The Franklin County Prosecuting Attorney’s Office on behalf of the state notes that a GAL is an independent officer who reports to the court regarding the child’s best interest. Because Morgan has no personal right to have a GAL appointed, there is no constitutional due process violation if a GAL isn’t appointed, the office asserts.

“Notably, Morgan has not cited a single case stating that a juvenile has a due process right to a GAL in delinquency proceedings,” the prosecuting attorney’s brief states. “Whatever constitutional rights a juvenile has to parental involvement in delinquency proceedings are unique to parents and do not carry over to GAL. A GAL simply does not have the same practical or legal status as a parent, guardian, or legal custodian. In short, if juveniles really do have a personal ‘right’ to a GAL, it is purely a state-law right under Juv.R. 4(B) and R.C. 2151.281(A).”

State Insists Plain Error Review Appropriate
The state argues an appellate court may notice an error that wasn’t previously raised by a party when it is a plain error, meaning an obvious error that affected a “substantial right” and, in turn, affected the outcome of the trial. The state notes the Court has required a showing of reasonable probability that the error prejudiced the case. In contrast to Morgan, the state maintains in order to overturn the conviction, Morgan must demonstrate both that the outcome was impacted by the ruling and the process was unfair.

“Throughout this appeal, Morgan has offered no evidence as to how he was prejudiced by the lack of a GAL. Indeed, Morgan has not even bothered to speculate as to what a GAL could have done or said that would have even possibly resulted in him not being bound over to common pleas court,” the state wrote.

The state notes that Morgan was represented by a lawyer who knew juvenile court procedures, and could have requested a GAL be appointed if he thought it was in Morgan’s best interests. Further, the record indicated that the attorney challenged the effort by the state to transfer the case, and there would be no conflict between the attorney’s position and the GAL, making the appointment of a GAL unnecessary, according to the state.

The state also disputes the argument that the failure to appoint the GAL is a structural error. It notes that only a constitutional error can be a structural error, and it concludes that since Morgan has no constitutional right to a GAL, there was no constitutional violation when a GAL was not appointed.

- Dan Trevas

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing Raymond Morgan from the Office of the Ohio Public Defender: Charlyn Bohland, 614.466.5394

Representing State of Ohio from the Franklin County Prosecuting Attorney’s Office: Seth Gilbert 614.525.3555

Can Power Siting Board Grant Wind Farm Three-Year Construction Extension Without Amending Permit?

In the Matter of the Application of Buckeye Wind LLC, Case no. 2015-1715
Ohio Power Siting Board


  • To extend beyond the five-year deadline to begin construction that is included in an Ohio Power Siting Board certificate authorizing a wind turbine electric generation facility, must the owner submit an application to amend the certificate, which triggers a board staff investigation?
  • Does R.C. Chapter 4609 give the Ohio Power Siting Board authority to approve an extension to a construction certificate by motion if the board finds there is no proposed change in the construction plans for the facility?

In 2010, the Ohio Power Siting Board (OPSB) issued a certificate of environmental compatibility and public need to Buckeye Wind LLC, a subsidiary of EverPower Wind Holdings LLC, to construct a 54-turbine electric generation facility in Champaign County. That certificate was opposed by Union Neighbors United (UNU), other property owners near the proposed facility, and several local governments.

UNU raised several concerns about the wind farm, including the potential deterioration of property values, stifling new land uses, and killing endangered Indiana bats that control insects on farms and yards. The group also expressed concerns about noise from the turbines and the propulsion of broken blades and ice. UNU appealed the certificate to the Ohio Supreme Court, which in 2012 affirmed OPSB’s granting of it.

In 2012, Champaign Wind LLC, another subsidiary of EverPower Holdings, filed for a certificate to construct 56 wind turbines adjacent to the Buckeye Wind farm. The original project became known as “Buckeye I” and the second as “Buckeye II.” OPSB granted the Buckeye II project certificate in March 2013, which included a deadline for construction to begin by March 2018. UNU appealed the Buckeye II farm’s approval that the Supreme Court affirmed the certificate in 2016.

Buckeye I submitted an application to amend its certificate in 2013 to allow the two projects to share electric collection lines, access roads, a substation, and construction staging areas. Buckeye I’s certificate also included a five-year construction requirement that was set to expire in 2015. In 2014, the company filed a “motion for extension of certificate” with the OPSB for a three-year construction initiation deadline so that it would coincide with Buckeye II’s.

As grounds for its extension request, Buckeye Wind stated the ongoing appeals by UNU and others to its OPSB certificates and the UNU’s federal appeal of a permit authorizing the wind farm to kill Indiana bats has delayed the start of construction. The company also admitted that it delayed construction of the first wind farm so that it could amend its certificate and build it in concert with Buckeye II.

UNU objected to OPSB permitting the deadline extension by motion. It noted the extension is listed as “condition 52” in the certificate and the OPSB indicated that it typically adds a “five-year deadline to begin” requirement to its certificates, but that timeline isn’t required by Ohio law. UNU argued that R.C. 4906.06(E) and Ohio Administrative Code 4906-5-10(B) require a company to file an application to amend a certificate and the application triggers the siting board to conduct an investigation and issue a report evaluating the impact of the amendment.

Since condition 52 is part of the certificate, UNU argues it can only be amended through the amendment process that begins with filing an application. The OPSB rejected the argument, maintaining the law requires an application to amend when there is a change in how a facility will be constructed, operated, or maintained, but not when it will be constructed. Because condition 52 doesn’t control how the facility is built, changing it doesn’t amend the certificate, OPSB determined. It concluded that under Ohio Admin. Code 4906-1-05, it had the authority to amend the deadline “for good cause shown” by approving the motion.

The UNU appealed the OPSB decision to the Supreme Court, which must hear these types of appeals of OPSB decisions.

Certificate Review Mandatory, Neighbors Maintain
The UNU notes prior siting board decisions that explain the purpose of the condition to start construction within five years after receiving the certificate is to ensure the information the board initially relied on is still valid and accurate, and that an applicant wouldn’t indefinitely sit on property development rights without actually developing the property. The group argues much has changed in the knowledge of wind energy in the past five years, and the amendment process, which includes a staff investigation, could bring to light concerns about the construction proposal that were not addressed when the facility was authorized.

UNU notes condition 52 of Buckeye I’s certificate states: “The certificate shall become invalid if Buckeye has not commenced a continuous course of construction of the proposed facility within five years of the date of journalization of the certificate.” The group maintains that any change to this condition, including extending it to eight years, is a change in the certificate, and that R.C. 4906.06(E) requires an amendment to a certificate must come in the form of an application.

“Condition 52 is a component of the certificate, and the applicable legal authorities contain no exemption from the application requirement for condition 52. The OPSB’s governing statute and its own rules do not allow the board to bypass the amendment procedures designed to protect the public, and the Court should not allow the board to ignore these requirements at its whim,” UNU’s brief states.

The group also contends the investigation of an amendment is an important process to promote public participation and examination of potential harms to the public. The law requires a report from the OPSB with recommended findings. UNU notes board rules delegate the investigation to board staff and the law doesn’t specify what the staff must do to conduct an investigation nor dictate the length or level of detail required in its recommendations. UNU suggests that regardless of the nature of the staff work, it is important that an investigation be conducted to ensure the board “actually evaluates an amendment’s consequences.”

Approval by Motion Improper, Neighbors Assert
The UNU asserts that even if the siting board believed that Buckeye Wind’s motion for an extension was a valid method to alter its certificate, the board didn’t follow the correct process in approving the motion.

UNU suggests that R.C. 4906.07(C) requires the board to make recommended findings that include determinations of “minimum adverse environmental impact” and “public interest, convenience, and necessity” before approving a change. The group notes that the board adopted two administrative rules that repeat the mandate in R.C. 4906.07(C), and contend the board violated its own rules when it didn’t conduct an investigation.

Board Maintains Approval Appropriate
The OPSB argues that a time extension doesn’t affect the facility or where it’s located, and didn’t “create any impact not already studied at length, already fully litigated, or already confirmed by this Court.” The board notes the Court has stated it will defer to an agency, like the power siting board, to interpret statutes giving it enforcement responsibility, and urges the Court to affirm its position that the law doesn’t require an amendment or investigation to change the starting time for a project.

“Not all proposed changes in a facility require a hearing, as demonstrated by this very certificate. But the statute, by its very language, specifies that a proposed change to the facility is required to constitute an amendment. An extension of the expiration date is not a change to the facility,” the OPSB brief states.

The board also urges that it should retain authority to determine what changes to a facility require an amendment, and argues that R.C. Chapter 4609 has other provisions that can be approved by motion that would change the certificate, such as a transfer of ownership, and don’t require a staff investigation.

The OPSB notes that extending a certificate by motion is consistent with its rules and that the rules allow for time limits but they aren’t required by law. It also cited several instances where it extended time limits by motion.

“And because the rules allowed for time limits, they also provide that those limits may be extended or waived for good cause shown, and that the proper means of doing so is by motion,” the board’s brief states.

In addition, the board argues there were valid reasons for extending the permit, primarily because litigation has halted any construction at the site. Along with challenges to the OPSB decisions to the Ohio Supreme Court, UNU and others have challenged the Incidental Take Permit issued by the U.S. Fish and Wildlife Service regarding the Indiana bat. Those challenges are pending in a federal appeals court, and the board notes its staff has tracked and advised about changes to the Buckeye site while the appeals are pending.

“The board’s continuing jurisdiction during the pre-construction and construction phases of this project ensures that it is kept aware of any changes or developments that might give it reason to re-evaluate the Buckeye conditions. None are presented here,” the board brief states.

Buckeye Wind Backs Board’s Ruling
Buckeye Wind was permitted to intervene in the case and states its support of the OPSB’s decision to grant the extension. The company argues there was no constraint on the board that prevented it from seeking a motion to change the construction timeline. The company maintains the UNU hasn’t identified any issues that are new to the board, and that litigation by UNU has delayed the project and caused a need for an extension.

Buckeye Wind asserts the board tracks the planning and construction of Buckeye I and II and understands wind projects and the issues.

“This case is an unprecedented attack on the board’s reasonable practice of setting certificate deadlines, monitoring progress and permitting extensions on motion for good cause shown,” the Buckeye Wind brief states.

Buckeye Wind argues its plans have been simplified to align with Buckeye II and doesn’t raise any concerns that haven’t been addressed by other litigation surrounding state and federal approval of the site.

Urbana Country Club was also named in the appeal challenging the OPSB’s decision. The club did not file a merit brief in the case and is not permitted to participate in oral arguments.

- Dan Trevas

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing Union Neighbors United: Jack Van Kley, 614.481.8900

Representing the Ohio Power Siting Board from the Ohio Attorney General’s Office: Werner Margard, 614.466.4397

Representing Buckeye Wind LLC: Michael Settineri, 616.464.5462

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Can Reporting Insurance Fraud, Patient Privacy Breach be Grounds for Wrongful Termination Against Public Policy Claim?

Mary McGowan, M.D. v. Medpace, Inc., Case no. 2015-1756
First District Court of Appeals (Hamilton County)


  • For a law to be the basis for a wrongful termination against public policy claim, must that law impose a duty on an employee to report a violation, expressly prohibit retaliation for reporting a violation, or protect public health and safety?
  • Do Ohio’s insurance fraud statute and the federal Health Insurance Portability and Accountability Act (HIPAA) set clear public policy that can be the basis of a wrongful discharge claim if an employee reports a violation and is terminated?

Dr. Mary McGowan is a highly regarded expert in the treatment of cholesterol disorders who received an email from Dr. Evan Stein, the operator of a private practice in Hamilton County called the Cholesterol Treatment Center (CTC). Stein, seeking to retire, asked McGowan if she knew anyone interested in taking over his practice and his role in running two cholesterol drug-testing units operated by Medpace Inc. McGowan expressed interest in the positions and was hired in 2011 by Medpace to oversee its Metabolic and Atherosclerosis Research Center (MARC) and the Clinical Pharmacology Unit. Stein’s CTC operates in Medpace’s office space, and almost all his patients are candidates for clinical trials operated by MARC.

Within months of taking the position, McGowan found that Stein had directed his and the Medpace staff to write prescriptions for twice the daily dose of cholesterol medicine, and then verbally instructed the patients to split the pills, which would allow the patients to receive twice the total amount of medicine for each insurance copayment. A patient’s chart would reflect the correct dose amount, but the prescription going to the pharmacy and the insurance company wouldn’t.

McGowan was also concerned that patient charts were left open on tables outside patients’ rooms and that it could be a HIPAA violation because passersby could potentially open files and see personal, private patient information. She was also concerned that Stein’s CTC patients had their charts combined with MARC charts even though some of the patient information was irrelevant to MARC and could be a HIPAA violation.

McGowan contacted a health-care attorney who confirmed her opinion that Stein’s prescription practice constituted insurance fraud. McGowan then convened a MARC/CTC staff meeting in which she told the staff she understood that Stein was prescribing in a way that would save patients money, but found it posed a threat to patient health and safety and was insurance fraud. She also told the staff to separate the MARC and CTC patient charts based on her HIPAA violation concerns.

Stein learned of the meeting a few days later, and sent the staff a group email, copying McGowan. The email announced he was removing her from responsibilities for his CTC practice and his projects with MARC. He urged Medpace CEO August Troendle to shut down the pharmacology unit, which would eliminate McGowan’s last remaining position with Medpace.

McGowan Terminated After Meeting with Medpace Leadership
McGowan met with Troendle, the company’s attorney, and human resources director. McGowan explained she wasn’t objecting to pill-splitting, saying it was a common practice accepted by insurance companies in many cases, but rather she disapproved how Stein did it. His method led to the patient chart not matching the prescription and the insurance company not being informed of the doctor’s directive. She expressed the concern that she wanted to ensure patient safety and avoid insurance fraud. The company attorney told McGowan she could confirm her suspicion of insurance fraud by contacting the Ohio Board of Pharmacy. The board’s director and board attorneys noted it was a violation of R.C. 2913.47 to prescribe medications in the manner in which she alleged Stein was doing.

About three weeks after the initial meeting, McGowan met with Troendle, who asked her to apologize to Stein, which she refused. The next day he fired McGowan “for cause,” alleging she was confrontational with him. McGowan filed a lawsuit against Medpace claiming wrongful discharge in violation of Ohio public policy.

In 2014, a jury found in favor of McGowan for wrongful discharge by Medpace, and awarded her $300,000 in compensatory damages, $500,000 in punitive damages, and attorney fees. Medpace appealed to the First District Court of Appeals.

McGowan argued that the Ohio Supreme Court’s 1990 Greeley v. Miami Valley Maintenance Contrs., Inc. decision established a four-part test that held an “at-will” employee may not be discharged for reasons that violate a statute or public policy. The first part of the test, known as the “clarity element” requires that a “clear public policy exists and is manifested in a state or federal constitution, in statute or administrative regulation, or in the common law.” The First District Court of Appeals wrote that in two of its prior decisions, it has added elements and held that “for wrongful discharge in violation of public policy, an employee satisfies the clarity element by establishing that a clear public policy existed, and that the public policy was one that imposed an affirmative duty on an employee to report a violation, that prohibited an employer from retaliating against an employee who had reported a violation, or that protected the public’s health and safety.”

The First District found that while R.C. 2913.47 and HIPAA are valid public policies, neither satisfy the clarity element because they don’t place a duty on the employee to report a violation, prohibit retaliating against an employee who reports a violation, or protect public health and safety. In a 2-1 decision, the First District reversed the opinion of the trial court and granted judgment in favor of Medpace.

McGowan appealed to the Ohio Supreme Court, which agreed to hear her case.

McGowan Asserts First District Imposed Unfair Burden
McGowan explained the four-part test the Supreme Court developed in Greeley finds that to prove a wrongful discharge in violation of public policy, the plaintiff must show (1) the clarity element, and “(2) dismissing employees under circumstances like those involved in the plaintiff’s dismissal would jeopardize the public policy (the jeopardy element), (3) the plaintiff’s dismissal was motivated by conduct related to the public policy (the causation element), and (4) the employer lacked an overriding legitimate business justification for the dismissal (the overriding-justification element).”

McGowan argues the First District added requirements first in its 2004 Hale v. Volunteer of Am. decision and confirmed them in its 2009 Dean v. Consol. Equities Realty #3 LLC decision. She maintains the practical effect of the First District’s ruling is that an employee living in the First District’s jurisdiction who acts in good faith to report insurance fraud or a HIPAA patient privacy breach can be fired, while employees making the same reports in other parts of the state cannot. McGowan points to other Ohio Supreme Court decisions based on Greeley and notes those successful claims would fail to meet the First District’s test.

“These cases uniformly hold that the clarity element of a claim for wrongful discharge in violation of public policy is met when a plaintiff articulates a clear public policy based on citation to specific provisions in the federal or state constitution, federal or state statutes, administrative rules and regulations, or common law. They do not require that the source of the public policy be employment-related or regulate public health and safety,” McGowan’s brief states. “The First District’s decision in this case undermines this uniformity, leaving at-will employees within the First District with less protection against wrongful termination in violation of clear public policy than those in the rest of the state.”

McGowan Asserts She Met First District’s Standard
Even if the Supreme Court adopts the standard set in Hale and Dean by the First District, McGowan maintains she met the Greeley standard because R.C. 2913.47 and HIPAA are laws that protect public health and safety.

McGowan explained she became concerned about the fraudulent conduct because of concerns about patient health and safety. She found that verbally instructing the patient to take half a pill when the prescription instructions indicate a full pill could be confusing to patients and cause them to take too much medication, which could have adverse medical affects. McGowan reiterated she wasn’t opposed to the concept of pill slitting, but rather the false and deceptive statements on the prescriptions.

She cited the Ohio Supreme Court’s 1995 Collins v. Rizkana decision that found even if no actual crime had taken place, an act can be a violation of public policy and that is sufficient to meet the clarity element.

“The public policy manifested by Ohio’s insurance fraud statute was directly implicated by the conduct about which Dr. McGowan complained. The prescriptions in question constitute the kind of false or deceptive statement R.C. 2913.47(B) seeks to prohibit,” her brief stated.

Additionally, she points out that reports to Congress during consideration of passage of HIPAA indicate that confidentiality of patient information was considered a public-safety measure by lawmakers.

“HIPAA’s patient privacy requirements seek to protect, not simply regulate, patient privacy because disclosure of the confidential information contained in patient documents causes threats or hazards to the public’s health, safety, and privacy,” she argues.

She argues HIPAA contains clear public policy that protecting patient medical information is necessary and being discharged for reporting a violation of the act meets the clarity standard in Greeley.

Medpace Alleges McGowan’s Claims Are False
Medpace argues that the First District properly interprets the Greeley decision and that the Court noted it crafted a limited exception to the general rule that allows employers to terminate employees “at will.” It maintains the First District didn’t develop new criteria, but applied Greeley in a way that is consistent with later Supreme Court rulings that emphasize the public policy exception is limited.

Medpace also asserts that McGowan falsely claims that Stein and Medpace violated the law, and notes Stein won a $120,000 federal court defamation judgment against McGowan for her statements made at the staff meeting. Stein maintains his actions didn’t constitute insurance fraud and that patients signed consent forms allowing their information to be combined in files without violating HIPAA. Medpace notes that federal authorities routinely audited its practice and haven’t found any HIPAA violations. It also maintains that Troendle encouraged McGowan to put a stop to any potential illegal activities and report any violations.

In its brief, the company maintains McGowan lost her job because of her “gross and repeated insubordination,” and that she ignored several opportunities to correct her behavior. The company also asserts that the insurance fraud statute can’t apply to Medpace because the company and its employees didn’t write any prescriptions, but rather Stein, who owns his practice, and his employees could potentially be in violation of the law. Further, the company suggests that HIPAA isn’t the type of public policy that can be the basis of a Greeley claim because it is designed to regulate patient privacy, and that McGowan didn’t have the required “good faith belief” that Medpace was in violation because the company passed several audits.

“As the First District recognized, if every state and federal statute and regulation, however obscure or tangential to the employer’s conduct, can be seized upon to support a wrongful discharge claim, then the important public policy behind Ohio’s employment-at-will doctrine will, in fact, be destroyed,” Medpace brief stated.

Friend-of-the-Court Brief
An amicus curiae brief supporting McGowan’s position has been submitted by Ohio Employment Lawyers Association (OELA). The group argues that the First District criteria contradicts those set by the Supreme Court.

“OELA urges this Court to reject the lower court’s use of a standard that diverges from and conflicts with this Court’s long-established standard. Crediting Medpace’s proposed criteria would let employers terminate employees with impunity when these employees refuse to commit crimes, when they try to prevent their employers or co-workers from defrauding other businesses or stealing from their customers, or when they report serious violations of state and federal statutes and constitutional provisions,” the group’s brief states.

- Dan Trevas

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing Mary McGowan: Brian Gillan, 513.721.1975

Representing Medpace Inc.: Deborah Brenneman, 513.352.6700

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Attorney Discipline

Ashtabula County Bar Association v. Thomas C. Brown, Case no. 2016-1147
Ashtabula County

The Board of Professional Conduct recommends a six-month stayed suspension for a Geneva attorney whose business cards and sign in front of his office building indicated his law firm name was “O’Neill & Brown Law Office,” referencing a partnership with Ohio Supreme Court Justice William M. O’Neill.

In its report to the Court, the board concluded that Thomas C. Brown violated professional conduct rules that prohibit using the name of a lawyer who holds public office in a law firm name when the lawyer isn’t actively practicing with the firm and that ban false or misleading marketing materials about who practices in a law firm and the length of time the law firm has existed. 

Brown Launches New Firm in 2015
Brown and O’Neill started a law firm together in the 1980s, but the two haven’t actively practiced law together since at least 1997, the board’s report stated. (Justice O’Neill was elected to the Ohio Supreme Court in 2012 and began his term in January 2013.)

In July 2015, Brown opened a law practice with the name “O’Neill & Brown Law Office,” and installed a sign in front of his office and distributed business cards with that name. The sign and business cards state that the law firm was established in 1981. Brown and Justice O’Neill spoke about the firm before Brown opened the office, and they agreed to the name. Justice O’Neill stated he was unaware at the time that using his name in this way would be a professional-conduct rule violation.

Complaint Filed a Few Months Later
That month the Ashtabula County Bar Association began an investigation into Brown’s law firm name, sign, and business cards and filed a disciplinary complaint against Brown in early November 2015. After a meeting with the bar association’s lawyer, Justice O’Neill told Brown to remove “O’Neill” from the sign.

Brown and the bar association stipulated in March 2016 documents that Brown had removed Justice O’Neill’s name from the sign and stopped using the business cards. Brown also testified at a hearing before the professional conduct board’s panel reviewing the case that he had taken these steps to address the misconduct.

When taking on a new client 10 days later, Brown handed the client’s wife the O’Neill & Brown business card. The bar association amended its complaint, alleging that Brown had made false statements about correcting his misconduct in his stipulations and before the panel. In his response, Brown stated that he mistakenly gave the woman an old business card from his wallet.

Board Concludes That Some Rule Violations Weren’t Proven
The board agrees that Brown violated professional conduct rules when using Justice O’Neill’s name in the law firm’s name and on the sign and business cards, and by indicating that the law firm had been in continuous operation since 1981. However, the board concludes that there wasn’t clear and convincing evidence that Brown knowingly lied in his stipulations and his testimony to the board’s panel, and recommends dismissal of those charges added by the bar association in May 2016.

In determining the appropriate sanction, the board notes that Brown has a prior disciplinary record, he kept the sign up and used the O’Neill & Brown business cards for four months after he was notified that he might be in violation of professional conduct rules, he gave out the business card after stating he had stopped using it, and he didn’t acknowledge that what he did was wrong. As mitigating factors, the board states that Justice O’Neill participated in Brown’s decision to use the justice’s name, Brown was cooperative during the disciplinary proceedings, and the matter didn’t negatively affect any clients.

The board recommended a six-month stayed suspension for Brown if he removes references that the firm was started in 1981, permanently fixes the name on the sign outside his office, destroys all “Brown & O’Neill” business cards, commits no further misconduct, and pays the proceeding costs.

Bar Association States Evidence Supports Additional Rule Infractions
The bar association objected to the board’s dismissal of the additional charges, arguing that Brown’s misconduct after filing stipulations and testifying at the panel’s hearing also warrant a sanction.

The bar association contends that Brown conveyed in a February 2016 letter that he both stopped using the business cards and removed “O’Neill” from the sign outside his office in September 2015. However, testimony revealed that the signage remained unaltered until near the end of November 2015, the bar association notes.

Brown’s misrepresentations about fixing his law firm sign and ceasing the use of inappropriate business cards, which he had just attended a disciplinary hearing about, demonstrate a lack of respect for the disciplinary violations he committed, the bar association maintains. In its view, Brown knowingly made a false statement in a disciplinary matter and engaged in dishonest conduct – two clear rule violations – to try to minimize the penalty for his misconduct. The bar association recommends that Brown be indefinitely suspended to “send a clear message to practicing Ohio attorneys that offering such misleading testimony will not be tolerated in future actions before the [b]oard of this Court.”

Attorney Submits No Objections or Response
Brown didn’t file objections to the board’s report or a response to the bar association’s brief. Based on Court rules, Brown has waived oral argument and won’t be permitted to argue his case before the Court.

- Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing Ashtabula County Bar Association: Harold Specht, 440.576.3009

Thomas C. Brown, pro se: 440.862.2788

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