The Morrow County Board of Commissioners can proceed with efforts to remove the former chairman of the county’s hospital board, who has clashed with the commissioners over granting OhioHealth a contract to manage the county-owned hospital, the Ohio Supreme Court ruled today.

In a unanimous decision, the Court denied Patrick Drouhard’s request for a writ of prohibition, which sought to block the commissioners from having a “show-cause hearing” to determine if he should be removed from the board for misconduct. Drouhard argued the county commissioners collectively had only one of three votes on the hospital’s appointing authority and lacked the authority to conduct the removal hearing.

Writing for the Court, Justice R. Patrick DeWine stated that the applicable provision of Ohio law is best understood as creating a five-member body with the power to appoint and remove hospital trustees, with each of the three county commissioners having a vote. That provides the commissioners with the majority of votes and allows them to proceed with the hearing, the opinion concluded.

Chief Justice Maureen O’Connor and Justices Patrick F. Fischer, Michael P. Donnelly, and Melody J. Stewart joined Justice DeWine’s opinion. Justices Sharon L. Kennedy and Judith L. French did not participate in the case.

Structure of Appointing Authority Debated
A county-owned hospital is governed by R.C Chapter 339, which provides for an appointed board of trustees to oversee the hospital.

The trustees are appointed by the county commissioners together with the most senior judge of the county probate court and the most senior judge of the common pleas court. In Morrow County, Judge Robert C. Hickson Jr. is the senior of the county’s two common pleas judges; the two judges also act as judges of the probate division. 

Under R.C. 339.02(H), the appointing authority may remove any hospital trustee for neglect of duty, misconduct, or malfeasance in office. The authority must first conduct a hearing before proceeding with removal.

Commission Seeks to Remove Trustee
Drouhard is no longer chair of the hospital but claims he is still a member of the board through a contested appointment process, which forms part of his dispute with the commissioners.

In June 2019, the commissioners scheduled a show-cause hearing to consider Drouhard’s removal, citing two instances of misconduct. While the board entered into a management agreement with OhioHealth, the county commissioners instead sought to lease the hospital to a nonprofit organization. The commissioners instructed the hospital board not to enter into any new management agreements and issued a request for proposals to have a nonprofit organization lease or purchase the facility.

Drouhard, with the hospital board’s approval, sent a cease-and-desist letter to the commissioners, demanding they halt activities to solicit proposals. The commissioners rejected the demand and considered it one of two grounds for Drouhard’s removal.

The second ground concerned the appointment of a vacancy to the hospital board. Judge Hickson and the commissioners discussed in early 2019 the appointment of Earl Desmond to the board, but took no formal action. In March 2019, the commissioners approved a resolution to appoint Desmond, but Judge Hickson did not participate in the approval of the resolution. After speaking with Judge Hickson, Drouhard determined Desmond’s appointment was defective. While Desmond attended hospital board meetings, Drouhard excluded him from participation. The commissioners considered Drouhard’s failure to recognize Desmond’s appointment as misconduct.

Trustee Attempts to Block Hearing
Based on these two purported instances of misconduct, the commissioners scheduled a show-cause hearing on Drouhard’s removal. Judge Hickson asked the commissioners to reschedule the hearing. He stated that if the hearing could not be rescheduled, he wanted them to note that he opposed removing Drouhard as the hospital board chair.

When the hearing was rescheduled, Drouhard sought a writ of prohibition from the Supreme Court, claiming the commissioners did not have the authority to conduct it without Judge Hickson. Drouhard argued that under the structure of the appointing authority there are three votes: the county commissioners, as a board, have one, and the probate judge and common pleas judge each have one. Judge Hickson contended that he has two of the three votes on the appointing authority, and the commissioners lacked the authority to proceed with Drouhard’s removal absent his consent. 

But the commissioners claimed that in accordance with the historical practice in Morrow County, the appointing authority is a five-member body, with each commissioner having one vote.

Court Considered Trustee’s Removal
The Court explained that to obtain a writ of prohibition, Drouhard must establish the commissioners have a “patent and unambiguous lack of jurisdiction” to proceed with the show-cause hearing.

The Court pointed out that at the center of the dispute was the composition of the appointing authority. Justice DeWine explained that when the statute regarding the structure of the appointing authority is read in context with the rest of the law governing county hospitals, it is clear each commissioner has a separate vote, giving the commissioners the jurisdiction to move forward.

The opinion noted the statutory scheme gives the commissioners the power over most of a hospital’s key activities, including the authority to construct a hospital. The commissioners also set the compensation for the trustees, approve the hospital budget, and approve all hospital bidding and purchasing procedures.

Because the legislature  vested the commissioners with sole authority over key provisions, with no role for any judicial representative, it would be “incongruent for the board of the county commissioners to be relegated to a minority role in the appointment and removal of hospital trustees,” the opinion explained.

The Court also noted that in other places in the same statute when the legislature wanted to provide for only a single commission representative as part of a committee, it was explicit in stating that the committee would include “one county commissioner designated by the board of county commissioners.” The fact that the legislature did not use the same “one commissioner” language in providing for the appointing authority, lends further support for the commissioners’ view that the appointing authority includes each of the three commissioners, the Court explained.

“Thus, while the statute certainly could have benefited from more careful draftsmanship, all indications are that each of the county commissioners possesses a vote on the appointing authority, and thus constitute the majority of the board,” the opinion concluded. Because the commissioners as the majority do not patently and unambiguously lack jurisdiction to go forward with the removal hearing, the Court denied the writ.    

The Court also noted that Drouhard has an adequate remedy should he disagree with the commissioners’ decision. The law provides that he can appeal the decision to the common pleas court.

2019-1043. State ex rel. Drouhard v. Morrow Cty. Bd. of Commrs., Slip Opinion No. 2020-Ohio-4160.

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion, but only for noteworthy cases. Opinion summaries are not to be considered as official headnotes or syllabi of court opinions. The full text of this and other court opinions are available online.

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