In the Matter of the Complaint of Pilkington North America, Inc. v. The Toledo Edison Company, Case no. 2013-0709
Public Utilities Commission of Ohio

Gene’a Griffith, Executrix for the Estate of Howard E. Griffith, Deceased v. Aultman Hospital, Case no. 2014-1055
Fifth District Court of Appeals (Stark County)

Cheap Escape Company et al. v. John Haight et al., Case no. 2014-1241
Second District Court of Appeals (Montgomery County)

Disciplinary Counsel v. Orlando J. Williams, Case no. 2015-0293
Summit County

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When Supreme Court Overturns PUCO Ruling, Does Decision Apply to Those Who Did Not Appeal?

In the Matter of the Complaint of Pilkington North America, Inc. v. The Toledo Edison Company, Case no. 2013-0709
Public Utilities Commission of Ohio

ISSUES:

• Must a party in a dispute with a utility company before the Public Utilities Commission of Ohio (PUCO) appeal any PUCO rulings against it to the Ohio Supreme Court to benefit from a Supreme Court ruling in its favor?
• Once the Supreme Court determines a PUCO decision is unlawful, does it apply only to those parties that appealed it, or to everyone that could be impacted by the decision?

BACKGROUND:
Pilkington North America acquired the former Libbey-Owens-Ford Co. plant in Rossford in the 1990s that turns raw material into glass primarily used in the automotive industry. The plant is a heavy user of electricity and is served by Toledo Edison. Pilkington and five other large industrial companies that had “special contracts” with Toledo Edison because of their power needs filed separate but factually similar complaints with the PUCO in 2008 alleging violations of state law and rules as well as breaches of their contracts regarding the charges for power.

The six companies filing complaints all entered into special contract amendments with Toledo Edison in 2001 that extended their rate until December 2008. The amendments were prompted by Toledo Edison’s parent company, FirstEnergy, filing an electric transition plan with the PUCO. The plan was among the first move by Ohio power companies to adjust to a new law moving the state from a regulated to competitive electric marketplace. Toledo Edison subsequently filed two other rate adjusting cases with the PUCO after 2001. Both Toledo Edison and the commission perceived those rate adjustments would impact the special contracts of these six companies as well as other users who had special contracts with Toledo Edison. Toledo Edison determined those subsequent decisions allowed it to terminate the special contract rate in February 2008, 11 months earlier than stated in the 2001 amendments, and to charge the companies a higher rate.

Between January and July 2008, the companies began putting the disputed difference in rate charges into escrow, and the PUCO consolidated the companies’ complaints. In February 2009, the commission rejected the claims that Toledo Edison had done anything impermissible. A month later, five of the companies, but not Pilkington filed for rehearings, and the commission again denied the request. In June, the five filed an appeal with the Ohio Supreme Court seeking the return of the $2.8 million they collectively had in escrow. Pilkington did not join the appeal and was forced to release the $1.8 million it had put in escrow to Toledo Edison.

In August 2011, the Supreme Court in Martin Marietta Magnesia Specialties v. Public Utilities Commission of Ohio ruled unanimously for the five companies, reversing the decision of the PUCO. Pilkington filed a motion with the PUCO arguing that since the law was invalidated, it was entitled to the return of the $1.8 million from Toledo Edison. The PUCO rejected the argument, and ultimately Pilkington appealed to the Supreme Court.

Pilkington Argues PUCO Has No Right to Apply Overruled Order
In briefs filed with the Supreme Court, attorneys for Pilkington contend that once the Supreme Court rules a PUCO order is unlawful, then it cannot apply the overturned order to anyone impacted by it. The company relies on a 2013 U.S. Supreme Court decision, City of Arlington, Texas et.al, v. Federal Communications Commission, finding that when a federal agency’s decision is deemed unlawful by a court, it is considered to have acted beyond its jurisdiction. Pilkington’s attorneys suggest that the state is no different, and when the PUCO’s decision in Martin Marietta was ruled to be unlawful, the ruling has no legal effect on anyone. The company then contends it was proper for it to use a motion typically used in civil lawsuits to request the PUCO apply the decision to its case and order Toledo Edison to return the $1.8 million.

The PUCO argues that Pilkington needs to follow the same process as the rest of the companies in order to get its money and that the company cannot use a civil court procedure to vacate a PUCO order. The company’s attorneys counter that it is an unusual situation and the company is not asking the PUCO to vacate its order because the Supreme Court already vacated it. It is just presenting a motion that allows it go back before the commission. The attorneys note the issues can be broken down into four parts that justify Pilkington being allowed to return to the PUCO. They argue that:

• In cases where multiple parties present identical factual and legal issues for resolution by the PUCO;
• And some, but not all of the parties appeal the decision;
• And the Supreme Court declares the commission decision is unlawful;
• Then the parties that did not appeal can seek relief by returning to the PUCO.

PUCO and Toledo Edison Argue Process Must be Followed
While the appeal challenges the actions of the PUCO, Toledo Edison is also named as an appellee in the case and is arguing alongside of the PUCO in support of the commission’s decision.

Attorneys for the PUCO insist Pilkington is trying to invent a second appeal method that violates state law.

“The General Assembly has created one process for challenging decisions of the Public Utilities Commission of Ohio. Appellant Pilkington North America, Inc . chose not to use this procedure. Now, having seen the outcome of other litigation, Pilkington seeks to benefit from that decision,” PUCO attorneys wrote in the brief filed.

The PUCO attorneys note the procedure in state law requires a party that disagrees with a PUCO order to first file for a rehearing with the PUCO and then if ruled against, the party can file an appeal with the Supreme Court specifying what errors they believe the PUCO made. They maintain the other companies, but not Pilkington followed that process, and Pilkington cannot use a procedural motion as a “backdoor.” “Pilkington made a calculated choice, even though they had two million dollars in escrow, and must now be made to live with that choice,” the PUCO attorneys wrote.

Attorneys for Toledo Edison contend in the brief that at the time of the dispute, the company had become a power distributor and the money it collected from Pilkington was paid to other power companies that generated the electricity used. They deny that Toledo Edison received a “windfall,” as Pilkington contended, when the PUCO released the funds to it. They argue that unlike the other companies with special contracts in dispute, Pilkington has an energy purchasing representative closely following the rates and structural changes Toledo Edison was seeking from the PUCO as Ohio moved into a competitive marketplace. They contend this monitoring might be the reason Pilkington did not join the appeal. The attorneys argue that Pilkington’s move would upend the process in which the PUCO operates and create an “environment in which free riders can avoid the cost of an appeal in the hope that another party obtains reversal” of a commission decision.

- Dan Trevas

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

Contacts
Representing Pilkington North America: Thomas O’Brien, 616.227.2300

Representing the PUCO from the Ohio Attorney General’s Office: Thomas Lindgren, 614.466.4397

Representing Toledo Edison: James Lang, 216.622.8200

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What Constitutes a Patient’s Medical Record?

Gene’a Griffith, Executrix for the Estate of Howard E. Griffith, Deceased v. Aultman Hospital, Case no. 2014-1055
Fifth District Court of Appeals (Stark County)

ISSUE: Is a hospital permitted to withhold portions of a patient’s medical record by storing the records in a location other than the medical records department?

BACKGROUND:
Howard Griffith had surgery at Aultman Hospital on May 2, 2012. Afterward, Griffith developed an irregular heartbeat and was put on a cardiac monitor. On May 6, he was discovered unresponsive, the wires from the monitor were no longer attached, and other medical equipment was disconnected. He was resuscitated and placed on life support, but those measures were later stopped and he died on May 8.

Gene’a Griffith, his daughter, was named executor of Howard’s estate. On request, she received some of her father’s medical records from the hospital. In February 2013, she sued Aultman asking for all medical records from her father’s hospital admission date to the time of his death – May 2 to May 8. Following discovery requests, Aultman provided records, including some of the electronic data from the father’s cardiac monitoring equipment from May 6. (These records are referred to as “Bates 655-707.”)

Aultman’s director of medical records and transcriptions testified that Ms. Griffith had been given the documentation maintained by the hospital’s medical records department, but couldn’t confirm that the daughter had been provided all medical records kept elsewhere in the hospital. Aultman asked the court for summary judgment in the case, stating it had provided Mr. Griffith’s complete medical record. Ms. Griffith countered that it hadn’t been factually determined whether she had been given all the records held by the hospital regarding her father’s care.

Court Rulings
The trial court granted summary judgment to the hospital, and the Fifth District Court of Appeals agreed in March 2014. The appellate court stated, “[T]he medical record consists of what was maintained by the medical records department and information that the provider decides not to maintain is not part of the medical record.”

Ms. Griffith appealed to the Ohio Supreme Court, which agreed to hear the case.

Second Lawsuit
In a separate action, Ms. Griffith filed a medical negligence and wrongful death suit against the hospital and other defendants in May 2013. In December of that year, the parties agreed to a settlement.

Definition of “Medical Record”
State law allows patients to look at or get copies of their medical records. “Medical records” are defined in R.C. 3701.74(A)(8) as “data in any form that pertains to a patient’s medical history, diagnosis, prognosis, or medical condition and that is generated and maintained by a health care provider in the process of the patient’s health care treatment.”

Daughter’s Contentions
Attorneys for Ms. Griffith argue that the Fifth District’s ruling improperly limits a person’s medical records to those kept by the “medical records department.” They maintain that health-care providers don’t have to keep all data generated during treatment. “If, however, a health care provider does decide, in the course of a patient’s treatment, to preserve the information, that information becomes a part of the patient’s medical record” regardless of where it is housed, they write in the brief to the court.

In the appeals court decision, the Fifth District stated the statute providing access to medical records wasn’t intended to be used “as a broad discovery device.” However, Ms. Griffith’s attorneys counter that nothing in the statute restricts access based on the purpose for seeking the records. They point to the legislature’s intent when making amendments to the law in 2000, noting that the General Assembly expanded patient access to various medical records and in no way limited that right for only certain purposes.

Instead, health-care providers must supply medical records generated and maintained during the patient’s medical treatment, they assert. In this case, there is evidence that medical records for Mr. Griffith exist that haven’t been produced. They note, for example, that Mr. Griffith was on a cardiac monitor from May 4 on, but the records provided start only a little before 4 a.m. on May 6 when Mr. Griffith was found without a heartbeat and disconnected from his monitor.

Hospital’s Position
Attorneys for Aultman respond that a patient’s medical record consists of the data chosen by the health-care provider to be included as part of the record. They contend that the word “maintained” in the statute allows the provider to filter out information that has no value. They argue the legislature included the word to indicate a discretionary process in gathering, creating, and selecting information for the record.

“[T]he medical record consists of information medical providers have deemed appropriate to maintain for the care of a patient,” they write in the brief to the court. “It is maintained in a discrete collection for that purpose. Necessarily, much patient-related information is generated that is not part of the record because providers have not determined it to be useful for patient care.”

They assert that the Fifth District didn’t conclude that the medical record consists of only that documentation kept by the medical records department. They claim that Ms. Griffith is attempting to present the appeals court’s ruling “as a mechanical and senseless test that considers only the physical location of the record.”

Pointing to the parties’ settlement of the separate medical negligence case, they stress that a ruling in this case to locate additional medical records would have no effect on Ms. Griffith and wouldn’t correct an injury. The controversy has been resolved by the settlement, they conclude and ask the justices to dismiss the appeal.

Friend-of-the-Court Briefs
Amicus curiae briefs supporting Ms. Griffith’s position have been submitted by the following organizations:

• AARP
• Ohio Association for Justice and Summit County Association for Justice
• Stark County Association for Justice and Southwest Ohio Trial Lawyers Association

The following groups have filed amicus briefs supporting Aultman Hospital:

• Ohio Alliance for Civil Justice, Ohio Hospital Association, Ohio Osteopathic Association, and Ohio State Medical Association
• The Academy of Medicine of Cleveland & Northern Ohio

- Kathleen Maloney

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

Contacts
Representing Gene’a Griffith: Megan Frantz Oldham, 330.455.6112

Representing Aultman Hospital: Richard Milligan, 330.526.0770

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Are Outside Sales Representatives “Employees” Who Are Constitutionally Entitled to Minimum Wage?

Cheap Escape Company et al. v. John Haight et al., Case no. 2014-1241
Second District Court of Appeals (Montgomery County)

ISSUES:

• Does the meaning of the term “employee” in R.C. 4111.14(B)(1) conflict with or restrict the meaning of the same term in Article II, Section 34a of the Ohio Constitution?
• If the meaning of “employee” in R.C. 4111.14(B)(1) is unconstitutional, should the ruling apply prospectively or retroactively?

BACKGROUND:
John Haight and Christopher Pence sold advertising space for Cheap Escape Company, which published a coupon magazine called JB Dollar Stretcher and a coupon web site. Joan Minchak, Robert Minchak, and Mark Kosir owned the company at the time.

The sales representatives were paid based on a commission for their ad sales or by a combination of their commissions and a $100 to $200 per week draw. According to the employees, they worked about 50 hours a week mostly from Cheap Escape offices.

In February 2012, Haight and Pence filed a complaint, claiming in part that the company failed to pay them minimum wage as required by the Ohio Constitution. The trial court found in favor of the employer, concluding that a 2006 minimum wage amendment to the state constitution and R.C. 4111.14(B)(1), enacted to implement the amendment’s provisions, don’t conflict and the statute specifically exempts outside sales representatives from being paid minimum wage.

Haight and Pence appealed to the Second District Court of Appeals, which disagreed with the trial court’s decision and determined that the legislature improperly defined “employee” differently than the constitutional amendment and the definitions in the federal Fair Labor Standards Act (FLSA). As a result, the court ruled the statute is unconstitutional.

The company’s owners appealed to the Ohio Supreme Court, which agreed to consider the issues. (Kosir was later dismissed from the appeal.)

Fair Minimum Wage Amendment to Ohio Constitution
State Issue 2, referred to as the Ohio Fair Minimum Wage Amendment, was passed by Ohio voters in November 2006. Designated as Section 34a in Article II of the Constitution, the measure required employers to pay their employees a minimum wage of $6.85 per hour beginning on Jan. 1, 2007. The minimum wage is adjusted each year based on the consumer price index, and the amendment states that “[l]aws may be passed to implement its provisions and create additional remedies, increase the minimum wage rate and extend the coverage of the section, but in no manner restricting any provision of the section.”

After the amendment’s passage, the General Assembly enacted R.C. 4111.14 and made other statutory changes to apply the constitutional amendment.

Employer’s Arguments
Attorneys for the Minchaks assert that the Section 34a’s language and the statute’s provisions were designed to work together to ensure that certain employees are paid the minimum wage while exempting others from the minimum wage as provided in the FLSA. They maintain that the meaning of the word “employee” in Section 34a includes not only the specific definition in the FLSA but also the exceptions and exemptions spelled out in the federal law. And R.C. 4111.14 also incorporates the FLSA’s definition, exceptions, and exemptions, they argue.

In their view, the exemptions apply to people who are “employees,” based on the federal definition, but they are employees who aren’t entitled to earn the minimum wage. They note that one category of employees exempt from the minimum wage is outside salespeople. They add that the state’s commerce department publishes a poster for employers that lists multiple categories of workers, including outside salespeople, exempt from the minimum wage.

They contend that the appeals court ruled an “employee” is only “any individual employed by an employer” – the FLSA’s definition of “employee” – without considering the rest of the federal law’s provisions including its exemptions. Section 34a and R.C. 4111.14 explicitly incorporate the entire FLSA, they argue. Otherwise, many other categories of workers exempted by the FLSA must now be paid minimum wage in Ohio.

If R.C. 4111.14 is determined by the court to conflict with Section 34a, the employers’ attorneys emphasize that the constitutional amendment and the statute can be harmonized instead of declaring the statute unconstitutional.

Salespersons’ Assertions
First, the attorneys for Haight and Pence stress the FLSA defines “employee,” then imposes minimum wage and overtime requirements, and then exempts certain employees from those requirements. Outside salespersons are one category of employees exempted from minimum wage in the federal law, but they are still employees, the attorneys contend.

However, they counter, Section 34a in the state constitution includes its own specific list of exemptions, including only some from the FLSA. They argue that the language of Section 34a indicates by its specific list that there was no intent to encompass all of the FLSA’s exemptions. They also point to the provision stating, “Only the exemptions set forth in this section shall apply to this section.” Because no mention of exempting outside salespeople appears in Section 34a, they are required to be paid minimum wage, the employees’ attorneys maintain.

They assert that R.C. 4111.14(B)(1) includes more exemptions to the minimum wage than the constitutional amendment provides and, by doing so, has wrongly narrowed the constitutional definition of “employee.” Because the statute conflicts with Section 34a, either the provisions of the statute don’t apply to lawsuits involving Section 34a claims or the statute is unconstitutional, they conclude. Either way, they maintain that Cheap Escape’s outside salespeople should have been paid at least minimum wage based on the voter-approved 2006 amendment to the state constitution.

If Statute Is Unconstitutional, Is Decision Prospective or Retroactive?
The employer’s attorneys argue that if the court finds R.C. 4111.14’s meaning of “employee” conflicts with Section 34a and is unconstitutional, the ruling should be applied going forward, not retroactively. Otherwise, employers who had every belief they were following the law since the 2006 constitutional amendment would be exposed to unfair lawsuits, damages, and attorney fees, they maintain.

Haight and Pence’s attorneys respond that the constitutional amendment implemented the stated minimum wage on Jan. 1, 2007, and a ruling that the statute is unconstitutional and the employees should have been paid minimum wage ought to be applied retroactively. A decision applying the ruling only in the future, they write in the brief to the court, “would allow [a]ppellants to have unlawfully paid employees less than minimum wage (and in some cases, nothing) for years, reap the profits, and simply walk away – a true ‘cheap escape.’”

Additional Filings
An amicus curiae brief supporting the Minchaks’ position has been submitted collectively by the Ohio Chamber of Commerce, Ohio Council of Retail Merchants, Ohio Farm Bureau Federation, Ohio Management Lawyers Association, and National Federation of Independent Business - Ohio Chapter.

The Ohio Association for Justice and the Ohio Employment Lawyers’ Association have filed amicus briefs supporting Haight and Pence.

- Kathleen Maloney

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

Contacts
Representing Joan and Robert Minchak: John Susany, 330.572.1324

Representing John Haight and Christopher Pence: Andrew Biller, 614.604.8759

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Attorney Discipline

Disciplinary Counsel v. Orlando J. Williams, Case no. 2015-0293
Summit County

A former judge and magistrate could be suspended from practice for violating professional rules of conduct, but the length of the suspension is in contention.

Orlando Williams served as a judge and then a magistrate in the Akron Municipal Court between March 2009 and June 2012. Williams is accused of having a sexual relationship with a defendant who appeared before him in an eviction case. Additional misconduct charges brought by the Office of Disciplinary Counsel allege Williams falsified documents to buy a car and misappropriated settlement money from a wrongful death lawsuit.

While a three-member panel of the Board of Professional Conduct recommended Williams be suspended for two years, with one year stayed on condition he doesn’t commit further misconduct and maintains compliance with a treatment contract, the full board amended the sanction and is recommending the Ohio Supreme Court indefinitely suspend Williams from practicing law in Ohio. The board concluded that because of Williams’ egregious violations, a more severe sanction was appropriate.

Charges of Misconduct
While serving as a magistrate, Williams began a sexual relationship with a woman who appeared before him as a defendant in an eviction case. He didn’t recuse himself from the case until confronted by the court’s four judges after the woman was arrested for drunk driving and referred to Williams as her boyfriend. The Disciplinary Counsel charged his actions were in violation of the Ohio Code of Judicial Conduct rules 1.2 and 2.11(A) for failing to disqualify himself from the woman’s case and carrying on a relationship with her.

After he resigned his position with the court in 2012, Williams worked for a private law firm. Five days after he was fired, he and the woman went to a car dealership in Akron. Williams filled out a credit application and listed an old home address and falsely claimed to work at the law firm. With his knowledge, the woman made a fictitious pay stub that was provided to the dealership. Williams is accused of violating Ohio Rule of Professional Conduct 8.4(c) for the fraud.

In a separate incident, Williams is accused of violating that same rule of conduct, in addition to rules 8.4(d) and 1.3, for failing to make the required distributions for the minor children in a 2009 wrongful death lawsuit settlement. After the money sat in his Interest on Lawyers’ Trust Account for three years, Williams withdrew the money, repaid it, and withdrew it again. He never purchased the court-ordered annuity for the children and he failed to report his inaction to the court on several occasions.

The Board of Professional Conduct adopted the findings of fact and conclusions of law of the panel, but amended the sanction to an indefinite suspension because of Williams’ egregious actions, including his failure to make full restitution.

Answer from the Accused
In an answer to the disciplinary recommendations, Williams’ attorney maintains his client has agreed to certain facts in the case, including taking responsibility for his misconduct. He doesn’t agree to the omission of facts about his mental state at the time of the misconduct and the indefinite suspension recommendation that’s before the Supreme Court.

The written objection includes testimony from Williams during his disciplinary hearing that he suffered through an abusive relationship with his defendant-turned-girlfriend, including being stabbed four different times by her. He claims her violent actions and threats contributed to his “misdeeds.”

Both Williams and the Office of Disciplinary Counsel contend the Board of Professional Conduct’s recommendation for an indefinite suspension of his law license is not justified in this case, and that similar cases have resulted in two-year suspensions.

- Stephanie Beougher

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

Contacts
Representing the Office of Disciplinary Counsel: Joseph Caligiuri, 614.461.0256

Representing Orlando Williams: George Jonson, 513.241.4722

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These informal previews are prepared by the Supreme Court's Office of Public Information to provide the news media and other interested persons with a brief overview of the legal issues and arguments advanced by the parties in upcoming cases scheduled for oral argument. The previews are not part of the case record, and are not considered by the Court during its deliberations.

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