Tuesday, April 4, 2017
Michael Gyugo v. Franklin County Board of Developmental Disabilities, Case no. 2016-0564
Tenth District Court of Appeals (Franklin County)
Wood County Bar Association v. Robert E. Searfoss III, Case no. 2016-1489
Wood County
State of Ohio v. Jeffrey A. Wogenstahl, Case no. 1995-0042
First District Court of Appeals (Hamilton County)
Must Job Applicant or Employee Disclose Sealed Criminal Conviction to Employer?
Michael Gyugo v. Franklin County Board of Developmental Disabilities, Case no. 2016-0564
Tenth District Court of Appeals (Franklin County)
ISSUE: Is a job applicant with a criminal conviction that was sealed pursuant to R.C. 2953.32 obliged to disclose the conviction in response to a question on an employment application?
BACKGROUND:
In 1992, Michael Gyugo asked that the record of his criminal conviction be sealed as permitted by state law in R.C. 2953.32(C), and the appropriate court granted the request. Three years later, Gyugo applied for a job as a training specialist with the Franklin County Board of Developmental Disabilities (BDD). Training specialists primarily provide training and instruction to adults with developmental disabilities to enhance job skills.
Questions on the job application asked whether the applicant had a felony conviction, a conviction for certain misdemeanors, or a conviction for an equivalent offense. Gyugo answered “no” to each. The Franklin County BDD had the Ohio Bureau of Criminal Identification and Investigation (BCII) conduct a background check on Gyugo, and the report showed no prior offenses. The board hired him.
Every four years, the state department of developmental disabilities required Gyugo and others to renew a registration to allow them to work with the disabled. As part of that renewal, employees were asked if they had ever been convicted of a felony or misdemeanor, and the form stated that employees must answer the question even if a court had sealed or expunged the record of the conviction. Gyugo responded “no” in his 1996, 2000, 2004, and 2008 renewal applications.
After the General Assembly began requiring in 2013 that county boards of developmental disabilities do periodic criminal record checks on all employees, the Franklin County BDD obtained a BCII report of Gyugo’s sealed conviction. On Oct. 4, 2013, Franklin County BDD fired the 18-year employee for “dishonesty and other failure of good behavior” for misrepresenting his past criminal record.
Gyugo appealed to the State Personnel Board of Review, which upheld the board’s firing decision. He lost appeals before the Franklin County Common Pleas Court in February 2015 and the Tenth District Court of Appeals in March 2016.
He appealed to the Ohio Supreme Court, which accepted the case for consideration.
Former Employee Contends Sealed Conviction Didn’t Have To Be Disclosed
Gyugo argues that the state’s laws allowing for the sealing and expunging of certain criminal records are designed to help offenders who are rehabilitated and meet specific qualifications overcome difficulties in finding employment due to a criminal record.
In upholding Gyugo’s firing, the Tenth District pointed to R.C. 5123.081(A)(4), which prohibits individuals who’ve been convicted of certain crimes from working with disabled people. Gyugo contends, though, that once his conviction was sealed he couldn’t be disqualified from working with the developmentally disabled because that ban no longer applied since his conviction was considered “not to have occurred,” according to R.C. 2953.32, one of the record-sealing statutes.
According to Gyugo, the legislature knew that employers would try to circumvent court orders that sealed criminal records by stating on job and licensing applications that an individual must answer questions about all criminal convictions, including those that had been sealed or expunged. To prevent “this evasive tactic,” Gyugo wrote in the brief to the Court, R.C. 2953.32 states that in applications for employment, license, or other right or privilege, “a person may be questioned only with respect to convictions not sealed, … unless the question bears a direct and substantial relationship to the position for which the person is being considered.”
The questions on the Franklin County BDD job and registration renewal applications failed to list those offenses that related to the training specialist job and had to be disclosed even if sealed, Gyugo asserts. The burden was on the employer, Gyugo maintains, to communicate to applicants which criminal offenses disqualified them from a job because the employers best understand what the job’s responsibilities are.
“The legislature was accommodating competing goals,” because it wanted to ban application questions that demand the disclosure of sealed convictions generally, while still allowing an exception when a particular job opening warrants disclosure, Gyugo’s brief states. If applicants or employees had to challenge this type of broad questioning with employers, Gyugo contends they would be put in the untenable position of revealing they have a sealed conviction – as has happened to him. The BDD’s open-ended questions were illegal, and the record-sealing statutes protected him from having to disclose his sealed conviction, Gyugo concludes.
Applicant Had To Report Sealed Conviction, County Board Responds
The Franklin County BDD counters that it was prohibited by law from employing or renewing the registration of anyone convicted of the offenses listed in former R.C. 5126.28(E)(1), other felonies that had a direct and substantial relationship to the position, or other equivalent offenses. The board contends that Gyugo was convicted of an offense listed in the former statute, which was in effect at the time he was hired.
The board maintains that administrative rules put into effect to implement another statute, R.C. 5126.25, mandated that employees applying for or renewing registrations must be denied if they had a conviction for a disqualifying offense, even if sealed. Training specialists work unsupervised with disabled individuals and require high levels of trust, the board notes, explaining that it needs complete assurance of the honesty and integrity of its staff. In the board’s view, the legislature empowered the state department of developmental disabilities to create appropriate administrative rules for hiring and for registrations, and the disqualifying convictions were spelled out in the rules. Gyugo was notified on the registration form that disclosure was required, the board maintains.
The board also contends that it wasn’t unlawful for the registration applications to ask for disclosure of sealed felony or misdemeanor convictions other than minor traffic offenses. At the time, state and county BDDs weren’t required to conduct BCII criminal record checks, the board states, arguing that the agencies relied on truthful disclosures from employees to determine whether a disqualifying offense was part of any employee’s criminal record. Such convictions had a direct and substantial relationship to working with people with developmental disabilities, the board asserts.
The record-sealing statutes provided adequate protection to Gyugo, while allowing exceptions for offenses that justified the disclosure of sealed convictions to protect the population it serves, the board argues.
Organizations, Attorney General Submit Friend-of-the-Court Briefs
An amicus curiae brief supporting Gyugo’s position has been submitted by the Ohio Association of Criminal Defense Lawyers. Noting that the law states that the application question must have a direct and substantial relationship to the job, the organization argues that the employer bears the burden of limiting the questions that can be asked. The statutes shouldn’t be interpreted to mean that each applicant must figure out which sealed offenses are disqualifying, the organization maintains.
The Ohio Association of County Boards of Developmental Disabilities and the Ohio Attorney General’s Office each filed an amicus brief supporting the Franklin County BDD. The association focuses a section of its brief on the abuse and neglect suffered by developmentally disabled people at the hands of some caregivers. It stresses that protecting the vulnerable population that county BDDs serve outweighs the prejudice that might result for the applicant when a sealed conviction is revealed.
The attorney general notes that the law gave employers more discretion in deciding which convictions were relevant to jobs at the time Gyugo was hired and renewed his registration. The attorney general believes the Court should dismiss the case as improvidently allowed because the county BDD’s current questionnaire no longer includes an open-ended question about prior convictions and because current law more specifically restricts what is allowed to be asked.
Board and Attorney General to Share Time
The Court has granted a joint request from the Franklin County BDD and the attorney general to share the board’s allotted 15 minutes during oral argument.
- Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Michael Gyugo: Mary Jane McFadden, 614.221.8868
Representing the Franklin County Board of Developmental Disabilities from the Franklin County Prosecutor’s Office: Denise DePalma, 614.525.6625
Attorney Discipline
Wood County Bar Association v. Robert E. Searfoss III, Case no. 2016-1489
Wood County
In April 2012 James Bodenbender hired attorney Robert E. Searfoss III of Bowling Green to pursue a lemon law claim against a car dealership. The two entered an oral arrangement in which Bodenbender paid a $5,000 retainer and was to be billed $250 per hour. Searfoss didn’t present Bodenbender with a written fee agreement and told him he didn’t anticipate billing him anything more for the representation than the $5,000 because he would be able to recover attorney fees from the opposing party.
Searfoss placed the funds in a required client trust account and withdrew $4,700 from it in May 2012, and the rest in July. Contrary to what he stated in the oral arrangement, he billed Bodenbender for an additional $1,400. Searfoss told Bodenbender he had to conduct substantial research on the issue before filing a lawsuit. In July 2012, Searfoss filed a complaint with the Ohio Attorney General’s Office, which determined the dispute didn’t warrant any action by the office, and the office notified Searfoss of that in January 2013.
Client Seeks to Replace Searfoss
As the attorney general’s investigation was taking place, Bodenbender hired attorney Stephen Snavely to assist him in getting his $5,000 back from Searfoss because he was unhappy with the representation. Snavely told Searfoss that Bodenbender was ending his representation, and asked for an accounting for the legal services provided. Searfoss responded, saying he did 25.6 hours of work on the case, but didn’t have specifics because he was switching from paper to digital records at that time and the details of his work were lost. He also noted that Bodenbender instructed him not to take any action on the case until further notice.
Snavely notified Bodenbender, and his son, Michael Bodenbender, who had power of attorney for his aging father, about Searfoss’s response. Michael Bodenbender, who is also the Henry County sheriff, filed a complaint against Searfoss with the Office of the Disciplinary Counsel in July 2013. The disciplinary counsel declined to investigate, informed Bodenbender that it didn’t have jurisdiction over fee disputes, and directed him to the Wood County Bar Association. The disciplinary counsel informed Michael Bodenbender that the county bar association would handle a fee dispute or send it to a larger nearby county that could take on the matter. The case was referred to the Toledo Bar Association, and the disciplinary counsel noted its case was closed in letters to Bodenbender and Searfoss.
Searfoss refused to participate in fee arbitration, and the Wood County Bar Association reopened its investigation of the Bodenbender complaint. Through further investigation, the bar association discovered it was more than a fee dispute, and concluded Searfoss violated several professional conduct rules when representing Bodenbender. The bar association complained to the Board of Professional Conduct that Searfoss failed to maintain records of the funds he was holding for a client, charged an excessive fee, and violated other rules.
Another Client Complains
The bar association notes it was prompted to reinvestigate Bodenbender’s claims against Searfoss after it received a complaint from Elizabeth Turner, who asked Searfoss to handle two stepparent adoption petitions for her. Based on Turner’s complaint, the bar association suspected a pattern of abuse. Searfoss told Turner he was inexperienced in adoption matters and claimed he offered to refer her to another lawyer, but ultimately agreed to handle the case for a $2,500 flat fee and $1,000 for filing fees. Turner also didn’t receive a written fee agreement, and he deposited $2,500 into his personal checking account rather than a client trust account and put $1,000 in cash in an office safe.
Searfoss testified that he earned the fee the day he accepted Turner’s payment because he already had done hours of research on the case. The payment was made in January 2014, but Searfoss took no action on the case until May 2014. Turner attempted to contact Searfoss several times between February and May inquiring about the status of her case and received an email from him in May saying he was finally getting the adoption going.
Searfoss filed a petition for one of the two children in Wood County probate court. The judge responded to the filing by stating the court needed additional information from Searfoss, which was not immediately provided. The court informed Searfoss and Turner that if it didn’t have the required information by June 13, it would dismiss the case. Turner contacted Searfoss three days before the deadline reminding him to provide more information, and told him if he didn’t follow through by June 12, she would fire him and ask for a $3,500 refund.
Searfoss responded the next day informing Turner she needed to file her case in neighboring Lucas County because she and her children had moved to Toledo. Turner noted that she had moved six months earlier and informed Searfoss of that. Searfoss had the Wood County case dismissed and sent Turner a $1,700 check, while Turner hired another attorney who completed both adoptions for $2,300.
Turner was dissatisfied with the refund amount and filed a grievance with the county bar association. Searfoss told Wood County’s investigator that this also was a fee dispute, and Searfoss attempted to resolve the matter by offering Turner another $600. Eventually he agreed to refund the entire amount.
The bar association charged Searfoss with violating several rules including failing to provide competent representation, failing to keep a client informed, and making a misrepresentation to Turner.
Searfoss Fails to Attend Hearing
A three-member panel of the professional conduct board met in July 2016 to consider the complaints against Searfoss, but neither he nor his attorney attended the hearing. The panel’s chair called Searfoss’s attorney prior to the hearing to see if the parties would stipulate to some of the facts of the dispute and to remind him of the hearing. Searfoss’s attorney never responded. The panel went ahead with the hearing without Searfoss or his lawyer, and his lawyer called the panel just as it was concluding to say he had the wrong date noted. He asked for an emergency ruling to delay the hearing, which was overruled after the panel chair indicated Searfoss and his lawyer were notified by mail and email of the date.
The panel concluded that Searfoss committed 10 rule violations and recommended to the board that Searfoss be suspended from the practice of law for two years, with one year stayed on conditions.
Searfoss Disputes Findings
Searfoss suggests that his actions at most warrant two years of monitored probation and that he was being severely punished for an inadvertent mistake that led to him not appearing for the panel hearing on the matter.
Searfoss challenges the board’s right to charge him with violations based on his representation of Bodenbender, indicating that while his timesheets were destroyed, he provided the board with the cases, laws, and regulations he researched before taking the first appropriate step in a lemon law case, which is to file a complaint with the attorney general. He notes that both the disciplinary counsel and the Wood County Bar Association dismissed their investigations of Bodenbender’s complaint by concluding it was a fee dispute and not an incident in which Searfoss committed ethics rule violations.
Searfoss argues that court rules allow an individual to file a grievance with either the disciplinary counsel or a county bar association, but not both. When the disciplinary counsel dismissed his case and sent the matter to fee arbitration, the case was closed and the county wasn’t empowered to instigate a new investigation of him, he concludes. Because the county bar association had no right to investigate the complaint, the board shouldn’t have considered the association’s complaint and the charges against him should be dropped, he asserts.
In response to Turner’s complaint, Searfoss indicates it wasn’t clear to him that Turner relocated to Toledo and that none of the email or documentation exchanges between the two proved she informed him she had moved. He notes that the check she paid him with had a Wood County address.
He also describes his attorney’s failure to appear at the hearing as an inadvertent error caused when the Wood County investigators asked to change the original hearing date. Searfoss and his attorney agreed to a different date, but the attorney’s calendar wasn’t updated to reflect the change. Searfoss asserts that all subsequent references to the hearing from his lawyer had the original date. He notes that he and his attorney weren’t avoiding the hearing, citing several points leading up to the hearing where the parties were exchanging information and Searfoss was responding to motions.
Bar Association Seeks Suspension
The Wood County Bar Association supports the findings of the board and advocates for Searfoss’s suspension. The bar association indicates that on six occasions, Searfoss or his attorney failed to comply with a deadline in the case and that missing the hearing was “inexcusable neglect,” not a one-time scheduling error.
The bar association argues that it had the authority to re-open its case against Searfoss after the disciplinary counsel alerted Searfoss that it was dismissing the case. The bar association notes the reason for the dismissal was a lack of jurisdiction, not that it didn’t believe the charges had merit. It states that the word “dismissed” isn’t a “magical incantation that automatically renders a grievance conclusively decided.”
The bar association also maintains that it sought greater sanctions against Searfoss than after its initial investigation because Turner filed her grievance before the Bodenbender matter concluded. Her charges raised a question of whether Searfoss engaged in a pattern of ethical violations, the bar association suggests, and further investigation led to the additional charges.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Robert E. Searfoss III: Patrick Cavanaugh, 419.243.4006
Representing Wood County Bar Association: Emily Shaw, 419.354.9220
Death Penalty
State of Ohio v. Jeffrey A. Wogenstahl, Case no. 1995-0042
First District Court of Appeals (Hamilton County)
Jeffrey A. Wogenstahl, a death-row inmate convicted in Hamilton County for the 1991 murder of a 10-year-old girl, asks the Ohio Supreme Court to review whether the state had jurisdiction to prosecute the case because the girl may have been murdered in Indiana. Amber Garrett lived in Harrison, a city northwest of Cincinnati on the Ohio-Indiana border adjacent to the Indiana town of West Harrison. Amber’s body was found off the side of a road in Indiana, about four miles from Harrison.
Child Abducted by Family Friend
The Ohio Supreme Court upheld Wogenstahl’s conviction and death sentence for Amber Garrett’s murder in a March 1996 opinion, which summarized the facts of the case. Wogenstahl and Peggy Garrett, Amber’s mother, met in October 1991, and he got to know Peggy Garrett’s five children, who ranged in age from 16 to 4 years old.
On the evening of Nov. 23, 1991, Peggy Garrett had her oldest child babysit the three youngest children while she met a friend at a bar. She and her friend went to a different bar and ran into Wogenstahl. Eventually, about 3 a.m. on November 24, the trio separated, and Peggy Garrett and her friend went to a restaurant.
Wogenstahl, however, went to Garrett’s apartment and tricked the son who was babysitting into leaving the residence to help his mother, who Wogenstahl said was at a friend’s house nearby. Wogenstahl drove Garrett’s son to the friend’s house and left. The friend knew nothing about any concerns with Garrett, and her son walked home and found the apartment door unlocked and his sister Amber not in bed.
Witnesses Identify Wogenstahl, Body Found in Indiana
An employee of a convenience store on the Ohio side of State Street in Harrison testified that she noticed a car like Wogenstahl’s early that morning on the Indiana side of State Street, heading south. The clerk said she saw a man driving the car and a person she described as a young girl in the passenger seat.
Four witnesses testified that they saw a car like Wogenstahl’s parked on the side of a road in Indiana, outside of Harrison, shortly after the clerk noticed the vehicle. Two of the witnesses observed a man standing next to the car, and they later identified the man as Wogenstahl.
The clerk saw the same car again, between 3:45 and 4 a.m., at the car wash across the street. The vehicle then pulled into the convenience store, and the driver came into the store alone. The clerk said she saw the car one more time later that morning, again at the car wash.
Indiana State Police searched the area where the witnesses had seen the man parked by the side of the road and discovered Amber’s body down an embankment near the road in a wooded, overgrown area.
Wogenstahl Sentenced to Death
In early 1993, a jury found Wogenstahl guilty of aggravated murder, kidnapping, and aggravated burglary and recommended the death sentence, which the trial court imposed. Wogenstahl has filed numerous appeals in state and federal courts, but each court has upheld his convictions and death sentence.
Wogenstahl raised his jurisdictional argument with the Ohio Supreme Court in July 2014, and the Court agreed to re-open his direct appeal and to stay his Sept. 13, 2017 execution date to review the issue.
Statute Governs Authority of Courts to Consider Criminal Cases
Common pleas courts in Ohio have jurisdiction over crimes and offenses committed by an adult, with some exceptions. For criminal offenses, the state’s jurisdiction is described in R.C. 2901.11, according to the briefs filed in this case. The law provides that a person can be prosecuted in Ohio if the person commits an offense in violation of Ohio law, “any element of which takes place in this state.” In homicides, the statute describes this “element” as “either the act which causes death, or the physical contact which causes death, or the death itself.” If it can’t be determined in which jurisdiction a crime occurred, then the offense is presumed to have taken place in Ohio for determining jurisdiction, the law states.
Indiana Has Jurisdiction Because Child Killed There, Inmate Argues
The trial testimony established not only that Amber was kidnapped in Ohio, but also that she was killed in Indiana, Wogenstahl contends. If she were killed in Indiana, then the location of the crime wasn’t in doubt, and Hamilton County had no jurisdiction to handle the murder case, he states.
Specifically, Wogenstahl’s brief points out that the convenience store clerk saw Amber alive in Wogenstahl’s car on the Indiana side of State Street in Harrison. Going in that direction the street splits into two – one road travels into Indiana, and the other stays within Ohio. The road that leads into Indiana is the location where witnesses identified Wogenstahl alone on the side of the road near where Amber’s body was later found. A map presented by the state at trial showed its view of Wogenstahl’s route after he kidnapped Amber, and he argues that the map reflected the state’s belief that Amber was murdered in Indiana. He also maintains that the Supreme Court’s 1996 decision in his case included language that stated that the murder happened in Indiana, though the prosecutor disputes this view.
In State v. Yarbrough (2004), the Ohio Supreme Court considered a different murder case in which college students had been kidnapped in Steubenville, driven to Pennsylvania, and shot and killed there. In reviewing the same statute, R.C. 2901.11, the Court held that a murderer who plans a crime in Ohio but carries it out in another state can’t be tried in Ohio for his or her crime, Wogenstahl notes. Because the act causing the deaths, or the physical contact causing the deaths, or the deaths themselves all happened in Pennsylvania, the Court concluded the statute as written at the time didn’t give Ohio jurisdiction over the homicides. (The General Assembly soon changed the law, but in 1991 the earlier version applied in his trial, Wogenstahl states.) Wogenstahl’s brief argues that his case is the same as Yarbrough’s – Amber’s murder took place in a different state, so Wogenstahl can’t be tried in Ohio.
Wogenstahl also raises constitutional claims related to this issue of jurisdiction. He asserts that he was denied effective representation by his lawyer because the lawyer didn’t raise this jurisdictional issue to the court and that holding trial in the wrong jurisdiction violated his rights to a fair trial and due process.
It’s Unclear in Which State Child Was Murdered, Prosecutor Counters
The Hamilton County Prosecutor’s Office responds that the state didn’t pinpoint the location of Amber’s murder. The prosecutor maintains that Wogenstahl could have driven in any direction, including back into Ohio, after the convenience store clerk noticed him driving southbound on Indiana side of State Street. The prosecutor also points to testimony from Wogenstahl’s fellow inmate in the Hamilton County jail, who stated that Wogenstahl said he tried to return Amber to her home but someone was there and he killed her at a later time. This testimony indicates that Wogenstahl may have crossed the state lines a number of times that night, the prosecutor argues.
The coroner found that Amber wasn’t murdered in the Indiana wooded area where she was found because scratches on her body, likely caused by nearby vegetation, were conclusively made after her death. In addition, the prosecutor highlights another part of the statute that reads, “If any part of the body of a homicide victim is found in this state, the death is presumed to have occurred in this state.” Blood found on the back door handle of Wogenstahl’s car was consistent with Amber’s, and Wogenstahl’s car was in Ohio when he was arrested, which means this part of the statute gives Ohio jurisdiction to hear the murder case, the prosecutor contends.
After discussing additional evidence that Wogenstahl disputes, the prosecutor contends that there are many reasonable theories about what happened the night Amber was murdered. When it is unclear in which jurisdiction a crime occurred, the law states that the offense is presumed to have taken place in Ohio, the prosecutor explains. Hamilton County therefore had proper jurisdiction in the prosecutor’s opinion.
Yarbrough doesn’t apply in this case, the prosecutor argues, because “it cannot be reasonably determined where the fatal blows were struck or where Amber drew her last breath.”
“[I]t is this Court’s responsibility to review the record to determine if the murder location was established beyond a reasonable doubt, or if reasonable minds could reach different conclusions as to where Amber was killed,” the prosecutor’s brief states.
The prosecutor rejects Wogenstahl’s constitutional claims, asserting that they are outside the scope of the appeal the Court agreed to hear and ultimately will be moot regardless of which way the Court rules.- Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Jeffrey Wogenstahl from the Ohio Public Defender’s Office: Kimberly Rigby, 614.466.5394
Representing the State of Ohio from the Hamilton County Prosecutor’s Office: Philip Cummings, 513.946.3012
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