An appeals court has denied a motion for reconsideration of its decision in favor of former Hillsboro administrative assistance Kirby Ellison, and city officials are now pondering whether to ask the Ohio Supreme Court to consider the matter.
The city had asked the Fourth District appeals court to reconsider its own decision that new arguments raised by the city on appeal were not admissible because they had not been raised in initial filings with the Hillsboro Civil Service Commission or the Highland County Common Pleas Court.
But attorney Drew Piersall, who is handling the case for the city along with law partner Jonathan Downes, argued in his April application for reconsideration that “it is black letter law that subject matter jurisdiction arguments may be raised at any time, including before the Court of Appeals.”
Piersall cited precedent from the Ohio Supreme Court and two recent decisions from the Tenth District Court of Appeals “which address this exact scenario in the analogous State Personnel Board of Review context.”
Piersall wrote that “arguments pertaining to unclassified status relate to subject matter jurisdiction, and Appellants do not forfeit subject matter jurisdiction arguments by not raising them sooner.” The brief cites numerous examples of case law that Piersall argued were on point in the Ellison case.
But in denying the application for appeal, Judge Peter Abele wrote for the court, “Appellants have not established their entitlement to reconsideration of our decision on appeal. Instead, they reargue their appeal, cite inapposite cases, and seek modification of a portion of our opinion that would not alter our judgment that affirmed the judgment of the common pleas court. Thus, we hereby deny their application.”
The city’s application for reconsideration was in response to a judgment against the city based on Ellison’s dismissal when the Hastings administration took over in January 2012. Officials believed Ellison was an unclassified employee serving at the pleasure of the mayor, but she argued her position was classified.
Court records show that Ralph Holt, safety and service director for then-Mayor Dick Zink, had indicated back in 2004 that Ellison had been moved from classified to unclassified status – serving at the pleasure of the mayor – but the court ruled that the proper steps had apparently not been taken to officially enact that change.
Holt later acknowledged that he “had no government experience and that he did not know about civil service distinctions between classified and unclassified service,” according to testimony contained in the appeals court decision.
In the initial court decision, visiting Judge Dale Crawford had ruled that even though Holt said he intended to move Ellison to unclassified status, “the appointment was never placed in a journal at the Civil Service Commission… nor was the letter of appointment accompanied by a statement showing the fiduciary duties of the position.”
Hillsboro city Auditor Gary Lewis previously told The Times-Gazette that the back pay and benefits for Ellison could amount to about $225,000. The courts have also ordered the city to return Ellison to her job.
Reach Gary Abernathy at 937-393-3456 or on Twitter @abernathygary.
