Tuesday, September 13, 2016
Important Ohio Decision: Charges May Be Pursued Despite Bar Association Declination
The Ohio Supreme Court decided a significant bar discipline matter (per Dan Trevas)
The Ohio Supreme Court today issued a former Cuyahoga County assistant prosecutor a one-year stayed suspension from the practice of law for falsifying his work timesheets while serving as a county board of revision hearing officer.
The suspension of Roger S. Kramer of Shaker Heights is the result of a complaint brought by the Office of Disciplinary Counsel. The Supreme Court closely split on whether the rules governing Ohio attorneys allowed the disciplinary counsel to pursue charges against Kramer even though the certified grievance committee of the Cleveland Metropolitan Bar Association (CMBA) declined to do so in response to a prior, separate grievance.
Chief Justice Maureen O’Connor wrote in the Court’s lead opinion that nothing in the rules prevented the disciplinary counsel from reviewing the grievance it received and filing a complaint in this case.
In a dissenting opinion, Justice Sharon L. Kennedy wrote the majority’s interpretation of the rules would subject Ohio lawyers to the prospect of multiple disciplinary proceedings in connection with the same alleged misconduct involving the same alleged victim.
Kramer Subject of Inspector General Investigation
In 2011, the Cuyahoga County Council appointed Kramer as a board of revision hearing officer. In 2012, a Cuyahoga County Office of the Inspector General investigation revealed 129 discrepancies between the hours Kramer reported on his timesheets and parking garage records. The report stated Kramer was aware that he was paid for time he did not work, and he acknowledged he owed the county money. Kramer resigned in 2012, but denied any violation of the law.
In 2013, the inspector general informed the CMBA grievance committee about the findings of its investigation.
The CMBA grievance committee decided in October 2013 not to file a complaint against Kramer and notified the inspector general of its decision. The committee stated that it considered Kramer’s loss of his job to be a sanction and no further disciplinary action was warranted. The committee’s letter explained how the inspector general could pursue a review of the committee’s decision, but the inspector general declined to seek further review.
Anonymous Grievance Leads to Second Review
A week before the CMBA committee dismissed the inspector general’s grievance, the disciplinary counsel received a separate anonymous grievance that stated the grievant was a Cuyahoga County employee who feared the loss of employment if discovered reporting the matter. The grievance attached a copy of the inspector general’s report.
The disciplinary counsel sent Kramer a letter asking him to reply to the information contained in the inspector general’s report. Kramer responded that the CMBA just investigated him and dismissed a related grievance.
The disciplinary counsel then initiated an investigation of Kramer that the office described as significantly exceeding the scope of the inspector general’s investigation. It filed a complaint with the Board of Professional Conduct, alleging Kramer’s timekeeping violated the rules prohibiting a lawyer from conduct involving dishonesty, fraud, deceit, or misrepresentation, and conduct that is prejudicial to the administration of justice.
Kramer Seeks Dismissal
Kramer moved to dismiss the complaint, arguing the board should honor the grievance committee’s dismissal of the prior grievance against him. A three-member board panel found that while both grievances arose from the same set of facts and circumstances, the rules do not prevent a second grievance from being filed by a separate person. The panel recommended, and the board accepted, that Kramer be suspended for a year, but his entire suspension should be stayed.
The Court adopted the board’s finding that Kramer admitted misconduct to the inspector general, and that the board characterized Kramer’s testimony denying any violations of the law as “not credible.”
“There can be no dispute that some discipline is warranted here,” Chief Justice O’Connor wrote.
Kramer suggested that any sanction imposed on him as a result of the disciplinary counsel’s complaint would “have broad impact on the entire disciplinary system in Ohio” because it occurred after the CMBA committee dismissed its complaint.
“Initially, Kramer requests that the court determine whether a dismissal by a certified grievance committee that is not appealed by the grievant should become final and be given full faith and credit by another disciplinary agency,” Chief Justice O’Connor wrote. “In other words, Kramer asks this court to address whether disciplinary counsel had the authority to investigate and pursue disciplinary action on the separate, anonymous grievance.”
Rules Establish Roles for Disciplinary Counsel and Grievance Committees
Chief Justice O’Connor noted the Rules for the Government of the Bar of Ohio provide the professional conduct board with exclusive jurisdiction to consider all grievances of misconduct by judges and attorneys, and the board appoints the disciplinary counsel to investigate allegations of misconduct. The rules also allow the board to certify a local bar association’s grievance committee to investigate misconduct for the geographic area it serves.
She explained that the committees and the disciplinary counsel have broad authority under the rules to review and investigate grievances. The rules also state that if a grievance committee dismisses a complaint, a dissatisfied grievant has 14 days after being notified of the decision to ask the professional conduct board for a review.
However, nothing in the rules prevents the disciplinary counsel from reviewing a grievance that alleges attorney misconduct, Chief Justice O’Connor wrote. She noted that Gov. Bar V(9)(C) specifically requires the disciplinary counsel to review any matter that comes before it.
The chief justice explained that to change the rules, the Court must follow its rulemaking procedures, which include public notice, time for public comment, input from those impacted by the rule, and a vote by the justices to approve the rule change.
“Any change to the rules — and particularly those (like that which Kramer and the dissenting justices request) that are of great import to the public — should not be done without completing our longstanding process,” she wrote.
Justices Judith Ann Lanzinger and William M. O’Neill joined Chief Justice O’Connor’s opinion.
Justice Judith L. French concurred in judgment only.
Dissent Argues Committee’s Final Decision Must Be Given “Full Faith and Credit”
Justice Kennedy maintained that when separate grievances involve the same victim (in this case, Cuyahoga County taxpayers) and the same misconduct (falsification of timesheets), when a decision made by the grievance committee achieves finality, that decision must be honored by the board. She would vote to dismiss the complaint, and give full faith and credit to the certified grievance committee’s decision.
Justice Kennedy wrote this is the first time the Court has had the chance to interpret the rules regarding whether a decision following an investigation achieves finality and is entitled to full faith and credit.
She objected to the majority’s focus on treating the second grievance as different from the inspector general because it was supposedly made by someone other than the inspector general, even though the complaint about Kramer in both were based on the inspector general’s report. The identity of the grievant is not relevant. She wrote the focal point of the investigation should be on the grievance and, in this case, they are both the same.
Justice Kennedy explained that under the rules when a grievance is filed with disciplinary counsel and the office disposes of it without filing a complaint with the board, there is no right for a dissatisfied grievant to seek the board’s review of the dismissal. However, if a grievance committee declines to file a complaint, the grievant has 14 days to seek the board’s review. She asserts that by reading the two rules together, the grievance filed with a committee is final if the decision not to file a complaint is not appealed in 14 days.
She concludes, applying the traditional rules of statutory construction, the specific finality provision in the rule regarding the committee’s action controls over the more general provision allowing disciplinary counsel to review and investigate all complaints. Construing the rules together, while disciplinary counsel has independent authority to investigate if a formal complaint is filed based on the same misconduct and involving the same victim that was previously investigated and dismissed, the finality rule precludes the board from proceeding further.
Because the author and joiners of the lead opinion believed that “some discipline is warranted,” they interpreted the rules to achieve their desired outcome, she argued. If both certified grievance committees and disciplinary counsel are allowed to file complaints based on the same grievance, a grievance rejected by disciplinary counsel could be refiled with a certified grievance committee. In the same way, a grievance rejected by a committee and not appealed by the grievant could be filed with disciplinary counsel or another certified grievance committee with jurisdiction leaving the attorney or judge who is the subject of the grievance “in perpetual limbo,” Justice Kennedy wrote. Any other interpretation renders the finality rule meaningless, she concluded.
Justices Paul E. Pfeifer and Terrence O’Donnell joined Justice Kennedy’s dissent.
2015-2000. Disciplinary Counsel v. Kramer, Slip Opinion No. 2016-Ohio-5734.
Video of the oral argument is linked here. (Mike Frisch)