IN THE SUPREME COURT OF OHIO. Appellee,. On Appeal from the Cuyahoga County Court of Appeals, Eighth V.. Appellate District

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1 0 ^ ^.^IN L IN THE SUPREME COURT OF OHIO Michael George Case No Appellee,. On Appeal from the Cuyahoga County Court of Appeals, Eighth V.. Appellate District Village of Newburgh Heights, et al. Appellants. Court of Appeals Case No. CV APPELLANT VILLAGE OF NEWBURGH HEIGHTS' MEMORANDUM IN SUPPORT OF JURISDICTION John D. Latchney ( ) Tomino & Latchney, LLC, LPA 803 E. Washington Street, Suite 200 Medina, Ohio (330) COUNSEL FOR APPELLANT, VILLAGE OF NEWBURGH HEIGHTS Greer A. Hopkins ( ) Zipkin Whiting Co., L.P.A. The Zipkin Whiting Building 3637 South Green Road Beachwood, Ohio (216) COUNSEL FOR APPELLEE, MICHAEL GEORGE p LED JUN 25 zuiz CLERK F COURT SUPREME COURT OF OHIO

2 TABLE OF CONTENTS EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION STATEMENT OF THE CASE AND FACTS...4 ARGUMENT IN SUPPORT OF PROPOSITION OF LAW...6 Proposition of Law No. 1: R.C applies when determining political subdivision immunity from liability for an intentional tort one employee claims was committed by another employee, not the common law doctrine of respondeat superior. Proposition of Law No. 2: R.C (A)(2) provides political subdivisions with immunity from liability where the employee tortfeasor cannot have acted in "good faith" while committing certain intentional torts, such as intentional infliction of emotional distress, malicious prosecution, and defamation. CONCLUSION PROOF OF SERVICE...14 Paee APPENDIX Appx. Page Opinion of the Cuyahoga County Court of Appeals (May 10, 2012)...1 i

3 EXPLANATION OF WHY TIIIS CASE IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION The case presents two issues of first impression for this Court, which are of interest to political subdivisions throughout the State of Ohio. Indeed, resolution of these issues could potentially impact most, if not all, cases where a political subdivision is sued because one public employee allegedly commits an intentional tort against another public employee. As a threshold matter, while some Ohio appellate courts have determined that R.C , rather than the common law doctrine of respondeat superior, applies to tort claims against political subdivisions, this Court has not yet addressed that issue. Correlatively, and more importantly, while the Court has addressed the duty to defend, the Court has not addressed the scope of the duty to indemnify encompassed in R.C (A)(2). These issues have come to the forefront as a direct result of this Court's decision in Sampson v. Cuyahoga Metro. Hous. Auth. (2012), 131 Ohio St. 3d 418; 2012 Ohio 570; 966 N.E.2d 247, this Court determined that political subdivision employers are no longer automatically immune from suit when a political subdivision employee alleges an intentional tort claim against another political subdivision employee. This case, and a host of others, present a different challenge. In Sampson, presumably there was/is no conflict of interest because one law firm has been representing both the political subdivision and the individually named employees. From the appellate record on file with the Ohio Supreme Court; it appears that the CMHA chose to stand behind the alleged conduct of the individually named 1

4 employee defendants. In other words, it does not appear that CMHA was disputing that the conduct of the individually named employees occurred with the scope of their official duties. In that way, the Sampson case is distinguishable from this case. In cases like Sampson, where the political subdivision employer chooses to stand behind (or perhaps ratify) the alleged intentionally tortious conduct (most likely, arguing that it never happened), then the "arises out of the employment relationship" language contained in R.C (B) isn't going to be an issue. Indeed, the real issue is typically going to be whether the intentionally tortious conduct ever occurred. Unfortunately, given the posture of the defense in the Sampson case, it wasn't an ideal one upon which R.C (B) could be applied. In derivative intentional tort claims (those where the claim is based upon conduct by an employee rather than the appointing authority itself), there are three types of claims the Sampson decision did not address; namely, (1) whether the political subdivision is liable where the appointing authority repudiates the intentional tortfeasor's conduct by, for example, disciplining that employee; (2) whether the political subdivision is liable where the appointing authority is unaware of the intentional tortfeasor's conduct; and (3) whether the political subdivision is liable where it neither repudiates nor ratifies the intentional tortfeasor's conduct. The problem, as presented by this case and others, is that the political subdivision employer isn't always going to stand behind an employee accused of conunitting an intentional tort against another employee. There are going to be numerous situations where the political subdivision employer disavows the alleged tortfeasors-employee's conduct and the individual employee who allegedly committed the intentional tort has 2

5 separate legal counsel. For example, if one employee punches another employee in the face, thereby committing the intentional tort of battery, does such conduct "arise out of the employment relationship" simply because both are employed by the same employer and the incident occurred at the work place? In Groobv. Keybank (2006), 108 Ohio St.3d 348, 2006 Ohio 1189, 843 N.E.2d 1170, the Ohio Supreme Court indicated that the answer to such a question must be "no." Indeed, the Court held that "an employer is not liable under a theory of respondeat superior unless its employee is acting within the scope of her employment when committing a tort-merely being aided by [his] employment status is not enough." Id., 108 Ohio St.3d at 359; 2006 Ohio 1189, 58 (emphasis added). While R.C (B) has been read to eliminate automatic immunity from suit based upon the "arises out of the employment relationship" language contained therein, the question remains whether political subdivisions are immune from liability based upon R.C (A)(2). Stated another way, are there certain intentional torts, like intentional infliction of emotional distress, defamation, or malicious prosecution which, by the very nature of the claim, are not susceptible to a claim of "good faith" commission. In cases where the facts are not in dispute or, alternatively, consistent with Ohio Civil Rule 56 construed most favorably to the non-moving party (i.e. that the intentional tort was committed), does the requirement that the tortfeasor employee must act in good faith create an immunity from liability (as opposed to immunity from suit). Can an employee, for example, commit an act which is outrageous, almost criminal, beyond the bounds of all decency" in good faith? Can an employee, with actual malice, defame a 3

6 13 fellow employee in good faith? Can an employee, who is not acting in self-defense, commit a battery, e.g. punch another employee in the face, in good faith? If the answers to those questions are "no" and always "no," then R.C (A)(2) would dictate that the political subdivision employers will, and should be, immune from liability. In other words, assuming arguendo that the political subdivision employee can prove the elements of certain intentional tort claims, absent such conduct which is ratified or sanctioned by the appointing authority, a political subdivision should be immune from liability because the commission of the intentional tort and good faith are mutually exclusive. These issues are at the heart of the Village's appeal to this Court. STATEMENT OF THE CASE AND THE FACTS During summer of 2009, like many political subdivisions, the Village faced a severe financial crisis. At one point, the Village was down to approximately $1,700 in the bank and there were concerns that the Village could not make payroll. As a result of this crisis, the Village took a number of measures to reduce expenditures throughout the Village and in the Police Department. Subsequently, once the immediate crisis was temporarily abated, Village revenues continued to decline. Further cuts were made in expenditures and personnel including abolishment of the part-time Police Chief s salaried position, two full-time officers being laid off, and a full-time Patrol Officer (who was serving as Acting Police Chief), who was battling cancer, not being replaced after he died. In July of 2010, of the full-time police officers who had been working before the financial crisis, George, who was a detective by assignment and a patrol officer by rank, was the last active full-time police officer. Due to the Acting Police Chief's 4

7 incapacitating battle with cancer, the Village needed to hire a new Police Chief Village Council decided to make that position full-time, rather than part-time. To fund the position, the Village used the savings from the Acting Chief's fulltime position, coupled with the layoff of George from his full-time position, to fund the new full-time Police Chief position. Financially, the Village came out slightly ahead. Notwithstanding the layoff from his full-time position, pursuant to the collective bargaining agreement between the Village and George's union, the Fraternal Order of Police ("FOP"), George had the option of retaining employment with the Village on a part-time basis. As George admitted in his deposition, George voluntarily declined to continue working at the Village. With that backdrop, on October 1, 2010, Plaintiff-Appellee George sued the Village of Newburgh Heights and then Defendant Village of Newburgh Heights Police Department' asserting that he was tenninated." George presented a purported statutory "whistleblower" claim in Complaint Count 1, a common law "wrongful termination" and retaliation claim in Count 2, defamation claims in Counts 3 and 4, an intentional infliction of emotional distress claim in Count 5, and a statutory retaliation claim in Count 6. The only claim at issue before the Court is Count 5. On November 15, 2010, the Village filed its Answer which asserted a number of affirmative defenses, including R.C. Chapter 2744 immunity. On June 27, 2011, the Village filed a Motion for Summary Judgment. Consistent with the affirmative defense asserted in its Answer, the Village argued that it was entitled ' On November 5, 2010, the Police Department filed a Motion to Dismiss arguing that it was non suijuris. That Motion was unopposed and later granted on November 29,

8 to immunity from George's intentional tort claims. On August 1, 2011, George filed his Brief in Opposition to the Village's Motion for Summary Judgment. On August 15, 2011, the Village filed its Reply Brief in support of the Motion for Summary Judgment. On September 15, 2011, the trial court denied the Village's Motion for Summary Judgment regarding the intentional infliction of emotional distress claim. On September 16, 2011, the Village filed its Notice of Appeal based upon R.C (C). After briefing by the Parties and oral argument, on May 10, 2012, the Eighth District issued its decision affirming the trial court's denial of the Village's Motion for Summary Judgment and the immunity asserted therein. Although the Village argued that R.C should operate to bar George's intentional infliction of emotional distress claim, that statute is not mentioned anywhere in the Eighth District's Opinion. ARGUMENT IN SUPPORT OF PROPOSITION OF LAW NO. 1 Proposition of Law No. I: R.C applies when determining political subdivision immunity from liability for an intentional tort one employee claims was committed by another employee, not the common law doctrine of respondeat superior. This appears to be an issue of first impression for this Court. Indeed, while several appellate panels have addressed the issue, this Court has not had occasion to do so. Multiple Eighth District appellate panels have held that "Traditional principles of agency are not applicable in considering a political subdivision's claim for immunity." Friga v. City of E. Cleveland (8n' Dist.), 2007 Ohio 1716, 27, discr. app. denied (2007), 115 Ohio St.3d 1439, 2007 Ohio 5567, 875 N.E.2d 101. "Common law agency principles, however, are clearly trumped by the Political Subdivision Tort Liability Act." 6

9 Friga at 27; see also Griffts v. Newburgh Heights (8t6 Dist.), 2009 Ohio 493, 9; Lee v. City of Cleveland (8"' Dist. 2003), 151 Ohio App.3d 581, , 2003 Ohio 742, at 20, discr. app. denied (2003), 99 Ohio St.3d 1467; 2003 Ohio 3669; 791 N.E.2d 983 (rejected plaintiff's attempts to attach liability for his tort claims via the doctrine of respondeat superior based upon city's immunity); see also City of Greenfaeld v. Schluep (4`" Dist.), 2006 Ohio 531, 16; cf. Riotte v. City of Cleveland (8" Dist.), 2011 Ohio 4507, (applying respondeat superior without discussion of the foregoing Eighth District cases or R.C ). The majority view appears to be that a political subdivision's responsibility for an employee's allegedly tortious behavior is established by statute, not the common law doctrine of respondeat superior. That statute is R.C In particular, R.C (A)(2) provides that "Except as otherwise provided in this division, a political subdivision shall indemnify and hold harmless an employee in the amount of any judgment, other than a judgment for punitive or exemplary damages, that is obtained against the employee in a state or federal court or as a result of a law of a foreign jurisdiction and that is for damages for injury, death, or loss to person or property caused by an act or omission in connection with a governmental or proprietary function, if at the time of the act or omission the employee was acting in good faith and within the scope of employment or official responsibilities." In other words, to hold the political subdivision liable for employee conduct, it is not enough to allege that the employee acted within the scope of employment. Generally, for the employee tortfeasor to be indemnified by the political subdivision, the employee must also be acting in good faith. 7

10 Proposition of Law No. 2: R.C (A)(2) provides political subdivisions with immunity from liability where the employee tortfeasor cannot have acted in "good faith" while committing certain intentional torts, such as intentional infliction of emotional distress, malicious prosecution, and defamation. Assuming that R.C , in the context of R.C (B)'s "arises out of the employment relationship" language, this begs the question relative to the second prong of R.C (A)(2), which also requires "good faith": how is it possible for an intentional tortfeasor employee to be acting in good faith when committing an intentional tort against another employee? The intentional tort claim before this Court (intentional infliction of emotional distress) provides an excellent example of the legal conundrum presented by the Sampson decision. Indeed, one of the elements of an intentional infliction of emotional distress claim is "extreme and outrageous" conduct, which the Ohio Supreme Court has elaborated on the meaning of that phrase as follows: "It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by 'malice,' or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, 'Outrageous! "' Finley v. First Realty Prop. Mgmt. (9`h Dist.), 2009 Ohio 6797, 35, citing Yeager v. Local Union 20 (1983), 6 Ohio St.3d 369, , 453 N.E.2d 666, quotin Restatement of the Law 2d, Torts (1965) 73, Section 46(1), comment d. 8

11 Although courts have generally rejected intentional infliction of emotional distress claims in the employment context, that still leaves a question to be answered: Can one commit an outrageous act, with tortious or almost criminal intent, in good faith? One would think not. If that's the case, then how would the political subdivision employer ever be liable, under R.C , to indemnify an intentional tortfeasor employee who has committed intentional infliction of emotional distress against another employee? Stated another way, even if R.C (B) takes away a political subdivision's automatic immunity from suit, does R.C (A)(2)'s additional requirement of "good faith" provide an immunity from liability where commission of most intentional torts, including intentional infliction of emotional distress, cannot occur in "good faith." The issue has broader application beyond an intentional infliction of emotional distress claim. For example, to prove a defamation claim and overcome defenses of qualified immunity and/or qualified privilege, a plaintiff must demonstrate by clear and convincing evidence that the communication was made with actual malice. Even setting aside the difficulty associated with how one could make false statements "within the scope of employment or official responsibilities" (in other words, how do false statements benefit the political subdivision employer?), how can one act with actual malice and intentionally publish false statements while at the same time act in good faith? It is difficult to envision any scenario where there could be "good faith" defamation. Another example also demonstrates the problem with interpretation of the "arises out of the employment relationship" language. If a public employee knowingly, intentionally, and with malice makes a false statement to a political subdivision about 9

12 another employee, which defames that employee, how could such behavior ever be "calculated to facilitate or promote the business for which the servant was employed"? In other words, how does lying to one's employer benefit the political subdivision? Likewise, if a political subdivision employee sues based upon alleged malicious prosecution, the nature of the claim demonstrates that such activity cannot occur in "good faith." Indeed, two of the first four elements of such a claim are (1) malicious institution of prior proceedings against the plaintiff by defendant, * * * (2) lack of probable cause for the filing of the prior lawsuit, ***." Robb v. Chagrin Lagoons Yacht Club (1996), 75 Ohio St. 3d 264, 269. The Court further observed that the tort is a "malicious initiation of a lawsuit which one has no reasonable chance of winning." Id. at 271. Given the nature of the claim, it is difficult to imagine how such activity could ever be done in "good faith." It strains credulity to think that a political subdivision employer is going to be liable when one employee punches another in the face or one employee intentionally lies about another employee. From a public policy standpoint, public employees who commit intentional torts should be held liable for their own conduct and not able to shift that responsibility/liability to their political subdivision employers. Presumably, that's what the Ohio General Assembly had in mind when it included a "good faith" requirement to R.C (A)(2)'s indemnification provision. Since it does not appear that statute was addressed in Sampson (again, likely due to the fact the same legal counsel was/is representing CMHA and the individually named employees), this legal question is ripe for review here. 10

13 Relative to most common law intentional tort claims, which are covered by R.C. Chapter 2744, it seems manifest that one cannot commit an intentional tort "in good faith." Although in the context of the Ohio Supreme Court interpreting R.C (A)(1), the Court observed that an allegation that an employee of a political subdivision was acting in good faith "would be incongruous with suing the employee in his or her individual capacity." Whaley v. Franklin Counry Bd. of Comm'rs (2001), 92 Ohio St.3d 574, 578, 2001 Ohio 1287; 752 N.E.2d 267, fn. 3 (emphasis added). Stated another way, when one political subdivision employee sues another public employee in his or her individual capacity, such a claim necessarily implies a lack of good faith by the public employee-tortfeasor. Ultimately, by not only requiring an act within the scope of employment, but also acting in good faith, the Ohio General Assembly intended to put the blame squarely where it belongs-on public employees who commit intentional torts, not on the public employers who employ such tortfeasors. That makes sense. By placing financial responsibility on those individuals who commit intentional torts, the Ohio General Assembly has provided a strong deterrent and disincentive for such conduct. Construing the law otherwise potentially leads to the absurd result where a political subdivision employer is financially responsible because one employee decides to punch another in the nose and the employee-tortfeasor is off the hook because someone else is financially responsible. That should not be. In the case sub judice, relative to his intentional infliction of emotional distress claim, George attempts to side-step that problem by arguing that the Village is responsible for virtually anything and everything that he claims anyone ever did to him 11

14 (or others)? Such arguments are based upon a false premise; namely, that each and every individual who works for the Village is, for purposes of a R.C. Chapter 2744 analysis, his "employer." However, the Village, acting through its Council, was George's employer in two respects. First, relative to an economic layoff, the only body with the legal authority to lay George off was Village Council, which was permitted to act under R.C Second, as the record establishes, Village Council (which met as a public body in accordance with the Sunshine Law) was the body who actually laid him off-not Mayor Kinder, not Service Director Padilla, not fellow Officer Hoover, not fellow Officer Capirano, nor anyone else. As such, to the extent George's intentional infliction of emotional distress claim is predicated upon his layoff, George needed to present evidence concerning Village Council's intent. George cannot bootstrap the alleged conduct of others, who are not on Village Council, onto his claim against the Village. This legal conclusion is consistent with the common law. "It is well-established that in order for an employer to be liable under the doctrine of respondeat superior, the tort of the employee must be committed within the scope of employment. Moreover, where the tort is intentional, * * * the behavior giving rise to the tort must be 'calculated to facilitate or promote the business for which the servant was employed ** *.' " Byrd v. Faber (1991), 57 Ohio St.3d 56, 58, 565 N.E.2d 584, quoting Little Miami RR. Co. v. Wetmore (1869), 19 Ohio St. 110, 132 (emphasis added). Byrd also noted, "As we held in Vrabel v. Acri (1952), 156 Ohio St. 467, 474, 103 N.E.2d 564, 568, 2 Throughout his Brief, George identifies certain conduct which would be fairly characterized as injuries to the Village community as whole and/or third parties. It is difficult to imagine how George would have legal standing to assert such claims and personally receive compensation for what happened to others. 12

15 'an intentional and willful attack committed by an agent or employee, to vent his own spleen or malevolence against the injured person, is a clear departure from his employment, and his principal or employer is not responsible therefore.' See also Schulman v. Cleveland (1972), 30 Ohio St.2d 196, 283 N.E.2d 175 (emphasis added). In other words, an employer is not liable for independent self-serving acts of his employees which in no way facilitate or promote his business." Byrd, 57 Ohio St.3d at 59, 565 N.E.2d 584. To the extent that individual non-party employees of the Village were successful in intentionally inflicting emotional distress upon George, such activity would not be "calculated to facilitate or promote" the Village's business, would be a "clear departure from employment," and could not occur, as a matter of law, "in good faith." The present interpretation of R.C (B) creates a situation where a political subdivision ostensibly does not have immunity from suit for intentional tort claims filed by one employee based upon alleged tortious conduct by a fellow employee, while at the same time R.C (A)(2) establishes that, ultimately, political subdivisions are not going to be financially responsible for such claims. The problem has been exacerbated by the characterization of common law tort claims, such as intentional infliction of emotional distress and defamation, as "employment" claims because two employees are involved. However, as the Ohio Supreme Court recognized in Groob, supra, being aided by one's employment relationship or status simply isn't enough to impose liability upon theemployer. At the end of the day, the message shouldn't be-"public employees, go ahead and commit intentional torts against your fellow employees because the political 13

16 subdivision employer is going to be financially responsible for your conduct anyway." Rather, both R.C (A)(2) and public policy require that a political subdivision employee who commits an intentional tort against his fellow employee bear the financial responsibility for such conduct because there is no such thing (as the Ohio Supreme Court seems to acknowledge in Whaley) as an intentional tort committed "in good faith." CONCLUSION This appeal presents an opportunity for the Court to address two issues of first impression, which would be of interest to political subdivisions throughout the State of Ohio, particularly in light of the Court's decision in Sampson. Accordingly, the Village would respectfully request that this Court accept this discretionary appeal for review. Respectfully submitted, (Ir John D. Latchney ( ) Counsel of Record for Appellant Village of Newburgh Heights CERTIFICATE OF SERVICE A copy of Appellant Village of Newburgh Heights' Memorandum in Support of Jurisdiction was served via regular U.S. Mail on this 25th day of June 2012 upon: Greer A. Hopkins, Zipkin Whiting Co., L.P.A., The Zipkin Whiting Building, 3637 South Green Road, Beachwood, Ohio 44122, Attorney for Appellee. John D. Latchney ( ) 14

17 Court of 0(pp.eA6 of Yjio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA JOURNAL ENTRY AND OPINION No MICHAEL GEORGE PLAINTIFF-APPELLEE vs. VILLAGE OFNEWBURGH HEIGHTS, ET AL. DEFENDANTS-APPELLANTS JUDGMENT: AFFIRMED Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV BEFORE: Blackmon, A.J., Celebrezze, J., and Rocco, J. RELEASED AND JOURNALIZED: May 10, 2012

18 -1- PATRICIA ANN BLACKMON, A.J.: { 1) Appellant village of Newburgh Heights ("the Village"), appeals the trial court's decision denying its motion for summary judgment. The Village argues it is immune from liability towards its former employee Detective Michael George and assigns the following error for our review: I. The trial court erred in denying the Village's motion for summary judgment, which asserted R.C. Chapter 2744 immunity for plaintiffs intentional infliction of emotional distress claim. { 2} Having reviewed the record and pertinent law, we affirm the trial court's decision. The apposite facts follow. { 3} Appellee Detective Michael George ("Detective George"), filed a complaint against the Village and the Newburgh Heights Police Department for termination of his employment after more than a decade of service. He claimed damages under Ohio's Whistleblower Protection Act, retaliation, wrongful termination, defamation per quod, defamation per se, and intentional infliction of emotional distress against both the Village and the police department. { 4} Subsequently, Detective George did not oppose the police department's motion to dismiss, which was ultimately granted by the trial court. {115} After significant motions practice, the Village filed its motion for summary judgment claiming that Detective George's layoff was based on the

19 -3- Dist.2000), citing Smiddy u. The Wedding Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987); N.E. Ohio Apt. Assn.v. Cuyahoga Cty. Bd. of Commrs., 121 Ohio App.3d 188, 699 N.E.2d 534 (8th Dist.1997). Accordingly, we afford no deference to the trial court's decision and independently review the record to determine whether summary judgment is appropriate. { 11} Under Civ.R. 56, summary judgment is appropriate when (1) no genuine issue as to any material fact exists, (2) the party moving for summary judgment is entitled to judgment as a matter of law, and (3) when viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can reach,only one conclusion that is adverse to the non-moving party. { 12} The moving party carries an initial burden of setting forth specific facts that demonstrate his or her entitlement to summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, , 1996-Ohio-107, 662 N.E.2d 264., If the movant fails to meet this burden, summary judgment is not appropriate; if the movant does meet this burden, summary judgment will be appropriate only if the nonmovant fails to establish the existence of a genuine issue of material fact. Id. at 293. { 13} In the instant case, the Village argues Detective George's intentional infliction of emotional distress is barred under Chapter 2744 of the Ohio Revised Code. Determining whether a political subdivision has immunity

20 -5- because of his employer's intentionally tortious conduct "must arise out of or in the course of employment; otherwise, there can be no employer intentional tort." Id. { 151 Thus, -when an employee of a political subdivision brings a civil - action against the political subdivision alleging an intentional tort, that civil action may qualify as a "matter that arises out of the employment relationship" within the meaning of R.C (B). Sampson v. Cuyahoga Metro. Hous. Auth., Slip Opinion No , 2012-Ohio-570. Because intentional torts can arise out of the employment relationship with respect to R.C (B), we must: now look to the totality of the circumstances and determine whether Detective George's claim for intentional infliction of emotional distress actually did arise out of the employment relationship with the Village. { 16) The facts of this case clearly indicate that Detective George's claims stem from his employment with the Village. The record indicates that between September 2009 and July 2010, when George was laid off by the Village, he was conducting a number of internal investigations. The investigations included, but were not limited to, police brutality, use of excessive force, perjured search warrants, sexual contact with a 17-year-old girl by a police officer, and an illicit sexual relationship in the police department's unmarked police vehicle.

21 -7- was one of the subjects of his internal investigation, is married to one of the council members, who voted to lay him off. { 21} Detective George further testified that in the months preceding his lay off, and in the weeks immediately following, he was subjected to a smear campaign. Detective George stated that Officer Bobby Hoover told an agent of the Bureau of Criminal Investigation that he was investigating Detective George at the behest of Derek Kinder, the Mayor of the Village. Officer Hoover also began telling people that Detective George was a "dirty cop." Specifically, Officer Hoover told Detective Dean Weinhardt ofthe Brunswick Police Department that Detective George was a "dirty cop." Weinhardt Depo. at 13. Detective George further testified that Office Hoover, while on duty, told people throughout the Village that he was a "dirty cop," a "coward," and that he was being investigated. { 22} Detective George stated that his professional reputation suffered as a result of the Village's smear campaign. Detective George stated that people began treating him differently and that even Detective Weinhardt, with whom he had talked to about employment prospects, became noticeably less welcoming after Officer Hoover told him that he was a "dirty cop." Detective George eventually sought psychological help and was diagnosed with chronic Post Traumatic Stress Disorder, brought on from being subjected to constant stress, threats, and exposure to illegal acts that he was powerless to address.

22 -9- otherwise. Corporal Terry Aytay, of the Village's police department, testified at his deposition as follows: Q Is it a fair statement that since Mike George left the department has spent considerable money buying new vehicles? - A. Yes. In fact - Q. Yes? I saw you wanted to add something about the vehicles. A. Well, I just like - it almost seems like they hit the lottery, because there is so much money going around now it's unbelievable. *** And they are spending considerable amount of money in the Service Department and the Police Department, correct? In the Service Department, I know they are. In the Police Department, they got employees working on stuff inside. * * * I know they are getting new windows. I don't know if that's the police department proper. I think that's the village. I know they got new cars, two cars, they're getting new windows in the place. Based on your position as corporal and acting person in charge for a few weeks after Mike George left, is it your assessment that using the economy as an excuse to get rid of Mike George was protectoral? Mr. Latchney: Objection. A. Yes. Yeah, I did the budget for the department and they never approved the budget. It wasn't until just, I want to say, a month ago that the budget was finally approved, that they finally gave numbers to them to say `Yeah, okay, this is

23 -11- denied the Village's motion for summary judgment. Accordingly, we overrule the sole assigned error. { 27} Judgment affirmed. It is ordered that appellee recover from appellants his costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATRICIA ANN BLACKMON, ADMINISTRATIVE JUDGE FRANK D. CELEBREZZE, JR., J., CONCURS; KENNETH A. ROCCO, J., CONCURS IN JUDGMENT ONLY KENNETH A. ROCCO, J., CONCURRING IN JUDGMENT ONLY: { 28} Although I am constrained to agree with the majority's disposition of the Village's assignment of error in light of the Ohio Supreme Court's decision in Sampson, Slip Opinion No Ohio-570, I write separately to express my beliefthat a broad interpretation of R.C (B) is unwarranted. { 29} In my opinion, the intent of the statutory language is to prevent governmental entities from using Chapter 2744 immunity to defend wrongful