JUL ' CLERK Of Cati: IN THE SUPREME COURT OF OHIO JAMES P. HOOVER SUPREME COURT CASE NO Appellant, vs.

Transcription

1 IN THE SUPREME COURT OF OHIO JAMES P. HOOVER Appellant, vs. CITY OF ELYRIA Appellee. SUPREME COURT CASE NO ON APPEAL FROM THE COURT OF APPEALS, NINTH APPELLATE DISTRICT CASE NO. 13CA LORAIN COUNTY COMMON PLEAS COURT CASE NO. 12CV MEMORANDUM OF APPELLEE IN OPPOSITION TO JURISDICTION SCOTT F. SERAZIN, # Law Director, City of Elyria 131 Court Street, Suite 201 Elyria, OH Office: (440) Fax: (440) MICHAEL P. HARVEY, # Northcliff Drive Rocky River, OH Office: (440) Cell: (440) BY: AMANDA R. DEERY, # Assistant Law Director, City of Elyria COUNSEL OF RECORD FOR OF ELYRIA COUNSEL OFRECORDFOR APPELLANT, JAMES P. HOOVER _U JUL ' CLERK Of Cati:

2 TABLE OF CONTENTS Table of Contents......: ii Table of Authorities...iii Explanation of Why This Case Does Not Involve a Substantial Constitutional Question and Is Not a Case of Public or Great General Interest...1 Statement of the Case...:...2 Statement of the Facts...4 LAW & ARGUMENT: RESPONSE TO APPELLANT'S PROPOSITION OF LAW I...7 RESPONSE TO APPELLANT' S PROPOSITION OF LAW II...:... $ RESPONSE TO APPELLANT'S PROPOSITION OF LAW III...10 RESPONSE TO APPELLANT' S PROPOSITION OF LAW IV RESPONSE TO APPELLANT'S PROPOSITION OF LAW V Conclusion Certificate of Service...:...16 ii

3 CASES: TABLE OF AUTHORITIES AT&T Commc'ns of Ohio, Inc. v. Lynch, 132 Ohio St.3d 92, 2012-Ohio-1975, 969 N.E.2d , 14 Frantz v. Wooster, 9th Dist. Wayne No. 10CA0 14, 2011-Ohio Hoover v. Elyria, 9th Dist. Lorain No. 13CA010364, 2014-Ohio :... 8,12 Niskanen v. Giant Eagle, Inc., 122 Ohio St.3d 486, 2009-Ohio-3626, 912 N.E.2d 595 (2009) Southgate Development Corp. v. Columbia Gas, 48 Ohio St.2d 211, 358 N.E.2d 526 (1976)...14 State ex rel. Cordray v. Marshall, 123 Ohio St.3d 229, 2009-Ohio-4986, 915 N.E.2d State ex rel. Zollner v. Indus. Comm., 66 Ohio St.3d 276, 278, 611 N.E.2d 830 (1993) State v. Hill, 90 Ohio St.3d 571, 573, 740 N.E.2d 282 (2001)...9, 15 Welsh Dev. Co., Inc. v. Wart en Cty. Reg'l. Planning Comm., 128 Ohio St.3d, 2011-Ohio-1604, 946 N.E.2d , 3, 4, 7, 8, 10, 11, 12, 13 RULES, STATUTES, CHARTER PROVISIONS: App.R. 16(A)(7)...12 Charter, City of Elyria, Article XVI...:...10 Elyria Civil Service Commission Rule XI...10 Local Rule 5(B)(3), Ninth District Court of Appeals , 15 Ohio Rule of Civil Procedure 12(B)(1).... R.C ,....13,14, , 11,1 C. Chapter R.C , 14 R.C , 12, 13, 14 R.C :...4, 8, 11, 12, 13, 14 iii

4 EXPLANATION OF WHY THIS CASE DOES NOT INVOLVE A SUBSTANTIAL CONSTITUTIONAL QUESTION AND IS NOT A CASE OF PUBLIC OR GREAT GENERAL INTEREST Contrary to Appellant's characterization of this case, no substantial constitutional question exists in the Appellant's appeal. Furthermore, Appellant presents no viable question of public or great general interest so as to warrant the exercise of this Court's jurisdiction. It is a basic tenet that jurisdiction over an administrative appeal does not vest in a common pleas court unless and until an appeal is perfected," AT&T Commc'ns of Ohio, Inc. v. Lynch, 132 Ohio St.3d 92, 2012-Ohio-1975, 969 N.E.2d 1166,!( 17, citing John Roberts 11Igt. Co. v. Obetz, Ohio App.3d 362, 2010-Ohio-3382, 935 N.E. 2d 493, 10 (10th Dist.). Although Appellant criticizes the Ninth District Court of Appeals for its lack of a "common sense approach" toward subject-matter jurisdiction and administrative appeals, this Honorable Court has repeatedly held that "w11en the right to appeal is conferred by statute, an appeal can be perfected only in the manner prescribed by the applicable statute." Welsh Dev. Co., Inc. v. Warren Cty. Reg'l. Planning Comm., 128 Ohio St.3d, 2011-Ohio-1604, 946 N.E.2d 215, 14. Moreover, as Welsh specifically stated, "Our holding does not minify the statutory requirement of perfecting an appeal... [n] or does our holding today mean that we are adopting a new rule of substantial compliance." Id. att '33, 34. Ultimately, "[T]he administrative agency must still receive the appropriate complaint and notice... [T]he purpose of R.C is to give timely notice of the appeal to the administrative agency (emphasis added)." Id. at 40, 41. Appellant's allegations find no support in the entirety of the record. In fact, the record supports but one conclusion, which is that Appellant failed to timely notify the Elyria Civil Service Commission (hereinafter, "Commission") of his administrative appeal as required by statute. Consequently, the Lorain County Court of Common Pleas (hereinafter, "trial court")

5 lacked jurisdiction to consider his administrative appeal. The City of Elyria (hereinafter, "City"), therefore, urges this Honorable Court to decline jurisdiction in the instant case. STATEMENT OF THE CASE Appellant James Hoover (hereinafter, "Hoover"), a former Assistant Superintendent at the City of Elyria Water Pumping Plant (hereinafter, "Plant"), was subjected to discipline after his actions of May 30, 2012 were determined to violate safety protocols and Rule XI of the Elyria Civil Service Commission Rules and Regulations. On June 14, 2012, Hoover was present at an information-gathering meeting. Via June 27, 2012 letter, Safety Service Director Mary Siwierka (hereinafter, "Siwierka") notified Hoover of the meeting's outcome and of a mandatory disciplinary and pre-termination hearing scheduled for July 6, Upon Hoover's signing of the June 27, 2012 letter, he was placed on paid administrative leave. After the disciplinary and pre-termination hearing, Siwierka terminated. Hoover's employment with the City, via letter dated July 10, Hoover timely appealed Siwierka's decision to the Commission, which held a hearing on August 2, Hoover, City Administration, and the Commission were each represented by counsel. The Commission heard testimony from several witnesses, including Plant Superintendent Sam F. Jacob (hereinafter, "Jacob"), Siwierka, and Hoover. Prior to rendering a decision, the Commission deliberated on the record. Ultimately, the Commission affirined Siwierka's decision to terminate Hoover's employment. The Commission issued its written decision on August 8, Hoover subsequently attempted appeal to the trial court. The City maintained that Hoover failed to perfect his administrative appeal and thus failed to invoke the subject-matter jurisdiction of the court. The Commission's decision was mailed to Hoover and his counsel on August 9, 2012, in accordance with the Commission's 2

6 standard practices and procedures. The record reflects that Hoover filed his Notice of Appeal with the trial court on August 29, The Lorain County Clerk of Courts sent, via certified U.S. mail, a copy of the Notice of Appeal to the City on September 06, 2012; signed receipt indicated delivery, upon the City, on September 07, The record indicates that Hoover made no request for the Clerk of Courts to send notice to the Commission. Similarly, the record is bereft of indication that Hoover made any attempt to directly notify the Commission of his appeal. On December 10, 2012, the City filed a Motion to Dismiss Hoover's appeal for lack of subject-matter jurisdiction and attached an affidavit of the Commission secretary, which averred that the Commission had never received notice of Hoover's appeal. Contrary to Hoover's contention, the City filed its response brief, on the merits, on December 12, The trial court denied the Motion to Dismiss on January 22, 2013 and ruled that, because the Clerk of Courts delivered notice of the appeal to the "City" within the thirty-day time period set forth under R.C , Hoover had perfected his administrative appeal. The trial court subsequently remanded the entire case to the Commission, on other grounds. The City timely appealed to the Ninth District Court of Appeals on February 21, Despite Hoover's mischaracterization, no "Amended Appeal" was filed. Rather, on February 22, 2013, the City filed an exhibit, inadvertently omitted, as an addendum to its February 21, 2013 Notice of Appeal. On May 27, 2014, the Court of Appeals held that the trial court erred in denying the City's Motion to Dismiss for lack of subject-matter jurisdiction. Specifically, the Ninth District recognized that, pursuant to Welsh, "When the right to appeal is conferred by statute, an appeal can be perfected only in the manner prescribed by the applicable statute." Welsh at 14. Moreover, the Ninth District acknowledged that while service upon an administrative tribunal may be accomplished through the Clerk of Courts, the Welsh decision did 3

7 not change the requirement that service be accomplished on the administrative tribunal within the time period required to appeal. R.C , Welsh at T 39, 40. STATEMENT OF FACTS A series of safety violations gave rise to the Commission's written decision of August 8, On May 30, 2012, Hoover made "an executive decision" to report to a Plant substation to decommission outmoded apparatus, to wit: an electrical chlorine sink. Tr. 14, 50, 114. Hoover was not assigned to complete this task, which had an electrical component to it. Tr. 58, 60, 73. Hoover, a supervisor, did not consult with, or direct, the plairt electrician to handle the electrical issues of the task; rather, Hoover elected to undertake the task himself. Tr Furthermore, Hoover undertook the task without having the proper safety protection or even his reading glasses. Tr Hoover did not use appropriately insulated pliers intended for the cutting of electrical wires. Tr. 42. As explained by the City electrician who subsequently reported to the scene, the pliers used by Hoover were not insulated from voltage. Tr. 81. Hoover also failed to utilize a volt meter to confirm that the wires were not live. Tr Hoover admitted that he did not have these items with him. Tr. 74,111, Additionally, Hoover failed to observe the Plant's mandated lock-out/tag-out procedures when he unsuccessfully attempted to "power down" the equipment to be removed. See Tr In fact, Siwierka made findings that Hoover's actions were in direct conflict with the lock-out/tag-out procedures. Tr. 52, 54. Hoover later admitted that he did not even have the blue "lockout" lock, assigned to him as a supervisor, on his person, during the incident. See Tr Hoover acknowledged that the situation may have ended differently had he had his "lockout" lock kit with him that day. Tr Finally, Hoover admitted that he undertook the task because he was frustrated and angry with his supervisor, Jacob. Tr. 60,

8 Of significance, Hoover directed two subordinate employees to assist him at the substation. For one employee, it was only his second day of employment with the City. Tr. 19, Tlie second employee testified that neither he nor his coworker knew they would be removing that piece of equipment until they arrived at the jobsite. Tr One employee contacted Jacob to report Hoover's actions after discovering that the electrical panel was not locked out, that readings were missing on the Supervisory Control and Data Acquisition ("SCADA") communications system due to severed wires, and that it did not appear that the power was "turned off'. Tr. 14, The SCADA system, when compromised, may have detrimental effects upon the city water supply. Tr. 49. Siwierka made a finding that Hoover's failure to follow safety protocols put two subordinates in danger during the course of the task. Tr The Commission heard testimony that Hoover was the supervisor of the two subordinate employees and that the employees were present at Hoover's direction. As one testified, "We started at the 16th Street. And wlien we were there, Jim told Scott and I to meet him at Clark Street..." Tr He further testified that he was acting under order from Hoover. Tr Hoover himself testified that he figured that this was a task that he could accomplish "while I had people out there". Tr The Commission heard testimony relevant to the fact that Hoover had previously undergone training in "lock-out/tag-out" procedures. Those procedures were introduced into evidence as Exhibit 11 before the Commission. Hoover admitted to participating in the training. Tr The Commission determined that Hoover failed to follow these procedures. See Tr Siwierka testified that employees at the Plant were trained "with reference to this OSHA standard". Tr. 30. The Commission saw, firsthand, the pliers used by Hoover to cut the 5

9 live wires, and heard the City electrician testify as to the causation of the damage exhibited by those pliers. Tr. Pg City Electrician Joe Stubner (hereinafter, "Stubner"), assigned to the Plant, testified that he is certified by the State of Ohio and carries an electrical contractor's license. Tr. 77. Stubner was working on the date of the incident. Tr. 77. Stubner authenticated photographs taken when he arrived on-scene at the substation. Tr. 78. Stubner testified that he reported to the site at the direction of Jacob, his supervisor, "because Jim Hoover was already out there and had taken some wires apart, and he didn't know exactly what he had done. And he told me just to make it safe."' Tr. 78. When Stubner arrived, he discovered that there was voltage present. Tr. 79. Stubner testified that had Hoover had a voltage meter with him, he would have been able to determine that the power was not, in fact, off. Tr. 80. Stubner further explained that he "locked out" the panels and shut the power down. Tr. 80. Moreover, Stubner provided, for the Commission, a detailed explanation of the Plant's lock-out/tag-out procedures, adopted from OSHA standards. Tr Siwierka testified that the decision to terminate was based solely on the multiple safety infractions that occurred throughout this one particular incident, and that although she consulted with others regarding the decision, the termination was her decision alone. Tr Siwierka determined that the totality of the incident constituted a major violation of safety standards. After educating herself on the seriousness of the infractions, she determined that the violation warranted "much more than a normal reprimand". Tr. 41. Siwierka determined that Hoover directly violated protocols and procedures that he was well-versed in, and she stated that she did give his twenty-four years of experience due consideration. Siwierka concluded that Hoover put himself and two subordinates in danger when he "did not take proper and reasonable safety 6

10 precautions into effect during the course of this work". Tr. 55. Siwierka also concluded that Jacob had no opportunity to arrange for an electrician to power down the site and that Hoover had not contacted the plant electrician to power down the site. Siwierka determined that either an electrician should have been present, or at least the appropriate protocols should have been followed to prepare the situation for an electrician. Tr. 75. Siwierka also testified that her understanding is that OSHA regulations are in place to prevent safety violations from occurring, rather than merely discipline safety violations once they have occurred. Tr. 75. Siwierka testified that she made the decision to terminate Hoover based on the fact that his conduct violated multiple infractions of Civil Service regulations and Standard Practice and Protocol of Working Conditions. Tr. 65. The Commission heard testimony that progressive discipline was not followed for several reasons. Siwierka testified that she terminated Hoover due to the serious nature of the offense. Tr. 67. Additionally, "progressive discipline" does not apply to non-union employees such as Hoover; in the instant situation, the Commission rules applied. Hoover testified that he is not a member of the union and that "progressive discipline" is "how it works with union employees". See Tr Furthermore, the relevant union contract provides that even if the incident had involved a union employee, the City was not required to progress through all disciplinary steps where the infraction was one of malfeasance, insubordination, "violation of rule of the city", immoral conduct, neglect of duty, and the like. LAW AND ARGUMENT RESPONSE TO PROPOSITION OF LAW I Despite Hoover's assertion to the contrary, the Welsh decision played a central role in the Ninth District Court of Appeals' determination of the case below. As set forth in Welsh, 7

11 [A]n administrative appeal is considered filed and perfected for purposes of R.C if the clerk of courts serves upon the administrative agency a copy of the notice of appeal filed in the court of common pleas and the administrative agency is served within the time period prescribed by R.C Welsh at 13. Moreover, as held by this Honorable Court, [T]he purpose of R.C is to give timely notice of the appeal to the administrative agency." Id. at 41. Although the party attempting to appeal does not have to use a particular method to deliver his appeal to the administrative body, `[fjiling does not occur until there is actual receipt by the agency within the time prescribed by R.C "' Id. at 39. Welsh is extensively cited and discussed throughout the appellate decision. Hoover v. Elyria, 9th Dist. Lorain No. 13CA010364, 2014-Ohio , 10. The record reflects that Hoover failed to comply with the mandate of R.C , as clarified by Welsh. There is no indication in the record that Hoover directed the Clerk of Courts to serve the Commission, as deemed acceptable in Welsh. In fact, there is no indication that Hoover even attempted to deliver notice of the appeal to the Commission; rather, Hoover merely argued that the City, as the adverse party, was akin to the Commission itself. RESPONSE TO PROPOSITION OF LAW II The record indicates that the City filed its Motion to Dismiss for lack of subject-matter jurisdiction on December 10, The trial court granted Hoover time to respond to the City's Motion to Dismiss; the record indicates that Hoover's Motion in Opposition was filed on December 17, Therefore, Hoover had ample opportunity to challenge the City's jurisdictional argument and, in fact, did avail himself of that opportunity. Furthermore, the appellate record reveals that Hoover made two separate attempts to supplement the record before the Ninth District Court of Appeals. The first, characterized as a 8

12 "Motion to Supplement the Record Pursuant to Ninth District Local Rule 5(B)(3) Instanter," was filed on March 5, 2014; nearly two weeks after oral arguments and the appellate court took the matter under advisement. Local Rule 5(B)(3) states, in pertinent part: Supplementation of the Record after the Record Has Been Filed. No additions may be made to the record after the date on which the notice of the filing of the record is mailed to the parties except upon leave of the court of appeals to supplement the record. The City opposed Hoover's Motion, on the grounds that Hoover was attempting to interject purported facts into evidence, not previously in the record. See generally, City Appellate Mot. Opp., March 7, On March 25, 2014, the Ninth District Court of Appeals denied the Motion, stating, "Mr. Hoover has not included the document he seeks to supplement the record with." Mag. Order, March 25, Thereafter, on Apri17, 2014, Hoover filed a "Clarification of James Hoover's Request to Supplement the Record Instanter and Renewed Request with Attached Affidavit." The City opposed Hoover's "Clarification," on the grounds that Hoover was impermissibly attempting to introduce a recently-executed affidavit into the record. City Appellate Mot. Opp., April 9, On May 14, 2014, the Ninth District Court of Appeals denied Hoover's "Clarification" and stated,"a reviewing court cannot add matter to the record before it, which was not a part of the trial court's proceedings, and then decide the appeal on the basis of the new matter." Mag. Order, May 14, 2014, citing State v. Hill, 90 Ohio St.3d 571, 573, 740 N.E.2d 282 (2001). Hoover's motions, pursuant to Ninth District Loc.R. 5(B)(3), referenced purported "facts" that were never conclusively raised or established in the proceedings before the Commission, the trial court, or the Ninth District Court of Appeals. As such, the Ninth District Court of Appeals appropriately denied tllem. 9

13 RESPONSE TO PROPOSITION OF LAW III Hoover's rendition of the record is flawed, and his conterition, that the City somehow waived its rights to address the merits of this case, is equally misguided. The record unambiguously reflects that on October 11, 2012, the trial court established a briefing schedule, according to which the City's brief was to be filed on or before December 12, 2012, The record also indicates that on December 10, 2012, the City filed its Motion to Dismiss due to lack of subject matter jurisdiction. Significantly, the record further reflects that on December 12, 2012, the City timely filed its response brief, in compliance with the court's briefing schedule, previously established on October 11, Hoover's assertion that the City failed to file a brief on the merits is wholly unfounded and has no support in the record. Indeed, the record unequivocally supports the opposite conclusion. RESPONSE TO PROPOSITION OF LAW IV In the case at hand, Hoover attempted to appeal the administrative decision of the Commission to the trial court. The Commission is vested with authority in accordance with Article XVI of the Charter of the City of Elyria, Ohio, the Ordinances of the City of Elyria, Ohio, Chapter 124 and other provisions of the Ohio Revised Code, and the Constitution of the State of Ohio. The Commission's Rules and Regulations are promulgated in accordance with that authority. The Commission hears disciplinary appeals of classified employees in accordance with Commission Rule XI. The decision of an administrative agency may be appealed to the appropriate court of common pleas. Subject matter jurisdiction over an administrative appeal is conferred by statute. As stated by this Court, "We have repeatedly held that when the right to appeal is conferred by statute, an appeal can be perfected only in the manner prescribed by the applicable statute (emphasis added)." YVelsh at ^,

14 Irrespective of whether Hoover pursued his administrative appeal under R.C and R.C or pursuant to R.C and R.C of the Revised Code, the record reflects that the Commission never received the notice of appeal. Hoover did not direct the Clerk of Courts to serve the Commission, pursuant to Welsh. Hoover did not even attempt to deliver notice of the appeal to the Commission; rather, Hoover merely argued that the City, the adverse party, was itselfthe administrative agency. The distinction between the "City," as adverse party, and the "Commission," as administrative agency, was wholly lost on Hoover and the trial court alike. Additionally, Hoover argued that because the Commission transmitted the administrative record and filed it with the trial court, the jurisdictional argument had somehow been "waived". Nevertheless, it is axiomatic that the issue of whether a court has subject-matter jurisdiction is never waived and may be raised at any stage of the proceedings. See, e.g.; State ex rel. Cordray v. Marshall, 123 Ohio St.3d 229, 2009-Ohio-4986, 915 N.E.2d 633, 39. The trial court merely determined that the City was served with the Notice of Appeal within thirty days and that service upon the City was sufficient to perfect an administrative appeal. The Ninth District Court of Appeals reversed the trial court and ruled that subject-matter jurisdiction over an administrative appeal is not invoked when the adverse party is served; rather, it is when the appeal is filed with the administrative agency. In the instant case, the City and the Commission are two distinct entities; the former is a party and the latter is the administrative agency. Despite Hoover's conjecture, the City is not the decision-issuing "administrative officer, agency; board, department, tribunal, commission, or other instrumentality (emphasis added)." R.C Revised Code requires timely service upon the administrative entity, which is the Commission. As underscored by this Honorable Court, "the purpose of R.C is to give timely notice of the appeal to the administrative agency." Welsh at

15 Moreover, "[T]iling does not occur until there is actual receipt by the agency within the time prescribed by R.C " Id. at 39. Hoover never claimed that he made, or even attempted, delivery of the notice upon the Commission. Rather, Hoover argued that notifying Safety Service Director Siwierka, a member of city administration, satisfied the requirements of R.C Siwierka, however, is the appointing authority whose initial disciplinary action against Hoover was reviewed by the Commission, which is the administrative agency (emphasis added). Of significance, there is no indication in the record that Siwierka was served with a notice of appeal, as observed by the Ninth District Court of Appeals. Hoover, 9th Dist. Lorain No. 13CA010364, 2014-Ohio-2227, 7, 10. Regardless, it is the Commission's August 8, 2012 decision that Hoover attempted to appeal to the trial court; therefore, it was the Commission that Hoover needed to notify in accordance with the requirements of R.C and R.C Moreover, the record does not support Hoover's assertions. The record contains no evidence to suggest that Hoover either attempted or obtained service upon the Safety Service Secretary. Furthem-iore, Hoover provides no support for his assertion that the Safety Service Director is the representative for the Commission. Additionally, the record merely reflects that Hoover notified the Elyria City Law Director of his Notice of Appeal, on or about August 29, 2012, via . Notwithstanding Hoover's allegation to the contrary, the City never filed an "amended appeal," and Hoover fails to cite to any part of the record in support of his contention. See App.R. 16(A)(7). Lastly, the record unambiguously reflects that the City maintained, and the Court of Appeals for the Ninth District ultimately determined, that the case of Frantz v. City of Wooster, was inapplicable to the instant matter. Frantz, 9th Dist. Wayne No. 10CA0014, 2011-Ohio

16 Finally, Hoover misconstrues this Honorable Court's holding in Welsh. Hoover correctly identifies that, under Welsh, an administrative appeal is perfected pursuant to R.C when a party files a notice of appeal with the clerk of courts, and the clerk of courts files a copy of the notice with the administrative agency within the time period prescribed by R.C Welsh at 13. Hoover errs, however, in his argument that Welsh held the appeal was perfected when, in that case, it was filed with the Clerk of Courts instead of the planning commission (emphasis added). Rather, this Honorable Court held that the administrative appeal was perfected when the clerk of courts delivered notice of the appeal to the commission, as instructed via praecipe by Welsh Development Company. Id. at 38, 40. Thus, filing upon the planning commission was timely obtained in accordance with the mandate of R.C Id at 31, 38. As set forth by this Court in Welsh, Our holding today does not minify the statutory requirements of perfecting an appeal... Nor does our holding today mean that we are adopting a new rule of substantial compliance with respect to R.C Id. at 33, 34. In Welsh, this Court only rejected the argument that the appellant must actually deliver the notice of appeal directly to the administrative agency; instead, an appellant may file a praecipe directing the clerk of courts to transmit the notice of appeal to an administrative agency, so that it may be deemed filed when it is received (emphasis added). Id. at 35, 38. As specifically stated in Welsh, "filing does not occur until there is actual receipt by the agency within the time prescribed by R.C " Id at 39. RESPONSE TO PROPOSITION OF LAW V Hoover mischaracterizes and misconstrues the City's Motion to Dismiss. The City filed its Motion to Dismiss, with the trial court, pursuant to Ohio Rule of Civil Procedure 12(B) for 13

17 lack of subject-matter jurisdiction. The City maintained that Hoover had failed to perfect his administrative appeal pursuant to the requirements of R.C and R.C , or alternatively, R.C and R.C The City included both statutory alternatives in its argument as Hoover failed to elect a statutory remedy at the time of his attempted filing. See generally, Hoover Notice of Appeal, Aug. 29, 2012; Hoover Trial Br., November 13, 2012; City Trial Br., December 12, 2012; City Appellate Br., Sept. 3, In addition, the City attached, in support of its brief, an affidavit of the Commission secretary. City Trial Mot. To Dismiss, Dec. 10, This Honorable Court has held that a trial court is not confined to allegations of the complaint when determining its subject-matter jurisdiction pursuant to a Civil Rule 12(B)(1) motion to dismiss, and "it may consider material pertinent to such inquiry without converting the motion into one for summary judgment." Southgate Development Corp. v. Columbia Gas, 48 Ohio St.2d 211, 211, 358 N.E.2d 526 (1976), Despite Hoover's allegation, neither the trial court nor Ninth District Court of Appeals impermissibly addressed the City's Civ.R. 12(B)(1) motion as a "speaking motion". Furthermore, Hoover never raised this issue before the courts below and inappropriately attempts to do so, now. As stated by this Court, "A party who fails to raise an argument in the court below waives his or her right to raise it here." Niskanen v. Giant Eagle, Inc., 122 Ohio St.3d 486, 2009-Ohio-3626, 912 N.E.2d 595 (2009), 34; State ex rel. Zollner v. Indus. Comm., 66 Ohio St.3d 276, 278, 611 N.E.2d 830 (1993). Although Hoover attempts to discount his failure to perfect the appeal as a mere technicality, the fact remains that jurisdiction over an administrative appeal does not vest in a common pleas court until and unless an appeal is perfected. See AT&T Commc'ns at 17. The record reflects that the trial court provided Hoover opportunity to file a written response to the 14

18 City's Civ.R. 12(B)(1) Motion to Dismiss; the record also reflects that Hoover filed a brief in opposition. In fact, the trial court denied the City's Motion to Dismiss. Trial Court J. Entry, Hoover v. Elyria, Lorain Co. Ct. Common Pleas, 12CV (Jan. 22, 2013). Consequently, Hoover's argument, that he had no opportunity to demonstrate timely filing or service upon the Commission, is without support in the record. Despite his assertion, Hoover did not attempt to supplement the record via the Ohio Rules of Appellate Procedure. Rather, Hoover made two separate attempts to introduce additional evidence into the record before the Ninth District Court of Appeals, pursuant to Local Rule 5(B)(3). The Ninth District properly denied Hoover's motions as attempts to introduce additional evidence into the proceedings. Mag. Order, March 25, 2014; Mag. Order, May 14, 2014, citing State v. Hill, 90 Ohio St.3d 571, 573, 740 N.E.2d 282 (2001). CONCLUSION For these foregoing reasons, this case does not involve matters of public or great general interest or any substantial constitutional question. Wherefore, the City of Elyria, Ohio respectfully requests that this Honorable Court decline jurisdiction over the instant matter. Respectfully submitted, SCOTT F. SERAZIN, # Law Director, City of Elyria By: K AMANDA R. DEERY, # Assistant Law Director, City of Elyria 131 Court Street, Suite 201 Elyria, Ohio (440)

19 CERTIFICATE OF SERVICE This is to certify that a copy of the foregoing Memorandum in Opposition to Jurisdiction was sent via regular U.S. Mail this 21 S-^ day of July, 2014, to Michael P. Harvey, Esq., 311 Northcliff Drive, Roclfy River, OH ^ _ Amanda R. Deery, # Assistant Law Director 16