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Law Authorizing Removal of County Treasurer Without Complaint and Hearing Ruled Unconstitutional

Court Orders Reinstatement of Former Stark County Treasurer

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2010-1570.  State ex rel. Zeigler v. Zumbar, Slip Opinion No. 2011-Ohio-2939.
In Quo Warranto.  Writ granted.
O'Connor, C.J., and Lundberg Stratton, Lanzinger, Cupp, and McGee Brown, JJ., concur.
Pfeifer and O'Donnell, JJ., dissent.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2011/2011-Ohio-2939.pdf

Video clip View oral argument video of this case.

(June 23, 2011) The Supreme Court of Ohio ruled today that R.C. 321.38, which  authorizes a county treasurer’s removal from office  “immediately on the institution of a suit,” is unconstitutional on its face because it  conflicts with Sect. 38 Art. II of the Ohio constitution that requires a complaint and hearing before an officer is removed.  Based on that determination, the Court issued a writ of quo warranto that removes the current Stark County Treasurer, Alexander A. Zumbar, and reinstates ousted Gary D. Zeigler to the remainder of his elected 2008 term. The Court’s 5-2 majority opinion was authored by Justice Judith Ann Lanzinger.

Zeigler was elected Stark County treasurer in November 2008.  During Zeigler’s tenure as treasurer, his chief deputy, Vincent Frustaci, was alleged to have stolen up to $2,964,560 from the county treasury.  Upon notice of this allegation, the state auditor initiated a special audit of the treasurer’s office. In the special audit report, the state auditor found a shortage of $2,964,560 in the county treasurer’s depository balance due to unauthorized withdrawals.  On June 25, 2010, Frustaci pleaded guilty to charges filed against him in the United States District Court for the Northern District of Ohio alleging that he had stolen $2,464,989 from the Stark County treasurer’s office.

In July 2010, the Stark County auditor requested that the county’s prosecuting attorney institute a suit against Zeigler pursuant to R.C. 321.37 to recover the stolen funds. The prosecutor then sent a letter to Zeigler, who as county treasurer was personally liable by statute for any deficit amount. The prosecutor noted that although there was no evidence of Zeigler’s personal culpability, he was liable by statute for the deficit of $ 1.5 million that would remain after all other sources of repayment had been exhausted. The letter advised Zeigler that a civil suit would be considered if he failed or refused to respond.

Zeigler did not respond.  On July 28, a complaint was filed in the Summit County Court of Common Pleas in the name of the office of the Stark County treasurer, the state of Ohio, and the board of commissioners for recovery of the money from Frustaci, Zeigler, and sureties on bonds given by Zeigler for his term of office as county treasurer. The board of commissioners issued notices for special meetings to be held on August 2 and 12, 2010, “[t]o consider the status of the Treasurer’s Office in light of [the] pending action by the Stark County Prosecutor pursuant to [R.C.] 321.37.”
The commissioners sent Zeigler a letter stating that they had scheduled a meeting for Aug. 2 to “discuss the treasurer’s office.”  Zeigler anticipated that the commissioners intended to use R.C. 321.38, which provides that “(i)mmediately on the institution of the suit mentioned in R.C. 321.37, the board of county commissioners may remove such county treasurer and appoint some person to fill the vacancy created.”

Zeigler obtained a temporary restraining order and filed suit in common pleas court seeking a declaratory judgment that R.C. 321.38 was unconstitutional and an injunction barring the commissioners from removing him from office pursuant to that statute.  The board of commissioners adopted a resolution to hold a special meeting and hearing on August 23 to “consider the Special Audit Report and the Complaint,” “determine whether Gary D. Zeigler, Stark County Treasurer, has failed to make a settlement or to pay over money as prescribed by law,” and “determine whether the Board should remove such Stark County Treasurer pursuant to R.C. 321.38.” 

On the date of the commissioners’ scheduled hearing, the common pleas court entered a judgment declaring R.C. 321.38 to be constitutional and denying Zeigler injunctive relief.  That same day, the commissioners conducted an evidentiary hearing, of which Zeigler had been given notice but which he declined to attend on the basis that he believed the statute and the action of the commissioners to be unconstitutional. At the conclusion of the evidentiary hearing, relying on R.C. 321.38, the commissioners removed Zeigler from office and appointed an acting treasurer. 

Zeigler then filed an original action asking the Supreme Court to issue a writ of quo warranto reinstating him to the office of Stark County Treasurer.

In today’s majority opinion granting the requested writ, Justice Lanzinger agreed with Zeigler’s argument that because R.C. 321.38 allows a county treasurer to be removed from office with no requirement of a complaint or hearing, it is facially contrary to Section 38, Article II of the Ohio Constitution.

She wrote: “Section 38, Article II of the Ohio Constitution ... speaks plainly about the laws to be enacted for the ‘prompt removal from office’ of officers ‘upon complaint and hearing,’ in addition to impeachment or other removal methods authorized by the Constitution: ‘Laws shall be passed providing for the prompt removal from office, upon complaint and hearing, of all officers, including state officers, judges and members of the general assembly, for any misconduct involving moral turpitude or for other cause provided by law ...’ 

“R.C. 321.38 is incompatible with Section 38, Article II of the Ohio Constitution because the statute does not require a complaint and hearing before a board of county commissioners is authorized to remove a county treasurer. To the contrary, R.C. 321.38 purports to give authority to the board to remove the county treasurer immediately upon institution of the R.C. 321.37 recoupment suit. There is no opportunity for a complaint and hearing, much less a decision on the merits of the treasurer’s removal in the R.C. 321.37 case.”

Justice Lanzinger also pointed out that, “contrary to the Constitution’s requirement of ‘misconduct involving moral turpitude’ or ‘other cause provided by law,’ R.C. 321.38 ‘does not require or even contemplate any finding of moral turpitude or embezzlement or any other human failing.’ ... In its August 23 decision, the board of commissioners specifically concluded that Zeigler had ‘committed no crime or malfeasance.’  Removal from office under R.C. 321.38 thus is not justified by ‘clearly substantial reasons and conclusions that [the treasurer’s] further presence in office would be harmful to the public welfare.’”

While acknowledging that in this case the Stark County commissioners attempted to remedy the statute’s due process deficiencies by going through what they characterized as a notice and hearing process before they removed Zeigler, Justice Lanzinger concluded that the process did not comply with Section 38, Article II and therefore “Zeigler has established that he is entitled to the office of county treasurer and that respondent is unlawfully holding that office.”  Justice Lanzinger emphasized that although Zumbar was elected to the office of treasurer in November 2010, that midterm election occurred only because of Zeigler’s improper removal. “Because we hold today that R.C. 321.38 is unconstitutional, the removal of Zeigler violated Section 38, Article II of the Ohio Constitution, and he is entitled to serve the remainder of his elected term, set to expire in September 2013.”

The majority opinion was joined by Chief Justice Maureen O’Connor and Justices Evelyn Lundberg Stratton, Robert R. Cupp and Yvette McGee Brown.

Justice Paul E. Pfeifer entered a dissenting opinion, joined by Justice Terrence O’Donnell, stating that he would deny the writ sought by Zeigler because Zeigler acquiesced in the commissioners’ action  by vacating the treasurer’s office, and did not take timely legal steps to prevent the November 2010 midterm election in which Zumbar was lawfully voted into that office by the citizens of Stark County.

He wrote: “The focus of a quo warranto case needs to be the officeholder, not the former officeholder.  ... Ziegler left his office, creating a vacancy. Ziegler did not attempt to prohibit the election from occurring that would provide his permanent replacement. He does not allege any impropriety in the nomination of Zumbar, nor in the election itself. He does not allege that Zumbar is somehow deficient in his qualification for office. Zumbar lawfully holds office. Whether Ziegler was improperly removed from office is a matter between him and the county commissioners. It is not something solvable by a writ of quo warranto. The world has moved on.”

Contacts
Matthew W. Nakon, 440.930.8051, for Gary Zeigler.

Ross Rhodes, 330.451.7863, for the Stark County Board of Commissioners.