A Columbus attorney handling the city’s response to a lawsuit by a former city employee told The Times-Gazette previously that the city might file a motion for reconsideration on an appeals judgment against the city, and on Friday that application was filed.
An application for reconsideration was filed Friday asking the Fourth District Court of Appeals to revisit its decision in favor of former Zink administration assistant Kirby Ellison and allow the city to make additional arguments that are “black letter law,” according to the application.
The appeals court had ruled 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 along with law partner Jonathan Downes, argued in his application 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 argues are on point in the Ellison case.
Piersall argues that the issue to be considered “is whether former Safety Service Director (Ralph) Holt possessed authority to make appointments to the unclassified service by virture of the power vested in him by Hillsboro Civil Service Rule 5-01(A) (which) allows each principal appointive officers of the City of Hillsboro (which Holt clearly was as City Safety Service Director) to make up to two unclassified appointments.” Piersall also requests an oral argument before the court.
The application for reconsideration is in response to a judgment against the city based on Ellison’s dismissal when the Hastings administration took over in January 2012.
Court records show that 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.”
When the appeals court decision was handed down earlier this month, Henry Arnett, Ellison’s Columbus attorney, said that the court affirmed what Ellison has always claimed. He said he hoped that after two court decisions the city would accept the judgment. He said that in addition to the back pay and benefits, Ellison is interested in having her employment restored, as the courts have also ordered in their judgments.
Hillsboro city Auditor Gary Lewis previously told The Times-Gazette that the back pay and benefits could amount to about $225,000.
Reach Gary Abernathy at 937-393-3456 or on Twitter @abernathygary.