Whaley v. Franklin Cty. Bd. of Commrs. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[Cite as Whaley v. Franklin Cty. Bd. of Commrs. , 92 Ohio St.3d
574, 2001-Ohio-1287]

WHALEY, APPELLANT, v. FRANKLIN COUNTY BOARD OF COMMISSIONERS,
APPELLEE.
[Cite as Whaley v. Franklin Cty. Bd. of Commrs. (2001), 92 Ohio St.3d 574.]
Political subdivision tort liability -- Defense and indemnification of employees --
R.C. 2744.07(A)(1), construed -- R.C. 2744.07(A)(1) requires that a
political subdivision provide legal defense for an employee whenever the
underlying complaint alleges or reasonably implies either that the employee
was not acting manifestly outside the scope of his or her employment or
official responsibilities.
(No. 00-1276 -- Submitted February 28, 2001 -- Decided August 22, 2001.)
APPEAL from the Court of Appeals for Franklin County, No. 99AP-570.
__________________

DOUGLAS, J. On August 12, 1997, plaintiff-appellant, Pat Whaley, a
Franklin County Deputy Sheriff, filed criminal charges in the Franklin County
Municipal Court against Kim Tignor. Tignor was arrested and jailed. The charges
against Tignor were subsequently dismissed at arraignment.

It appears that for a number of years prior to the filing of the criminal
charges, Tignor and appellant's family were friends. It also appears that the
relationship between Tignor and the Whaleys had become strained due to a financial
dispute.

On May 14, 1998, Tignor filed a complaint in the Court of Common Pleas of
Franklin County against the Franklin County Board of Commissioners, "the Franklin
County Local Government," and appellant, individually and as a Franklin County
Deputy Sheriff. The complaint alleged that appellant had caused an arrest warrant to
be issued and that Tignor had been improperly arrested and jailed. The complaint
also alleged that appellant "acted maliciously, wantonly, intentionally, and with
reckless disregard to [Tignor's] rights." Based upon these allegations, the complaint

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also charged that Franklin County government officials, through certain acts and
omissions, violated Tignor's constitutional rights by failing to properly train,
supervise, and discipline its police officers.

On July 29, 1998, appellant instituted this action pursuant to R.C.
2744.07(C)1 in the Court of Common Pleas of Franklin County against the Franklin
County Board of Commissioners, defendant-appellee. The county had refused to
provide appellant with a defense in the lawsuit filed by Tignor. In filing this action
for declaratory judgment, appellant sought an order to compel the county to provide
for his individual defense in the underlying Tignor action as mandated by R.C.
2744.07(A)(1).

On November 16, 1998, appellant moved for summary judgment. Appellee
failed to file a response to the motion. On March 31, 1999, appellee did, however,
file a Civ.R. 12(C) motion for judgment on the pleadings. Appellant submitted a
timely response.

On May 5, 1999, the trial court granted appellee's motion for judgment on the
pleadings. In its entry sustaining appellee's motion, the trial court, without
discussion, also overruled appellant's motion for summary judgment.

Appellant appealed the trial court's decision to the Court of Appeals for
Franklin County. In a decision rendered on June 8, 2000, the court of appeals
affirmed the trial court's judgment.

This cause is now before this court upon the allowance of a discretionary
appeal.

The primary issue presented for our review is whether Franklin County
wrongfully refused to provide appellant a defense against the claims brought against
him in the civil action filed by Tignor. Specifically, we must decide whether the

1.
R.C. 2744.07(C) provides:

"If a political subdivision refuses to provide an employee with a defense in a civil action or
proceeding as described in division (A)(1) of this section, the employee may file, in the court of
common pleas of the county in which the political subdivision is located, an action seeking a
determination as to the appropriateness of the refusal of the political subdivision to provide him with a
defense under that division."
2

January Term, 2001
complaint filed in the underlying Tignor lawsuit alleges sufficient facts to trigger the
county's duty to defend appellant pursuant to the dictates of R.C. 2744.07(A)(1).

R.C. 2744.07(A)(1) provides:

"Except as otherwise provided in this division, a political subdivision shall
provide for the defense of an employee, in any state or federal court, in any civil
action or proceeding to recover damages for injury, death, or loss to persons or
property allegedly caused by an act or omission of the employee in connection with a
governmental or proprietary function if the act or omission occurred or is alleged to
have occurred while the employee was acting in good faith and not manifestly outside
the scope of his employment or official responsibilities."

R.C. 2744.07(A)(1) imposes a duty on a political subdivision to provide a
defense for an employee in any civil action or proceeding to recover damages
allegedly caused by acts or omissions of the employee in connection with a
governmental or proprietary function. R.C. 2744.07(A)(1) sets forth a two-prong test
to determine when the political subdivision's duty to defend one of its employees is
triggered. The first prong of R.C. 2744.07(A)(1) provides that the duty to defend
attaches if the act or omission actually occurred while the employee was acting in
good faith and not manifestly outside the scope of his employment or official
responsibilities. The second prong of the test provides that the political subdivision's
statutory duty to defend is triggered if the act or omission is alleged to have occurred
while the employee was acting in good faith and not manifestly outside the scope of
his employment or official responsibilities.

The governing case law interpreting R.C. 2744.07(A)(1) is set forth in Rogers
v. Youngstown (1991), 61 Ohio St.3d 205, 574 N.E.2d 451. In Rogers, we held that
"[w]here a political subdivision wrongfully refuses to defend a suit commenced
against a police officer employed by the subdivision, and the officer subsequently
brings a declaratory judgment action against the subdivision to determine the
subdivision's obligation to defend, the political subdivision must pay the attorney
fees, expenses and costs incurred by the police officer, both in the action which the
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subdivision failed to defend and in the declaratory judgment action. (R.C.
2744.07[A][1], construed and applied.)" Id. at syllabus.

The parties do not dispute that Rogers is the seminal case for construing R.C.
2744.07(A)(1). Both parties also agree that our focus in this matter should be on the
second, or more specifically, the "allegation" prong of R.C. 2744.07(A)(1). Where
the dispute lies herein is in the application of Rogers to the facts of this matter and
whether the allegations giving rise to this action activate the duty on the part of the
county to provide a legal defense for appellant.

Appellant argues that the county was required to provide for his individual
defense because the acts or omissions attributed to appellant in the complaint filed in
the underlying Tignor lawsuit indicate that appellant was acting "not manifestly
outside the scope of his employment." Appellant contends that there are no
reasonable grounds to distinguish this matter from Rogers and that the trial court and
the court of appeals, in attempting to do so, misconstrued both R.C. 2744.07(A)(1)
and our decision in Rogers. We agree.
Rogers arose out of a physical altercation between Philip B. Rogers, a
Youngstown City Police Officer, and his sister. After the altercation, Rogers's sister
brought a federal lawsuit against Rogers, the city of Youngstown, and certain
Youngstown city officials, alleging violations of her civil rights. The city refused to
provide Rogers with legal counsel in the federal suit, concluding that Rogers's
actions surrounding the altercation with his sister were outside the scope of his
employment. Rogers subsequently filed a declaratory judgment action, pursuant to
R.C. 2744.07(C), seeking a determination as to the appropriateness of the city's
refusal to provide him with a defense as prescribed in R.C. 2744.07(A)(1).
In
Rogers, we stated that "R.C. 2744.07(A)(1) is clear and unequivocally sets
forth that `a political subdivision shall provide for the defense of an employee, in any
state or federal court * * * if the act or omission occurred or is alleged to have
occurred while the employee was acting in good faith and not manifestly outside the
scope of his [or her] employment.' (Emphasis added.) As can be gleaned, the duty
4

January Term, 2001
of a political subdivision to defend one of its employees may arise from a reading of
allegations contained in a complaint filed by a plaintiff who seeks redress from the
subdivision's employee." Id., 61 Ohio St.3d at 208, 574 N.E.2d at 453-454.

Relying on evidence obtained from an internal affairs investigation of Rogers
and on evidence secured during discovery in the federal civil rights lawsuit, the city
of Youngstown contended that R.C. 2744.07(A)(1) did not require the city to provide
Rogers with a legal defense. We did not agree with the city's contentions. In
reaching our determination we specifically noted that "[f]or the most part, the city
chooses not to focus on the allegations contained in the complaint itself, but, rather,
finds support for its position by dwelling upon matters that transpired prior to and
after the federal complaint was filed. In so doing, the city ignores the mandatory and
disjunctive language contained in R.C. 2744.07(A)(1)." Id. at 208, 574 N.E.2d at
453.

Based on the foregoing, we construe R.C. 2744.07(A)(1) as requiring that, in
evaluating the "allegation" prong of the statute, the test to be employed is a pleadings
test. In construing the same language of R.C. 2744.07(A)(1) in Rogers, we indicated
that whether a political subdivision's duty to defend arises may be determined "from
a reading of allegations contained in a complaint filed by a plaintiff who seeks redress
from the subdivision's employee." Id. at 208, 574 N.E.2d at 453-454. However,
neither R.C. 2744.07(A)(1) nor Rogers mandates that such a determination be made
solely upon consideration of the underlying complaint. Thus, a court making such a
determination may consider all pleadings2 filed in the underlying action.

The standard for evaluating the allegations in the underlying complaint is set
forth in R.C. 2744.07(A)(1). The plain language of R.C. 2744.07(A)(1) requires a
political subdivision to provide a defense for an employee "if the act or omission * *

2.
Civ.R. 7(A), "Pleadings," provides:

"There shall be a complaint and an answer; a reply to a counterclaim denominated as such; an
answer to a cross-claim, if the answer contains a cross-claim; a third-party complaint, if a person who
was not an original party is summoned under the provisions of Rule 14; and a third-party answer, if a
third-party complaint is served. No other pleading shall be allowed, except that the court may order a
reply to an answer or a third-party answer."
5

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* is alleged to have occurred while the employee was acting in good faith and not
manifestly outside the scope of his employment or official responsibilities."3 The
standard against which the allegations contained in the complaint are to be measured
is quite broad. In addition, that standard is clear and unambiguous. "Words and
phrases shall be read in context and construed according to the rules of grammar and
common usage. Words and phrases that have acquired a technical or particular
meaning, whether by legislative definition or otherwise, shall be construed
accordingly." R.C. 1.42. Webster's Third New International Dictionary (1986)
1375, defines the word "manifestly" as "plainly, obviously."

Moreover, there is a clear distinction drawn in R.C. 2744.07 between the
standards "not manifestly outside the scope" of employment in R.C. 2744.07(A)(1)
and "within the scope" of employment in R.C. 2744.07(A)(2). R.C. 2744.07(A)(2)
imposes a duty on a political subdivision in certain circumstances to indemnify an
employee for any judgment, other than punitive damages, obtained against the
employee for acts or omissions in connection with a governmental or proprietary
function. The standard for indemnification in R.C. 2744.07(A)(2) is whether the
employee acted in good faith and within the scope of his employment or official
responsibilities. By adopting two such varying standards, the General Assembly
clearly intended that the standard applicable to the duty to defend in R.C.
2744.07(A)(1) be much broader in scope than the standard applied to the duty to
indemnify in R.C. 2744.07(A)(2).

Accordingly, we hold that R.C. 2744.07(A)(1) requires a political subdivision
to provide a legal defense for an employee whenever the underlying complaint (or
subsequent pleadings) either alleges or reasonably implies that the employee was
acting not manifestly (i.e., plainly and obviously) outside the scope of his or her
employment or official responsibilities.

3.
Interpreting R.C. 2744.07(A)(1) in Rogers we determined 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." Rogers, 61 Ohio St.3d at 209, 574 N.E.2d at 454. Thus, our focus is
6

January Term, 2001

We now turn our attention to the allegations raised in the underlying
complaint. The plaintiff in the underlying action, Kim Tignor, asserts in the
introductory section of her complaint that "[t]his is an action for a declaratory
judgment and money damages for a violation of plaintiff's constitutional rights by the
defendants [Franklin County Board Commissioners, Franklin County Local
Government, and Deputy Pat Whaley] under 42 U.S.C. § 1983 and also for malicious
prosecution, false arrest, and false imprisonment." In paragraph three of the
complaint, Tignor averred that "[d]efendant Whaley is and was, at all times relevant
hereto, employed as a deputy of the Franklin County Sheriff's Department and acted
under color of state law. He is being sued in [his] individual and official capacities."
Tignor further alleged that "Whaley filed criminal charges against plaintiff in the
Franklin County Municipal Court" and that "Whaley knew that there was no
justification for the charges." In paragraph six Tignor claims that "Whaley caused an
arrest warrant to be issued and had the plaintiff arrested and [plaintiff] spent time in
custody and also in jail." Tignor also alleged, in paragraphs fifteen and sixteen, that
"Whaley maliciously prosecuted the plaintiff" and "violated the plaintiff's clearly
established federal constitutional rights under the Fourth Amendment to the United
States Constitution." Moreover, Tignor alleged in paragraphs eighteen through
twenty that "the policy making officials of defendant Franklin County Local
Government knew, or, in the exercise of reasonable care, should have known that its
officers, officials, and employees, such as defendant [Whaley] herein, had engaged in
a pattern and practice of misconduct including, but not limited to, illegal arrests and
filing bogus charges, all in violation of constitutional rights of persons in the [sic]
Franklin County, Ohio," and that "[d]espite knowledge of such a pattern and practice
of illegality, defendant Franklin County Local Government has failed to properly
investigate those instances of illegality and to supervise, train, and discipline its
officers, officials, and employees. * * * Such a failure by defendant Franklin County

solely on whether the acts or omissions are alleged to have occurred while the employee was acting not
manifestly outside the scope of his employment or official responsibilities.
7

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Local Government to break the pattern and practice of illegality encouraged the
individual defendant herein to believe that he could violate plaintiff's constitutional
right with impunity and with the explicit and tacit approval of defendant Franklin
County Local Government."

After weighing the allegations contained in the underlying complaint against
the appropriate standard, we conclude that the complaint filed by Kim Tignor
contains sufficient allegations that appellant committed the relevant acts and/or
omissions while he was acting not manifestly outside the scope of his employment or
official responsibilities. The complaint, judged in its entirety, avers that appellant
was acting at all relevant times in his official capacity as a Franklin County Deputy.
Furthermore, the essence of Tignor's complaint alleges violations of her
constitutional rights premised upon claims of false arrest, false imprisonment, and
malicious prosecution. The allegations raised in the complaint clearly attempt to
impute the acts of appellant to the county, implying, of course, that appellant was
acting within the scope of his employment or, at a minimum, not manifestly outside
the scope. Therefore, we conclude that the trial court and the court of appeals erred
in determining that the county was not obligated as a matter of law to provide for
appellant's defense in the underlying Tignor lawsuit.

Appellee has gone to great lengths to distinguish the instant matter from our
decision in Rogers. We recognize that a determination whether a political
subdivision owes a duty to defend an employee is a fact-sensitive issue. Thus,
whether the duty to defend is triggered should not turn solely on a comparison in this
and other cases with the allegations made in Rogers. Instead, the primary focus
should be on whether the allegations raised in the pleadings of the underlying action
meet the standard set forth in R.C. 2744.07(A)(1). In any event, appellee's argument
that Rogers is distinguishable from the case at bar is not well taken.

Contrary to appellee's assertion, neither the personal nature of the underlying
dispute between Tignor and appellant nor the perceived malicious and intentional
tone of the acts alleged in the underlying complaint is enough to remove this matter
8

January Term, 2001
from the ambit of Rogers and R.C. 2744.07(A)(1). The facts of this matter are
essentially indistinguishable from the facts of Rogers. In Rogers, as here, there were
allegations of a personal dispute. The plaintiff in the underlying action of Rogers
was, in fact, the sister of Officer Rogers. She alleged that Officer Rogers arrived at
her home, "began verbally abusing and threatening [her] and accused [her] of
spreading rumors about him." Officer Rogers then allegedly dragged his sister into
her house, and, in front of their mother and another family member, physically
battered her. Thus, contrary to the court of appeals' assertion, "the purely personal
nature of the employee's conduct" was in fact apparent from a review of the
underlying pleadings in Rogers.

We also reject appellee's contention that the use of force by Officer Rogers
removes this matter from the purview of Rogers and R.C. 2744.07(A)(1). It is
appellee's assertion that law enforcement officers must routinely use force to carry
out their sworn duties, thus bringing such acts of the officer, in some instances,
within the scope of employment. In Rogers, however, there were no allegations
raised in the underlying complaint or in the answers to the underlying complaint that
Officer Rogers was attempting to effectuate a lawful arrest during the physical
altercation with his sister.4 Therefore, it is quite apparent that the use of force by the
police officer in Rogers had no effect on our decision therein.

Finally, we find it necessary to discuss the trial court's decision to grant a
Civ.R. 12(C) motion for judgment on the pleadings in this action. Civ.R. 12(C)
provides that "[a]fter the pleadings are closed but within such time as not to delay the
trial, any party may move for judgment on the pleadings."

A Civ.R. 12(C) motion for judgment on the pleadings has been characterized
as a belated Civ.R. 12(B)(6) motion for failure to state a claim upon which relief can
be granted. See Nelson v. Pleasant (1991), 73 Ohio App.3d 479, 482, 597 N.E.2d
1137, 1139, and Gawloski v. Miller Brewing Co. (1994), 96 Ohio App.3d 160, 163,

4.
The city of Youngstown denied that Officer Rogers was acting within the scope of his
employment but did allege, as an alternate defense, that Rogers acted in self-defense.
9

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644 N.E.2d 731, 733. In fact, in State ex rel. Midwest Pride IV, Inc. v. Pontious
(1996), 75 Ohio St.3d 565, 569-570, 664 N.E.2d 931, 936, this court noted the
similarities between the two motions. However, we also recognized that "Civ.R.
12(C) motions are specifically for resolving questions of law." Id. at 570, 664 N.E.2d
at 936.

When considering a defendant's Civ.R. 12(C) motion for judgment on the
pleadings, the trial court is required to construe as true all the material allegations in
the complaint, with all reasonable inferences to be drawn therefrom, in favor of the
nonmoving party. Peterson v. Teodosio (1973), 34 Ohio St.2d 161, 165-166, 63
O.O.2d 262, 264, 297 N.E.2d 113, 117. An action brought pursuant to R.C.
2744.07(C) seeks a determination as to the appropriateness of the political
subdivision's refusal to provide a defense, and consideration of the allegation prong
of R.C. 2744.07(A)(1) requires an evaluation of the allegations raised in the
underlying pleadings. Rogers, 61 Ohio St.3d at 208, 574 N.E.2d at 453-454.
Because appellee is the party that submitted the motion for judgment on the
pleadings, under the appropriate standard for entering judgment on a Civ.R. 12(C)
motion, appellant was entitled to have all the material allegations of the complaint,
together with all reasonable inferences drawn therefrom, construed in his favor.
Peterson, supra.

In reaching its decision, we find that the trial court clearly disregarded the
appropriate standard required pursuant to Civ.R. 12(C) and Peterson. For instance,
the trial court stated that "while [the underlying Tignor complaint] alleges that
Whaley was `employed as a deputy' and [that] he acted `under color of state [law],'
this does not translate into `acting within the scope of employment.' " As can be
gleaned from the foregoing, in addition to applying the wrong standard pursuant to
R.C. 2744.07(A)(1), the trial court failed to properly weigh the allegations set forth
above in the light most favorable to appellant. Furthermore, contrary to the opinion
of the court of appeals, we find that the trial court committed procedural error by
considering matters that were not raised in any pleading filed in this action and that,
10

January Term, 2001
in fact, were not contained anywhere in the record. Specifically, the trial court based
its decision in part on the unalleged facts that, unlike the officer in Rogers, appellant
was not in uniform, not on duty, and did not arrive in a squad car.

Moreover, and in any event, this court stated in Peterson that "Civ.R. 12(C) is
a continuation of the former statutory practice and presents only questions of law, and
determination of the motion for judgment on the pleadings is restricted solely to the
allegations in the pleadings." Id., 34 Ohio St.2d at 166, 63 O.O.2d at 264, 297
N.E.2d at 117, citing with approval Conant v. Johnson (1964), 1 Ohio App.2d 133,
30 O.O.2d 157, 204 N.E.2d 100. Thus, despite recognizing the proper scope required
for deciding a Civ.R. 12(C) motion for judgment on the pleadings, the trial court
apparently gave no consideration at all to the allegations raised by appellant in his
complaint for declaratory judgment.5 In fact, far from construing the allegations
contained in appellant's complaint in his favor, the trial court merely compared the
allegations contained in Tignor's complaint with the allegations raised in the
underlying complaint in Rogers.

Based upon the foregoing, we reverse the judgment of the court of appeals
and remand this matter to the trial court with instructions to consider appellant's
motion for summary judgment consistent with Rogers v. Youngstown. Further, in the
event that appellant's motion is granted, we instruct the trial court to conduct a
hearing, pursuant to Rogers, in order to determine the amount of reasonable attorney
fees, expenses, and costs incurred by appellant.
Judgment reversed
and cause remanded.

RESNICK, F.E. SWEENEY and PFEIFER, JJ., concur.

MOYER, C.J., COOK and LUNDBERG STRATTON, JJ., dissent.
__________________

5.
We raise the issue without deciding whether it was appropriate for the trial court, in
adjudicating a Civ.R. 12(C) motion for judgment on the pleadings, to take into consideration the
underlying Tignor complaint. See Peterson v. Teodosio (1973), 34 Ohio St.2d 161, 166, 63 O.O.2d
11

SUPREME COURT OF OHIO

MOYER, C.J., dissenting. The majority today holds that "R.C. 2744.07(A)(1)
requires a political subdivision to provide a legal defense for an employee whenever
the underlying complaint (or subsequent pleadings) either alleges or reasonably
implies that the employee was acting not manifestly (i.e., plainly and obviously)
outside the scope of his employment or official responsibilities." As does the
majority today, the majority in Rogers held that the determinative test is not whether
the act was "alleged to have occurred while the employee was acting in good faith
and not manifestly outside the scope of his employment or official responsibilities,"
but only whether the act was alleged to have occurred while the employee was acting
"not manifestly outside the scope of his employment or official responsibilities."
(Emphasis added.) Rogers v. Youngstown (1991), 61 Ohio St.3d 205, 208-209, 574
N.E.2d 451, 453, quoting R.C. 2744.07(A)(1). In Rogers, I joined Justice Wright's
dissent, which argued that this reading of R.C. 2744.07(A)(1) requires political
subdivisions to defend an employee when that employee acts in bad faith, and that
this is poor public policy and not intended by the General Assembly. Id. at 212, 574
N.E.2d at 456.

While I continue in my belief that the good faith requirement in R.C.
2744.07(A)(1) must not be ignored, I believe that the case at bar can be disposed of
under the "not manifestly outside the scope of employment" prong of the test. The
underlying complaint in this case does not allege or even reasonably imply that
Whaley was acting not manifestly outside the scope of his employment.

The complaint clearly demonstrates the personal and nonemployment-related
nature of Whaley's conduct. In essence, the complaint alleges that Whaley filed
criminal charges against Tignor without justification and acted maliciously,
wantonly, and intentionally and with reckless disregard of her rights, that he caused
her to be arrested, and that he maliciously prosecuted her. The filing of criminal
charges, causing an arrest warrant to be issued, and maliciously prosecuting another

262, 264, 297 N.E.2d 113, 117. See, also, 4 Harper & Solimine, Anderson's Ohio Civil Practice (1996)
373, Section 152.15.
12

January Term, 2001
were all actions of a private citizen. See R.C. 2935.09. Nowhere in the pleadings
does Tignor allege that Whaley used his position as deputy of the Franklin County
Sheriff's Department to carry out these acts; indeed, the only allegation that Whaley
acted in his official capacity is alleged in paragraph three of the complaint, which
alleges that "[d]efendant Whaley is and was, at all times relevant hereto, employed as
a deputy of the Franklin County Sheriff's Department and acted under color of state
law. He is being sued in [his] individual and official capacities."

However, R.C. 2744.07(A)(1) focuses quite appropriately on whether "the act
or omission occurred or is alleged to have occurred while the employee was acting
in good faith and not manifestly outside the scope of his employment." (Emphasis
added.) Thus, the statute requires us to focus on the acts that are alleged to have
occurred, not on the characterization of the defendant as alleged by the plaintiff. In
this case, the acts that were alleged to have occurred are all acts of a private citizen,
and are not dependent upon, nor are they alleged to have been dependent upon,
Whaley's status as a deputy sheriff. It is an inappropriate use of public funds to
provide legal counsel to a public employee where the conduct for which he is sued is
in no way related to his public employment. The precedent established by the
majority does not bode well for the responsible allocation of tax revenues.

I urge the General Assembly to amend R.C. 2744.07 to prevent the depletion
of public funds of political subdivisions for such nonpublic purposes as sanctioned in
this case. For these reasons, I respectfully dissent.

COOK and LUNDBERG STRATTON, JJ., concur in the foregoing dissenting
opinion.
__________________

Hunter, Carnahan & Shoub, Robert R. Byard and Russell E. Carnahan, for
appellant.
Ron
O'Brien, Franklin County Prosecuting Attorney, George Speaks and
Harland H. Hale, Assistant Prosecuting Attorneys, for appellee.
13

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Paul
Cox, urging reversal for amicus curiae Fraternal Order of Police Ohio
Labor Council, Inc.

Barry M. Byron, Stephen L. Byron and John Gotherman, urging affirmance
for amici curiae Ohio Municipal League and County Commissioners' Association of
Ohio.
__________________
14