[Cite as Curren v. Greenfield, 2012-Ohio-4688.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

HIGHLAND COUNTY 

CONRAD A. CURREN, : 

 : 

Plaintiff-Appellant, : Case No. 11CA30 

 : 

vs. : Released: October 1, 2012 

: 

CITY OF GREENFIELD, HARVEY : DECISION AND JUDGMENT

L. EVERHART, EARLENE SCOTT, : ENTRY

JOHN N. WAGONER, AND : 

CHARLES V. BOWMAN, : 

 : 

Defendants-Appellees. : 

_____________________________________________________________ 

APPEARANCES:

Jon C. Hapner, Hapner & Hapner, Hillsboro, Ohio, for Appellant. 

Lawrence E. Barbiere, Schroeder, Maundrell, Barbiere & Powers, Mason, 

Ohio, for Appellees. 

_____________________________________________________________ 

McFarland, J.: 

{¶1} Appellant, Conrad Curren, appeals the trial court’s grant of 

summary judgment in favor of Appellees, City of Greenfield, Harvey 

Everhart, Earlene Scott, John Wagoner and Charles Bowman. On appeal, 

Appellant raises a single assignment of error, contending that the trial court 

erred when it granted Appellees’ motion for summary judgment. After 

construing the record and all inferences therefrom in Appellant’s favor, we 

find there are no genuine issues of material fact, Appellees are entitled to 
Highland App. No. 11CA30 2

judgment as a matter of law, and reasonable minds can come to but one 

conclusion, and that conclusion is adverse to Appellant. Accordingly, we 

overrule Appellant’s sole assignment of error and affirm the judgment of the 

trial court. 

FACTS 

{¶2} After adopting a city manager form of government, on 

September 18, 2008, the city of Greenfield adopted Ordinance 26-08 

appointing Appellant as law director of the city of Greenfield for a period of 

one year. Prior to this, Appellant was the duly elected and acting law 

director for the city. Ordinance 26-08 provided that Appellant was being 

appointed to an unclassified position in the non-bargaining unit. 

{¶3} On October 1 and November 4, 2008, city council took formal 

action to terminate Appellant’s employment as law director. This is 

reflected in meeting minutes from the public council hearings that were held, 

and it also appears in a resolution made during a public hearing. 

Subsequently, on November 10, 2008, the city of Greenfield passed 

Ordinance 29-08, which terminated Appellant from the position of law 

director, effective immediately. Appellant contends that the actions of 

council were improperly performed during executive session and in violation 

of Sunshine Law. In the interim, on October 19, 2008, members of city 
Highland App. No. 11CA30 3

council also filed a complaint with the Disciplinary Counsel regarding 

Appellant’s actions as law director. Appellant claims that one of the 

signatures on the report which purported to be that of council member 

Bernard Hester was forged. 

{¶4} Appellant filed a complaint against Appellees herein on January 

3, 2011, and then filed an amended complaint on January 12, 2011.1

 

Appellant’s amended complaint alleged that he was wrongfully terminated, 

and claimed that Appellees had fraudulently conspired against him in his 

termination, as well as the report to the Disciplinary Counsel. Appellant’s 

complaint also alleged violations of Ohio’s Open Meetings Act, commonly 

referred to as the Sunshine Law, under R.C. 121.22. Appellees filed their 

answer denying the allegations contained in Appellant’s amended complaint 

on January 28, 2011. 

{¶5} Appellees moved the court for summary judgment on June 30, 

2011, which the trial court denied on August 10, 2011. As a result, 

Appellees filed a notice of appeal with this Court on August 11, 2011. 

However, by agreement of the parties and at the request of the trial court, the 

appeal was dismissed and Appellees re-briefed and re-filed their motion for 

 

1

 A review of the trial court’s decision and Appellant’s brief indicates that Appellant originally filed a 

complaint in 2009, then voluntarily dismissed it pursuant to Civ.R. 41(A) and later re-filed it in 2011. 

However, as Appellant has not provided us with the record from the earlier filing, we have not been able to 

verify that on appeal. 
Highland App. No. 11CA30 4

summary judgment. The trial court issued a decision on October 25, 2011, 

granting summary judgment to Appellees, and then issued its entry on 

November 15, 2011. It is from this entry that Appellant now brings his 

timely appeal, setting forth a single assignment of error for our review. 

ASSIGNMENT OF ERROR 

“I. THE TRIAL COURT ERRED IN GRANTING A SUMMARY 

JUDGMENT IN THIS CAUSE.” 

ISSUES 

1. “Does the plaintiff hold office for one year, as the ordinance ordained, 

since said ordinance was not repealed?” 

2. “Did any ground exist for termination in that differences of opinion 

existed as to law, and such differences are not breaches of faith or 

violation of fiduciary duties[?]” 

3. “Would the members of Council have immunity if there is a lack of 

good faith?” 

4. “The issue of the Sunshine Law was not terminated by the statute of 

limitations, and does a violation of the Sunshine Law invalidate the 

acts of Council?” 

SUMMARY JUDGMENT STANDARD OF REVIEW 

{¶6} When reviewing a trial court's decision on a motion for summary 

judgment, we conduct a de novo review governed by the standard set forth 

in Civ.R. 56. Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833 

N.E.2d 712, ¶ 8. Summary judgment is appropriate when the movant has 

established (1) that there is no genuine issue of material fact, (2) that 
Highland App. No. 11CA30 5

reasonable minds can come to but one conclusion, and that conclusion is 

adverse to the nonmoving party, with the evidence against that party being 

construed most strongly in its favor, and (3) that the moving party is entitled 

to judgment as a matter of law. Bostic v. Connor, 37 Ohio St.3d 144, 146, 

524 N.E.2d 881, (1988); citing Harless v. Willis Day Warehousing Co., 54 

Ohio St.2d 64, 66, 375 N.E.2d 46, (1978); See also, Civ.R. 56(C). 

{¶7} The burden of showing that no genuine issue of material fact 

exists falls upon the party who moves for summary judgment. Dresher v. 

Burt, 75 Ohio St.3d 280, 294, 662 N.E.2d 264, (1996). To meet its burden, 

the moving party must specifically refer to “the pleadings, depositions, 

answers to interrogatories, written admissions, affidavits, transcripts of 

evidence, and written stipulations of fact, if any, timely filed in the action,” 

that affirmatively demonstrate that the nonmoving party has no evidence to 

support the nonmoving party's claims. Civ.R. 56(C); See also Hansen v. 

Wal–Mart Stores, Inc., 4th Dist. No. 07CA2990, 2008-Ohio-2477, ¶ 8. Once 

the movant supports the motion with appropriate evidentiary materials, the 

nonmoving party “may not rest upon the mere allegations or denials of the 

party's pleadings, but the party's response, by affidavit or as otherwise 

provided in this rule, must set forth specific facts showing that there is a 
Highland App. No. 11CA30 6

genuine issue for trial.” Civ.R. 56(E). “If the party does not so respond, 

summary judgment, if appropriate, shall be entered against the party.” Id. 

{¶8} Further, the present case involves questions, which are discussed 

more fully below, as to whether certain affidavits offered by Appellant were 

properly stricken. “For evidentiary material attached to a summary 

judgment motion to be considered, the evidence must be admissible at trial.” 

See Civ.R. 56(E) and Pennisten v. Noel, 4th Dist. No. 01CA669, 2002-Ohio686, at *2. Although we conduct a de novo review of the trial court's 

decision to grant summary judgment, we review the court's rulings on the 

admissibility of evidence for an abuse of discretion. Lawson v. Y.D. Song, 

M.D., Inc., 4th Dist. No. 97 CA 2480, 1997 WL 596293, *3 (Sept. 23, 1997); 

See also, State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343, at paragraph two 

of the syllabus (1987). The term “abuse of discretion” implies that the 

court's attitude is unreasonable, arbitrary, or unconscionable. State v. Adams, 

62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). When applying the abuseof-discretion standard, a reviewing court may not substitute its judgment for 

that of the trial court. Berk v. Matthews, 53 Ohio St.3d 161, 169, 559 N.E.2d 

1301 (1990). 

{¶9} Civ.R. 56(E) states: “Supporting and opposing affidavits shall be 

made on personal knowledge, shall set forth such facts as would be 
Highland App. No. 11CA30 7

admissible in evidence, and shall show affirmatively that the affiant is 

competent to testify to the matters stated in the affidavit.” “Personal 

knowledge” is “ ‘[k]nowledge gained through firsthand observation or 

experience, as distinguished from a belief based on what someone else has 

said.’ ” Bonacorsi v. Wheeling & Lake Erie Ry. Co., 95 Ohio St.3d 314, 

2002-Ohio-2220, 767 N.E.2d 707, ¶ 26, quoting Black's Law Dictionary (7th 

Ed.Rev. 1999) 875. It is “ ‘knowledge of factual truth which does not 

depend on outside information or hearsay.’ ” Residential Funding Co., 

L.L.C. v. Thorne, 6th Dist. No. L-09-1324, 2010-Ohio-4271, ¶ 64, quoting 

Modon v. Cleveland, 9th Dist. No. 2945-M, 1999 WL 1260318, at *2 (Dec. 

22, 1999). 

ISSUE 4 

{¶10} For ease of analysis, we address Appellant’s fourth sub issue 

out of order. In his fourth sub issue raised under his sole assignment of 

error, Appellant contends that the issue of the Sunshine Law2

 was not 

terminated, and questions whether a violation of the Sunshine Law 

invalidates acts of Council. A review of the record reveals that the trial 

court granted summary judgment to Appellees on all issues related to 

Sunshine Law violations. Particularly, the trial court determined that 

 

2

 Appellant’s use of the term “Sunshine Law” is a reference to Ohio’s Open Meetings Act, as contained in 

R.C. 121.22. 
Highland App. No. 11CA30 8

Appellant’s claims based upon violations of the Sunshine Law were barred 

by the statute of limitations. For the following reasons, we agree. 

{¶11} R.C. 121.22 governs meetings of public bodies and provides in 

section (I)(1) that an “action shall be brought within two years after the date 

of the alleged violation or threatened violation.” See also Mollette v. 

Portsmouth City Council, 179 Ohio App.3d 455, 2008-Ohio-6342, 902 

N.E.2d 515, ¶ 25 (4th Dist.). Appellant alleges a violation of the Sunshine 

Law occurred in connection with his termination from the position of law 

director during a council meeting in October of 2008. Appellant contends 

that he filed a complaint against Appellees in February 2009 which claimed 

a violation of the Sunshine Law. Appellant further represents that the 2009 

complaint was dismissed on a Civ.R. 41(A) motion on January 4, 2010. The 

present action was not initiated until January 3, 2011. An amended 

complaint was subsequently filed on January 12, 2011. Both of the 2011 

filings asserted Sunshine Law violations. 

{¶12} In granting summary judgment to Appellees on Appellant’s 

Sunshine Law claim, the trial court indicated that Appellant’s original 

complaint filed in 2009 did not raise the issue of the Sunshine Law violation 

and that the time expired before the filing of the amended complaint, per 

R.C. 121.22(I)(1). As such, the trial court determined that the statute of 
Highland App. No. 11CA30 9

limitations bars any issues regarding the Sunshine Law. After thoroughly 

reviewing the record on appeal, we have been unable to locate a copy of the 

2009 complaint. The documents transmitted to this Court begin with the 

filing of the January 3, 2011, complaint. 

{¶13} We do not have the record from the original complaint filed in 

2009. “ ‘Pursuant to App.R. 9(A), the record on appeal must contain “[t]he 

original papers and exhibits thereto filed in the trial court, the transcript of 

proceedings, if any, including exhibits, and a certified copy of the docket 

and journal entries prepared by the clerk of the trial court[.]” ’ ” State v. 

Bailey, 4th Dist. No. 09CA3287, 2010-Ohio-2239, ¶ 57; citing State v. 

Dalton, 9th Dist. No. 09CA009589, 2009-Ohio-6910, ¶ 25, quoting App.R. 

9(A). Furthermore, “ ‘[i]t is the appellant's duty to transmit the [record] to 

the court of appeals. * * * This duty falls to the appellant because the 

appellant has the burden of establishing error in the trial court.’ ” Bailey at ¶ 

57; citing Dalton at ¶ 2; citing Knapp v. Edwards Laboratories, 61 Ohio 

St.2d 197, 199, 400 N.E.2d 384 (1980) (internal citations omitted). 

{¶14} As Appellant has not provided us with the record from the 2009 

case, we have nothing to review in regards to the statute of limitations on the 

Sunshine Law issue. Thus, “we must presume the regularity of the trial 

court proceedings;” i.e., we must presume that the original complaint filed in 
Highland App. No. 11CA30 10

2009 did not raise a Sunshine Law violation. State v. Bailey at ¶ 58. As 

such, we cannot conclude that the trial court erred in granting summary 

judgment in favor of Appellant’s claim, which was barred by the statute of 

limitations. Accordingly, Appellant’s fourth sub issue raised under his sole 

assignment of error is without merit. 

ISSUES 1 AND 2 

{¶15} We address Appellant’s first and second sub issues together, as 

they are interrelated. The first issue raised by Appellant questions whether 

Appellant held office for one year, as the ordinance ordained, since the 

ordinance was not repealed. The second issue raised by Appellant questions 

whether any grounds for termination existed where differences of opinion as 

to law existed, and where such differences were not breaches of faith or 

violations of fiduciary duties. 

{¶16} Appellant’s issues are premised on his contention that he was 

not an unclassified employee. Specifically, Appellant contends that he was 

entitled to hold the office of law director for one year, pursuant to Ordinance 

26-08, and that because Ordinance 29-08, which purported to terminate him, 

did not expressly repeal Ordinance 26-08, he continues to be entitled to hold 

that office. Further, Appellant challenges the idea that he was hired on an 
Highland App. No. 11CA30 11

at-will basis, and argues that there was no cause for his termination. Thus, 

Appellant essentially argues that he was wrongfully discharged. 

{¶17} R.C. 124.11 governs unclassified and classified service. R.C. 

124.11(A)(9) provides that “unclassified service shall comprise of the 

following positions, * * * those persons employed by and directly 

responsible to elected county officials or a county administrator and holding 

a fiduciary or administrative relationship to such elected county officials 

administrator * * *.” While R.C. 124.11(A)(9) addresses county positions, 

R.C. 124.11(A)(28) addresses city positions “holding a fiduciary relation to 

their principals[.]” The city ordinance appointing Appellant to the position 

of law director, Ordinance 26-08, specified that Appellant was “appointed” 

and that his salary was “established in the unclassified and non-bargaining 

unit[.]” Based upon the description of Appellant’s status in Ordinance 26-

08, as well as the following case law, we conclude that Appellant was an 

appointed, unclassified employee, employed at- will by city council. 

{¶18} The Supreme Court of Ohio has held that “an administrative 

judge * * * is not authorized to enter into an employment agreement with 

employees of the court.” Malone v. Court of Common Pleas of Cuyahoga 

County, et al., 45 Ohio St.2d 245, 344 N.E.2d 126, syllabus (1976) (with 

respect to employees that serve “during the pleasure of the judge.”). In 
Highland App. No. 11CA30 12

reaching this decision, the Court reasoned that “ ‘[a] public officer or 

employee holds his office as a matter of law and not of contract, nor has 

such officer or employee a vested interest or private right of property or 

employment.’ ” Malone at 248; citing State ex rel. Gordon v. Barthalow, 

150 Ohio St. 499, 83 N.E.2d 393 (1948). Likewise, in Mackin v. City of 

Avon Lake, 12 Ohio App.3d 70, 465 N.E.2d 1355, syllabus (1983), the Ninth 

District held that “[w]here the city charter provides that a director of law 

shall serve at the pleasure of council for a term not exceeding two years, the 

director of law has no right to the office for any specified period and the 

appointment is not made for a fixed and definite period of time.” See also, 

State ex rel. Trimble v. State Board of Cosmetology et al., 50 Ohio St.2d 

283, 364 N.E.2d 247, syllabus (1977) (holding that an individual appointed 

to a position in the unclassified service is not entitled to a the due process 

protection of a hearing before discharge); Dunn v. Bruzzese, 172 Ohio 

App.3d 320, 2007-Ohio-3500, 874 N.E.2d 1221 (7th Dist.) (reasoning that 

unclassified civil servants are at-will employees). 

{¶19} We are further persuaded of Appellant’s status as an 

unclassified, at-will employee by two Attorney General opinions on the 

topic. Opinions released by the Ohio Attorney General are not binding 

authority, but are considered persuasive authority. State ex rel. North 
Highland App. No. 11CA30 13

Olmstead Fire Fighters Assn. v. North Olmstead, 64 Ohio St.3d 530, 533, 

597 N.E.2d 136 (1992). In 1991 Ohio Op. Atty. Gen. No. 91-011, it was 

reasoned that 

“[a]bsent a collective bargaining agreement, a board of county 

commissioners does not have the authority to enter into an 

employment contract which contains a specific term of 

employment with an individual serving in a position 

determined, pursuant to R.C. 124.11 to be in the unclassified 

service.” 

Appellant was expressly placed into a non-bargaining unit position. Further, 

although this opinion specifically deals with the authority of county 

commissioners, we find the reasoning to be equally applicable to city 

council. 

{¶20} Additionally, opinion 91-011 notes that “it is well established 

that individuals in the unclassified service hold their positions at the pleasure 

of their appointing authority, and are subject to dismissal from their 

positions without cause.” Citing State ex rel. Trimble, supra. The opinion 

also noted that because “positions in the unclassified service involve policymaking and fiduciary responsibilities, it follows reasonably that the 

appointing authority should be able to have people of his own choosing in 
Highland App. No. 11CA30 14

these positions.” (internal citations omitted). See also, Ohio 1996 Ohio Op. 

Atty. Gen. No. 96-040 (reasoning with regard to a county veterans service 

commission that “the commission may indicate the period for which it 

currently intends to have the executive director serve, but the commission 

cannot by contract or resolution alter its legal right under civil service law to 

dismiss the executive director without cause at any time, subject to restraints 

governing unlawful dismissals.”). 

{¶21} As such, we conclude that Appellant was appointed to the 

position of law director in an unclassified capacity. This appointment 

created an at-will employment situation in that Appellant had no entitlement 

to a particular term of employment, and he could be terminated without 

cause and without a hearing. It is well-established under Ohio law “that 

either party to an employment-at-will arrangement may terminate the 

relationship for any or no reason, ‘provided that the termination is not 

otherwise unlawful.’ ” Slyman v. Shipman, Dixon & Livingston, Co., L.P.A., 

2nd Dist. No. 2008-CA-35, 2009-Ohio-4126, ¶10; quoting Smiddy v. Kinko's, 

Inc., 1st Dist. No. C-020222, 2003-Ohio-446, ¶ 8; citing Greeley v. Miami 

Valley Maintenance Contrs., Inc., 49 Ohio St.3d 228, 234, 551 N.E.2d 981 

(1990), and Chapman v. Adia Services, Inc., 116 Ohio App.3d 534, 541, 688 

N.E.2d 604 (1997). Thus, an at-will employee may only maintain a tort 
Highland App. No. 11CA30 15

claim for wrongful discharge against his or her employer “where the 

employer discharges the employee in violation of a public policy clearly 

expressed in either the state or federal constitutions, state statutes, 

administrative rules and regulations, or the common law.” Id. Here, 

Appellant has failed to allege a violation of any public policy related to his 

termination. 

{¶22} As such, in answer to Appellant’s stated issues, we conclude 

that in light of his termination, Appellant was not entitled to hold office for 

one year, and that city council was entitled to terminate Appellant without 

cause. Thus, we conclude that there are no genuine issues of material fact as 

to Appellant’s employment status or city council’s ability to terminate him. 

Accordingly, the trial court’s grant of summary judgment in Appellees’ 

favor on these issues was proper. 

ISSUE 3 

{¶23} In his third sub issue raised under his sole assignment of error, 

Appellant questions whether members of Council have immunity if there is 

lack of good faith. In raising this issue, Appellant seems to be referencing 

two distinct acts by city council: 1) council’s termination of Appellant as 

law director; and 2) council’s report to the disciplinary counsel regarding 

alleged activities of Appellant. Appellant essentially argues that council 
Highland App. No. 11CA30 16

members have no immunity related to these acts, if they were done in bad 

faith. 

{¶24} R.C. Chapter 2744 establishes a three-step analysis to 

determine whether a political subdivision is immune from liability. See, e.g., 

Cramer v. Auglaize Acres, 113 Ohio St.3d 266, 270, 2007-Ohio-1946, 865 

N.E.2d 9, ¶ 14. First, R.C. 2744 .02(A)(1) sets forth the general rule that a 

political subdivision is immune from tort liability for acts or omissions 

connected with governmental or proprietary functions. See, e.g., Cramer; 

Colbert v. Cleveland, 99 Ohio St.3d 215, 2003-Ohio-3319, 790 N.E.2d 781, 

¶ 7; Harp v. Cleveland Hts., 87 Ohio St.3d 506, 509, 721 N.E.2d 1020 

(2000). The statute states: “Except as provided in division (B) of this 

section, a political subdivision is not liable in damages in a civil action for 

injury, death, or loss to person or property allegedly caused by any act or 

omission of the political subdivision or an employee of the political 

subdivision in connection with a governmental or proprietary function.” 

{¶25} Second, R.C. 2744.02(B) lists five exceptions to the general 

immunity granted to political subdivisions under R.C. 2744.02(A)(1). See, 

e.g., Cramer; Ryll v. Columbus Fireworks Display Co., 95 Ohio St.3d 467, 

470, 2002-Ohio-2584, 769 N.E.2d 372, ¶ 25. Appellant apparently argues 

that the exception contained in R.C. 2744.02(B)(2) applies, which states: 
Highland App. No. 11CA30 17

“Except as otherwise provided in sections 3314.07 and 3746.24 

of the Revised Code, political subdivisions are liable for injury, 

death, or loss to person or property caused by the negligent 

performance of acts by their employees with respect to 

proprietary functions of the political subdivisions.” 

{¶26} Finally, if liability exists under R.C. 2744.02(B), R.C. 

2744.03(A) sets forth several defenses that re-instate a political subdivision's 

immunity. See Cramer at ¶ 16; Colbert at ¶ 9. In the case at bar, Appellant 

seems to suggest that R.C. 2744.03(A)(5) applies, which states: 

“The political subdivision is immune from liability if the injury, 

death, or loss to person or property resulted from the exercise of 

judgment or discretion in determining whether to acquire, or 

how to use, equipment, supplies, materials, personnel, facilities, 

and other resources unless the judgment or discretion was 

exercised with malicious purpose, in bad faith, or in a wanton 

or reckless manner.” (Emphasis added). 

Whether a political subdivision is entitled to statutory immunity under R.C. 

Chapter 2744 presents a question of law. See, e.g., Conley v. Shearer, 64 

Ohio St.3d 284, 292, 595 N.E.2d 862 (1992); Murray v. Chillicothe, 164 

Ohio App.3d 294, 2005-Ohio-5864, 842 N.E.2d 95,¶ 11. 
Highland App. No. 11CA30 18

{¶27} In the case sub judice, the parties do not dispute that Appellant 

is entitled to the general grant of immunity under R.C. 2744.02(A)(1). 

Instead, the dispute focuses on whether the R.C. 2744.02(B)(2) exception to 

immunity applies, and, if so, whether R.C. 2744.03(A)(5) re-instates 

immunity. 

{¶28} We have already determined that Appellee was entitled to 

terminate Appellant at any time, without cause, as Appellant was an 

unclassified, at-will employee. Further, because Appellant failed to allege 

any violation of public policy in connection with his termination, he has 

failed to allege facts sufficient to support a claim for the tort of wrongful 

discharge. Here, however, Appellant seems to suggest that Appellees were 

not immune from liability, by virtue of what Appellant characterizes as acts 

done in “bad faith.” Specifically, Appellant contends that the trial court 

erred in striking the affidavit of Pat Hayes, which purported to prove that 

council’s plan was to hire Appellant in order that they could fire him.3

 

{¶29} As set forth above, “[s]upporting and opposing affidavits shall 

be made on personal knowledge, shall set forth such facts as would be 

admissible in evidence, and shall show affirmatively that the affiant is 

 

3

 Appellant further argues at this juncture in his brief that “actions taken in violation of the Sunshine Law” 

demonstrated bad faith on the part of Appellees in terminating Appellant. However, as we have already 

determined that the Sunshine Law claims were barred by the statute of limitations, we do not address this 

argument. 
Highland App. No. 11CA30 19

competent to testify to the matters stated in the affidavit.” Civ.R. 56(E). 

Further, [p]ersonal knowledge” is “ ‘[k]nowledge gained through firsthand 

observation or experience, as distinguished from a belief based on what 

someone else has said.’ ” Bonacorsi, supra, at ¶ 26. Most importantly, it is “ 

‘knowledge of factual truth which does not depend on outside information or 

hearsay.’ ” Residential Funding Co., L.L.C., supra at ¶ 64. 

{¶30} The affidavit of Pat Hayes essentially entirely consisted of 

hearsay statements, and was not based upon personal knowledge. Thus, we 

cannot conclude that the trial court’s decision to strike this affidavit was an 

abuse of discretion. As a result, and in light of the foregoing, we conclude 

that not only are Appellees’ immune from liability, Appellant has failed to 

properly set forth a cause of action for the tort of wrongful discharge. 

Accordingly, the trial court properly granted summary judgment in 

Appellees’ favor, both in their official and individual capacities, on this 

issue. 

{¶31} Appellant next argues that Appellees’s submission of a report to 

the Disciplinary Counsel was in bad faith, or even fraudulent, claiming that 

it contained the forged signature of one council member. Appellant 

contends this “bad faith” removes Appellees’ immunity under R.C. 2744.02. 

In Hecht v. Levin, 66 Ohio St.3d 458, 613 N.E.2d 585, at paragraph one of 
Highland App. No. 11CA30 20

the syllabus, the Supreme Court of Ohio held that “[a] complaint filed with 

the grievance committee of a local bar association is part of a judicial 

proceeding.” The Court further held that “[a] statement made in the course 

of an attorney disciplinary proceeding enjoys absolute privilege against a 

civil action based thereon as long as the statement bears some reasonable 

relation to the proceeding.” Id. at paragraph two of the syllabus; see also, 

Hughley v. McFaul, 8th Dist. No. 92901, 2009-Ohio-5568, ¶ 9. In reaching 

this decision, the Court further reasoned that “the privilege exists * * * 

irrespective of whether the statement was made in bad faith.” Hecht at 462; 

see also, Young v. Jones, 122 Ohio App.3d 539, 543, 702 N.E.2d 445 (6th

Dist. 1997) (“Such a privilege is applicable even though the statement may 

have been made with actual malice, in bad faith and with knowledge of its 

falsity.”) (internal citations omitted). 

{¶32} Further, and of importance, this Court has previously 

recognized that “political subdivisions are immune from claims of fraud.” 

Dolan v. Glouster, 173 Ohio App.3d 617, 2007-Ohio-6275, 879 N.E.2d 838, 

¶ 20; citing Wilson v. Stark Cty. Dept. of Human Servs., 70 Ohio St.3d 450, 

452, 639 N.E.2d 105 (1994); see also, Featherstone v. Columbus, 10th Dist. 

No. 06AP-89, 2006-Ohio-3150, ¶ 11 (stating that governmental immunity 

“applies particularly to intentional tort claims of fraud * * *.”) 
Highland App. No. 11CA30 21

{¶33} Thus, because Appellees’ report to the Disciplinary Counsel has 

absolute privilege, even if done in bad faith, Appellant has not stated a cause 

of action against Appellees, either in their official or individual capacities. 

Further, because political subdivisions are immune from fraud claims, we 

conclude that the trial court’s grant of summary judgment was proper on 

these issues as well. 

{¶34} Accordingly, as Appellant has failed to demonstrate the 

existence of genuine issues of material fact, and reasonable minds can come 

to but one conclusion, and that conclusion is that Appellees are entitled to 

judgment as a matter of law, we affirm the trial court's decision. 

JUDGMENT AFFIRMED.
Highland App. No. 11CA30 22

JUDGMENT ENTRY

 It is ordered that the JUDGMENT BE AFFIRMED and that the 

Appellees recover of Appellant costs herein taxed. 

 The Court finds there were reasonable grounds for this appeal. 

 It is ordered that a special mandate issue out of this Court directing 

the Highland County Common Pleas Court to carry this judgment into 

execution. 

 Any stay previously granted by this Court is hereby terminated as of 

the date of this entry. 

 A certified copy of this entry shall constitute the mandate pursuant to 

Rule 27 of the Rules of Appellate Procedure. 

Exceptions. 

Abele, P.J: Concurs in Judgment and Opinion. 

Harsha, J: Concurs in Judgment Only. 

 

 For the Court, 

 BY: _________________________ 

 Matthew W. McFarland, Judge 

NOTICE TO COUNSEL 

 Pursuant to Local Rule No. 14, this document constitutes a final 

judgment entry and the time period for further appeal commences from 

the date of filing with the clerk.