LIMA — “So you’re gonna be at work in the morning?” asked attorney Al Smith, after the Shawnee Township trustees voted Tuesday to dismiss their three administrative charges against Fire Chief Austin Miller.

“7 a.m.,” Miller responded with a smile, followed by applause that filled the administration building.

The trustees’ vote came on their third and final attempted disciplinary hearing for Miller, who had been on paid leave for all but 15 days since May 11. The determining factor was ultimately an objection by Dalton Smith, co-legal counsel for Miller with Al Smith, that the fire chief had still not yet been personally served his charges.

With Wednesday marking 30 days since the trustees last voted to keep Miller on paid leave, the fire chief is now able to return to work, Dalton Smith said.

The charges that led the trustees to consider Miller’s termination included adding comments following an exit interview, not paying an invoice for T-shirts and failing to get trustee permission for a pre-employment physical. The trustees dropped a fourth charge, installing unauthorized software on his work computer, on Thursday, Oct. 8.

The township’s notice of the charges, issued Aug. 26, can be found at tinyurl.com/3bkz8bcr.

Going forward

After concern raised by trustee Kenny Gross that they “would never get to hear the facts,” Dalton Smith said he still intends to present his case in a “name-clearing hearing.” The attorney later said the trustees were going to “take it under advisement” before determining a hearing date.

Al Smith added that his team still plans to move forward with Miller’s civil lawsuit against the township.

Miller expressed worry that the township will refile the charges and “try again” in the future, due to them being dismissed “without prejudice.” Nonetheless, he is grateful to get back to work.

“I’m sad the township had to endure this, that the firefighters had to endure this. You know, everyone hated it,” Miller said. “But I’m excited to be back with them, I’m excited to protect them again.”

Defense’s objections

Dalton Smith first objected to the hearing under Section 733.35 of the Ohio Revised Code, which mandates an accused official either be given a written copy of their charges “on the person” by a process server or delivered a copy to their office. The attorney protested that Miller had not been personally handed the charges by an official, and that “if he returns to his office, he’s fired,” Dalton Smith said.

While addressing his complaint in previous attempted hearings Sept. 3 and 14, the attorney pressed the issue Tuesday in light of a hearing officer finally being available, he said.

“The statute is incredibly clear. It says that the charges are to be immediately served upon him or as soon thereafter as possible,” Dalton Smith said. “… There’s supposed to be a certificate of service that is filed with (the trustees) as proof of that service, which has never happened.”

The attorney made several other objections on due process, including that Miller did not consent to the Sept. 14 continuance and was the only party eligible to do so; that the trustees waited too long after the charges allegedly occurred to appoint an investigator; and that the trustees had ex parte communications with the prosecuting attorney, Dan Sabol.

Dalton Smith cited Crist v. Battle Run Fire District Trustees and Cummins v. Minster as court cases that set precedents for his first three and his fourth objections, respectively, in the Third District Court of Appeals, which includes Allen and 16 other counties in northwest and west central Ohio.

Prosecution’s response

The trustees questioned whether certified mail delivered by a U.S. Postal Service worker, in the case of Miller, counted as “personal service.” Matthew Mitchell, whom the trustees appointed as hearing officer Friday, said there are “several different types of service that exist,” and that the trustees had to look at “what the actual statutes require” and “what words are used” to decide.

Sabol cited Leroy Murphy V. Greenville Township Board of Trustees as precedent established in the Darke County Common Pleas Court.

“This court has said that as long as there is not prejudice to service being via mail, then it’s fine to move forward,” Sabol said.

Sabol also insisted he has not had ex parte communications with the trustees “about anything bearing to the charges,” and that “nothing I’ve talked about scheduling-wise or anything else is pushing them toward a decision either way.”

The verdict

Mitchell said Dalton Smith cited the Crist V. Battle Run case correctly, and that “decisions of the appellate court are binding on lower-level courts,” after the attorney’s request for clarification. However, Mitchell added it is up to the trustees to evaluate both arguments and determine for themselves “whether or not the law was followed and the statute has been complied with.”

After the trustees went into recess to consult with Mitchell, they returned to vote on Dalton Smith’s objections. Mitchell read each aloud, saying if any were granted, “the charges would be dismissed.”

Before the trustees could vote on the attorney’s third objection after denying the first two, however, Sabol spoke up.

“As the township’s council, in all honesty, I think you should dismiss the charges,” Sabol said. “It’s my mistake on the (charges not being served) and subjecting you guys to further legal fees and everything else, so I apologize for that.”

Following another recess to deliberate, the trustees unanimously voted to “dismiss the charges without prejudice.”

Reach Peter Bonasso at 567-242-0399.

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