Court denies request for additional evidentiary hearing in Biggert suit

Highland County Common Pleas Court Judge Rocky Coss has denied a request for an additional evidentiary hearing in the civil suit between the Highland County Board of Developmental Disabilities and its former superintendent Chuck Biggert.

Biggert filed the civil complaint with the court in February 2012, which is both an administrative appeal of the termination of his contract and additional claims for breach of contract as to the payment of his unused vacation, sick and personal leave. In April, the court severed the two issues, with the court to decide the issues regarding the administrative appeal, and the claims on unpaid leave to be decided during a trial.

Defense attorney Aaron Glasgow and Biggert's attorney Samuel Lillard had each previously submitted briefs to the court arguing against and for, respectively, the need for an additional evidentiary hearing.

In an entry filed June 13 by Highland County Common Pleas Court Rocky Coss wrote that, "an employee who is terminated may appeal to the court of common pleas of the county in which the board is located. (State law) provides that the court is to examine the transcript and record of the hearing and shall hold additional hearings as it considered advisable at which it may consider other evidence in addition to the transcript record. Therefore, there is no legal right to present additional evidence. Rather, the decision to allow additional evidence rests with the trial court in the exercise of its discretion."

Following his termination by the board in October, Biggert requested a hearing before a referee on his dismissal, saying that it was without cause. Following a two-day hearing in December, in which Board of DD employees, county-elected officials, and Biggert testified, referee Monica Bohlen issued a report that found the board’s action to terminate Biggert was justified.

Coss wrote in the entry that that Lillard had argued that an additional evidentiary hearing should be allowed "so that (Biggert) had a fair opportunity to elicit rebuttal evidence regarding the allegations against him ... The court finds that (Biggert) had adequate opportunity to seek discovery or other action through the referee prior to the hearing but did not avail himself of that opportunity. Therefore, in the court's opinion, there is no legal basis for ordering an additional evidentiary hearing on that basis.

The plaintiff had also alleged that members of the board of developmental disabilities who voted on the termination of Biggert's contract did not have a quorum. The court found that issue is "irrelevant" to the pending case.

Coss wrote, "It is the court's finding that whether any of the members of the defendant's board that voted on the termination of his contract were lawfully eligible is not a basis for appeal in this case. Even if (Biggert's) contention is that one or more of the board members' appointments were not valid, they nonetheless were serving in that capacity and if the appointments were later found to be invalid, this would not affect the acts of those persons because they would be de facto officers. The law provides that acts of de facto officers are valid when they are acting in the office to which they are appointed. Presentation of additional evidence on this issue would be irrelevant to the outcome of this proceeding."

In conclusion, Coss wrote that the court "will proceed to rule on the issues raised in the appeal based on the transcript of testimony and the exhibits admitted in the hearing before the referee."

A jury trial is currently scheduled for Aug. 20, with a final pretrial hearing scheduled for July 31, in Highland County Common Pleas Court.