COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70648 : ACCELERATED DOCKET STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION KATHRYN CHUBB : : Defendant-Appellee : PER CURIAM : : DATE OF ANNOUNCEMENT OF DECISION : JANUARY 9, 1997 CHARACTER OF PROCEEDING : Criminal appeal from Common Pleas Court Case No. CR-327973 JUDGMENT : REVERSED AND REMANDED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: For defendant-appellee: STEPHANIE TUBBS JONES WILLIAM T. DOYLE Cuyahoga County Prosecutor 2000 Standard Building MARK J. MAHONEY, Assistant 1370 Ontario Street PAMELA J. GORDON, Assistant Cleveland, Ohio 44113 The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 JEFFREY S. SUTTON State Solicitor 30 East Broad Street - 17th Floor Columbus, Ohio 43215-3428 - 2 - PER CURIAM: This case came on for hearing upon the accelerated calendar of our court pursuant to App. R. 11.1 and Local R. 25, the records from the court of common pleas and the briefs and oral arguments of counsel. The transcript reflects that the instant controversy arose on June 21, 1994, when Sally Walters and Kent Cicerchi, two employees of the Cleveland law office of the Bureau of Worker's Compensation, met in Columbus with Lawrence Phillips, a criminal investigator in the division of internal security for the Bureau. They delivered a stack of letters, forms and wills to him together with a binder, and a calendar seeking a determination whether that information warranted further investigation of Kathryn Chubb, a Cleveland attorney employed as supervisor in the Bureau's law department. Phillips pursued the matter. During the investigation, Phillips focused on allegations that Chubb had conducted personal business on state time and had used state computers for her own purposes. In his affidavit to obtain a search warrant, Phillips stated that a computer owned by the Bureau of Worker's Compensation contained approximately 115 files which involved work done by Chubb in a private capacity and not connected with the Bureau, and that allegations had been made concerning Chubb's active engagement in a business known as Pee Wee Workout/Fitness Force and in the representation of private - 3 - law clients during times she was paid by the State. The transcript here also reveals that Phillips met with a Franklin County prosecutor concerning possible criminal charges in the case on two occasions, during September or October, 1994. However, on December 7, 1994, Kathryn Chubb and the Bureau of Worker's Compensation signed a two-page written agreement whereby Chubb accepted a twenty-day suspension and the Bureau agreed to deliver a report to the internal security committee stating that "any criminal investigation shall be closed and the matter has been handled administratively." The parties stipulated in the trial court that after this agreement had been entered into, Kent Cicerchi reported these same criminal allegations to the Cuyahoga County Prosecutor's Office and that the prosecutor's office obtained the Bureau's internal fraud unit investigative file and used it as a source of their own investigation which resulted in two indictments for Theft in Office and another for Unauthorized Access to a Computer System. Chubb filed a motion to dismiss these indictments in the trial court arguing both that a state agency had bargained in good faith with her and thereby bound the state to close the matter, and that since she had previously served a twenty-day work suspension, the protection against double jeopardy barred successive punishments for the same conduct. - 4 - The trial court granted the motion and dismissed the case holding that the instant prosecution, "is barred because the prior, separate proceeding conducted by the BWC, an agency of the State, resulting in Chubb's suspension without pay, was imposed to punish Chubb for the same conduct at issue in this proceeding. The state now appeals and assigns the following error for our review: THE TRIAL COURT ERRED IN DETERMINING THAT DOUBLE JEOPARDY ACTS AS A BAR TO THE PROSECUTION OF THIS CASE, AND THUS IMPROPERLY GRANTED APPELLEE'S MOTION TO DISMISS THE INDICTMENT. The state argues the trial court erred because it mis- characterized the employer-employee dispute between Chubb and the Bureau of Worker's Compensation as a legal proceeding and it erroneously sanctioned the agency resolution as binding upon the county prosecutor and thereby gave authority to a state agency other than the prosecutor's office to resolve criminal conduct. The appellee urges, however, that the trial court correctly granted the motion to dismiss the indictments because it found that Chubb was punished by the Bureau of Worker's Compensation for the same conduct at issue in this criminal proceeding, and the protection against double jeopardy precludes further prosecution. The issue then presented for resolution is whether an administratively imposed twenty-day suspension from work negotiated between a state employee and a state agency precludes criminal prosecution based upon the same conduct. - 5 - The question of when or whether the protections against double jeopardy preclude two punishments from being imposed against an individual arising out of the same conduct has been the relatively recent subject of numerous federal and state cases and appears to be currently evolving. Cf. Gore v. United States (1958) 357 U.S. 386. Justices Scalia and Thomas have now suggested the Double Jeopardy Clause prohibits successive prosecutions, not successive punishments. See United States v. Ursery (1996) U.S. ; 116 S.Ct. 2135. (Scalia, J., concurring). However, in United States v. Dixon (1993) 509 U.S. 688, the court determined that the Double Jeopardy Clause serves the function of preventing both "successive punishments" and "successive prosecutions." See also Witte v. United States (1995) 515 U.S. ; 115 S.Ct. 2199. In United States v. Halper (1989), 490 U.S. 435, the court there considered whether a civil penalty may constitute punishment for purposes of a double jeopardy analysis and utilized a test to determine whether a civil penalty sought subsequent to a criminal proceeding has any rational relationship to the goal of compensating the Government for its loss or whether it appeared to qualify as punishment in the plain meaning of the word. In Ursery, supra, however, the majority stated in its opinion that civil forfeiture cases under the Double Jeopardy Clause adhere to a remarkably consistent theme: "in rem civil - 6 - forfeiture is a remedial civil sanction, distinct from potentially punitive in personam civil penalties such as fines, and does not constitute punishment under the Double Jeopardy Clause." The court then reviewed its analysis in Halper, supra, Austin v. United States (1993), 509 U.S. 602, and Department of Revenue of Montana v. Kurth Ranch (1994), 511 U.S. 767, and stated that both the Sixth and Ninth Circuits had misread those cases as an abandonment of the holding in United States v. One Assortment of 89 Firearms (1984), 465 U.S. 354, where the court held that civil forfeitures did not constitute punishment for double jeopardy purposes. The court noted inter alia, e.g., "It is difficult to see how the rule of Halper could be applied to a civil forfeiture, because Halper involved not a civil forfeiture, but a statutory civil penalty. In the instant case we are not confronted with either a civil forfeiture or imposition of a statutory civil penalty; rather, this case involves administratively imposed employee discipline by a Government employer negotiated with that employee from termination to a twenty-day suspension. Chubb urges that since the sovereign which now purports criminal prosecution has already imposed an employee suspension, double jeopardy precludes enforcement of criminal penalties against her. Her contention is not well taken, however, because of R.C. 309.08 states, in part: The prosecuting attorney may inquire into the commission of crimes within the county.*** - 7 - Further, the negotiated agreement did not constitute a plea bargain as only a prosecutor may participate in such a negotiation, subject to review and approval of the trial court. See State v. Matthews (1982), 8 Ohio App.3d 141, and Criminal Rule 11. Finally, the written agreement between the Bureau of Worker's Compensation and Chubb contains the following: Whereas there is a charge of discipline pending against Kathy Chubb for allegedly violating Ohio Revised Code 124.34 and several BWC policies and work rules.*** *** The parties hereby agree to the following: 1. The employer shall reduce their request for discipline from termination to a one month suspension without pay (20 work days). *** 6. The parties agree that this agreement is not precedent setting and shall not be introduced in any other proceeding or tribunal expect as might be necessary***in the defense or prosecution of any other actions arising out of the events of this situation. 7. BWC agrees***a report shall be given to the BWC/IC internal security committee stating that any criminal investigation shall be closed***. (Emphasis added.) Since R.C. 124.34 relates to the tenure of an employee in the classified service of the state and provides for reduction, removal, or demotion, this constitutes a civil remedy and does not concern itself with the imposition of criminal penalties. We therefore conclude that this agreement related only to employee concerns and never purported to impose criminal - 8 - punishment as that term is used in the context of double jeopardy purposes. We note also that the parties contemplated some further proceedings in this matter and provided for introduction of the agreement in defense or prosecution of any of those other actions. The particular section of the code referenced in the agreement permits the Bureau of Worker's Compensation to administratively resolve its internal workplace problems and bears no relationship whatsoever to the function of a county prosecutor. Nor could actions of the Bureau of Worker's Compensation in conformity with R.C. 124.34 preclude prosecution of this or any other case. Accordingly, since the employment-related civil sanction administratively imposed against Chubb pursuant to a negotiated written agreement does not constitute punishment as that term is used in the criminal context for double jeopardy purposes, the trial court erred in dismissing the indictments against her and that judgment is reversed and this case is remanded for further proceeding. Judgment accordingly. - 9 - This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant(s) recover of said appellee(s) costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DAVID T. MATIA, PRESIDING JUDGE TERRENCE O'DONNELL, JUDGE TIMOTHY E. McMONAGLE, JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also S.Ct.Prac.R. II, Section 2(A)(a). .