619 N.E.2d 1152 | Ohio Ct. App. | 1993
Lead Opinion
The plaintiff-appellant, Thomas Dillingham, Jr., appeals from the decision of the trial court denying relief on his complaint for declaratory judgment in an action arising from his termination as a police officer for the village of Woodlawn. On appeal, he asserts two assignments of error: (1) the trial court erred when it concluded that his status with the Woodlawn Police Department was that of temporary employee from May 12, 1989, until January 9, 1990, and (2) the trial court erred when it concluded that the mayor had the power to remove him *56 without the concurrence of the village council. We reject the first assignment of error, but find the second to be well taken and thus reverse.
On May 9, 1989, the Woodlawn Council approved the recommendation of the mayor to employ Dillingham as a "temporary" police officer starting on May 12, 1989. He was hired following the suspension of a sergeant in the Woodlawn Police Department after the sergeant was charged with dereliction of duty and drug abuse.
Dillingham was evaluated using the department's "Recruit Evaluation Report Probationary Forms" for the months May through November 1989, and January through April 1990. Dillingham never scored below the level designated as "Meets Duty Requirements" on any of these forms, and on the majority of the forms he scored at the level "Exceeds Duty Requirements."
The sergeant whose suspension prompted Dillingham's hiring was found guilty of dereliction of duty and resigned effective November 13, 1989.
The mayor of Woodlawn appointed Dillingham to the vacancy created by the sergeant's resignation on December 14, 1989, to be effective December 20, 1989, and subject to the confirmation of the village council. Apparently the village council met on January 9, 1990, at which time Dillingham's appointment was approved.
Dillingham testified at trial that it was his impression that at this point his probationary period was over and that he had been permanently appointed as a police officer. He testified that this impression was based on representations made to him by the police chief that the police chief would recommend that the time he had worked as a temporary officer be counted as probationary time. Dillingham testified that he was later told by the chief of police that this recommendation had been rejected. According to Dillingham, it was not until *57 February 1990 that he learned at a supervisor's meeting that he was still considered on probation.
Dillingham testified that between January 9, 1990, and July 9, 1990, he was counseled on "a few occasions" with respect to areas of work which his supervisors found unsatisfactory.
Dillingham testified that near the end of his tenure with the police department he was informed by the police chief that he had not successfully completed his probationary period, but was given no specifics regarding this conclusion.
At the village council meeting of July 10, 1990, the mayor recommended that Dillingham not be approved to pass his six months' probation. Dillingham's record of service as evidenced by his personnel file and his Recruit Evaluation Report Probationary Forms was not transmitted to council, nor were its contents made known to them. Two members of council voted to approve the mayor's recommendation, three members voted to reject it.
The mayor on July 16, 1990, gave Dillingham written notice that he had not successfully completed his six-month probationary period and that his employment was terminated as of July 9, 1990.
As noted previously, the transcript before us is only a partial transcript and does not include the admission into evidence of the joint trial exhibits. Hence, we have not been presented with the complete record before the trial court. It is well established that error will not be presumed, but must appear affirmatively on the record. Moreover, it is the appellant's burden to show that error has occurred; otherwise, a presumption of validity and regularity attaches to the proceedings below. In addition, App.R. 9(B) provides, in pertinent part:
"If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the weight of the evidence, he shall *58 include in the record a transcript of all evidence relevant to such findings or conclusion."
Because the appellant has not presented us with a complete record of all evidence relevant to his status upon being hired by the village, we hold that he is foreclosed from challenging the factual basis for the trial court's conclusion that he was on "temporary" status at the time of his hire until December 20, 1989.
The only basis upon which he is left to challenge this determination is upon the purely legal basis that a village has no authority to hire a "temporary" police officer. This argument avails him little, however, because, even if correct, the fact that the village had acted ultra vires in hiring him on a "temporary" basis would not necessitate that his original employment be considered probationary.
We hold, moreover, that a village does have the authority to hire "temporary" policemen under R.C.
Dillingham's first assignment of error is, therefore, overruled.
The trial court found, and the village does not contest, that Dillingham was appointed as a probationary police officer on January 9, 1990, and that he thereafter served his probationary employment period from January 9, 1990, to July 9, 1990. It is not disputed that, at the village council meeting of July 10, 1990, the mayor recommended that Dillingham not be finally appointed, and that a majority of the council, by a vote of three to two, rejected this recommendation. It is also not disputed that, at this council meeting, Dillingham's record of service as evidenced by his personnel file and evaluation forms was not put before the council. Nevertheless, the mayor proceeded to terminate Dillingham's employment.
R.C.
"All appointments made under Sections
The trial court found that the mayor had not complied with this statute when he failed to transmit to the village council the record of Dillingham's service. However, the trial court noted that Dillingham had not sought a mandamus order to require the mayor to transmit his record of service, but, rather, sought "reinstatement" to his previous employment, which he believed to be that of a permanent police officer of the village. The trial court then determined that, since R.C.
In Toth v. Elmwood Place (1984),
The issue we must decide is whether the language in R.C.
We disagree with the holding of Brumback and read R.C.
Dillingham's second assignment of error is, therefore, found to be well taken. Our holding necessarily means that a police employee's probationary status does not automatically terminate at the end of the six-month period, but, rather, continues until the mayor and council concur on either removing or finally appointing him. Accord State ex rel. Sullivan v. Middleburg Hts.
(1961), *60
The judgment below is reversed and this matter remanded to the trial court for further proceedings consistent with this decision.
Judgment reversedand cause remanded.
DOAN, P.J., and UTZ, J., concur.
HILDEBRANDT, J., dissents in part.
Dissenting Opinion
Although I concur with the majority's resolution of the first assignment of error, I dissent from the majority's holding on the second assignment of error and would follow Harvey v.Brumback (1960),
"For those [villages] which do not [establish their own form of government] and which elect to remain within the general framework of village government as provided by the general statutes, the General Assembly has established a simple form of government which in large measure revolves around the village mayor. As pointed out, he is, or at times may be, virtually a seventh member of council. That it was intended that the mayor exert a potent force in all police matters in a village is further evidenced by the provision in Section
Secondly, I believe that the interpretation given to R.C.
For the foregoing reasons, I would affirm the judgment below.