211 N.E.2d 885 | Ohio Ct. App. | 1963
Appellant, Buchanan Fugate, was discharged from his position as light equipment operator, Division of Police, Department of Public Safety of the city of Columbus, effective February 26, 1962. He had been suspended from duty by order of the acting chief of police and found guilty of the charge placed against him, following a hearing before the Director of Public Safety, from whose order an appeal was taken to the Municipal Civil Service Commission of the city of Columbus.
On November 2, 1962, the Municipal Civil Service Commission sustained the action of the Director of Public Safety dismissing the appellant from his position, and from the decision of the commission an appeal on questions of law and fact was taken to the Court of Common Pleas of Franklin County. It is from the judgment and final order of the Common Pleas Court, affirming the order of the Civil Service Commission of the city of Columbus, that this appeal is taken on questions of law and fact. This is not a case falling within any of the categories contained in Section
The charge placed against the appellant, Fugate, appears at page three of the record of the hearing before the director, as follows:
"Charge 1: Violation of Rule 6, J, Chapter 3, pages 43, 44 (Other acts of misfeasance, malfeasance, or nonfeasance in office). *149
"Specification 1: In that light equipment operator, Buchanan Fugate, did on or after May 3, 1961, enter into an agreement with one Jack Monroe Walters to pull, fix, destroy, or otherwise wrongfully dispose of traffic violation summons issued to said Jack Monroe Walters for the sum of $50.00 and did receive $10.00 thereon."
It is clear from the record that appellant was a member of the police department of the city of Columbus, that he was removed as a member of the department upon a formal charge and that an appeal from the discharge order was taken to the Civil Service Commission, which body affirmed the removal order of the director. Section
This appeal from the judgment of the Court of Common Pleas affirming the order of the commission is predicated upon eight assignments of error. Assignments one through four and six through eight relate to the errors allegedly committed by the Common Pleas Court in failing to pass upon errors by the commission in admitting or refusing to admit certain evidence, by way of testimony and exhibits, into the record made at the time of the hearing held by that body, and, also, in not properly evaluating the evidence appearing in the records taken in the hearings before the director and the commission. It is unnecessary, and impossible as well, to examine minutely each assignment of error as outlined in appellant's brief. This review is therefore addressed to the basic law controlling in an appeal such as this, with particular attention directed to assignment of error numbered five.
Appellant herein was a member of a police department of a city and was removed from his job by the Director of Public Safety of that city. Civil service employees as a general class find provisions for the protection of their tenure and requirements in procedure when they are removed for disciplinary and other reasons in Section
"In cases of removal * * * for disciplinary reasons, * * * *150
the * * * employee may appeal from the decision of * * * the commission to the Court of Common Pleas of the county in which the employee resides in accordance with the procedure provided by Section
It is most significant, however, to note that Section
"In the case of the suspension, demotion, or removal of a chief of police or a chief of a fire department or any member of the police or fire department of a city, an appeal on questions of law and fact may be had from the decision of the municipal civil service commission to the Court of Common Pleas in the county in which such city is situated. * * *"
The words, "on questions of law and fact," presently in the statute, were supplied by an amendment to the section passed by the Legislature April 28, 1955, and effective August 16, 1955. They are now controlling and the Common Pleas Court was not limited, therefore, to the record as certified in considering the appeal before it as is suggested by Section
That Section
"Section
For this proposition, the court relies upon Cupps v. City ofToledo, supra (
"It has long been the rule in Ohio that upon an appeal on questions of law and fact the appellate court takes up the matter where the court below took it up and proceeds in respect to all phases thereof as if the cause had never been tried below. It is in all respects a trial de novo. * * *"
And then, to be sure it was understood that the rule was applicable in case of an appeal from a civil service commission to the Common Pleas Court, the next paragraph says, "The term, `trial de novo,' of course, denotes some previous trial." And, on page 539, referring to the hearing before the Civil Service Commission, this proposition appears, as follows:
"* * * Although designated as an `appeal' in the statute, it is our opinion that the statute contemplates a `trial' before the civil service commission. The officer is brought to `trial' by the charges theretofore filed against him. * * *"
Despite changes in the laws affecting procedural and appellate rights of other classified employees, Section
At page 52, Section 110, of Skeel's Ohio Appellate Law, the author discusses the particular appeal procedure in some detail. He suggests two rules to be followed, to wit:
"A motion should be filed in the Common Pleas Court seeking to determine what part of the evidence produced before the commission each party desires considered by the Common Pleas Court on rehearing."
"Upon good cause shown and in the interest of justice, upon application, the court may allow additional evidence to be taken in such manner as directed."
These rules are predicated upon the provisions in Section
"* * * The court shall review the final order, judgment or decree upon such part of the record made in the trial court as any party may present to the court and such additional evidence as upon application in the interest of justice the court may authorize to be taken, such evidence to be presented in the manner and form prescribed by the court."
No bill of exceptions has been filed in this appeal. We rely solely on the record and documents before us. There is nothing that indicates compliance with the requirements of Section
None of the assignments of error set out by appellant are well taken. By following appropriate procedure authorized by Sections
Appellant did not include as an assignment of error in this appeal any objection to the decision and judgment as recorded, predicated upon the basis indicated by the court, but the importance of the difference in a finding under Section
Hearings before a board or agency, and certainly one before an administrative officer, are distinctly informal. There are no standards or criteria established imposing upon them rules of evidence, at least none have been revealed by any reference made to this court or by the research made. Some agencies, by provision in the creating statutes, are not bound to follow the general rules of evidence while conducting hearings. A civil service commission is not included in that category of agencies, but informality still seems to be the rule, and perhaps rightly so, with the hope that justice may be done if facts are brought to light by unhampered inquiry.
Informality must not be permitted to become unwarranted laxity. To indulge in liberty to the point of doing violence to basic fundamentals of justice never can be condoned. This court dealt with the hearings by agencies exempt by statute *154
from following rules of evidence in a decision in the case ofCunningham v. Jerry Spears Co.,
"The basic philosophy of judicial procedure revolves around the principles of fairness, relevance, reliability and public policy. * * * The principles remain even though their formulation as technical court rules may be inappropriate to the operation of this agency. Further, the rules themselves remain as a starting point in determining whether there has been a violation of fundamental principles. * * *"
The Court of Common Pleas erred in restricting itself to the limits of Section
The judgment of the Court of Common Pleas is reversed and the cause is remanded for further proceeding according to law and in accordance with this opinion.
Judgment reversed.
DUFFY, P. J., and BRYANT, J., concur.
TROOP, J. Attention of the city attorney is directed to the introductory paragraph of Section
"As used in Sections
Chapter 143, Revised Code, deals with civil service matters and has its own definitions section. Obviously, the Legislature elected to especially define for pension purposes and, separately and distinctly, for civil service purposes. Courts are bound to accept what the Legislature says and avoid indulging in presumptions as to what it intends when the language used is adequate.
Section
In the decision in the case of Ownes v. Ackerman, Safety Dir. (1955), 72 Ohio Law Abs. 552, this court, then of the Second Appellate District, makes repeated reference to the "civil service employee" involved in the appeal. The "employee" was in this instance a police officer.
If the Common Pleas Court found a preponderance of the evidence to support its conclusion it may say so in its entry, otherwise the finding rests merely upon evidence it regards as reliable, probative and substantial. The motion to reconsider is overruled.
Motion overruled.
DUFFY, P.J., and BRYANT, J., concur. *156