753 N.E.2d 249 | Ohio Ct. App. | 2001
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *726
On August 5, 1994, after celebrating his anniversary with his wife, Williams smoked a marijuana cigarette. A random drug screen was conducted on August 12, and it came back positive for cannabis. On August 19, 1994, the chief of police advised Williams that effective September 2, 1994, Williams was discharged due to the positive drug screen. Williams requested a mayor's hearing, pursuant to Section 72 of the Akron City Charter, which provides that the mayor has the power to review dismissal of a police officer. On September 22, 1994, the city law director as Acting Mayor held the hearing and on October 3, the law director advised Williams that his dismissal was upheld.
Williams appealed to the Akron Civil Service Commission, which held a hearing on December 15, 1994. The Commission also affirmed the dismissal and Williams appealed to the court of common pleas. The common pleas court initially determined that the city had violated R.C.
Upon remand, Williams attempted to introduce additional evidence to the effect that other officers who had since tested positive for drugs in violation of the policy had suffered less drastic disciplinary measures. The common pleas court refused to allow additional evidence on this matter, and after briefing by the parties, the court affirmed the dismissal on August 9, 2000. Williams filed the instant appeal, assigning four errors. We have rearranged them for ease of discussion.
NEITHER THE OHIO REVISED CODE NOR THE AKRON CITY CHARTER AUTHORIZES THE MAYOR TO REFER R.C.727.12 HEARINGS TO THE CITY LAW DIRECTOR FOR DETERMINATION AND THE FAILURE TO ADHERE TO THE MANDATORY PROCEDURES OF R.C.747.12 IS A [DENIAL] OF DUE PROCESS OF LAW AND APPELLANT'S DISCHARGE IS VOID.
Williams first asserts that his discharge review by the city law director, as acting mayor, violated both state law and the Akron city charter provisions *728 governing the dismissal of a police officer. We find this assignment of error to be without merit for several reasons.
First, Williams had a full review of the dismissal before the Civil Service Commission, with an opportunity to present evidence. Williams has not stated how he was prejudiced by review by the acting mayor rather than the mayor. Thus, any error in the inappropriate review process was harmless. In addition, in our first review of this case this court addressed the hearing by the acting mayor. This court determined that the mayor, or the acting mayor, had the authority to review Williams' dismissal. The first decision by the common pleas court in 1995, which this court reviewed, stated,
assuming arguendo that the Mayor could hear Mr. Williams' appeal, Akron City Charter Section 55(B) suggests that the City Law Director did not have the authority to preside over the appeal because there was no showing that Mayor Don Plusquellic was temporarily absent, disabled or incapacitated on the date of the hearing.
This court fully reviewed the record and the decision of the common pleas court, and reversed the court's reversal of Williams' termination. Id.
The decision by this court remains the law of the case after remand, where the lower court is faced with substantially the same evidence after remand. See Hood v. Diamond Products (2000),
Williams' first assignment of error is overruled.
THE TRIAL COURT COMMITTED ERROR PREJUDICIAL TO APPELLANT AND DENIED APPELLANT DUE PROCESS OF LAW WHEN, EX PARTE AND WITHOUT NOTICE TO APPELLANT, IT HEARD AND GRANTED APPELLEE'S MOTION TO QUASH APPELLANT'S SUBPOENA AD TESTIFICANDUM FOR A PRIVATE CITIZEN.
In his third assignment of error, Williams suggests that the trial court erred when it granted the city's motion to quash Williams' subpoena of the former chief of police, Larry Givens, who terminated Williams' employment. After this court remanded the cause, the common pleas court scheduled an evidentiary hearing for February 7, 1997. On January 24, 1997, Williams subpoenaed the retired Givens to appear and testify at the evidentiary hearing. In its motion to quash, filed on February 7, the city argued that Williams had not sought leave of the common pleas court to introduce additional evidence, and *729 that therefore he had no right to compel Givens to appear and testify at the hearing. On the same day, the common pleas court granted the motion to quash.
Williams now argues that the trial court erred in granting the motion to quash. Williams suggests that Civ.R. 45, governing the issuance of a subpoena to a prospective witness, applies to his appeal to the common pleas court. Williams acknowledges that Civ.R. 45(C)(1) requires that the issuing party must "take reasonable steps to avoid imposing undue burden * * * on a person subject to the subpoena." The city's motion to quash was based on the fact that Williams had neither sought nor obtained leave of the court to produce additional evidence by way of Givens' testimony at the evidentiary hearing. Williams does not contest that fact, which is supported by the record. Assuming without deciding that Civ.R. 45 would apply in this situation, there can be no dispute that it would be unduly burdensome to Givens to compel him to arrive at an evidentiary hearing prepared to testify when the court itself had not even granted leave to Williams to introduce that testimony. Williams' third assignment of error is not well-taken and it is overruled.
WHERE A POLICE OFFICER APPEALS AN ADVERSE DECISION OF THE CIVIL SERVICE COMMISSION DISCHARGING HIM, THE COURT OF COMMON PLEAS MUST AFFORD THE APPELLANT A TRIAL DE NOVO AND IT IS A DENIAL OF DUE PROCESS AND PREJUDICIAL ERROR FOR THE COURT TO DENY APPELLANT A REHEARING AND RETRIAL OF HIS DISCHARGE UPON SUCH LAW AND FACTS AS THE APPELLANT MAY PLEAD.
APPELLEE'S "ZERO TOLERANCE" ENFORCEMENT OF THE DRUG SCREENING PROGRAM FOR SWORN EMPLOYEES OF THE AKRON POLICE DEPARTMENT AGAINST THE APPELLANT, A NINETEEN-YEAR VETERAN POLICE OFFICER, REPRESENTS DISCIPLINE SO GROSSLY DISPROPORTIONATE TO THE OFFENSE THAT IT IS UNREASONABLE AND, WHEN COMPARED TO THE DISCIPLINE RENDERED UPON OTHER POLICE OFFICERS WHO HAVE COMMITTED IDENTICAL INFRACTIONS, IS ARBITRARY AND CAPRICIOUS, AND UNCONSTITUTIONAL.
Williams argues that the common pleas court denied him a trial denovo, in violation of his statutory and constitutional rights. This court disagrees.
The Ohio Supreme Court outlined the procedure for reviewing a dismissal of a police officer in Cupps v. Toledo (1961),
The Supreme Court again visited the issue of such reviews in Chupka v.Saunders (1986),
[t]he scope of a trial de novo is governed by the provisions of R.C. Chapter 2505 to the extent they are applicable. R.C.
2505.21 , which is among the applicable provisions, provides in part as follows:"An appeal taken on questions of law and fact entitles the party to a hearing and determination of the facts de novo which shall be upon the same or amended pleadings. 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."
Thus, in a trial de novo the court of common pleas is empowered to "substitute its own judgment on the facts for that of the commission, based upon the court's independent examination and determination of conflicting issues of fact." The "trial," in a trial de novo, is the "independent judicial examination and determination of conflicting issues of fact and law, notwithstanding the evidence before the appellate court consists of the record of the proceedings in the lower tribunal." The trial is not necessarily "a second event where the witnesses personally reappear and reaffirm or respeak their previous testimony." In fact, evidence in addition to the transcript and record of the commission's proceedings may only be admitted with the express permission of the reviewing court.
(Internal citations omitted.) Id. at 327-328.
In the instant case, Williams contends that the common pleas court erred when it refused to allow him to introduce additional evidence not available to the *731 civil service commission. Williams argues that by refusing to consider additional evidence, the common pleas court denied him a trial de novo. However, as the above quote from Chupka illustrates, a trial de novo does not require the admission of new evidence.
It is clear from the record and the decision of the common pleas court that the court did conduct a trial de novo, independently reviewing the evidence and the law without deference to the commission's decision. The common pleas court noted that Williams admitted to using marijuana on the one occasion, and that he voluntarily submitted evidence to the commission that he had a history of drug rehabilitation, dating back ten years prior to the instant offense, during which time he was on the police force. The city was required to prove by a preponderance of the evidence that the charges against Williams were true. See Cupps,
Williams' second assignment of error is overruled.
In his fourth assignment of error, Williams argues that other officers who also used drugs were treated less severely. Williams sought to introduce evidence related to the cases of these other officer who, subsequent to Williams' dismissal, violated the drug use ban. Williams argues that it is clear that his dismissal was arbitrary and capricious because other officers who used drugs were treated differently. However, as noted above, the common pleas court had the discretion whether to allow the admission of additional evidence. R.C.
Williams asked the common pleas court to allow evidence concerning other officers who allegedly were disciplined less severely than he was. However, it is well-established that "[a]n employee's discipline must stand or fall on its own merits." Green v. Western Reserve Psych. Hab.Center (1981),
We likewise review the lower court's de novo review using an abuse of discretion standard. See Kennedy v. Marion Corr. Inst. (1994),
This court cannot conclude that the common pleas court abused its discretion when it affirmed Williams' dismissal as proper given the evidence before that court. Williams' fourth assignment of error is overruled.
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E).
Costs taxed to Appellant.
Exceptions.
___________________________ WILLIAM R. BAIRD
BATCHELDER, P.J., SLABY, J., CONCUR. *733