In re Civil Service Charges & Specifications Against Piper , 88 Ohio St. 3d 308 ( 2000 )

Francis E. Sweeney, Sr., J.

We are asked to decide whether a police officer who is the subject of an internal affairs investigation and is compelled to appear before a superior officer for the purpose of answering questions during the course of the investigation is entitled to legal representation pursuant to R.C. 9.84.² For the following reasons, we find that R.C. 9.84 provides for legal representation in this instance. We reverse the judgment of the court of appeals.

R.C. 9.84 states:

“Any person appearing as a witness before any public official, department, board, bureau, commission, agency, or representative thereof, in any administrative or executive proceeding or investigation, public or private, if he so requests, shall be permitted to be accompanied, represented, and advised by an attorney * * (Emphasis added.)

The court of appeals found that R.C. 9.84 was inapplicable because appellant was not sworn to “appear as a witness” during the interview. The court stated that “while a person need not be sworn to be a witness, a person must be sworn to appear as a witness.” (Emphasis sic.)

Appellant argues that the court of appeals’ decision is erroneous because its holding runs contrary to the clear wording of the statute. He argues that a “witness” is anyone called upon to relate facts, regardless of whether they are' placed under oath. Thus, he maintains that he is entitled to legal representation under R.C. 9.84.

It is a cardinal rule of statutory interpretation that a court must first look at the language of the statute itself to determine statutory intent. Provident Bank v. Wood (1973), 36 Ohio St.2d 101, 105, 65 O.O.2d 296, 298, 304 N.E.2d 378, 381. Moreover, in construing a legislative pronouncement, words are given their ordinary meanings. In re Appropriation for Hwy. Purposes (1969), 18 Ohio St.2d 214, 47 O.O.2d 445, 249 N.E.2d 48, paragraph one of the syllabus.

The common meaning of a “witness” is “[i]n general, one who, being present, personally perceives a thing; a beholder, spectator, or eyewitness.” Black’s Law Dictionary (6 Ed.1990) 1603. Clearly, appellant was asked to participate in the walk-through because of what he personally perceived to have occurred during the July 9 incident.

Yet the city argues that the right to counsel is reserved to one “appearing as a witness”; thus, this contemplates proceedings of a more formal nature. The city relies on Erb v. Landreth (Dec. 2, 1985), Butler App. No. CA85-05-049, unreported, 1985 WL 3973, which concluded that police officers called into the office of the city’s director of safety for meetings concerning their activities as police officers were not entitled to the presence of counsel. The court reasoned that “R.C. 9.84 contemplates the right of counsel in proceedings of a more formal nature” and not to the “informal investigative meetings” that were held in that case.

The city misconstrues the facts. Appellant was not called in just for questioning before his superior officer. This was an official investigation conducted by the Internal Affairs Bureau of the police force and his attendance at the scheduled videotape walk-through was mandatory. Moreover, appellant was the subject of the investigation. In fact, appellant was read the Garrity Warning. As part of this warning, he was specifically told that he was being questioned as part of an official investigation.

In State FOP, Grand Lodge No. 1 v. State (Dec. 31, 1981), Franklin App. No. 80AP-744, unreported, 1981 WL 3707, the Tenth District Court of Appeals was asked to decide whether a member of the State Highway Patrol had a right to counsel at an internal investigative disciplinary proceeding. In construing R.C. 9.84, the appellate court determined that the General Assembly has created a broad right to representation by counsel with the adoption of this statute. After considering the definition of “witness,” the court ruled that the term “witness” as used in R.C. 9.84 is used in its broadest sense and should not be interpreted so as to exclude a person who is also a party to the investigation. Therefore, the court concluded that a member of the State Highway Patrol who is the subject of , any administrative or executive proceeding or investigation has a right to be represented by legal counsel according to R.C. 9.84.

We agree with the reasoning found in State FOP, Grand Lodge No. 1, that the General Assembly has created a broad right to representation" with the adoption of R.C. 9.84, and that the term “witness,” as used in the statute, is used in its broadest sense. We construe the statute according to its plain words. The statute provides that a person “appearing as a witness” before a public official in an “administrative * * * proceeding or investigation,” if he so requests, “shall be permitted to be accompanied, represented, and advised by an attorney.”

Applying the plain meaning of the statute to the facts of this case, we hold that, pursuant to R.C. 9.84, a police officer who is the subject of a police department internal affairs investigation and is compelled to appear before a superior officer for the purpose of answering questions during the course of the investigation is

“appearing as a witness” and, therefore, “shall be permitted to be accompanied, represented, and advised by an attorney.” The judgment of the court of appeals is reversed.

Judgment reversed.

Douglas, Resnick, Pfeifer and Lundberg Stratton, JJ., concur. Moyer, C.J., Cook and Lundberg Stratton, JJ., concur separately.

2 . Because the narrow question before us today involves the right to counsel arising in a statutory context, we leave for another day the issue of whether a departmental policy that requires members of the police force to respond to questions asked of them in any internal investigation or face disciplinary action violates constitutional rights against self-incrimination. But, see, Henneman v. Toledo (1988), 35 Ohio St.3d 241, 245-246, 520 N.E.2d 207, 211-212, fn. 4, and Jones v. Franklin Cty. Sheriff (1990), 52 Ohio St.3d 40, 48, 555 N.E.2d 940, 949 (Douglas, J., dissenting).