Nosse v. Kirtland , 2022 Ohio 4161 ( 2022 )


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  • [Cite as Nosse v. Kirtland, 
    2022-Ohio-4161
    .]
    IN THE COURT OF APPEALS OF OHIO
    ELEVENTH APPELLATE DISTRICT
    LAKE COUNTY
    LANCE NOSSE,                                      CASE NO. 2022-L-032
    Appellant,
    Administrative Appeal from the
    - vs -                                    Court of Common Pleas
    CITY OF KIRTLAND, et al.,
    Trial Court No. 2021 CV 001063
    Appellees.
    OPINION
    Decided: November 21, 2022
    Judgment: Affirmed
    Frank Consolo, Consolo Law Firm Co., LPA, 627 West St. Clair Avenue, Cleveland, OH
    44113 (For Appellant).
    Sean T. Needham and Jack Maib, Reminger Co., LPA, 101 West Prospect Avenue,
    Suite 1400, Cleveland, OH 44115 (For Appellees).
    MATT LYNCH, J.
    {¶1}     Appellant, Lance Nosse, appeals from the judgment of the Lake County
    Court of Common Pleas, affirming the decision of appellee, the Kirtland City Council,
    removing Nosse from his position of Chief of Police for the City of Kirtland. For the
    following reasons, we affirm the decision of the lower court.
    {¶2}     On July 7, 2021, the Mayor of Kirtland, Kevin Potter, sent a letter to Nosse,
    indicating that he had officially submitted Nosse’s termination to the City Council for
    approval. The letter stated that it was “necessary to proceed with removal proceedings
    pursuant to Ohio Revised Code 733.35, * * * Kirtland’s Charter, and Kirtland Codified
    Ordinance 244.01(d)” and that Nosse should be terminated for cause “subject to the
    concurrence of two-thirds of the members of Council.” It further stated that pursuant to
    R.C. 733.35, Nosse was “guilty in the performance of [his] official duty of misfeasance,
    malfeasance, nonfeasance, misconduct in office, gross neglect of duty, and/or habitual
    drunkenness.” Charges alleged in the letter included violation of the police department’s
    vehicle use policy for driving after consuming alcohol and with an open container; conduct
    unbecoming of an officer for driving after drinking and use of profane language, sexual
    comments, and racial comments; lying regarding use of his cell phone; neglect of duty for
    having long absences during work hours; use of alcohol off duty discrediting himself and
    the department; misuse of the city cell phone; damage to his city vehicle; and mocking
    and belittling subordinates.
    {¶3}   Nosse’s counsel sent a letter requesting that the hearing before the City
    Council be conducted in public pursuant to R.C. 121.22(G)(1). A hearing on Nosse’s
    termination was held on August 2 and 3, 2021.
    {¶4}   Teresa Szary, Assistant to the Mayor, testified that in March 2021, she
    discovered that a government issued phone used by Nosse had gone significantly over
    the text message limit, resulting in a fee of approximately $80. Nosse denied being aware
    of the limit on the messages. Szary testified that most of the text messages were to a
    city councilwoman.
    {¶5}   Amy Buchanan, a police records clerk, testified that during March and April
    2021, she noticed that Nosse was in the office less than normal, had been raising his
    voice at employees, and had arguments with the dispatcher. She complained that Nosse
    was not present to complete necessary paperwork. She heard Nosse use the “n word”
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    Case No. 2022-L-032
    at the police station “frequently” and saw him give people the finger in “a hey how are you
    doing fashion.” She overheard comments about sexual acts a female officer performed
    with another woman. She also was aware that Nosse had made a comment about a
    Mexican officer who was seeking a transfer, asking another officer if he was “going to
    take my [Nosse’s] Mexican.”
    {¶6}   Cynthia Gabor, Nosse’s administrative assistant, stated that she heard him
    use foul language in the department and requested that he stop. She also observed him
    in his city-issued vehicle with a bottle or can of beer.
    {¶7}   Sergeant Eric LaTurner described an incident in early 2021 during which he
    picked up Chief Nosse at a councilwoman’s house pursuant to Nosse’s request and
    brought him to the station. At that time, Nosse appeared intoxicated and LaTurner
    observed Nosse drinking in his office. Nosse then left the department in his city-issued
    vehicle. LaTurner also explained that he had made a complaint to the police union with
    other officers in February relating to Nosse’s drinking impacting his work, with LaTurner
    observing him being absent from the office.
    {¶8}   Sergeant Jamey Fisher also testified that he had concerns that the chief
    was not always present in the office or responsive to communications. Nosse told Fisher
    he had been leaving work during the day to meet a councilwoman, with whom it was
    alleged he was having an affair, in parking lots. In April 2021, Nosse came to Fisher’s
    house and invited the councilwoman over as well. Nosse was drinking while in the home
    and his behavior made Fisher uncomfortable. He asked the two to leave and they
    remained in his driveway for several hours, Nosse urinated in his yard, and they each
    drove away in their own vehicles after midnight. He opined that Nosse driving his vehicle
    3
    Case No. 2022-L-032
    after drinking violated the City of Kirtland’s vehicle use policy. The policy, which Nosse
    had reviewed and signed as a condition of employment in February 2020, provides that
    improper or unsafe use of city vehicles will not be tolerated and can result in termination
    of employment. It further provides that an employee shall not operate a city vehicle with
    a blood alcohol concentration of higher than .08. It also states that “[i]t will be conclusively
    presumed that the employee is under the influence of such alcohol * * * if such alcohol *
    * * is used within six hours prior to engaging in such activities.” An inventory of Nosse’s
    vehicle was subsequently performed and an alcohol bottle cap was discovered inside.
    {¶9}   Mayor Kevin Potter testified that in January 2021, Nosse requested a raise.
    They had a meeting where Potter inquired whether Nosse had been at a resident’s house
    late in the evening consuming excessive amounts of alcohol. Nosse admitted drinking
    but said he was not in his city vehicle. Potter decided not to give him the raise due to
    these concerns. Subsequently, after the incident at Sergeant Fisher’s house, Nosse
    informed Potter that he had problems at home and needed some time to handle them.
    Fire Chief Hutton, who had been advised by Fisher of his concerns, informed Potter of
    these issues, including the affair with the councilwoman, use of racial epithets in the police
    department, and a potential “hostile work environment.” Potter spoke to Nosse and told
    him he must take personal medical leave or be put on unpaid leave. On April 16, 2021,
    Potter sent an e-mail to Nosse which noted they had a conversation and he agreed to
    take a leave of absence. Pursuant to evidence presented at the hearing, Nosse was
    granted leave under the Family Medical Leave Act on April 20, 2021. After seeing the
    video of the incident at Fisher’s house, Potter decided an investigation of Nosse’s conduct
    was required, which led to his subsequent decision to raise charges against Nosse.
    4
    Case No. 2022-L-032
    {¶10} Nosse admitted that he was an alcoholic but had sought treatment
    beginning April 16, 2021, to address this concern. He had told Szary he would pay for
    the cell phone bill overage, although he had been unaware of the limits of its use. He did
    not admit or deny using the “n word” or the “f word.” He admitted that officers would
    sometimes drink in the police department to celebrate special occasions.
    {¶11} Nosse explained that he went to Fisher’s house while off duty. He believed
    that he was permitted to use his vehicle as he saw fit. Nosse explained that he often had
    responsibilities outside of the office which led to him leaving during the day.
    {¶12} Following closing arguments, the Council moved, over objection of Nosse,
    to enter into executive session to deliberate and review evidence. On August 3, 2021,
    the Council decided, by a vote of 6-1, to terminate Nosse from his position.
    {¶13} Nosse filed an appeal from the decision of the Council in the Lake County
    Court of Common Pleas. On March 31, 2022, the court issued an Opinion and Judgment
    Entry affirming Nosse’s removal from his position. The court found no error in the Council
    moving to executive session to evaluate evidence presented at a public hearing. The
    court outlined evidence presented relating to Nosse’s conduct both while on and off duty
    and determined that there was no abuse of discretion by the Council “in their
    determination that Nosse’s professional and personal behavior constituted unbecoming
    conduct in violation of the City of Kirtland Police Department Rules and Regulations.”
    {¶14} On appeal, Nosse raises the following assignments of error:
    {¶15} “[1.] The common pleas court erred in its interpretation and application of
    R.C. 121.22(G)(1) by deciding that the Appellee Kirtland City Council had the right to
    deliberate in executive session at the conclusion of the evidentiary hearing held pursuant
    5
    Case No. 2022-L-032
    to R.C. 733.36 to consider the Mayor’s termination of employment of Police Chief Nosse,
    despite Police Chief Nosse demanding that the hearing be conducted in public, and not
    in executive session, thereby validating Council’s concurrence with the Mayor’s decision
    to terminate the employment of Police Chief Nosse.
    {¶16} “[2.] The common pleas court erred in its application and interpretation of
    R.C. 124.34 and Kirtland Cod. Ord. Sect. 244.01(d) by deciding that Police Chief Nosse
    could be removed from office for violations of the Kirtland Police Department Rules and
    Regulations.
    {¶17} “[3.] The common pleas court erred in its application and interpretation of
    R.C. 733.35 by deciding that engaging in certain unbecoming conduct, on and off of duty,
    in violation of the Kirtland Police Department Rules and Regulations is sufficient evidence
    to support the Mayor’s charges pursuant to R.C. 733.35 that Police Chief Nosse, in the
    performance of his official duty, engaged in acts of misfeasance, nonfeasance,
    misconduct in office, gross neglect of duty, and/or habitual drunkenness, such that he
    may be removed from office pursuant to R.C. 733.35.”
    {¶18} Nosse brought the present appeal pursuant to R.C. Chapter 2506, which
    provides for appeals to the court of common pleas from orders or decisions of divisions
    of a political subdivision. R.C. 2506.01(A). In such appeals, the common pleas court
    considers whether the administrative decision “is unconstitutional, illegal, arbitrary,
    capricious, unreasonable, or unsupported by the preponderance of substantial, reliable,
    and probative evidence on the whole record.” R.C. 2506.04. “Thereafter, an appellate
    court’s review of the judgment of the trial court is more limited than that of the court of
    common pleas.” E. Main St. Lofts v. City of Kent Planning Comm., 11th Dist. Portage No.
    6
    Case No. 2022-L-032
    2019-P-0069, 
    2019-Ohio-5312
    , ¶ 5. “This court’s review is whether, as a matter of law,
    the decision of the court of common pleas is supported by a preponderance of reliable,
    probative, and substantial evidence.” Jones v. Hubbard Twp. Bd. of Zoning Appeals, 11th
    Dist. Trumbull No. 2014-T-0041, 
    2015-Ohio-2300
    , ¶ 7; Kisil v. Sandusky, 
    12 Ohio St.3d 30
    , 34, 
    465 N.E.2d 848
     (1984).
    {¶19} R.C. 2506.04 “grants a more limited power to the court of appeals to review
    the judgment of the common pleas court only on ‘questions of law,’ which does not include
    the same extensive power to weigh ‘the preponderance of substantial, reliable and
    probative evidence,’ as is granted to the common pleas court. Within the ambit of
    ‘questions of law’ for appellate court review would be abuse of discretion by the common
    pleas court.” Kisil at 34, fn. 4; Shelly Materials, Inc. v. Streetsboro Planning and Zoning
    Comm., 
    158 Ohio St.3d 476
    , 
    2019-Ohio-4499
    , 
    145 N.E.3d 246
    , ¶ 17 (“[a]part from
    deciding purely legal issues, the court of appeals can determine whether the court of
    common pleas abused its discretion * * * in deciding that an administrative order was or
    was not supported by reliable, probative, and substantial evidence”).
    {¶20} In his first assignment of error, Nosse argues that Kirtland City Council was
    not permitted to deliberate his termination in executive session. In support, he cites to
    Conner v. Village of Lakemore, 
    48 Ohio App.3d 52
    , 
    547 N.E.2d 1230
     (9th Dist.1988), and
    an accompanying line of cases, for the proposition that R.C. 121.22 prohibits holding an
    executive session to consider dismissal of a police chief. The Council argues that Conner
    is inapplicable and this court should consider more recent authorities which clarify
    principles relating to open meetings, emphasizing that quasi-judicial proceedings do not
    prohibit retiring to executive session prior to termination of an employee.
    7
    Case No. 2022-L-032
    {¶21} Pursuant to R.C. 121.22(A): “This section shall be liberally construed to
    require public officials take official action and to conduct all deliberations upon official
    business only in open meetings unless the subject matter is specifically excepted by law.”
    R.C. 121.22(G)(1) provides that “the members of a public body may hold an executive
    session * * * at a regular or special meeting for the sole purpose of the consideration of
    any of the following matters: * * * [t]o consider the appointment, employment, dismissal,
    discipline, promotion, demotion, or compensation of a public employee or official, or the
    investigation of charges or complaints against a public employee, official, licensee, or
    regulated individual, unless the public employee, official, licensee, or regulated individual
    requests a public hearing.” “A * * * formal action adopted in an open meeting that results
    from deliberations in a meeting not open to the public is invalid unless the deliberations
    were for a purpose specifically authorized in division (G) or (J) * * * and conducted at an
    executive session held in compliance with this section.” R.C. 121.22(H).
    {¶22} In Conner, a police chief was dismissed from his position by the mayor. The
    chief requested a public hearing before the city council in the appeal of his dismissal.
    Conner at 53. Evidence was heard at a public hearing and the council then called an
    executive session to review the evidence and determine whether to uphold the dismissal.
    It returned to the public hearing and took a formal vote to uphold the mayor’s action. Id.
    at 53-54. The appellate court held that, “R.C. 737.19 [setting forth procedures for removal
    of an officer in a village] authorizes a hearing, and dictates that it should be held at a
    regularly scheduled meeting of the village legislative authority.      Where a hearing is
    statutorily authorized, and a public hearing is requested, R.C. 121.22(G) precludes the
    holding of an executive session to consider the dismissal of a public employee or official.”
    8
    Case No. 2022-L-032
    Id. at 54. It found that the council’s actions were invalid and vacated the court’s judgment.
    Id. Nosse correctly observes that this case is factually similar to the present matter.
    {¶23} Conner has been cited in support of the proposition that “[o]nly when a
    hearing is statutorily authorized, and a public hearing is requested, does R.C. 121.22(G)
    operate as a bar to holding an executive session to consider the dismissal of a public
    employee.” Schmidt v. Village of Newtown, 1st Dist. Hamilton No. C-110470, 2012-Ohio-
    890, ¶ 26; Stewart v. Bd. of Edn. of Lockland School Dist., 1st Dist. Hamilton No. C-
    130263, 
    2013-Ohio-5513
    , ¶ 14. The Ohio Supreme Court affirmed the opinion in Stewart,
    holding that “[a] public employee can require that a hearing about his employment status
    be held in public under R.C. 121.22(G)(1) only when the employee is otherwise entitled
    to a public hearing.” Stewart v. Lockland School Dist. Bd. of Edn., 
    144 Ohio St.3d 292
    ,
    
    2015-Ohio-3839
    , 
    42 N.E.3d 730
    , ¶ 15. See also Matheny v. Frontier Local Bd. of Edn.,
    
    62 Ohio St.2d 362
    , 366, 
    405 N.E.2d 1041
     (1980) (“Under [R.C. 121.22(G)(1)], a public
    body may meet in executive session to consider the employment of a public employee,
    unless the public employee ‘requests a public hearing.’ In that event, an open session
    must be held.”). While these cases recognize when a public hearing is not required, they
    do not examine this issue in the same manner as Conner since they do not involve a party
    entitled to such hearing.
    {¶24} A similar issue to that raised in Conner was addressed in Gross v. Village
    of Minerva Park Village Council, S.D.Ohio No. 2:12-cv-00012, 
    2012 WL 4009604
     (Sept.
    12, 2012). In that matter, a police officer who appealed his termination by the mayor to
    the city council requested a public hearing relating to his removal, evidence was
    presented at that hearing, and the council convened an executive session to deliberate
    9
    Case No. 2022-L-032
    removal. The Gross opinion addressed the alleged error in failing to comply with R.C.
    121.22(G)(1). It observed the lack of on point Ohio Supreme Court authority on this issue
    and, in rejecting Conner, pointed to Supreme Court cases offering “considerable guidance
    in substantially similar frameworks,” citing to TBC Westlake, Inc. v. Hamilton Cty. Bd. of
    Revision, 
    81 Ohio St.3d 58
    , 
    689 N.E.2d 32
     (1998), and State ex rel. Ross v. Crawford
    Cty. Bd. of Elections, 
    125 Ohio St.3d 438
    , 
    2010-Ohio-2167
    , 
    928 N.E.2d 1082
    . Id. at *5.
    {¶25} In TBC Westlake, the Ohio Supreme Court was faced with an appeal
    relating to the valuation of property for taxation purposes. It addressed the applicability
    of R.C. 121.22 and public meetings requirements to such proceedings. It observed that
    an adjudication of the Board of Tax Appeals is a quasi-judicial proceeding and although
    hearings are open to the public, “like all judicial bodies, [it] requires privacy to deliberate,
    i.e., to evaluate and resolve, the disputes.” Id. at 62. It determined that “the Sunshine
    Law does not apply to adjudications of disputes in quasi-judicial proceedings.” Id. A
    quasi-judicial proceeding has been described as “one ‘in which notice, a hearing, and the
    opportunity for the introduction of evidence have been given.’” Downie v. Lake Metro.
    Hous. Auth., 11th Dist. Lake No. 2014-L-060, 
    2015-Ohio-811
    , ¶ 14, citing AT&T
    Communications of Ohio, Inc. v. Lynch, 
    132 Ohio St.3d 92
    , 
    2012-Ohio-1975
    , 
    969 N.E.2d 1166
    , ¶ 8.
    {¶26} In reaching this conclusion, the Supreme Court cited Angerman v. State
    Med. Bd. of Ohio, 
    70 Ohio App.3d 346
    , 
    591 N.E.2d 3
     (10th Dist.1990), wherein the state
    medical board decided to revoke appellant’s medical license and did not conduct its
    deliberations in a meeting open to the public. The court found that “[a]lthough R.C.
    121.22 makes no general exception for judicial or quasi-judicial deliberations, * * * it
    10
    Case No. 2022-L-032
    necessarily follows that such deliberations are not intended to be within the purview of
    the open-meeting requirement of R.C. 121.22.” Id. at 351. The court determined that the
    reference to a public hearing contained in R.C. 121.22(G)(1) related to the “hearing itself
    and not to deliberations of the adjudicatory body after the hearing is completed” and that
    such deliberations need not be open to the licensee or the public. Id. at 352.
    {¶27} In Ross, the Ohio Supreme Court, considering a board of elections hearing
    on an individual’s right to vote, again emphasized that “a quasi-judicial hearing is not a
    meeting for purposes of this [R.C. 121.22] definition, and hence is not subject to the open
    meeting requirements.” (Citation omitted.) 
    125 Ohio St.3d 438
    , 
    2010-Ohio-2167
    , 
    928 N.E.2d 1082
    , at ¶ 25.
    {¶28} Based on this authority, the Gross opinion concluded that the same
    rationale should apply to the circumstances similar to those here. In both Gross and the
    present matter, the plaintiff requested a public hearing on removal, the hearing was held,
    the plaintiff was permitted to present evidence and argument in his defense while
    represented by counsel, and the city council ultimately deliberated in executive session.
    We agree with the conclusion reached in Gross, with the support of the authority in other
    quasi-judicial proceedings, that the decision to hold deliberations and review evidence in
    executive session does not provide a claim for relief under the Open Meetings Act. Gross,
    
    2012 WL 4009604
    , at *7.
    {¶29} The first assignment of error is without merit.
    {¶30} In his second assignment of error, Nosse argues that the court erred in
    determining the Rules and Regulations of the Department supported removal because
    he was not part of the civil service and “to the extent that the * * * decision can be read
    11
    Case No. 2022-L-032
    as deciding that Police Chief Nosse was removed * * * for just cause pursuant to Cod.
    Ord. Sec. 244.01(d), that ordinance” cannot be enforced because it conflicts with the City
    Charter and R.C. 733.35.
    {¶31} Section 10.73 of the Kirtland Police Department Rules and Regulations
    states that members of the department “shall hold their positions during good behavior
    and efficient service but may be removed for the following reasons, as listed in the Ohio
    Revised Code, Section 124.34: ‘Incompetence, Inefficiency, Dishonesty, Drunkenness,
    Immoral Conduct, Insubordination, Discourteous Treatment of the Public, Neglect of Duty,
    Violation of the Civil Service Laws or the Rules of the Civil Service Commission, or any
    other failure of good behavior, or any other acts of Misfeasance, Malfeasance, or
    Nonfeasance in Office.’” R.C. 124.34(A) provides that the tenure of “every officer or
    employee in the classified service of the state and the counties, civil service townships,
    [and] cities * * * shall be during good behavior” but they may be removed or suspended
    for those behaviors listed above.
    {¶32} Regardless of whether R.C. 124.34 applied to Nosse, an issue he admits
    he did not raise below, we do not find this impacts the present matter. The lower court
    did not state that it relied on this statute in order to justify his termination, nor did the
    Council do so. The fact that the court discussed the police department rules does not
    mean that it relied on this statute, as it emphasized misfeasance, malfeasance,
    misconduct in office, and neglect of duty, all of which are proper grounds for termination
    under R.C. 733.35, the statute under which Nosse argues this matter properly proceeded.
    Charges can be filed, and a termination hearing before the city council pursued, when the
    “officer has been guilty, in the performance of his official duty, of bribery, misfeasance,
    12
    Case No. 2022-L-032
    malfeasance, nonfeasance, misconduct in office, gross neglect of duty, gross immorality,
    or habitual drunkenness.” R.C. 733.35. To the extent that the lower court considered the
    Kirtland Police Department Rules and Regulations, as we will discuss below,
    consideration of the violation of these regulations is not improper in supporting a decision
    that he was properly terminated as the rules tend to show whether his acts rose to the
    level of fireable misconduct.
    {¶33} Nosse also argues that Kirtland Codified Ordinance 244.01 conflicts with
    R.C. 733.35 and could not be applied here.
    {¶34} K.C.O. 244.01(d) provides: “The Mayor may remove the Chief from office
    for just cause; provided, however, that such removal shall not take effect without the
    concurrence of two-thirds of the members of Council.” We do not find that this conflicts
    with R.C. 733.35 and .36, which allow for removal for various reasons requiring cause,
    including “bribery, misfeasance, malfeasance, nonfeasance, misconduct in office, gross
    neglect of duty, gross immorality, or habitual drunkenness” and provide for the hearing of
    the filing of charges by the mayor and removal by two-thirds of the Council. Further, even
    accepting that R.C. 733.35 was the correct standard for terminating Nosse, the court did
    not state it relied on K.C.O. 244.01 in finding it was proper to uphold the Council’s decision
    and it is evident these proceedings were instituted based on violations of R.C. 733.35,
    which the Mayor stated in his termination letter. There was no violation of the Charter as
    it requires compliance with the Revised Code, as noted by Nosse. Further, as will be
    addressed below, the court did not err in affirming the Council’s decision as it was
    consistent with R.C. 733.35.
    {¶35} The second assignment of error is without merit.
    13
    Case No. 2022-L-032
    {¶36} In his third assignment of error, Nosse argues that the lower court could
    only consider conduct that was committed as part of his official duty to justify his removal
    pursuant to R.C. 733.35 and the court’s findings were related to rule violations rather than
    conduct committed in the scope of his duty as police chief. A review of the record does
    not reveal an abuse of discretion in the court’s determination that his dismissal was
    supported by reliable, probative, and substantial evidence.
    {¶37} As described above, R.C. 733.35 provides for the mayor to bring charges
    against the police chief to the city council for several reasons, including, inter alia, “in the
    performance of his official duty, * * * misfeasance, malfeasance, * * * misconduct in office,
    gross neglect of duty, gross immorality, or habitual drunkenness.”           Here, there was
    evidence presented at the Council hearing that Nosse committed acts falling under this
    statute both while on duty as chief as well as while off duty. Witnesses observed that he
    had used the “n word,” i.e., an inappropriate racial term, frequently while working in his
    capacity within the police department as well as made comments about other officers’
    sexual conduct. He also was accused of repeatedly being unavailable or not present
    during normal working hours of the police department.
    {¶38} Other acts, such as drinking before driving his city-issued vehicle and
    displays of “drunkenness” took place while he was not working directly in his capacity as
    police chief and outside of his typical working hours. At least one court has observed that
    “the performance of official duty” should be construed broadly and is not limited to specific
    tasks in one’s job duties like providing emergency services, emphasizing inclusion of
    “bribery” and “gross immorality” as misconduct generally unrelated to the work tasks of a
    firefighter. Gasper v. Washington Twp., 10th Dist. Franklin No. 02AP-1192, 2003-Ohio-
    14
    Case No. 2022-L-032
    3750, ¶ 20. It also drew an analogy to the use of the term misconduct “in office” used in
    R.C. 124.34 [relating to termination of classified service employees], which has been
    applied by various courts finding misconduct that is not job-related provides grounds for
    termination. Id. at ¶ 21, citing O’Harra v. Columbus City School Dist. Bd. of Edn., 10th
    Dist. Franklin No. 88AP-149, 
    1989 WL 27163
    , *2-3 (Mar. 23, 1989) (OVI committed by
    school truck driver outside of work duties warranted termination); Perry v. Miamisburg, 2d
    Dist. Montgomery No. 14682, 
    1995 WL 324636
    , *3 (May 17, 1995) (rape conviction
    unrelated to work constituted immoral conduct and “[c]onduct of that type by a public
    employee is detrimental to the confidence which the public must have in government and
    its employees”).
    {¶39} Moreover, there is no question that much of the conduct committed by
    Nosse, whether on or off duty, violated the Rules and Regulations of the Kirtland Police
    Department which Nosse stated at the hearing were applicable to him. Regardless of
    whether he could be terminated under the terms of the department rules for his conduct,
    his violation of the rules is a relevant consideration when determining whether his conduct
    satisfied the standards set forth in R.C. 733.35 and violated his duties as a police chief.
    {¶40} For example, Rule 10.6 provides that “[m]embers of the Police Department
    shall conduct themselves at all times, both on and off duty, in such a manner so to reflect
    most favorably on the Department” and Rule 10.20 that “Members of the Police
    Department while off duty shall refrain from consuming intoxicating beverages to the
    extent that it results in impairment, obnoxious or offensive behavior which discredits them
    or the Department.” Nosse’s activities of drinking in his office, whether on or off duty, do
    not reflect favorably on the department. The testimony relating to his visit to Fisher’s
    15
    Case No. 2022-L-032
    house reflected that he urinated outside and was acting in a manner consistent with
    intoxication, a fact shown in the videos outside of Fisher’s home. The witness testimony
    also demonstrated that he had carried alcoholic beverages in his work vehicle and stored
    alcohol in his office. This conduct also violates Rule 10.17: “Members of the Police
    Department shall not store or bring into any police facility or vehicle alcoholic beverages.”
    While these rules may not all apply to conduct committed while “on duty,” it is evident
    compliance with the rules themselves were part of Nosse’s duties as the police chief. For
    example, in Fulmer v. W. Licking Joint Fire Dist., 5th Dist. Licking No. 16-CA-8, 2016-
    Ohio-5301, the decision to terminate a fire chief under R.C. 733.35, in part due to a
    violation of the fire district’s technology policy through use of a laptop for inappropriate
    purposes outside of the workplace, was upheld.
    {¶41} Further, certain conduct committed, while not during his typical work hours,
    can be perceived as done in his official capacity, such as drinking while in his office at the
    department. This court has observed that where a fire chief was not on duty but appeared
    at the scene of a fire while under the influence of alcohol in violation of fire department
    rules, his appearance “is perceived to be in his official capacity” and was relevant in
    determining whether he should be terminated under R.C. 733.35. Duvall v. Deerfield
    Twp. Bd. of Trustees, 11th Dist. Portage No. 1698, 
    1987 WL 8463
    , *3 (Mar. 27, 1987).
    Nosse’s activity blurred the lines between on duty and off duty conduct.
    {¶42} Even if the Council and court had not considered conduct committed while
    “off duty,” the use of racially derogatory language, statements about employees’ sexual
    conduct, concerns expressed by employees that he was frequently distracted or not
    present in the office, and drinking in his office were valid concerns relating to his conduct
    16
    Case No. 2022-L-032
    in his role of police chief that supported the finding made below.
    {¶43} The third assignment of error is without merit.
    {¶44} For the foregoing reasons, the judgment of the Lake County Court of
    Common Pleas, affirming Nosse’s termination as police chief, is affirmed. Costs to be
    taxed against appellant.
    THOMAS J. WRIGHT, P.J.,
    JOHN J. EKLUND, J.,
    concur.
    17
    Case No. 2022-L-032