DocketNumber: No. L-07-1155.
Citation Numbers: 174 Ohio App. 3d 488, 2008 Ohio 243, 882 N.E.2d 952
Judges: Handwork, Pietrykowski, Singer
Filed Date: 1/25/2008
Status: Precedential
Modified Date: 10/19/2024
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 490 {¶ 1} This case is before the court as an accelerated appeal from the April 6, 2007 judgment of the Lucas County Court of Common Pleas that affirmed appellant's removal from employment with the Lucas County Sheriff, appellee. For the reasons that follow, we affirm the decision of the common pleas court.
{¶ 2} Appellant, Ronald Slough, was employed by appellee as a deputy sheriff. In July 2004, Slough was subject to an internal investigation unrelated to this appeal, initiated by appellee, concerning possible domestic problems. On or about July 15, 2004, appellee removed Slough's weapons and ordnance from his home for "safekeeping." On October 18, 2004, Slough filed a complaint in replevin seeking return of the weapons and ordnance. On November 22, 2004, appellee was ordered to return all but six items belonging to Slough. Included in the items retained by appellee pending further investigation was a MAK-90 Sporter, semi-automatic rifle, and an Intratec AB-10, 9 mm semi-automatic pistol. Magazines capable of being used with each weapon were also retained. There was a 50-round box magazine suitable for the Intratec AB-10 and a 75-round drum magazine suitable for the MAK-90 Sporter.
{¶ 3} On November 23, 2004, the weapons were test-fired, and appellant was indicted on two counts of unlawful possession of dangerous ordnance in violation of R.C.
{¶ 4} Attendant to his November 2004 indictment, however, Slough was notified of his removal from his position as deputy sheriff, effective December 1, 2004, pursuant to R.C.
{¶ 5} "Deputy Sheriff Ron Slough did have in his possession certain weapons and/or ordnance that was illegal for him to possess which resulted in felony indictments being filed against him. DS Slough's actions of being in possession of these weapons/ordnance and being indicted for such possession violate rules # 1 — Law Violations3 and # 7 — Conduct Unbecoming an Employee4 of the Lucas County Sheriffs Office Rules and Regulations."
{¶ 6} On December 8, 2004, Slough timely appealed his removal with the state of Ohio, State Personnel Board of Review. On September 20, 2005, Slough filed a motion in limine with the board, requesting that any reference to the weapons seized from Slough's home be excluded on the basis of res judicata or collateral estoppel. Slough's motion was denied. On February 23, 2006, the administrative law judge ("ALJ") issued a report and recommendation finding that "the two felony counts for possession of illegal weapons/ordnance should remain a component" of Slough's R.C.
{¶ 7} Slough timely appealed the board's decision, pursuant to R.C.
{¶ 8} In particular, the common pleas court rejected Slough's argument that because the evidence in his criminal case had been suppressed, the board was precluded from considering any evidence concerning unlawfully seized weapons in his employment-termination hearing. The court noted that the constitutionality of the search was not being relitigated in Slough's employment-termination appeal and, thus, held that principles of collateral estoppel and res judicata were inapplicable. Rather, the court noted that the actual question before the court was whether the board erred by failing to utilize the exclusionary rule to preclude the use of illegally seized evidence in an administrative proceeding. The court held that the board did not err in considering evidence that had been suppressed in Slough's criminal case. The common pleas court found that (1) Slough's unlawful possession of dangerous ordnance is a direct reflection of his integrity, competency, and behavior as a deputy sheriff, (2) the weapons were seized out of "concern for the safety of the persons in the home after an informal interview with [Slough] and his wife over domestic issues," not in an effort to punish Slough or as a result of a criminal investigation, (3) any deterrence benefit was satisfied by suppression of the evidence in Slough's criminal case, and (4) to exclude such evidence from the board's consideration would "blind" the board and "deprive it of its duty to adjudicate proper enforcement of department standards, rules and regulations."
{¶ 9} The common pleas court additionally held that the board's decision was supported by reliable, probative, and substantial evidence and is in accordance with the law. Specifically, although an indictment alone does not indicate the existence of a reasonable probability that a law violation occurred, the common pleas court held that Slough did have in his possession certain weapons or ordnance that were illegal for him to possess because they were functioning and capable of firing more than 31 rounds in succession without reloading, in violation of R.C.
{¶ 10} On appeal to this court, Slough raises the following assignments of error:
{¶ 11} "Assignment of Error No. 1
{¶ 12} "The trial court ruled contrary to law in affirming the administrative law judge's determination that Appellant Ron Slough possessed ``illegal' or ``prohibited' weapons and was guilty by virtue of such possession of conduct unbecoming an officer.
{¶ 13} "Assignment of Error No. 2
{¶ 14} "The trial court's refusal to apply the exclusionary rule, which would have excluded from evidence in the administrative proceeding the ordnance which the employer, the Lucas County Sheriff's Office, seized in violation of Appellant's constitutional rights, is improper as a matter of law.
{¶ 15} "Assignment of Error No. 3
{¶ 16} "The trial court's finding that Ohio Administrative Code § 124:9-08 does not apply in Appellant's case is improper as a matter of law.
{¶ 17} "Assignment of Error No. 4
{¶ 18} "The trial court abused its discretion when it affirmed the administrative law judge's refusal to accept as relevant Appellant's evidence of disparate treatment."
{¶ 19} The authority of a common pleas court in the review of an order of an administrative agency is limited to a decision whether the order is "supported by reliable, probative, and substantial evidence and is in accordance with law." R.C.
{¶ 20} Slough argues in his first assignment of error that the common pleas court erred in finding that he possessed an unlawful weapon or ordnance because, although he had the weapons and magazines, the weapons were not capable of firing more than 31 rounds consecutively, without reloading, unless a magazine that could hold that many rounds was attached to the weapon. Because Slough stored the magazines separately from the weapons, he argues that while in his possession, the weapons were not unlawful and, therefore, there was no basis for his removal from employment.
{¶ 21} In support of his argument, Slough relies on Sizemore v. Flannery (June 23, 1982), 12th Dist. No. 60,
{¶ 22} We find that Rogers andSizemore are not dispositive of Slough's issue on appeal. First, Sizemore is distinguishable from this case because there was no mention that Sizemore had possession of any clip, let alone one that when attached to the weapon would have made it a dangerous ordnance. In this case, *Page 495 Slough had magazines that when attached to the weapons would cause the weapons to become dangerous ordnance. Secondly,Rogers concerns a criminal conviction. In this case, appellee did not have to establish beyond a reasonable doubt that Slough was guilty of possessing a dangerous ordnance in order to justify Slough's removal from employment.
{¶ 23} Rather, we hold that there was reliable, probative, and substantial evidence to support the board's finding that Slough's possessing weapons and magazines that when connected would render the weapons unlawful was sufficient to warrant Slough's removal on the basis that he engaged in conduct unbecoming a sheriff's deputy. Accordingly, we find Slough's first assignment of error not well taken.
{¶ 24} Slough argues in his second assignment of error that the trial court erred in refusing to apply the exclusionary rule to bar admission of evidence concerning the seized weapons. Specifically, Slough argues that "[a]bsent application of the exclusionary rule in administrative proceedings such as this, [appellee] would have unbridled ability to conduct illegal searches and seizures of its employees because the evidence obtained therein may not survive constitutional challenges in criminal court but would provide legitimate basis for disciplinary action up to and including the termination of employment." Slough argues that the ALJ used the incorrect balancing test to determine whether the exclusionary rule should apply and argues that as a deterrent for later seizures, appellee should be prohibited from using such evidence.
{¶ 25} Initially, we find that the board did not relitigate the issue of whether the weapons and ordnance were unlawfully seized without a warrant. Therefore, the principles of res judicata and collateral estoppel are inapplicable in this context. As the common pleas court correctly identified, the issue is whether the exclusionary rule would operate to bar the board from considering the existence of the weapons and ordnance. We find that the evidence need not be excluded from the board's consideration.
{¶ 26} In describing the exclusionary rule, the United States Supreme Court has stated the following:
{¶ 27} "When evidence is obtained in violation of the Fourth Amendment, the judicially developed exclusionary rule usually precludes its use in a criminal proceeding against the victim of the illegal search and seizure. Weeks v.United States (1914),
{¶ 28} "As with any remedial device, application of the exclusionary rule properly has been restricted to those situations in which its remedial purpose is effectively advanced. Thus, in various circumstances, the Court has examined whether the rule's deterrent effect will be achieved, and has weighed the likelihood of such deterrence against the costs of withholding reliable information from the truth-seeking process." Illinois v. Krull (1987),
{¶ 29} In Ohio, the exclusionary rule generally has not been extended to civil cases. State ex rel. RearDoor Bookstore v. Tenth Dist. Court of Appeals (1992), 63 Ohio St.3d 354,
{¶ 30} In order to apply the exclusionary rule, and prohibit the board from considering the weapons taken from Slough's home when making its determination, the potential deterrent effect of the exclusion must outweigh the "``substantial social costs exacted by the exclusionary rule.'"Krull,
{¶ 31} In this case, Slough voluntarily relinquished the key to his weapon cabinets prior to leaving his residence. Thereafter, it was determined that the weapons should be removed from the residence for safekeeping, not as part of any criminal investigation. No charges concerning domestic violence were ever pursued. Thus, the need for deterrence is not as apparent in this case as in others, because appellee was not attempting to use its authority to circumvent Slough's rights in order to gain incriminating evidence to use against him. Rather, the intention was merely to protect.
{¶ 32} Nevertheless, assuming arguendo that a desirable deterrent effect would occur by excluding the seized ordnance from the board's consideration, we agree with the common pleas court that any deterrent effect does not outweigh the societal costs imposed by the exclusion. Specifically, any additional deterrent effect on appellee, by precluding evidence of Slough's possession of unlawful ordnance, does not outweigh society's need to be governed by law enforcement officials who are not engaged in unlawful activity.
{¶ 33} Accordingly, we find that the common pleas court's decision was not contrary to law. Slough's second assignment of error is therefore not well taken.
{¶ 34} Slough argues in his third assignment of error that the common pleas court's determination that Ohio Adm. Code 124:9-08 applies only when an employee is convicted of a crime is unsupported by any authority or case law, and is not in accordance with law. We disagree.
{¶ 35} Ohio Adm. Code 124:9-08 merely states that "[c]onviction of any crime is not conclusive evidence that disciplinary action based upon the conviction is appropriate." Rather, one or more of the grounds set forth in R.C.
{¶ 36} Slough argues in his fourth assignment of error that the common pleas court abused its discretion when it affirmed the ALJ's refusal to accept as relevant Slough's evidence of disparate treatment. We disagree.
{¶ 37} The board and the common pleas court considered the evidence Slough submitted concerning his allegation of having been treated disparately from other sheriff's deputies, but found that his evidence was insufficient to establish disparate treatment. Upon review, we find that the board's decision was supported by reliable, probative, and substantial evidence, is in accordance with *Page 498 law, and that the common pleas court had a reasonable basis to affirm the board's decision. Slough's fourth assignment of error is therefore found not well taken.
{¶ 38} On consideration whereof, the court finds that substantial justice has been done the party complaining, and the judgment of the Lucas County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App. R. 24. Judgment for the clerk's expense incurred in preparation of the record, fees allowed by law, and the fee for filing the appeal is awarded to Lucas County.
Judgment affirmed.
PIETRYKOWSKI, P.J., and SINGER, J., concur.