Mordick v. Dayton

[Cite as Mordick v. Dayton, 2012-Ohio-289.]
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
:
PHILIP MORDICK
Plaintiff-Appellant : C.A. CASE NO. 24663
vs. : T.C. CASE NO. 2010 CV 9512
: (Civil Appeal from
CITY OF DAYTON Common Pleas Court)
Defendant-Appellee :
. . . . . . . . .
O P I N I O N
Rendered on the 27th day of January, 2012.
. . . . . . . . .
Robert L. Caspar, Jr., Atty. Reg. No. 0039625, 7460 Brandt Pike,
Huber Heights, OH 45424
Attorney for Plaintiff-Appellant
Thomas M. Green, Atty. Reg. No. 0016361, 109 North Main Street,
800 Performance Place, Dayton, OH 45402-1290
Attorney for Defendant-Appellee
. . . . . . . . .
GRADY, P.J.:
{¶ 1} This is an appeal from a final order of the court of
common pleas entered pursuant to R.C. 2506.04.
{¶ 2} Philip Mordick was employed as an officer for the City
of Dayton Police Department. On January 16, 2010, Mordick and
Officer Erica Cash were patrolling the Third District in Dayton.
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Mordick was driving the police cruiser and Officer Cash was a
passenger. During the morning hours, Mordick drove the cruiser
out of the Third District into the Second District, past his
personal residence on Coventry Road and down Smithville Road onto
Springfield Street. Mordick told Officer Cash that he was trying
to find his girlfriend who had been missing since the night before.
Officer Cash informed Mordick that she did not believe his actions
were proper. Mordick and Officer Cash then resumed their patrol
in the Third District.
{¶ 3} Later that afternoon, between 1:00 and 1:30 p.m., Mordick
again returned to the Second District, driving the police cruiser
past his residence on Coventry and then heading north on Smithville
Road and passing Springfield Street. Mordick recognized his
girlfriend’s vehicle and turned onto Byesville Boulevard, leaving
the City of Dayton and entering the City of Riverside. Mordick
parked the cruiser in the yard at 4337 Byesville Boulevard.
Mordick used the Mobile Data Terminal (“MDT”) in the cruiser to
inform dispatch that he and Officer Cash were en route to the police
department’s gasoline line located at 1830 E. Monument Avenue to
fill up the cruiser with gasoline. Mordick then went inside the
residence, leaving Officer Cash in the cruiser.
{¶ 4} Mordick was inside the residence for approximately ten
minutes. While Mordick was inside the residence, Officer Cash
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contacted Sergeant David Wolford and informed him that they were
parked in front of a residence on Byesville Road. When Mordick
returned to the cruiser, Sergeant Wolford contacted Mordick and
asked him where he was located. Mordick responded that he and
Officer Cash were at Smithville Road and Springfield Street.
Mordick then drove the cruiser to 1830 E. Monument Avenue to refuel
the cruiser.
{¶ 5} As a result of Mordick’s improper conduct, Sergeant
Wolford conducted an investigation of the events of January
16, 2010. Officer Cash, Mordick, and Sergeant Wolford
prepared and submitted Special Reports detailing the events
of January 16, 2010. Subsequently, Mordick was served with
notice of three separate charges against him, alleging
improper conduct in violation of Police Department rules.
Charge III specifically provided that a violation would result
in termination of his employment. The charge alleged a
violation of Rule 13, Section 2(B), in that Mordick engaged
in “Conduct unbecoming an employee in the public service,”
and/or Rule 13, Section 2(I), in that Mordick’s conduct
constituted a “[v]iolation of any enacted or promulgated
statute, ordinance, rule, policy, regulation, or other law.”
The charge contained the following specification:
{¶ 6} On or about January 16, 2010, at approximately 1:30
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p.m., you entered false information in the Mobile Data
Terminal when you entered your location as 1830 E. Monument
Avenue. This is in violation of the Dayton Police
Department’s Rules of Conduct for Sworn Personnel 8.5, the
pertinent provisions of which state:
ROC 8.5
No officer will knowingly falsify any report, document,
or record or cause to be entered any inaccurate, false,
or improper information on records, documents, or
reports of the Department or of any court or alter any
record, document, or report except by a supplemental
report, document, or report. If an investigation
reveals that an officer has violated this section, their
employment with the Dayton Police Department will be
terminated.
{¶ 7} Mordick entered a plea of no contest to the charges and
specifications and waived the departmental hearing before Chief
of Police Richard Biehl. After reviewing the evidence, Chief Biehl
recommended a finding of guilty of all the charges and
specifications and, as to Charge III, that Mordick be terminated
from employment. Mordick requested to change his no contest plea,
but Chief Biehl had already made a finding of guilty and denied
the request.
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{¶ 8} The City Manager adopted the findings of Chief Biehl
and found Mordick guilty as charged. Mordick was discharged from
employment under Charge III, Specification I.
{¶ 9} Mordick appealed to the City of Dayton Civil Service
Board (“the Board”), which held a hearing on October 14, 2010.
The parties submitted evidence at the hearing. Following the
hearing, the Board found that the discharge of Mordick was “in
accordance with law and is sustained.”
{¶ 10} Mordick appealed to the court of common pleas, which
affirmed the Board’s decision, finding that the decision of the
Civil Service Board was not “unconstitutional, illegal, arbitrary,
capricious or unreasonable” and “is supported by the preponderance
of substantial, reliable and probative evidence.” R.C. 2506.04.
Mordick filed a timely notice of appeal.
THIRD ASSIGNMENT OF ERROR
{¶ 11} “THE COURT OF COMMON PLEAS ERRED AS A MATTER OF LAW AND
FACT WHEN IT IMPROPERLY EXPANDED AND CHANGED THE CHARGE AGAINST
MORDICK IN ORDER TO UPHOLD THE FINDINGS OF THE CIVIL SERVICE BOARD.”
FOURTH ASSIGNMENT OF ERROR
{¶ 12} “THE COURT OF COMMON PLEAS ERRED AS A MATTER OF LAW AND
FACT WHEN IT FOUND THE DECISION OF THE DAYTON CIVIL SERVICE BOARD
WAS SUPPORTED BY A PREPONDERANCE OF SUBSTANTIAL, RELIABLE AND
PROBATIVE EVIDENCE.”
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{¶ 13} We will address the third and fourth assignments of error
together as they are interrelated.
{¶ 14} In Henley v. Youngstown Bd. of Zoning Appeals, 90 Ohio
St.3d 142, 147-48, 2000-Ohio-493, at ¶ 13-14, the Supreme Court
explained the standard of review to be applied in reviewing R.C.
Chapter 2506 administrative appeals:
Construing the language of R.C. 2506.04, we have
distinguished the standard of review to be applied by
common pleas courts and courts of appeals in R.C. Chapter
2506 administrative appeals. The common pleas court
considers the “whole record,” including any new or
additional evidence admitted under R.C. 2506.03, and
determines whether the administrative order is
unconstitutional, illegal, arbitrary, capricious,
unreasonable, or unsupported by the preponderance of
substantial, reliable, and probative evidence.
The standard of review to be applied by the court
of appeals in an R.C. 2506.04 appeal is “more limited
in scope.” (Emphasis added.) Kisil v. Sandusky (1984),
12 Ohio St.3d 30, 34, 12 OBR 26, 30, 465 N.E.2d 848,
852. “This statute 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
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include the same extensive power to weigh ‘the
preponderance of substantial, reliable and probative
evidence,’ as is granted to the common pleas court.”
{¶ 15} The court of common pleas correctly found that the
preponderance of substantial, reliable, and probative evidence
supported the Board’s order. Officer Cash and Sergeant Wolford
testified that Mordick knowingly falsified his location as 1830
E. Monument Avenue on January 16, 2010. Mordick also prepared
a Special Report that established this fact. During the time
Mordick stated that he was en route to or at 1830 E. Monument Avenue,
Mordick was actually outside the City of Dayton. The entry of
false information into the MDT, as established by the testimony
of Officer Cash and Sergeant Wolford, along with the Special Reports
prepared by Mordick, Officer Cash, and Sergeant Wolford, supports
the trial court’s decision.
{¶ 16} Mordick argues that the evidence can be construed to
find that he was “en route” to the location he entered in the MDT,
which undermines the finding of the Board that he made a false
report of his location. However, Mordick’s argument is undermined
by a number of facts.
{¶ 17} First, Mordick entered that information in the MDT when
he was instead either heading to or parked in front of a house
located outside the City of Dayton, where Mordick had gone in search
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of his girlfriend. Mordick then entered the house before
proceeding to the Monument Avenue location. The Board was entitled
to rely on that evidence to find a false report.
{¶ 18} Second, Mordick entered a plea of no contest to the charge
of making a false report when he was presented with the three charges
or specifications against him. The false report specification,
if found, requires a termination.
{¶ 19} Third, the Special Reports prepared by Officer Cash,
Sergeant Wolford, and Mordick, all support the finding that Mordick
intentionally entered false information into the MDT. For
example, Exhibit 9 at the hearing before the Board was a January
25, 2010 Special Report signed by Mordick. The Report states,
in part:
Around 0800 hours, I first drove by my home and then
down Smithville Rd toward Byesville Bl. I turned onto
Byesville Bl and turned right around after not seeing
her van. The second time, around 1330 hours, after
clearing our 11 I once again drove by my house and then
down Smithville Rd. To Byseville Bl. I at this time
put our disposition as enroute to the gas line. As I
turned onto Byesville Bl. I saw her van and stopped in
to speak to her and inquire of her whereabouts. I was
inside the residence for approximately ten minutes at
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which time there was no arguing or physical fighting
between Shonda and myself. Upon leaving, dispatch
called us on the radio and I gave the location of Findlay
and Springfield; although, we were actually at
Smithville and Springfield.
{¶ 20} We find equally unpersuasive Mordick’s argument that
the Board and the court of common pleas changed the nature of Charge
III in order to terminate Mordick’s employment. Rather, the
evidence of record, including the Special Reports and testimony
of Officer Cash and Sergeant Wolford, and Mordick’s Special Report
and his no contest plea, supports the finding that Mordick was
guilty of Charge III, which requires his dismissal from employment.
{¶ 21} The third and fourth assignments of error are overruled.
FIRST ASSIGNMENT OF ERROR
{¶ 22} “THE COURT OF COMMON PLEAS ERRED AS A MATTER OF LAW
AND FACT WHEN IT CONSIDERED FACTS THAT WERE NOT ADMITTED INTO
EVIDENCE AT THE HEARING BEFORE THE DAYTON CIVIL SERVICE BOARD TO
UPHOLD THE BOARD’S ORDER.”
{¶ 23} Mordick argues that the court of common pleas improperly
considered evidence that was not admitted into the record. In
particular, Mordick argues that Exhibits 1, 2, 3, 4, 11, and 12
were not admitted into evidence at the hearing but that the court
of common pleas nevertheless reviewed these exhibits. It does
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not appear that Mordick takes issue with anything in particular
in Exhibits 1, 2, 3, 11, or 12, and our review of the decision
of the court of common pleas does not indicate that the court placed
any reliance on these exhibits. Mordick points out that the court
of common pleas “used General Order 1.07-01 Communications as a
basis for its decision,” and that General Order was never admitted
into evidence.
{¶ 24} On pages 12 and 13 of its Decision and Order, the court
of common pleas references General Order 1.07-1. The court stated,
in part:
The aforementioned communication general orders suggest
that an officer is expected to advise dispatch, whether
by radio or MDT of their location. The general orders
also suggest to the court that getting out of the cruiser
and being in a residence for ten minutes could not be
consistent with being “en route” to a location.
{¶ 25} The court of common pleas made no further reference to
General Order 1.07-1. Rather, the court pointed out that the
testimony and the Special Reports of record supported the Board’s
decision to affirm Mordick’s termination from employment. This
testimony and the exhibits containing the Special Reports were
admitted into evidence and constitute a preponderance of
substantial, reliable, and probative evidence that supports the
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Board’s decision. Therefore, the court of common pleas did not
err as a matter of law in affirming the Board’s order.
{¶ 26} The first assignment of error is overruled.
SECOND ASSIGNMENT OF ERROR
{¶ 27} “THE COURT OF COMMON PLEAS ERRED AS A MATTER OF LAW AND
FACT WHEN IT DECIDED THAT THE CIVIL SERVICE BOARD GAVE MORDICK
A DE NOVO HEARING.”
{¶ 28} Mordick argues that the court of common pleas erred when
it found that the Board gave Mordick a de novo hearing. According
to Mordick, the only evidence the Board specifically referred to
in its Order affirming Mordick’s discharge from employment was
Mordick’s no contest plea. Therefore, Mordick argues:
since the Order of the Civil Service Appeal is based
on Mordick’s no contest plea, a de novo hearing by the
Board, which is required, was not performed. All of
the other evidence cited by the Board in its Conclusions
as the basis for its Order is spoken in generalities
and it is clear that the Board is using the no contest
plea as the legal basis for its upholding the termination
of Mordick. (Mordick Appellate Brief, p. 7.)
{¶ 29} The Board’s reference to or reliance upon Mordick’s prior
no contest plea does not mean that the Board necessarily failed
to give Mordick a de novo hearing. Black’s Law Dictionary 725
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(7th Ed. 1999) defines “hearing de novo” as “1. A reviewing court’s
decision of a matter anew, giving no deference to a lower court’s
findings. 2. A new hearing of a matter, conducted as if the
original hearing had not taken place.”
{¶ 30} It is undisputed that the Board held a hearing in which
it accepted testimony and reviewed exhibits submitted by the
parties. The Board’s findings of fact and conclusions of law
demonstrate that it did more than rely solely on Mordick’s no
contest plea. The fact that a portion of the evidence received
by the Board included the prior no contest plea Mordick entered
does not establish that the Board failed to give Mordick a new
hearing. A de novo hearing does not mean a hearing that ignores
every piece of evidence that was introduced in a prior
administrative hearing.
{¶ 31} The court of common pleas did not err when it found that
the Board gave Mordick a de novo hearing. The second assignment
of error is overruled.
{¶ 32} Having overruled the assignments of error, we will affirm
the judgment of the trial court.
FAIN, J. and KLINE, J. concur.
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(Hon. Roger L. Kline, Fourth District Court of Appeals, sitting
by assignment of the Chief Justice of the Supreme Court of Ohio).
Copies mailed to:
Robert L. Caspar, Jr., Esq.
Thomas M. Green, Esq.
Hon. Mary Katherine Huffman