Tell v. Cleveland

[Cite as Tell v. Cleveland, 2020-Ohio-3115.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
WILLIAM TELL, :
Plaintiff-Appellant, :
No. 108137
v. :
CITY OF CLEVELAND, :
Defendant-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: May 28, 2020
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-15-838323
Appearances:
Samuel R. Smith II, for appellant.
Zashin & Rich, Co., L.P.A., Jon M. Dileno, and Ami J.
Patel, for appellee.
FRANK D. CELEBREZZE, JR., P.J.:
Plaintiff-appellant, William Tell (“appellant”), brings the instant appeal
challenging the trial court’s judgment upholding the decision of the Civil Service
Commission (“Commission”) terminating his employment with the defendant-
appellee, the city of Cleveland (“City”). Appellant argues that the City did not have
just cause to terminate his employment and that the trial court erred in upholding
his termination. After a thorough review of the record and law, this court affirms.
I. Factual and Procedural History
Appellant was employed as the security manager1 for the City’s
Department of Public Utilities since 2001. As security manager, appellant was
responsible for the security of several public utility facilities, including four of the
City’s water treatment facilities that are the subject of the instant appeal. Appellant
supervised approximately 55 security guards, some of whom were stationed at these
water treatment facilities.
On October 16, 2012, appellant was issued a three-day suspension as a
result of a security failure at the Kirtland Pump Station (“Kirtland”) located on
Cleveland’s near east side. The main gate at Kirtland was not working properly, and
the gate had apparently been propped open since June 2012. Appellant was aware
of the issue with the gate as of June 21, 2012. Appellant failed to ensure that security
guards were staffed at the gate, and cameras positioned throughout the premises
were not functioning.
On September 11, 2012, a local television news station’s investigative
reporter was able to gain access into the Kirtland facility through this
malfunctioning gate. The reporter walked around the premises, attempted to open
1 The parties’ briefs also refer to appellant’s position as “Chief of Security” and
“Chief of Police.” Appellant’s official position was Chief of the Public Utilities Police
Division.
doors, and made “hand waving” gestures to the cameras. This reporter’s efforts were
filmed and later aired on local television.
As a result of the incident involving the investigative reporter, appellant
was later suspended for three days because he failed to take any action with regard
to the gate, did not place a security guard at the gate, and did not advise his
management of the condition of the gate. As part of appellant’s job duties and
responsibilities, appellant was to draft a bimonthly report to his supervisor detailing
security issues. Appellant completed his bimonthly reports during this timeframe,
but he failed to mention the malfunctioning gate at the Kirtland facility in his
reports.
On May 24, 2013, a dump truck was exiting the Garret Morgan Water
Treatment Plant (“Morgan”) through a gate on West 49th Street. The dump truck
drove through the exit as the gate was closing. The dump truck damaged the gate,
ripping the gate from its moorings. Appellant ordered the gate to be remedied with
traffic cones and caution tape. Appellant again failed to notify his supervisors of this
damaged gate.
On June 3, 2013, the same investigative reporter filmed the damaged
gate at the Morgan facility. This reporter also contacted appellant’s supervisor and
inquired as to the damaged gate. In his May 29, 2013 bimonthly report to his
supervisor, appellant failed to mention the damaged gate at the Morgan facility.
As a result of the incident at the Morgan facility, appellant was charged
with violations of Civil Service Rule 9.10(1) “neglect of duty”; (3) “incompetence or
inefficiency in performance of duties”; and (18) “other failure of good behavior
which is detrimental to the service or any other act of misfeasance, malfeasance or
nonfeasance in office.” After appellant was charged with the violations, he was
terminated from his position as security manager on July 10, 2013. On July 11, 2013,
appellant sent a notice of appeal of his termination to Cleveland’s Civil Service
Commission.
A three-day hearing was held on July 9, 10, and 11, 2014, in front of a
referee. The referee issued an opinion on September 11, 2014, recommending that
the City’s termination of appellant be upheld. The City adopted the referee’s
recommendation, and appellant filed an appeal to the Commission.
On November 14, 2014, both appellant and the City presented
arguments to the Commission. The Commission upheld the City’s decision to
terminate appellant on December 15, 2014.
On January 2, 2015, appellant filed a notice of appeal of the
Commission’s decision to the Cuyahoga County Court of Common Pleas pursuant to
R.C. Chapter 2506. The trial court set a briefing schedule for the parties to file their
respective briefs. Appellant filed his brief on May 11, 2015. Therein, appellant
argued that his termination should be modified to “suspension with appropriate
back wages and attorney’s fees because the City’s decision is unconstitutional,
arbitrary and capricious and not based upon reliable probative and substantial
evidence.”
The City filed its answer brief on June 11, 2015. Therein, the City
argued that the Commission’s decision and appellant’s termination should be
affirmed.
More than two years after he filed his brief, appellant filed a motion to
introduce new evidence on September 18, 2017. Appellant sought to introduce
photographic evidence that he argued demonstrated that the City was continuing to
utilize the security measures that resulted in his termination. On September 25,
2017, the City filed its brief in opposition to appellant’s motion to introduce new
evidence. On November 21, 2018, the trial court issued a judgment entry denying
appellant’s motion to introduce new evidence.
On December 27, 2018, appellant filed a supplemental motion to
introduce new evidence. Appellant again sought to introduce photographic
evidence that he argued demonstrated that the City was continuing to utilize the
security measures that resulted in his termination. The trial court did not rule on
this motion.
On the same day, December 27, 2018, the trial court issued a judgment
entry upholding the decision of the Commission. The trial court’s judgment entry
provided, in relevant part,
Appellant, in his capacity as the [City’s] Chief of Security for the Public
Utilities Department, was responsible for security at a number of public
utilities facilities, including the City’s four water treatment plants. In
September 2012, the City learned that appellant left the Kirtland Water
Facility’s entrance gate open and unmanned by a security guard.
Appellant was suspended for three days and was re-informed of his
security responsibilities to staff a guard at open gates and to notify his
superiors of security vulnerabilities. In June 2013, the City learned that
the gate at the [Morgan facility] was missing and there was no guard
present.
The City charged appellant with violations of Civil Service Rule 9.10(1)
neglect of duty, (3) incompetence or inefficiency in performance of
duties, and (18) for other failure of good behavior. Appellant received
notice of these charges and was given the opportunity to respond. The
City terminated appellant. Appellant then appealed his termination
and was provided a three-day hearing. After reviewing the evidence,
the decision to terminate appellant was upheld. Appellant then
appealed to the Cleveland Civil Service Commission. The Commission
held a hearing and upheld the ruling.
Accordingly, the court finds that the decision of the commission is not
unconstitutional, illegal, arbitrary, capricious, unreasonable, nor
unsupported by the preponderance of substantial, reliable, and
probative evidence on the whole record. There is no just cause for
delay.
On January 22, 2019, appellant filed the instant appeal challenging
the trial court’s judgment. Appellant assigns two errors for review:
I. The trial court improperly denied appellant’s administrative agency
appeal because its decision — finding that no police officer was
stationed at the water plant which was the basis of the improper
termination of [appellant] — was clearly erroneous and contrary to the
evidence in the record that there was an officer stationed at the water
plant and not unmanned as the court’s order states.
II. The trial court improperly denied appellant’s administrative agency
appeal because the City’s decision to terminate was arbitrary and
capricious and not based on reliable probative or substantial evidence.
II. Law and Analysis
Appellant’s first and second assignments of error and the arguments
raised therein are interrelated. Accordingly, we will address his second assignment
of error first. Appellant challenges the trial court’s judgment upholding the
Commission’s decision and his termination.
A. Standard of Review
Trial courts and appellate courts apply different standards of review
to appeals brought pursuant to R.C. Chapter 2506. R.C. 2506.04 provides that if a
party appeals an administrative decision, the trial court “may find that the order,
adjudication, or 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 further provides that the
trial court’s judgment “may be appealed by any party on questions of law.”
The Ohio Supreme Court has explained this distinction as follows:
[W]e 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. See Smith v. Granville Twp. Bd. of Trustees, [81
Ohio St.3d 608, 612, 693 N.E.2d 219 (1998)], citing Dudukovich v.
Lorain Metro. Hous. Auth., 58 Ohio St.2d 202, 206-207, 389 N.E.2d
1113 (1979) * * *.
Henley v. Youngstown Bd. of Zoning Appeals, 90 Ohio St.3d 142, 147, 735 N.E.2d
433 (2000).
“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 deleted.) Id., quoting
Kisil v. Sandusky, 12 Ohio St.3d 30, 34, 465 N.E.2d 848 (1984). In this way,
R.C. 2506.04 limits the ability of the appellate courts to review the trial court’s
judgment “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 trial court.” Id., quoting Kisil at fn. 4.
“It is incumbent on the trial court to examine the evidence. Such is not
the charge of the appellate court. * * * The fact that the court of appeals
* * * might have arrived at a different conclusion than the
administrative agency is immaterial. Appellate courts must not
substitute their judgment for those of an administrative agency or a
trial court absent the approved criteria for doing so.”
Henley at 147, quoting Lorain City School Dist. Bd. of Edn. v. State Emp. Relations
Bd., 40 Ohio St.3d 257, 261, 533 N.E.2d 264 (1988).
As such, our limited review “permits reversal only when the [trial
court] errs in its application or interpretation of the law or its decision is
unsupported by a preponderance of the evidence as a matter of law.” Cleveland
Clinic Found. v. Cleveland Bd. of Zoning Appeals, 141 Ohio St.3d 318, 2014-Ohio-
4809, 23 N.E.3d 1161, ¶ 30.
B. Due Process
In his second assignment of error, appellant argues that the trial court
erred in affirming the Commission’s decision upholding his termination because the
City violated his due process rights. Specifically, appellant argues that he was not
afforded a meaningful opportunity to be heard during his post-termination review
hearing.
As an initial matter, we note that appellant, as a public employee, had
a property right in continued employment. This right is protected by the Due
Process Clause of the Fourteenth Amendment. Cleveland Bd. of Edn. v. Loudermill,
470 U.S. 532, 538-539, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). As such, appellant
was afforded certain pretermination rights. In Loudermill, the United States
Supreme Court set forth the following procedural requirements for the
pretermination hearing of a public employee:
The essential requirements of due process * * * are notice and an
opportunity to respond. The opportunity to present reasons, either in
person or in writing, why proposed action should not be taken is a
fundamental due process requirement. * * * The tenured public
employee is entitled to oral or written notice of the charges against him,
an explanation of the employer’s evidence, and an opportunity to
present his side of the story.
Id. at 546. “Although due process requires a pretermination opportunity to be
heard, an evidentiary hearing is not required before termination of employment as
long as the employee receives a full administrative hearing and judicial review after
termination.” Card v. Cleveland, 2017-Ohio-7173, 95 N.E.3d 1066, ¶ 19 (8th Dist.),
citing Washington v. Cleveland Civ. Serv. Comm., 8th Dist. Cuyahoga No. 94596,
2010-Ohio-5608, ¶ 29.
In the instant matter, appellant argues that he was denied his post-
termination due process rights. Appellant specifically takes issue with the testimony
of Paul Bender, Director of the Public Utilities, that the City presented during the
referee’s July 2014 hearings.
As security manager, appellant reported directly to an assistant
director. The assistant director reported directly to Bender. The ultimate decision
to terminate appellant on July 10, 2013, was made by Bender.
Appellant appealed Bender’s decision to the referee. The referee in
turn makes a recommendation to Bender to either terminate or not terminate an
employee. After the referee makes his or her recommendation to Bender, Bender
thereafter makes a determination. Bender’s determination can then be appealed to
the Commission, which appellant did in this case.
During the July 2014 hearings before the referee, Bender testified on
cross-examination that no subsequent evidence could be introduced that would
change his mind about his decision to terminate appellant. Bender stated, “no, I
wouldn’t [put appellant] back to work based on a recommendation” from the
referee. (Tr. 277.) Appellant’s counsel then asked Bender, “[i]s there nothing that
the [r]eferee’s recommendation or report can say to you that would change your
decision about the termination[?]” (Tr. 277.) Bender then responded,
Well, I don’t know that until I see what comes out of it. But if — failure
to station an officer in this case and insisting that that’s the appropriate
course of action, is a different position that I hold and that Public
Utilities holds. So it’s happened twice and anybody in this position, not
just needs to say, okay, I disagree with that, but I’ll follow it, it needs to
be a person who endorses that approach.
***
No, I wouldn’t bring [appellant] back to work because he holds a
different view of that issue. Now, a recommendation that comes up
with some different ideas of why [appellant] was terminated, I’d have
to see what that is, but I can’t imagine. If it’s a recommendation, that I
would follow, but change my mind —
***
I wouldn’t change my mind, no, I wouldn’t change my mind.
There are appeal decisions that have more authority than me and then
I follow those.
(Tr. 278.)
After reviewing the record, we fail to see how Bender’s testimony in
any way deprived appellant of his post-termination due process rights. The record
reflects that appellant was afforded post-termination due process to the fullest
possible extent.
Appellant appealed his initial termination to the referee, and was
afforded a three-day hearing at which he was represented by counsel. During the
referee’s proceedings, appellant was afforded ample opportunity to cross-examine
the witnesses presented by the City, including Bender.
Bender’s statement implying that “nothing would change his mind”
about his decision to terminate appellant is not relevant to determining whether or
not appellant was afforded his essential post-termination due process rights —
notice and an opportunity to respond. Therefore, to the extent that appellant argues
that his due process rights were violated because he was not afforded a meaningful
opportunity to be heard during his post-termination review hearing, we do not agree
with appellant’s categorization and find appellant’s argument to be misplaced.
Appellant’s second assignment of error is overruled.
C. Reliable, Probative, and Substantial Evidence
In his first assignment of error, appellant argues that Bender’s
decision to terminate him was based on incorrect facts, and that Bender essentially
ignored certain facts. Additionally, appellant argues in his second assignment of
error that there was no just cause for his termination, and as a result, the trial court’s
decision to uphold his termination was not based on reliable, probative, or
substantial evidence.
First, to the extent that appellant argues that Bender based his
decision to terminate him on incorrect facts, we simply do not agree. Appellant
argues that there was a security guard at the Morgan facility. However, this security
guard was not stationed at the damaged gate located on the West 49th Street exit.
The security guard referenced by appellant was stationed at a different entrance gate
at the Morgan facility.
Appellant was terminated because he failed to station a security guard
at the damaged gate and failed to notify his supervisors of the damaged gate. At the
referee hearing, Bender asserted that he terminated appellant because of the
“significance of the issue.” (Tr. 270.) Further, Bender stated that appellant failed to
place a security guard at the Morgan facility gate after it was damaged. Bender
explained that appellant’s solution for the damaged gate was to have a security guard
keep the damaged gate under surveillance. Bender testified that the security guard
who was tasked with surveilling the damaged gate was stationed at another entrance
gate, far from and out of sight of the damaged gate. Bender found appellant’s
solution to be inadequate. Bender stated,
Our water plants — I guess there are two issues with securing water
plants. One is just the public confidence in the drinking water supply.
We have to — our customers need to know that the facilities are secure
because they rely on the water from those operations.
Secondly, the very real possibility that people can actually get in. Since
September 11, there’s been a huge number of changes. Everybody
knows nationally what has been done. We’ve done the same kinds of
things. Access to water treatment facilities, I’ve been involved with the
Washington [D.C.] Water and Sewer Authority, tremendous amount of
upgrades and security, physical security. Certainly technology has been
added, but the primary method we used in [D.C.] and was certainly the
expectation here too was that we need fencing. We need ways to keep
people out and people, security officers, that are securing these
facilities. So, that was the expectation. And then this was the second
time.
What went through my mind was how many — well, the other element
here was [appellant] was insistent, and I believe to this day is insistent,
that he disagrees that physical security is necessary in this case.
(Tr. 270-271.) The Morgan incident was appellant’s second infraction. Appellant
failed to notify his supervisors of both the Kirtland and Morgan incidents.
Appellant’s supervisors only became aware of each incident from the stories aired
by the investigative reporter.
In challenging the evidence based upon which he was terminated,
appellant argues that there was no written policy mandating that appellant had to
report the broken gates to a supervisor. Without a written policy mandating him to
report the gate issues, appellant contends, there was no just cause for his
termination.
In support of his argument that there was no just cause for his
termination, appellant directs this court’s attention to Cummings v. Cleveland, 8th
Dist. Cuyahoga No. 99200, 2013-Ohio-2541. In Cummings, this court reversed a
trial court’s decision upholding a city of Cleveland employee’s termination. This
court noted that Cleveland’s reason for termination — the employee’s failure to turn
in a permission form to work a secondary job — was insignificant because the
employee had worked for Cleveland for 13 years, had received permission to work
the secondary job in the past, and would have been granted permission again to
work the job if he had turned in the form. Id. at ¶ 15. This court further noted that
“[t]here was also no evidence that there was a formal written policy stating that if an
employee failed to receive permission to work a secondary job, he or she would be
discharged.” Id. at ¶ 14. Cleveland only presented evidence that it sent out
memoranda reminding employees “to submit their permission forms, but nowhere
does the reminder state that the employees would be subject to discharge for failing
to do so.” Id. As such, this court found that the trial court abused its discretion by
affirming the employee’s termination because the trial court’s decision was not
supported by a preponderance of reliable, probative, and substantial evidence. Id.
at ¶ 15.
We fail to see how the fact that there was no written policy requiring
appellant to report a damaged gate supports appellant’s contention that the trial
court’s decision was not based on reliable, probative, and substantial evidence. After
reviewing the record, it is evident that appellant, as Chief of the Public Utilities
Police Division, was required to send reports to his supervisor detailing major
incidents and highlighting achievements. Appellant failed to notify his supervisor
of the Kirtland facility and Morgan facility damaged gates. Further, appellant’s
supervisors were made aware of the Kirtland and Morgan incidents only after the
investigative news stories were broadcasted.
In the instant matter, and unlike Cummings, appellant failed to staff
a guard at the damaged gates and also failed to notify his supervisors of the severity
of the damaged gate. Even if there was a written policy that required appellant to
report a damaged gate to his supervisors, the fact remains that appellant did not
staff the damaged gate with a security guard. Also unlike Cummings, appellant
previously received a three-day suspension for failing to staff a security guard at a
damaged gate at Kirtland. After the Kirtland facility incident, appellant was made
aware that his failure to staff a security guard at the damaged gate was an inadequate
security measure and would result in discipline. It appears from our reading of the
record, that this fact alone — that a security guard was not placed at the damaged
gate — would have been a sufficient reason to terminate appellant.
Finally, to the extent that appellant argues that termination was not
an appropriate measure of discipline because a similarly situated employee was not
terminated and only received a one-day suspension, appellant fails to develop this
argument by pointing to evidence in the record or citation to any authority. See
App.R. 16(A)(7). Furthermore, as noted above, appellant’s “similarly situated”
assertion is misplaced based on the limited scope of the standard of review this court
applies in an R.C. 2506.04 appeal.
For all of the foregoing reasons, appellant’s first assignment of error
is overruled.
III. Conclusion
After thoroughly reviewing the record, we affirm the trial court’s
judgment upholding the Commission’s decision and appellant’s termination. The
trial court’s judgment is supported by a preponderance of substantial, reliable, and
probative evidence in the record. Accordingly, we are unable to conclude that the
trial court’s decision is unreasonable, arbitrary, or unconscionable.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment
into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
______________________________________
FRANK D. CELEBREZZE, JR., PRESIDING JUDGE
KATHLEEN ANN KEOUGH, J., and
EILEEN A. GALLAGHER, J., CONCUR