[Cite as Mordick v. Dayton,

.]

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. 2

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 3

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 4

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. 5

{¶ 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.” 6

{¶ 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,

,

, 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 OBR 26, 30,

. “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 7

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 8

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 9

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 10

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 11

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 12

(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. 13

(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