Armbruster v. City of Middletown

*322 Matthews, J. This is an appeal from a judgment of the Common Pleas Court finding that the cause of' removal of the plaintiff as a police officer of the city of' Middletown was insufficient and for that reason setting aside the finding of the civil service commission of the city, affirming-the action of the commission of the city, dismissing the plaintiff from his office. The record shows that the plaintiff had been a member of the police department for ten years on September 23, 1942, when the chain of incidents, which was the predicate for his removal, began shortly after four o’clock in the morning. He testified that at that time-he and Bryan Dineen, another police officer, were patrolling the streets in a certain district of the municipality when they noticed that the fire escapes on the-building of the Eagles lodge in Eagle alley were not in proper position, in that they were down as though in use. That circumstance caused them to investigate. The plaintiff went up the fire escape and found a door,, leading from the fire escape into an upper story of the-building, slightly ajar. He was on the fire escape near the upper door and Dineen was in the alley near the-lower end of the fire escape when Landon Webb, another police officer, came along and found them in that position. The plaintiff and Dineen told Webb what they had discovered and the three proceeded to enter and search the building. They found that the top sash of a window on the second floor was down, and that this window had no lock. They made a rather complete search of the lodge ro.oms, the bar and the refrigerator, but found nothing to indicate that any crime-had been committed. They then closed the window, locked the door, descended the fire escape, and lifted the lower section of the fire escape so that it would not form an obstruction to travel. Plaintiff and Dineen together then proceeded on. their task of patrolling; *323 the streets, and Webb proceeded to join his companion officer in the vicinity. Neither the plaintiff nor Dineen reported this incident to the police department until the chief of police, having learned about it from another source, called them before him on September 26, 1942, after 9:00 p. m., and questioned them, when they gave this version of the incident. Webb testified about discovering plaintiff and Dineen in Eagle alley, that he went with them into the building and took part in the search, that everything seemed to be in order, that there was a bag of money in the refrigerator, that he left the refrigerator shortly before the plaintiff and Dineen did, find that as they were leaving the building plaintiff and Dineen said to him, “We did not find the place open, understand. And you keep your mouth shut.” However, he reported the incident to officer Martz who was his superior. Two employees of the Eagles lodge testified that, during the day of September 23, they discovered two quarts of whiskey, seven and one-lialf cartons of cigarettes and one flash light were missing, of the total value of between fourteen and fifteen dollars. This was reported to the police department, and officer Davis came to the lodge and made an inspection of the premises and advised that a lock be placed on the window. Officer Davis reported it and it was entered on the daily report sheet under the caption “Breaking and Entering.” While there is some dispute as to when this entry was made, its position with reference to other entries seems to make it clear that it was entered on September 24. The record makes it clear that there was a rule of long standing which made it the duty of police officers to report suspicious incidents coming to their attention while patrolling, and that these incidents were *324 placed in writing and kept where all officers could read them, and that it was the duty of all to read them. The plaintiff and Dineen explained their silence on the subject by the statement that they considered the incident trivial, and that when they saw on the daily report sheet that a burglary of the same place on the same night had occurred, they thought too much time had elapsed to make their report of any value. There was no arrest of any one on the charge of stealing the missing articles. The chief of police recommended to the commission of the city — the appointing authority — -that both the plaintiff and Dineen be discharged for incompetency,, inefficiency, and gross neglect of duty; and after a hearing, the commission ordered their discharge on those grounds. Plaintiff and 'Dineen appealed to the civil service commission which, after a full hearing,, found them guilty as charged, and that the penalty was-not too severe; and it affirmed the action of the appointing authority in dismissing them. The plaintiff and Dineen appealed to the Common. Pleas Court, where the case was heard on the same evidence that was presented to the civil service commission. The court analyzed the evidence and concluded’ that “while the court cannot conclude but that such, investigation disclosed sufficient facts to have been reported, yet certainly the slight infraction of not making such report would not be sufficient cause of removal, especially of one who had been in the service for some ten years without complaint.” In conclusion the court found that the charge proven did not constitute sufficient cause for removal and reversed the decision of the civil service commission, affirming-the action of the commission of the city made on the-recommendation of the chief of police. That is the-judgment from which this appeal was taken. *325 A fair statement of the cause of removal as disclosed by the evidence is that the plaintiff was guilty of a wilful and deliberate suppression of evidence tending to prove the unlawful breaking and entering of a building in the night season with intent to commit a crime. When we consider his reason for so doing, that it was not of sufficient importance for disclosure, in the light of the fact that both he and Dineen thought the circumstances to be suspicious enough to justify them in entering a private building in the night season, the invalidity of the excuse becomes apparent. Even though their search in the buliding failed to disclose any obvious evidence of crime, that did not neutralize the suspicious circumstances that caused them to embark on the search of the building. Furthermore, when they learned that a theft had been reported by the occupant of the building, the importance of the evidence possessed by them, if not previously realized, should have become so apparent as to be obvious to any one. In view of the fact that the plaintiff had had ten years experience as a policeman and certainly knew the rule of the department requiring reports and should have known of the necessity of pooling all information even in absence of any express rule on the subject, the conclusion is inescapable that the suppression was the result of intent rather than an omission of innocence or mere neglect. Certainly, a reviewing tribunal, not having the advantage of seeing the plaintiff and witnesses, cannot say that the tribunal which did have that advantage was unreasonable in reaching such a conclusion. That is what the appointing authority found and that was the finding of the civil service commission. . On appeal to the Common Pleas Court from such a finding, the jurisdiction of that court, conferred by Section 486-17a, General Code, is limited to an inquiry *326 “to determine the sufficiency of the cause of removal.” While there have been differences in terminology in phrasing the function of the court under this section, there has been no difference in thought. The second paragraph of the syllabus to Kearns v. Sherrill, City Manager, 137 Ohio St., 468, 30 N. E. (2d), 805, is: “The jurisdiction of the Court of Common Pleas in such case is special and limited, by the terms of the statute, ‘to determine the sufficiency of the cause of removal.’ Where facts which constitute ‘sufficiency of the cause of removal’ are established by the evidence and found by the court, the trial judge may not arbitrarily reinstate such officer to his position and restore his emoluments of office from the date of his discharge on the ground that in his opinion the punishment prescribed is too severe and he is without authority to modify it.” ' And at page 472 the court said: ‘ ‘ Had it been intended by the law-making branch of the government that the Common Pleas Court should act as if ‘sitting as the entire civil service commission and also as the city manager,’ as apparently was assumed by the common pleas judge hearing the appeal, the Legislature undoubtedly would have found it possible to employ language conferring such broad power. ’ ’ In the opinion of the Court of Appeals (63 Ohio App., 533, 541, 27 N. E. (2d), 407) in the same case, we find this: “It is clear that the Common Pleas Court could not have been vested with power in an original action to exercise the executive or administrative discretion of determining whether under all the circumstances the patrolman should be retained in office, after it is determined that good and sufficient cause for his removal had been found to exist, and tested by that rule, it is *327 equally clear tliat it cannot be vested with such jurisdiction on appeal from an administrative tribunal.” See, also, State, ex rel. Stewart, v. Reed, Mayor, No. 6324, Hamilton County Court of Appeals. Now whether the hearing in the Common Pleas Court is described as a hearing de novo or otherwise, it is clear that its jurisdiction is “special and limited,” and whether that special and limited character is imposed by the Constitution or the statute or both does not affect its extent. It does not include the function of “sitting as the entire civil service commission” and also as the appointing authority, either or both. By Section 486-17a, General Code, incompetency, inefficiency, neglect of duty, or any other act of misfeasance, malfeasance, or nonfeasance in office are made grounds for removal. And it need not be evidenced by a course of conduct. One act or omission is sufficient. State, ex rel. Hardesty, v. Wells, Dir., 121 Ohio St., 139, 167 N. E., 362. We are of the opinion that the record shows substantial evidence of neglect of duty and nonfeasance in office; that there is no evidence that the appointing authority acted in bad faith or from any motive other than the enforcement of proper discipline in the department; that the civil service commission’s finding that the appointing authority had sufficient cause for removal of the plaintiff is amply supported by the evidence; and that the Court of Common Pleas erred in reversing such finding. For these reasons, the judgment of the Court of Common Pleas is reversed, and the finding of the civil service commission is affirmed. Judgment reversed. Ross, P. J., and Hildebrant, J., concur. *328 (No. 874 — Decided May 19, 1944.)