Roodhouse v. Bedford Heights Civil Service Commission

*794 Dyke, Judge. At about 1:00 p.m. on Sunday, January 25, 1987, appellee James Roodhouse left on a gambling junket to Caesar’s Casino in Atlantic City, New Jersey. The appellee, a Bedford Heights city fireman, was scheduled to begin work for the city at 6:00 p.m. on Monday, January 26, 1987. The appellee did not show up for work on that date, and in fact missed three consecutive days of work. On February 26, 1987, the city of Bedford Heights charged Roodhouse with various violations of civil service and departmental rules. On March 4,1987, a hearing was held on this matter before the Mayor of the city of Bedford Heights. On March 6, 1987, the mayor found that Roodhouse was absent from duty without leave, had committed conduct unbecoming an officer, had violated departmental rules, and had failed to exhibit good behavior to the detriment of the service. Based on these findings, the appellant city discharged the appellee from its service. Appellee Roodhouse appealed his firing to the city’s civil service commission. On March 19 and 20, 1987, the commission held a hearing on this matter. The commission found that the city's actions were warranted, but it considered the firing of Roodhouse to be too severe a disciplinary action. Therefore, the commission modified Roodhouse’s punishment from a discharge to a suspension of ninety days. Roodhouse next appealed the commission’s decision to the court of common pleas pursuant to R.C. Chapter 2506. On October 22, 1987, the court entered an order which reversed the civil service commission’s decision. Specifically, the court held that the decision of the commission was unsupported by a preponderance of substantial, reliable and probative evidence. The appellant city now brings this appeal and assigns two errors to the court. Because both of these alleged errors deal with the same issue, they will be discussed together. Appellant’s assignments of error are: “The judgment of the trial court is against the weight of the evidence and the trial court erred in finding that the decision of the civil service commission that appellee violated Civil Service Rule XI, Section 1, Paragraphs 2, 5, 16 and 18 was not supported by a preponderance of reliable, probative and substantial evidence. “The judgment of the trial court is contrary to law and the trial court erred in substituting its judgment for that of the civil service commission.” R.C. 2506.04 sets forth the standards of review to be applied by courts in appeals from political subdivisions. This Revised Code section provides: *795 “The 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 or the whole record. Consistent with its findings, the court may affirm, reverse, vacate, or modify the order, adjudication or decision, or remand the cause to the officer or body appealed from with instructions to enter an order consistent with the findings or opinion of the court. The judgment of the court may be appealed by any party on questions of law pursuant to sections 2505.01 to 2505.45, inclusive, of the Revised Code.” In Dudukovich v. Lorain Metro. Housing Auth. (1979), 58 Ohio St.2d 202, 12 O.O.3d 198, 389 N.E.2d 1113, the Supreme Court discussed both our and the trial court’s standards of review in R.C. Chapter 2506 appeals: “Thus, it is quite evident that the Court of Common Pleas must weigh the evidence in the record, and whatever additional evidence may be admitted pursuant to R.C. 2506.03, to determine whether there exists a preponderance of reliable, probative and substantial evidence to support the agency decision. We caution, however, to add that this does not mean that the court may blatantly substitute its judgment for that of the agency, especially in areas of administrative expertise. The key term is ‘preponderance.’ If a preponderance of reliable, probative and substantial evidence exists, the Court of Common Pleas must affirm the agency decision; if it does not exist, the court may reverse, vacate, modify or remand. “In determining whether the standard of review prescribed by R.C. 2506.04 was correctly applied by the Court of Common Pleas, both this court and the Court of Appeals have a limited function. R.C. 2506.04 provides in part: ‘The judgment of the court [of common pleas] may be appealed by any party on questions of law pursuant to sections 2505.01 to 2505.45, inclusive, of the Revised Code.’ “Referring to R.C. 2505.31, we find that ‘[i]n a civil case or proceeding * * *, the supreme court need not determine as to the weight of the evidence.’ Thus, our inquiry is limited to a determination of whether, as a matter of law, we can say that there did exist a preponderance of reliable, probative and substantial evidence to support appellant’s decision to dismiss appellee.” Id. at 207-208, 12 O.O.3d at 202, 389 N.E.2d at 1117. Appellee Roodhouse was disciplined by the city for his alleged violation of several Bedford Heights Civil Service and Fire Department Rules. Specifically, the appellee was charged with violating Bedford Heights Civil Service Rule XI, Sections (2), (5), (16) and (18). These civil service rule sections provide in pertinent part: *796 “Section 1. Tenure. The tenure of every officer or employee in the classified service shall be during good behavior and efficient service * * *. tt * * * “But any officer or employee in the classified service may be discharged, suspended or demoted for any one or more of the following causes; tt * * * “2. Absence without leave. tt * * * “5. Conduct unbecoming an officer or employee in the public service. a * * * “16. Violation of departmental rules or regulations by the office or employee. tt * * * “18. And for other failure of good behavior which is detrimental to the service, or for any other act of misfeasance, malfeasance or nonfeasance in office.” In addition, Bedford Heights Fire Department Rules and Regulations, Section VII, Rule 14, and Section X, Rule 7, were bases for the city’s disciplinary action in this case. Section VII provides in part: “General Rules of Conduct. tt * * * “14. He shall not be guilty of falsifying, deception or evasion of any rule, regulation or order of the Department.” The relevant portion of Fire Department Rules and Regulations, Section X provides: “Hours of Duty. tt * * * “7. Any member who fails to respond to roll call must furnish well sustained reason for such failure or be subject to reprimand or other penalties imposed by the Chief of the Department.” In its decision, the Bedford Heights Civil Service Commission determined as one of its findings that appellee Roodhouse had abused the city’s sick leave program. The trial court concluded in its journal entry that this finding of the civil service commission was not supported by the preponderance of the reliable, substantial and probative evidence. Based on this determination, the trial court reversed the decision of the civil service commission. The problem with the court’s opinion is that it ignores the fact that the appellant was also *797 charged by the city with being absent from work without leave and for missing roll call. The evidence adduced at the civil service hearing showed that the appellee Roodhouse went on a one-day gambling junket to Atlantic City on January 25, 1987, that the return flight was not scheduled to leave New Jersey until 7:30 p.m. on January 26,1987, but that Roodhouse was scheduled to report to work at 6:00 p.m. on January 26, 1987. Roodhouse testified that even though as part of the one-day gambling junket he was to pay nothing for his flight back to Cleveland, he had planned to personally pay for and take an earlier flight to Cleveland on January 26, 1987, so that he would not miss work on that day. It was undisputed that the eastern coast of the United States was snowed in on January 26, 27, and 28, 1987, and that Roodhouse missed work on those days. The evidence further showed that though the Bedford Heights Fire Department had procedures pursuant to which Roodhouse could have arranged to use his vacation days for his trip, he did not attempt to do so prior to the trip. The testimony and documents adduced at the hearing overwhelmingly showed that Roodhouse was absent from his job without leave. Roodhouse’s testimony that he intended to personally pay for a flight back to Cleveland was incredible in light of the facts that the gambling junket was only to last one day and that it included free flights to Atlantic City and back. Therefore, the civil service commission was justified in rejecting this testimony. Further, it has never been disputed that Roodhouse did not have leave to miss work and that he did in fact miss three days of work. Consequently, it is our opinion that as a matter of law the preponderance of the reliable, probative and substantive evidence showed that appellee Roodhouse was absent from his job without leave in violation of Bedford Heights Civil Service Rule XI, Section (2), and that he failed to respond to roll call in violation of Bedford Heights Fire Department Rules and Regulations, Section X, Rule 7. Further, the violations of these rules also resulted in violations of Bedford Heights Civil Service Rule XI, Sections (5), (16) and (18). Accordingly, it was unreasonable for the trial court to reverse the decision of the Bedford Heights Civil Service Commission, and the court abused its discretion in doing so. Appellant’s assignments of error are well-taken. Judgment reversed. Nahra, J., concurs. Matia, P.J., dissents.