Jones v. Franklin County Sheriff

Wright, J. This case raises two issues. First, is a police officer guilty of conduct unbecoming an officer while off duty when he or she is a party to what amounts to vigilante activity which is clearly outside the scope of her official job duties? Second, must a police officer answer questions that relate specifically and narrowly to the performance of her official duties when the questions are asked in an Internal Affairs Division hearing and when the officer is guaranteed that the answers cannot be used against her in any subsequent criminal prosecution? We answer both questions in the affirmative. For the reasons stated below, we reverse the court of appeals and reinstate the ruling of the common pleas court affirming appellee’s removal of Jones as a deputy sheriff. I One of the most serious disciplinary charges that the Franklin County Sheriff brought against Deputy Jones was for conduct unbecoming an officer in participating in the January 9, 1986 search for Matfield’s stolen purse. Franklin County Sheriff’s Department Reg. 102.40.1 applies to this charge: “Conduct unbecoming department personnel will include that which brings the department into disrepute or reflects discredit upon the individual as a member of the department, or [43] that which impairs the operation or efficiency of the department or the individual.” After conducting a full evidentiary hearing, the ALJ concluded in his eighteen-page report and recommendation that the sheriffs department had established by greater than a preponderance of the evidence that Jones’s conduct on January 9, 1986 was unbecoming a deputy sheriff. The ALJ determined that Jones’s “* * * callous disregard for proper policy procedures; her assistance to her sister in taking the law into their own hands in an attempt to get a purse back; and her failure to take any of the many opportunities to stop her sister from continuing in this course of conduct reflects badly upon herself and the Sheriff’s Department.” The court of appeals was correct in stating the general rule that the SPBR has the authority to modify the judgment of an appointing authority where it acts arbitrarily, unreasonably, or unlawfully or where its decision is improper or unnecessary. See R.C. 124.34; State, ex rel. Ogan, v. Teater (1978), 54 Ohio St. 2d 235, 8 O.O. 3d 217, 375 N.E. 2d 1233. However, we have also held “* * * that due deference must be accorded to the findings and recommendation of the referee * * *, especially where there exist evidentiary conflicts, because it is the referee who is best able to observe the demeanor of the witnesses and weigh their credibility. See, generally, * * * Seasons Coal Co. v. Cleveland (1984), 10 Ohio St. 3d 77, 10 OBR 408, 461 N.E. 2d 1273.” Graziano v. Amherst Exempted Village Bd. of Edn. (1987) , 32 Ohio St. 3d 289, 293, 513 N.E. 2d 282, 285, followed in Aldridge v. Huntington Local Dist. Bd. of Edn. (1988) , 38 Ohio St. 3d 154, 157, 527 N.E. 2d 291, 293. In this particular instance, the SPBR stated that it based its rejection of the ALJ’s recommendation to remove Jones on its review of the ALJ’s “Report and Recommendation,” with no mention of the record. After a more extensive “review of the entire record,” Judge Thompson found the SPBR’s decision to be “* * * inconsistent with the evidence presented to the hearing officer * * *.” The due deference standard enunciated in Graziano, supra, requires the reviewing authority to conduct this more extensive review of the entire record. Aldridge, supra, at 158, 527 N.E. 2d at 294. Because Judge Thompson’s review and decision are in accord with our holding in Graziano, supra, we reinstate the trial court’s decision. As the common pleas court correctly stated, it is settled public policy “* * * that police officers are held to a higher standard of conduct than the general public.” See In re Bronkar (1977), 53 Ohio Misc. 13, 7 O.O. 3d 261, 372 N.E. 2d 1345; Kelley v. Johnson (1976), 425 U.S. 238. Law enforcement officials carry upon their shoulders the cloak of authority of the state. For them to command the respect of the public, it is necessary then for these officers even when off duty to comport themselves in a manner that brings credit, not disrespect, upon their department. Since a fair-minded review of the entire record indisputably reveals that Deputy Jones’s vigilante activities could not bring anything but disrepute upon the sheriff’s department, Judge Thompson was correct in reversing the SPBR’s order and in affirming the removal of Jones. II At the January 14, 1986 IAD interview, Deputy Jones refused to answer questions in an investigation of her conduct. Jones was informed that any evidence or information obtained from the interview could not be used against her in a subsequent criminal pro [44] ceeding, pursuant to a sheriffs department policy and collective bargaining agreement, and pursuant to the United States Supreme Court holding in Garrity v. New Jersey (1967), 385 U.S. 493. See, also, Lefkowitz v. Cunningham (1977), 431 U.S. 801; Lefkowitz.v. Turley (1973), 414 U.S. 70; Gardner v. Broderick (1968), 392 U.S. 273; Uniformed Sanitation Men Assn., Inc. v. Commr. of Sanitation (1968), 392 U.S. 280. The United States Supreme Court has consistently held that a public employee may not be forced to choose between making incriminating statements and facing dismissal, since such a choice would effectively negate the Fifth Amendment privilege against self-incrimination. D’Acquisto v. Washington (N.D. Ill. 1986), 640 F. Supp. 594, 622, citing Lefkowitz v. Cunningham, supra; Gardner v. Broderick, supra. Yet, public employees can be required to answer potentially incriminating questions, so long as they are not asked to surrender their constitutional privilege against self-incrimination. Lefkowitz v. Cunningham, supra, at 806, citing Gardner v. Broderick, supra, at 278-279. The privilege against self-incrimination is preserved because a statement by investigators that nothing said at the hearing can be used at a subsequent criminal proceeding effectively immunizes that testimony from later use by a prosecutor. Since use of these statements by the prosecution is barred, by definition no statement made in the hearing can be incriminatory. Thus, it has been held that the employee must answer these specific, narrowly tailored questions or face a possible dismissal for insubordination. Gardner v. Broderick, supra; Erwin v. Price (C.A.11, 1985), 778 F. 2d 668; Donohoe v. Franklin Cty. Sheriff (June 7, 1988), Franklin App. No. 87AP-648, unreported; Hobbie v. Medina (1985), 29 Ohio App. 3d 306, 29 OBR 405, 505 N.E. 2d 276. Since both the public and police officers themselves hold the police officer in a position of honor and respect, it is incumbent upon a police officer to keep his or her activities above suspicion both on and off duty. Thus the IAD, within clearly defined constitutional parameters, must be given latitude to conduct investigations to ensure the continued integrity of the department. It is critical to any meaningful IAD investigation that, once officers have been assured that their constitutional guarantees remain intact, they are required to respond to specific questions dealing with job performance. Without such a mandate, the IAD cannot ensure the integrity and trustworthiness of the department’s officers and the public cannot be assured of the propriety of placing its trust in these public servants. Agents of the Federal Bureau of Investigation and members of the bar are under mandates parallel to those governing police officers to answer specific questions in the course of a disciplinary investigation. The United States Court of Appeals has held that an FBI agent is “indisputably obliged to answer all questions truthfully” in an internal affairs investigation after being granted immunity. United States v. Friedrick (C.A.D.C. 1988), 842 F. 2d 382, 395-396. Members of the bar of Ohio are similarly required to cooperate with disciplinary authorities “* * * to assist in any investigation or to testify in any hearing before the Board of Commissioners or any panel for which provision is made in this rule * * *.” Gov. Bar R. V(5)(a). Just as law enforcement officers, FBI agents, and certain other public employees are required to cooperate in internal disciplinary in [45] vestigations, so too members of the bar must not “* * * neglect or refuse so to assist in any such investigation or so to testify.” Id. The ALJ had ample evidence before him to find that when Jones refused a direct order to answer, she violated Sheriffs Department Reg. 102.55. This regulation provides in part: “55. General Requirements “Department Personnel Will: a * * * “F. Carry out such orders and directives as may be given them by superiors * * *.” We hold that the ALJ properly concluded that the appointing authority was justified in finding Jones insubordinate, and that the SPBR’s conclusion to the contrary was not supported by substantial evidence. The trial court reviewed the SPBR order on this question and correctly concluded that as a matter of law, a public employee must answer such questions when the requisite constitutional guarantees are given, and that Jones’s refusal to do so constituted insubordination. We hold that the court of appeals erred when it found that Judge Thompson abused his discretion when he reversed the SPBR’s decision that Jones was not insubordinate. The trial court also correctly concluded that Jones’s dismissal was warranted under the department’s policy of progressive discipline. The sheriff’s department had already disciplined Jones six times. In his opinion Judge Thompson noted that Jones’s disciplinary record included several written reprimands and a suspension for reasons including failure to follow the direct order of a superior officer. Thus the court of appeals erred when it found an abuse of discretion by the trial judge. The decision of the court of appeals is reversed and the decision of the trial court is reinstated. Judgment reversed. Moyer, C.J., Holmes, H. Brown and Resnick, JJ., concur. Holmes, J., concurs separately. Sweeney, J., dissents. Douglas, J., dissents with opinion.