Gearhart v. Union Twp. Bd. of Trustees , 2020 Ohio 5615 ( 2020 )

[Cite as Gearhart v. Union Twp. Bd. of Trustees, 2020-Ohio-5615.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY
KARL D. GEARHART, :
Plaintiff-Appellant, : CASE NO. 20CA3700
vs. :
UNION TOWNSHIP BOARD OF : DECISION & JUDGMENT ENTRY
TRUSTEES, et al.,
:
Defendants-Appellees.
:
APPEARANCES:
Scott R. Mergenthaler, Columbus, Ohio, for appellant.
Jeffrey C. Marks, Ross County Prosecuting Attorney, and Pamela C. Wells, Ross County
Assistant Prosecuting Attorney, Chillicothe, Ohio, for appellee.
CIVIL CASE FROM COMMON PLEAS COURT
DATE JOURNALIZED: 11-25-20
ABELE, J.
{¶ 1} This is an appeal from a Ross County Common Pleas Court judgment that affirmed
a decision of the Union Township Board of Trustees, defendant below and appellee herein,1 to
remove Karl D. Gearhart, plaintiff below and appellant herein, from his position as a Union
Township firefighter. Appellant assigns the following errors for review:
FIRST ASSIGNMENT OF ERROR:
1
Appellant also named the Union Township Fire Department as a defendant and the fire department is
named as an appellee in this appeal. As used in this opinion, “appellees” includes the Union Township Board of
Trustees and the Union Township Fire Department.
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“THE TRIAL COURT ERRED IN NOT AFFORDING
PLAINTIFF-APPELLANT A FAIR HEARING WHEN HE WAS
PRESENTED WITH UNSWORN WITNESSES IN VIOLATION
OF EVID.R. 603 AND OHIO R.C. SECTION 733.39.”
SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED IN UPHOLDING THE
DECISION OF THE UNION TOWNSHIP BOARD OF
TRUSTEES IN REMOVING PLAINTIFF-APPELLANT FROM
HIS POSITION WHERE THERE WAS NO
RECOMMENDATION FOR DOING SO BY THE CHIEF OF
THE FIRE DEPARTMENT IN VIOLATION OF THE
DEPARTMENT’S DISCIPLINARY MANUAL.”
{¶ 2} In April 2018, the Union Township Board of Trustees held a hearing to consider
appellant’s removal as a township firefighter. Rex Cockrell stated that he has been a member of
the Union Township Fire Department for approximately twenty-six years, and that he served as
an assistant chief for approximately twelve years. Cockrell stated that in 2015, he stepped down
from his role as an assistant chief due to appellant’s behavior. Cockrell explained that appellant
“was extremely defiant against any leadership in the department” and “had zero respect for
authority.”
{¶ 3} Cockrell also had other concerns with appellant’s behavior. Cockrell conducted
“numerous investigations” into appellant’s behavior after residents called to complain that
appellant posted material on Facebook that disparaged the fire department.
{¶ 4} Cockrell further explained that appellant failed to properly dispose of department
property. Appellant believed that the department “store[d] too much stuff” and stated that the
department needed “to get rid of all this crap,” so appellant threw away some “turnout gear” by
placing it in a dumpster. Cockrell also explained an incident when appellant allowed a firefighter,
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who had not been trained in CPR and first aid, to respond to a call that “went out as a code.”
Cockrell stated that the firefighter gave the individual in need of medical assistance CPR and the
family at the scene reported that the firefighters “didn’t appear to know what they were doing.”
{¶ 5} Cockrell related that he learned of the incident after some of the members of the fire
department received subpoenas to testify at a deposition related to a wrongful death lawsuit that
the family filed against the hospital and the township. Cockrell stated that the medic who had
been at the scene told Cockrell that she “had already testified and [she was] very concerned.”
Cockrell explained that the medic related that during the deposition, the medic had been handed a
medical report and asked whether she had prepared the report. The medic informed Cockrell
that it was not her medical report because she had handwritten her report, but the report presented
to her at the deposition had been typed. The medic further indicated that, although the typed
report contained a signature, “the signature was just a squiggly line.” Cockrell stated that he
discussed the matter with the fire chief but that nothing happened.
{¶ 6} Cockrell’s father, a firefighter, also spoke at the hearing and stated that appellant
acted unprofessionally and was rude with the patients.
{¶ 7} Karen Gossman, the fiscal officer for Union Township, stated that appellant
submitted a grant application with “misstated” financials. Gossman explained that the fire
department had approximately $400,000 in reserve, but the grant application stated that the fire
department had $2,000. Gossman related that she “was extremely concerned” about the
numbers reported on the grant application and contacted the prosecutor’s office. Gossman
further indicated that appellant did not have approval from the board of trustees to submit the
grant application.
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{¶ 8} At the conclusion of the hearing, the board of trustees passed a resolution to remove
appellant as a member of the Union Township Fire Department. Appellant subsequently filed a
notice of appeal from the board’s decision.
{¶ 9} On December 16, 2019, the trial court determined that the board’s decision to
terminate appellant was supported by a preponderance of reliable, probative, and substantial
evidence and was not contrary to law. The court thus affirmed the board’s decision and
dismissed the appeal. This appeal followed.2
A
{¶ 10} Appellant’s two assignments of error challenge the propriety of the trial court’s
decision to affirm the board of trustees’ decision to remove him as a township firefighter.
Because the same standard of review applies to both assignments of error, we first set forth the
principles that guide our review of appellant’s two assignments of error.
{¶ 11} “In an R.C. 2506.01 administrative appeal, the common pleas court considers the
whole record and determines whether the administrative order is ‘unconstitutional, illegal,
arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable,
and probative evidence.’” Independence. v. Office of the Cuyahoga Cty. Executive, 142 Ohio
St.3d 125, 2014-Ohio-4650, 28 N.E.3d 1182, ¶ 13, quoting R.C. 2506.04. “The court weighs
the evidence to determine whether a preponderance of reliable, probative, and substantial
evidence supports the administrative decision.” Id. “[I]f it does, the court may not substitute its
2
Appellees’ brief refers to affidavits that the trustees allegedly filed in the trial court proceedings and
quotes the essential substance of the affidavits. The record does not, however, indicate that the affidavits actually
were filed with the trial court and made a part of the record submitted on appeal.
Moreover, the parties’ briefs refer to portions of the fire department’s disciplinary manual. The
disciplinary manual also is not part of the record submitted on appeal.
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judgment for that of” the administrative agency. Id. “If it does not, the court may reverse,
vacate, or modify the administrative decision.” Id. The trial court may not, however, “blatantly
substitute its judgment for that of the agency.” Dudukovich v. Lorain Metro. Hous. Auth., 58
Ohio St.2d 202, 207, 389 N.E.2d 1113 (1979).
{¶ 12} The standard of review for a court of appeals in an administrative appeal is more
limited. Shelly Materials, Inc. v. City of Streetsboro Planning & Zoning Commission, 158 Ohio
St.3d 476, 2019-Ohio-4499, 145 N.E.3d 246, ¶ 17; Henley v. Youngstown Bd. of Zoning Appeals,
90 Ohio St.3d 142, 147, 735 N.E.2d 433 (2000), citing Kisil v. Sandusky, 12 Ohio St.3d 30, 34,
465 N.E.2d 848 (1984); Ellison v. Hillsboro, 2016-Ohio-1556, 63 N.E.3d 555 (4th Dist.), ¶ 19.
“The court of appeals reviews the common pleas court’s judgment only on questions of law and
does not have the same extensive authority to weigh the evidence.” Independence at ¶ 14, citing
Henley at 147. “Within the ambit of questions of law for appellate-court review is whether the
common pleas court abused its discretion. The court of appeals must affirm unless it finds, as a
matter of law, that the trial court’s decision is not supported by a preponderance of reliable,
probative, and substantial evidence.” Id. (citations omitted).
{¶ 13} “In sum, the standard of review for courts of appeals in administrative appeals is
designed to strongly favor affirmance. It permits reversal only when the common pleas 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 Foundation v. Bd. of Zoning Appeals of
Cleveland, 141 Ohio St.3d 318, 2014-Ohio-4809, 23 N.E.3d 1161, ¶ 30.
{¶ 14} Consequently, an appellate court may not reverse a trial court decision unless (1)
the court incorrectly applied or interpreted the law, or (2) the preponderance of the evidence fails
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to support the trial court’s decision.
B
{¶ 15} In his first assignment of error, appellant asserts that the trial court incorrectly
concluded that he waived the right to argue that the failure to administer oaths to the witnesses
entitles him to a new hearing. Appellant argues that he did not suggest, request, or consent to
the hearing procedure and that he thus did not waive the right to challenge the failure to
administer oaths to the witnesses.
{¶ 16} We recognize that Ohio law generally requires that before testifying, witnesses
must be administered an oath. Evid.R. 603 states: “Before testifying, every witness shall be
required to declare that the witness will testify truthfully, by oath or affirmation administered in a
form calculated to awaken the witness’ conscience and impress the witness’ mind with the
witness’ duty to do so.” R.C. 2317.30 likewise provides: “Before testifying, a witness shall be
sworn to testify the truth, the whole truth, and nothing but the truth.” Moreover, R.C. 733.39
provides that “[i]n all cases in which the attendance of witnesses may be compelled for an
investigation under section 733.38 of the Revised Code, any member of the legislative authority
of the municipal corporation may administer the requisite oaths, and such legislative authority
has the same power to compel the giving of testimony by attending witnesses as is conferred
upon courts.”
{¶ 17} Nevertheless, the failure to object to the admission of unsworn testimony at an
administrative hearing will forfeit the right to raise the issue on appeal. “[T]he rule is
well-established that a party may not, upon appeal, raise a claim that the oath of a witness was
omitted or defective, unless objection thereto was raised at trial. If no objection was raised, the
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error is considered to be waived.” Stores Realty Co. v. City of Cleveland, Bd. of Bldg.
Standards & Bldg. Appeals, 41 Ohio St.2d 41, 43, 70 O.O.2d 123, 322 N.E.2d 629, 630 (1975);
accord Premier Dev., Ltd. v. Poland Twp. Bd. of Zoning Appeals, 7th Dist. Mahoning No. 14
MA 91, 2015-Ohio-2025, 2015 WL 3398148, ¶¶ 28-29; Stainfield v. Jefferson Emergency
Rescue Dist., 11th Dist. Ashtabula No. 2009-A-0044, 2010-Ohio-2282, 2010 WL 2026069,
¶¶ 24-28; Roop v. Ross Cty. Floodplain Regulations Variance Bd., 4th Dist. Ross No.
03CA2707, 2003-Ohio-5522, 2003 WL 22358828, ¶¶ 21-23; Zurow v. Cleveland, 61 Ohio
App.2d 14, 24, 399 N.E.2d 92 (8th Dist. 1978). Thus, “‘an attorney may not fail to object and
then cite the lack of an oath as error. If that were possible, the remainder of the trial would be a
“free play.”’” Stainfield at ¶ 27, quoting State v. Norman, 137 Ohio App.3d 184, 198, 738
N.E.2d 403 (1st Dist. 1999). Consequently, “the failure to administer an oath to witnesses in an
administrative proceedings is not [a] fatal” error that requires reversal. Shields v. Englewood,
2nd Dist. No. 21733, 172 Ohio App.3d 620, 2007-Ohio-3165, 876 N.E.2d 972, 2007 WL
1806063, ¶ 16.
{¶ 18} We further note that R.C. 2506.03(A)(3) and (B) allow a trial court to hear
“additional evidence as may be introduced by any party” if testimony adduced at an
administrative hearing was not given under oath. “At the hearing, any party may call, as if on
cross-examination, any witness who previously gave testimony in opposition to that party.”
R.C. 2506.03(B).
{¶ 19} In the case sub judice, appellant did not object during the administrative hearing to
the failure to administer oaths to the witnesses. Moreover, on appeal to the common pleas court,
appellant did not seek to introduce any additional evidence or call any witnesses in accordance
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with R.C. 2506.03(A)(3) and (B). Under these circumstances, we conclude that appellant
forfeited the right to raise the issue on appeal.
{¶ 20} Accordingly, based upon the foregoing reasons, we overrule appellant’s first
assignment of error.
II
{¶ 21} In his second assignment of error, appellant asserts that the evidence fails to show
that appellees complied with the Union Township Fire Department’s disciplinary manual when it
discharged him. Appellant contends that the disciplinary manual states that “[t]he chief shall
recommend to the Union Township Board of Trustees, the removal of any officer.” Appellant
contends that appellees did not establish that the chief recommended appellant’s removal to the
board of trustees. Appellant appears to imply that the failure to comply with the disciplinary
manual means that his termination is not valid.
{¶ 22} Appellees argue that appellant misquotes the disciplinary manual and that the
disciplinary manual did not require the chief to recommend appellant’s removal to the board of
trustees. According to appellees, the disciplinary manual states:
The Chief shall recommend to the Union Township Board of Trustees, the
removal of any officer or coordinator for gross neglect of duty, leave of absences
without written notice, conduct unbecoming of an officer or coordinator, and
leave of absences 181 days or longer with the exception of what is mentioned in
Article IV, Section 3, paragraph 3.4. No officer or coordinator shall be removed
without compliance with the provisions of the Ohio Revised Code.
{¶ 23} Appellees assert that appellant was not terminated for one of the reasons listed in
the disciplinary manual, but instead the board terminated appellant for “misfeasance,
malfeasance and misconduct in office.” Appellees thus contend that the disciplinary manual did
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not require the chief to recommend appellant’s removal.
{¶ 24} Appellant, however, responds that “misfeasance, malfeasance and misconduct in
office” are synonyms for the words contained in the disciplinary manual. He thus argues that the
disciplinary manual required the chief to recommend to the board of trustees his removal.
{¶ 25} R.C. 505.38 provides for the removal of firefighters in accordance with R.C.
733.35. R.C. 733.35 provides that a firefighter may be removed if he “has been guilty, in the
performance of his official duty, of bribery, misfeasance, malfeasance, nonfeasance, misconduct
in office, gross neglect of duty, gross immorality, or habitual drunkenness.”
{¶ 26} In the case sub judice, the board of trustees’ cited reasons for terminating appellant
tracks the language contained in R.C. 733.35, i.e., misfeasance, malfeasance, and misconduct in
office. The board of trustees’ decision did not use the language contained in the disciplinary
manual, i.e., “gross neglect of duty, leave of absences without written notice, conduct
unbecoming of an officer or coordinator, and leave of absences 181 days or longer.” Because
the board of trustees’ language specifically tracks the statute’s language and not the disciplinary
manual’s language, we do not agree with appellant that the board of trustees terminated him for
any of the reasons cited in the disciplinary manual, i.e., “gross neglect of duty, leave of absences
without written notice, conduct unbecoming of an officer or coordinator, and leave of absences
181 days or longer.”
{¶ 27} Furthermore, assuming, arguendo, that appellees terminated appellant for one of
the reasons listed in the disciplinary manual, and that the chief therefore was required to
recommend appellant’s removal to the board of trustees, appellant did not cite authority to
support the proposition that the failure to comply with a fire department’s disciplinary manual
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when terminating a firefighter requires a determination that the termination is invalid. We
additionally note that, according to the portion of the disciplinary manual quoted in appellee’s
brief, the manual states that “[n]o officer * * * shall be removed without compliance with the
provisions of the Ohio Revised Code.” Appellant did not allege that his removal failed to
comply with the Ohio Revised Code or that it is invalid.
{¶ 28} Accordingly, based upon the foregoing reasons, we overrule appellant’s second
assignment of error and affirm the trial court’s judgment.
JUDGMENT AFFIRMED.
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JUDGMENT ENTRY
It is ordered that the judgment be affirmed and that appellees recover of appellant the
costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Ross County
Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
Smith, P.J & Hess, J.: Concur in Judgment & Opinion
For the Court
BY:
Peter B. Abele, Judge
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NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk.