Opinion
No. 76-2125
Decided August 2, 1977
Administrative appeal — R. C. 119.12 — Hearing — Duty of court — State Personnel Board of Review — Grounds for reinstatement — Highway patrol — Standard of conduct.
1. The hearing envisioned by R. C. 119.12 on an appeal from the State Personnel Board of Review requires a close consideration by the Court of Common Pleas of the record as certified to it by the board, the written briefs, and the oral argument of counsel.
2. As a "temporary" Court of Appeals under R. C. 119.12 the Court of Common Pleas must view the evidence on appeal from the State Personnel Board of Review from an appellate perspective, and the findings of the board must be affirmed if supported by reliable, probative, and substantial evidence, and if in accordance with law.
3. The failure of the State Personnel Board of Review to "hear or appoint a trial board to hear" an appeal of an order of removal within 30 days after filing is not automatic grounds for reinstatement under R. C. 124.34 — the crucial factor is the "unreasonableness" of the delay under the "particular set of circumstances," and an unexplained or unreasonable delay would deprive the individual of his right to due process.
4. A State Highway Patrolman, by accepting such a position of employment, agrees to abide by all rules and regulations promulgated by his superiors; highway patrolmen, like all public officers, are held to a higher standard of conduct than other employees, and in light of that higher standard, they may be removed from their jobs for conduct that may not be considered as serious in some other employment setting.
Mr. Alex V. DeMarco, for appellant.
Mr. William J. Brown, attorney general, and Mr. Joseph E. Scuro, Jr., for appellee.
I. INTRODUCTION AND FACTS.
This case is before the court as an appeal from the decision of the State Personnel Board of Review affirming an order of removal of appellant from his position of employment as a sergeant for the Ohio State Highway Patrol. Sgt. Bronkar's removal was based upon violations of Article II, Sections 3a, 8a and 8b, and Article VI, Section 5a, Rules and Regulations of the Ohio State Highway Patrol.
The factual basis for the removal centers upon appellant's improper sexual advances made toward three female dispatchers employed by the Dayton Patrol Post.
Jurisdiction in this court is based on the authority of R. C. 124.34 and 119.12 as an appeal by a party adversely affected by the order of an administrative agency. This court has made every effort possible to conform to the statutory requirements of R. C. 119.12, in order to afford this appellant the judicial scrutiny he is entitled to on appeal. Appellant's file has been "given preference over all other civil cases, irrespective of the position of the proceedings on the calendar of the court," as mandated by statute. Appellant's file has been given the requisite hearing authorized by the Revised Code, consisting of a close consideration of the record as certified to it by the personnel board, written briefs and oral argument of counsel. City Products Corp. v. Board of Liquor Control (1958), 106 Ohio App. 494, 153 N.E.2d 153.
The court emphasizes the fact that all possible steps have been taken to afford Sgt. Bronkar the fullest review possible, because it recognizes the severity of the action taken by the State Personnel Board of Review. The court subscribes to the view that the most essential ingredient in a system of justice is that no case should be decided without each party to the dispute being afforded the fullest opportunity of presenting his side to the court.
II. STANDARD OF REVIEW.
Before addressing appellant's specific objections, it is necessary to establish the perspective with which the evidence on appeal is to be viewed. In an appeal from an administrative agency such as the State Personnel Board of Review, the traditionally "trial-oriented" Common Pleas Court is transformed into a temporary Court of Appeals. In recognition of this transformation, R. C. 119.12 requires an affirmance of the decision below if a specific standard is satisfied:
"The court may affirm the order of the agency complained of in the appeal if it finds, upon consideration of the entire record and such additional evidence as the court has admitted, that the order is supported by reliable, probative, and substantial evidence and is in accordance with law." (Emphasis added.)
The three critical characteristics the evidence on appeal must possess have been accurately defined in headnote number 6 of Ohio Real Estate Comm. v. Cohen (1962), 90 Ohio Law Abs. 137, 187 N.E.2d 641:
"6. The evidence required by Section 119.12, Revised Code, to support an order of an administrative agency on an appeal therefrom to the courts must be:
"1. Reliable, that is, dependable, with reasonable assurance of its probability, as not only truthful but also true.
"2. Probative, relates to the evidentiary value of the testimony and other evidence in an analytical sense, having depth and being more than merely superficial or speculative.
"3. Substantial, would mean that the evidence has body or substance of sufficient degree to be of some weight, as well as quality, that gives it standing and credence, as well as dependable and trustworthy." (Emphasis added.)
III. APPELLANT'S OBJECTIONS.
(a) The State Personnel Board of Review erred in not reinstating appellant because under R. C. 124.34 the board did not hear or appoint a trial board to hear his appeal within thirty days of its filing with that board.
(b) The order of the board was not supported by the requisite reliable, probative, and substantial evidence mandated by R. C. 119.12.
(c) The order of removal is contrary to the law and rules of evidence.
IV. DISCUSSION.
A. R. C. 124.34 AND THE 30-DAY REQUIREMENT.
Various provisions of the Administrative Procedure Act, other than R. C. 124.34, provide for notice and hearings to be held within a specified time frame. For example, R. C. 119.07 indicates that when a party requests a hearing to which he is entitled, the agency must conduct it not less than seven but not more than fifteen days after the request. There is no language specifying what might justify a continuance or any time frame set up as the maximum time for any delay.
Nevertheless, courts have held that an unexplained and unreasonable delay deprives the affected party of the due process to which he is entitled. In re Milton Hardware Co. (1969), 19 Ohio App.2d 157, 250 N.E.2d 262. See, e. g., Cunningham v. Jerry Spears Co. (1963), 119 Ohio App. 169, 197 N.E.2d 810; State, ex rel. Columbus Gas Fuel Co., v. Pub. Util. Comm. (1930), 122 Ohio St. 473, 172 N.E. 284.
In Columbus Gas, supra, the Ohio Supreme Court reviewed a petition seeking the issuance of a writ of mandamus to compel the Public Utilities Commission to hear a proceeding filed and pending before it. In assessing the delay, the Supreme Court held, at page 475, that an allegation:
"* * * that the commission is acting with due discretion and with due regard to the rights and interests of all the litigants before the commission states a good defense. It is the duty of the commission to hear matters pending before the commission without unreasonable delay and with due regard to the rights and interests of all litigants before that tribunal." (Emphasis added.)
The court also made reference to the fact that the agency is invested with a certain discretion in the order of its business which should not warrant judicial intervention except in extreme cases. The court also indicated, at page 475, that information relating to the "state of the docket" or the "volume of business pending therein" was, by implication, a definite factor in assessing any argument as to the unreasonableness of the delay.
Likewise, in In re Hardware Co., supra, the court held, at page 166, that a fair hearing before an administrative tribunal ( i. e., the deputy administrator of the Bureau of Unemployment Compensation), requires that such "hearing and determination be had in as expeditious and timely a manner as possible under the circumstances." (Emphasis added.)
This court realizes that the aforementioned case law refers to the initial hearing before an administrator or agency, whereas the case at bar refers to an administrative review of that initial determination by the personnel board. Nevertheless, the same principles of "fairness" and "unreasonable delay," "docket congestion" and so forth would be applicable at this level as well.
It is therefore the opinion of this court that the delay in the hearing before the personnel board was not unreasonable under the circumstances, because it was caused by the adjudication of personnel appeals similar to that of Sgt. Bronkar. However, the court also holds that it will continue to take a strong look at appeals of this nature to determine that in fact any delay was reasonable and appellant's due process rights upheld. The burden of proof being placed on the board to illustrate to the court that the failure to comply with the 30-day requirement of R. C. 124.34 was reasonable.
B. THE RELIABLE, PROBATIVE, AND SUBSTANTIAL NATURE OF THE EVIDENCE BEFORE THE BOARD.
Appellant's second assignment of error deals with the testimonial evidence of the three female dispatchers who presented their allegations before the board. He indicates that the failure of the women to sufficiently pinpoint the specific time frame within which the sexual advances were made destroys their credibility. Likewise appellant indicates that one of the dispatchers did not cry out when she was fondled, nor were these incidents reported until they realized an investigation was under way.
The dispatchers' testimony that they feared retaliation in relation to their jobs if they reported the actions of their superior is credible. Likewise, their testimony concerning the details of what occurred was not of such an unreliable character as to deprive it of the weight given it by the board.
Whenever credibility is the key issue in a controversy of this sort, where totally conflicting stories are presented, a great deal of deference is given to the board as the trier of the facts. The board was able to watch the individuals testify and assess all the factors that go into a determination of the weight to be given each individual's testimony. The fact that the board was actively involved in that pursuit is indicated by its determination that the testimony of witness Bonnie Lawson was of no evidentiary value. Acting as an appellate court in this particular controversy, this court cannot exercise an independent judgment on the facts, or substitute its judgment for that of the personnel board.
Having established that the testimonial evidence is sufficiently reliable to satisfy R. C. 119.12, it is certainly substantial in that three different women testified to the actions of Sgt. Bronkar on a variety of occasions.
In determining whether the testimony was probative, i. e., relevant and material to the removal of a State Highway patrolman, this court agrees with appellee's argument that the rules and regulations governing the conduct of public officers, such as Sgt. Bronkar, rightfully prescribe the highest standard of personal conduct. The court realizes that the actions of Sgt. Bronkar might not be considered so serious in some other office setting, but as an on-duty police officer they are clear violations of the rules and regulations of the Ohio State Highway Patrol. The Supreme Court of the United States has recently reaffirmed the fact that police officers are held to a higher standard of conduct than the general public. Kelley v. Johnson (1976), 425 U.S. 238. See, also, In re Chase (1976), 50 Ohio App.2d 393.
C. PREJUDICIAL BIAS AND THE BOARD'S FINDINGS.
The final assignment of error relates to the operation of the hearing before the board and the alleged bias of one of the board members. It is the opinion of this court that the colloquy that took place on page 112 of the transcript does not reflect the bias that is alleged. Mr. Avren's comments were simply directed to the relevancy and materiality of the testimony of Mr. Holbrook as it might relate to the specific incidents which were the basis of Sgt. Bronkar's removal. His feeling was that the actions of Sgt. Bronkar on prior occasions towards females was collateral to the issues at hand. As a member of the board, Avren had a right to raise this question of materiality.
However, it must also be noted that the chairman overruled the objections and permitted appellant's counsel to proceed with his questioning of Mr. Holbrook concerning Bronkar's prior conduct with females.
In conclusion, neither the record nor the change in the wording of the orders of the board on October 6 and October 12 concerning the credibility of Bonnie Lawson reflects a bias sufficient to overturn the board. Assuming, arguendo, that there was any error occurring in the proceedings before the board, there is no indication that it was anywhere near the reversible error analogous to the granting of a new trial.
The court is also satisfied that the testimony of Bonnie Lawson was sufficiently conflicting to warrant the board's finding that her credibility was destroyed. The court also does not regard the copies of her statements attached to the transcripts as appellee's exhibits as an attempt by the Attorney General to introduce new evidence. The statements were not admitted into evidence by the chairman of the personnel board, and accordingly not scrutinized as part of the record on appeal.
V. CONCLUSION.
In light of all the evidence presented on appeal including the certified record, written briefs and oral arguments of counsel, the decision of the board requires an affirmance. Although this court may have come to a different conclusion were it the critical trier of facts, it cannot be said from this appellate perspective that the finding of the board is not substantiated by the requisite reliable, probative, and substantial evidence.
Therefore, in accordance with the aforementioned statutory standard of R. C. 119.12, the findings of the state personnel board are affirmed in their entirety.
Decision affirmed.