Chase, In re

• Decision Date: 23 September 1976
• Parties: , 4 O.O.3d 394 In re CHASE. *
• Court: Ohio Court of Appeals

Page 393

50 Ohio App.2d 393

364 N.E.2d 292, 4 O.O.3d 394

In re CHASE. ^*

Court of Appeals of Ohio, Fourth District, Ross County.

Sept. 23, 1976.

Syllabus by the Court

1. The provision of R.C. 124.34 which allows the removal of a state officer or employee, holding a classified position under the civil service laws of the state, for immoral conduct is not vague or overbroad.

2. An administrative regulation which provides for the removal of a state highway patrol officer for associating, during his off-duty hours, with persons of a quality not acceptable by good social standards and requires him to exemplify fidelity and morality does not prejudicially infringe upon constitutional rights.

Robert A. Wilcox, Columbus, for appellant Harlan W. Chase.

William J. Brown, Atty. Gen., and Joseph Scuro, Columbus, for the director of highway safety of Ohio.

STEPHENSON, Judge.

This is an appeal from a judgment of the Ross County Court of Common Pleas affirming an order of the Board of Personnel Review which, in turn, had sustained an order of the director of the Department of Highway Safety removing Harlan W. Chase, appellant herein, as a state highway patrol officer.

The following errors are assigned:

"1. The statutory and regulatory basis for appellant's dismissal violated the Due Process Clause of the Fourteenth Amendment to the United States Constitution.

"(A) O.R.C. 143.25 (sic ) (now 124.34) and the regulations of the Ohio State Highway Patrol allegedly violated by appellant are unconstitutionally vague;

"(B) R.C. 143.25 (sic ) (now 124.34) and the regulations of the Ohio State Highway Patrol allegedly violated by appellant are unconstitutionally over broad and infringe upon appellant's right to privacy.

"2. The dismissal of appellant from the Ohio State Highway Patrol was arbitrary and discriminatory in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

"3. The Board of Review committed prejudicial error in admitting the alleged confession of appellant into evidence for the following reasons:

"(A) Failure of the state to introduce extrinsic evidence which in any way was probative of the material element of the accusations against appellant.

"(B) Failure of the investigating officers to advise appellant of his constitutional rights as guaranteed by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution;

"(C) Failure of the board of review to exclude the coerced statements of appellant as violative of his Fifth, Sixth and Fourteenth Amendment rights."

The appeal to the court below was determined upon the record including the evidence presented before the Board of Personnel Review. Appellant did not appear or testify in his own behalf at the board hearing.

The parties are aware of the facts appearing in the record and we deem it unnecessary to detail them here for disposition of this appeal. In summary, a going away stag party was given on the night of July 10, 1973, for a transferred patrol officer, which was attended by a number of state highway patrol officers, including appellant. The party was held in a private section of a local motel restaurant. After the party, at which intoxicating liquors were consumed, several of the officers, including appellant, entered the public bar at the motel and continued to drink and several of the officers danced with unescorted women patronizing the bar. After the bar closed, appellant and several other officers, together with three women, one of whom was a motel waitress, went to the apartment of one of the women. By the time appellant arrived at the apartment, accompanied by one of the women, there was evidence he was intoxicated. Certain familiarities, but stopping short of sexual relations, appear to have been engaged in by appellant with one of the women in the bedroom of the apartment. Subsequently, an investigation was made by state patrol officers which resulted in disciplinary action against appellant and five other officers with penalties imposed ranging from reprimand and suspension to transfer, with appellant, however, being the only officer removed from his employment. We proceed on the assumption herein, no claim being made to the contrary, that appellant is a state, classified civil service employee. See State ex rel. Myers v. Chiaramonte (1976), 46 Ohio St.2d 230, 233, 348 N.E.2d 323, leaving open the civil service status of patrol officers.

The regulation of civil service employees in Ohio stems from the 1912 amendment to Section 10, Article IV of the Ohio Constitution, which mandates the passage of laws by the General Assembly to implement the objectives set forth in the section. A number of statutes were thereafter enacted including the predecessors of what is now R.C. 124.34, formerly R.C. 143.27, which provided, in part, the following:

"The tenure of every officer or employee in the classified service of the state * * * holding a position under sections 143.01 to 143.48, inclusive, of the Revised Code, shall be during good behavior and efficient service and no such officer or employee shall be reduced in pay or position, suspended, or removed, except for incompetency, inefficiency, dishonesty, drunkenness, immoral conduct, insubordination, discourteous treatment of the public, neglect of duty, violation of such sections or the rules of the director of state personnel or the commission, or any other failure of good behavior, or any other acts of misfeasance, malfeasance, or nonfeasance in office."

Pursuant to R.C. 5503.03, the superintendent of the State Highway Patrol has adopted disciplinary rules for highway patrolmen which are, in the part relevant here, the following, as to conduct while off duty:

"(A)ssociations with women while off duty shall be of the quality acceptable by good social standards that assure the member of exemplifying stability, fidelity and morality." (Section 3(b), Article II.)

Section 8(B) provides, in part: "the conduct and deportment of a member while off duty shall be moderate and gentlemanly at all times, and particularly so when he is identifiable to the public as a member of the State Highway Patrol."

The order of removal issued by the appointing authority stated the reasons for removal as follows:

"The reason for this action is that you have been guilty of Failure of Good Behavior in the following particulars, to wit: (1) In violation of Article II Section 3(B) of the Rules and Regulations of the Ohio State Highway Patrol, you are hereby charged that on July 11, 1973 between the hours of 12 midnight and 5:00 A.M., while attending a party at the L-K Lounge at the east edge of Chillicothe; then at the apartment of one Nancy Rinehart, while off duty, you did associate with women not of the quality acceptable by good social standards that assured the member of exemplifying stability, fidelity and morality. (2) In violation of Article II, Section 8(B) of the Rules and Regulations of the Ohio State Highway Patrol, your conduct and deportment while off duty was not moderate and gentlemanly, and particularly so when identifiable to the public as a member of the State Highway Patrol.

(3) On July 11, 1973, you were under the influence of alcoholic beverages.

(4) On July 11, 1973, you did engage in an immoral sex act."

The first assignment of error asserts that despite specificity in the order of removal both the statutory grounds of removal and the patrol regulations are unconstitutional by reason of vagueness and overbreadth. The issue of vagueness is a claimed violation of procedural due process while the claim of overbreadth asserts a substantive due process violation of appellant's right of privacy. We do not perceive the constitutional infirmities appellant asserts in either the statute or the regulations. We view Arnett v. Kennedy (1974), 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15, as negating both appellant's vagueness and overbreadth claims. In Arnett, it was asserted that Section 7501(a), Title 5, U.S.Code, a section in The Lloyd-LaFollette Act which authorizes removal of federal employees for "such cause as will promote the efficiency of the service," was constitutionally vague and overbroad. In rejecting that contention, the court quoted from CSC v. Letter Carriers (1973), 413 U.S. 548, 578-579, 93 S.Ct. 2880, 37 L.Ed.2d 796, as follows:

" 'There are limitations in the English language with respect to being both specific and manageably brief, and it seems to us that although the prohibitions may not satisfy those intent on finding fault at any cost, they are set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interest. " The general class of offense to which (the provisions are) directed is plainly within (their) terms (and they) will not be struck down as vague, even though marginal cases could be put where doubts might arise. " United States v. Harriss, 347 U.S. 612, 618, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954).' " (Arnett, supra 416 U.S. at 159, 94 S.Ct. at 1647.)

In rejecting the overbreadth claim, the court interpreted that statute to exclude only constitutionally protected speech, expressly recognizing that the government has an interest, as an employer, in the efficiency of the public services it performs and, thus, may constitutionally regulate,...