Dillingham v. Woodlawn

• Court: Ohio Court of Appeals
• Writing for the Court: PER CURIAM; DOAN, P.J., and UTZ; HILDEBRANDT; HILDEBRANDT
• Citation: Dillingham v. Woodlawn, 619 N.E.2d 1152, 86 Ohio App.3d 54 (Ohio App. 1993)
• Decision Date: 29 January 1993
• Docket Number: No. C-910638,C-910638
• Parties: DILLINGHAM, Appellant, v. VILLAGE OF WOODLAWN et al., Appellees.

Page 54

86 Ohio App.3d 54

619 N.E.2d 1152

DILLINGHAM, Appellant, v. VILLAGE OF WOODLAWN et al., Appellees.

No. C-910638.

Court of Appeals of Ohio, First District, Hamilton County.

Decided Jan. 29, 1993.

Roger R. Chacksfield, Cincinnati, for appellant.

Louis Lausche, Village Sol., Cincinnati, for appellees.

PER CURIAM.

The plaintiff-appellant, Thomas Dillingham, Jr., appeals from the decision of the trial court denying relief on his complaint for declaratory judgment in an action arising from his termination as a police officer for the village of Woodlawn. On appeal, he asserts two assignments of error: (1) the trial court erred when it concluded that his status with the Woodlawn Police Department was that of temporary employee from May 12, 1989, until January 9, 1990, and (2) the trial court erred when it concluded that the mayor had the power to remove him without the concurrence of the village council. We reject the first assignment of error, but find the second to be well taken and thus reverse.

I

Prior to setting forth the factual background of this case, we note that the record contains references to certain joint trial exhibits, some of which appear, by reference, to be extremely significant in terms of recreating the series of events which led to Dillingham's employment and termination. However, the only transcript of the trial certified to this court is a partial transcript, and, although the exhibits are referred to throughout, nowhere in the partial transcript can we find a statement by the court that the joint exhibits were admitted into evidence. Consequently, the joint trial exhibits are not part of the record on appeal, and the following recitation of facts is based upon the stipulations of counsel and a partial record bereft of the exhibits.

On May 9, 1989, the Woodlawn Council approved the recommendation of the mayor to employ Dillingham as a "temporary" police officer starting on May 12, 1989. He was hired following the suspension of a sergeant in the Woodlawn Police Department after the sergeant was charged with dereliction of duty and drug abuse.

Dillingham was evaluated using the department's "Recruit Evaluation Report Probationary Forms" for the months May through November 1989, and January through April 1990. Dillingham never scored below the level designated as "Meets Duty Requirements" on any of these forms, and on the majority of the forms he scored at the level "Exceeds Duty Requirements."

The sergeant whose suspension prompted Dillingham's hiring was found guilty of dereliction of duty and resigned effective November 13, 1989.

The mayor of Woodlawn appointed Dillingham to the vacancy created by the sergeant's resignation on December 14, 1989, to be effective December 20, 1989, and subject to the confirmation of the village council. Apparently the village council met on January 9, 1990, at which time Dillingham's appointment was approved.

Dillingham testified at trial that it was his impression that at this point his probationary period was over and that he had been permanently appointed as a police officer. He testified that this impression was based on representations made to him by the police chief that the police chief would recommend that the time he had worked as a temporary officer be counted as probationary time. Dillingham testified that he was later told by the chief of police that this recommendation had been rejected. According to Dillingham, it was not until February 1990 that he learned at a supervisor's meeting that he was still considered on probation.

Dillingham testified that between January 9, 1990, and July 9, 1990, he was counseled on "a few occasions" with respect to areas of work which his supervisors found unsatisfactory.

Dillingham testified that near the end of his tenure with the police department he was informed by the police chief that he had not successfully completed his probationary period, but was given no specifics regarding this conclusion.

At the village council meeting of July 10, 1990, the mayor recommended that Dillingham not be approved to pass his six months' probation. Dillingham's record of service as evidenced by his personnel file and his Recruit Evaluation Report Probationary Forms was not transmitted to council, nor were its contents made known to them. Two members of council voted to approve the mayor's recommendation, three members voted to reject it.

The mayor on July 16, 1990, gave Dillingham written notice that he had not successfully completed his six-month probationary period and that his employment was terminated as of July 9, 1990.

II

In his first assignment of error, Dillingham asserts that the trial court committed error when it concluded that his status was that of a temporary employee from May 12, 1989, until January 9, 1990. Essentially, Dillingham argues that the law does not provide authority for the village to hire a temporary police officer, and that the title "temporary" given to his employment meant only that it was conditional on the disciplined sergeant not returning. Once it became clear in October 1989 that the sergeant would not return, Dillingham argues, his service became, from the beginning, probationary, so that when the mayor appointed him as a patrol officer on December 20, 1989, he had already served his six-month probationary period and the appointment was, therefore, final.

As noted previously, the transcript before us is only a partial transcript and does not include the admission into evidence of the joint trial exhibits. Hence, we have not been presented with the complete record before the trial court. It is well established that error will not be presumed, but must appear affirmatively on the record. Moreover, it is the appellant's burden to show that error has occurred; otherwise, a presumption of validity and regularity attaches to the proceedings below. In addition, App.R. 9(B) provides, in pertinent part:

"If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the weight of the evidence, he shall include in the record a transcript of all evidence relevant to such findings or conclusion."

Because the appellant has not presented us with a complete record of all evidence relevant to his status upon being hired by the village, we hold that he is foreclosed from challenging the factual basis for the trial court's conclusion that he was on "temporary" status at the time of his hire until December 20, 1989.

The only basis upon which he is left to challenge this determination is upon the purely legal basis that a village has no authority to hire a "temporary" police officer. This argument avails him little, however, because, even if correct, the fact that the village had acted ultra vires in hiring him on a "temporary" basis would not necessitate that his original employment be considered probationary.

We hold, moreover, that a village does have the authority to hire "temporary" policemen under R.C. 737.16 and 737.17.

Dillingham's first assignment of error is, therefore, overruled.

III

In his second assignment of error, Dillingham contends that the trial court erred when it concluded that the mayor had the power to remove him without the concurrence of the village council.

The trial court found, and the village does not contest, that Dillingham was appointed as a probationary police officer on January 9, 1990, and that he thereafter served his probationary employment period from January 9, 1990, to July 9, 1990. It is not disputed that, at the village council meeting of July 10, 1990, the mayor recommended that Dillingham not be finally appointed, and that a majority of the council, by a vote of three to two, rejected this recommendation. It is also not disputed that, at this council meeting, Dillingham's record of service as evidenced by his personnel file and...