Hawkins v. Marion Corr. Inst.

• Decision Date: 24 May 1990
• Docket Number: No. 9-89-3,9-89-3
• Citation: 577 N.E.2d 720,62 Ohio App.3d 863
• Parties: HAWKINS, Appellant, v. MARION CORRECTIONAL INSTITUTE, Appellee. *
• Court: Ohio Court of Appeals

Page 863

62 Ohio App.3d 863

577 N.E.2d 720

HAWKINS, Appellant, v. MARION CORRECTIONAL INSTITUTE, Appellee. ^*

No. 9-89-3.

Court of Appeals of Ohio, Third District, Marion County.

Decided May 24, 1990.

Syllabus by the Court

1. A classified employee of the state of Ohio must be afforded a pretermination hearing. (Local 4501, Communications Workers of America v. Ohio State Univ. [1990], 49 Ohio St.3d 1, 550 N.E.2d 164, paragraph one of the syllabus, followed.)

2. Due process requirements are met by the reasonable-grounds-for-removal aspect of a pretermination disciplinary hearing followed by the provision of a full administrative pretermination hearing and judicial review of the proceedings.

3. Results of polygraph examinations are inadmissible during the trial of a cause in a court of law.

4. The very nature of the duties of a judge often require him to have knowledge of inadmissible evidence. Every time the judge makes a ruling determining evidence inadmissible, he has to know what the inadmissible evidence consists of, and if he is the fact finder, he must eliminate same from his consideration in determining the facts.

5. In administrative appeals the appellate court is limited to a determination of whether the order of the trial court was the product of an abuse of discretion by that court.

6. "Chain of custody" is only an evidentiary tool to establish identity of some item of personal property.

Daniel Smith, Ohio Civil Service Employees Ass'n AFSCME Local 11, Columbus, Craig Becker, Washington, D.C., for appellant.

Anthony J. Celebrezze, Jr., Atty. Gen., Patrick A. Devine and Gregg G. Bachmann, Columbus, for appellee.

GUERNSEY, Judge.

This proceeding originated in an administrative removal effective July 17, 1984 of the appellant, David C. Hawkins, from his position as a correctional officer with the appellee, Marion Correctional Institute ("MCI"), arising from an allegation by MCI of Hawkins' malfeasance and/or neglect of duty and/or failure of good behaviour, and a determination by the institution superintendent that Hawkins "did steal a .38 caliber Smith and Wesson firearm from the Marion Correctional Institution sometime during the period of January 22, 1982 to May 30, 1982." Hawkins appealed the order of removal of the appointing authority under the provisions of R.C. 124.34 and 119.12 to the State Personnel Board of Review where the matter was heard by an administrative law judge, who after an extensive hearing, filed his report and recommendations, recommending "that the removal of the Appellant, David Hawkins, effective July 17, 1984, be AFFIRMED." On March 28, 1985, the board of review entered its order adopting the recommendation of the administrative law judge, and pursuant to R.C. 124.34 and 119.12 Hawkins then filed his notice of appeal from that order to the Court of Common Pleas of Marion County.

Various proceedings and various appeals then took place in that court, in this court of appeals and in the Supreme Court of Ohio, none of which have bearing on this appeal. In any event, the appeal to common pleas court was submitted to that court on its merits on the transcript of proceedings before the board of review, including the transcript of evidence adduced before the administrative law judge, and upon briefs filed in the common pleas court. On December 29, 1988, that court entered its opinion and order finding the recommendations of the board of review supported by reliable, probative and substantial evidence and in accordance with law, finding that there is credible evidence for the administrative law judge and the board to conclude that the appellant had committed the crime of theft of a handgun while employed as a correctional officer at MCI, thereby subjecting him to removal for malfeasance, and ordering that the order of the board of review be affirmed. It is from that "opinion and order" that the appellant Hawkins then appealed to this court.

The appellant assigns error of the lower court in finding that the order of the board of review was in accordance with law and supported by reliable, probative and substantial evidence, because (1) the order violated R.C. 5120.30, (2) the order was based on highly prejudicial, inadmissible evidence, (3) objective, uncontradicted evidence established that appellant did not commit the offense of theft, and (4) the "employing authority" failed to establish a chain of custody of the stolen handgun.

The first branch of the assignment of error is based on an uncontradicted claim that prior to the removal order MCI conducted an investigation into the charges against Hawkins under its special investigatory powers set forth in R.C. 5120.30. Appellant alleges, however, that to counter these extraordinary investigatory powers, the legislature granted certain procedural rights to the subjects of investigations, including, specifically, that "[i]n matters involving the conduct of an officer, a stenographic report of the evidence shall be taken and a copy of such report, with all documents introduced, kept on file at the office of the department."

The record here discloses that in the hearing afforded to Hawkins by the institution superintendent before the initial order of removal was made, stenographic notes were taken and kept on file, but that the stenographic notes were not transcribed.

In a case which parallels this one, the Supreme Court recently held in Local 4501, Communications Workers of America v. Ohio State Univ. (1990), 49 Ohio St.3d 1, 550 N.E.2d 164, paragraph two of the syllabus respecting a disciplinary hearing under the provisions of various labor agreements, that:

"A classified civil service employee of the state of Ohio does not have a constitutional due process right to have a stenographic record or a tape recording made of a pretermination disciplinary hearing."

By analogy appellant's rights to the making of a stenographic record of his initial hearing are not rights accorded to him by the Constitution and, if they exist at all, must rest entirely on the statutory provision heretofore quoted from R.C. 5120.30. It will be observed that that statutory provision merely provides that a stenographic report of the evidence shall be taken and a copy be kept on file at the office of the department. The statute does not provide that compliance is for the benefit of the appellant, nor does it provide that the result of non-compliance shall affect the validity of the removal order, as now claimed by the appellant. As set forth in Cleveland Bd. of Edn. v. Loudermill (1985), 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494, and Local 4501, supra, due process requirements are met by the reasonable grounds for removal aspect of the pretermination disciplinary hearing followed by the provision of a full administrative posttermination hearing and judicial review. As stated in Loudermill at 546, 105 S.Ct. at 1495, 84 L.Ed.2d at 506, " * * * [t]o require more than this prior to termination would intrude to an unwarranted extent on the government's interest in quickly removing an unsatisfactory employee."

Moreover, we find no place in the record where the appellant has set forth the scope and nature of any prejudice that he might have incurred by reason of the absence of a full stenographic record on file at the office of the department.

Thus, we find no error prejudicial to the appellant with respect to there being no stenographic transcription of the pretermination hearing.

The second branch of the assignment of error respecting "introduction of highly prejudicial, inadmissible evidence and prosecutorial misconduct," alludes first to that part of the removal order, stating:

"Testimony from Trooper Knight and Mr. Berry indicated that Mr. Berry voluntarily took a polygraph examination, conducted by the Ohio State Highway Patrol, concerning Mr. Hawkins' involvement in this matter. The results indicated that Mr. Berry was truthful in his admission that he purchased the pistol from Mr. Hawkins and that Mr. Hawkins had told him he had stolen the gun from the Marion Correctional Institution."

Hawkins made a motion in limine prior to the hearing before the administrative law judge that "any results of any polygraph examination administered to any witness" be excluded from evidence, which motion was granted, and moved that the reference to a polygraph examination in the removal order be deleted, which motion was also granted. Hawkins then moved that the administrative law judge excuse himself based on his exposure to "the inadmissible and highly prejudicial statement contained in the removal order." This motion was denied.

During the hearing Hawkins moved to admit a prior statement he gave to a state trooper, with a reference therein to his willingness to submit to a polygraph examination deleted, and withdrew his motion when the judge ruled that only the entire statement would be admissible. When MCI later offered the same exhibit the judge cautioned MCI's counsel that its admission did not open the door to admission of any other evidence concerning polygraph examinations. Nevertheless MCI filed on November 7, 1984, a supplemental list of witnesses to testify on its behalf which stated in its first paragraph:

"Sgt. Phil Osbron, State Highway Patrol, Columbus.--to testify that in regard to a polygraph examination that was administered to Barbara Bowen, the results of which indicate...