Jones v. Franklin County Sheriff

• Decision Date: 20 June 1990
• Docket Number: No. 89-125,89-125
• Citation: 52 Ohio St.3d 40,555 N.E.2d 940
• Parties: JONES, Appellee, v. FRANKLIN COUNTY SHERIFF, Appellant.
• Court: Ohio Supreme Court

Page 40

52 Ohio St.3d 40

555 N.E.2d 940

JONES, Appellee, v. FRANKLIN COUNTY SHERIFF, Appellant.

No. 89-125.

Supreme Court of Ohio.

Submitted Jan. 24, 1990.

Decided June 20, 1990.

On January 9, 1986, Diane Jones, a Deputy Sheriff 1 in the Franklin County Sheriff's Department, involved herself in the pursuit of a woman whom Jones's sister suspected of stealing her purse. Jones participated in a series of events that included a car chase and the search of a private residence, without any apparent authorization. At no time during the pursuit and search did Jones report the incident to the police or otherwise try to dissuade the other participants from continuing their efforts to retrieve the purse on their own.

The events began when Jones's sister, Valerie Matfield, was visited at home by Tracy Smith, also known as Tracy Gresham. While Matfield was in another room, Smith stole Matfield's purse and left the apartment. Upon discovering her purse was missing, Matfield phoned the Columbus Police Department and reported the theft.

When Matfield was told that Smith was in a nearby car, she got into a car driven by an acquaintance, Warren Callaway, and gave chase. Meanwhile, Matfield's neighbor, Lilly White, informed Deputy Jones of the theft of the purse as Jones arrived, off duty and out of uniform, at her sister's home. Jones and White joined the chase in a car driven by White.

When stopped at an intersection, Matfield left her friend's car and walked up to the car occupied by Smith. Matfield grabbed Smith's arm and helped her from the back seat of the car. Meanwhile, White and Jones arrived at the intersection. Smith confessed to the theft and agreed to take Matfield to where the purse was hidden. This information was gained through Matfield's interrogation of Smith at the intersection which, according to Smith, was intimidating. Jones reached her sister and Smith after Smith was out of the car. From the nature of this scene, Jones must have known that Matfield was taking the law into her own hands. Jones still did nothing to discourage Matfield's actions. Again, she continued to participate, following her sister and Smith to the home of Vivian Brihm to recover the purse.

Matfield, White, Callaway, Jones, and Smith arrived at Brihm's house in the early evening. Brihm and her children later testified that after the five arrived, Brihm objected when Matfield, White, and Smith went upstairs for the purse. According to Brihm, they persisted in searching upstairs despite Brihm's protests and pulled clothes out of closets. Jones remained downstairs during this improper search of the Brihm house, once again doing nothing to stop it. Instead, Jones facilitated the search by virtue of her entry into the house. During the search, Smith left the house through an upstairs window.

Jones, Matfield, and White then left to search for Smith. They later were told that Smith was at 808 East Fulton Street, Smith's residence. The information came from the same person who had earlier correctly identified Smith's location in the automobile. After unsuccessfully trying to gain entry into the Fulton Street house, Matfield finally called the Columbus Police Department. Officer Richard Ey responded to the call, obtained entry into the home, found Smith, recovered Matfield's purse, and arrested Smith.

This incident resulted in two separate investigations into Jones's conduct. One was a criminal investigation regarding allegations of kidnapping and assault. The other was a Franklin County Sheriff's Department Internal Affairs Division ("IAD") investigation which reviewed the actions of Deputy Jones to determine whether she had violated any sheriff's department regulations. On January 31, 1986 Sergeants Michael Flynn and John Hammond of the IAD attempted to interview Deputy Jones about the incident. Through her counsel, Jones informed the two sheriff's sergeants that she would not answer questions put to her during the IAD sessions. The sergeants then advised Jones that no evidence or information gathered in the IAD proceeding would be used against her in any subsequent criminal proceeding. The sergeants further advised Jones regarding the relevant provisions of the department's collective bargaining agreement that required answering such questions, gave her a direct order on the record to answer specific questions regarding the January 9, 1986 events, and warned her that refusal to answer would constitute insubordination.

Based upon the sergeants' findings, the sheriff's department held a predisciplinary hearing on February 11, 1986. In accordance with R.C. 124.34, a removal order filed February 12, 1986 notified Jones that she was " * * * [r]emoved from the position of Deputy Sheriff 1" for " * * * [d]iscourteous treatment [of] the public, neglect of duty, failure of good behavior, misfeasance, malfeasance." Jones had been disciplined previously on six separate occasions. She had received four reprimands and two suspensions for, among other things, failing to comply with a superior's direct order. ¹

Jones appealed her removal to the State Personnel Board of Review ("SPBR"). A hearing convened on December 8, 1986 before Administrative Law Judge Richard J. Levine (the "ALJ"), who took two days of testimony.

In his January 21, 1987 report and recommendation, the ALJ found that Jones had been actively involved in what the ALJ described as vigilante activity and that her conduct reflected poorly on the department. He determined that her failure to call for police assistance evidenced so callous a disregard for procedure that she in essence took the law into her own hands. The ALJ further found that Jones had been insubordinate, and had violated Reg. 102.55, when she refused to answer questions under a direct order to respond after she had been informed that her answers could not be used in a subsequent criminal proceeding. The ALJ recommended affirmance of the order removing Jones for insubordination, neglect of duty, and conduct unbecoming an officer specifically citing a violation of Reg. 102.40.1.

The SPBR issued its final order on March 27, 1986. The members of the board indicated that they had reviewed the ALJ's report and recommendation, and they accepted its factual conclusions. Nevertheless, the order stated that " * * * the unusual circumstances surrounding this incident somewhat negate the impropriety of * * * [Jones's] conduct." Further, the board found that Jones's refusal to answer IAD questions could not technically be considered a violation of department policy since the final step, actually asking questions after Jones refused to answer, was never taken. The board therefore ordered Jones's reinstatement coupled with a written reprimand.

The Franklin County Sheriff appealed to the Court of Common Pleas of Franklin County. Upon its review of the entire record, the court found the board's decision to be inconsistent with the evidence presented to the ALJ. The court found the evidence aptly demonstrated several violations of departmental regulations.

The court noted that law enforcement officers are held to a higher standard of conduct than is the general public. The trial court specifically held that officers have no absolute right to keep silent when given a direct order by a superior to answer questions and when guaranteed that the answers will not be used in a subsequent criminal proceeding. Finally, the court noted that removal was appropriate in this instance, given the department's policy of progressive discipline. In reversing the SPBR decision the court noted that Jones had been previously disciplined six times, and that the extreme nature of her behavior on January 9, 1986 supported the appointing authority's removal order.

The court reversed the SPBR and reinstated Jones's removal, as the ALJ had recommended. Jones appealed to the court of appeals, which reversed the common pleas court and remanded with instructions to affirm the order of the SPBR.

The cause is now before this court upon the allowance of a motion to certify the record.

Terry D. Van Horn, Columbus, for appellee.

S. Michael Miller, Pros. Atty., Donald M. Collins, Hilliard, and William J. Owen, for appellant.

WRIGHT, Justice.

This case raises two issues. First, is a police officer guilty of conduct unbecoming an officer while off duty when he or she is a party to what amounts to vigilante activity which is clearly outside the scope of her official job duties? Second, must a police officer answer questions that relate specifically and narrowly to the performance of her official duties when the questions are asked in an Internal Affairs Division hearing and when the officer is guaranteed that the answers cannot be used against her in any subsequent criminal prosecution?

We answer both questions in the affirmative. For the reasons stated below, we reverse the court of appeals and reinstate the ruling of the common pleas court affirming appellee's removal of Jones as a deputy sheriff.

I

One of the most serious disciplinary charges that the Franklin County Sheriff brought against Deputy Jones was for conduct unbecoming an officer in participating in the January 9, 1986 search for Matfield's stolen purse. Franklin County Sheriff's Department Reg. 102.40.1 applies to this charge:

"Conduct unbecoming department personnel will include that which brings the department into disrepute or reflects discredit upon the individual as a member of the department, or that which impairs the operation or efficiency of the department or the individual."

After conducting a full evidentiary hearing, the ALJ concluded in his eighteen-page report and recommendation that the sheriff's department had established by greater than a preponderance of the evidence that Jones's conduct on January 9, 1986 was unbecoming a deputy sheriff. The ALJ determined that Jones's " * * * callous disregard for proper policy procedures; her assistance to her sister in...