Knight v. Cleveland Civil Serv. Comm'n

• Decision Date: 28 July 2016
• Docket Number: No. 103104.,103104.
• Citation: 2016 Ohio 5133,76 N.E.3d 321
• Parties: Lenwood KNIGHT, Plaintiff–Appellant v. CLEVELAND CIVIL SERVICE COMMISSION, et al., Defendants–Appellees.
• Court: Ohio Court of Appeals

76 N.E.3d 321

2016 Ohio 5133

Lenwood KNIGHT, Plaintiff–Appellant

v.CLEVELAND CIVIL SERVICE COMMISSION, et al., Defendants–Appellees.

No. 103104.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

July 28, 2016.

Stewart D. Roll, David M. Cuppage, Climaco, Wilcox, Peca, Tarantino & Garofoli, Cleveland, OH, for Appellant.

Barbara A. Langhenry, Director of Law, Drew A. Carson, Assistant Director of Law, Cleveland, OH, for Appellee.

Before: KEOUGH, P.J., KILBANE, J., and CELEBREZZE, J.

KATHLEEN ANN KEOUGH, P.J.

{¶ 1} This appeal arises from the 2009 termination of plaintiff-appellant, Lenwood Knight, from employment with the city of Cleveland. Knight was employed as a construction equipment operator since 1997 with the city's Division of Water Pollution Control, a division of the city's Department of Public Utilities. The city terminated Knight for performing and charging a city resident ("homeowner") a fee for sewer work that the city maintained should have been done by the city at no cost to the homeowner. The basis for the termination was for "being in violation of the city of Cleveland's Rules of the Civil Service Commission of the city of Cleveland and Ethics Policy and Progressive Discipline Policies," specifically, for violating (1) the city of Cleveland's Ethics Policy general standards of ethical conduct; (2) neglect of duty; (3) conduct unbecoming an employee in the public service; (4) disorderly, immoral, or unethical conduct while on duty; (5) for any other failure of good behavior that is detrimental to the service or for any other act of misfeasance, malfeasance, or nonfeasance in office; (6) solicitation or distribution in violation of city policy; and (7) dishonesty or any dishonest action.

{¶ 2} Knight challenged his termination by requesting a hearing before a referee. After a full evidentiary hearing and consideration of post-hearing briefs, the referee issued a report and recommendation that the Cleveland Civil Service Commission ("CCSC") uphold Knight's termination. The referee concluded that "it is apparent that the conduct of [Knight] who attempted to obtain money for a service that should have been performed by the City at no cost constituted ‘conduct unbecoming an employee in [the] public service.’ "

{¶ 3} Following a review of the record and considering arguments from Knight and the city, the CCSC adopted the referee's report and recommendation upholding Knight's termination.

{¶ 4} On September 7, 2010, Knight appealed this decision to the court of common pleas. On May 21, 2015, the trial court issued its written decision affirming the CCSC's decision to uphold Knight's termination. This timely appeal followed where Knight raises five assignments of error.

I. Transmission of the Record

{¶ 5} Where a municipality removes a classified employee from his employment for disciplinary reasons, a decision by the municipality's civil service commission may be appealed to the court of common pleas pursuant to R.C. 124.34, in accordance with the procedure set forth in R.C. 119.12, or pursuant to R.C. 2506.01 through 2506.04. Walker v. Eastlake, 61 Ohio St.2d 273, 400 N.E.2d 908 (1980) ; Sutherland–Wagner v. Brook Park Civ. Serv. Comm., 32 Ohio St.3d 323, 512 N.E.2d 1170 (1987) ; Wolf v. Cleveland, 8th Dist. Cuyahoga No. 82135, 2003-Ohio-3261, 2003 WL 21434779, ¶ 7 ; Slusser v. Celina, 3d Dist. Mercer No. 10–15–09, 2015-Ohio-3721, 2015 WL 5320277, ¶ 24 ; Beare v. Eaton, 9 Ohio App.3d 142, 458 N.E.2d 895 (12th Dist.1983).

{¶ 6} In this case, Knight opted to appeal the CCSC decision to the common pleas court pursuant to R.C. 124.34 and 119.12. Therefore, the transmission of the CCSC record is governed by R.C. 119.12(I), which provides in relevant part,

[w]ithin thirty days after receipt of a notice of appeal from an order in any case in which a hearing is required by sections 119.01 to 119.13 of the Revised Code, the agency shall prepare and certify to the court a complete record of the proceedings in the case. Failure of the agency to comply within the time allowed, upon motion, shall cause the court to enter a finding in favor of the party adversely affected. Additional time, however, may be granted by the court, not to exceed thirty days, when it is shown that the agency has made substantial effort to comply.

{¶ 7} Following the receipt of Knight's notice of appeal, the city sent an email on October 4, 2010, to Knight's counsel inquiring about two documents that were missing from the CCSC file. Both of these missing filings were prepared by Knight's counsel and submitted for the benefit of Knight—(1) Knight's motion to exclude evidence submitted to the referee in 2009, and (2) Knight's post-referee hearing brief with exhibits. The city requested that Knight's counsel forward a courtesy copy of these documents so they could be included in the transmission of the CCSC record. Despite the request, these two documents were not included in the CCSC record that was filed with the trial court on October 5, 2011. However, the administrative record submitted noted that the CCSC would supplement the record with the missing documents.

{¶ 8} On October 8, 2010 and in response to the record being submitted, Knight requested the trial court to issue an order of reinstatement, back pay and benefits, fees, and costs. The basis for the request was because CCSC failed to timely prepare and file a complete and certified record with the trial court as required by R.C. 119.12(I) and Gwinn v. Ohio Elections Comm., 187 Ohio App.3d 742, 2010-Ohio-1587, 933 N.E.2d 1112 (10th Dist.).

{¶ 9} On March 23, 2011, the trial court issued an order finding that the CCSC "failed to certify the record and excluded documents that would complete the record." The trial court ordered that the CCSC "certify and complete the record by March 29, 2011" or judgment would be rendered in favor of Knight. On March 29, 2011, the CCSC supplemented the record with the missing documents and with certification. Subsequently, in May 2011, the trial court denied Knight's October 8, 2010 motion for reinstatement and March 30, 2011 renewed motion for reinstatement.

{¶ 10} In this first assignment of error, Knight contends that the trial court erred by finding that the CCSC had filed a complete certified record of the proceedings in accord with the mandate of R.C. 119.12 and by failing to order reinstatement of his employment, back pay and benefits, and award of fees and costs. Specifically, Knight contends that the CCSC failed to comply with R.C. 119.12 because (1) the administrative record contains no certification that it is the complete record of the proceedings, and (2) the administrative record submitted to the trial court is not complete.

{¶ 11} The CCSC filed a supplemental administrative record with the trial court following the trial court's March 23, 2011 order to complete and certify the administrative record. Attached to the record was an affidavit by Munday Workman, supervisor of CCSC records. Workman states in her affidavit that the "attached documents are a true and accurate copy of the Administrative Record of the Civil Service proceedings in the matter of Lenwood Knight's termination."

{¶ 12} Knight argued in the trial court and now on appeal that this affidavit is insufficient because Workman's affidavit "contains no certification that the attached documents are the complete record of the proceedings, as mandated by R.C. 119.12." Knight contends that the affidavit language of "true and accurate" is not a certification to the trial court that the CCSC filed a complete administrative record. In short, Knight states that a record can be true and accurate but not complete.

{¶ 13} We rejected this exact argument raised regarding the exact language used by the exact record keeper of the CCSC in Yachanin v. Cleveland Civ. Serv. Comm., 8th Dist. Cuyahoga No. 99802, 2013-Ohio-4485, 2013 WL 5594452. In Yachanin, the appellant argued that the affidavit of the supervisor of CCSC records, attesting to the authenticity of the administrative record, failed to contain a certification that the agency submitted a "complete record" of the administrative hearings to the court. Id. at ¶ 25. This court held that "true and accurate" certification of the documents is sufficient to complete the record. Id. at ¶ 27, citing McKenzie v. Ohio State Racing Comm., 5 Ohio St.2d 229, 215 N.E.2d 397 (1966), paragraph two of the syllabus (sufficient certification by the agency exists under R.C. 119.12, where the agency certifies that the purported record of the proceedings is a "complete record" thereof, that any copies of material are certified to be true copies of the original matter). Furthermore, this court determined that Yachanin failed to demonstrate that he was prejudiced by the affidavit's failure to state that the true and accurate copy of the administrative record is a "complete record." Yachanin at ¶ 27.

{¶ 14} Accordingly, we find Workman's affidavit in this case a sufficient certification as required under R.C. 119.12. We also find that Knight has not demonstrated how he was prejudiced by the omission of the complained verbiage in the affidavit or certification.

{¶ 15} We next turn to whether the record was complete and if not, whether Knight was prejudiced by any omission. On appeal, Knight contends that the administrative record is still incomplete because it does not contain the attached exhibits to one of Knight's filings made before the referee.

{¶ 16} When Knight initially moved for reinstatement on October 8, 2010, he contended that the administrative record was incomplete because of the absence of four documents, which he attached to his motion. After the CCSC supplemented the administrative record with the documents Knight indicated were omitted and certified it was a true and accurate copy of the administrative record, Knight renewed his motion for reinstatement on March 30, 2011. In this renewed motion, he only argued that the administrative record was not "...