Locke, In re

• Court: Ohio Court of Appeals
• Writing for the Court: STEPHENSON; GRAY
• Citation: Locke, In re, 294 N.E.2d 230, 33 Ohio App.2d 177 (Ohio App. 1972)
• Decision Date: 15 December 1972
• Parties: , 62 O.O.2d 276 In re LOCKE.

Page 177

33 Ohio App.2d 177

294 N.E.2d 230, 62 O.O.2d 276

In re LOCKE.

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

Dec. 15, 1972.

Syllabus by the Court

1. The provisions of R.C. Chapter 2505, where applicable, are in pari materia with the law and fact appeal provision set forth in R.C. 143.27.

2. In a law and fact appeal pursuant to R.C. 143.27, R.C. 2505.08 is applicable as to the preparation and filing of the original papers, orders, and record of the evidence, before the commission, in the common pleas court.

3. In a review by the common pleas court of a law and fact appeal pursuant to R.C. 143.27, the review, pursuant to the provisions of R.C. 2505.21, is upon the record before the commission and such additional evidence the court may authorize to be taken.

4. The law and fact appeal provided the chiefs and members of city fire and police departments is not exclusive and an appeal may also be taken pursuant to the provisions of chapter 2506.

5. The time for perfecting an appeal pursuant to chapter 2506 is controlled by R.C. 2505.07 and is ten days after entry of the decision of the commission.

6. The review granted pursuant to chapter 2506 is not the equivalent of a de novo review granted under the law and fact appeal set forth in R.C. 143.27.

Lavelle & Yanity, Charles David Frey, Athens, and Roger F. Redmond, Belpre, for appellant.

Leigh M. Fisher, Belpre, and James R. Addison, Jr., Marietta, for appellee.

STEPHENSON, Judge.

William D. Locke, appellant herein, held the position of chief of police of the city of Belpre, a municipal corporation, located in Washington County, Ohio. Appellant was suspended and discharged from his position by the mayor of such city on June 16, 1971, for disciplinary reasons.

Thereafter, appellant perfected an appeal pursuant to R.C. 143.27 to the Belpre municipal civil service commission which conducted a hearing, and on September 2, 1971, affirmed the order of discharge.

Thereupon, appellant filed with the commission, on September 24, 1971, a notice of appeal to the Court of Common Pleas of Washington County. The notice provided in part:

'* * * this appeal being taken by authority of Ohio Revised Code Section 143.27 and Chapter 2506.'

On October 14, 1971, the city of Belpre filed a motion to require appellant to post additional security for his appeal. The motion alleged that only $40 security for costs had been posted by appellant. On November 24, 1971, the trial court entered the following order:

'This day this cause came on to be heard on the motion of appellee filed herein on October 14, 1971, and the pre-trial conference established by the Assignment Commissioner on November 8, 1971, for this date and each of the parties were in court represented by counsel.

'The Court finds that this appeal shall be considered as follows:

'1. Pursuant to Ohio Revised Code Section 2506.03 this cause shall be heard solely upon the transcript.

'2. Neither side shall be permitted to offer additional evidence.

'3. The Court shall consider the transcript, determining what is proper evidence and will advise counsel when he has completed his study. It will then be decided whether oral argument or brief, or either, shall be appropriate.

'4. That an appeal bond is appropriate in the amount of $1,000.00 and said appeal bond shall be satisfied upon the personal recognizance and signature of appellant, William D. Locke.'

On February 7, 1972, the common pleas court entered a judgment of affirmance which provided in part:

'The Court finds that the Order of the Belpre Municipal Civil Service Commission is neither unconstitutional, illegal, arbitrary, capricious, or unreasonable, and is supported by the preponderance of substantial, reliable and probative evidence on the whole record.'

An appeal was then taken to this court and the following errors assigned:

'I. The Belpre Municipal Civil Service Commission failed to comply with its own promulgated and adopted rules in conducting the hearing of appellant's appeal, and the trial court committed prejudicial error in denying appellant opportunity to demonstrate the same in the trial court.

'II. The Court committed prejudicial error when it refused to grant appellant a de novo hearing solely upon the submitted transcript.

'III. The order of the Belpre Municipal Civil Service Commission is unconstitutional, illegal, arbitrary, capricious, unreasonable and is not supported by the preponderance of the substantial, reliable and probative evidence on the whole record, and the trial court, in not considering the submitted transcript de novo, committed prejudicial error in not so finding.

'IV. Other errors apparent upon the face of the record.'

A disposition of this appeal requires an initial determination of what review rights were available to appellant from the order of the civil service commission affirming the discharge order of the mayor, coupled with a determination of whether this appeal was properly perfected within such available appeal rights.

We consider first the appeal rights granted by R.C. 143.27. It is evident that the General Assembly intended by this statute to accord to the chiefs and members of city police and fire departments appeal rights different and apart from those in other positions of Ohio's classified civil service. The development of the legislative history of this and its predecessor statutes reflecting such special treatment through 1955 is set forth in Cupps v. Toledo, 170 Ohio St. 144, 163 N.E.2d 384. This special treatment was continued by the enactment of the present provisions in 1965 as to appeal rights from a suspection for any period of time, as opposed to the five day provision for other classified employees, and an extension of the period for appeal to a court to thirty days. (131 Ohio Laws 128.)

The present law and fact provision was enacted in 1955 (126 Ohio Laws 91) in an apparent response to holdings of the Ohio Supreme Court that the prior statute providing an appeal 'to determine the sufficiency of the cause of removal' did not grant a de novo hearing in the common pleas court. See Cupps v. Toledo, supra and In re Koellner, 160 Ohio St. 504, 117 N.E.2d 169. The present law and fact provision has been construed to grant a de novo trial upon an appeal pursuant to R.C. 143.27, and the burden of proof, by a preponderance of the evidence upon the charges, is upon the appointing authority. Cupps v. Toledo, supra.

Thus, while the kind of trial to which the employee is entitled is settled, the mechanics and procedures as to bringing up the proceedings below and presenting the evidence in the common pleas court to implement this right is not as readily apparent. R.C. 143.27 does not, under the present law and fact provision, nor did it under the prior appeal provision, set forth a procedure to implement this appeal right.

We have concluded that the General Assembly intended the provisions of chapter 2505, known as the appellate procedure act, to apply where applicable and that R.C. 143.27 and the provisions of R.C. chapter 2505, where applicable, are in pari materia. Kearns v. Sherrill, 63 Ohio App. 533, 27 N.E.2d 407. See, also, Sidell, In re Reduction of Rank, Ohio App., 80 N.E.2d 203, 51 Ohio Law Abst. 105; Fugate v. Columbus, 4 Ohio App.2d 147, 211 N.E.2d 885.

R.C. 2505.03 provides, in part:

'Every final order, judgment, or decree of a court and, when provided by law, the final order of any administrative officer, tribunal, or commission may be reviewed as provided in sections 2505.04 to 2505.45, inclusive, of the Revised Code, unless otherwise provided by law, except * * *.' (Emphasis added.)

Law and fact appeals from agency adjudications are clearly encompassed in chapter 2505. R.C. 2505.23 provides, in part:

'Appeals on questions of law and fact may be taken from any court, tribunal, commission, or officer to any court of record as may be provided by law.' (Emphasis added.)

Further illustrating its applicability is R.C. 2505.04, which provides, in part:

'An appeal is perfected when written notice of appeal is filed with the lower court, tribunal, officer or commission.' (Emphasis added.)

The conclusion that chapter 2505 is applicable presents two initial questions as to appellant's right to a law and fact appeal. The first is that R.C. 2505.05 requires the notice of appeal to designate whether the appeal is on law or law and fact. Appellant's notice did not so designate. However, since R.C. 143.27 was designated, and only a law and fact appeal is therein provided, it is, at most, a technical defect. Under the statute, such lack of designation is not jurisdictional and is subject to amendment.

A more serious question is the requirement of R.C. 2505.06 that an appeal bond superseding the judgment be filed within the time for filing the notice of appeal before an appeal is effective on questions of law and fact. Did the General Assembly intend such bond to be required under an R.C. 143.27 appeal? Such a bond was held, in the Sidell case, supra, to be necessary under G.C. 486-17a for an effective law and fact appeal that was viewed to exist under the form of the statute prior to 1955, which view was subsequently rejected by the Supreme Court. See, also, Jones v. Garek, Ohio App., 136 N.E.2d 680, 73 Ohio Law Abst. 38.

We deem it unnecessary to decide if such a bond is required in an R.C. 143.27 law and fact appeal upon the record in this appeal. The filing of a notice of appeal is the only jurisdictional step in perfecting a law and fact appeal. R.C. 2505.04. The filing of the appeal bond, therefore, is not jurisdictional. It is only when the right to proceed on law and fact is challenged that the court is required to determine whether it may so proceed. Bauer v. Grinstead, 142 Ohio St. 56, 50 N.E.2d 334. No motion to dismiss the appeal on law and fact was entered at any stage in the common pleas court. Instead of attacking the appealability on law and...