Newsome v. Municipal Civil Service Com'n of Columbus, 84AP-322

• Decision Date: 20 September 1984
• Docket Number: No. 84AP-322,84AP-322
• Citation: 486 N.E.2d 174,20 Ohio App.3d 327
• Parties: , 20 O.B.R. 430 NEWSOME, Appellant, v. MUNICIPAL CIVIL SERVICE COMMISSION OF COLUMBUS, Appellee. *
• Court: Ohio Court of Appeals

Page 327

20 Ohio App.3d 327

486 N.E.2d 174, 20 O.B.R. 430

NEWSOME, Appellant, v. MUNICIPAL CIVIL SERVICE COMMISSION OF COLUMBUS, Appellee. ^*

No. 84AP-322.

Court of Appeals of Ohio, Tenth District, Franklin County.

Sept. 20, 1984.

Syllabus by the Court

1. The scope of an appeal pursuant to R.C. 124.34 for members of police or fire departments who are removed from their positions for disciplinary reasons is governed by the provisions of R.C. Chapter 2505 insofar as they are applicable.

2. R.C. 2505.21 entitles members of police or fire departments, who are appealing their removal for disciplinary reasons to the court of common pleas, to a de novo determination of the facts. The court is empowered to substitute its own judgment on the facts for that of the commission, based upon the court's independent examination and determination of conflicting issues of fact. The court must then dispose of all issues of law and fact as though no proceedings had been held before the commission.

3. Where a record of the proceedings before the commission has been preserved, R.C. 2505.21 does not grant appellant the right to present evidence through the testimony of witnesses in the court of common pleas. Rather, it grants appellant the privilege of seeking to present additional evidence in that form, subject to the sound discretion of the court.

Robert P. DiRosario, Columbus, for appellant.

Gregory S. Lashutka, City Atty., Ronald J. O'Brien, City Prosecutor, and Debi Everson, Columbus, for appellee.

NORRIS, Judge.

Appellant, Dennis E. Newsome, was removed from his position as a member of the Columbus Fire Department as the result of his having been charged with striking a fellow fire fighter, Ernest Lewis, with a crowbar. The incident occurred in the parking lot of the fire station, approximately five minutes before Lewis was to report for duty.

Newsome appealed to the Municipal Civil Service Commission of Columbus ("commission") which, following an evidentiary hearing, affirmed the removal. Newsome then appealed to the court of common pleas which later dismissed the appeal for failure of Newsome to prosecute his appeal. We reversed in Newsome v. Mun. Civ. Serv. Comm. of Columbus (Nov. 16, 1982), Franklin App. No. 82AP-37, unreported.

Upon remand the court of common pleas conducted a hearing, reviewed the evidence adduced at that hearing and the record from the commission, and found that the removal "was supported by the record and proven by a preponderance of the evidence," and affirmed the removal.

Newsome raises three assignments of error:

"1. In an appeal from the Municipal Civil Service Commission of Columbus to the Franklin County Court of Common Pleas the appellant is entitled as a matter of law to a trial de novo.

" * * * " ¹

By his first assignment of error, Newsome contends that his appeal to the court of common pleas, pursuant to R.C. 124.34, includes the unlimited right to present evidence, including the examination of witnesses of his choosing. The court of common pleas, while agreeing that the appeal was a de novo review, limited the evidence to that which appeared in the record from the commission plus any additional evidence which appellant wished to submit, so long as it was in the nature of newly discovered evidence.

R.C. 124.34 provides an appeal for members of police or fire departments who are removed from their positions for disciplinary reasons:

"In the case of the * * * removal of * * * any member of the police or fire department * * * [a]n appeal on questions of law and fact may be had from the decision of the * * * civil service commission to the court of common pleas * * *."

The scope of this appeal on questions of law and fact is governed by the provisions of R.C. Chapter 2505 insofar as they are applicable. In re Locke (1972), 33 Ohio App.2d 177, 294 N.E.2d 230 . Among the applicable provisions is R.C. 2505.21 which provides in part:

"An appeal taken on questions of law and fact entitles the party to a hearing and determination of the facts de novo which shall be upon the same or amended pleadings. The court shall review the final order, judgment or decree upon such part of the record made in the trial court as any party may present to the court and such additional evidence as upon application in the interest of justice the court may authorize to be taken, such evidence to be presented in the manner and form prescribed by the court."

R.C. 2505.21 entitled Newsome to a de novo determination of the facts. This means that the court of common pleas was empowered to substitute its own judgment on the facts for that of the commission, based upon the court's independent examination and determination of conflicting issues of fact. The court was then to dispose of all issues of law and of fact as though no proceedings had been held before the commission. Lincoln Properties v. Goldslager (1969), 18 Ohio St.2d 154, 248 N.E.2d 57 .

Where a record has been preserved of the testimony of witnesses presented before the commission, the statute does not grant to an appealing fire fighter the right to present evidence through the testimony of witnesses in the court of common pleas. Instead, it grants him the privilege of seeking to present additional evidence in that form, and the granting of that request is within the sound discretion of the court. Lincoln Properties v. Goldslager, supra. A de novo determination of the facts from the record is the equivalent of a trial de novo. Lincoln Properties v. Goldslager, supra; Cupps v. Toledo (1961), 172 Ohio St. 536, 179 N.E.2d 70 .

We cannot agree with Newsome's contention that the Supreme Court's opinions in Lincoln Properties and Cupps are inconsistent and that Cupps supports his position. The Supreme Court in Cupps held that a police officer who appeals under what is now R.C. 124.34 on questions of law and fact is entitled to the same trial de novo before the court of common pleas as would have been the case under the appeal on questions of law and fact to a court of appeals--which was permitted prior to the adoption of the Rules of Appellate Procedure. The Supreme Court was not presented with the question of what forms of evidence an appellate court was required to entertain under a law and fact appeal in view of the 1955 amendment to R.C. 2505.21. That question was raised and addressed by the Supreme Court in Lincoln Properties, when it observed, 18 Ohio St.2d at pages 162-163, 248 N.E.2d 57 that:

"Although the General Assembly * * * removed from that conglomerate of rights comprising the appeal on questions of law and fact the right which permitted a party 'to have a witness testify in the presence of the appellate court' [citations omitted], and converted that right into a...