State ex rel. Ohio Patrolmen's Benevolent Assn. v. City of Mentor

• Decision Date: 16 August 2000
• Docket Number: No. 99-1552.,99-1552.
• Citation: 89 Ohio St.3d 440,732 NE 2d 969
• Parties: THE STATE EX REL. OHIO PATROLMEN'S BENEVOLENT ASSOCIATION ET AL. v. CITY OF MENTOR ET AL.
• Court: Ohio Supreme Court

89 Ohio St.3d 440

732 NE 2d 969

THE STATE EX REL. OHIO PATROLMEN'S BENEVOLENT ASSOCIATION ET AL. v. CITY OF MENTOR ET AL.

No. 99-1552.

Supreme Court of Ohio.

Submitted May 23, 2000.

Decided August 16, 2000.

Climaco, Lefkowitz, Peca, Wilcox & Garofoli Co., L.P.A., Joseph Hegedus and Mark J. Volcheck, for relators. Johnson & Angelo, Gary C. Johnson, Thomas L. Colaluca and Jeffrey C. Miller, for respondents.

Internal Affairs Investigative Report: Possible Hazing Incidents

In March 1998, respondent Mentor Police Chief Richard A. Amiott initiated an internal affairs investigation to determine whether Mentor police officers had participated in an arm-burning initiation ritual. In these incidents, which had originated in the early 1980s and continued until 1998, Mentor police officers who had completed their probationary periods engaged in a "tough man" competition, usually with Mentor Police Lieutenant Larry R. Staton. A lit cigar or cigarette was placed between the forearm of the officer who had just completed probation and Staton's forearm and it remained there until one of the officers pulled his or her forearm away. These incidents, which resulted in burns and scarring, occurred in bars or restaurants when the officers were off duty and not in police uniform. The incidents were unstructured, with no one person responsible for organizing them. The officers who participated in the competition with Staton did so voluntarily, and these officers did not receive preferential treatment over those officers who did not. Staton did not solicit officers to participate in these activities, but he also did not refuse to participate when asked.

In April 1998, the police detective who had conducted the internal affairs investigation sent a report to Chief Amiott. The detective concluded that there appeared to be no criminal law violations, including hazing as prohibited by R.C. 2903.31, but he recommended that administrative disciplinary charges be brought against nineteen police officers and one city employee for their respective roles in the incidents. Amiott nevertheless continued the investigation due to the nature of the acts involved, potential civil liability of the city and the police department, and his desire to protect the image of Mentor and its police department.

In April 1999, Amiott received a supplemental investigative report that found the ritual had not occurred since the previous report and that it had evidently been discontinued. Amiott then forwarded the investigatory file to the Lake County Prosecuting Attorney's Office for a determination of whether any criminal charges should be brought against Staton or any other Mentor police officers.

In May and July 1999, Officer Baker requested that Amiott provide him with access to the hazing investigation records. Amiott refused access to these records. Amiott claimed that the requested records were exempt from disclosure because the investigation had not been completed.

On July 25, 1999, the Lake County Prosecuting Attorney's Office informed Amiott that no criminal charges would be brought against any Mentor police officer as a result of the arm-burning incidents. The prosecutor's office decided that it could not prove criminal conduct beyond a reasonable doubt because none of the officers complained about the incidents. After receiving an evaluation of the investigative records concluding that Staton "showed a grave lapse of judgment and a reckless disregard for the health and welfare of the officers under his watch," Amiott issued a proposed disciplinary action against Staton, recommending Staton's demotion to the rank of patrol officer and declaring him ineligible for promotion for five years.

On August 3, 1999, Amiott received a statement signed by twenty Mentor police officers in which they admitted having knowledge of the arm-burning incidents and requested that they be added to the list of officers who allegedly failed to report the incidents, in violation of police department rules. Amiott continued the investigation because of the new statement.

Internal Affairs Investigation: Spetrino Citizen's Complaint

In February 1999, Amiott reviewed a citizen's complaint filed by William M. Spetrino against certain Mentor police officers and ordered an investigation. In July 1999, Officer Grein requested access to these investigative records. Amiott denied Grein's request because the investigation had not been completed. According to Amiott, the investigation "involves multiple acts of criminal conduct, and will likely lead to the filing of criminal charges."

Payroll and Overtime Records

In February 1999, OPBA requested access from respondent Mentor Assistant City Manager Dan Graybill to the following records:

"1) For the period of November, 1996 through and including October 1998, all records, documents or other written instruments reflecting use of sick leave by each employee of the Mentor Police Department including all ranking officers, the Police Chief, and the two (2) Police Captains.

"2) For the calendar years of 1996, 1997, and 1998, a listing of or other documentation of all training or instructional programs attended by any member of the Mentor Police department including the Police Chief and the two (2) Police Captains.

"3) Any memorandum or other written document that relates to `the review' as referenced in the Mentor Police Department memorandum `PD99-004.'

"4) All performance evaluations for the calendar year 1997 for all Mentor Police Department patrolmen.

"5) All documents including, but not limited to, payroll records, that relate to all monies paid to * * * or benefits provided to former City employees, Richard M. Lynch, Thomas Fracci and Joseph Koziol during or following their last year of employment with the City of Mentor."

On March 16, 1999, Amiott provided access to most of the requested records. In April 1999, OPBA requested the following additional records concerning Amiott and his two police captains: (1) all time records showing that overtime was actually worked, (2) all requests for authorization to work in excess of forty hours per week, and (3) all requests for permission to use compensatory time. OPBA repeated its request for these records in May 1999. The latter two categories of records in OPBA's April and May 1999 requests do not exist.

Mandamus

In August 1999, relators, OPBA and Mentor Police Officers Grein and Baker, filed this action for a writ of mandamus to compel respondents, city of Mentor, Mentor Police Department, Mentor Police Chief Amiott, Mentor City Manager Julian Suso, and Mentor Assistant City Manager Dan Graybill, to provide access to the internal affairs investigative reports on the purported hazing incidents and the Spetrino complaint, as well as the requested payroll and overtime records. Relators also requested attorney fees and costs. We referred this cause for a settlement conference under S.Ct.Prac.R. XIV(6). State ex rel. Ohio Patrolmen's Benevolent Assn. v. Mentor (1999), 86 Ohio St.3d 1465, 715 N.E.2d 567.

In September 1999, as mediation progressed, respondents provided relators with copies of the internal affairs investigative report of the possible hazing, as well as additional payroll records that had been inadvertently excluded from the records previously provided to relators by respondents. Respondents filed an answer and numerous exhibits, and they submitted the investigative report concerning the Spetrino complaint to the court for an in camera inspection.

In January 2000, Mentor appointed an independent investigator to determine whether to present the Spetrino matter to the grand jury for indictment. In the same month, Amiott recommended that Officers Grein and Steven Graham be terminated from employment because of the Spetrino internal affairs investigation.

Mediation concluded and, following the return of this case to the regular docket, we dismissed relators' claims regarding payroll, overtime, and hazing investigative records as moot, granted an alternative writ on relators' remaining claims concerning the Spetrino investigative records and their request for attorney fees, and issued a schedule for the presentation of evidence and briefs. State ex rel. Ohio Patrolmen's Benevolent Assn. v. Mentor (2000), 88 Ohio St.3d 1425, 723 N.E.2d 1113.

This cause is now before the court.

Per Curiam.

Mandamus: Spetrino Investigative Records

Relators assert that they are entitled to a writ of mandamus to compel respondents to provide them with access to the Spetrino investigative records under R.C. 149.43, Ohio's Public Records Act. R.C. 149.43 mandates full access to all public records upon request unless the requested records fall within one of the specified exemptions. State ex rel. Besser v. Ohio State Univ. (2000), 87 Ohio St.3d 535, 538, 721 N.E.2d 1044, 1047. In fact, public employee personnel records, including personnel records of police officers reflecting discipline, are generally regarded as public records, absent proof of an exemption. State ex rel. Multimedia, Inc. v. Snowden (1995), 72 Ohio St.3d 141, 142-143, 647 N.E.2d 1374, 1377-1378.

Respondents claim that the Spetrino records are exempt from disclosure as confidential law enforcement investigatory records under R.C. 149.43(A)(1)(h). R.C. 149.43(A)(1)(h) exempts confidential law enforcement investigatory records from the definition of "[p]ublic record[s]," and R.C. 149.43(A)(2) defines these records to include:

"[A]ny record that pertains to a law enforcement matter of a criminal, quasicriminal, civil, or administrative nature, but only to the extent that the release of the record would create a high probability of disclosure of any of the following:

"(a) The identity of a suspect who has not been charged with the offense to which the record pertains, or of an information source or witness to whom confidentiality has been reasonably promised;

"(b) Information provided by an information source or...