The State ex rel. David C. Neudecker v. the City of Newark, Ohio

• Decision Date: 30 September 1981
• Docket Number: 81-LW-2355,CA 2756
• Parties: The State of Ohio ex rel. David C. Neudecker, PLAINTIFF-APPELLANT, v. The City of Newark, Ohio et al., DEFENDANTS-APPELLEES. CASE
• Court: Ohio Court of Appeals

The State of Ohio ex rel. David C. Neudecker PLAINTIFF-APPELLANT, v. The City of Newark, Ohio et al DEFENDANTS-APPELLEES.

No. CA 2756.

81-LW-2355 (5th)

Court of Appeals of Ohio, Fifth District Licking

September 30, 1981

Dwight D. Brannon, 1026 First National Plaza, Dayton, Ohio 45402 ATTORNEY FOR PLAINTIFF-APPELLANT.

Robert F. Hendricks, Director of Law, 40 West Main Street, Newark Ohio 43055 ATTORNEY FOR APPELLEES, CITY OF NEWARK AND RICHARD E. BAKER, MAYOR.

C. Herbert Koehler, Jr., 63 North Third Street, Newark, Ohio 43055 ATTORNEY FOR APPELLEES, JAMES R. HULL, TOM SWANK, SUE JOHNSON, AND C. HERBERT KOEHLER, JR.

James R. Rishel, Assistant Attorney General, 30 East Broad Street, Columbus, Ohio 43215 ATTORNEY FOR APPELLEE, JAMES McCULLOUGH.

Robert D. Zitko, 8 East Broad Street, Columbus, Ohio 43215 ATTORNEY FOR APPELLEES, ARTHUR NUTTER, JR. AND O. R. STARR.

OPINION

Before Hon. Robert E. Henderson, P.J., Hon. Leland Rutherford, J., Hon. John R. Milligan, J.

RUTHERFORD J.

This is an appeal by Plaintiff-Relator-Appellant, David Neudecker, from a judgment entered by the Licking County Court of Common Pleas, which granted the motion of Defendants-Appellees to dismiss the case with prejudice to Plaintiff.

The case arises out of Plaintiff's dismissal from the Newark Police Department, effective January 18, 1979.

Due to the nature of the appeal and the prior history of the case, a somewhat lengthy and detailed statement of the facts and proceedings herein follows:

Plaintiff joined the Newark Police Department as a patrolman in September, 1974. Prior to that time, some .45 caliber ammunition in specially marked boxes was discovered to be missing by the Police Department.

Sometime in July, 1978, Plaintiff sold approximately 400 rounds of .45 caliber ammunition to Patrolman Giles. On August 4, 1978, Sgt. Woods noticed that Patrolman Giles had ammunition of the same caliber and brand as that reported missing, and that the box containing said ammunition bore special markings. Woods instructed Giles to submit a written report on the matter to the department.

In his report, Giles stated that he had purchased the specially marked box of ammunition, as well as four or five other boxes of .45 ammunition from Plaintiff in July, 1978.

Thereafter, Plaintiff was questioned by his superior officers about the ammunition. At their request, on August 7, 1978, he prepared a written report concerning the ammunition. In said report, Plaintiff stated that he had purchased some ammunition from a gun store in Westerville and some from another patrolman. Plaintiff further stated that he had picked up empty boxes to use for empty shells while shooting on the range, and said, "With the amount of ammo that I have had I can not remember where I got one box marked with a number."

By letter dated September 8, 1978, Plaintiff was "requested" by Arthur Nutter, Jr., Chief of Police, to submit to a polygraph examination regarding the disappearance of ammunition.

In a letter to Chief Nutter, dated September 10, 1978, Plaintiff refused to take a polygraph test but offered to assist in any other way.

The following day, in the presence of two other officers, Chief Nutter ordered Plaintiff to submit to a polygraph.

On September 12, 1978, Plaintiff presented himself to B.C.I. polygraph examiner James McCullough. At that time, Plaintiff handed McCullough a written statement, the text of which read:

"I am here pursuant to a written and oral order from Newark, Ohio Chief of Police, ordering me to submit to a polygraph test.

I have been informed if I do not comply with this order I will be subject to immediate disciplinary measures, which may include suspension without pay or dismisal from Newark Police Department.

I am not here voluntarily to take the polygraph test, but I am here under coercion and duress because of the orders referred to above and the statements of which penalties I may incur, if I do not obey the order.

In the event the polygraph exam is conducted by you, I do not give you my permission or consent to divulge all or any part of the exam, or the results thereof, or any opinion that you may have pertaining to same to any third party or parties." (emphasis added)

This statement was signed by Plaintiff.

No polygraph examination was given on that date.

Examiner McCullough sent a report, dated September 12, 1978, to Chief Nutter, which stated:

"Testing of this subject is postponed at this time, due to the attached letter. It is suggested that the legality of testing this subject be investigated before any attempts are made to test this subject."

On October 4, 1978, Plaintiff was again ordered to submit to a polygraph examination. He again presented a signed statement identical to that quoted supra, to the examiner. According to the report of McCullough, when given the test Plaintiff answered every pertinent question by invoking his Fifth Amendment right against self-incrimination.

By letter dated October 25, 1978, Plaintiff was again ordered by Chief Nutter to submit to a polygraph exam and to answer the questions truthfully. This letter concluded with the statement, "Failure to do so shall be considered an additional act of insubordination." (emphasis added)

On November 2, 1978, Plaintiff presented himself and another identical signed statement to McCullough, and took the examination.

McCullough reported the results of the polygraph, in pertinent part, as follows:

"Character of Case: Theft, Ref: .45 Cal. shells from Newark P.D., Newark, Ohio.

Pre-Test Information: The subject denied involvement in, nor undisclosed knowledge of the theft of the 45 Cal. shells in question.

.......

Results: This person was found to be responsive to the polygraph technique. Specific reactions indicative of an attempt to deceive were recorded on the charts when questions related to the matter under investigation were asked during the tests. There was little or no reaction to controls or other technique.

Findings: It is therefore the opinion of the examiner that this person was attempting deception during the examination.

By letter dated January 8, 1979, Plaintiff was notified by Chief Nutter that he was suspended from the Newark Police Department for a period of 90 working days, effective January 15, 1979, pending review by the Director of Public Safety.

In the course of his investigation of the allegations resulting in Plaintiff's suspension, O. R. Starr, the Director of Public Safety, held a hearing on January 17, 1979.

By letter dated January 18, 1979, Starr informed Plaintiff that he had completed the inquiry, and decided that Plaintiff "did, in fact, intentionally and willfully hinder the Newark Police Department's investigation into the alleged theft of ammunition." The basis for this decision was set forth as follows:

"A. Your refusing to take a polygraph examination after being ordered to do so (because you did not feel the examination was necessary).

B. By attempting to hinder the Police Department's investigation into the above matter by handing the Bureau of Criminal Identification polygraph examiner a statement written by you which stated, 'I do not consent to the divulgence of this test', after you were re-ordered to go to B.C.I. (September 12, 1978, test date).

C. By answering each and every pertinent question, 'I take the Fifth Amendment...' during the October 4, 1978 testing session.

D. By attempting to hinder the Newark Police Department's investigation into the above matter by handing the B.C.I.'s polygraph examiner a letter from an attorney in Columbus threatening to sue the Bureau of Criminal Identification if they released the test results of the polygraph test which you finally took after being reordered to do so on November 2, 1978."

O. Ray Starr, Director of Public Safety, then ordered that Plaintiff be dismissed from the Newark Police Department, effective January 18, 1979, the suspension ordered by Chief Nutter to remain in effect until such time.

Plaintiff requested a hearing before the Newark Civil Service Commission, which hearing was held on February 13 and 15, 1979. The decision of the Newark Civil Service Commission, filed February 21, 1979, was that the decision of the Safety Director to dismiss Plaintiff from the Newark Police Department be affirmed.

On February 13, 1979, Plaintiff filed a complaint in the Licking County Common Pleas Court, seeking a declaratory judgment, injunctive relief, a writ of mandamus, compensatory and punitive damages, and "all further and appropriate relief either at law or equity to which Plaintiff may be entitled." Named as Defendants therein were the City of Newark, Ohio; James McCullough, the B.C.I. polygraph examiner; Arthur Nutter, Jr., Chief of Police; O. R. Starr, Director of Public Safety; Richard E. Baker, Mayor; James R. Hull, Tom Swank, and Sue Johnson, members of the Civil Service Commission; and C. Herbert Koehler, Jr., Secretary of the Civil Service Commission. A copy of the complaint is attached hereto as Appendix A.

Plaintiff's complaint contained six counts. In Count 1, Plaintiff, as a Relator pursuant to R.C. 2731.04, sought writs of peremptory and permanent mandamus ordering his reinstatement. In Count 2, Plaintiff alleged that he was entitled to "immediate reinstatement to his position with the Department of Police in the City of Newark, Ohio with full back pay, seniority rights and all benefits retroactive to the date of the wrongful discharge." In Count 3, Plaintiff set forth a detailed list of the contents of the declaratory judgment which he sought, pursuant to R.C. 2721.03. In Count 4, Plaintiff requested preliminary and permanent injunctive relief "to prevent further discipline or dismissal of Plaintiff or other civil...