The opinion
[Cite as Pietrick v. Westlake Civ. Serv. Comm., 2012-Ohio-6009.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98258
RICHARD O. PIETRICK
APPELLEE/CROSS-APPELLANT
vs.
CITY OF WESTLAKE, CIVIL SERVICE COMMISSION,
ET AL.
APPELLANTS/CROSS-APPELLEES
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-660103
BEFORE: Blackmon, A.J., Stewart, J., and Keough, J.
RELEASED AND JOURNALIZED: December 20, 2012
ATTORNEYS FOR APPELLANTS/CROSS-APPELLEES
John D. Wheeler
Director of Law
Westlake City Hall
Westlake, Ohio 44145
Robin R. Leasure
Assistant Director of Law
Westlake City Hall
27700 Hilliard Boulevard
Westlake, Ohio 44145
ATTORNEYS FOR APPELLEE/CROSS-APPELLANT
Joseph W. Diemert, Jr.
Thomas M. Hanculak
Daniel A. Powell
Joseph W. Diemert, Jr. & Associates Co., L.P.A.
1360 S.O.M. Center Road
Cleveland, Ohio 44124
PATRICIA ANN BLACKMON, A.J.:
{¶1} Appellants/cross-appellees, the city of Westlake and its Civil Service
Commission (collectively “the City”) appeal the trial court’s decision placing
appellee/cross-appellant, Richard O. Pietrick (“Pietrick”), in the position of captain in the
Westlake Fire Department following Pietrick’s demotion from Fire Chief to 1st Class Fire
Fighter. The City assigns the following error for our review:
I. The trial court erred when it modified the penalty of the commission
and reinstated appellee to the rank of captain with full seniority, back
pay and benefits contrary to the court’s opinion and the mandates of
ORC §119.12.
Pietrick also cross-appeals and assigns the following error for our review:
I. The trial court erred when it failed to reinstate Pietrick to his
position as Fire Chief after conclusively finding that the adverse
employment action was not supported by the requisite degree of proof.
{¶2} Having reviewed the record and pertinent law, we affirm the trial court’s
decision. The apposite facts follow.
{¶3} On July 28, 1980, the City hired Pietrick as a firefighter paramedic. In
March 1989, Pietrick was promoted to lieutenant and in April 1993, he was promoted to
captain. In November 1994, after Pietrick had passed a civil service examination,
Dennis Clough, the mayor of Westlake (“Mayor Clough”), appointed him to the rank of
fire chief.
{¶4} Sometime in 2005, the International Association of Fire Fighters (“IAFF”),
Local 1814, the union representing the city’s fire department rank and file, asked
Westlake to conduct an audit or risk assessment of their fire department. Westlake’s city
council approved funding and engaged McGrath and Associates (“McGrath”), a
consulting firm, to conduct the audit.
{¶5} McGrath concluded, after reviewing the responses of 32 firefighters to a
questionnaire, that the Westlake fire department was dysfunctional. McGrath also
concluded that Pietrick was not to blame for all the dysfunction, but as the fire chief, bore
the ultimate responsibility. In addition, McGrath found that Pietrick was a “visionary,”
but had a “huge” communication problem. Finally, McGrath recommended that Pietrick
take certain steps to improve the department.
{¶6} Mayor Clough and Pietrick discussed McGrath’s report, and a decision was
made that Pietrick would address the issues raised by the audit. Throughout 2006,
Pietrick informed Mayor Clough that he had accomplished some of the recommendations.
Believing that the situation had worsened, Mayor Clough commissioned McGrath to
issue a follow-up report.
{¶7} In the follow-up report, McGrath indicated that Pietrick had made progress,
but noted that issues still remained and that morale was low. The report also indicated
that Mayor Clough had openly expressed his lack of confidence in the administration of
the fire department. Mayor Clough asked Pietrick to resign, but Pietrick refused.
{¶8} On June 6, 2007, Patrick M. Grealis (“Grealis”), president of the IAFF,
Local 1814, sent Pietrick a letter demanding that he discontinue the practice of having
subordinate firefighters perform maintenance on vehicles owned and operated by Pietrick
and members of his family. The letter also warned Pietrick that if he retaliated against
the firefighters, the union would file an unfair labor practice action against Pietrick.
Grealis copied Mayor Clough on the letter sent to Pietrick.
{¶9} On June 13, 2007, Pietrick issued a response to Grealis indicating that he
was not aware of any concerns with or any objections to the practice. Pietrick then
assured Grealis that he would no longer request assistance in any personal matter or
project from firefighters lower in rank. Pietrick also assured Grealis that no adverse
action would be taken against the firefighters who brought this issue to light.
{¶10} Thereafter, in a letter dated November 2, 2007, Mayor Clough informed
Pietrick that “* * * you have committed acts of misfeasance, malfeasance, nonfeasance,
neglect of duty, and failure of good behavior, as provided in R.C. 124.34, and Westlake
Civil Service Commission Rule XI.” The letter also notified Pietrick that he had been
demoted to the position of firefighter and suspended for 30 days without pay.
{¶11} Pietrick was entitled to request an informal hearing before Mayor Clough,
however, he skipped that step and appealed the decision directly to the Commission. On
November 19, 2007, prior to the Commission taking any action, Mayor Clough convened
a pre-deprivation hearing before Gary A. Ebert, the municipal attorney. Ebert found that
the repairs to Pietrick’s car did in fact occur and that the repairs were performed on the
City’s time. Ebert also concluded that the evidence and facts were sufficient to warrant
the disciplinary action Mayor Clough had taken against Pietrick.
{¶12} On November 30, 2007, a civil service commission hearing was conducted
before Dr. David Pincus. On April 30, 2008, Dr. Pincus issued an opinion denying
Pietrick’s appeal. Subsequently, pursuant R.C. 124.34, Pietrick appealed the
Commission’s decision to the common pleas court.
{¶13} On March 26, 2012, after briefing and oral argument, the trial court issued
a decision affirming in part and reversing in part the Commission’s decision. The trial
court ordered the City to give Pietrick the rank of captain. The City appeals, and Pietrick
cross-appeals, from the trial court’s decision.
Modification of Penalty
{¶14} In the sole assigned error, the City argues the trial court abused its
discretion when it modified Pietrick’s demotion and placed him in the position of captain
of the fire department.
{¶15} R.C. 505.38 provides for the appointment and removal of fire chiefs and
firefighters in townships and fire districts with a fire department. R.C. 2506.04 sets the
standard of review for appeals taken pursuant to R.C. 2506.01. Athenry Shoppers Ltd. v.
Planning & Zoning Comm. of the City of Dublin, Ohio, 10th Dist. No. 08AP-742,
2009-Ohio-2230, ¶ 15.
{¶16} Under R.C. 2506.01(A), every final order, adjudication, or decision of any
officer, authority, board, bureau, commission, department, or other division of any
political subdivision of the state may be reviewed by the court of common pleas in the
county where the principal office of the political subdivision is located as provided for in
R.C. Chapter 2505. Harr v. Jackson Twp., 10th Dist. No. 10AP-1060, 2012-Ohio-2030,
970 N.E.2d 1128.
{¶17} When a firefighter appeals his dismissal, R.C. 124.34 controls. Hall v.
Johnson, 90 Ohio App.3d 451, 629 N.E.2d 1066 (1st Dist.1993). See also Chupka v.
Saunders, 28 Ohio St.3d 325, 327, 504 N.E.2d 9 (1986). The common pleas court
considers the “whole record,” including any new or additional evidence admitted under
R.C. 2506.03, and determines whether the administrative order is unconstitutional, illegal,
arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial,
reliable, and probative evidence. Ponser v. Newark, 5th Dist. No. 10 CA 42,
2010-Ohio-6073, Pataskala Banking Co. v. Etna Twp. Bd. of Zoning Appeals, 5th Dist.
Nos. 07-CA-116, 07-CA-117, 07-CA-118, 2008-Ohio-2770, ¶ 13.
{¶18} We begin our analysis by noting that we review the trial court’s judgment
on the R.C. 124.34(C) appeal from the decision of the civil service commission under an
abuse of discretion standard. Sandusky v. Nuesse, 6th Dist. No. E-10-039,
2011-Ohio-6497, citing Raizk v. Brewer, 12th Dist. Nos. CA2002-05-021,
CA2002-05-023, 2003-Ohio-1266, ¶ 10.
{¶19} The term abuse of discretion implies that the trial court’s attitude is
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,
219, 450 N.E.2d 1140 (1983). When applying this standard, an appellate court may not
substitute its judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio
St.3d 619, 621, 1993-Ohio-122, 614 N.E.2d 748.
{¶20} In the instant case, the facts that triggered the disciplinary action the City
took against Pietrick are largely undisputed. After receiving a copy of the letter from the
union president relative to work being done on Pietrick’s personal vehicles by firehouse
mechanics, Mayor Clough retained the law firm of Walter & Haverfield to investigate the
matter. Attorney Jonathan Greenberg conducted an investigation and issued a report that
revealed, among other things, that two fire department mechanics indicated that they had
done repairs on Pietrick’s personal vehicles, while on the firehouse property.
{¶21} One of the mechanics, Todd Spriesterbach, indicated to Greenberg and
later testified at an hearing that he had done approximately six personal repair jobs for
Pietrick over a five-year period. Spriesterbach indicated that although Pietrick never
ordered him to do the repairs, he felt obligated to complete the repairs. Spriesterbach
stated that because Pietrick was responsible for the annual reappointments of mechanics,
he did not want to jeopardize being reappointed by refusing to do the repairs. Finally,
Spriesterbach indicated that Pietrick did not retaliate when he stopped doing the repair
work.
{¶22} A second mechanic, Chris Gut, indicated that Pietrick asked him to do
repairs on a lawn tractor that Pietrick brought to the fire station. Gut stated that after his
initial examination, he told Pietrick that the lawn tractor had a broken rod, but Pietrick
insisted that he tear it apart to confirm his diagnosis. Gut also stated that he believed
Pietrick wanted him to purchase the part to do the repair, but he told Pietrick he did not
have the time to do either. Gut stated that after some time, Pietrick removed the
disassembled lawn tractor from the fire station.
{¶23} The record reveals that Greenberg concluded that Pietrick’s conduct was
not criminal and was not likely an ethical violation under the laws of Ohio. However,
Greenberg found it was inappropriate for Pietrick, given his superior position, to have
asked the fire station’s mechanics to work on his personal vehicles. Thus, Greenberg
recommended that the City take internal measures to punish Pietrick.
{¶24} The City demoted Pietrick to the rank of firefighter. The trial court found
at best his conduct was “grossly poor judgment” and merited a demotion to the rank of
captain.
{¶25} In this appeal and cross-appeal, the City argues the judge after finding
Pietrick’s conduct punishable, could not alter the penalty imposed by the city. Pietrick
argues that the court should have reinstated him to chief.
{¶26} This court concludes that the following language of the trial court in its de
novo authority amounts to a well-reasoned decision and is not unreasonable:
* * * Yet against this instance of grossly poor judgment, other
facts suggest that the discipline meted out was excessive.
Firstly, there was no written work rules or policies in place that
were violated. No prior complaints had been lodged. No specific
directives or guidelines discouraging such practices were ever
issued. Department Mechanics were not expressly told by
appellant they were required to perform the repairs in question.
No negative work action was ever taken against any one of them
for not fufilling appellant’s requests. Finally, when a complaint
was formally lodged by the union, appellant readily promised to
cease the practice and offered to meet with the union to discuss
the matter in greater detail. (Trial Court’s Opinion and Order,
Page 9.)
{¶27} Additionally, the trial court gave careful consideration to Pietrick’s career
spanning more than 25 years, being promoted from firefighter to lieutenant, to captain,
and then to fire chief, where he served 12 years before being demoted to the position he
held when he first started in 1980. The trial court noted that Pietrick had received no
prior reprimands nor other disciplinary actions before being demoted. Given Pietrick’s
otherwise unblemished service, the trial court concluded a demotion to the lowest rank
was unwarranted.
{¶28} The trial court further noted that at the time Pietrick’s repair requests came
to light, tensions were already running high between Mayor Clough and Pietrick. As
previously stated, the McGrath report revealed that Mayor Clough had openly expressed
his dissatisfaction with Pietrick’s administration, had requested Pietrick’s resignation, and
Pietrick had refused.
{¶29} At the time of Pietrick’s demotion from fire chief to the lowest rank, he
had spent 27 years with the Westlake fire department, and as the trial court duly noted,
other than the issue forming the basis of the instant appeal, Pietrick’s service record was
unblemished.
{¶30} We conclude that the trial court’s reasoning for its “grossly poor
judgment” finding is supported by the record; consequently, the City’s interpretation of
the trial court’s judgment or finding is incorrect. Our review of the trial court’s opinion
reveals that it failed to adopt the City’s finding of misfeasance, malfeasance, nonfeasance,
neglect of duty, and failure of good behavior, but instead substituted that finding to one of
“grossly poor judgment.” This, the trial court could do under its de novo review.
{¶31} Accordingly, the City’s use of Maurer v. Franklin Cty. Treasurer, 10th
Dist. No.07AP-1027, 2008-Ohio-368, is misplaced. Maurer holds “[w]here the evidence
supports the board’s decision, the common pleas court must affirm the board’s decision
and has no authority to modify the penalty.” Maurer concludes that where the evidence
supports the City’s decision, the trial court must affirm. Here, the trial court held that the
evidence did not support the City’s findings and substituted its judgment when it held that
at best Pietrick’s conduct was “grossly poor judgment” that required a different penalty.
{¶32} The law supports this finding by the trial court. It is well established that
administrative appeals brought pursuant to R.C. 124.34 and 119.12 are subject to trial de
novo. Wolf v. Cleveland, 8th Dist. No. 82135, 2003-Ohio-3261. The court of common
pleas may substitute its own judgment on the facts for that of the civil service
commission, based upon the court’s independent examination and determination of
conflicting issues of fact. Id., citing Newsome v. Columbus Civ. Serv. Comm., 20 Ohio
App.3d 327, 486 N.E.2d 174 (10th Dist.1984). A trial court must not simply determine if
the ruling of the Civil Service Commission was arbitrary or capricious, the standard for
appeals brought pursuant to R.C. Chapter 2506, but must evaluate the evidence anew.
Id.
{¶33} With respect to the trial court’s charge of independent review, the Maurer
court stated: “If the common pleas court finds after its appraisal of all the evidence that
reliable, probative, and substantial evidence does not support the board’s decision, or the
decision is not in accordance with law, the court may reverse, vacate, or modify the
board’s decision.” Id., citing Univ. of Cincinnati v. Conrad, 63 Ohio St.2d 108, 407
N.E.2d 1265 (1980).
{¶34} During oral argument, the city argued that like Maurer, Franklin Cty.
Sheriff v. Frazier, 174 Ohio App.3d 202, 2007-Ohio-7001, 881 N.E.2d 345 (10th Dist.),
supports the proposition that the trial court may not modify the penalty, when it finds
some fault in the employee’s conduct regardless of the label. The City suggests there is
no difference between “grossly poor judgment” and misfeasance, malfeasance,
nonfeasance, neglect of duty, and failure of good behavior. We disagree. As previously
stated, the record reveals that the Greenberg report concluded that Pietrick’s conduct was
not criminal and was not likely an ethical violation under the laws of Ohio. Like
Maurer, Frazier is not supportive of the city’s position.
{¶35} In Frazier, following an investigation of the sheriff department’s internal
affairs relating to alleged offenses by Frazier, a deputy sheriff, the sheriff ordered his
removal from employment. Frazier appealed and an administrative law judge (ALJ) for
the board determined that he had committed six of eight infractions alleged in connection
with an excessive force incident. The board adopted the ALJ’s findings of fact and
recommended sanction of suspension instead of removal. When the sheriff department
appealed the board’s decision to the common pleas court, the trial court reversed the order
of the board and reinstated the sheriff’s removal order.
{¶36} When Frazier appealed the trial court’s decision to reinstate the sheriff’s
removal order, the court of appeals reversed the trial court’s decision and stated:
Contrary to the conclusion the common pleas court reached, the noted
record evidence amply supports the ALJ’s determination that “the
primary reason for the severity of Appellant’s discipline was [the
sheriff’s] perception that Appellant lied about the time and manner in
which he injured his hand.” Specifically, Garrity’s testimony
indicates the sixth and seventh grounds for appellant’s removal were
based on a belief that appellant lied to IAD about his hand injury. The
board, through the ALJ, concluded the sheriff did not prove those
grounds, and the common pleas court did not conclude otherwise.
Although the evidence was clear that the unproven grounds would have
resulted automatically in a penalty of removal had they been proven,
no evidence indicates the other proven grounds carry such a harsh
penalty. Similarly, no evidence suggests the sheriff would have removed
appellant from employment based on the proven grounds alone. To the
contrary, the evidence suggests the sheriff would have agreed to a
30-day suspension of appellant but for the additional allegations that
appellant lied to IAD.
{¶37} In Frazier, unlike the instant case, evidence in the record supported the
board’s decision to reduce Frazier’s punishment from removal to suspension because the
sheriff department had not proven that Frazier was guilty of the sixth and seventh count
alleged. Notably, the trial court did not conclude that the sheriff had proven counts six
and seven. Given that the sixth and seventh counts were not proven, and they were the
only grounds that would have justified removal, the trial court abused its discretion when
it reinstated the sheriff’s removal order.
{¶38} Here, as previously noted, the trial court found that Pietrick demonstrated
extremely poor judgment, as opposed to committing acts of misfeasance, malfeasance,
nonfeasance, neglect of duty, and failure of good behavior. The trial court’s finding was
consistent with the determination of the outside law firm, which concluded that Pietrick
had not done anything criminal and had not done anything that was likely an ethical
violation. Accordingly, the trial court acted within its discretion.
{¶39} Turning our attention to Pietrick’s cross-appeal, wherein he argues that the
trial court should have reinstated him to the position of fire chief, we find no abuse of
discretion in the trial court’s decision to place him in the position of captain. As
previously discussed, the trial court did find that Pietrick demonstrated extremely poor
judgment given his superior position and that the mechanics felt some sense of coercion,
given their subordinate position.
{¶40} Thus, the trial court’s decision is supported by a preponderance of reliable,
probative, and substantial evidence. Accordingly, we overrule the City’s assigned error.
We also overrule Pietrick’s cross-assigned error.
{¶41} Judgment affirmed.
It is ordered that appellee and appellants share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, ADMINISTRATIVE JUDGE
MELODY J. STEWART, J., and
KATHLEEN ANN KEOUGH, J., CONCUR