The opinion
{¶ 29} I respectfully dissent from the majority's analysis and disposition of appellant's first and third assignments of error.
{¶ 30} The majority, in its analysis and disposition of the first assignment, holds that appellant's due process rights had not been violated. I disagree.
{¶ 31} In the case sub judice, appellees voted two(2) to one (1) in favor of removing appellant as chief. Trustee Bailey who voted in favor of removal, relied on issues other than appellant's failure to file the reports in voting for appellant's removal. The following is an excerpt from Trustee Bailey's testimony:
{¶ 32} "Q. I'll restate the question, Mr. Bailey. During his tenure as the fire chief, do you think that Mark Dennis was actively participating in doing his duties as the fire chief, other than the — aside from the fire report issue?
{¶ 33} "A. No.
{¶ 34} "Q. Okay. Despite your answer to that question, it's correct that the only complaint that was filed for the removal of Mr. Dennis was the failure to file the reports; correct?
{¶ 35} "A. Yeah.
{¶ 36} "Q. Is it fair to say that in your decision to remove Mark Dennis, that you used those other factors that he was not doing to remove him?
{¶ 37} "A. Yes.
{¶ 38} "THE COURT: Was that a yes or no?
{¶ 39} "THE WITNESS: Yes.
{¶ 40} "Q. So you decided to remove Mr. Dennis on issues other than those alleged in the complaint; correct?
{¶ 41} "A. No.
{¶ 42} "Q. No? Well, you just said to me that —
{¶ 43} "A. Well, I considered them too along with the reports.
{¶ 44} "Q. Okay. So in your decision to remove Mr. Dennis, you considered matters other than the failure to file the reports to remove him; correct?
{¶ 45} "A. Yes." Transcript at 97 — 98.
{¶ 46} There is no evidence that Trustee Bailey would have voted for appellant's removal based solely on appellant's failure to file the reports.
{¶ 47} I would find, therefore, that appellant's right to procedural and substantive due process was violated, and would find that the trial court erred in affirming appellee's decision to remove appellant as fire chief.
{¶ 48} Based on the preceding analysis, I would vote to reverse the decision of the trial court.