[Cite as Farran v. Cleveland Civ. Serv. Comm., 2014-Ohio-823.]



                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 99851


                                 MATTHEW FARRAN

                                                          PLAINTIFF-APPELLANT

                                                    vs.

                          CITY OF CLEVELAND
                       CIVIL SERVICE COMMISSION

                                                          DEFENDANT-APPELLEE



                                           JUDGMENT:
                                            AFFIRMED


                                 Administrative Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CV-789156

        BEFORE: Stewart, J., Jones, P.J., and E.A. Gallagher, J.

        RELEASED AND JOURNALIZED:                         March 6, 2014
ATTORNEY FOR APPELLANT

Nancy C. Schuster
Schuster & Simmons Co., L.P.A.
The Bevelin House
2913 Clinton Avenue
Cleveland, OH 44113


ATTORNEYS FOR APPELLEE

Barbara Langhenry
City of Cleveland Law Director

BY: Theodora M. Monegan
Chief Assistant Law Director
City Hall
601 Lakeside Avenue, Room 106
Cleveland, OH 44114
MELODY J. STEWART, J.:

       {¶1} The city of Cleveland filed four different complaints during a ten-month

period against appellant-employee Matthew Farran.       The first three complaints resulted

in suspensions; the fourth complaint led to a mandatory dismissal as required by the city’s

progressive discipline policy. All four complaints were consolidated for hearing and

upheld by a referee. The Cleveland Civil Service Commission (“commission”) likewise

upheld the suspensions and termination. On administrative appeal, the court of common

pleas found that Farran received procedural and substantive due process and that the

termination was justified under the city’s progressive disciplinary policy. This appeal

followed and raises two issues of law: whether the commission relied upon inadmissible

hearsay in upholding the suspensions and whether the city denied Farran due process by

hearing the four separate disciplinary complaints in one proceeding against him for

purposes of establishing the chain of infractions necessary to justify termination.

                                              I

       {¶2} When a court of appeals reviews a common pleas decision in an

administrative appeal, its standard of review is far more circumscribed than that employed

by the court of common pleas. R.C. 2506.04 gives the court of common pleas the

authority to review and hear additional evidence; thus, its obligation to examine the

record to determine whether there is “substantial, reliable and probative evidence”
involves both factual and legal determinations. Cincinnati Bell, Inc. v. Glendale, 42

Ohio St.2d 368, 370, 328 N.E.2d 808 (1975).

         {¶3} An appellate court reviewing an R.C. Chapter 2506 administrative appeal

from a common pleas court decision is limited to questions of law. We do not have the

same extensive power to weigh the preponderance of substantial, reliable, and probative

evidence as is granted to the lower court. Henley v. Youngstown Bd. of Zoning Appeals,

90 Ohio St.3d 142, 147, 2000-Ohio-493, 735 N.E.2d 433. However, “within the ambit

of ‘questions of law’ for appellate court review would be abuse of discretion by the

common pleas court.” Kisil v. Sandusky, 12 Ohio St.3d 30, 34, 465 N.E.2d 848 (1984),

fn. 4.

                                             II

         {¶4} Farran first argues that the court erred by relying on hearsay offered by the

complainant in the fourth and final disciplinary proceeding against him. The substance

of that complaint was that Farran, a manager with the city’s Department of Port Control,

relayed to the complainant disparaging remarks another manager had made about the

complainant. Those remarks were contained on a tape recording that had been made

without the other manager’s knowledge or permission. The complainant did not testify

before the referee, but the referee considered the complainant’s written statement

documenting Farran’s use of the tape recording.

         {¶5} Although administrative appeals to government agencies are required to

comport with fundamental aspects of due process, they are not judicial proceedings.
Consequently, the rules of evidence “do not directly apply in administrative

proceedings[.]” Plain Loc. Schools Bd. of Edn. v. Franklin Cty. Bd. of Rev., 130 Ohio

St.3d 230, 2011-Ohio-3362, 957 N.E.2d 268, ¶ 20; Simon v. Lake Geauga Printing Co.,

69 Ohio St.2d 41, 44, 430 N.E.2d 468 (1982). When evidence is admitted despite being

hearsay, the trier of fact must consider whether the evidence is reliable enough to be

considered substantial and probative. In re Petition for Annexation of 162.631 Acres, 52

Ohio App.3d 8, 15, 556 N.E.2d 200 (10th Dist.1988). This is a question going to the

weight, not the admissibility, of the evidence.

       {¶6} Farran argues that the complainant’s statement was hearsay and should not

have been admitted because it lacked trustworthiness (the city was unable to confirm the

existence of any recording or recording device in Farran’s office); the city had previously

considered the complainant untrustworthy in unrelated employment proceedings (he had

been terminated for having “acrimonious altercation[s]” with other employees); and the

complainant had a motive to lie about Farran (the complainant apparently had a

long-standing dispute with the manager who made the critical comments that were

recorded on tape and was using the incident to “get back” at management — in this case

Farran, who was a ready “foil” — for years of complaints and discipline).

       {¶7} With the rules of evidence inapplicable, the city did not need to provide

definitive proof that Farran made the recording, or even that a recording existed, to have

the worker’s statement admitted before the referee.      To say that the referee had to

determine whether the statement was reliable or trustworthy was a question going to the
weight of the city’s evidence, not its admissibility.       An appellate court hearing an

administrative appeal from the court of common pleas cannot review questions going to

the weight of the evidence. For our purposes, it is enough to say that the court did not err

as a matter of law by finding that the referee did not err by considering the complainant’s

written statement in the absence of his direct testimony at the hearing.

                                             III

       {¶8} Farran next argues that the city failed to adhere to its progressive disciplinary

policy because the city did not demonstrate how any of his three suspensions were

justified.

       {¶9} We discern no issues of law in the substance of this assignment of error.

Importantly, Farran phrases his entire argument in terms of the city’s failure to show

“how a 10-day suspension was appropriate for the first charge, how a 30-day suspension

was appropriate for the second and third in accord with the Progressive Discipline Policy

or assuming the charge was properly supported, to justify termination.” Appellant’s brief

at 10. While it was the city’s duty to support its decision to terminate before the referee,

the referee’s decision to uphold the termination meant that the duty to show error on

appeal shifted to Farran. His argument, quoted in its entirety above, fails to carry his

burden and in any event relies on a weighing of the evidence that is beyond the scope of

an appeal to this court.

       {¶10} Judgment affirmed.

       It is ordered that appellee recover of appellant its costs herein taxed.
      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the Cuyahoga

County Court of Common Pleas 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.




MELODY J. STEWART, JUDGE

LARRY A. JONES, SR., P.J., and
EILEEN A. GALLAGHER, J., CONCUR
