[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
