[Cite as Fulmer v. W. Licking Joint Fire Dist., 2014-Ohio-82.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

DAVID FULMER                                                JUDGES:
                                                            Hon. W. Scott Gwin, P.J.
        Appellee                                            Hon. William B. Hoffman, J.
                                                            Hon. Patricia A. Delaney, J.
-vs-
                                                            Case No. 13-CA-36
WEST LICKING JOINT FIRE DISTRICT

        Appellant                                           OPINION




CHARACTER OF PROCEEDING:                                Appeal from the Licking County Court of
                                                        Common Pleas, Case No. 12 CV 01495


JUDGMENT:                                               Affirmed


DATE OF JUDGMENT ENTRY:                                 January 9, 2014


APPEARANCES:


For Appellant                                           For Appellee


DOUG HOLTHUS                                            DAVID C. COMSTOCK, JR.
Poling Law                                              Comstock, Springer & Wilson Co., LPA
300 East broad Street, Suite 350                        100 Federal Plaza East, Suite 926
Columbus, Ohio 43215                                    Youngstown, Ohio 44503
Licking County, Case No. 13-CA-36                                                         2

Hoffman, J.


        {¶1}   Appellant West Licking Joint Fire District (“the District”) appeals the April

18, 2013 Order and Judgment Entry entered by the Licking County Court of Common

Pleas, which vacated the decision of the West Licking Joint Fire District Board of

Trustees (“the Board”) terminating Appellee David Fulmer’s position as fire chief.

                           STATEMENT OF THE FACTS AND CASE

        {¶2}   Appellee served as fire chief for Miami Township, Ohio, from 2002,

through 2009. Appellee was hired by the District to serve as its fire chief on April 20,

2009.     As fire chief, Appellee was responsible for the day-to-day operations of the

District, including managing the collective bargaining process, controlling the District’s

expenditures, supervising fire department staff, and ensuring the District’s employees

complied with policies and procedures.

        {¶3}   Sometime after Appellee began his employment with the District, he

requested Miami Township copy files from the Miami Township fire department so he

could have those files for his future reference. The files included documents which

were relevant to his work at the District as well as to his associations with the

International Association of Fire Chiefs, Ohio Fire Chief’s Association, National Fire

Prevention Association, and Ohio Regional Strike Team. Miami Township complied with

Appellee’s request, copying all of the documents from Appellee’s Miami Township

computer onto a single Microsoft PST file, which it provided to Appellee on an external

hard drive and/or CD.

        {¶4}   A problem occurred with the external hard drive which affected Appellee’s

laptop.    To alleviate the problem and to make the system more efficient, either
Licking County, Case No. 13-CA-36                                                        3


Steamline IT or Affiliated Resource Group, the District’s IT providers, downloaded the

PST file onto Appellee’s desktop computer. Appellee knew the PST file was on his

computer and occasionally searched it for documents relating to his professional

associations or documents pertaining to policies he had implemented in Miami

Township. Appellee did not seek permission from the Board to download this file onto

his District computer. However, a policy requiring permission did not exist.

       {¶5}   On May 30, 2012, the Board suspended Appellee from his position. At a

special meeting held on June 7, 2012, the Board appointed R.L. Emmons & Associates

to conduct an investigation into Appellee’s alleged misconduct in office.         Richard

Emmons served as lead investigator. Based upon his investigation, Emmons presented

the Board with three administrative charges against Appellee: 1. Appellee misused

public funds both by improperly purchasing fire service “challenge coins” which resulted

in modifications to the firefighters’ work schedules; 2. Appellee’s demeanor, attitude,

and conduct created unmanageable and harmful disharmony and mistrust within the

District’s fire service; and 3. Appellee engaged in misconduct and/or malfeasance and

committed various violations of the District’s computer, internet, email and online

services policies.

       {¶6}   On October 19, and 20, 2012, the Board conducted an administrative

evidentiary hearing relative to the charges levied against Appellee.           The parties

submitted post-hearing briefs. After consideration of the parties’ post-hearing briefs, the

Board conducted a special, open and public hearing for purposes of deliberating and

determining Appellee’s continued employment status. Although the Board voted not to

subject Appellee to discipline based upon the first two administrative charges, the Board
Licking County, Case No. 13-CA-36                                                      4


determined Appellee should be disciplined on the third administrative charge, and

immediately terminated his employment as fire chief.      Appellee was advised of the

Board’s decision in writing on November 9, 2012.

      {¶7}   Appellee filed a timely Notice of Appeal of the Board’s decision to the

Licking County Court of Common Pleas. The parties briefed their respective positions.

Via Judgment Entry filed April 18, 2013, the trial court found the District had failed to

present substantial evidence Appellee violated the District’s internet use policy. The

trial court further found the District had neither articulated nor demonstrated how

Appellee’s possession of some personal information of his former employees on his

computer constituted misfeasance or malfeasance. The trial court vacated the Board’s

decision terminating Appellee, stating the Board’s finding with respect to administrative

charge 3 was not supported by the preponderance of substantial, reliable and probative

evidence on the whole record.

      {¶8}   It is from this judgment entry the District appeals, raising the following

assignments of error:

      {¶9}   “I. THE TRIAL COURT ERRED IN DETERMINING THAT APPELLANT

FAILED TO PROPERLY FOLLOW AND ABIDE BY R.C. 733.35 AND APPLICABLE

LAW WHEN ADMINISTRATIVELY TERMINATING APPELLEE.

      {¶10} “II. THE TRIAL COURT ERRED, IN DETERMINING THAT APPELLANT

HAD OFFERED NO SUBSTANTIVE, RELIABLE AND PROBATIVE EVIDENCE TO

ESTABLISH ADMINISTRATIVE CHARGE NO. 3 OR THAT APPELLEE HAD

VIOLATED APPELLANT’S COMPUTER AND INTERNET USE POLICIES, THEREBY

SUPPORTING APPELLANT’S DECISION TO TERMINATE.
Licking County, Case No. 13-CA-36                                                       5


       {¶11} “III. THE TRIAL COURT ERRED IN DETERMINING THAT APPELLEE’S

IMPROPER POSSESSION AND USE OF CONFIDENTIAL AND PROTECTED THIRD-

PARTY INFORMATION, ON APPELLANT’S COMPUTER, DID NOT CONSTITUTE

MISFEASANCE OR MALFEASANCE, THEREBY SUPPORTING APPELLANT’S

DECISION TO TERMINATE.”

                                                I, II, III

       {¶12} R.C. 505.38 provides for the appointment and removal of fire chiefs and

firefighters in townships and fire districts with a fire department.

       {¶13} R.C. 2506.04 governs appeals from administrative agencies and states

the following:

                 The court may find that the order, adjudication, or decision is

       unconstitutional,    illegal,   arbitrary,    capricious,   unreasonable,   or

       unsupported by the preponderance of substantial, reliable, and probative

       evidence on the whole record. Consistent with its findings, the court may

       affirm, reverse, vacate, or modify the order, adjudication, or decision, or

       remand the cause to the officer or body appealed from with instructions to

       enter an order, adjudication, or decision consistent with the findings or

       opinion of the court. The judgment of the court may be appealed by any

       party on questions of law as provided in the Rules of Appellate Procedure

       and, to the extent not in conflict with those rules, Chapter 2505. of the

       Revised Code.
Licking County, Case No. 13-CA-36                                                      6

       {¶14} In Henley v. Youngstown Board of Zoning Appeals, 90 Ohio St.3d 142,

2000–Ohio–493, the Supreme Court of Ohio discussed the difference between the

standards of review to be applied by the trial court and the court of appeals:

              Construing the language of R.C. 2506.04, we have distinguished

       the standard of review to be applied by common pleas courts and courts

       of appeals in R.C. Chapter 2506 administrative appeals. 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.* * *

              The standard of review to be applied by the court of appeals in an

       R.C. 2506.04 appeal is “more limited in scope.” (Emphasis added.)* * *.

       “This statute grants a more limited power to the court of appeals to review

       the judgment of the common pleas court only on ‘questions of law,’ which

       does not include the same extensive power to weigh ‘the preponderance

       of substantial, reliable and probative evidence,’ as is granted to the

       common pleas court.” * * * “It is incumbent on the trial court to examine the

       evidence. Such is not the charge of the appellate court. [The appellate

       court is to determine only if the trial court has abused its discretion.] * *

       *The fact that the court of appeals, or this court, might have arrived at a

       different conclusion than the administrative agency is immaterial.

       Appellate courts must not substitute their judgment for those of an
Licking County, Case No. 13-CA-36                                                      7


      administrative agency or a trial court absent the approved criteria for doing

      so.” Id. at 147. (Citations omitted in original).

      {¶15} Administrative charge 3, “Misconduct in office and/or misfeasance.

Violation of West Licking Joint Fire District Use of Internet, E-mail and Online Services

policy”, upon which Appellee’s termination was based, provides:

             Chief Fulmer violated the above policy by downloading and/or

      otherwise importing to the District’s computer system several documents

      from his previous employer. Specifically, Chief Fulmer imported to his

      District email and/or the District server several documents from the Miami

      Township Fire Department. Several of these documents contain sensitive

      information. (e.g. familiar information; Social Security numbers; medical

      information; etc.)

      {¶16} Pursuant to its review under R.C. 2506.04, the trial court was required to

weigh the evidence in the entire record and to assess the worth of all such evidence, to

assess the credibility of the witnesses as well as the probative character of the

evidence, and to determine the weight to be given to that evidence. See Dudukovich v.

Lorain Metro. Housing Auth., 58 Ohio St.2d 202, 206–07 (1979). Here, the trial court

properly undertook this task. The trial court weighed all of the evidence in the record

and determined the Board's decision was not supported by a preponderance of

substantial, reliable, and probative evidence.

      {¶17} The District’s internet, email, and online services use policy, which

Appellee signed upon his appointment, provides, “The downloading of information,

documents and/or materials from the internet, e-mail, or other online services onto West
Licking County, Case No. 13-CA-36                                                          8


Licking Fire District’s computers is strictly prohibited.” The trial court found no evidence

in the entire record to establish Appellee downloaded the information from the internet,

email, or an online service; therefore, concluded Appellee did not violate the District’s

policy. Further, although Appellee had possession of some of his former employees’

personal information on his computer, the trial court found the District provided no

evidence to show such possession constituted misfeasance or malfeasance. Appellee

had not requested any sensitive information from Miami Township, and was unaware

such was included in the file he received. Appellee did not share or disseminate any

sensitive information.

       {¶18} Applying our limited review, we find, as a matter of law, the decision of the

common pleas court did not abuse its discretion in vacating the decision to terminate

Appellee's employment.

       {¶19} The District’s first, second, and third assignments of error are overruled.

       {¶20} The judgment of the Licking County Court of Common Pleas is affirmed.

By: Hoffman, J.

Gwin, P.J. and

Delaney, J. concur
