[Cite as Mathias v. Pleasant Twp. Bd. of Trustees, 2014-Ohio-3019.]


                                       COURT OF APPEALS
                                    FAIRFIELD COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


JEFF MATHIAS                                       :           JUDGES:
                                                   :
                                                   :           Hon. William B. Hoffman, P.J.
        Plaintiff - Appellant                      :           Hon. John W. Wise, J.
                                                   :           Hon. Craig R. Baldwin, J.
                                                   :
-vs-                                               :
                                                   :
BOARD OF TRUSTEES OF                               :           Case No. 14-CA-6
PLEASANT TOWNSHIP                                  :
FAIRFIELD COUNTY, OHIO, et al.                     :
                                                   :
        Defendants - Appellees                     :           OPINION



CHARACTER OF PROCEEDING:                                       Appeal from the Fairfield County
                                                               Court of Common Pleas, Case No.
                                                               2013 CV 724



JUDGMENT:                                                      Affirmed



DATE OF JUDGMENT:                                              July 3, 2014




APPEARANCES:

For Plaintiff-Appellant                                        For Defendants-Appellees

D. JOE GRIFFITH                                                NICOLE M. KOPPITCH
Dagger, Johnston, Miller,                                      Reminger Co., LPA
Ogilvie & Hampson, LLP                                         65 E. State Street, 4th Floor
144 E. Main Street                                             Columbus, OH 43215
P.O. Box 667
Lancaster, OH 43130
Fairfield County, Case No. 14-CA-6                                                    2

Baldwin, J.

     {¶1}     Plaintiff-appellant Jeff Mathias appeals from the January 8, 2014 Decision

and Judgment Entry of the Fairfield County Court of Common Pleas affirming the

decision of defendants-appellees Board of Trustees of Pleasant Township, et al to

terminate him as Fire Chief.

                         STATEMENT OF THE FACTS AND CASE

     {¶2}     Appellant Jeff Mathias was the Fire Chief for the Pleasant Township Fire

Department.     The fire department had one African-American firefighter, Dwayne

Holiday.

     {¶3}     On Thursday, May 30, 2013, appellant was on duty with firefighters Kyle

Peters, Jason Miller and Kyle Locke when appellant made a racial statement. According

to witnesses, appellant said that he did not have a problem with black people and “I

think we should all own one.” Transcript at 14. Kyle Peters believed that appellant had

made an inappropriate comment and then Assistant Chief Andrew Fey told him that he

would speak with appellant on Monday.

     {¶4}     On Saturday, June 1, 2013, then Assistant Chief Fey spoke with appellee

Trustee Rayna Moellendick who had called him. When he told appellee Moellendick

about the comment that appellant had made and told her that he was going to speak

with appellant on Monday, appellee Moellendick asked then Assistant Chief Fey to

obtain written statements from all parties involved. At the time, no one had complained

that they were being racially harassed. Then Assistant Chief Fey obtained statements

from the three firefighters who were present. Kyle Peters and Jason Miller, in their
Fairfield County, Case No. 14-CA-6                                                       3


statements, indicated that appellant, after making the racial statement, said that he was

joking. They also stated that they had been talking about Dwayne Holiday at the time.

      {¶5}    On June 5, 2013, when then Assistant Chief Fey arrived for duty, he

spoke with appellant privately and appellant told him that he had already discussed the

incident with firefighters Peters and Miller and that they all agreed that it was a big

misunderstanding. Appellant stated that he did not provide a written statement when

asked to do so by Assistant Chief Fey for such reason.

      {¶6}    At the next regularly scheduled meeting of appellee Board of Trustees of

Pleasant Township on June 6, 2013, appellee Board voted to place appellant on

indefinite paid administrative leave until appellee Trustees had completed their

investigation of the complaint against appellant and a final decision was made. They

appointed Assistant Chef Fey acting chief until the matter was resolved.

      {¶7}    Appellee Board of Trustees initially appointed private citizen Dennis Lee to

investigate the May 30, 2013 incident. However, after reconsidering, Lee declined to

investigate. According to Chief Fey, appellees gave him a verbal order to investigate.

      {¶8}    After conducting his investigation, Chief Fey, on or about July 8, 2013,

filed his charges with appellees. Chief Fey, in his report, indicated that appellant had

made racial comments in the past. According to the report, appellant had told an

African-American firefighter that he could not park in a specific location because it was

for whites only.

      {¶9}    A hearing before appellees was held on August 1, 2013. At the hearing,

Chief Fey, Carl Locke, Kyle Peters and Jason Miller testified on behalf of appellee
Fairfield County, Case No. 14-CA-6                                                       4


Township while Dwayne Holiday and appellant testified on appellant’s behalf. The

following is an excerpt from appellant’s testimony on cross-examination:

        {¶10}   “Q: … As far as the May 30th, 2013, statement that you think everyone

should own a black person, and I’m paraphrasing there, do you dispute that that

statement was made?

        {¶11}   “A: I said ‘have one’

        {¶12}   “Q: I apologize. You don’t dispute that that was said?

        {¶13}   “A: No.

        {¶14}   “Q:   The comment with respect to, ‘This is whites only.      Blacks park

around the side,’ do you dispute having made that statement?

        {¶15}   “A: That was a conversation in response to Mr. Holiday when he pulled in.

Yes. We joked several times about different things. We have a relationship where –

you know, as a matter of fact, the first time he came in, he asked me where the black

bathroom was and the black drinking fountain. I told him, I said, ‘Man, you can’t talk like

that around here’ I said, ‘You’re equal. You will be that way, and you always will be that

way.’

        {¶16}   “Q: So did you say that to him before or after you then made the comment

to him?

        {¶17}   “A: This is when I hired him.

        {¶18}   “Q: So you hired him, and then, subsequently, you made a comment to

him about where he could or could not park based on his race?

        {¶19}   “A: If I remember the statement or the conversation correct, he made the

statement first, and I was joking with him about it.
Fairfield County, Case No. 14-CA-6                                                       5


     {¶20}    “Q:   So I understand that it’s your position that the comments being

addressed tonight were, in your mind, jokes; correct?

     {¶21}    “A: Yeah. Very much out of context.

     {¶22}    “Q:   Do you feel that those comments that were made by you were

appropriate for the Acting Fire Chief to have made?

     {¶23}    “A: When I made that comment, it was actually – it wasn’t against blacks.

It was actually complimenting blacks because the statement was, if Obama can

straighten the economy out, what could he have done back in history, if things would

have been different.

     {¶24}    “Q: But did you feel it was – in hindsight, do you feel it was appropriate to

make those comments as the Acting Fire Chief?

     {¶25}    A: Probably not.”

     {¶26}    Transcript at 68-69.

     {¶27}    In addition, appellant testified that he was on probation at the time of the

May 30, 2013 incident.

     {¶28}    Appellant filed a post-hearing brief with appellees. On August 19, 2013,

Resolution 13-064 was issued terminating appellant from his position as Pleasant

Township Fire Chief for violating various sections of Pleasant Township Policies and

Procedures.

     {¶29}    Appellant filed a Notice of Appeal with the Fairfield County Court of

Common Pleas. The record of the Township’s proceedings was filed on October 10,

2013. On October 11, 2013, appellant filed a Motion to Strike documents from the

record that were never admitted as exhibits at the hearing. As memorialized in an Entry
Fairfield County, Case No. 14-CA-6                                                    6


filed on October 16, 2013, the trial court set a briefing schedule and ordered that “the

matter shall come on for review and decision on December 6, 2013.” A Nunc Pro Tunc

Order to correct a date was filed on October 17, 2013.

     {¶30}   Appellant filed his brief on November 1, 2013. The trial court, pursuant to

an Entry filed on November 6, 2013, denied appellant’s Motion to Strike. Appellees filed

their brief on November 22, 2013 and appellant filed a reply brief on December 2, 2013.

     {¶31}   Appellant, on December 6, 2013, filed a Motion to Conduct Hearing.

Appellant, in his motion, asked that an oral hearing be scheduled in accordance with

R.C. 2506.01-02.

     {¶32}   The trial court, as memorialized in a Decision and Judgment Entry filed on

January 8, 2014, denied appellant’s request for a hearing. The trial court also affirmed

the decision to terminate appellant as Fire Chief for Pleasant Township.

     {¶33}   Appellant now raises the following assignments of error on appeal:

     {¶34}   “I.     THE TRIAL COURT ERRED IN FAILING TO FIND THAT THE

TOWNSHIP’S TERMINATION OF CHIEF MATHIAS VIOLATED OHIO REVISED

CODE SECTION 505.38 DUE TO ITS FAILURE TO PROPERLY APPOINT AN

INVESTIGATOR.

     {¶35}   “II.    THE TRIAL COURT ERRED IN FAILING TO FIND THAT THE

TOWNSHIP’S ATTEMPT TO APPOINT ACTING CHIEF ANDREW                             FEY AS

INVESTIGATOR, VIOLATED CHIEF MATHIAS’ DUE PROCESS RIGHTS AND WAS

ALSO IN VIOLATION OF R.C. 505.38.

     {¶36}   “III.   THE TRIAL COURT ERRED IN FAILING TO FIND THAT THE

TOWNSHIP IMPROPERLY CONSIDERED INFORMATION AND DOCUMENTS NOT
Fairfield County, Case No. 14-CA-6                                    7


SUBMITTED INTO EVIDENCE AT THE ADMINISTRATIVE HEARING OF THIS

MATTER, WHICH WERE NOT A PART OF THE INVESTIGATION SUBMITTED BY

ACTING CHIEF FEY TO THE PREJUDICE OF CHIEF MATHIAS.

     {¶37}   “IV.    THE TRIAL COURT ERRED IN FAILING TO FIND THAT THE

PARTICIPATION OF COUNSEL PERSON RAYNA MOELLENDICK IN THE DECISION

TO TERMINATATE CHIEF MATHIAS WAS A VIOLATION OF CHIEF MATHIAS’ DUE

PROCESS RIGHTS AS TRUSTEE MOELLENDICK INITIATED THE CHARGES

AGAINST CHIEF MATHIAS.

     {¶38}   “V.     THE TRIAL COURT ERRED IN FAILING TO FIND THAT THE

TERMINATION OF CHIEF MATHIAS WAS IN VIOLATION OF R.C. 733.35.

     {¶39}   “VI.    THE TRIAL COURT ERRED IN FINDING THAT THERE WAS

COMPETENT OR CREDIBLE EVIDENCE TO SUPPORT THE TOWNSHIP’S FINDING

THAT CHIEF MATHIAS WAS IN VIOLATION OF SECTION 201.02, 201.03, OR 202.01

OF THE PLEASANT TOWNSHIP POLICIES AND PROCEDURES.

     {¶40}   “VII.   THE TRIAL COURT ERRED IN FAILING TO FIND THAT THE

TOWNSHIP’S TERMINATION OF CHIEF MATHIAS WAS ARBITRARY AND

CAPRICIOUS.

     {¶41}   “VIII. THE TRIAL COURT ERRED IN FINDING THAT THERE WAS

COMPETENT OR CREDIBLE EVIDENCE TO SUPPORT THE TOWNSHIP’S FINDING

THAT CHIEF MATHIAS WAS IN VIOLATION OF SECTION 2013.02-10 OF THE

PLEASANT TOWNSHIP POLICIES AND PROCEDURES.

     {¶42}   “IX.    THE TRIAL COURT ERRED IN FINDING THAT THERE WAS

COMPETENT TO CREDIBLE EVIDENCE TO SUPPORT THE TOWNSHIP’S
Fairfield County, Case No. 14-CA-6                                                     8


FINDINGS THAT CHIEF MATHIAS WAS IN VIOLATION OF SECTION 316 OF THE

PLEASANT TOWNSHIP POLICIES AND PROCEDURES.

      {¶43}      “X.     THE TRIAL COURT ERRED IN FINDING THAT THERE WAS

COMPETENT OR CREDIBLE EVIDENCE TO SUPPORT THE TOWNSHIP’S FINDING

THAT CHIEF MATHIAS WAS IN VIOLATION OF 313.04-18 OF THE PLEASANT

TOWNSHIP POLICIES AND PROCEDURES.

      {¶44}      “XI.    THE TRIAL COURT ERRED IN FAILING TO FIND THAT THE

BOARD OF TRUSTEES VIOLATED BOTH SECTIONS 505.38 AND REVISED CODE

733.35-37 IN THEIR INITIAL SUSPENSION OF CHIEF MATHIAS.

      {¶45}      “XII.   THE TRIAL COURT COMMITTED PLAIN ERROR IN FAILING TO

HOLD A HEARING IN THIS CASE PURSUANT TO R.C. 2506.01, ET SEQ.

                                   STANDARD OF REVIEW

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

the following:

      {¶47}      “…[T]he 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.”
Fairfield County, Case No. 14-CA-6                                                         9

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

2000–Ohio–493, 735 N.E.2d 433, 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:

      {¶49}   “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.* * *

      {¶50}   “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 administrative agency or a trial court absent the approved criteria for

doing so.” Id. at 147. (Citations omitted in original).
Fairfield County, Case No. 14-CA-6                                                        10


                                                   I

      {¶51}   Appellant, in his first assignment of error, argues that the trial court erred

in failing to find that appellee Township’s termination of him violated R.C. 505.38 due to

its failure to properly appoint an investigator.

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

firefighters in townships and fire districts with a fire department. To initiate removal of a

firefighter, R.C. 505.38(A) provides that the trustees should designate the fire chief or a

private citizen to investigate the conduct and prepare the necessary charges as directed

by R.C. 733.35 to R.C. 733.39.

      {¶53}   In the case sub judice, a private citizen, Dennis Lee, was originally

appointed to conduct an investigation. However, after Lee declined to do so, Acting Fire

Chief Fey was given a verbal order by appellees to conduct the investigation. There is

nothing in R.C. 505.38 requiring that the Trustees formally “appoint”, as opposed to

designate, an investigator. By designating Acting Fire Chief Fey, who assumed the

duties and responsibilities of the Fire Chief and was acting as such, to conduct the

investigation, appellees complied with R.C. 505.38.

      {¶54}   Appellant’s first assignment of error is, therefore, overruled.

                                                   II

      {¶55}   Appellant, in his second assignment of error, argues that Acting Fire Chief

Fey had a conflict of interest and was biased and that his participation in the

investigation violated appellant’s due process rights.

      {¶56}   Appellant specifically maintains that Chief Fey admitted that he had heard

other fire department personnel make racial jokes and had never reported the same.
Fairfield County, Case No. 14-CA-6                                                       11


He also notes that Chief Fey, when asked if he had been a participant in racial jokes,

testified that he could not honestly answer such question. Appellant also argues that

Chief Fey had a potential conflict of interest because, as Assistant Fire Chief, he would

be in line to replace appellant if appellant was terminated.

      {¶57}   However, there is no evidence in the record that Fey had any bias against

appellant or had any conflict of interest. Fey himself testified, when asked if he would

be a candidate to be the Fire Chief if appellant was no longer there, that such statement

was ”[s]peculation.” Transcript at 42. He testified that he did not believe that he had any

conflict. We concur with appellees that any racial statements made prior to Acting Fire

Chief Fey’s appointment would have been appellant’s responsibility to investigate and

report to appellees. In the case sub judice, Chief Fey was designated to conduct an

investigation into a specific incident that appellant, by his own admission, agreed

occurred. Chief Fey testified that he took action with respect to such incident, as

opposed to previous incidents, because “it was brought to me in a formal fashion…”

Transcript at 16.

      {¶58}   Appellant’s second assignment of error is, therefore, overruled.

                                                III

      {¶59}   Appellant, in his third assignment of error, argues that the trial court erred

in failing to find that appellees improperly considered information and documents not

submitted into evidence at the administrative hearing in this matter in deciding to

terminate appellant.

      {¶60}   “[T]to constitute fatal error it must appear that an administrative agency's

journey outside the record worked substantial prejudice.” In re Wedgewood Realty,
Fairfield County, Case No. 14-CA-6                                                       12

LLC, 10th Dist., 2006-Ohio-6734 at paragraph 28, citing to National Labor Relations Bd.

v. Johnson,    310 F.2d 550, 552 (C.A.6, 1962), citing United States v. Pierce Auto

Freight Lines, 327 U.S. 515, 66 S.Ct. 687 (1946).

      {¶61}   Appellant specifically contends that the Township provided documents as

part of the record in this matter related to an incident that occurred in December of 2012

and that there was no mention of such event as part of Chief Fey’s investigation. During

such incident, appellant allegedly engaged in a physical altercation with a firefighter and

was placed on administrative leave. Appellant was later placed on probation for one

year. Appellant argues that no witnesses testified about the events of December 2012

and that the 2012 incident was not mentioned in the August 19, 2013, Resolution 13-

064 terminating appellant.

      {¶62}   However, appellant, at the August 1, 2013 hearing, testified that he was

on probation at the time of the May 30, 2013 incident and that he previously had been

disciplined by appellees. Moreover, all three of the voting Trustees were previously

involved in the decision to place appellant on probation in December of 2012. Thus,

they were personally aware of the incident of December of 2012.

      {¶63}   Appellant’s third assignment of error is, therefore, overruled.

                                               IV

      {¶64}   Appellant, in his fourth assignment of error, argues that the trial court

erred in failing to find that the participation of appellee Trustee Rayna Moellendick in the

decision to terminate appellant violated appellant’s due process rights because she

initiated the charges against appellant.
Fairfield County, Case No. 14-CA-6                                                          13


      {¶65}      Contrary to appellant’s assertion, there is no evidence that appellee

Moellendick initiated the charges against appellant. The record shows that after

receiving information from Kyle Peters that appellant had made an inappropriate racial

comment, then Assistant Chief Andrew Fey told Peters that he would speak with

appellant on Monday. When he spoke, on June 1, 2013, with appellee Trustee Rayna

Moellendick who had called him, then Acting Chief Fey told appellee Moellendick about

the comment that appellant had made and told her that he intended to speak with

appellant on Monday. Appellee Moellendick asked then Assistant Chief Fey to obtain

written statements from all parties involved. She did not ask him to conduct an

investigation.

      {¶66}      Appellant’s fourth assignment of error is, therefore, overruled.

                                         V, VI, VII, VIII, IX, X

      {¶67}      Appellant, in his fifth through tenth assignments of error, argues that the

decision to terminate him was in violation of R.C. 733.35 and was not supported by

competent or credible evidence. He further argues that the decision to terminate him

was arbitrary and capricious.

      {¶68}      Appellant, in his fifth assignment of error, argues that the trial court erred

in failing to find that his termination was in violation of R.C. 733.35.

      {¶69}      R.C. 733.35 states as follows: “The mayor of a municipal corporation shall

have general supervision over each department and the officers provided for in Title VII

of the Revised Code. When the mayor has reason to believe that the head of a

department or such officer has been guilty, in the performance of his official duty, of

bribery, misfeasance, malfeasance, nonfeasance, misconduct in office, gross neglect of
Fairfield County, Case No. 14-CA-6                                                      14


duty, gross immorality, or habitual drunkenness, he shall immediately file with the

legislative authority, except when the removal of such head of department or officer is

otherwise provided for, written charges against such person, setting forth in detail a

statement of such alleged guilt, and, at the same time, or as soon thereafter as

possible, serve a true copy of such charges upon the person against whom they are

made…”.

      {¶70}   We note that a board of township trustees is the proper authority to file

charges initiating the procedure whereby a township fireman, including the fire chief,

may be removed, and it has the same authority in connection therewith that a municipal

legislative authority and executive have. 1957 Ohio Atty.Gen.Ops. No. 912.

      {¶71}   While appellant contends that he committed no act pursuant to such

section which would justify his termination, we disagree. Appellant admittedly made a

racially derogatory comment. While appellant argues that Dwayne Holiday and other

firefighters also made similar jokes, appellant was the Chief of the Fire Department and

set the tone and morale for the department as a whole. During the hearing, appellant

himself admitted that it was probably not appropriate for him, as the Acting Fire Chief, to

make the racial statements that he did.

      {¶72}   Appellant also argues that his termination was not supported by

competent and credible evidence and was arbitrary and capricious.

      {¶73}   Appellant, in the case sub judice, was found in violation of Sections

201.02, 201.03, 202.01, 313.02-10, 316 and 313.04-18 of the Pleasant Township

Policies and Procedures.
Fairfield County, Case No. 14-CA-6                                                        15


         {¶74}   Section 201.02 (Administrative Staff) states as follows: “Officers shall be

just, dignified, and firm in their dealings with subordinates, being careful to refrain from

violent, abusive, or immoderate language in giving orders and directions as well as in

conversations with subordinates or others.” Section 201.03 (Administrative Staff) states,

in relevant part, that “[o]fficers shall make certain that all rules, regulations, and orders

are strictly carried out and obeyed, and shall set an example to their subordinates in

showing due regard for such regulations and orders.”

         {¶75}   Section 202.01 provides that “[a]ll members of the fire department shall be

governed by the customary rules of good behavior observed by law-abiding and self-

respecting citizens. Conduct unbecoming of a fire service member shall not be

tolerated.”

         {¶76}   Section 313 concerns grounds for disciplinary action. Section 313.02

states, in relevant part, as follows: “GROUP 1 OFFENSES – In general, Group I

Offenses may be defined as those infractions which are of relativity minor nature and

which cause only minimal disruption to the organization in terms of a slight, yet

significant decrease in organization productivity, efficiency and/or morale.        Group I

Offenses, if left undisciplined by proper authority, will usually cause only a temporary

minor adverse impact against the organization unless such acts are compounded over

time.”

                       1st OFFENSE          Verbal Reprimand
                       2nd OFFENSE          Written Reprimand
                       3rd OFFENSE          One (1) day suspension without pay
                       4th OFFENSE          Three (3) day suspension without pay
                       5th OFFENSE          Termination
Fairfield County, Case No. 14-CA-6                                                       16


      {¶77}   “10. Malicious mischief, horseplay, wrestling or other undesirable conduct,

including use of profane or abusive language on duty or in uniform.”

      {¶78}   Section 313.04-18 provides that “[t]hreatening, intimidating, coercing,

interfering with, or verbally abusing a supervisor, the public, or other employees” is a

Group III Offense and that a first offense is punishable “[u]p to and including

termination.” Finally, Section 316 contains the Harassment Policy that prohibits racial

harassment. Section 316 states, in relevant part, as follows:

      {¶79}   “316.01 - To maintain a quality working environment for all employees or

potential employees of this department so that they may work free from intimidation,

humiliation, insult or subjected to offensive physical or verbal abuse or actions, direct or

insinuated, of a sexual, ethnic, racial or religious nature the Pleasant Township Fire

Department adopts the following order against all forms of sexual, ethnic, racial,

religious harassment or otherwise defined unwanted conduct.

      {¶80}   “316.02 - Sexual, ethnic, racial and religious harassment is an offense first

against this department and second an offense against the employee or group of

employees. Offense refer to physical, verbal or implied actions that have the purpose or

effect of creating a hostile, offensive or intimidating working environment or has an

ethnic, racial, religious or sexual basis, or both. Examples would include but are not

limited to: physical contact of sexual nature; sexual, racial, ethnic, or religious jokes,

comments, insults, audio/visual material, cartoons, innuendoes or personal conduct or

mannerisms that could be construed as offensive.”
Fairfield County, Case No. 14-CA-6                                                      17


      {¶81}   Such policy further provides, in Section 316.06, that anyone who violates

the same “will be subject to disciplinary action up to and including dismissal.” There is

no disciplinary step approach.

      {¶82}   We concur with appellee that appellant, who admitted to making a racial

joke while on duty, clearly violated Section 316. As is stated above, a violation of such

section in and of itself warranted immediate termination. While appellant argues that

Dwayne Holliday, the sole African –American employee, did not feel offended by such

joke, such section does not require a specific victim. We note that at the time appellant

made such statement, he was the Fire Chief and was on probation.

      {¶83}   We further find that appellant’s conduct was unbecoming and undignified

in violation of Sections 201.02 and 202.01 and also violated Section 313.02-10, which

prohibits “undesirable conduct.” Appellant also violated Section 201.03 by doing nothing

when firefighters made inappropriate comments in derogation of the rules.

      {¶84}   Based on the foregoing, we find that the trial court did not abuse its

discretion in determining the board of trustees’ decision to terminate appellant was

supported by competent and credible evidence and was not unconstitutional, illegal,

arbitrary, capricious or unreasonable.

      {¶85}   Appellant’s fifth, sixth, seventh, eighth and ninth assignments of error, are

therefore, overruled. Appellant’s tenth assignment of error is moot.

                                               XI

      {¶86}   Appellant, in his eleventh assignment of error, argues that the trial court

erred in failing to find that appellees violated both R.C. 505.38 and R.C. 733.35-37 in

their initial suspension of appellant.
Fairfield County, Case No. 14-CA-6                                                      18


      {¶87}   Appellant contends that appellees violated R.C. 505.38.        As is stated

above, to initiate removal of a firefighter, R.C. 505.38(A) provides that the trustees

should designate the fire chief or a private citizen to investigate the conduct and prepare

the necessary charges as directed by R.C. 733.35 to R.C. 733.39. Appellant maintains

that appellee did not appoint an investigator to investigate the charges against him until

June 24, 2013 and that his initial suspension on June 6, 2013, which he alleges was

before an investigation had begun, violated R.C. 505.38(A).

      {¶88}   However, appellant was not suspended on June 6, 2013. As the minutes

of the June 6, 2013 meeting of the Pleasant Township Board of Trustees show,

appellant, on such date, was placed on an indefinite paid administrative leave.

      {¶89}   Appellant also maintains that his suspension was in violation of R.C.

733.37. Such section states as follows: “Pending any proceedings under sections

733.35 and 733.36 of the Revised Code, an accused person may be suspended by a

majority vote of all members elected to the legislative authority of the municipal

corporation, but such suspension shall not be for a longer period than fifteen days,

unless the hearing of such charges is extended upon the application of the accused, in

which event the suspension shall not exceed thirty days.” Appellant argues that his

suspension began on June 6, 2013 and continued through the second week of August

and, therefore, was more than sixty days.

      {¶90}   However, appellant was not suspended on June 6, 2013 but rather was

suspended effective July 18, 2013 through August 1, 2013. At the August 1, 2013

hearing, appellant was placed on paid administrative leave. Therefore, there was no

violation of R.C. 733.37.
Fairfield County, Case No. 14-CA-6                                                        19


      {¶91}   Appellant’s eleventh assignment of error is, therefore, overruled.

                                                 XII

      {¶92}   Appellant, in his twelfth and final assignment of error, argues that the trial

court erred in failing to hold a hearing in this case pursuant to R.C. 2506.01, et seq.

      {¶93}   R.C. 2506.03 provides, in relevant part, as follows: “A) The hearing of an

appeal taken in relation to a final order, adjudication, or decision covered by division (A)

of section 2506.01 of the Revised Code shall proceed as in the trial of a civil action, but

the court shall be confined to the transcript filed under section 2506.02 of the Revised

Code unless it appears, on the face of that transcript or by affidavit filed by the

appellant, that one of the following applies:…

      {¶94}   “(5) The officer or body failed to file with the transcript conclusions of fact

supporting the final order, adjudication, or decision.

      {¶95}   “(B) If any circumstance described in divisions (A)(1) to (5) of this section

applies, the court shall hear the appeal upon the transcript and additional evidence as

may be introduced by any party. At the hearing, any party may call, as if on cross-

examination, any witness who previously gave testimony in opposition to that party.”

      {¶96}   In the case sub judice, the trial court, in a Nunc Pro Tunc Entry filed on

October 17, 2013, ordered that appellant’s brief was due on or before November 1,

2013, appellees’ brief was due on or before November 22, 2013 and appellant’s reply

brief was due on or before November 29, 2013. The trial court stated that the matter

“shall come or for review and decision on December 6, 2013.”

      {¶97}   On December 6, 2013, appellant filed a motion asking that the trial court

conduct a hearing in accordance with R.C. 2506.01-02. Appellant, in his motion, argued
Fairfield County, Case No. 14-CA-6                                                          20


that no conclusions of fact were filed by appellee Township supporting the order to

terminate appellant and that, therefore, the trial court was required to hear the appeal

based not only on the transcript, but also upon additional evidence.

      {¶98}    We find that the trial court did not err in failing to hold a hearing. Appellant

filed his motion requesting the same on December 6, 2013, which was the date

established by the trial court as the day a decision would be made. The transcript in this

matter was filed on October 10, 2013, nearly two months before, and the briefs had all

been filed. As noted by appellees, prior to the December 6, 2013 decision date,

appellant never requested a hearing. We find that appellant’s request was untimely.

      {¶99}    Appellant’s twelfth assignment of error is, therefore, overruled.

      {¶100} Accordingly, the judgment of the Fairfield County Court of Common Pleas

is affirmed.


By: Baldwin, J.

Hoffman, P.J. and

Wise, J. concur.
