[Cite as Tell v. Cleveland, 2020-Ohio-3115.]


                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


WILLIAM TELL,                                        :

                 Plaintiff-Appellant,                :
                                                               No. 108137
                 v.                                  :

CITY OF CLEVELAND,                                   :

                 Defendant-Appellee.                 :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: May 28, 2020


             Civil Appeal from the Cuyahoga County Court of Common Pleas
                                 Case No. CV-15-838323


                                               Appearances:

                 Samuel R. Smith II, for appellant.

                 Zashin & Rich, Co., L.P.A., Jon M. Dileno, and Ami J.
                 Patel, for appellee.


FRANK D. CELEBREZZE, JR., P.J.:

                Plaintiff-appellant, William Tell (“appellant”), brings the instant appeal

challenging the trial court’s judgment upholding the decision of the Civil Service

Commission (“Commission”) terminating his employment with the defendant-

appellee, the city of Cleveland (“City”). Appellant argues that the City did not have
just cause to terminate his employment and that the trial court erred in upholding

his termination. After a thorough review of the record and law, this court affirms.

                         I. Factual and Procedural History

             Appellant was employed as the security manager1 for the City’s

Department of Public Utilities since 2001. As security manager, appellant was

responsible for the security of several public utility facilities, including four of the

City’s water treatment facilities that are the subject of the instant appeal. Appellant

supervised approximately 55 security guards, some of whom were stationed at these

water treatment facilities.

             On October 16, 2012, appellant was issued a three-day suspension as a

result of a security failure at the Kirtland Pump Station (“Kirtland”) located on

Cleveland’s near east side. The main gate at Kirtland was not working properly, and

the gate had apparently been propped open since June 2012. Appellant was aware

of the issue with the gate as of June 21, 2012. Appellant failed to ensure that security

guards were staffed at the gate, and cameras positioned throughout the premises

were not functioning.

             On September 11, 2012, a local television news station’s investigative

reporter was able to gain access into the Kirtland facility through this

malfunctioning gate. The reporter walked around the premises, attempted to open




      1 The parties’ briefs also refer to appellant’s position as “Chief of Security” and
“Chief of Police.” Appellant’s official position was Chief of the Public Utilities Police
Division.
doors, and made “hand waving” gestures to the cameras. This reporter’s efforts were

filmed and later aired on local television.

             As a result of the incident involving the investigative reporter, appellant

was later suspended for three days because he failed to take any action with regard

to the gate, did not place a security guard at the gate, and did not advise his

management of the condition of the gate. As part of appellant’s job duties and

responsibilities, appellant was to draft a bimonthly report to his supervisor detailing

security issues. Appellant completed his bimonthly reports during this timeframe,

but he failed to mention the malfunctioning gate at the Kirtland facility in his

reports.

             On May 24, 2013, a dump truck was exiting the Garret Morgan Water

Treatment Plant (“Morgan”) through a gate on West 49th Street. The dump truck

drove through the exit as the gate was closing. The dump truck damaged the gate,

ripping the gate from its moorings. Appellant ordered the gate to be remedied with

traffic cones and caution tape. Appellant again failed to notify his supervisors of this

damaged gate.

             On June 3, 2013, the same investigative reporter filmed the damaged

gate at the Morgan facility. This reporter also contacted appellant’s supervisor and

inquired as to the damaged gate. In his May 29, 2013 bimonthly report to his

supervisor, appellant failed to mention the damaged gate at the Morgan facility.

             As a result of the incident at the Morgan facility, appellant was charged

with violations of Civil Service Rule 9.10(1) “neglect of duty”; (3) “incompetence or
inefficiency in performance of duties”; and (18) “other failure of good behavior

which is detrimental to the service or any other act of misfeasance, malfeasance or

nonfeasance in office.” After appellant was charged with the violations, he was

terminated from his position as security manager on July 10, 2013. On July 11, 2013,

appellant sent a notice of appeal of his termination to Cleveland’s Civil Service

Commission.

             A three-day hearing was held on July 9, 10, and 11, 2014, in front of a

referee. The referee issued an opinion on September 11, 2014, recommending that

the City’s termination of appellant be upheld. The City adopted the referee’s

recommendation, and appellant filed an appeal to the Commission.

              On November 14, 2014, both appellant and the City presented

arguments to the Commission. The Commission upheld the City’s decision to

terminate appellant on December 15, 2014.

              On January 2, 2015, appellant filed a notice of appeal of the

Commission’s decision to the Cuyahoga County Court of Common Pleas pursuant to

R.C. Chapter 2506. The trial court set a briefing schedule for the parties to file their

respective briefs. Appellant filed his brief on May 11, 2015. Therein, appellant

argued that his termination should be modified to “suspension with appropriate

back wages and attorney’s fees because the City’s decision is unconstitutional,

arbitrary and capricious and not based upon reliable probative and substantial

evidence.”
               The City filed its answer brief on June 11, 2015. Therein, the City

argued that the Commission’s decision and appellant’s termination should be

affirmed.

               More than two years after he filed his brief, appellant filed a motion to

introduce new evidence on September 18, 2017. Appellant sought to introduce

photographic evidence that he argued demonstrated that the City was continuing to

utilize the security measures that resulted in his termination. On September 25,

2017, the City filed its brief in opposition to appellant’s motion to introduce new

evidence. On November 21, 2018, the trial court issued a judgment entry denying

appellant’s motion to introduce new evidence.

               On December 27, 2018, appellant filed a supplemental motion to

introduce new evidence.        Appellant again sought to introduce photographic

evidence that he argued demonstrated that the City was continuing to utilize the

security measures that resulted in his termination. The trial court did not rule on

this motion.

               On the same day, December 27, 2018, the trial court issued a judgment

entry upholding the decision of the Commission. The trial court’s judgment entry

provided, in relevant part,

      Appellant, in his capacity as the [City’s] Chief of Security for the Public
      Utilities Department, was responsible for security at a number of public
      utilities facilities, including the City’s four water treatment plants. In
      September 2012, the City learned that appellant left the Kirtland Water
      Facility’s entrance gate open and unmanned by a security guard.
      Appellant was suspended for three days and was re-informed of his
      security responsibilities to staff a guard at open gates and to notify his
      superiors of security vulnerabilities. In June 2013, the City learned that
      the gate at the [Morgan facility] was missing and there was no guard
      present.

      The City charged appellant with violations of Civil Service Rule 9.10(1)
      neglect of duty, (3) incompetence or inefficiency in performance of
      duties, and (18) for other failure of good behavior. Appellant received
      notice of these charges and was given the opportunity to respond. The
      City terminated appellant. Appellant then appealed his termination
      and was provided a three-day hearing. After reviewing the evidence,
      the decision to terminate appellant was upheld. Appellant then
      appealed to the Cleveland Civil Service Commission. The Commission
      held a hearing and upheld the ruling.

      Accordingly, the court finds that the decision of the commission is not
      unconstitutional, illegal, arbitrary, capricious, unreasonable, nor
      unsupported by the preponderance of substantial, reliable, and
      probative evidence on the whole record. There is no just cause for
      delay.

             On January 22, 2019, appellant filed the instant appeal challenging

the trial court’s judgment. Appellant assigns two errors for review:

      I. The trial court improperly denied appellant’s administrative agency
      appeal because its decision — finding that no police officer was
      stationed at the water plant which was the basis of the improper
      termination of [appellant] — was clearly erroneous and contrary to the
      evidence in the record that there was an officer stationed at the water
      plant and not unmanned as the court’s order states.

      II. The trial court improperly denied appellant’s administrative agency
      appeal because the City’s decision to terminate was arbitrary and
      capricious and not based on reliable probative or substantial evidence.

                                II. Law and Analysis

              Appellant’s first and second assignments of error and the arguments

raised therein are interrelated. Accordingly, we will address his second assignment
of error first.   Appellant challenges the trial court’s judgment upholding the

Commission’s decision and his termination.

                            A. Standard of Review

              Trial courts and appellate courts apply different standards of review

to appeals brought pursuant to R.C. Chapter 2506. R.C. 2506.04 provides that if a

party appeals an administrative decision, the trial 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.” R.C. 2506.04 further provides that the

trial court’s judgment “may be appealed by any party on questions of law.”

              The Ohio Supreme Court has explained this distinction as follows:

      [W]e 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. See Smith v. Granville Twp. Bd. of Trustees, [81
      Ohio St.3d 608, 612, 693 N.E.2d 219 (1998)], citing Dudukovich v.
      Lorain Metro. Hous. Auth., 58 Ohio St.2d 202, 206-207, 389 N.E.2d
      1113 (1979) * * *.

Henley v. Youngstown Bd. of Zoning Appeals, 90 Ohio St.3d 142, 147, 735 N.E.2d

433 (2000).

              “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 deleted.) Id., quoting

Kisil v. Sandusky, 12 Ohio St.3d 30, 34, 465 N.E.2d 848 (1984). In this way,
R.C. 2506.04 limits the ability of the appellate courts to review the trial court’s

judgment “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 trial court.” Id., quoting Kisil at fn. 4.

       “It is incumbent on the trial court to examine the evidence. Such is not
       the charge of the appellate court. * * * The fact that the court of appeals
       * * * 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.”

Henley at 147, quoting Lorain City School Dist. Bd. of Edn. v. State Emp. Relations

Bd., 40 Ohio St.3d 257, 261, 533 N.E.2d 264 (1988).

               As such, our limited review “permits reversal only when the [trial

court] errs in its application or interpretation of the law or its decision is

unsupported by a preponderance of the evidence as a matter of law.” Cleveland

Clinic Found. v. Cleveland Bd. of Zoning Appeals, 141 Ohio St.3d 318, 2014-Ohio-

4809, 23 N.E.3d 1161, ¶ 30.

                                    B. Due Process

                In his second assignment of error, appellant argues that the trial court

erred in affirming the Commission’s decision upholding his termination because the

City violated his due process rights. Specifically, appellant argues that he was not

afforded a meaningful opportunity to be heard during his post-termination review

hearing.
              As an initial matter, we note that appellant, as a public employee, had

a property right in continued employment. This right is protected by the Due

Process Clause of the Fourteenth Amendment. Cleveland Bd. of Edn. v. Loudermill,

470 U.S. 532, 538-539, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). As such, appellant

was afforded certain pretermination rights.      In Loudermill, the United States

Supreme Court set forth the following procedural requirements for the

pretermination hearing of a public employee:

      The essential requirements of due process * * * are notice and an
      opportunity to respond. The opportunity to present reasons, either in
      person or in writing, why proposed action should not be taken is a
      fundamental due process requirement. * * * The tenured public
      employee is entitled to oral or written notice of the charges against him,
      an explanation of the employer’s evidence, and an opportunity to
      present his side of the story.

Id. at 546. “Although due process requires a pretermination opportunity to be

heard, an evidentiary hearing is not required before termination of employment as

long as the employee receives a full administrative hearing and judicial review after

termination.” Card v. Cleveland, 2017-Ohio-7173, 95 N.E.3d 1066, ¶ 19 (8th Dist.),

citing Washington v. Cleveland Civ. Serv. Comm., 8th Dist. Cuyahoga No. 94596,

2010-Ohio-5608, ¶ 29.

              In the instant matter, appellant argues that he was denied his post-

termination due process rights. Appellant specifically takes issue with the testimony

of Paul Bender, Director of the Public Utilities, that the City presented during the

referee’s July 2014 hearings.
              As security manager, appellant reported directly to an assistant

director. The assistant director reported directly to Bender. The ultimate decision

to terminate appellant on July 10, 2013, was made by Bender.

              Appellant appealed Bender’s decision to the referee. The referee in

turn makes a recommendation to Bender to either terminate or not terminate an

employee. After the referee makes his or her recommendation to Bender, Bender

thereafter makes a determination. Bender’s determination can then be appealed to

the Commission, which appellant did in this case.

              During the July 2014 hearings before the referee, Bender testified on

cross-examination that no subsequent evidence could be introduced that would

change his mind about his decision to terminate appellant. Bender stated, “no, I

wouldn’t [put appellant] back to work based on a recommendation” from the

referee. (Tr. 277.) Appellant’s counsel then asked Bender, “[i]s there nothing that

the [r]eferee’s recommendation or report can say to you that would change your

decision about the termination[?]” (Tr. 277.) Bender then responded,

      Well, I don’t know that until I see what comes out of it. But if — failure
      to station an officer in this case and insisting that that’s the appropriate
      course of action, is a different position that I hold and that Public
      Utilities holds. So it’s happened twice and anybody in this position, not
      just needs to say, okay, I disagree with that, but I’ll follow it, it needs to
      be a person who endorses that approach.

      ***

      No, I wouldn’t bring [appellant] back to work because he holds a
      different view of that issue. Now, a recommendation that comes up
      with some different ideas of why [appellant] was terminated, I’d have
      to see what that is, but I can’t imagine. If it’s a recommendation, that I
      would follow, but change my mind —

      ***

      I wouldn’t change my mind, no, I wouldn’t change my mind.

      There are appeal decisions that have more authority than me and then
      I follow those.

(Tr. 278.)

              After reviewing the record, we fail to see how Bender’s testimony in

any way deprived appellant of his post-termination due process rights. The record

reflects that appellant was afforded post-termination due process to the fullest

possible extent.

              Appellant appealed his initial termination to the referee, and was

afforded a three-day hearing at which he was represented by counsel. During the

referee’s proceedings, appellant was afforded ample opportunity to cross-examine

the witnesses presented by the City, including Bender.

              Bender’s statement implying that “nothing would change his mind”

about his decision to terminate appellant is not relevant to determining whether or

not appellant was afforded his essential post-termination due process rights —

notice and an opportunity to respond. Therefore, to the extent that appellant argues

that his due process rights were violated because he was not afforded a meaningful

opportunity to be heard during his post-termination review hearing, we do not agree

with appellant’s categorization and find appellant’s argument to be misplaced.

              Appellant’s second assignment of error is overruled.
              C. Reliable, Probative, and Substantial Evidence

               In his first assignment of error, appellant argues that Bender’s

decision to terminate him was based on incorrect facts, and that Bender essentially

ignored certain facts. Additionally, appellant argues in his second assignment of

error that there was no just cause for his termination, and as a result, the trial court’s

decision to uphold his termination was not based on reliable, probative, or

substantial evidence.

               First, to the extent that appellant argues that Bender based his

decision to terminate him on incorrect facts, we simply do not agree. Appellant

argues that there was a security guard at the Morgan facility. However, this security

guard was not stationed at the damaged gate located on the West 49th Street exit.

The security guard referenced by appellant was stationed at a different entrance gate

at the Morgan facility.

               Appellant was terminated because he failed to station a security guard

at the damaged gate and failed to notify his supervisors of the damaged gate. At the

referee hearing, Bender asserted that he terminated appellant because of the

“significance of the issue.” (Tr. 270.) Further, Bender stated that appellant failed to

place a security guard at the Morgan facility gate after it was damaged. Bender

explained that appellant’s solution for the damaged gate was to have a security guard

keep the damaged gate under surveillance. Bender testified that the security guard

who was tasked with surveilling the damaged gate was stationed at another entrance
gate, far from and out of sight of the damaged gate. Bender found appellant’s

solution to be inadequate. Bender stated,

      Our water plants — I guess there are two issues with securing water
      plants. One is just the public confidence in the drinking water supply.
      We have to — our customers need to know that the facilities are secure
      because they rely on the water from those operations.

      Secondly, the very real possibility that people can actually get in. Since
      September 11, there’s been a huge number of changes. Everybody
      knows nationally what has been done. We’ve done the same kinds of
      things. Access to water treatment facilities, I’ve been involved with the
      Washington [D.C.] Water and Sewer Authority, tremendous amount of
      upgrades and security, physical security. Certainly technology has been
      added, but the primary method we used in [D.C.] and was certainly the
      expectation here too was that we need fencing. We need ways to keep
      people out and people, security officers, that are securing these
      facilities. So, that was the expectation. And then this was the second
      time.

      What went through my mind was how many — well, the other element
      here was [appellant] was insistent, and I believe to this day is insistent,
      that he disagrees that physical security is necessary in this case.

(Tr. 270-271.) The Morgan incident was appellant’s second infraction. Appellant

failed to notify his supervisors of both the Kirtland and Morgan incidents.

Appellant’s supervisors only became aware of each incident from the stories aired

by the investigative reporter.

               In challenging the evidence based upon which he was terminated,

appellant argues that there was no written policy mandating that appellant had to

report the broken gates to a supervisor. Without a written policy mandating him to

report the gate issues, appellant contends, there was no just cause for his

termination.
              In support of his argument that there was no just cause for his

termination, appellant directs this court’s attention to Cummings v. Cleveland, 8th

Dist. Cuyahoga No. 99200, 2013-Ohio-2541. In Cummings, this court reversed a

trial court’s decision upholding a city of Cleveland employee’s termination. This

court noted that Cleveland’s reason for termination — the employee’s failure to turn

in a permission form to work a secondary job — was insignificant because the

employee had worked for Cleveland for 13 years, had received permission to work

the secondary job in the past, and would have been granted permission again to

work the job if he had turned in the form. Id. at ¶ 15. This court further noted that

“[t]here was also no evidence that there was a formal written policy stating that if an

employee failed to receive permission to work a secondary job, he or she would be

discharged.” Id. at ¶ 14. Cleveland only presented evidence that it sent out

memoranda reminding employees “to submit their permission forms, but nowhere

does the reminder state that the employees would be subject to discharge for failing

to do so.” Id. As such, this court found that the trial court abused its discretion by

affirming the employee’s termination because the trial court’s decision was not

supported by a preponderance of reliable, probative, and substantial evidence. Id.

at ¶ 15.

              We fail to see how the fact that there was no written policy requiring

appellant to report a damaged gate supports appellant’s contention that the trial

court’s decision was not based on reliable, probative, and substantial evidence. After

reviewing the record, it is evident that appellant, as Chief of the Public Utilities
Police Division, was required to send reports to his supervisor detailing major

incidents and highlighting achievements. Appellant failed to notify his supervisor

of the Kirtland facility and Morgan facility damaged gates. Further, appellant’s

supervisors were made aware of the Kirtland and Morgan incidents only after the

investigative news stories were broadcasted.

              In the instant matter, and unlike Cummings, appellant failed to staff

a guard at the damaged gates and also failed to notify his supervisors of the severity

of the damaged gate. Even if there was a written policy that required appellant to

report a damaged gate to his supervisors, the fact remains that appellant did not

staff the damaged gate with a security guard. Also unlike Cummings, appellant

previously received a three-day suspension for failing to staff a security guard at a

damaged gate at Kirtland. After the Kirtland facility incident, appellant was made

aware that his failure to staff a security guard at the damaged gate was an inadequate

security measure and would result in discipline. It appears from our reading of the

record, that this fact alone — that a security guard was not placed at the damaged

gate — would have been a sufficient reason to terminate appellant.

              Finally, to the extent that appellant argues that termination was not

an appropriate measure of discipline because a similarly situated employee was not

terminated and only received a one-day suspension, appellant fails to develop this

argument by pointing to evidence in the record or citation to any authority. See

App.R. 16(A)(7). Furthermore, as noted above, appellant’s “similarly situated”
assertion is misplaced based on the limited scope of the standard of review this court

applies in an R.C. 2506.04 appeal.

                For all of the foregoing reasons, appellant’s first assignment of error

is overruled.

                                   III. Conclusion

                After thoroughly reviewing the record, we affirm the trial court’s

judgment upholding the Commission’s decision and appellant’s termination. The

trial court’s judgment is supported by a preponderance of substantial, reliable, and

probative evidence in the record. Accordingly, we are unable to conclude that the

trial court’s decision is unreasonable, arbitrary, or unconscionable.

                Judgment affirmed.

      It is ordered that appellee recover from appellant 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.


______________________________________
FRANK D. CELEBREZZE, JR., PRESIDING JUDGE

KATHLEEN ANN KEOUGH, J., and
EILEEN A. GALLAGHER, J., CONCUR
