598 N.E.2d 933
No. A-9106983.Court of Common Pleas, Hamilton County.
Decided March 19, 1992.
Page 365
Mark C. Vollman, Assistant City Solicitor, for appellants.
John H. Burlew, for appellee.
ANN MARIE TRACEY, Judge.
This matter is before the court pursuant to a notice of appeal filed on August 9, 1991 in this court from the decision of the Cincinnati Civil Service Commission (“civil service commission”) filed July 25, 1991. The city of Cincinnati (“city”) appeals the decision of the civil service commission ordering the city to reinstate appellee Rolando Underwood (“Underwood”) as a police recruit. This appeal is brought pursuant to R.C. 124.34 and R.C. Chapters 2505 and 2506.
On February 1, 1990, the city suspended appellee Underwood from the city’s Police Recruit Program as a result of an incident which occurred on January 31, 1990. He was dismissed as a police recruit for failure of good behavior by virtue of his possession of a weapon that was not authorized pursuant to the rules and regulations pertaining to Cincinnati police officers and police recruits. Criminal charges were also filed against Underwood pursuant to R.C. 2923.12 and 2923.16.
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On February 5, 1990, a division level disciplinary hearing was held. As a result of the hearing, Underwood was dismissed from the Police Recruit Program on March 15, 1990. On June 26, 1990, the court of common pleas found Underwood guilty of carrying a concealed weapon, a felony. This determination was reversed by the First District Court of Appeals on May 24, 1991. A motion for leave to appeal was subsequently denied by the Ohio Supreme Court. See (1991), 62 Ohio St.3d 1439, 579 N.E.2d 212.
On July 25, 1991, the civil service commission issued its findings after convening to hear the appeal of Underwood on the charge of failure of good behavior. The commission found Underwood not guilty of failure of good behavior and ordered the city to reinstate Underwood as a police recruit. It is from this determination that the city now appeals.
R.C. 2506.04 provides the standard of review the common pleas court must use in such administrative appeals. It provides, in pertinent part:
“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.”
R.C. 2506.04 does not restrict the review of this court to the specific findings in determining whether the particular charge was supported by a preponderance of the evidence; rather, the court applies the law to the evidence presented to the administrative body. See Harvey v. Cincinnati Civ. Serv. Comm.
(1985), 27 Ohio App.3d 304, 27 OBR 360, 501 N.E.2d 39. The court in undertaking this review must give “due deference” to the administrative agency’s resolution of evidentiary concepts Id., citing Univ. of Cincinnati v. Conrad (1980) 63 Ohio St.2d 108, 17 O.O.3d 65, 407 N.E.2d 1265. The court must thus examine whether there is substantial, reliable, probative evidence to support the finding of not guilty of failure of good behavior Dudukovich v. Lorain Metro. Hous. Auth. (1979), 58 Ohio St.2d 202, 207, 12 O.O.3d 198, 201, 389 N.E.2d 1113, 1117; Henry’s Cafe, Inc. v. Bd. of Liquor Control (1959), 170 Ohio St. 233, 10 O.O.2d 177, 163 N.E.2d 678.
The only issue before the commission was whether there was a failure of good behavior on the part of Underwood based on his alleged violation of the Rules and Regulations of the Cincinnati Police Division, specifically, Sections 1.01, 1.02, and 1.04. The conduct that forms the bases of the specification is that on January 31, 1990, Underwood had a loaded Beretta 9
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mm. pistol under the front seat of his vehicle. The parties agree that the rules are applicable to Underwood in his status as a police recruit. These rules provide:
“1.01. A member shall conduct themselves [sic] at all times in such a manner as to reflect most favorably on the Division. Conduct unbecoming a member shall include that which brings the Division into disrepute or reflects discredit upon the member as a representative of the Division, or that which impairs the operation or efficiency of the Division, or that which impairs the operation or efficiency of the Division or its members. Such offenses need not be specifically defined or set forth in this manual.”
“1.02. A member shall not commit any acts or omit any acts which constitute a violation of any of the rules, regulations, procedures, directives, or orders of the Division.”
“1.04. A member shall obey all laws and ordinances.
“To wit:
“2923.12 carrying concealed weapon
“* * *
“2923.16B Improperly handling firearms in a motor vehicle.”
In connection with Section 1.04, although Underwood was charged with carrying a concealed weapon and subsequently convicted, that conviction was reversed by the First District Court of Appeals in (May 24, 1991), No. C-900661, unreported. The court found:
“Wherefore, the defendant-appellant’s single assignment of error is well taken as we determine that the evidence of record establishes the affirmative defense contained in R.C. 2923.12(C)(2). Moreover, we determine that the facts adduced failed to demonstrate that the concealed weapon was `ready at hand’ or could be readily picked up and used by the defendant-appellant.”
While it is a basis of the specification, Underwood was not criminally convicted of improper handling firearms in a motor vehicle, in violation of R.C. 2923.16(B). Moreover, the affirmative defense in R.C. 2923.12(C)(2), which the court of appeals found was established, applies also to R.C. 2923.16(B). R.C. 2923.16(E). Consequently, the alleged violation of Section 1.04 has been legally resolved by the court of appeals in favor of the appellant, which resolution was cited by the commission in its decision. The commission stated in its finding that “the Commission rules in accordance with the decision of the Court of Appeals that, accordingly, we find the appellant not guilty of Failure of Good Behavior.”
The remaining police rules and regulations at issue here, Sections 1.02 and 1.03, relate to the “Conditions for carrying a personally owned sidearm” and
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Underwood’s having a loaded weapon in his vehicle under the front seat. These are found in the police regulations at Section 12.025(C). The two requirements it is claimed Underwood violated are found at (C)(1) and (C)(6). (C)(1) provides that a “personally owned sidearm must be approved by the Range Master.” (C)(6) provides:
“Final approval to carry a personally owned sidearm will be given by the Police Chief. Unless otherwise specified, only the following sidearms will be considered for approval:
“Manufacturer: Smith Wesson, Colt, Ruger and Dan Wesson “Type: Revolver “Caliber: .38 Special or .357 Magnum “Barrel Length: 2 inches to 4 inches “Shots: 5 or 6”
The city asserts that Underwood neither sought nor received approval to carry a personally owned sidearm as required by the police rules and regulations and that, further, the type of revolver he carried, a loaded Beretta 9 mm. pistol, is not one of the sidearms that would be considered for approval under Section 12.025(C)(6) of the police rules and regulations. The city also asserts Underwood failed to obtain approval for the ammunition, also required by Section 12.025(C)(6).
The evidence was presented at the hearing by stipulation between the parties as to the events occurring on the day in question. The evidence established that Underwood’s supervisor, Sgt. Greg Brown, confronted Underwood and asked him about a gun, at which time Underwood gave his permission to search his vehicle. In Underwood’s car, Sgt. Brown found a 9 mm. Beretta semi-automatic fully loaded and fully operational pistol under the front seat of his car. It is agreed that Underwood had not received prior authorization for carrying the gun from the police department. It is also undisputed that Underwood claimed that the gun was in his vehicle because of threats against his life, arising from his position as a corrections officer, and that, in fact, he had recently filed two criminal warrants in connection with these threats.
The rules in question prohibit the “carrying” of a sidearm. Similarly, the Revised Code section with which Underwood was charged precludes having a concealed weapon “ready at hand.” The specification does not charge, except as it relates to improper handling of a firearm in a vehicle as prosecuted by R.C. 2923.16(B), that Underwood “carried” a firearm. Section 2, Rule 17 of the civil service commission rules provides:
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“The Commission shall hear evidence upon the charges and specifications as filed with it by the appointing authority. No material amendments of or additions to said charges or specifications will be considered by the Commission.” (Emphasis added.)
This rule clearly limits the scope of the commission’s evidentiary hearing: it is to be on the charges and specifications as filed with it by the appointing authority. Here the conduct alleged in the specification relates only that Underwood had an unauthorized loaded firearm under the front seat of his vehicle on January 31, 1990. The court of appeals found that Underwood did not have this weapon “ready at hand.” For the same reasons articulated by the court of appeals, there is reliable, credible and substantial evidence in the record to support the commission’s conclusion that Underwood had not violated the regulation with respect to “carrying” an unauthorized sidearm.
Moreover, in adopting the findings of the court of appeals, the commission specifically referenced its determination that Underwood had established the affirmative defense contained in R.C. 2923.12(C)(2) to wit: “The weapon was carried or kept ready at hand by the actor for defensive purposes, while he was engaged in a lawful activity, and had reasonable cause to fear a criminal attack upon himself or a member of his family, or upon his home, such as would justify a prudent man in going armed.” From this the commission could reasonably conclude that there was not a failure of good behavior on the part of Underwood.
The court therefore finds that the commission’s order is supported by reliable, probative and substantial evidence and is not unconstitutional, illegal, arbitrary, capricious or unreasonable. The court finds that the commission’s decision was correct and affirms the commission’s decision.
So ordered.
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