Jones v. Franklin County Sheriff

555 N.E.2d 940, 52 Ohio St. 3d 40, 1990 Ohio LEXIS 256
CourtOhio Supreme Court
DecidedJune 20, 1990
DocketNo. 89-125
StatusPublished
Cited by56 cases

This text of 555 N.E.2d 940 (Jones v. Franklin County Sheriff) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jones v. Franklin County Sheriff, 555 N.E.2d 940, 52 Ohio St. 3d 40, 1990 Ohio LEXIS 256 (Ohio 1990).

Opinions

Wright, J.

This case raises two issues. First, is a police officer guilty of conduct unbecoming an officer while off duty when he or she is a party to what amounts to vigilante activity which is clearly outside the scope of her official job duties? Second, must a police officer answer questions that relate specifically and narrowly to the performance of her official duties when the questions are asked in an Internal Affairs Division hearing and when the officer is guaranteed that the answers cannot be used against her in any subsequent criminal prosecution?

We answer both questions in the affirmative. For the reasons stated below, we reverse the court of appeals and reinstate the ruling of the common pleas court affirming appellee’s removal of Jones as a deputy sheriff.

I

One of the most serious disciplinary charges that the Franklin County Sheriff brought against Deputy Jones was for conduct unbecoming an officer in participating in the January 9, 1986 search for Matfield’s stolen purse. Franklin County Sheriff’s Department Reg. 102.40.1 applies to this charge:

“Conduct unbecoming department personnel will include that which brings the department into disrepute or reflects discredit upon the individual as a member of the department, or [43]*43that which impairs the operation or efficiency of the department or the individual.”

After conducting a full evidentiary hearing, the ALJ concluded in his eighteen-page report and recommendation that the sheriffs department had established by greater than a preponderance of the evidence that Jones’s conduct on January 9, 1986 was unbecoming a deputy sheriff. The ALJ determined that Jones’s “* * * callous disregard for proper policy procedures; her assistance to her sister in taking the law into their own hands in an attempt to get a purse back; and her failure to take any of the many opportunities to stop her sister from continuing in this course of conduct reflects badly upon herself and the Sheriff’s Department.”

The court of appeals was correct in stating the general rule that the SPBR has the authority to modify the judgment of an appointing authority where it acts arbitrarily, unreasonably, or unlawfully or where its decision is improper or unnecessary. See R.C. 124.34; State, ex rel. Ogan, v. Teater (1978), 54 Ohio St. 2d 235, 8 O.O. 3d 217, 375 N.E. 2d 1233. However, we have also held “* * * that due deference must be accorded to the findings and recommendation of the referee * * *, especially where there exist evidentiary conflicts, because it is the referee who is best able to observe the demeanor of the witnesses and weigh their credibility. See, generally, * * * Seasons Coal Co. v. Cleveland (1984), 10 Ohio St. 3d 77, 10 OBR 408, 461 N.E. 2d 1273.” Graziano v. Amherst Exempted Village Bd. of Edn. (1987) , 32 Ohio St. 3d 289, 293, 513 N.E. 2d 282, 285, followed in Aldridge v. Huntington Local Dist. Bd. of Edn. (1988) , 38 Ohio St. 3d 154, 157, 527 N.E. 2d 291, 293. In this particular instance, the SPBR stated that it based its rejection of the ALJ’s recommendation to remove Jones on its review of the ALJ’s “Report and Recommendation,” with no mention of the record. After a more extensive “review of the entire record,” Judge Thompson found the SPBR’s decision to be “* * * inconsistent with the evidence presented to the hearing officer * * *.” The due deference standard enunciated in Graziano, supra, requires the reviewing authority to conduct this more extensive review of the entire record. Aldridge, supra, at 158, 527 N.E. 2d at 294. Because Judge Thompson’s review and decision are in accord with our holding in Graziano, supra, we reinstate the trial court’s decision.

As the common pleas court correctly stated, it is settled public policy “* * * that police officers are held to a higher standard of conduct than the general public.” See In re Bronkar (1977), 53 Ohio Misc. 13, 7 O.O. 3d 261, 372 N.E. 2d 1345; Kelley v. Johnson (1976), 425 U.S. 238. Law enforcement officials carry upon their shoulders the cloak of authority of the state. For them to command the respect of the public, it is necessary then for these officers even when off duty to comport themselves in a manner that brings credit, not disrespect, upon their department. Since a fair-minded review of the entire record indisputably reveals that Deputy Jones’s vigilante activities could not bring anything but disrepute upon the sheriff’s department, Judge Thompson was correct in reversing the SPBR’s order and in affirming the removal of Jones.

II

At the January 14, 1986 IAD interview, Deputy Jones refused to answer questions in an investigation of her conduct. Jones was informed that any evidence or information obtained from the interview could not be used against her in a subsequent criminal pro[44]*44ceeding, pursuant to a sheriffs department policy and collective bargaining agreement, and pursuant to the United States Supreme Court holding in Garrity v. New Jersey (1967), 385 U.S. 493. See, also, Lefkowitz v. Cunningham (1977), 431 U.S. 801; Lefkowitz.v. Turley (1973), 414 U.S. 70; Gardner v. Broderick (1968), 392 U.S. 273; Uniformed Sanitation Men Assn., Inc. v. Commr. of Sanitation (1968), 392 U.S. 280.

The United States Supreme Court has consistently held that a public employee may not be forced to choose between making incriminating statements and facing dismissal, since such a choice would effectively negate the Fifth Amendment privilege against self-incrimination. D’Acquisto v. Washington (N.D. Ill. 1986), 640 F. Supp. 594, 622, citing Lefkowitz v. Cunningham, supra; Gardner v. Broderick, supra. Yet, public employees can be required to answer potentially incriminating questions, so long as they are not asked to surrender their constitutional privilege against self-incrimination. Lefkowitz v. Cunningham, supra, at 806, citing Gardner v. Broderick, supra, at 278-279.

The privilege against self-incrimination is preserved because a statement by investigators that nothing said at the hearing can be used at a subsequent criminal proceeding effectively immunizes that testimony from later use by a prosecutor. Since use of these statements by the prosecution is barred, by definition no statement made in the hearing can be incriminatory. Thus, it has been held that the employee must answer these specific, narrowly tailored questions or face a possible dismissal for insubordination. Gardner v. Broderick, supra; Erwin v. Price (C.A.11, 1985), 778 F. 2d 668; Donohoe v. Franklin Cty. Sheriff (June 7, 1988), Franklin App. No. 87AP-648, unreported; Hobbie v. Medina (1985), 29 Ohio App. 3d 306, 29 OBR 405, 505 N.E. 2d 276.

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Bluebook (online)
555 N.E.2d 940, 52 Ohio St. 3d 40, 1990 Ohio LEXIS 256, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-franklin-county-sheriff-ohio-1990.