Royse v. City of Dayton

2011 Ohio 3509, 958 N.E.2d 994, 195 Ohio App. 3d 81
CourtOhio Court of Appeals
DecidedJuly 15, 2011
Docket24172
StatusPublished
Cited by21 cases

This text of 2011 Ohio 3509 (Royse v. City of Dayton) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Royse v. City of Dayton, 2011 Ohio 3509, 958 N.E.2d 994, 195 Ohio App. 3d 81 (Ohio Ct. App. 2011).

Opinions

Grady, Presiding Judge.

{¶ 1} Plaintiff, Ronald Royse, appeals from an order of the court of common pleas affirming the decision of the Civil Service Board of the city of Dayton.

{¶ 2} Royse was employed by the Dayton Fire Department for 14 years. On May 14, 2007, he submitted to a random drug screen pursuant to the collective-bargaining agreement between the city of Dayton and the International Association of Firefighters, Local 136 AFC-CIO. The test results were positive for cocaine. Pursuant to the collective-bargaining agreement, Royse then was evaluated by a substance-abuse professional and completed a drug-and-alcohol-education program. On May 31, 2007, Royse was subjected to a return-to-duty drug screen, which was negative. Royse then returned to work with the Dayton fire department.

{¶ 3} As a result of his May 14, 2007 positive drug test, Royse was scheduled to submit to eight follow-up, random drug screenings after his return to work. His first two follow-up tests were negative, but his November 16, 2007 follow-up test result was positive for cocaine. Following a predisciplinary hearing, the city of Dayton discharged Royse from his employment with the Dayton fire department.

{¶ 4} Royse appealed his termination to the board. At the hearing before the board, two witnesses, Ken Thomas and Maurice Evans, testified on behalf of the city of Dayton. They described the process that takes place when a firefighter is submitted to a random drug test. Evans and an employee of Concentra Medical Center collect the urine samples from the firefighter being tested. The samples are sealed and shipped to ATN, a laboratory in Memphis, Tennessee. ATN performs tests on the samples to determine whether the samples contain drugs. ATN then sends the results of the tests to Alternative Safety and Testing Solutions (“ASTS”), a company in Michigan. A medical-review officer employed by ASTS then reviews the results produced by ATN to determine whether the test results are positive or negative for the presence of marijuana, cocaine, amphetamines, opiates, or PCP. If the medical-review officer interprets the results of ATN’s study to be positive for any of these five substances, the medical-review officer attempts to contact the employee. Finally, ASTS sends [84]*84the medical-review officer’s positive-test report to Ken Thomas, the safety-administrator for the city of Dayton.

{¶ 5} At the hearing before the board, the city of Dayton submitted copies of the medical-review officer’s two reports that found that Royse’s urine samples tested positive for cocaine on May 14, 2007, and November 16, 2007. No person testified regarding the methodology of the tests performed by ATN or the results of the tests that ATN forwarded to ASTS. Further, no person testified on behalf of ASTS regarding what particular data the medical-review officer reviewed or why the officer concluded that Royse’s test results were positive for cocaine.

{¶ 6} Royse objected to the admission of the medical-review officer’s positive reports based on tests performed by ATN as inadmissible hearsay. The board overruled the objection and affirmed Royse’s discharge on August 21, 2008. Royse filed a notice of appeal from the board’s decision in the court of common pleas pursuant to R.C. Chapter 2506. On July 6, 2010, the court affirmed the board’s decision. Royse filed a notice of appeal.

FIRST ASSIGNMENT OF ERROR

{¶ 7} “The trial court erred in applying a deferential standard of review instead of conducting a trial de novo.”

{¶ 8} Royse argues that the trial court applied an incorrect, deferential standard of review in reviewing the board’s decision. According to Royse, the trial court should have conducted a de novo review of the board’s decision instead of giving the board deference on evidentiary and credibility issues. Royse’s argument relies on R.C. 124.34(C), which provides for an appeal “on questions of law and fact.”

{¶ 9} “[A] member of a fire or police department may utilize either of two distinct avenues of appeal to the court of common pleas from a decision of suspension, demotion or removal from office by a municipal civil service commission. First, if an appeal is brought on questions of law and fact under [R.C. 124.34,] * * * the procedure on appeal is governed by the Appellate Procedure Act. In such a case, the trial court is required to conduct a de novo review of the civil service proceedings. The court may conduct an independent judicial examination and determination of conflicting issues of fact and law. The court may, in its discretion, hear additional evidence, and may substitute its judgment for that of the commission. Second, if an appeal to the court is brought pursuant to [R.C. Chapter 2506], * * * the court is required to allow additional evidence only in the circumstances enumerated in the statute, and the court must give due deference to the administrative resolution of evidentiary conflicts.” (Footnotes omitted.) 15 Ohio Jurisprudence 3d (2006) 698, Civil Servants, Section 605. See Resek v. [85]*85Seven Hills (1983), 9 Ohio App.3d 224, 9 OBR 395, 459 N.E.2d 566; Giannini v. Fairview Park (1995), 107 Ohio App.3d 620, 669 N.E.2d 283.

{¶ 10} Royse did not identify in his notice of appeal from the board’s decision which statutory avenue of appeal he invoked. In his brief filed with the court of common pleas, however, Royse identified R.C. Chapter 2506 as providing the proper standard of review. Further, he noted in a motion to strike that this case was an administrative appeal brought pursuant to R.C. 2506.04. Finally, in his reply brief submitted to the trial court, Royse reiterated the standard used by trial courts when conducting a review pursuant to R.C. Chapter 2506. At no point did Royse mention R.C. 124.34 to the trial court or that he desired a trial de novo.

{¶ 11} The doctrine of invited error estops an appellant, in either a civil or criminal case, from attacking a judgment for errors the appellant induced the court to commit. Under that principle, a party cannot complain of any action taken or ruling made by the court in accordance with the party’s own suggestion or request. State v. Woodruff (1983), 10 Ohio App.3d 326, 10 OBR 532, 462 N.E.2d 457.

{¶ 12} Royse induced the court to apply the R.C. Chapter 2506.04 standard of review the court applied. Royse may not now argue that in doing so, the court erred in not applying the R.C. 124.34 standard instead.

{¶ 13} When reviewing an administrative appeal pursuant to R.C. 2506.04, the trial 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. Henley v. Youngstown Bd. of Zoning Appeals (2000), 90 Ohio St.3d 142, 147, 735 N.E.2d 433. The trial court correctly applied that standard of review to Royse’s appeal from the board’s decision.

{¶ 14} The first assignment of error is overruled.

SECOND ASSIGNMENT OF ERROR

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Cite This Page — Counsel Stack

Bluebook (online)
2011 Ohio 3509, 958 N.E.2d 994, 195 Ohio App. 3d 81, Counsel Stack Legal Research, https://law.counselstack.com/opinion/royse-v-city-of-dayton-ohioctapp-2011.