This matter involves a pre-disciplinary conference for Roger A. Moore, Chief of Police for the City of Chillicothe, conducted by the undersigned attorney on Monday, August 11, 2014, in Chillicothe, Ohio. The conference was conducted pursuant to written notice, issued Wednesday, August 6, 2014 1 . Along with the pre-disciplinary conference notice, Chief Moore was provided with a list of eight allegations of misconduct 2 , and advised that at the time of the conference he would be afforded an opportunity to provide reasons, either in person or in writing, why the City should not take disciplinary action against him, and his right to bring a representative who would be allowed to offer him advice and make statements during the conference regarding any matter. At the time of the conference, Chief Moore, who had been placed on paid administrative leave, appeared with his attorney, Paige J. McMahon, and participated fully. Michael Green, The City Safety Service Director appeared on behalf of the City and presented the aforementioned allegations. The allegations were presented to Chief Moore, and he was provided an opportunity to respond. Chief Moore appeared to understand the allegations, and
1 Notice was issued to Chief Moore advising him of a pre-disciplinary conference to be conducted on Friday, August 8, 2014; however, at the request of Chief Moores attorney, Paige McMahon, the conference was rescheduled to August 11, 2014. Mr. McMahon was notified via email on August 8, 2014, that his request for postponement and rescheduling of the conference for Monday, August 11, 2014, was granted. 2 The list of allegations is attached hereto. 2 gave lengthy, specific responses to each of them. Mr. McMahon commented that Chief Moore desired access to his files, which were in his office at the Chillicothe Police Department, so that he might supplement his oral response with documentation. The undersigned requested that the City afford access to Chief Moore for the purpose of obtaining copies of documents and audio recordings. A time was arranged with Mr. Green for the following day, August 12, 2014, to permit Chief Moore access to the referenced materials. Mr. McMahon and Chief Moore were directed to provide Mr. Green and the undersigned with copies of the documents they deemed pertinent as well as a written response to the allegations by the close of business, Wednesday, August 13, 2014. When the documents were not presented by said time, the undersigned attempted to contact Mr. McMahon by phone, and, finally, was able to speak to him on Friday, August 18, 2014. Mr. McMahon indicated that he had been ill, and that he was still compiling the documents and preparing his clients written response. The undersigned did at that time discuss the possibility of mediation between the parties, but no agreement to this dispute resolution option was reached. On Tuesday, August 19, 2014, Attorney McMahon contacted the undersigned by phone and indicated that he was in the final stages of preparation of his written submission of supporting documents and written response to the allegations. At that time, the undersigned indicated that any documents and/or response were to be submitted as soon as possible, and that a written report was to be issued on Wednesday, August 20, 2014. On August 19, 2014, Chief Moores counsel presented his written response to the Citys allegations. These responses are addressed in the discussion of the following findings.
3 Count 1: Malfeasance/Failure of Good Behavior 6/28/12
Intimidated public official, Nancy Graham, via phone call attempt to secure original psychological evaluation, which was required to be stored at offices of Civil Service Commission, and attempt to have her remove posting for Police Officer exam, because he declared it was illegal.
In Chief Moores oral statement at the pre-disciplinary conference, he did not dispute that he attempted to secure a document from Ms. Graham. Chief Moore did state that he did not intimidate Ms. Graham, and asserted that his position as chief afforded him the authority to ensure that officers hired for the department possessed the proper qualifications. In his written response to this allegation, Chief Moore asserts that O.A.C. Sec. 124-3-04(A), an administrative rule promulgated by the State Personnel Board of Review, prohibits the City from imposing discipline for events more than two (2) years old. The application of R.C. Sec. 124.40 to municipal civil service commissions is clear, and Chillicothes Civil Service Commission is clearly permitted to adopt rules not inconsistent with R.C. Chapter 124. Strasshofer v. Lyndhurst (1991), 76 Ohio App.3d 472, 480-81, 602 N.E.2d 379, citing St., ex rel. Wynne v. Urban (1952), 91 Ohio App. 514, 519, 107 N.E.2d 637. It is not apparent that the Civil Service Commission has adopted the above-cited rule, and, thus, its applicability is not susceptible to resolution here. Chief Moore did not specifically dispute that he attempted to secure the psychological evaluation from Ms. Graham, but avers, in part, that the document was exempt from R.C. Sec. 149.43, and, hence, it is implied that he was justified in seeking to obtain the document. Whether Chief Moore is correct about the documents status, vis--vis the Ohio Public Records Act, the question concerning the propriety of his demanding that Ms. Graham turn it over to him remains unresolved. Likewise, whether the Chiefs purported authority over the recruitment/hiring process of police officers justified the manner in which he sought correction 4 of the posting cannot be adjudicated in the scope of the pre-disciplinary process. Suffice it to say, it is not within the scope of this initial review to assess the ultimate truth or validity of the Citys allegations, but, rather, to render a finding that the information presented is sufficiently substantiated to warrant consideration of discipline. Only the Civil Service Commission is authorized to conduct hearings and compel testimony pursuant to R.C. Secs. 119.09, 124.03, 124.09, 124.34, and 124.40 to determine whether City disciplinary actions are ultimately supported by reliable, probative and substantial evidence, and in accordance with law. See Civil Service Rules I, II, IX, and X. 3
Based on the information presented, regarding Allegation No. 1, it is submitted that a sufficient basis exists for the City to consider the imposition of disciplinary action under R.C. Sec. 124.34. Count 2: Malfeasance/Failure of Good Behavior 3/16/13
Admitted reacting inappropriately after provocation, engaged in a verbal and/or physical altercation with citizen in public place, Cozy Inn.
In Chief Moores oral statement at the pre-disciplinary conference, he did not contest that he was engaged in an altercation with a citizen in public at the Cozy Inn, a local bar in Chillicothe. The Chief stated at the pre-disciplinary conference that an argument ensued with a citizen, which escalated to an exchange of cursing, shoving, and threats of physical violence upon provocation. The Chief further stated that he had removed his shirt at the time to let the citizen know what lay in store for him, if the latter did not desist from his course of conduct. Chief Moores written response invokes the application of another rule promulgated by the State Personnel Board of Review, dealing with the proposition of merger and bar, whereby
3 It is not apparent from the Civil Service Commissions Local Rules and Regulations whether O.A.C. Sec. 124-3-04(A) was adopted by the Commission. 5 an incident preceding written discipline may not be the later subject of further disciplinary action. See O.A.C. Sec. 124-3-05. As with Allegation No. 1, there is no indication that the Civil Service Commission has adopted or incorporated the Board of Reviews administrative provisions in its Local Rules and Regulations. Notwithstanding the application of the merger and bar provision, it is possible that an appointing authority may consider previous disciplinary action as a basis for progressive discipline. Therefore, the reference to media reports of the incident and the Mayors statements regarding the Citys investigation and discipline is insufficient at this point to preclude a further review and exercise by the City of its discretion to impose discipline. Therefore, based on the information presented, regarding Allegation No. 2, it is submitted that a sufficient basis exists for the City to consider the imposition of disciplinary action under R.C. Sec. 124.34. Count 3: Malfeasance/Failure of Good Behavior 5/30/13
Challenged authority of Mayor, by repudiating his open-door policy with City employees and insisted that he had no authority to meet with police officers, because of chain of command.
In Chief Moores oral presentation and written response regarding this allegation, he asserted the rules and regulations of the Police Department as well as the principles of chain of command to defend his challenging the Mayors open-door policy and/or authority to meet with officers and/or employees of the Police Department under any circumstances without going through him. The allegation was specifically addressed and contested by Chief Moore in regard to the Mayors meeting with two employees of the Police Department and a union staff representative regarding resolution of a grievance and an unfair labor practice charge. R.C. Sec. 705.79 provides that one of the powers and duties of a mayor of a statutory city is to see that the 6 laws and ordinances are enforced. See R.C. Sec. 705.79(A). The regulation referenced in Chief Moores response suggests that unilateral visits by staff of the Police Department to the Mayor are prohibited. However, the discussion in the meetings with the Mayor referenced by Chief Moore involved a union staff representative, and, whether it dealt with a grievance or an unfair labor practice charge, was not prohibited by state law. See R.C. Secs. 4117.03(A); 4117.09. Indeed, it could be argued that a mayor who did not attempt to resolve alleged violations of law or a collective bargaining agreement would be derelict in his or her duty. Moreover, there was no information that the meetings with the Mayor were initiated by employees of the Police Department. While the validity of the Police Department Rules and Regulations is not specifically at issue, the disregard of Chief Moore for the Mayors authority is so blatant, that it raises sufficient question about the propriety of such flagrant behavior to warrant the Citys consideration of imposition of disciplinary action regarding Allegation No. 3 under R.C. Sec. 124.34, based on the information presented. Count 4: Malfeasance/Failure of Good Behavior 8/22/13
Attempted to intimidate city official, Tamara Lowe, went to her office unannounced, and shut her door without her consent, refused to open the door after she requested it, and after argument over his relationship with the city Human Resource Director, refused to leave her office when she requested he do so, and you continued to berate her, causing her to be so concerned for her safety she called 9-1-1; police response ensued, and Captain K. M. Teeters was dispatched, responded, Ms. Lowe asked for escort to her car, and a report was filed; incident constituted improper conduct by a public official, and caused unnecessary expenditure of public funds because of his anger over consequences of his personal relationship with another city official.
As with Allegation No. 2, Chief Moores oral presentation and written response regarding this allegation invoked the application of an administrative rule adopted by the State Personnel Board of Review such that any discipline for this alleged offense would be merged with previous disciplinary action and barred by the rules operation. See O.A.C. Sec. 124-3-05. The 7 discussion of applicable law is incorporated here, as if reprinted. There was no dispute that the police were called by Ms. Tamara Lowe, a city official responsible for EEO matters, who refused to supply Chief Moore with an EEO complaint form. Notwithstanding the fact of Chief Moores asserted protected status as a Native American or Ms. Lowes purported recalcitrance in discussing personnel matters outside the scope of her job duties or her failure to supply a complaint form, there is sufficient basis to find that he may have stepped well beyond the scope of his authority as Chief of Police in a manner which could warrant discipline. Therefore, based on the information presented, regarding Allegation No. 4, it is submitted that a sufficient basis exists for the City to consider the imposition of disciplinary action under R.C. Sec. 124.34. Count 5: Malfeasance/Failure of Good Behavior 2/6/14
Used profanity toward an assistant Law Director and threw a court case file on the floor in anger, and approached Municipal Judge John Street without authorization to question his imposition of a fine in a case involving violation of city ordinance by person accused of operating business with inoperable, unlicensed, and junk vehicles on his property.
In Chief Moores oral presentation and written response, he clearly articulated an intense desire to enforce nuisance laws and protest what he believed to be lax enforcement of municipal ordinances relating to junk vehicles. There was no apparent formal complaint concerning Chief Moores behavior at Municipal Court on the day in question, notwithstanding media reports. Chief Moore denied any wrongdoing and could not recall using profanity toward anyone involved. Without more specific information or any other supporting documentation, it is my opinion that this allegation cannot be substantiated, and would not be an appropriate basis for disciplinary action under R.C. Sec. 124.34.
8 Count 6: Malfeasance/Failure of Good Behavior/Insubordination 7/25/14
Refusal to apologize to public officials for unprofessional conduct, Jon Saxton, Superintendent, Chillicothe City School District, and George Lavender, Ross County Sheriff, as directed by Mayor.
After consideration of Chief Moores oral presentation and written response, the statements he provided at the direction of the Mayor can hardly be construed as apologies. Rather, they reflect a clear dichotomy between the positions of the City and Chief Moore, as to the manner in which authority is perceived and other public officials are treated. It seems more than coincidence that three public officials from various government entities (City Hall, the School District, and the County Sheriffs Office) have specific and significant criticisms of Chief Moore about his conduct and demeanor, which go beyond personality differences. The requested apologies arose out of incidents with specific joint operations between the City and the local school district over a school safety plan and a drug task force with the Sheriff and other law enforcement agencies, including the City Police Department. A police chief, like other law enforcement officials, is held to a higher standard of conduct than the general public. Patricia Taylor v. Board of Trustees of Miami Township, 95- LW-3476, C.A. 14698 (2 nd Dist., Montgomery, 1/25/95), citing Jones v. Franklin County Sheriff (1990), 52 Ohio St.3d 40 (Law enforcement officers are expected to conform to a higher standard of conduct than the general public. For such public officials to command the respect of the public, it is necessary then for these officials, even when off duty to comport themselves in a manner that brings credit, not disrespect, upon their department. 52 Ohio St.3d. 40, 43). Recent court decisions have consistently held peace officers to a higher standard of conduct and personal rectitude. Linney v. Turpen, 42 Cal. App. 4 t h 763, 49 Cal. Rpt. 2d 813 (1996); Ptl. Joseph D. Krout v. City of Findlay, 85-LW-1819, 3 rd Dist., C.A. Hancock, Case No. 5-84-20, 9 8/13/85. Police officials, intent on retaining their position on the force, can expect that they will be held to a higher standard of conduct regarding obedience to the laws and ordinances of this state than would a common civilian. Police officials have greater familiarity with the obligations of a citizen, and must contemplate loss of employment for objectionable conduct. Golemboowski v. City of Madison Heights Civil Service Commission, 93 Mich. App. 137, 286 N.W. 2d 69, citing Rinaldi v. Lavonia, 69 Mich. App. 58,67, 244 N.W. 2d 609, 613 (1976). Therefore, based on the information presented, regarding Allegation No. 6, it is submitted that a sufficient basis exists for the City to consider the imposition of disciplinary action under R.C. Sec. 124.34. Count 7: Malfeasance/Failure of Good Behavior/Insubordination 7/27/14
Refusal to obey directive to have no contact with Chillicothe Police Department while on paid administrative leave, as directed by Mayor and Safety Service Director on July 25, 2014, and engaged in investigation of suspected criminal activity by questioning acquaintances of son and searching their vehicle after police had been called to scene.
In Chief Moores oral presentation and written response, he articulated the rights of a property owner (his sons residence), which is an understandable position on its face. However, as a police official, Chief Moore is presumed to be aware that any action, even taken off-duty, relating to police activity such as a search of a person or vehicle, if conducted improperly, could result in claims of constitutional violations implicating not only himself but his employer as well. Chief Moore did not dispute that he was directed to have no contact with the Chillicothe Police Department when placed on paid administrative leave. While circumstances may have been presented to him which were beyond his control, insofar as his sons misfortune could not be anticipated, once confronted with the situation of persons suspected of a minor theft offense, he, arguably, had a duty to refrain from involvement 10 with police activities. Receiving an order from his superior, the Safety/Service Director, to refrain from contact with the Police Department reasonably contemplates and imposes an obligation on Chief Moore to refrain from police activityabsent any concerns for personal or familial safetyparticularly, when he is aware that he is being investigated for misconduct. Therefore, based on the information presented, regarding Allegation No. 7, it is submitted that a sufficient basis exists for the City to consider the imposition of disciplinary action under R.C. Sec. 124.34. Count 8: Malfeasance/Failure of Good Behavior 7/30/13-7/25/14
Continued pattern of disrespect of authority and unprofessional conduct with law enforcement officials from another agency, including George Lavender, Ross County Sheriff, and his staff.
As with Allegation No. 6, the information presented both at the pre-disciplinary conference and in Chief Moores written response reflects a genuine dispute over the relative authority of the Police Chief and other public officials, in this case, notably, the Ross County Sheriff, George Lavender. A county sheriff may exercise the authority expressly conferred upon him by statute, and may exercise discretion in determining the manner in which he will exercise the power to preserve the public peace. Attorney Generals Opinion 2011-16. Consequently, a county sheriff may exercise his power within a municipal corporation insofar as that city is within that sheriffs county. In re Sulzmann, 125 Ohio St. 594, 597, 183 N.E. 531 (1932); Geauga County Bd. of Cty. Commrs. v. Munn Rd. Sand & Gravel, 67 Ohio St.3d 579, 582, 621 N.E.2d 696 (1993). Chief Moore raises the question of lack of adequate notice as to specific instances of disrespect of authority and unprofessional conduct toward Sheriff Lavender, such that he is constrained from an effective response to a broad allegation. Admittedly, the 11 allegation is a broad and potentially far-ranging one. However, both Chief Moores letter of apology to Sheriff Lavender, dated July 25, 2014, as well as the Sheriffs letter of June 12, 2014 to the Mayor complaining of continued disrespect of [his] authority, reflect an admittedly ongoing dispute between the two law enforcement officials. Chief Moore in his July 25 t h
correspondence acknowledges several allegations including your authority and disrespect to elected officials. In the pre-disciplinary conference, Chief Moore spoke of the discord between the sheriff and city police chiefs and referenced unspecified ulterior motives on the part of the Sheriff. No credibility resolution need be made here to ascertain the obvious, that there is a good deal of hostility surrounding the relationship between the Sheriff and Chief Moore. The only question is whether there are reasonable grounds for the City to believe discipline should be considered for Chief Moores behavior toward the Ross County Sheriffs office. The nature of notice required in this instance is minimal, and the information available to Chief Moore and a direct statement from the Countys chief law enforcement officer is quite substantive in its thrust that the former has demonstrated continued disrespect for the latter. The most recent instance of alleged disrespect would appear to be the apology to the Sheriff because the Chief is being ordered to apologize. Whether a disciplinary action is cloaked in terms of a pattern, an attitude or a failure of good behavior, there are reasonable grounds here for the City to consider disciplinary action under the provisions of R.C. Sec. 124.34 with regard to Allegation No. 8.
12
SUMMARY OF FINDINGS
It is hereby submitted that reasonable grounds for discipline exist with respect to Allegation Nos. 1 through 4 and 6 through 8. This Report is hereby submitted for consideration of disciplinary action pursuant to Rule IX of the Chillicothe Civil Service Commission Local Rules and Regulations Respectfully submitted,
/s/ Michael A. Moses Michael A. Moses (#0025243) Moses Law Offices, L.L.C. 100 East Broad StreetSuite 1350 Columbus, Ohio 43215-3662 (614) 224-7294 (614) 224-7295 Fax michaelmoses@moseslawllc.com
CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of the foregoing was served upon Paige J. McMahon, Esq., Spetnagel & McMahon, 42 East Fifth Street, Chillicothe, Ohio 45601, Michael Green, Safety/Service Director, 35 South Paint Street, Chillicothe, Ohio 45601, and Sherri K. Rutherford, Esq., Chillicothe Law Director, 97 West Main Street, Chillicothe< Ohio 45601, electronic transmission and Ordinary U.S. Mail, postage pre-paid, this 20th day of August, 2014, at Columbus, Ohio.