IN THE COURT OF COMMON PLEAS OF ERIE COUNTY, OHIO

CITY OF SANDUSKY APPELLANT

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) JUDGMENTENTRY )

) Case No. 09 tv .0859 )

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v.

KIMBERL Y NUESSE, et al.

APPELLEE

This is an appeal to the Erie County Common Pleas Court from an October 7, decision of the City of Sandusky Civil Service Commission, which reinstated Kimberly Nuesse to her former position as Police Chief of the City of Sandusky with no back pay. Appellant, City of Sandusky, appeals the action of the Civil Service Commission reinstating ChiefNuesse. Appellee, Kimberly Nuesse, cross-appeals that portion of the Civil Service Commission's action denying her back pay upon her reinstatement, and prophylactically seeks to have the hearing officer's report, which was unfavorable to her, vacated.

Procedural Background

The City of Sandusky is run by a city manager. This person has the power to hire or fire employees, including the police chief, without approval of The City Commission. The City Commission is, in effect, Sandusky's legislative branch. It consists of seven elected commissioners, one of whom serves as the Honorary or Ex-Officio Mayor.

On August 7,2006, Ms. Nuesse was hired as the city's police chiefby then City Manager Mike Will. Less than a year later, Mr. Will left the City of Sandusky and James (Don) L. Miears was appointed Interim City Manager in May of2007. Mr. Miears served in that capacity until November 15,2007. On that date, Matthew D. Kline began his duties as City Manager. On March 10,2008, Mr. Kline placed Ms. Nuesse on paid administrative leave and advised her that he was conducting an investigation into her conduct as police chief.

Mr. Kline then hired Michael E. Murman, an attorney from Lakewood Ohio to conduct the investigation of Chief Nuesse. Mr. Murman filed his initial report with City Manager Kline on May 8, 2008, recommending that ChiefNuesse not be reinstated. On June 9, 2008, a motion to set aside the Murman Report was presented to the City Commission. It failed to pass on a three to three vote. On June 17,2008, City Manager Kline terminated Ms. Nuesse as Chief of the Sandusky Police Department. Mr. Kline, in his Disciplinary Decision, stated: " ... I have focused my decision on violations of the Sandusky Police Department's Rules and Regulations involving falsification of reports, honesty, cooperation with other organizations and agencies, and use of official position for

personal gain." On June 20,2008, Ms. Nuesse appealed her termination to the City's Municipal Civil Service Commission.

The Civil Service Commission responded to the termination appeal by hiring Joseph E. Cirigliano, a former judge, to serve as a fact finder in the matter. Hearing Officer Cirigliano presided over a lengthy hearing that produced 3,647 pages of transcript and over 250 exhibits. Hearing Officer Cirigliano filed his report on August 13,2009, recommending to the Civil Service Commission that City Manager Kline's decision to discharge Kimberly Nuesse be sustained.

The Civil Service Commission for the City of Sandusky consisted of three members:

Chairperson Janice Warner, Mr. Vincent Rhodes and Mr. John May. On October 5, 2009, the City of Sandusky filed a motion with the Commission seeking the recusal of Chairperson Janice Warner. The City filed this request because it just learned that Sandusky Police Department Officer Dana Newell, who offered material testimony in Ms. Nuesse's case, was Chairperson Warner's brother. On October 7, 2009, the Civil Service Commission modified Hearing Officer's Cirigliano's report, reinstating Ms. Nuesse, but without back pay. Chairperson Warner and Mr. Rhodes voted for reinstatement and Mr. May dissented. Ms. Warner refused to disqualify herself for reason that she could be impartial.

After the vote of the Civil Service Commission, the City of Sandusky learned of other matters that could have impacted upon Chairperson Warner's impartiality. Specifically, the City suggests that Karen Alexander, a former sister-in-law ofWamer, was recently laid off as a dispatcher due to budget cuts and Ms. Warner had actually served on the Perkins Township and City of Sandusky Police Participation Committee that backed Ms. Nuesse's bid to merge Perkins and Sandusky's Dispatch System.

The City also suggests that a review of the Civil Service Commission's records shows that neither Ms. Warner nor Mr. Rhodes spent any meaningful time reviewing the transcript or evidentiary documents presented at the hearing. This failure, the City contends, denied the City of Sandusky due process as there would be no basis to overturn or modify Hearing Officer Cirigliano's report without a review of the evidence.

The Case on Appeal

As previously stated, both parties have appealed the decision of the Civil Service Commission to this, the Erie County Court of Common Pleas. R.C. 124.34( C) is the governing statute for this appeal. When an individual is a police officer, R.C. 124.34 (C) allows an appeal on questions of law and fact from a city civil service commission to the common pleas court where the city is located. The Ohio Supreme Court in Cupps v. Toledo (1961), 172 Ohio St. 536, at paragraph two of the syllabus, determined that the court is required to conduct a trial de novo whenever a police officer is removed from employment. This Court and counsel recognize that a trial de novo and a de novo review of the evidence are not the same. See Bryant v. Civil Service Commission, Hamilton, Ohio (Butler July 27, 2009), No. CA2008-10-243, 2009 WL 2232025, 2009-0hio-3676.

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In this case, the parties and the Court have, however, agreed that the Court would conduct the trial de novo by reading the transcript, examining the exhibits and allowing the parties to submit additional evidence, if any. This, the Court has done.

Pursuant to Rule 12.5 of the Rules and Regulations of the Civil Service Commission, the City is required to prove the factual allegations contained in the June 17,2008 Disciplinary Decision by a preponderance of the evidence. The intent of the Rule is clear, however, that the City is not required to prove every allegation by a preponderance of the evidence.

The Sandusky Police Department Rules and Regulations consider Category III offences to be of such severity so as to merit a possible dismissal at a single occurrence. The following are relevant Category III offences: falsification of any reports; using public office for private gain; engaging in dishonest conduct that undermines the effectiveness of the agency's activities or employee performance; and, taking any action which will impair the efficiency or reputation of the department its members, or employees.

In addition to the Category III prohibitions, the General Conduct requirement of the Sandusky Police Department requires employees of the department to "always display absolute honesty." Furthermore, both R.C. 124.34(A) and Rule 11.01(A) of the local Civil Service, Tenure of Office Rule require holding office "during good behavior and efficient service." R.C. 124.34 (A) further provides that an officer may be suspended or removed for "dishonesty" in office.

Prior to the taking of testimony before Hearing Officer Cirigliano, the parties stipulated that the matter would be tried on the following four issues:

1) The giving of false statements by Ms. Nuesse regarding certain grant applications;

2) Failure of Ms. Nuesse to display absolute honesty, including using the influence of her position to mislead city officials regarding the dispatch system, in addition to the falsifications of the grant application;

3) Failure of Ms. Nuesse to cooperate and coordinate efforts with other employees and law enforcement organizations and agencies, such as the County Sheriff and County Prosecutor; and

4) Use of Ms. Nuesse's public office for private gain, specifically regarding a parking ticket.

The Court will address each of these four issues separately. Before the Court does so, it must, however, place these issues in the context of Ms. Nuesse job performance prior to February 2008. Issues in any court case are not tried in isolation, and much, if not most, of the evidence presented here was intended to create an understanding and appreciation of the environment then existing in the City of Sandusky and its police department. To not address this background information would be a great disservice to both the City of Sandusky and Ms. Nuesse.

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The Case in Context

Kimberly Nuesse had a short tenure as Sandusky's Police Chief, nineteen months of active duty. During that relatively brief tenure, she, however, served under three city managers. City Manager Mike Will was Ms. Nuesse's longest supervisor, nine months. Mr. Will was instrumental in her being hired.

Mr. Will hired her because of cultural and racial issues existing in the city. There were problems between the police and the city, as well as the police and the press. She was also assigned the task of improving relations with Perkins Township, with the minority community, and the culture within the Sandusky Police Department. According to Will, she dealt with these issues and improvement occurred.

In addition, efforts were underway to attempt a merger of the City of Sandusky's dispatch center with some other entity to save costs. The city's dispatch center was ageing and a variety of problems existed. Both the police and fire departments had needs that were not being addressed. Ms. Nuesse had some experience in this area and this became a significant factor in her becoming chief. In fact, she was invited to a meeting involving the dispatch issue even before she officially began working.

The Court notes at the outset that the need to merge the city's dispatch operation was of such prime importance to the city that three efforts were being undertaken at once. One was a countywide effort to be run by a council of governments; this was suggested in a study completed by one Dr. Pascarella. Another was an effort for the city dispatch to merge with the Sheriffs dispatch. The third solution, considered by some to be the practical first step in a unified dispatch system, was a merger with Perkins Township dispatch operation.

Mr. Will went on to testify that Nuesse was honest and cooperative "with him and additionally tackled other difficult problems such as moving the officers from twelve hour shifts to eight hour shifts and restructuring the staff by reducing the number of captains and increasing the number of patrol officers. According to Will, Nuesse had a lot of things on her plate.

A careful examination of the evidence discloses serious problems present in the police department when Ms. Nuesse began her tenure as chief. Testimony was given that officer evaluations were at an all time low. By way of example, Detective Mark Volz, a now retired officer, recalled that prior to ChiefNuesse the detective department was down to one detective car for five detectives, and someone removed the radio in the car. He described an incident when they were driving in the south side of the city and came upon a big fire. Citizens recognized the detectives and screamed at them to call 911. Volz said they reached for the radio and it was not there.

Volz testified that the first day on the job Nuesse recognized they needed equipment and told them to make a list. Everyone received his or her own radio. He further testified

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that she took the unprecedented step of accompanying the detectives on drug raids and possessed a strong command presence.

Equally serious problems existed between the Sandusky Police Department and the Perkins Police Department, prior to the arrival of Ms. Nuesse. By way of example, Perkins' Police Chief Timothy McClung related an incident involving an electrical power outage prior to Chief Nuesse' s employment. According to Mr. McClung, Cedar Point had to close because of the black out, and all the traffic lights were out on Route 250, as the customers of the park were sent home. Perkins officers were forced to direct traffic at the lights. Sandusky Police would not help, even though Perkins asked for assistance. In fact, McClung was delivering water to his officers during this crisis, when one of them related that a Sandusky Police Officer drove by and gestured at him.

To bridge relations with Perkins Township, Chief Nuesse gave certain Perkins police officers direct card access to the Sandusky Police Department, allowed them use of the Sandusky firing range, and worked with Chief McClung on a joint SRT team or SWAT team. She was also a force behind what ultimately became the ill-fated effort to merge the Sandusky and Perkins Dispatch Systems-an effort that eventually lead to her termination.

Interim City Manager James (Don) Miears, Ms. Nuesse's boss for approximately seven months, praised her, in his written performance evaluation for her work with Perkins Township. Mr. Miears stated: "The alliance with Perkins Township is commendable. It appears from all reports and observations this is strongly positive. It can only continue to improve with your diligent efforts." Mr. Miears testified highly of Ms. Nuesse and opined that the "Murman Report" was garbage, not fair and did " ... exactly, what it was supposed to do, I assume ... "

Finally, the evidence is overwhelming Ms. Nuesse made herself a visible police chief. She significantly improved relations with the minority community and the press. She encouraged minority members of the police department to seek advancement. She instituted popular walk through programs when officers were in the vicinity of public schools to increase a security presence.

Despite all of her accomplishments, her administration of the Sandusky Police Department came to an abrupt end. The Court will address how this occurred within the analysis of the specific disciplinary charges leveled against her. The Court will now consider those charges, but not in the order they were listed.

Use of Ms. Nuesse's public office for private gain, specifically regarding a parking ticket.

The Court finds Appellant City of Sandusky failed, by a preponderance of the evidence, to establish this allegation. The allegation centers on two separate incidents. The first incident was the voiding of a parking ticket issued to a vehicle Ms. Nuesse was using. The second incident was the acceptance of free tickets to Cedar Point.

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Frankly, this Court views the parking ticket incident as absurd. Testimony clearly established that in the City of Sandusky parking tickets go to the owner of the motor vehicle that was ticketed, not the driver. Ms. Nuesse, shortly after being hired as chief, parked the car she was driving (an unmarked vehicle owned by the City of Sandusky) in an angled, street parking spot. She returned to the vehicle with Police Captain Gary Frankowski and found the ticket on the vehicle. Frankowski reviewed the ticket and found it was for parking in excess of four inches from the curb. Frankowski testified that the vehicle was more than four inches from the curb, but within the marked lines and not protruding into traffic. He also observed vehicles on each side of the car that extended further out than the car Nuesse parked. According to Frankowski, Nuesse offered to pay the ticket, but he made the decision to void it for reason that in " ... looking at the intent of the law, the car was legally parked. I mean, it was not a hazard; it was not sticking into traffic. Parking downtown with many of the modem cars that sit low you cannot physically park within four inches of the curb without bottoming out the front end." The original ticket had not yet been filed with the Sandusky Municipal Court and, Frankowski, after talking to the traffic court judge, voided the ticket.

The Court finds this issue to be inconsequential for a variety of reasons. First, it was not ChiefNuesse's ticket. It was the City of Sandusky's ticket. The City of San dusk)' owned the car. The City of Sandusky was responsible for the ticket. Second, it was a "gotcha" type ticket: one that might be technically correct, but certainly not within the spirit of the law, as explained by Captain Frankowski. Third, former City Manager Mike Will, who was ChiefNuesse's supervisor when the ticket was issued, testified that he knew of the parking ticket, was embarrassed about it and wanted it voided.

The Court views Chief Nuesse , s acceptance of Cedar Point tickets as somewhat more problematic than the parking ticket issue. Cedar Point, an extensive amusement complex located within the City of Sandusky, has its own private police agency that draws its power through the City of Sandusky. During the summertime, Cedar Point employs approximately 130 officers.

Ray Majoy has been the Cedar Point Police Chief for 21 years. He testified that in "day to day activities" the police department is the same as any other police department. However, the department was created in 1967 by ordinance and the officers are actually sworn in by the Sandusky City manager. Majoy believed that legally the Chief of Police of Sandusky would be a superior officer, as Cedar Point is physically located within the jurisdiction of Sandusky.

Chief Majoy testified that shortly after Ms. Nuesse arrived in Sandusky he called her and invited her to the park. He initiated the contact because he wanted her to see Cedar Point first hand since she was new to the community. He explained that the relationship between Cedar Point Police Department and the Sandusky Police Department was and remains an excellent relationship.

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Ms. Nuesse accepted the invitation and came to the park with her family. According to Majoy, she introduced herself to him and she asked about Soak City, a separate portion of the park that had separate admission. Majoy called the office and received permission to sign her in to the Soak City portion of the park.

ChiefMajoy further testified that it was common practice to invite law enforcement officers to visit the park. Having more officers in the park was a plus for Cedar Point, if situations or incidents occurred. ChiefMajoy's practice was confirmed by Perkins Chief Timothy McClung who testified that he would get "phone calls from state and federal agents though out the State of Ohio", as soon as Cedar Point opened, seeking breaks on tickets. McClung would then call Majoy and he would tell McClung to have the officers go "to the Spiral Gate and have them sign in." Later, McClung got tired of being the intermediary and just had them call ChiefMajoy directly.

Chief Majoy acknowledged that "Soak City" admissions were separate and not part of the general policy of gratis admissions accorded law enforcement officers. On Crossexamination, Chief Majoy denied ever being accused of unethical behavior. In his opinion, it was not unethical to give free Cedar Point or Soak City tickets to another police officer.

In the eyes of the Court, there was nothing untoward with ChiefMajoy inviting Chief Nuesse to visit the park and see it first hand. It was a welcoming gesture to someone who arguably ought to have actual knowledge of the facility.

The Court concludes that the City of Sandusky failed to establish by a preponderance of the evidence that ChiefNuesse used her public office of police chief for private gain by accepting the Cedar Point and Soak City tickets. First, Chief Nuesse did not solicit the invitation. Second, it appears to have been a Cedar Point policy, existing for years, to accord such privileges to law enforcement officers. Third, there was some legitimate purpose to the visit, even if that purpose was remotely collateral to entertainment. The viewing and exploring of the park, on a day of leisure, would still yield an understanding of the layout, complexity and magnitude of the institution physically situated within the City of Sandusky, possibly a valuable understanding if the need ever arose to assist in some calamity. Fourth, there was no evidence that ChiefNuesse, when in the park, knew that it was Cedar Point's general policy with law enforcement officers to allow them free admission to the ride area, but not to Soak City, when she asked Chief'Majoy about Soak City. Finally, this was a onetime invitation and onetime use of the park. There is no evidence that Chief Nuesse requested additional tickets for other visits.

Failure of Ms. Nuesse to cooperate and coordinate efforts with other employees and law enforcement organizations and agencies, such as the County Sheriff and County Prosecutor.

The Court finds Appellant City of Sandusky failed, by a preponderance of the evidence, to establish these allegations. The allegations centered on ChiefNuesse's relationship with the Erie County Sheriff Terry Lyons and Erie County Prosecutor Kevin Baxter.

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Prior to Ms. Nuesse becoming police chief, the evidence indicated that the Erie County Sheriff's Department and the Erie County Prosecutor's Office enjoyed a good relationship with the Sandusky Police Department. During Ms. Nuesse's time as Chief of Police that relationship deteriorated somewhat, but not to the point where the offices did not have at least a working relationship with each other.

Two principal factors caused the relationship to weaken. First, the Erie County Prosecutor and the Sheriff teamed up to form the Erie County Drug Task Force. This organization was in existence for many years and was, to a large extent, the creation of Prosecutor Baxter. The Sheriff along with other communities in Erie County would assign officers to the task force for the purpose of attacking the drug trade countywide.

After Ms. Nuesse became chief, she pulled Sandusky's officer from the task force, citing several reasons for the move: budget cuts to the police department, drive by shootings in Sandusky, and suspected gang activity which required the officer assigned to the task force back in the city, at least temporarily. Chief'Nuesse pulled the officer shortly before a tax levy was to be voted on to provide funds for the drug task force, which was clearly struggling to exist. The tax levy failed, and the task force, which had now shrunk to only one officer, then disbanded. The evidence indicated that ChiefNuesse voiced her support for the levy and participated to a degree in the campaign to pass the levy.

It is undisputed that Ms. Nuesse's actions in this regard were clearly within her discretion as Chief of the Sandusky Police Department. While evidence was introduced that she may never have intended for the officer to return to the drug task force (even though she spoke otherwise), the Court, nevertheless, believes that her action was still within the scope of her executive decision-making.

The second major incident, which caused some distress in dealing with the sheriff and prosecutor, involved a warrants sweep. Sandusky Police ChiefNuesse and Perkins Chief McClung teamed up with the U.S. Marshall's Office to execute amass arrest on outstanding warrants. No one, however, bothered to tell either the Prosecutor or the Sheriff that this was going to occur. The Prosecutor read about the operation in the paper the next day. The sheriff found out about it when those arrested were brought to the jail for incarceration.

There is no question that the sheriff should have been advised of the sweep. It was a serious error not to have done so. The recommended capacity for the Erie County Jail is 106 inmates. At the time of the operation, the jail was at overcapacity with 130 inmates. A potentially difficult and confusing situation was, however, narrowly avoided, as those arrested were primarily individuals charged with misdemeanors, rather than felonies. As a result, those with misdemeanor charges were then bonded out, rather than incarcerated.

Subsequent to this incident, a meeting took place with the representatives from the U.S. Marshall's Office, Prosecutor Baxter, Sheriff Lyons, ChiefNuesse and Chief McClung where cooperation was stressed. No further incidents of this type re-occurred.

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While this Court does not make light of what happened here, it, nevertheless, understands that mistakes and errors of judgment occur in all types of law enforcement dealings. The charge is that Ms. Nuesse did not cooperate with other law enforcement agencies. It is somewhat ironic that this very operation was a joint cooperative effort between the City of Sandusky, Perkins Township and the U.S. Marshall's Office. It can be argued that an oversight was made, not only by Ms. Nuesse, but also, by the Marshall's Office and Perkins Police Department, as anyone of those entities could have provided a courtesy call to the Sheriff.

Disagreements occurred in other areas. Chief Nuesse believed that gangs were present in Sandusky and felt the Prosecutor should be adding gang enhancement language to certain criminal charges presented to the grand jury. Prosecutor Baxter felt that would serve no purpose as the penalties on the underlying charges were, for the most part sufficient, and the gang enhancement language was in many cases not possible to prove.

Sheriff Lyons had for many years established monthly meetings with Erie County's police chiefs. Ms. Nuesse, upon her appointment of chief, attended these meetings. She eventually established another organization, regional and multi-county in nature, called the Firelands Police Chiefs Association. Sheriff Lyons attended these meetings and became treasurer of the organization. Testimony was submitted that the forming of this entity was disrespectful to Sheriff Lyons, while other testimony indicated the organization was totally different in nature. Sheriff Lyons testified that he had no problems with ChiefNuesse starting the organization.

Additionally, security for the Erie County Courthouse became an issue. The Sheriff traditionally provided courthouse security. ChiefNuesse, however, contacted Judge DeLamatre, the Erie County Juvenile Judge, and offered to help. Sheriff Lyons did not feel this was appropriate and was disappointed in her actions, as she did not notify him of her intentions, and he felt that this infringed on his duties as Sheriff. The security issue was eventually resolved, when the Erie County Commissioners provided funds for Judge DeLamatre to hire employees of the juvenile court to do the security screening.

Viewing these incidents as a whole, the Court concludes that the City of Sandusky simply failed to meet its burden of proof, by a preponderance of the evidence on this issue. Most of these incidents can be viewed as legitimate disagreements among elected officials. The failure to notify the Sheriff of the warrants sweep was wrong and unfortunate, but all the parties involved did meet after the incident and the situation was not repeated.

The giving of false statements by Ms. Nuesse regarding certain grant applications.

The Court finds Appellant City of Sandusky failed, by a preponderance of the evidence, to establish these allegations. The grant application issues were not factors reflecting poorly on Ms. Nuesse prior to the "Murman Report", rather they were uncovered during the Murman investigation. Again, some background information is necessary to place this matter in context.

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After Ms. Nuesse's employment as Police Chief, she found that there were problems with block grants that were in existence prior to her being hired. According to testimony presented by Hank Solowiej, CPA, Senior Accountant! Auditor, for the City of Sandusky, one Local Law Enforcement Block Grant, was overdrawn. This apparently occurred when Acting Chief Gary Lyons was in charge of the accounts. As of the date of Mr. Solowiej's testimony, January 30, 2009, the negative balance in the account, to this Court's amazement, was never resolved. According to ChiefNuesse, the overdraft amount was $13,510.46. No action was ever taken against Mr. Lyons or anyone else who was in a position of authority over the grant. No suggestion was made of any untoward behavior.

Ms. Nuesse also inherited certain Edward Bryne Grants, when she acquired the position of Chief of Police. It was her handling of those grants that led to the instant allegations, along with an application for a Weed and Seed Grant.

On January 10,2008, Ms. Nuesse received e-mail communication from Judy Poston with the U.S. Department of Justice, informing her that the Bryne financial grant reporting was delinquent, with as many as six quarterly reports being overdue. Ms. Nuesse testified that Acting Chief Gary Lyons was in charge of the grant when she was hired and continued to be responsible for the grants until he retired. He, according to Nuesse, informed her that the required reports were up to date.

After failing to access the computer system to file an on-line report, ChiefNuesse ultimately contacted, through customer service of the grant, one Ozie Jackson. According to Nuesse, Jackson explained to her that there was trouble with the online system and she should fax the material to him and he would create the report. Chief Nuesse testified that she faxed to Mr. Jackson, the grant narrative and copies of the paid invoices for wireless connectivity, which she had obtained from the office files. This occurred on February 20, 2008, only eight days before her last day of work with the Sandusky Police Department. Ms. Nuesse testified that she never prepared or filed any report for the grant, nor did she have the opportunity to review, prior to her being placed on administrative leave, the report Mr. Jackson created. She intended to review the matter when she returned to work on March 10, 2008, which never occurred.

Ms. Nuesse also testified that after she faxed the material to Mr. Jackson, she returned the invoices to the office files, but not before she had made copies of all the material she forwarded to him, including the grant documents. Those copies were on her desk in her office. She requested them from the city, but was told they do not exist.

A review of the report filed by Mr. Jackson discloses that Byrne Grant period was from October 1, 2004 through September 30,2008. Mr. Jackson created the report for the quarterly period beginning October 1,2006 through December 31,2006. The report showed that $28,075.00 was expended during the quarterly reporting period, which also represented the federal share of outlays. That sum was also the cumulative amount expended throughout the entire grant period. Under "Item 12. Remarks" the following is

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typed: "Federal Share of outlays represents total of purchase invoices submitted by Chief Kim A. Nuesse." The Court notes that Ms Nuesse, in her testimony, denied restricting the reporting to only a three-month period when she faxed the material to Mr. Jackson.

In this matter, the Court cannot say that Chief Nuesse intentionally falsified statements on the Bryne Grants. The City of Sandusky, in the eyes of the Court, has failed to prove the allegation by a preponderance of the evidence. Mr. Ozie Jackson did not testify at trial. Therefore, there is no testimony from him as to what materials he received from Chief Nuesse. According to Chief Nuesse, the city was in default of at least six quarterly filings. It does not make any sense why Mr. Jackson would have filed only one quarterly report, two years late, which shows the entire expenditure of the grant on that form for that single quarterly period. Furthermore, during the course of the trial, it was also established that recipients of Byrne Grants are allowed to freely amend their quarterly reports to correct mistakes and inaccuracies. Funds payable under the Byrne grants generally are distributed at the end of the grant period, which in this case would have been September 30, 2008, and the City of Sandusky paid monetary invoices of significant sums for wireless connectivity during the Byrne Grant period. Accounting practices would allow for services or products already paid for out of the city's general fund to be properly credited, after the fact, to an appropriate grant funding source; however, that would not be the preferred method of handling a grant account, and it would require additional accounting entries. In this case, the quarterly report was submitted on

February 20,2008 and the grant did not terminate until September 30,2008. It would be pure speculation as to what, if any, action, Ms. Nuesse would have taken upon her review ofthe Jackson created report for the final quarter of 2006 or how she would have

prepared and filed the remaining quarterly and the final reports of the grant.

As to the Weed and Seed application, this was a city effort, involving many departments. The effort was approved by then City Manager Will and later Interim City Manager Miears and passed a vote of the city commission. The police department's component was only one of several.

Basically, several command officer positions were vacant due to budget cuts. The department tried to do more with less. According to Nuesse, the CODY software, used by the police department, was not capable of generating certain reports and providing certain information that would make the department operate more effectively. New software would also be compliant with federal and state requirements, which Nuesse believed, at the time the application was submitted, CODY was not.

Later, it was determined that the existing CODY system could indeed generate the reports and provide the information sought. Testimony indicated that CODY was federally compliant and working toward becoming state compliant.

On this issue, the Court again concludes that the City of Sandusky failed by a preponderance of evidence to prove that ChiefNuesse intentionally submitted false information on the grant application. Ms. Nuesse believed, at the time the application was submitted, that the CODY system could not do certain things, when, in fact it was

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later determined after working with CODY personnel that it could. This issue will also be addressed in the final and upcoming allegation by the city against Ms. Nuesse.

Failure of Ms. Nuesse to display absolute honesty, including using the influence of her position to mislead city officials regarding the dispatch.

The Court finds Appellant City of Sandusky established, by a preponderance of the evidence, these allegations.

These are the charges that launched the Murman Investigation and contain the essence of the charges leveled against ChiefNuesse. Background information is necessary to place these allegations in context for the purpose of understanding why ChiefNuesse fell so fast and so far from the graces of the Sandusky City Manager. In January 2008, Chief Nuesse and the City of Sandusky were moving forward with efforts to merge the dispatch operations of the Sandusky and Perkins Police Departments. By the end of February 2008, the merger talks failed and ChiefNuesse worked her last day as police chief. A careful examination of the testimony and evidence leads to an understanding of how this happened and what role Ms. Nuesse's own dishonesty played in her occupational undoing.

Events preceding Chief Nuesse being placed on leave.

On January 15,2008, Ms. Nuesse received e-mail from City Commissioner and Ex Officio Mayor, Dennis Murray, setting forth a suggested political strategy in dealing with an upcoming February 12,2008 meeting of the Perkins Township Trustees, concerning the possible merger of the Sandusky/Perkins Dispatch Operations. Mr. Murray recognized, in the e-mail, that for this merger to happen they had to "reach Jeff Ferrell," one of the three Perkins Township Trustees. Mr. Murray also emphasized that whenever anyone had a chance they had to voice support for the countywide dispatch efforts, recognizing that the Sandusky/Perkins deal would only be a short-term solution.

On February 12,2008, City Commissioners Murray, Kaman, Waddington, and Stahl, along with the City Manager, Police Chief and Fire Chief, attended the Perkins Township Trustees Meeting. Commissioner Stahl testified that at the meeting he was "basically begging, from our standpoint, to do something jointly with them." Commissioner Stahl explained that he took this position because he "was a good beggar" and because he "was desperate." Mr. Stahl explained that he was desperate and scared because he was led to believe by ChiefNuesse that the Sandusky Dispatch System was on the "verge of an ultimate collapse." Mr. Stahl promised the trustees that he would be back in two weeks with a contract for them to review and hoped they would give their consent to the proposal within two months.

Commissioner Stahl also testified as to the political situation concerning the Perkins Township Trustees. Stahl was convinced that Trustee Jeff Ferrell would not participate in the decision, as Ferrell worked for the City of Sandusky. The merger would then require the votes of the remaining two trustees. Stahl figured that Trustee Tim Coleman

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would support the matter, while Trustee Bill Dwelle would be questionable, as he had already expressed concerns about the proposaL Commissioner Stahl testified that he, therefore, looked Mr. Dwelle in the eye and addressed him directly about the proposal.

February 26, 2008 was the date Commissioner Stahl promised the Trustees of Perkins Township that he would return to them with a proposed contract for the merger of the dispatch systems. On February 25, 2008, the Sandusky City Commission met in regular session and, following that public meeting, adjourned for a closed executive session. During the public session, Commissioner Stahl reminded his fellow commissioners that he promised to provide the Perkins Trustees with the merger contract by tomorrow. Commissioner Murray responded that a contract would be timely delivered, even if by snowmobile.

It was during this meeting that Commissioner Brian Crandall asked ChiefNuesse if the Sandusky Dispatch System was on the verge of collapse. Ms. Nuesse testified that she was shocked by the question. ChiefNuesse responded to Commissioner Crandall that the dispatch system was not on the verge of collapse. A transcript of that exchange between ChiefNuesse and Commissioner Crandall confirms her response. Testimony from several of the Commissioners indicated, however, that ChiefNuesse, in the executive session and at other times, painted a dire picture of the dispatch system.

Although Commissioner David Waddington was present at both the public meeting and the executive session held on February 25, 2008, he did not share that view. Waddington testified that he never saw it as a "day-to-day" situation or that "we were going to go over a cliff with it." Waddington opined that with six or seven Commissioners, "everyone would have a different opinion."

On February 26, 2008, ChiefNuesse reported to work and was prepared to work on the proposed contract for the Perkins Township Trustees consideration. This was the day the contract was to be delivered and it still had not been prepared. On February 26, Chief Nuesse received an email from the law department stating that there would be a meeting later in the day, 3 :00 PM, at the Fire Station. Chief Nuesse asked Assistant Chief Charlie Sams to accompany her to the meeting; she assumed it was to work on the proposal to be presented to the Perkins Trustees in the next few hours.

Nuesse and Sams arrived at the Fire Station at 2:45 PM only to discover the meeting had already been in progress since 2:00 PM; they were told to wait outside by Commissioner Murray until they were allowed to come in. They were admitted to the meeting sometime after 3:00PM. Upon their entry, Commissioner Brian Crandall announced he had questions for Charlie Sams. In what could be described as a rude interrogation, Crandall asked Sams if the Chief had put a gag order on him relative to his dealing with the Erie County Sheriff's Office. Commissioner Crandall insisted on a "Yes" or "No" answer only. Ms. Nuesse answered the gag order question "No", while Mr. Sams answered it "Yes".

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Commissioner Craig Stahl informed ChiefNuesse that she had misled them on dispatch. Commissioner Murray agreed that she had misled them. Commissioner Murray then went on to announce that, earlier in the day, Perkins Township Trustee Bill Dwelle stated, at another meeting, that he was not interested in working with the City on the joint dispatch effort. As a result, the merger talks had failed. The Perkins effort was off the table. Murray and the other commissioners agreed that the City would explore a merger with Erie County.

Major incidents of dishonesty, following the failed merger

Incident One.

ChiefNuesse's behavior following this meeting was summarized in various testimonies as out of control, emotional, erratic, unraveled, and hostile in nature. Following the meeting, she telephoned City Manager Kline. Kline had been off work the entire week due to flu. He did, however, listen to the meeting at the fire station by phone. According to Kline, Nuesse felt she had been ambushed and certain commissioners wanted her fired. He tried to reassure her by telling her that Crandall was just being Crandall. Nuesse then asked Kline if her job was in trouble. He told her it was not as far as he was concerned, and he was the only one who had the power to hire or fire the police chief.

The next day was February 27. Upon arrival at work, City Manager Kline found himself dealing with another dispatch problem. ChiefNuesse told the dispatchers that they were going to be county employees in the next two weeks. This was simply not true. At the fire station meeting, the day before; it was clearly agreed that any merger of the city and county dispatch would be equipment and facilities only. The dispatchers for the city would remain city employees.

Mr. Kline found himself dealing with complaints from the vice president of the union that represented the dispatchers. He had to assure the union leader that the city employees would remain city employees. Kline confronted Nuesse and she claimed they misunderstood her; it was not what she said. The evidence is otherwise, and this incident of dishonesty, by itself, is sufficient in the Court's view to terminate ChiefNuesse.

Incident Two.

Manager Kline now realized that since the dispatch merger was now going to be with Erie County, as opposed to Perkins, other affected parties would need to be brought up to speed. On February 28,2009, Kline called for a dispatch meeting that afternoon. Kline invited var-ious representatives including those of the Sandusky Municipal Court to attend. Kline told Nuesse to attend the meeting; she refused saying she had talked to legal counsel and she was too concerned about her job. Manager Kline then told her to send Assistant Chief Charlie Sams; she refused that request as well, claiming that he also was concerned about the loss of his job. Later, Nuesse claimed that Charlie Sams had gone home that day and would not have been able to attend the meeting. Nuesse testified to that in this case. In the end, ChiefNuesse sent two officers, who were not involved,

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nor familiar with the issues, to the meeting. These officers tape-recorded the session, per ChiefNuesse's instructions. Evidence showed that the meeting was an important one. Yet, little was accomplished, since the two individuals, Officers Nuesse and Sams, who had the ongoing knowledge of the dispatch issues, were not present.

Later, it was established that Charlie Sams was not concerned about the loss of his job. Furthermore, despite Ms. Nuesse's testimony, it was clearly established that Assistant Chief Sams worked that day and could have attended the meeting. Other officers testified to his presence at the police station and his time card was entered into evidence .. This incident of dishonesty, by itself, is sufficient in the Court's view to terminate Chief Nuesse.

Incident Three.

Later that evening, City Manager Kline received a phone call from Jennifer Grathwol, a reporter for the Sandusky Register, who asked if Chief Nuesse , s job was in jeopardy. He responded in the negative. However, when he arrived at work the next morning, Friday, February 29, 2008, he saw the headlines in the Register, which read "Nuesse Under the Gun." Manager Kline then confronted Nuesse about running to the press.

When Kline confronted Nuesse, he found her to be pacing and her eyes were teary. She was clearly upset. Kline told her she needed a time out and sent her home. Nuesse was scheduled to be on vacation, starting the following Monday. When Ms. Nuesse returned from vacation, Manager Kline informed her of his decision to suspend her with pay, pending the outcome of an external investigation.

Assistant Chief Sams testified that ChiefNuesse told him that she did not know whom to trust or who her friends were. She ordered Charlie Sams to secretly tape record City Manager Kline. Sams reminded her that she had previously issued a directive against any secret tape recording of individuals. According to Sams, ChiefNuesse told him that did not apply to her or him. Ultimately, Sams did not follow the order.

Under oath at the fact finder's hearing, Ms. Nuesse denied ordering the secret tape recordings. This testimony is directly challenged not only by the testimony of Assistant Chief Sams, but also by the testimony of Lt. Chris Hofacker. Lt. Hofacker testified that Chief Nuesse called him at home that Saturday and asked him to also record City Manager Kline. This Court believes the testimony of Assistant Chief Sams and Lt. Hofacker. The Court finds Ms. Nuesse's denial to be a lie. This instance of dishonesty, by itself, is sufficient, in the Court's view, to terminate ChiefNuesse.

Misrepresentations during the merger process.

The evidence was overwhelming that the reason for merging the City of Sandusky's Dispatch System with another entity was an economic one. The city was strapped for money. Therefore, it was critical that representations made by the Police Chief to city

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officials needed to be accurate and not misleading. as the Chief s input was vital to informed decision making.

There are two areas of concern. First, it is alleged that ChiefNuesse misled city officials into believing that the dispatch system was near collapse and merger needed to be immediate. Second, it is alleged that ChiefNuesse dismissed the abilities of the CODY software used by the city and the county, so that the city would change its software to EmergiTech.

As to the former, this Court cannot confirm the validity of the allegation that Nuesse misled city officials into believing that the dispatch system was near collapse. Ms. Nuesse specifically denied that the system was on the verge of collapse, twice during the public portion of the January 25, 2008 City Commission Meeting.

While several officials felt that Chief Nuesse was saying one thing in public and another thing in private, Commissioner Waddington did not share that view. This Court notes that everyone was in agreement that the system was aged and approaching the end of its life expectancy. Undoubtedly, individuals formed their own conclusions as to when that end would occur. In this regard, the Court notes the testimony of Richard Brady, President of Brady Electric, who was a member of the Police Partnership Building Committee. Mr. Brady, who believed the situation was, in fact, dire, came to that conclusion by touring the dispatch building and viewing a leaky roof and failed wires. The evidence on this matter is simply inconclusive.

There is, however, no question that city officials were mislead as to the capabilities of the existing CODY software system. Whether or not this was intentional or due to Chief Nuesse's plain ignorance of the CODY system is, however, another matter.

As previously stated in this opinion, Chief Nuesse applied for Weed and Seed funds because the CODY software, used by the police department, was not capable of generating certain reports and providing certain information that would make the department operate more effectively. It was essential, in the view of Chief Nuesse, to be able to generate those reports and she was, by an accounts, committed to the EmergiTech system, as that was the system Perkins Dispatch used and the one with which she was most familiar. The CODY system would not have been compatible with Perkins EmergiTech, but would have been compatible with the county's system, run by the Sheriff, as that system also used CODY.

This was an extremely important matter, as large sums of money were involved. Accurate information had to be supplied to the city's decision makers. It was not.

It was later determined that the CODY could, in fact, supply the reports that Chief Nuesse claimed it could not supply. In fact, Chief Gary West of the Powell, Ohio Police Department testified that there are 45 licensed soft ware vendors in Ohio. West suggested that CODY is neither better nor worse than EmergiTech. It is totally a matter of individual preference.

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Captain Frankowski testified that the CODY System never did what it was supposed to do. Frankowski theorized that a lack of proper maintenance, ignorance, and budgetary problems might have impacted its use. In this case, the Court determines the greater weight of the evidence shows serious ignorance on the part of Ms. Nuesse's understanding the CODY system she was in charge of, rather than intentionally acting to mislead on this matter.

A pattern of dishonest conduct permeating the entire case.

In addition to the serious dishonest behavior displayed by ChiefNuesse immediately following the merger collapse, the Court, in reviewing the entire record, concludes that Chiefs Nuesse management style was, in large part, simply based upon the telling of partial truths and outright lies to suit her own purposes.

The evidence was undisputed that honesty and truthfulness are essential virtues in a police chief and a police force. In order to insure that that organization is honest, the top leadership in the department must set the tone and pave the way by displaying truthfulness in all its dealings. The Court specifically concludes that ChiefNuesse's failure to display honesty undermined the effectiveness of the Sandusky Police Department and her own performance as Chief by repeatedly violating Category III prohibitions.

The Court, by way of example, will now list a variety of those occasions where Ms. Nuesse was dishonest. The Court notes that some of these untruths were related to certain allegations in this case, which this Court concluded were not proven by a preponderance of the evidence. Nevertheless, these incidences of not being truthful certainly are relevant to issue of Ms. Nuesses "failure to display absolute honesty." Some of these matters are relatively minor in nature, while others are serious.

The following falsehoods were proved by a preponderance of the evidence:

1) ChiefNuesse insisted, under oath, that the Cedar Point and Sandusky Police Departments were co-equals (Cedar Point is a private police force, deriving its power from the City of Sandusky.)

2) There were serious problems with search warrants coming out of the police department. Nuesse claimed she corrected the problem by placing Assistant Chief Sams in charge of reviewing all warrants and making him available 2417. (Sams under oath called this a lie, as he was not in charge of reviewing warrants.)

3) Chief Nuesse insisted that lap top computers were not removed from the patrol vehicles while she was chief. (Evidence was overwhelming that she knew they were out of the vehicles and were removed while she was chief.)

4) ChiefNuesse insisted she did not ask Cedar Point Chief Majoy about Soak City Tickets. (ChiefMajoy said she did and is very credible on this issue, as he had no authority to offer her those tickets in the first place and had to call to obtain them.)

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5) ChiefNuesse insisted she talked to Judge O'Brien about the parking ticket matter. (Judge O'Brien testified that he talked to Captain Frankowski about the matter, but has no recollection of talking to Ms. Nuesse.)

6) ChiefNuesse claimed she toured the County's dispatch system when it was fully functional. (Credible evidence showed that it was not fully functional when she toured the center following a meeting.)

7) ChiefNuesse denied any knowledge of a new police website that was being prepared by Assistant Chief Sams. (Nuesse later admitted to the City Manager that she knew Sams was preparing the site and had actually seen it.)

Finally, and perhaps most illustrative of how dishonesty can undermine the effectiveness of a police department was the testimony of Lt. Chris Hofacker, who was full of praise for ChiefNuesse and her family for helping him out of a very tough personal situation. Nevertheless, upon questioning, Officer Hofacker related an incident when ChiefNuesse asked that patrol officers no longer park in the circle in front of the police station, but rather in the back. Officer Hofacker sent out a directive to other officers, informing them of the change. Officer Hofacker also testified that he forwarded a copy of the directive to Chief Nuesse.

Office Hofacker further testified that he never heard anything back from Chief'Nuesse on the order he copied her, but he did hear some complaining from officers. One day, he was standing with one of the loudest complainers when ChiefNuesse approached. Chief Nuesse told the complaining officer that the parking order was a misunderstanding; it only related to certain times that they could not park there. Hofacker then testified that the other officer "looked at me like, boy, how do you know-you're telling us this stuff and how much of it is really a fact and how much of it are you just making up kind of thing, and I lost some credibility with him a little bit."

Additional Legal Issues

Appellant, City of Sandusky, asserts that it was denied due process when Civil Service Chairperson Janice Warner refused to disqualify herself after being alerted to a potential conflict of interest. Appellant also suggests it was denied due process when Ms. Warner and Mr. Rhodes failed to provide any meaningful review of the evidence presented to the fact finder.

The Court finds no merit in Appellant's arguments on this issue. Ms. Warner stated on the record she could be impartial. The Canons of Judicial Ethics, cited extensively by Appellant on this matter, simply do not apply to citizens on an agency board. The Court will also decline the invitation to review how much time individual board members spend on their decision-making.

Appellant further suggests that Ms. Nuesse already received her de novo trial when the case was heard before the fact finder, since that hearing far exceeded, in time and detail, the usual civil service commission hearing. Even though the fact finder's hearing was

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unusually long, this Court will not deny Ms. Nuesse her statutory rights. Appellant's arguments in this regard are not well taken.

Furthermore, in view of this Court's decision, Appellee Kimberly Nuesse's cross appeal for back pay is not well taken and is, in effect, moot. As to Appellee's request for vacating the hearing officer's report, that request is also moot, since the Court has now decided the case.

As to the evidentiary issues involving testimony and evidence placed under seal and not admitted, this Court confirms those rulings particularly in light of the fact that Appellant failed to prevail on the allegation of Ms. Nuesse not cooperating with the county prosecutor. See Evid. R. 403(A).

Finally, as a prophylactic measure, the Court also reviewed the evidence, pursuant to the dictates of ORC Chapter 2506. Pursuant to that standard of review, the Court decides if the agency's decision is unconstitutional, illegal, arbitrary, capricious, unreasonable or unsupported by the preponderance of substantial, reliable and probative evidence. Using that standard, the Court's decision, herein, remains unchanged.

Conclusion

Based upon all of the following, the Court concludes that the City of Sandusky proved, by a preponderance of the evidence, the failure of Ms. Nuesse to display absolute honesty, including using the influence of her position to mislead city officials regarding the dispatch system.

Based upon all of the following, the Court concludes that the City of Sandusky failed to prove, by a preponderance of the evidence, the giving of false statements by Ms. Nuesse regarding certain grant applications; failure of Ms. Nuesse to cooperate and coordinate efforts with other employees and law enforcement organizations and agencies, such as the County Sheriff and County Prosecutor; and the use of Ms. Nuesse's public office for private gain, specifically regarding a parking ticket.

Because the City of Sandusky proved, by a preponderance of the evidence, Ms. Nuesse' s failure to display honesty, the June 17,2008 termination order of the Sandusky City Manager is upheld. The Court also concludes that the sanction of termination is appropriate. The subsequent October 7,2009 order of the Civil Service Commission, modifying Hearing Officer Cirigliano's report and reinstating Ms. Nuesse, but without back pay, is overturned.

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THERFORE, IT IS ORDERED, AJUDGED, AND DECREED THAT:

APPELLEE KIMBERLY NUESSE IS REMOVED FROM HER POSITION AS POLICE CHIEF FOR THE CITY OF SANDUSKY, OHIO.

Costs to Appellee.

THIS IS A FINAL APPEALABLE ORDER

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