JAMES R. YANT, Plaintiff-Appellant,

vs.

BOARD OF REVIEW, ET AL, Defendant-Appellees

No. CA 1939
COURT OF APPEALS, FIFTH APPELLATE DISTRICT, RICHLAND COUNTY, OHIO
Slip Opinion
January 28, 1981

COUNSEL

 JUDGES

Putman, P. J. and Rutherford, J., concur
 AUTHOR: HENDERSON

 OPINION

 

 
JUDGMENT ENTRY

For the reasons stated in the Memorandum-Opinion on file the sole Assignment of Error is overruled, the Judgment of the Richland County Court of Common Pleas is affirmed, and this cause is remanded to that Court for execution of the Judgment.

This is an appeal from the decision of the Common Pleas Court of Richland County, Ohio affirming the decision of the Board of Review, Ohio Bureau of Employment Services, which Board of Review had affirmed the Referee's holding that Plaintiff-Appellant had been discharged from his employment for just cause.

Plaintiff-Appellant's Assignment of Error is as follows:

THE RICHLAND COUNTY COMMON PLEAS COURT ERRED IN HOLDING THAT THE DECISION OF THE BOARD OF REVIEW, OHIO BUREAU OF EMPLOYMENT SERVICES, MAILED MARCH 3, 1980, WAS NOT UNLAWFUL.

Plaintiff-Appellant had been employed by the City of Mansfield, Ohio, in the Mansfield Police Department. He was what is commonly referred to as a C.E.T.A. employee. He was discharged from his employment with the Police Department on or about August 24, 1979. On August 28, 1979 he filed an application for unemployment compensation benefits with O.B.E.S. On September 13, 1979, O.B.E.S. mailed Plaintiff-Appellant a "Determination of Benefits" denying his claim. His "Request for Reconsideration" was timely filed on September 27, 1979. On November 8, 1979 the request for "Reconsideration" was referred to the O.B.E.S. Board of Review for hearing. The Referee's hearing was held on January 10, 1980. On January 22, 1980 the Referee, in his decision, held that Plaintiff-Appellant had been "discharged for just cause in connection with the work" pursuant to R.C. 4141.29 (D)(2)(a). Said Referee affirmed the denial of Plaintiff-Appellant's claim for benefits. On March 3, 1980 the Board of Review disallowed Plaintiff-Appellant's application for a further appeal. By so doing the Board of Review affirmed the Referee's decision under R.C. 4141.28 (M) and totally denied Plaintiff-Appellant's claim for unemployment compensation benefits. On March 14, 1980 a timely appeal was filed in the Richland County Court of Common Pleas. On August 28, 1980 the Court of Common Pleas of Richland County, Ohio entered a final Judgment affirming the decision of the Board of Review and on September 25, 1980 a timely appeal was filed in this Court.

Plaintiff-Appellant had been employed by the Mansfield Police Department as a police aide and performed numerous functions within the Police Department as an inner jailer guard, on the information desk, PBX telephone system, store room clerk, paging people, and other jobs in the department. Plaintiff-Appellant was not a part of the uniformed personnel. Plaintiff-Appellant had been working in the Police Department since March 19, 1977. The evidence in the record indicates that on August 17, 1979 Plaintiff-Appellant saw a minor boy hitchhiking on Fourth Street in the City of Mansfield and stopped and picked up said hitchhiker. The alleged offense, gross sexual imposition, occurred on this occasion and when the same was reported to employees of the Mansfield Police Department sometime later, policemen went to Plaintiff-Appellant's home and commenced an investigation of the incident. They advised Plaintiff-Appellant that he was no longer employed by the Mansfield Police Department. The evidence further indicates that at a later time, to wit: November 9, 1979 Plaintiff-Appellant plead guilty to a third degree felony of Gross Sexual Imposition.

The sole issue before this Court then is whether the decision of the Board of Review finding the Referee's decision that Plaintiff-Appellant had been discharged for just cause "in connection with his work" is unlawful. This Court in an unreported decision, Denton vs. McCracken, being case #CA 1663 in the Court of Appeals for Richland County and dated November 18, 1977, held as follows with regard to the construction of R.C. 4141.29 (D)(2)(a):

"In our view, a liberal construction of R.C. 4141.29 (D)(2)(a) in favor of the claimant does not allow for the argument that an act of theft, unrelated by time or place to employment, may, in some circumstances, serve as the predicate for a 'discharge for just cause in connection with his work'."

The claimant in the McCracken case was a clerical employee, employed by the State of Ohio, who was arrested for shoplifting, not connected with her employment, which charge was later reduced to disorderly conduct. This Court held under those circumstances that the act of theft not related by time or place to employment was not sufficient to connect the crime with the employee's work. The case at bar, however, involves one who is working as an aide in the Mansfield Police Department and who served numerous functions within that Department coming in contact with the public, with prisoners in the jail and also with employees of the Police Department. We hold in this case that the seriousness of the crime is such that said act would bring dishonor upon the Mansfield Police Department, a law enforcement agency charged with the responsibility of upholding the laws of the State of Ohio and the ordinances of the City of Mansfield. We hold further that a police aide who commits the crime of gross sexual imposition with a minor even during off-duty hours may be "discharged for just cause in connection with his employment". The case of Denton vs. McCracken is therefore distinguished by reason of the nature of Plaintiff-Appellant's employment and upon the seriousness of the crime which was committed and admitted to by Plaintiff-Appellant.

For the foregoing reasons the Assignment of Error of Plaintiff-Appellant is overruled and the Judgment of the Common Pleas Court of Richland County, Ohio is affirmed and this cause is remanded for execution of that Judgment.