John R. Hartley, Appellant-Appellant,

vs.
Ohio State Board of Review, U.S. Postal Service Director,
Appellees-Appellees
NO. 83AP-1176
COURT OF APPEALS OF OHIO, TENTH APPELLATE DISTRICT, FRANKLIN COUNTY
1984 Ohio App. LEXIS 10161
June 26, 1984

APPEAL from the Franklin County Court of Common Pleas.
 
COUNSEL
MR. ROBERT W. SUHR, for appellant.
MR. ANTHONY J. CELEBREZZE, JR., Attorney General, MR. HOWARD M. SANDERS, and MR. PAUL C. KOSCIK, for appellees.
JUDGES
WHITESIDE and STILLMAN, JJ., concur.
STILLMAN, J., retired, of the Eighth Appellate District, was assigned to active duty under authority of Section 6(C), Article IV, Constitution.
AUTHOR: MCCORMAC
OPINION
John R. Hartley, appellant-appellant, applied for unemployment compensation benefits after he was fired from his job as a postal clerk with the United States Post Office, appellee-appellee. The administrator of the Ohio Bureau of Employment Services denied him benefits on the basis that he had been discharged for just cause for conduct unbecoming a postal employee as a result of his felony conviction for trafficking in drugs.
Hartley appealed to the Board of Review, Ohio Bureau of Employment Services (board). After a hearing where the sole evidence presented by the employer for just cause for discharge was Hartley's felony conviction, which was then being reviewed by this court on direct appeal but concerning which a decision had not yet been rendered, the board affirmed the decision of the administrator.
Hartley appealed the decision of the board to the Court of Common Pleas of Franklin County, pursuant to R.C. 4141.28(O). While the case was pending in the common pleas court, Hartley's conviction was reversed by this court in State v. Hartley (June 30, 1983), No. 82AP-906, unreported (1983 Opinions 1939). His conviction was reversed as being against the manifest weight of the evidence. By amended complaint, Hartley set forth the reversal of his felony conviction as an additional reason why the decision of the board was unlawful, unreasonable, or against the manifest weight of the evidence.
The common pleas court affirmed the decision of the board finding that it was not unlawful, unreasonable, or against the manifest weight of the evidence. The common pleas court found that the reversal by the court of appeals did not clear Hartley of conduct unbecoming a postal employee, stating that "[t]he facts laid out in the Court of Appeals decision would support the civil action of 'discharge for conduct unbecoming a postal employee, trafficking in drugs'. Furthermore, the action of the Court of Appeals is not binding upon the administrative body".
Hartley has appealed the judgment of the common pleas court to this court, asserting the following assignments of error:
"1. The trial court erred in failing to find that the board erred in its finding that plaintiff was discharged for just cause in connection with his work.
"2. The trial court erred in failing to find the decision of the Board of Review unlawful, unreasonable, and against the manifest weight of the evidence.
"3. The trial court erred in imposing a higher standard of proof on appeal than is required before the Board of Review."
R.C. 4141.28(O) provides, as follows, in relation to an appeal from the board to the common pleas court:
"* * * If the court finds that the decision was unlawful, unreasonable, or against the manifest weight of the evidence, it shall reverse and vacate such decision or it may modify such decision and enter final judgment in accordance with such modification; otherwise such court shall affirm such decision. * * *"
The board relied solely upon the conviction of Hartley of the felony of trafficking in drugs as the basis for his discharge from the postal service for conduct unbecoming a postal employee. There was no inquiry into the facts underlying the criminal conviction nor did the board look into the credibility of any of the witnesses, including Hartley who at all times maintained that he was innocent of the charge. The board also made no determination of the effect of a reversal by this court of the criminal conviction, merely noting that the case was on appeal with no decision having been rendered.
The board did not err in finding that there was just cause for discharge of Hartley after he was convicted by a jury of the felony of trafficking in drugs, which conviction remained a valid judgment at the time of the hearing before the board. It was not necessary as contended by appellant in his first assignment of error that the criminal conviction had been in regard to conduct directly connected with his employment. A felony conviction of trafficking in drugs constitutes conduct unbecoming a postal employee even though the criminal activity is conducted solely on the employee's own time.
Appellant's first assignment of error is overruled.
Appellant secondly contends that the common pleas court erred in failing to find the decision of the board unlawful, unreasonable, and against the manifest weight of the evidence, because the sole evidence against him was the criminal conviction which had since been reversed as against the manifest weight of the evidence.
Appellant's contention is well taken. The employer made no attempt to inquire into appellant's conduct other than providing that he had been convicted of a felony of trafficking in drugs. When that conviction was reversed, the judgment, which was the sole basis for the finding that appellant was justly discharged, no longer had any force or effect. In essence, it was the same as if appellant had only been charged with a felony. With the reversal of the conviction, there was then no evidence to support the decision of the board. Thus, the board's decision was unlawful, unreasonable, and against the manifest weight of the evidence.
Appellant's second assignment of error is sustained.
Appellant thirdly contends that the trial court erred in looking at the decision of this court reversing appellant's criminal conviction and finding therefrom that there were still sufficient facts to support a finding that appellant was discharged with just cause for conduct unbecoming a postal employee, despite the fact that the evidence was not sufficient to support a criminal conviction based upon a higher standard of proof.
We agree that the trial court erred in this respect. The board did not hear evidence concerning the underlying facts regarding appellant's conduct. The board relied only upon the criminal conviction. Moreover, the trial court did not have witnesses before him to judge the credibility of the witnesses and to decide the facts. Our decision stated only the facts most favorable to the state and concluded that, even if those facts were believed by the trier of the fact, they were legally insufficient to support the criminal conviction. If appellant's conduct is to be judged on the facts of his behavior rather than a felony conviction, there must be an opportunity for the trier of fact to hear all relevant testimony and to judge the credibility of the witnesses. The common pleas court should have reversed and vacated the decision of the board and remanded the case to the board for further procedure, rather than attempting to determine facts without any testimony before it and to make inferences contrary to appellan
t solely from a recitation of facts in our decision reversing the criminal conviction.
Appellant's third assignment of error is sustained.
Appellant's first assignment of error is overruled. Appellant's second and third assignments of error are sustained. The judgment of the trial court is reversed, and the case is remanded to the trial court for further procedure consistent with this decision.
DISPOSITION
 
Judgment reversed and case remanded.