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JOHNNY PERNELL Plaintiff-Appellant
Case No. 15810
November 15, 1996, Rendered
Konrad Kuczak S.C. Regis. No. 0011186 333 West First Street Suite 236 Dayton Ohio 45402 Counsel for Plaintiff-Appellant.
John F. Krumholtz S.C. Regis. No. 0018444 Assistant Prosecuting Counsel P.O. Box 972 301 West Third Street Dayton Ohio 45422 Counsel for Defendant-Appellee.
FREDERICK N. YOUNG J. Brogan P.J. and Fain J. concur.
The Hon. Justice Frederick N. Young

Johnny Pernell is appealing from the decision of the Montgomery County Common Pleas Court affirming the decision of the State Personnel Board of Review which upheld the termination of Johnny Pernell's employment by the Montgomery County Board of Commissioners. The essence of the case was set forth by the trial court the Honorable John P. Petzold in his decision and entry adopting a referee's report with modifications as follows:


This matter is before this Court by way of an administrative appeal filed by Appellant Johnny Pernell (hereinafter "Pernell") pursuant to R.C. SEC. 124.34 and 199.12. Appellant appealed the agency decision of the Ohio State Personnel Board of Review (hereinafter "SPBR") affirming his removal thus terminating Appellant's employment with Appellee Montgomery County Board of Commissioners (hereinafter "the County"). Referee Timothy O'Connell recommends that judgment be entered in favor of the County against Pernell affirming the action of the SPBR.

On October 22 1992 Pernell was terminated from his civil service position as the County Solid Waste Transfer and Haul Manager for reasons of insubordination misfeasance and failure of good behavior. By a unanimous decision the SPBR affirmed Pernell's termination on two grounds. First the SPBR found that Pernell had submitted a falsified time card on behalf of his secretary in contradiction to his supervisor's orders. Secondly the SPBR found that Pernell improperly refused to submit to a drug screen test ordered by his supervisor.

(Decision Adopting Referee's Report pp. 1-2.)

A common pleas court reviews an administrative agency's decision to determine if it is "supported by reliable probative and substantial evidence and is in accordance with law." (R.C. 119.12.) The agency's findings of fact are presumed to be correct but purely legal questions are reviewed de novo by both the trial court and a court of appeals. Univ. Hosp. Univ. of Cincinnati College of Medicine v. State Emp. Relations Bd. (1992) 63 Ohio St. 3d 339 587 N.E.2d 835 paragraph one of the syllabus. Outside of purely legal questions an appellate court's standard review of a common pleas court's decision as to an appeal from an administrative agency is confined to determining whether the trial court abused its discretion. Pons v. Ohio State Med. Bd. (1993) 66 Ohio St. 3d 619 621 614 N.E.2d 748. An abuse of discretion connotes a decision that is unreasonable arbitrary or unconscionable. Gen. Motors Corp. v. Tracy (1995) 73 Ohio St. 3d 29 32 652 N.E.2d 188.

The State Personnel Board of Review (SPBR) found that two separate and distinctive acts of Pernell supported his termination from employment with Montgomery County. Two of three errors assigned by Pernell in this appeal attack the findings of the SPBR and the trial court as to those two separate and distinct reasons for determination. The facts in each of those grounds for discharge are uncontradicted and will be discussed under each of the two separate assignments of error. The third assignment of error which charges that "the trial court failed to apply the appropriate standard of review adopting the referee's report " must be dealt with first since if we sustain this assignment the matter must be remanded back to the trial court and it will not be necessary to deal with the other two assignments.

That portion of the trial court's decision which is attacked by this third assignment of error is as follows:


Section 119.12 provides in part:

Court [of Common Pleas] may affirm the order of the agency complained of in the appeal if it finds upon consideration of the entire record and such additional evidence as Court has admitted[ ] that the order is supported by reliable probative and substantial evidence and is in accordance with the law.

Furthermore this Court must give deference to the agency's resolution regarding conflicting evidence; however "the findings of the agency are by no means conclusive." Univ. of Cincinnati v. Conrad (1980) 63 Ohio St. 2d 108 111 407 N.E.2d 1265. This Court will presume the correctness of the agency's findings of fact unless said findings are "internally inconsistent impeached by evidence of prior inconsistent statements rest upon improper inferences or are otherwise unsupportable." Ohio Hist. Soc. v. SERB (1993) 66 Ohio St. 3d 466 471 613 N.E.2d 591; see also Electrical Mgmt. Syst. Inc. v. Liquor Control Com'n (1993) 1993 Ohio App. Case No. 13843 Ohio App. 2 Dist. (Montgomery County).

However this matter is not before this Court as an original action. The Referee has conducted an exhaustive review of the proceedings and evidence before the SPBR. The standard outlined in Civ. R. 53 is as follows:

The report of the referee shall be effective and binding only when approved and entered as a matter of record by Court. The referee's findings of fact must be sufficient for Court to make an independent analysis of the issues and to apply appropriate rules of law in reaching a judgment order. . . Court shall enter its judgment on the issues submitted for action and report by the referee.

It is this standard of Review that Court will base its determination of each of Pernell's objections discussed below.

(Decision Adopting the Referee's Report pp. 2-3 emphasis added.)

It is the underlined sentence in Court's opinion which apparently leads Pernell to believe that Court applied the wrong standard of review to the decision of the SPBR. However it is clear from the context of Court's decision that the underlined sentence referred only to Court's review of the referee's findings and recommendations not the findings and the decision of the SPBR. It is clear from the rest of Court's decision that it made an independent analysis of the issues and entered its own judgment on the issues submitted for its action and by the report of the referee. We have thoroughly perused the extensive record in this case on appeal and we find that both the referee and the trial court applied the proper standard of review to the decision of the SPBR. The third assignment of error is overruled.

The first assignment of error asserts that:


The uncontradicted facts in this issue and the trial court's legal analysis are set forth in Court's opinion as follows:

Pernell alleges that his supervisor's order that he submit to a drug screen test was not reasonable under the County's policy and thus he was not insubordinate for refusing to take the test.

As noted by the Referee the Fourth Amendment of the United States Constitution is applicable in this situation because the employers [sic] is a governmental body thus actions the County takes are state actions. Furthermore drug testing is a search subject to the Fourth Amendment standards. Skinner v. Railway Labor Exec. Assoc. (1989) 489 U.S. 602 103 L. Ed. 2d 639 109 S. Ct. 1402. The Supreme Court has recognized certain circumstances which may justify departures from the usual warrant and probable cause requirements. Id.; Treasury Employees v. Von Raab (1988) 489 U.S. 656 103 L. Ed. 2d 685 109 S. Ct. 1384. In cases where the public interest is great and the privacy concern is minimal the prerequisite for a search would be suspicion. Treasury Employees v. Von Raab (1988) 489 U.S. 656 103 L. Ed. 2d 685 109 S. Ct. 1384. The Referee was correct in concluding that given the nature of Pernell's employment (i.e. concerns regarding heavy equipment operation and environmental regulations) there is a substantial public interest involved.

The County has an expansive Substance Abuse/Testing Policy for a Drug-Free Workplace. This policy lists several situations where an employee must submit to a drug screen test all of which appear to be within the confines of the Fourth Amendment.

Pernell held the position of Manager of the Trash and Haul division. His employment required that he be on call 24 hours a day. Pernell supervised approximately 20 operators of heavy tractor trailers and was responsible for determining whether said operators were fit to operate potentially dangerous equipment. Furthermore Pernell although he did not routinely operate heavy equipment could reasonably be expected on various occasions to test heavy equipment. The Referee's determination that Pernell is in a safety sensitive position or what is referred to in the County's Substance Abuse/Testing Policy for a Drug-Free Workplace (hereinafter "Policy") as a "Public Safety Position" is correct.

Under said Policy there are three situations whereby a public safety position employee when ordered by his supervisor must submit to a drug screen test: 1) pre-employment examination 2) routine examinations during employment or 3) impaired performance. Under impaired performance subsection (a) "Testing shall be required of any employee when there is a reasonable suspicion that substance(s) is/are affecting performance in the workplace."

The evidence brought forth by the County establishing reasonable suspicion is uncontroverted by Pernell. Prior to his supervisor's order Pernell was aware of the Policy by virtue of his participation in its formulation as it related to his position. He gave an employee marijuana off-site. The odor of marijuana had been reported as coming from Pernell's office on two prior occasions. Marijuana was found in Pernell's home earlier on the day of refusal by a Sheriff's deputy executing a warrant. In continuation of said search Pernell reported to his workplace with the deputy and it was at that time that he was ordered to submit to a drug screen test by his supervisor.

As the Referee noted and quoting from the Policy all that was required was that there was a "reasonable suspicion that substance(s) is/are affecting performance in the workplace." (Policy at 7.) The Referee correctly concluded that the supervisor's order was reasonable and pursuant to the Policy Pernell's refusal amounts to "insubordination and will result in disciplinary action up to and including removal." (Policy at 9)

(Decision Adopting the Referee's Report pp. 4-6.)

Further illumination of this issue is found in portions of the referee's report as follows:

Appellant was responsible for ensuring that the drivers were fit for duty each day when they reported for work. Appellant did not personally operate the trucks however Appellant did occasionally demonstrate the use of equipment. There were twenty to thirty employees in the Transfer and Haul Division at any one time during the Appellant's tenure as manager.

During the time the deputies were searching Appellant's office or shortly thereafter Jim Dinneen Appellant's supervisor at the time arrived at the Transfer and Haul Department office. Mr. Dinneen was aware at that time of the David Holt incident the day in 1992 of the detection of odor of marijuana about Appellant's office and the discovery of apparent marijuana in Appellant's residence. Based on that Mr. Dinneen asked Appellant to submit to a drug screen. Initially Appellant indicated he would submit to a drug screen. Relatively a short time later Appellant decided he would not submit to a drug screen. Mr. Dinneen indicated to Appellant that failure to submit to a drug screen after being ordered to do so by a supervisor was considered insubordination under the County's drug policies and Appellant was subject to disciplinary action including termination. Appellant persisted in his refusal to submit to a drug screen. After the passage of a little time Mr. Dinneen again asked Appellant to submit to a drug screen and again advised him of a possible harsh consequence for refusal to submit. Appellant refused to submit to a drug screen.

Appellant's supervisor had some information at his disposal when he required Appellant to submit to a drug screen. Appellant's supervisor Jim Dinneen had been advised that appellant gave an employee a bag of marijuana off site and after hours about fourteen months before. Mr. Dinneen knew another employee had detected the odor of burning marijuana coming from Appellant's office on two occasions approximately three months before. Mr. Dinneen was advised that a Sheriff's deputy had found marijuana in Appellant's office garbage several days or weeks before. Jim Dinneen had information that a bag of suspected of [sic] marijuana was found in Appellant's master bedroom earlier that day. The fact that Mr. Dinneen knew and it was accurate that the odor of burning marijuana from Appellant's office had been detected and that the marijuana had been found in Appellant's office garbage is critical. This evidence make it reasonable for Mr. Dinneen to suspect that Appellant was engaged in the use and/or possession of a controlled substance at work. Since it was reasonable to suspect Appellant the demand for a drug screen is not improper and Appellant was not lawfully entitled to refuse. Granted some of the passage of time the off duty nature and the possibility of sources other than Appellant might prevent a neutral and detached magistrate from determining that probable cause to search existed but that is not the requirement. Probable cause is not required for searches of these safety sensitive employees in employment drug testing contexts. What is required is a simple reasonable suspicion.

(Referee's Report pp. 4 8-9 23. Emphasis added.)

Montgomery County's "Substance Abuse/Testing policy for a drug-free work place" provides that:

2. Reporting to or being at work impaired workplace manufacture use sale distribution of possession by an employee of intoxicating liquors controlled substance drug not medically authorized or any other substances which impair performance or pose a hazard to the safety/welfare of the employee other employees or the public at large is strictly prohibited. Disciplinary action taken against an employee may include the full range of disciplinary actions including removal. The severity of the action taken will depend on the circumstances of each case and will be consistent with the County's disciplinary policies.

(Montgomery County Substance Abuse/Testing Policy pp. 1-2.)

Included in the evidence submitted to the SPBR by the county to support its termination of Pernell on the ground that he violated the drug abuse policy is the following written statement by another employee of the county Jack G. Gearing:

On May 5 1992 at approximately 4:10 P.M. I went to Johnny Pernell's office building and I found the doors to the building locked. I unlocked the secretaries [sic] door and when I entered I saw Gail Hayes sitting in a chair in the next room. As soon as I entered I smelled the odor of marijuana. At that same time Johnny Pernell came out of another office and said "what's up." I said as I was backing out of the office for him to watch channel seven news at six o'clock because I got a call that something was going on at Ash Management. I then left.

On May 14 1992 at approximately 5:10 P.M. I went to Johnny Pernell's office building and I found the doors locked. I unlocked the secretaries [sic] door and as I did I heard a noise in Johnny Pernell's office. At that time he came out in his door way and I then smelled the odor of marijuana.

I then told him to make sure he watches the 6 o'clock news because our truck drivers said they saw Channel 7 and the Sheriff's Office at Ash Management again. I then walked out of the office and Johnny followed me to my car in the parking lot.

I am sure that it was the smell of marijuana because I have been at parties where people were smoking it.

Jack G. Gearing

(Appellee's Exhibit 17.)

Further evidence of Pernell's use of marijuana at his workplace site was brought forward by the testimony of Leslie Loofboro a deputy and detective in the Montgomery County Sheriff's Department who on direct examination at the hearing before the SPBR reported that he had picked up trash at Pernell's office and "found a quantity of suspected marijuana" which he submitted to the regional crime lab where it was "chemically analyzed and found to be marijuana." (Tr. 416.)

The county drug policy which has been quoted above specifically prohibits the use of a controlled substance at the workplace.

Pernell argues that because the county policy specifically calls for testing when an employee is observed to be physically impaired ordering a routine physical or a pre-employment test the policy therefore excludes testing for any other reason such as evidence of substance abuse in the workplace itself. To say that an employer cannot reasonably require a drug test of an employee who is suspected of abusing controlled substances actually at work is ludicrous. A standard of "bare reasonableness" is all that is required for assessing the constitutionality of ordering drug testing for employees in safety sensitive positions. Burka v. New York City Transit Authority (1990 S.D.N.Y.) 739 F. Supp. 814 citing Skinner v. Railway Labor Exec. Assn. (1989) 489 U.S. 602 103 L. Ed. 2d 639 109 S. Ct. 1402.

Certainly the odor of marijuana in Pernell's office and the actual finding of it in his trash provide more than a barely reasonable suspicion that he was engaging in prohibited drug use at the workplace. He was also found to possess marijuana at home but we are not relying upon that fact to justify his termination. All that is sufficient to justify it is his refusal to take the test after his employer has a reasonable suspicion that he was using marijuana at his office work site. The first assignment of error is overruled.

In his second assignment of error the appellant argues that:


Pernell forcibly argued that the referee found him to be dishonest when he falsified the time card for another employee and that such a finding has no basis because he did not actually profit from the falsification. However Court did not base its finding on the dishonesty issue as explained in the following excerpt from the trial court's decision and opinion:

It is uncontroverted that on the 19th 20th and 21st of December 1990 Pernell was on a Caribbean cruise with his secretary Gail Hayes. Prior to their departure Pernell requested a vacation advance for Hayes; however Pernell's supervisor only approved a leave for Hayes without pay. Pernell signed Hayes [sic] time card indicating she was at work on the above noted days when in fact Hayes was not but rather she was on the cruise with Pernell. The SPBR concluded that Pernell's conduct amount to "falsification of payroll."

Pernell was removed pursuant to R.C. 124.34 for insubordination misfeasance and failure of good behavior. With regard to falsification of payroll the SPBR correctly noted that "Appellant who was a manager for five years and a supervisor prior to that either knew or should have known that verifying that an employee is working when in fact her [sic] or she is not amounts to falsification of payroll." Pernell's actions amount to misfeasance (i.e. improper performance) and insubordination (i.e. action in contradiction to supervisor's order); in addition to the obvious failure of good behavior alleged.

The question in this case is not whether Pernell's behavior rose to the level of dishonesty but whether as alleged his behavior in falsifying Hayes' time card amounted to insubordination misfeasance and failure of good behavior as alleged. This Court supports the SPBR finding that Pernell's actions warranted removal and thus subsequently concurs with the Referee's recommendation; however [sic] this Court adopts said recommendation however this Court holds that Pernell was terminated for reasons noted by the SPBR insubordination misfeasance and failure of good behavior and not for dishonesty as noted by the Referee.

(Decision Adopting the Referee's Report pp. 3-4.)

This particular action of Pernell standing alone perhaps would not justify his termination but rather maybe a lesser discipline. However we do not need to reach the merits of this assignment of error since we find that Pernell's refusal to be screened for drugs after his employer had a reasonable suspicion that he was violating the county's drug policy was by itself sufficient to justify his termination. Pursuant to App.R. 12(A)(2) we therefore find this issue moot.

The judgment is AFFIRMED.

Brogan P.J. and Fain J. concur.