[Cite as Mordick v. Dayton, 2012-Ohio-289.]

 IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO 

 : 

PHILIP MORDICK 

Plaintiff-Appellant : C.A. CASE NO. 24663 

vs. : T.C. CASE NO. 2010 CV 9512 

 : (Civil Appeal from 

CITY OF DAYTON Common Pleas Court) 

Defendant-Appellee : 

 . . . . . . . . . 

 O P I N I O N

 Rendered on the 27th day of January, 2012. 

 . . . . . . . . . 

Robert L. Caspar, Jr., Atty. Reg. No. 0039625, 7460 Brandt Pike, 

Huber Heights, OH 45424 

Attorney for Plaintiff-Appellant 

Thomas M. Green, Atty. Reg. No. 0016361, 109 North Main Street, 

800 Performance Place, Dayton, OH 45402-1290 

Attorney for Defendant-Appellee 

 . . . . . . . . . 

GRADY, P.J.: 

{¶ 1} This is an appeal from a final order of the court of 

common pleas entered pursuant to R.C. 2506.04. 

{¶ 2} Philip Mordick was employed as an officer for the City 

of Dayton Police Department. On January 16, 2010, Mordick and 

Officer Erica Cash were patrolling the Third District in Dayton. 
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 Mordick was driving the police cruiser and Officer Cash was a 

passenger. During the morning hours, Mordick drove the cruiser 

out of the Third District into the Second District, past his 

personal residence on Coventry Road and down Smithville Road onto 

Springfield Street. Mordick told Officer Cash that he was trying 

to find his girlfriend who had been missing since the night before. 

 Officer Cash informed Mordick that she did not believe his actions 

were proper. Mordick and Officer Cash then resumed their patrol 

in the Third District. 

{¶ 3} Later that afternoon, between 1:00 and 1:30 p.m., Mordick 

again returned to the Second District, driving the police cruiser 

past his residence on Coventry and then heading north on Smithville 

Road and passing Springfield Street. Mordick recognized his 

girlfriend’s vehicle and turned onto Byesville Boulevard, leaving 

the City of Dayton and entering the City of Riverside. Mordick 

parked the cruiser in the yard at 4337 Byesville Boulevard. 

Mordick used the Mobile Data Terminal (“MDT”) in the cruiser to 

inform dispatch that he and Officer Cash were en route to the police 

department’s gasoline line located at 1830 E. Monument Avenue to 

fill up the cruiser with gasoline. Mordick then went inside the 

residence, leaving Officer Cash in the cruiser. 

{¶ 4} Mordick was inside the residence for approximately ten 

minutes. While Mordick was inside the residence, Officer Cash 
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contacted Sergeant David Wolford and informed him that they were 

parked in front of a residence on Byesville Road. When Mordick 

returned to the cruiser, Sergeant Wolford contacted Mordick and 

asked him where he was located. Mordick responded that he and 

Officer Cash were at Smithville Road and Springfield Street. 

Mordick then drove the cruiser to 1830 E. Monument Avenue to refuel 

the cruiser. 

{¶ 5} As a result of Mordick’s improper conduct, Sergeant 

Wolford conducted an investigation of the events of January 

16, 2010. Officer Cash, Mordick, and Sergeant Wolford 

prepared and submitted Special Reports detailing the events 

of January 16, 2010. Subsequently, Mordick was served with 

notice of three separate charges against him, alleging 

improper conduct in violation of Police Department rules. 

Charge III specifically provided that a violation would result 

in termination of his employment. The charge alleged a 

violation of Rule 13, Section 2(B), in that Mordick engaged 

in “Conduct unbecoming an employee in the public service,” 

and/or Rule 13, Section 2(I), in that Mordick’s conduct 

constituted a “[v]iolation of any enacted or promulgated 

statute, ordinance, rule, policy, regulation, or other law.” 

 The charge contained the following specification: 

{¶ 6} On or about January 16, 2010, at approximately 1:30 
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p.m., you entered false information in the Mobile Data 

Terminal when you entered your location as 1830 E. Monument 

Avenue. This is in violation of the Dayton Police 

Department’s Rules of Conduct for Sworn Personnel 8.5, the 

pertinent provisions of which state: 

ROC 8.5 

No officer will knowingly falsify any report, document, 

or record or cause to be entered any inaccurate, false, 

or improper information on records, documents, or 

reports of the Department or of any court or alter any 

record, document, or report except by a supplemental 

report, document, or report. If an investigation 

reveals that an officer has violated this section, their 

employment with the Dayton Police Department will be 

terminated. 

{¶ 7} Mordick entered a plea of no contest to the charges and 

specifications and waived the departmental hearing before Chief 

of Police Richard Biehl. After reviewing the evidence, Chief Biehl 

recommended a finding of guilty of all the charges and 

specifications and, as to Charge III, that Mordick be terminated 

from employment. Mordick requested to change his no contest plea, 

but Chief Biehl had already made a finding of guilty and denied 

the request. 
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{¶ 8} The City Manager adopted the findings of Chief Biehl 

and found Mordick guilty as charged. Mordick was discharged from 

employment under Charge III, Specification I. 

{¶ 9} Mordick appealed to the City of Dayton Civil Service 

Board (“the Board”), which held a hearing on October 14, 2010. 

The parties submitted evidence at the hearing. Following the 

hearing, the Board found that the discharge of Mordick was “in 

accordance with law and is sustained.” 

{¶ 10} Mordick appealed to the court of common pleas, which 

affirmed the Board’s decision, finding that the decision of the 

Civil Service Board was not “unconstitutional, illegal, arbitrary, 

capricious or unreasonable” and “is supported by the preponderance 

of substantial, reliable and probative evidence.” R.C. 2506.04. 

 Mordick filed a timely notice of appeal. 

THIRD ASSIGNMENT OF ERROR

{¶ 11} “THE COURT OF COMMON PLEAS ERRED AS A MATTER OF LAW AND 

FACT WHEN IT IMPROPERLY EXPANDED AND CHANGED THE CHARGE AGAINST 

MORDICK IN ORDER TO UPHOLD THE FINDINGS OF THE CIVIL SERVICE BOARD.” 

 FOURTH ASSIGNMENT OF ERROR

{¶ 12} “THE COURT OF COMMON PLEAS ERRED AS A MATTER OF LAW AND 

FACT WHEN IT FOUND THE DECISION OF THE DAYTON CIVIL SERVICE BOARD 

WAS SUPPORTED BY A PREPONDERANCE OF SUBSTANTIAL, RELIABLE AND 

PROBATIVE EVIDENCE.” 
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{¶ 13} We will address the third and fourth assignments of error 

together as they are interrelated. 

{¶ 14} In Henley v. Youngstown Bd. of Zoning Appeals, 90 Ohio 

St.3d 142, 147-48, 2000-Ohio-493, at ¶ 13-14, the Supreme Court 

explained the standard of review to be applied in reviewing R.C. 

Chapter 2506 administrative appeals: 

Construing the language of R.C. 2506.04, we have 

distinguished the standard of review to be applied by 

common pleas courts and courts of appeals in R.C. Chapter 

2506 administrative appeals. The common pleas court 

considers the “whole record,” including any new or 

additional evidence admitted under R.C. 2506.03, and 

determines whether the administrative order is 

unconstitutional, illegal, arbitrary, capricious, 

unreasonable, or unsupported by the preponderance of 

substantial, reliable, and probative evidence. 

The standard of review to be applied by the court 

of appeals in an R.C. 2506.04 appeal is “more limited 

in scope.” (Emphasis added.) Kisil v. Sandusky (1984), 

12 Ohio St.3d 30, 34, 12 OBR 26, 30, 465 N.E.2d 848, 

852. “This statute grants a more limited power to the 

court of appeals to review the judgment of the common 

pleas court only on ‘questions of law,’ which does not 
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include the same extensive power to weigh ‘the 

preponderance of substantial, reliable and probative 

evidence,’ as is granted to the common pleas court.” 

{¶ 15} The court of common pleas correctly found that the 

preponderance of substantial, reliable, and probative evidence 

supported the Board’s order. Officer Cash and Sergeant Wolford 

testified that Mordick knowingly falsified his location as 1830 

E. Monument Avenue on January 16, 2010. Mordick also prepared 

a Special Report that established this fact. During the time 

Mordick stated that he was en route to or at 1830 E. Monument Avenue, 

Mordick was actually outside the City of Dayton. The entry of 

false information into the MDT, as established by the testimony 

of Officer Cash and Sergeant Wolford, along with the Special Reports 

prepared by Mordick, Officer Cash, and Sergeant Wolford, supports 

the trial court’s decision. 

{¶ 16} Mordick argues that the evidence can be construed to 

find that he was “en route” to the location he entered in the MDT, 

which undermines the finding of the Board that he made a false 

report of his location. However, Mordick’s argument is undermined 

by a number of facts. 

{¶ 17} First, Mordick entered that information in the MDT when 

he was instead either heading to or parked in front of a house 

located outside the City of Dayton, where Mordick had gone in search 
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of his girlfriend. Mordick then entered the house before 

proceeding to the Monument Avenue location. The Board was entitled 

to rely on that evidence to find a false report. 

{¶ 18} Second, Mordick entered a plea of no contest to the charge 

of making a false report when he was presented with the three charges 

or specifications against him. The false report specification, 

if found, requires a termination. 

{¶ 19} Third, the Special Reports prepared by Officer Cash, 

Sergeant Wolford, and Mordick, all support the finding that Mordick 

intentionally entered false information into the MDT. For 

example, Exhibit 9 at the hearing before the Board was a January 

25, 2010 Special Report signed by Mordick. The Report states, 

in part: 

Around 0800 hours, I first drove by my home and then 

down Smithville Rd toward Byesville Bl. I turned onto 

Byesville Bl and turned right around after not seeing 

her van. The second time, around 1330 hours, after 

clearing our 11 I once again drove by my house and then 

down Smithville Rd. To Byseville Bl. I at this time 

put our disposition as enroute to the gas line. As I 

turned onto Byesville Bl. I saw her van and stopped in 

to speak to her and inquire of her whereabouts. I was 

inside the residence for approximately ten minutes at 
9

which time there was no arguing or physical fighting 

between Shonda and myself. Upon leaving, dispatch 

called us on the radio and I gave the location of Findlay 

and Springfield; although, we were actually at 

Smithville and Springfield. 

{¶ 20} We find equally unpersuasive Mordick’s argument that 

the Board and the court of common pleas changed the nature of Charge 

III in order to terminate Mordick’s employment. Rather, the 

evidence of record, including the Special Reports and testimony 

of Officer Cash and Sergeant Wolford, and Mordick’s Special Report 

and his no contest plea, supports the finding that Mordick was 

guilty of Charge III, which requires his dismissal from employment. 

{¶ 21} The third and fourth assignments of error are overruled. 

FIRST ASSIGNMENT OF ERROR

{¶ 22} “THE COURT OF COMMON PLEAS ERRED AS A MATTER OF LAW 

AND FACT WHEN IT CONSIDERED FACTS THAT WERE NOT ADMITTED INTO 

EVIDENCE AT THE HEARING BEFORE THE DAYTON CIVIL SERVICE BOARD TO 

UPHOLD THE BOARD’S ORDER.” 

{¶ 23} Mordick argues that the court of common pleas improperly 

considered evidence that was not admitted into the record. In 

particular, Mordick argues that Exhibits 1, 2, 3, 4, 11, and 12 

were not admitted into evidence at the hearing but that the court 

of common pleas nevertheless reviewed these exhibits. It does 
10

not appear that Mordick takes issue with anything in particular 

in Exhibits 1, 2, 3, 11, or 12, and our review of the decision 

of the court of common pleas does not indicate that the court placed 

any reliance on these exhibits. Mordick points out that the court 

of common pleas “used General Order 1.07-01 Communications as a 

basis for its decision,” and that General Order was never admitted 

into evidence. 

{¶ 24} On pages 12 and 13 of its Decision and Order, the court 

of common pleas references General Order 1.07-1. The court stated, 

in part: 

The aforementioned communication general orders suggest 

that an officer is expected to advise dispatch, whether 

by radio or MDT of their location. The general orders 

also suggest to the court that getting out of the cruiser 

and being in a residence for ten minutes could not be 

consistent with being “en route” to a location. 

{¶ 25} The court of common pleas made no further reference to 

General Order 1.07-1. Rather, the court pointed out that the 

testimony and the Special Reports of record supported the Board’s 

decision to affirm Mordick’s termination from employment. This 

testimony and the exhibits containing the Special Reports were 

admitted into evidence and constitute a preponderance of 

substantial, reliable, and probative evidence that supports the 
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Board’s decision. Therefore, the court of common pleas did not 

err as a matter of law in affirming the Board’s order. 

{¶ 26} The first assignment of error is overruled. 

SECOND ASSIGNMENT OF ERROR

{¶ 27} “THE COURT OF COMMON PLEAS ERRED AS A MATTER OF LAW AND 

FACT WHEN IT DECIDED THAT THE CIVIL SERVICE BOARD GAVE MORDICK 

A DE NOVO HEARING.” 

{¶ 28} Mordick argues that the court of common pleas erred when 

it found that the Board gave Mordick a de novo hearing. According 

to Mordick, the only evidence the Board specifically referred to 

in its Order affirming Mordick’s discharge from employment was 

Mordick’s no contest plea. Therefore, Mordick argues: 

since the Order of the Civil Service Appeal is based 

on Mordick’s no contest plea, a de novo hearing by the 

Board, which is required, was not performed. All of 

the other evidence cited by the Board in its Conclusions 

as the basis for its Order is spoken in generalities 

and it is clear that the Board is using the no contest 

plea as the legal basis for its upholding the termination 

of Mordick. (Mordick Appellate Brief, p. 7.) 

{¶ 29} The Board’s reference to or reliance upon Mordick’s prior 

no contest plea does not mean that the Board necessarily failed 

to give Mordick a de novo hearing. Black’s Law Dictionary 725 
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(7th Ed. 1999) defines “hearing de novo” as “1. A reviewing court’s 

decision of a matter anew, giving no deference to a lower court’s 

findings. 2. A new hearing of a matter, conducted as if the 

original hearing had not taken place.” 

{¶ 30} It is undisputed that the Board held a hearing in which 

it accepted testimony and reviewed exhibits submitted by the 

parties. The Board’s findings of fact and conclusions of law 

demonstrate that it did more than rely solely on Mordick’s no 

contest plea. The fact that a portion of the evidence received 

by the Board included the prior no contest plea Mordick entered 

 does not establish that the Board failed to give Mordick a new 

hearing. A de novo hearing does not mean a hearing that ignores 

every piece of evidence that was introduced in a prior 

administrative hearing. 

{¶ 31} The court of common pleas did not err when it found that 

the Board gave Mordick a de novo hearing. The second assignment 

of error is overruled. 

{¶ 32} Having overruled the assignments of error, we will affirm 

the judgment of the trial court. 

FAIN, J. and KLINE, J. concur. 
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(Hon. Roger L. Kline, Fourth District Court of Appeals, sitting 

by assignment of the Chief Justice of the Supreme Court of Ohio). 

Copies mailed to: 

Robert L. Caspar, Jr., Esq. 

Thomas M. Green, Esq. 

Hon. Mary Katherine Huffman