[Cite as Nosse v. Kirtland, 2022-Ohio-4161.]

IN THE COURT OF APPEALS OF OHIO

ELEVENTH APPELLATE DISTRICT

LAKE COUNTY

LANCE NOSSE,

Appellant,

- vs -

CITY OF KIRTLAND, et al.,

Appellees.

CASE NO. 2022-L-032

Administrative Appeal from the

Court of Common Pleas

Trial Court No. 2021 CV 001063

O P I N I O N

Decided: November 21, 2022

Judgment: Affirmed

Frank Consolo, Consolo Law Firm Co., LPA, 627 West St. Clair Avenue, Cleveland, OH 

44113 (For Appellant).

Sean T. Needham and Jack Maib, Reminger Co., LPA, 101 West Prospect Avenue, 

Suite 1400, Cleveland, OH 44115 (For Appellees).

MATT LYNCH, J.

{¶1} Appellant, Lance Nosse, appeals from the judgment of the Lake County 

Court of Common Pleas, affirming the decision of appellee, the Kirtland City Council,

removing Nosse from his position of Chief of Police for the City of Kirtland. For the 

following reasons, we affirm the decision of the lower court.

{¶2} On July 7, 2021, the Mayor of Kirtland, Kevin Potter, sent a letter to Nosse, 

indicating that he had officially submitted Nosse’s termination to the City Council for 

approval. The letter stated that it was “necessary to proceed with removal proceedings 

pursuant to Ohio Revised Code 733.35, * * * Kirtland’s Charter, and Kirtland Codified 
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Ordinance 244.01(d)” and that Nosse should be terminated for cause “subject to the 

concurrence of two-thirds of the members of Council.” It further stated that pursuant to 

R.C. 733.35, Nosse was “guilty in the performance of [his] official duty of misfeasance, 

malfeasance, nonfeasance, misconduct in office, gross neglect of duty, and/or habitual 

drunkenness.” Charges alleged in the letter included violation of the police department’s

vehicle use policy for driving after consuming alcohol and with an open container; conduct 

unbecoming of an officer for driving after drinking and use of profane language, sexual 

comments, and racial comments; lying regarding use of his cell phone; neglect of duty for 

having long absences during work hours; use of alcohol off duty discrediting himself and 

the department; misuse of the city cell phone; damage to his city vehicle; and mocking 

and belittling subordinates.

{¶3} Nosse’s counsel sent a letter requesting that the hearing before the City 

Council be conducted in public pursuant to R.C. 121.22(G)(1). A hearing on Nosse’s 

termination was held on August 2 and 3, 2021. 

{¶4} Teresa Szary, Assistant to the Mayor, testified that in March 2021, she 

discovered that a government issued phone used by Nosse had gone significantly over 

the text message limit, resulting in a fee of approximately $80. Nosse denied being aware 

of the limit on the messages. Szary testified that most of the text messages were to a 

city councilwoman. 

{¶5} Amy Buchanan, a police records clerk, testified that during March and April 

2021, she noticed that Nosse was in the office less than normal, had been raising his 

voice at employees, and had arguments with the dispatcher. She complained that Nosse 

was not present to complete necessary paperwork. She heard Nosse use the “n word” 
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at the police station “frequently” and saw him give people the finger in “a hey how are you 

doing fashion.” She overheard comments about sexual acts a female officer performed 

with another woman. She also was aware that Nosse had made a comment about a 

Mexican officer who was seeking a transfer, asking another officer if he was “going to 

take my [Nosse’s] Mexican.”

{¶6} Cynthia Gabor, Nosse’s administrative assistant, stated that she heard him 

use foul language in the department and requested that he stop. She also observed him 

in his city-issued vehicle with a bottle or can of beer.

{¶7} Sergeant Eric LaTurner described an incident in early 2021 during which he 

picked up Chief Nosse at a councilwoman’s house pursuant to Nosse’s request and 

brought him to the station. At that time, Nosse appeared intoxicated and LaTurner

observed Nosse drinking in his office. Nosse then left the department in his city-issued 

vehicle. LaTurner also explained that he had made a complaint to the police union with 

other officers in February relating to Nosse’s drinking impacting his work, with LaTurner 

observing him being absent from the office.

{¶8} Sergeant Jamey Fisher also testified that he had concerns that the chief 

was not always present in the office or responsive to communications. Nosse told Fisher

he had been leaving work during the day to meet a councilwoman, with whom it was 

alleged he was having an affair, in parking lots. In April 2021, Nosse came to Fisher’s

house and invited the councilwoman over as well. Nosse was drinking while in the home 

and his behavior made Fisher uncomfortable. He asked the two to leave and they

remained in his driveway for several hours, Nosse urinated in his yard, and they each 

drove away in their own vehicles after midnight. He opined that Nosse driving his vehicle 
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after drinking violated the City of Kirtland’s vehicle use policy. The policy, which Nosse 

had reviewed and signed as a condition of employment in February 2020, provides that 

improper or unsafe use of city vehicles will not be tolerated and can result in termination 

of employment. It further provides that an employee shall not operate a city vehicle with 

a blood alcohol concentration of higher than .08. It also states that “[i]t will be conclusively 

presumed that the employee is under the influence of such alcohol * * * if such alcohol * 

* * is used within six hours prior to engaging in such activities.” An inventory of Nosse’s 

vehicle was subsequently performed and an alcohol bottle cap was discovered inside. 

{¶9} Mayor Kevin Potter testified that in January 2021, Nosse requested a raise. 

They had a meeting where Potter inquired whether Nosse had been at a resident’s house 

late in the evening consuming excessive amounts of alcohol. Nosse admitted drinking

but said he was not in his city vehicle. Potter decided not to give him the raise due to 

these concerns. Subsequently, after the incident at Sergeant Fisher’s house, Nosse 

informed Potter that he had problems at home and needed some time to handle them. 

Fire Chief Hutton, who had been advised by Fisher of his concerns, informed Potter of 

these issues, including the affair with the councilwoman, use of racial epithets in the police 

department, and a potential “hostile work environment.” Potter spoke to Nosse and told 

him he must take personal medical leave or be put on unpaid leave. On April 16, 2021, 

Potter sent an e-mail to Nosse which noted they had a conversation and he agreed to 

take a leave of absence. Pursuant to evidence presented at the hearing, Nosse was 

granted leave under the Family Medical Leave Act on April 20, 2021. After seeing the 

video of the incident at Fisher’s house, Potter decided an investigation of Nosse’s conduct 

was required, which led to his subsequent decision to raise charges against Nosse. 
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{¶10} Nosse admitted that he was an alcoholic but had sought treatment 

beginning April 16, 2021, to address this concern. He had told Szary he would pay for 

the cell phone bill overage, although he had been unaware of the limits of its use. He did 

not admit or deny using the “n word” or the “f word.” He admitted that officers would 

sometimes drink in the police department to celebrate special occasions.

{¶11} Nosse explained that he went to Fisher’s house while off duty. He believed 

that he was permitted to use his vehicle as he saw fit. Nosse explained that he often had 

responsibilities outside of the office which led to him leaving during the day.

{¶12} Following closing arguments, the Council moved, over objection of Nosse, 

to enter into executive session to deliberate and review evidence. On August 3, 2021, 

the Council decided, by a vote of 6-1, to terminate Nosse from his position. 

{¶13} Nosse filed an appeal from the decision of the Council in the Lake County 

Court of Common Pleas. On March 31, 2022, the court issued an Opinion and Judgment 

Entry affirming Nosse’s removal from his position. The court found no error in the Council 

moving to executive session to evaluate evidence presented at a public hearing. The 

court outlined evidence presented relating to Nosse’s conduct both while on and off duty 

and determined that there was no abuse of discretion by the Council “in their 

determination that Nosse’s professional and personal behavior constituted unbecoming 

conduct in violation of the City of Kirtland Police Department Rules and Regulations.” 

{¶14} On appeal, Nosse raises the following assignments of error:

{¶15} “[1.] The common pleas court erred in its interpretation and application of 

R.C. 121.22(G)(1) by deciding that the Appellee Kirtland City Council had the right to 

deliberate in executive session at the conclusion of the evidentiary hearing held pursuant 
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to R.C. 733.36 to consider the Mayor’s termination of employment of Police Chief Nosse, 

despite Police Chief Nosse demanding that the hearing be conducted in public, and not 

in executive session, thereby validating Council’s concurrence with the Mayor’s decision 

to terminate the employment of Police Chief Nosse.

{¶16} “[2.] The common pleas court erred in its application and interpretation of 

R.C. 124.34 and Kirtland Cod. Ord. Sect. 244.01(d) by deciding that Police Chief Nosse 

could be removed from office for violations of the Kirtland Police Department Rules and 

Regulations.

{¶17} “[3.] The common pleas court erred in its application and interpretation of 

R.C. 733.35 by deciding that engaging in certain unbecoming conduct, on and off of duty, 

in violation of the Kirtland Police Department Rules and Regulations is sufficient evidence 

to support the Mayor’s charges pursuant to R.C. 733.35 that Police Chief Nosse, in the 

performance of his official duty, engaged in acts of misfeasance, nonfeasance, 

misconduct in office, gross neglect of duty, and/or habitual drunkenness, such that he 

may be removed from office pursuant to R.C. 733.35.”

{¶18} Nosse brought the present appeal pursuant to R.C. Chapter 2506, which 

provides for appeals to the court of common pleas from orders or decisions of divisions 

of a political subdivision. R.C. 2506.01(A). In such appeals, the common pleas court 

considers whether the administrative decision “is unconstitutional, illegal, arbitrary, 

capricious, unreasonable, or unsupported by the preponderance of substantial, reliable, 

and probative evidence on the whole record.” R.C. 2506.04. “Thereafter, an appellate 

court’s review of the judgment of the trial court is more limited than that of the court of 

common pleas.” E. Main St. Lofts v. City of Kent Planning Comm., 11th Dist. Portage No. 
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2019-P-0069, 2019-Ohio-5312, ¶ 5. “This court’s review is whether, as a matter of law, 

the decision of the court of common pleas is supported by a preponderance of reliable, 

probative, and substantial evidence.” Jones v. Hubbard Twp. Bd. of Zoning Appeals, 11th

Dist. Trumbull No. 2014-T-0041, 2015-Ohio-2300, ¶ 7; Kisil v. Sandusky, 12 Ohio St.3d

30, 34, 465 N.E.2d 848 (1984).

{¶19} R.C. 2506.04 “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 include 

the same extensive power to weigh ‘the preponderance of substantial, reliable and 

probative evidence,’ as is granted to the common pleas court. Within the ambit of 

‘questions of law’ for appellate court review would be abuse of discretion by the common 

pleas court.” Kisil at 34, fn. 4; Shelly Materials, Inc. v. Streetsboro Planning and Zoning

Comm., 158 Ohio St.3d 476, 2019-Ohio-4499, 145 N.E.3d 246, ¶ 17 (“[a]part from 

deciding purely legal issues, the court of appeals can determine whether the court of 

common pleas abused its discretion * * * in deciding that an administrative order was or 

was not supported by reliable, probative, and substantial evidence”).

{¶20} In his first assignment of error, Nosse argues that Kirtland City Council was 

not permitted to deliberate his termination in executive session. In support, he cites to 

Conner v. Village of Lakemore, 48 Ohio App.3d 52, 547 N.E.2d 1230 (9th Dist.1988), and 

an accompanying line of cases, for the proposition that R.C. 121.22 prohibits holding an 

executive session to consider dismissal of a police chief. The Council argues that Conner

is inapplicable and this court should consider more recent authorities which clarify 

principles relating to open meetings, emphasizing that quasi-judicial proceedings do not 

prohibit retiring to executive session prior to termination of an employee.
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{¶21} Pursuant to R.C. 121.22(A): “This section shall be liberally construed to 

require public officials take official action and to conduct all deliberations upon official 

business only in open meetings unless the subject matter is specifically excepted by law.” 

R.C. 121.22(G)(1) provides that “the members of a public body may hold an executive 

session * * * at a regular or special meeting for the sole purpose of the consideration of 

any of the following matters: * * * [t]o consider the appointment, employment, dismissal, 

discipline, promotion, demotion, or compensation of a public employee or official, or the 

investigation of charges or complaints against a public employee, official, licensee, or 

regulated individual, unless the public employee, official, licensee, or regulated individual 

requests a public hearing.” “A * * * formal action adopted in an open meeting that results 

from deliberations in a meeting not open to the public is invalid unless the deliberations 

were for a purpose specifically authorized in division (G) or (J) * * * and conducted at an 

executive session held in compliance with this section.” R.C. 121.22(H). 

{¶22} In Conner, a police chief was dismissed from his position by the mayor. The 

chief requested a public hearing before the city council in the appeal of his dismissal. 

Conner at 53. Evidence was heard at a public hearing and the council then called an 

executive session to review the evidence and determine whether to uphold the dismissal. 

It returned to the public hearing and took a formal vote to uphold the mayor’s action. Id.

at 53-54. The appellate court held that, “R.C. 737.19 [setting forth procedures for removal 

of an officer in a village] authorizes a hearing, and dictates that it should be held at a 

regularly scheduled meeting of the village legislative authority. Where a hearing is 

statutorily authorized, and a public hearing is requested, R.C. 121.22(G) precludes the 

holding of an executive session to consider the dismissal of a public employee or official.” 
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Id. at 54. It found that the council’s actions were invalid and vacated the court’s judgment. 

Id. Nosse correctly observes that this case is factually similar to the present matter.

{¶23} Conner has been cited in support of the proposition that “[o]nly when a 

hearing is statutorily authorized, and a public hearing is requested, does R.C. 121.22(G) 

operate as a bar to holding an executive session to consider the dismissal of a public 

employee.” Schmidt v. Village of Newtown, 1st Dist. Hamilton No. C-110470, 2012-Ohio890, ¶ 26; Stewart v. Bd. of Edn. of Lockland School Dist., 1st Dist. Hamilton No. C130263, 2013-Ohio-5513, ¶ 14. The Ohio Supreme Court affirmed the opinion in Stewart, 

holding that “[a] public employee can require that a hearing about his employment status 

be held in public under R.C. 121.22(G)(1) only when the employee is otherwise entitled 

to a public hearing.” Stewart v. Lockland School Dist. Bd. of Edn., 144 Ohio St.3d 292, 

2015-Ohio-3839, 42 N.E.3d 730, ¶ 15. See also Matheny v. Frontier Local Bd. of Edn., 

62 Ohio St.2d 362, 366, 405 N.E.2d 1041 (1980) (“Under [R.C. 121.22(G)(1)], a public 

body may meet in executive session to consider the employment of a public employee, 

unless the public employee ‘requests a public hearing.’ In that event, an open session 

must be held.”). While these cases recognize when a public hearing is not required, they 

do not examine this issue in the same manner as Conner since they do not involve a party 

entitled to such hearing. 

{¶24} A similar issue to that raised in Conner was addressed in Gross v. Village 

of Minerva Park Village Council, S.D.Ohio No. 2:12-cv-00012, 2012 WL 4009604 (Sept. 

12, 2012). In that matter, a police officer who appealed his termination by the mayor to 

the city council requested a public hearing relating to his removal, evidence was 

presented at that hearing, and the council convened an executive session to deliberate 
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removal. The Gross opinion addressed the alleged error in failing to comply with R.C. 

121.22(G)(1). It observed the lack of on point Ohio Supreme Court authority on this issue

and, in rejecting Conner, pointed to Supreme Court cases offering “considerable guidance 

in substantially similar frameworks,” citing to TBC Westlake, Inc. v. Hamilton Cty. Bd. of 

Revision, 81 Ohio St.3d 58, 689 N.E.2d 32 (1998), and State ex rel. Ross v. Crawford 

Cty. Bd. of Elections, 125 Ohio St.3d 438, 2010-Ohio-2167, 928 N.E.2d 1082. Id. at *5.

{¶25} In TBC Westlake, the Ohio Supreme Court was faced with an appeal 

relating to the valuation of property for taxation purposes. It addressed the applicability 

of R.C. 121.22 and public meetings requirements to such proceedings. It observed that 

an adjudication of the Board of Tax Appeals is a quasi-judicial proceeding and although 

hearings are open to the public, “like all judicial bodies, [it] requires privacy to deliberate, 

i.e., to evaluate and resolve, the disputes.” Id. at 62. It determined that “the Sunshine 

Law does not apply to adjudications of disputes in quasi-judicial proceedings.” Id. A 

quasi-judicial proceeding has been described as “one ‘in which notice, a hearing, and the 

opportunity for the introduction of evidence have been given.’” Downie v. Lake Metro.

Hous. Auth., 11th Dist. Lake No. 2014-L-060, 2015-Ohio-811, ¶ 14, citing AT&T

Communications of Ohio, Inc. v. Lynch, 132 Ohio St.3d 92, 2012-Ohio-1975, 969 N.E.2d

1166, ¶ 8.

{¶26} In reaching this conclusion, the Supreme Court cited Angerman v. State

Med. Bd. of Ohio, 70 Ohio App.3d 346, 591 N.E.2d 3 (10th Dist.1990), wherein the state 

medical board decided to revoke appellant’s medical license and did not conduct its 

deliberations in a meeting open to the public. The court found that “[a]lthough R.C.

121.22 makes no general exception for judicial or quasi-judicial deliberations, * * * it 
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necessarily follows that such deliberations are not intended to be within the purview of 

the open-meeting requirement of R.C. 121.22.” Id. at 351. The court determined that the 

reference to a public hearing contained in R.C. 121.22(G)(1) related to the “hearing itself 

and not to deliberations of the adjudicatory body after the hearing is completed” and that 

such deliberations need not be open to the licensee or the public. Id. at 352. 

{¶27} In Ross, the Ohio Supreme Court, considering a board of elections hearing 

on an individual’s right to vote, again emphasized that “a quasi-judicial hearing is not a 

meeting for purposes of this [R.C. 121.22] definition, and hence is not subject to the open 

meeting requirements.” (Citation omitted.) 125 Ohio St.3d 438, 2010-Ohio-2167, 928 

N.E.2d 1082, at ¶ 25.

{¶28} Based on this authority, the Gross opinion concluded that the same 

rationale should apply to the circumstances similar to those here. In both Gross and the 

present matter, the plaintiff requested a public hearing on removal, the hearing was held, 

the plaintiff was permitted to present evidence and argument in his defense while 

represented by counsel, and the city council ultimately deliberated in executive session. 

We agree with the conclusion reached in Gross, with the support of the authority in other 

quasi-judicial proceedings, that the decision to hold deliberations and review evidence in 

executive session does not provide a claim for relief under the Open Meetings Act. Gross, 

2012 WL 4009604, at *7.

{¶29} The first assignment of error is without merit.

{¶30} In his second assignment of error, Nosse argues that the court erred in 

determining the Rules and Regulations of the Department supported removal because 

he was not part of the civil service and “to the extent that the * * * decision can be read 
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as deciding that Police Chief Nosse was removed * * * for just cause pursuant to Cod. 

Ord. Sec. 244.01(d), that ordinance” cannot be enforced because it conflicts with the City 

Charter and R.C. 733.35.

{¶31} Section 10.73 of the Kirtland Police Department Rules and Regulations 

states that members of the department “shall hold their positions during good behavior 

and efficient service but may be removed for the following reasons, as listed in the Ohio 

Revised Code, Section 124.34: ‘Incompetence, Inefficiency, Dishonesty, Drunkenness, 

Immoral Conduct, Insubordination, Discourteous Treatment of the Public, Neglect of Duty, 

Violation of the Civil Service Laws or the Rules of the Civil Service Commission, or any 

other failure of good behavior, or any other acts of Misfeasance, Malfeasance, or 

Nonfeasance in Office.’” R.C. 124.34(A) provides that the tenure of “every officer or 

employee in the classified service of the state and the counties, civil service townships,

[and] cities * * * shall be during good behavior” but they may be removed or suspended 

for those behaviors listed above.

{¶32} Regardless of whether R.C. 124.34 applied to Nosse, an issue he admits 

he did not raise below, we do not find this impacts the present matter. The lower court 

did not state that it relied on this statute in order to justify his termination, nor did the 

Council do so. The fact that the court discussed the police department rules does not 

mean that it relied on this statute, as it emphasized misfeasance, malfeasance, 

misconduct in office, and neglect of duty, all of which are proper grounds for termination 

under R.C. 733.35, the statute under which Nosse argues this matter properly proceeded. 

Charges can be filed, and a termination hearing before the city council pursued, when the 

“officer has been guilty, in the performance of his official duty, of bribery, misfeasance, 
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malfeasance, nonfeasance, misconduct in office, gross neglect of duty, gross immorality, 

or habitual drunkenness.” R.C. 733.35. To the extent that the lower court considered the 

Kirtland Police Department Rules and Regulations, as we will discuss below, 

consideration of the violation of these regulations is not improper in supporting a decision 

that he was properly terminated as the rules tend to show whether his acts rose to the 

level of fireable misconduct. 

{¶33} Nosse also argues that Kirtland Codified Ordinance 244.01 conflicts with 

R.C. 733.35 and could not be applied here.

{¶34} K.C.O. 244.01(d) provides: “The Mayor may remove the Chief from office 

for just cause; provided, however, that such removal shall not take effect without the 

concurrence of two-thirds of the members of Council.” We do not find that this conflicts 

with R.C. 733.35 and .36, which allow for removal for various reasons requiring cause, 

including “bribery, misfeasance, malfeasance, nonfeasance, misconduct in office, gross 

neglect of duty, gross immorality, or habitual drunkenness” and provide for the hearing of 

the filing of charges by the mayor and removal by two-thirds of the Council. Further, even 

accepting that R.C. 733.35 was the correct standard for terminating Nosse, the court did 

not state it relied on K.C.O. 244.01 in finding it was proper to uphold the Council’s decision 

and it is evident these proceedings were instituted based on violations of R.C. 733.35, 

which the Mayor stated in his termination letter. There was no violation of the Charter as 

it requires compliance with the Revised Code, as noted by Nosse. Further, as will be 

addressed below, the court did not err in affirming the Council’s decision as it was 

consistent with R.C. 733.35.

{¶35} The second assignment of error is without merit.
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{¶36} In his third assignment of error, Nosse argues that the lower court could 

only consider conduct that was committed as part of his official duty to justify his removal

pursuant to R.C. 733.35 and the court’s findings were related to rule violations rather than 

conduct committed in the scope of his duty as police chief. A review of the record does 

not reveal an abuse of discretion in the court’s determination that his dismissal was 

supported by reliable, probative, and substantial evidence.

{¶37} As described above, R.C. 733.35 provides for the mayor to bring charges 

against the police chief to the city council for several reasons, including, inter alia, “in the 

performance of his official duty, * * * misfeasance, malfeasance, * * * misconduct in office, 

gross neglect of duty, gross immorality, or habitual drunkenness.” Here, there was 

evidence presented at the Council hearing that Nosse committed acts falling under this 

statute both while on duty as chief as well as while off duty. Witnesses observed that he 

had used the “n word,” i.e., an inappropriate racial term, frequently while working in his 

capacity within the police department as well as made comments about other officers’ 

sexual conduct. He also was accused of repeatedly being unavailable or not present 

during normal working hours of the police department. 

{¶38} Other acts, such as drinking before driving his city-issued vehicle and 

displays of “drunkenness” took place while he was not working directly in his capacity as 

police chief and outside of his typical working hours. At least one court has observed that 

“the performance of official duty” should be construed broadly and is not limited to specific 

tasks in one’s job duties like providing emergency services, emphasizing inclusion of 

“bribery” and “gross immorality” as misconduct generally unrelated to the work tasks of a 

firefighter. Gasper v. Washington Twp., 10th Dist. Franklin No. 02AP-1192, 2003-Ohio-
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3750, ¶ 20. It also drew an analogy to the use of the term misconduct “in office” used in 

R.C. 124.34 [relating to termination of classified service employees], which has been 

applied by various courts finding misconduct that is not job-related provides grounds for 

termination. Id. at ¶ 21, citing O’Harra v. Columbus City School Dist. Bd. of Edn., 10th

Dist. Franklin No. 88AP-149, 1989 WL 27163, *2-3 (Mar. 23, 1989) (OVI committed by

school truck driver outside of work duties warranted termination); Perry v. Miamisburg, 2d

Dist. Montgomery No. 14682, 1995 WL 324636, *3 (May 17, 1995) (rape conviction

unrelated to work constituted immoral conduct and “[c]onduct of that type by a public

employee is detrimental to the confidence which the public must have in government and

its employees”).

{¶39} Moreover, there is no question that much of the conduct committed by 

Nosse, whether on or off duty, violated the Rules and Regulations of the Kirtland Police 

Department which Nosse stated at the hearing were applicable to him. Regardless of 

whether he could be terminated under the terms of the department rules for his conduct, 

his violation of the rules is a relevant consideration when determining whether his conduct 

satisfied the standards set forth in R.C. 733.35 and violated his duties as a police chief.

{¶40} For example, Rule 10.6 provides that “[m]embers of the Police Department 

shall conduct themselves at all times, both on and off duty, in such a manner so to reflect 

most favorably on the Department” and Rule 10.20 that “Members of the Police 

Department while off duty shall refrain from consuming intoxicating beverages to the 

extent that it results in impairment, obnoxious or offensive behavior which discredits them 

or the Department.” Nosse’s activities of drinking in his office, whether on or off duty, do 

not reflect favorably on the department. The testimony relating to his visit to Fisher’s 
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house reflected that he urinated outside and was acting in a manner consistent with 

intoxication, a fact shown in the videos outside of Fisher’s home. The witness testimony 

also demonstrated that he had carried alcoholic beverages in his work vehicle and stored 

alcohol in his office. This conduct also violates Rule 10.17: “Members of the Police 

Department shall not store or bring into any police facility or vehicle alcoholic beverages.” 

While these rules may not all apply to conduct committed while “on duty,” it is evident 

compliance with the rules themselves were part of Nosse’s duties as the police chief. For 

example, in Fulmer v. W. Licking Joint Fire Dist., 5th Dist. Licking No. 16-CA-8, 2016-

Ohio-5301, the decision to terminate a fire chief under R.C. 733.35, in part due to a

violation of the fire district’s technology policy through use of a laptop for inappropriate 

purposes outside of the workplace, was upheld. 

{¶41} Further, certain conduct committed, while not during his typical work hours, 

can be perceived as done in his official capacity, such as drinking while in his office at the 

department. This court has observed that where a fire chief was not on duty but appeared 

at the scene of a fire while under the influence of alcohol in violation of fire department 

rules, his appearance “is perceived to be in his official capacity” and was relevant in 

determining whether he should be terminated under R.C. 733.35. Duvall v. Deerfield 

Twp. Bd. of Trustees, 11th Dist. Portage No. 1698, 1987 WL 8463, *3 (Mar. 27, 1987). 

Nosse’s activity blurred the lines between on duty and off duty conduct.

{¶42} Even if the Council and court had not considered conduct committed while 

“off duty,” the use of racially derogatory language, statements about employees’ sexual 

conduct, concerns expressed by employees that he was frequently distracted or not 

present in the office, and drinking in his office were valid concerns relating to his conduct 
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in his role of police chief that supported the finding made below.

{¶43} The third assignment of error is without merit.

{¶44} For the foregoing reasons, the judgment of the Lake County Court of 

Common Pleas, affirming Nosse’s termination as police chief, is affirmed. Costs to be 

taxed against appellant.

THOMAS J. WRIGHT, P.J., 

JOHN J. EKLUND, J., 

concur.