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In the Matter of



This matter involves a pre-disciplinary conference for Roger A. Moore, Chief of Police
for the City of Chillicothe, conducted by the undersigned attorney on Monday, August 11, 2014,
in Chillicothe, Ohio. The conference was conducted pursuant to written notice, issued
Wednesday, August 6, 2014
. Along with the pre-disciplinary conference notice, Chief Moore
was provided with a list of eight allegations of misconduct
, and advised that at the time of the
conference he would be afforded an opportunity to provide reasons, either in person or in
writing, why the City should not take disciplinary action against him, and his right to bring a
representative who would be allowed to offer him advice and make statements during the
conference regarding any matter.
At the time of the conference, Chief Moore, who had been placed on paid administrative
leave, appeared with his attorney, Paige J. McMahon, and participated fully. Michael Green,
The City Safety Service Director appeared on behalf of the City and presented the
aforementioned allegations. The allegations were presented to Chief Moore, and he was
provided an opportunity to respond. Chief Moore appeared to understand the allegations, and

Notice was issued to Chief Moore advising him of a pre-disciplinary conference to be
conducted on Friday, August 8, 2014; however, at the request of Chief Moores attorney, Paige
McMahon, the conference was rescheduled to August 11, 2014. Mr. McMahon was notified via
email on August 8, 2014, that his request for postponement and rescheduling of the conference
for Monday, August 11, 2014, was granted.
The list of allegations is attached hereto.
gave lengthy, specific responses to each of them. Mr. McMahon commented that Chief Moore
desired access to his files, which were in his office at the Chillicothe Police Department, so that
he might supplement his oral response with documentation. The undersigned requested that the
City afford access to Chief Moore for the purpose of obtaining copies of documents and audio
recordings. A time was arranged with Mr. Green for the following day, August 12, 2014, to
permit Chief Moore access to the referenced materials. Mr. McMahon and Chief Moore were
directed to provide Mr. Green and the undersigned with copies of the documents they deemed
pertinent as well as a written response to the allegations by the close of business, Wednesday,
August 13, 2014. When the documents were not presented by said time, the undersigned
attempted to contact Mr. McMahon by phone, and, finally, was able to speak to him on Friday,
August 18, 2014. Mr. McMahon indicated that he had been ill, and that he was still compiling
the documents and preparing his clients written response. The undersigned did at that time
discuss the possibility of mediation between the parties, but no agreement to this dispute
resolution option was reached.
On Tuesday, August 19, 2014, Attorney McMahon contacted the undersigned by phone
and indicated that he was in the final stages of preparation of his written submission of
supporting documents and written response to the allegations. At that time, the undersigned
indicated that any documents and/or response were to be submitted as soon as possible, and that
a written report was to be issued on Wednesday, August 20, 2014.
On August 19, 2014, Chief Moores counsel presented his written response to the Citys
allegations. These responses are addressed in the discussion of the following findings.

Count 1: Malfeasance/Failure of Good Behavior 6/28/12

Intimidated public official, Nancy Graham, via phone call attempt to secure original
psychological evaluation, which was required to be stored at offices of Civil Service
Commission, and attempt to have her remove posting for Police Officer exam, because he
declared it was illegal.

In Chief Moores oral statement at the pre-disciplinary conference, he did not dispute that
he attempted to secure a document from Ms. Graham. Chief Moore did state that he did not
intimidate Ms. Graham, and asserted that his position as chief afforded him the authority to
ensure that officers hired for the department possessed the proper qualifications. In his written
response to this allegation, Chief Moore asserts that O.A.C. Sec. 124-3-04(A), an administrative
rule promulgated by the State Personnel Board of Review, prohibits the City from imposing
discipline for events more than two (2) years old. The application of R.C. Sec. 124.40 to
municipal civil service commissions is clear, and Chillicothes Civil Service Commission is
clearly permitted to adopt rules not inconsistent with R.C. Chapter 124. Strasshofer v. Lyndhurst
(1991), 76 Ohio App.3d 472, 480-81, 602 N.E.2d 379, citing St., ex rel. Wynne v. Urban (1952),
91 Ohio App. 514, 519, 107 N.E.2d 637. It is not apparent that the Civil Service Commission
has adopted the above-cited rule, and, thus, its applicability is not susceptible to resolution here.
Chief Moore did not specifically dispute that he attempted to secure the psychological
evaluation from Ms. Graham, but avers, in part, that the document was exempt from R.C. Sec.
149.43, and, hence, it is implied that he was justified in seeking to obtain the document.
Whether Chief Moore is correct about the documents status, vis--vis the Ohio Public Records
Act, the question concerning the propriety of his demanding that Ms. Graham turn it over to him
remains unresolved. Likewise, whether the Chiefs purported authority over the
recruitment/hiring process of police officers justified the manner in which he sought correction
of the posting cannot be adjudicated in the scope of the pre-disciplinary process. Suffice it to
say, it is not within the scope of this initial review to assess the ultimate truth or validity of the
Citys allegations, but, rather, to render a finding that the information presented is sufficiently
substantiated to warrant consideration of discipline. Only the Civil Service Commission is
authorized to conduct hearings and compel testimony pursuant to R.C. Secs. 119.09, 124.03,
124.09, 124.34, and 124.40 to determine whether City disciplinary actions are ultimately
supported by reliable, probative and substantial evidence, and in accordance with law. See Civil
Service Rules I, II, IX, and X.

Based on the information presented, regarding Allegation No. 1, it is submitted that a
sufficient basis exists for the City to consider the imposition of disciplinary action under R.C.
Sec. 124.34.
Count 2: Malfeasance/Failure of Good Behavior 3/16/13

Admitted reacting inappropriately after provocation, engaged in a verbal and/or physical
altercation with citizen in public place, Cozy Inn.

In Chief Moores oral statement at the pre-disciplinary conference, he did not contest that
he was engaged in an altercation with a citizen in public at the Cozy Inn, a local bar in
Chillicothe. The Chief stated at the pre-disciplinary conference that an argument ensued with a
citizen, which escalated to an exchange of cursing, shoving, and threats of physical violence
upon provocation. The Chief further stated that he had removed his shirt at the time to let the
citizen know what lay in store for him, if the latter did not desist from his course of conduct.
Chief Moores written response invokes the application of another rule promulgated by
the State Personnel Board of Review, dealing with the proposition of merger and bar, whereby

It is not apparent from the Civil Service Commissions Local Rules and Regulations whether
O.A.C. Sec. 124-3-04(A) was adopted by the Commission.
an incident preceding written discipline may not be the later subject of further disciplinary
action. See O.A.C. Sec. 124-3-05. As with Allegation No. 1, there is no indication that the Civil
Service Commission has adopted or incorporated the Board of Reviews administrative
provisions in its Local Rules and Regulations. Notwithstanding the application of the merger
and bar provision, it is possible that an appointing authority may consider previous disciplinary
action as a basis for progressive discipline. Therefore, the reference to media reports of the
incident and the Mayors statements regarding the Citys investigation and discipline is
insufficient at this point to preclude a further review and exercise by the City of its discretion to
impose discipline.
Therefore, based on the information presented, regarding Allegation No. 2, it is submitted
that a sufficient basis exists for the City to consider the imposition of disciplinary action under
R.C. Sec. 124.34.
Count 3: Malfeasance/Failure of Good Behavior 5/30/13

Challenged authority of Mayor, by repudiating his open-door policy with City employees
and insisted that he had no authority to meet with police officers, because of chain of

In Chief Moores oral presentation and written response regarding this allegation, he
asserted the rules and regulations of the Police Department as well as the principles of chain of
command to defend his challenging the Mayors open-door policy and/or authority to meet with
officers and/or employees of the Police Department under any circumstances without going
through him. The allegation was specifically addressed and contested by Chief Moore in regard
to the Mayors meeting with two employees of the Police Department and a union staff
representative regarding resolution of a grievance and an unfair labor practice charge. R.C. Sec.
705.79 provides that one of the powers and duties of a mayor of a statutory city is to see that the
laws and ordinances are enforced. See R.C. Sec. 705.79(A). The regulation referenced in Chief
Moores response suggests that unilateral visits by staff of the Police Department to the Mayor
are prohibited. However, the discussion in the meetings with the Mayor referenced by Chief
Moore involved a union staff representative, and, whether it dealt with a grievance or an unfair
labor practice charge, was not prohibited by state law. See R.C. Secs. 4117.03(A); 4117.09.
Indeed, it could be argued that a mayor who did not attempt to resolve alleged violations of law
or a collective bargaining agreement would be derelict in his or her duty. Moreover, there was
no information that the meetings with the Mayor were initiated by employees of the Police
Department. While the validity of the Police Department Rules and Regulations is not
specifically at issue, the disregard of Chief Moore for the Mayors authority is so blatant, that it
raises sufficient question about the propriety of such flagrant behavior to warrant the Citys
consideration of imposition of disciplinary action regarding Allegation No. 3 under R.C. Sec.
124.34, based on the information presented.
Count 4: Malfeasance/Failure of Good Behavior 8/22/13

Attempted to intimidate city official, Tamara Lowe, went to her office unannounced, and
shut her door without her consent, refused to open the door after she requested it, and
after argument over his relationship with the city Human Resource Director, refused to
leave her office when she requested he do so, and you continued to berate her, causing her
to be so concerned for her safety she called 9-1-1; police response ensued, and Captain K.
M. Teeters was dispatched, responded, Ms. Lowe asked for escort to her car, and a report
was filed; incident constituted improper conduct by a public official, and caused
unnecessary expenditure of public funds because of his anger over consequences of his
personal relationship with another city official.

As with Allegation No. 2, Chief Moores oral presentation and written response regarding
this allegation invoked the application of an administrative rule adopted by the State Personnel
Board of Review such that any discipline for this alleged offense would be merged with previous
disciplinary action and barred by the rules operation. See O.A.C. Sec. 124-3-05. The
discussion of applicable law is incorporated here, as if reprinted. There was no dispute that the
police were called by Ms. Tamara Lowe, a city official responsible for EEO matters, who refused
to supply Chief Moore with an EEO complaint form. Notwithstanding the fact of Chief Moores
asserted protected status as a Native American or Ms. Lowes purported recalcitrance in
discussing personnel matters outside the scope of her job duties or her failure to supply a
complaint form, there is sufficient basis to find that he may have stepped well beyond the scope
of his authority as Chief of Police in a manner which could warrant discipline.
Therefore, based on the information presented, regarding Allegation No. 4, it is submitted
that a sufficient basis exists for the City to consider the imposition of disciplinary action under
R.C. Sec. 124.34.
Count 5: Malfeasance/Failure of Good Behavior 2/6/14

Used profanity toward an assistant Law Director and threw a court case file on the floor in
anger, and approached Municipal Judge John Street without authorization to question his
imposition of a fine in a case involving violation of city ordinance by person accused of
operating business with inoperable, unlicensed, and junk vehicles on his property.

In Chief Moores oral presentation and written response, he clearly articulated an intense
desire to enforce nuisance laws and protest what he believed to be lax enforcement of municipal
ordinances relating to junk vehicles. There was no apparent formal complaint concerning Chief
Moores behavior at Municipal Court on the day in question, notwithstanding media reports.
Chief Moore denied any wrongdoing and could not recall using profanity toward anyone
involved. Without more specific information or any other supporting documentation, it is my
opinion that this allegation cannot be substantiated, and would not be an appropriate basis for
disciplinary action under R.C. Sec. 124.34.

Count 6: Malfeasance/Failure of Good Behavior/Insubordination 7/25/14

Refusal to apologize to public officials for unprofessional conduct, Jon Saxton,
Superintendent, Chillicothe City School District, and George Lavender, Ross County
Sheriff, as directed by Mayor.

After consideration of Chief Moores oral presentation and written response, the
statements he provided at the direction of the Mayor can hardly be construed as apologies.
Rather, they reflect a clear dichotomy between the positions of the City and Chief Moore, as to
the manner in which authority is perceived and other public officials are treated. It seems more
than coincidence that three public officials from various government entities (City Hall, the
School District, and the County Sheriffs Office) have specific and significant criticisms of Chief
Moore about his conduct and demeanor, which go beyond personality differences. The
requested apologies arose out of incidents with specific joint operations between the City and the
local school district over a school safety plan and a drug task force with the Sheriff and other law
enforcement agencies, including the City Police Department.
A police chief, like other law enforcement officials, is held to a higher standard of
conduct than the general public. Patricia Taylor v. Board of Trustees of Miami Township, 95-
LW-3476, C.A. 14698 (2
Dist., Montgomery, 1/25/95), citing Jones v. Franklin County Sheriff
(1990), 52 Ohio St.3d 40 (Law enforcement officers are expected to conform to a higher
standard of conduct than the general public. For such public officials to command the respect of
the public, it is necessary then for these officials, even when off duty to comport themselves in a
manner that brings credit, not disrespect, upon their department. 52 Ohio St.3d. 40, 43).
Recent court decisions have consistently held peace officers to a higher standard of conduct and
personal rectitude. Linney v. Turpen, 42 Cal. App. 4
t h
763, 49 Cal. Rpt. 2d 813 (1996); Ptl.
Joseph D. Krout v. City of Findlay, 85-LW-1819, 3
Dist., C.A. Hancock, Case No. 5-84-20,
8/13/85. Police officials, intent on retaining their position on the force, can expect that they will
be held to a higher standard of conduct regarding obedience to the laws and ordinances of this
state than would a common civilian. Police officials have greater familiarity with the obligations
of a citizen, and must contemplate loss of employment for objectionable conduct.
Golemboowski v. City of Madison Heights Civil Service Commission, 93 Mich. App. 137, 286
N.W. 2d 69, citing Rinaldi v. Lavonia, 69 Mich. App. 58,67, 244 N.W. 2d 609, 613 (1976).
Therefore, based on the information presented, regarding Allegation No. 6, it is submitted
that a sufficient basis exists for the City to consider the imposition of disciplinary action under
R.C. Sec. 124.34.
Count 7: Malfeasance/Failure of Good Behavior/Insubordination 7/27/14

Refusal to obey directive to have no contact with Chillicothe Police Department while on
paid administrative leave, as directed by Mayor and Safety Service Director on July 25,
2014, and engaged in investigation of suspected criminal activity by questioning
acquaintances of son and searching their vehicle after police had been called to scene.

In Chief Moores oral presentation and written response, he articulated the rights of a
property owner (his sons residence), which is an understandable position on its face. However,
as a police official, Chief Moore is presumed to be aware that any action, even taken off-duty,
relating to police activity such as a search of a person or vehicle, if conducted improperly, could
result in claims of constitutional violations implicating not only himself but his employer as well.
Chief Moore did not dispute that he was directed to have no contact with the
Chillicothe Police Department when placed on paid administrative leave. While
circumstances may have been presented to him which were beyond his control, insofar as
his sons misfortune could not be anticipated, once confronted with the situation of persons
suspected of a minor theft offense, he, arguably, had a duty to refrain from involvement
with police activities. Receiving an order from his superior, the Safety/Service Director, to
refrain from contact with the Police Department reasonably contemplates and imposes an
obligation on Chief Moore to refrain from police activityabsent any concerns for personal
or familial safetyparticularly, when he is aware that he is being investigated for
Therefore, based on the information presented, regarding Allegation No. 7, it is submitted
that a sufficient basis exists for the City to consider the imposition of disciplinary action under
R.C. Sec. 124.34.
Count 8: Malfeasance/Failure of Good Behavior 7/30/13-7/25/14

Continued pattern of disrespect of authority and unprofessional conduct with law
enforcement officials from another agency, including George Lavender, Ross County
Sheriff, and his staff.

As with Allegation No. 6, the information presented both at the pre-disciplinary
conference and in Chief Moores written response reflects a genuine dispute over the relative
authority of the Police Chief and other public officials, in this case, notably, the Ross County
Sheriff, George Lavender. A county sheriff may exercise the authority expressly conferred upon
him by statute, and may exercise discretion in determining the manner in which he will exercise
the power to preserve the public peace. Attorney Generals Opinion 2011-16. Consequently, a
county sheriff may exercise his power within a municipal corporation insofar as that city is
within that sheriffs county. In re Sulzmann, 125 Ohio St. 594, 597, 183 N.E. 531 (1932);
Geauga County Bd. of Cty. Commrs. v. Munn Rd. Sand & Gravel, 67 Ohio St.3d 579, 582, 621
N.E.2d 696 (1993). Chief Moore raises the question of lack of adequate notice as to specific
instances of disrespect of authority and unprofessional conduct toward Sheriff Lavender, such
that he is constrained from an effective response to a broad allegation. Admittedly, the
allegation is a broad and potentially far-ranging one. However, both Chief Moores letter of
apology to Sheriff Lavender, dated July 25, 2014, as well as the Sheriffs letter of June 12, 2014
to the Mayor complaining of continued disrespect of [his] authority, reflect an admittedly
ongoing dispute between the two law enforcement officials. Chief Moore in his July 25
t h

correspondence acknowledges several allegations including your authority and disrespect to
elected officials. In the pre-disciplinary conference, Chief Moore spoke of the discord between
the sheriff and city police chiefs and referenced unspecified ulterior motives on the part of the
Sheriff. No credibility resolution need be made here to ascertain the obvious, that there is a good
deal of hostility surrounding the relationship between the Sheriff and Chief Moore. The only
question is whether there are reasonable grounds for the City to believe discipline should be
considered for Chief Moores behavior toward the Ross County Sheriffs office. The nature of
notice required in this instance is minimal, and the information available to Chief Moore and a
direct statement from the Countys chief law enforcement officer is quite substantive in its thrust
that the former has demonstrated continued disrespect for the latter. The most recent instance
of alleged disrespect would appear to be the apology to the Sheriff because the Chief is being
ordered to apologize. Whether a disciplinary action is cloaked in terms of a pattern, an attitude
or a failure of good behavior, there are reasonable grounds here for the City to consider
disciplinary action under the provisions of R.C. Sec. 124.34 with regard to Allegation No. 8.



It is hereby submitted that reasonable grounds for discipline exist with respect to
Allegation Nos. 1 through 4 and 6 through 8. This Report is hereby submitted for consideration
of disciplinary action pursuant to Rule IX of the Chillicothe Civil Service Commission Local
Rules and Regulations
Respectfully submitted,

/s/ Michael A. Moses
Michael A. Moses (#0025243)
Moses Law Offices, L.L.C.
100 East Broad StreetSuite 1350
Columbus, Ohio 43215-3662
(614) 224-7294
(614) 224-7295 Fax

The undersigned hereby certifies that a copy of the foregoing was served upon Paige J.
McMahon, Esq., Spetnagel & McMahon, 42 East Fifth Street, Chillicothe, Ohio 45601, Michael
Green, Safety/Service Director, 35 South Paint Street, Chillicothe, Ohio 45601, and Sherri K.
Rutherford, Esq., Chillicothe Law Director, 97 West Main Street, Chillicothe< Ohio 45601,
electronic transmission and Ordinary U.S. Mail, postage pre-paid, this 20th day of August, 2014,
at Columbus, Ohio.

/s/ Michael A. Moses