On July 9, 1996, appellant, Donald C. Piper, a fifteen-year veteran of the Dayton Police Department, was charged with public indecency, a criminal offense. He was tried and found not guilty of the charge in October 1996. Thereafter, the police department's Internal Affairs Bureau decided to investigate appellant to determine whether his conduct on July 9 violated any departmental policies.
On January 30, 1997, Sergeant Glenn Miller, an Internal Affairs Bureau investigator, interviewed appellant in the presence of his attorney. After reviewing the transcript of the taped interview, the investigator decided to conduct a videotape reenactment interview, termed a "walk-through," to be held on February 12, 1997, at 1:00 p.m. Written notice of this interview was received by appellant on February 10, 1997, at 11:35 p.m.
When appellant learned that his attorney was unable to attend the interview with such short notice, he asked that it be rescheduled. The investigator refused to reschedule the interview unless appellant waived the time limits in which to bring a disciplinary action set forth in the city and police union's collective bargaining agreement.
Appellant appeared at the interview without an attorney. The investigator asked whether he waived his "right to * * * representation" and "the time limits to have [the] interview rescheduled." Appellant declined to waive his rights. The investigator then gave appellant the "Garrity Warning," advising him that he was being questioned as part of an official internal investigation, that he must answer all questions or face departmental charges including dismissal from the police force, and that no statements could be used against him in any subsequent criminal proceeding. Appellant was given a direct order to participate in the interview and in the walk-through. Appellant stated he could not participate in the absence of his attorney. As a result, the investigator immediately relieved him of duty and ordered a show cause hearing for the next day.
Appellant was served with charges and specifications for insubordination for failing to participate in the walk-through. He received a five-day suspension from the Dayton Chief of Police. Appellant appealed the suspension to the city of Dayton Civil Service Board. A hearing was held before a hearing officer, who recommended upholding the suspension, thereby rejecting appellant's contention that he had a statutory right to an attorney pursuant to R.C. 9.84.
The board disaffirmed the hearing officer's recommendation and held that according to R.C. 9.84, appellant was entitled to legal representation. The Court of Common Pleas of Montgomery County affirmed the board's decision. The court of appeals reversed the trial court's judgment. The appellate court found' that appellant was not entitled to legal representation pursuant to R.C. 9.84 because he was not sworn "as a witness."
This matter is now before this court pursuant to the allowance of a discretionary appeal.
FRANCIS E. SWEENEY, SR., J.
We are asked to decide whether a police officer who is the subject of an internal affairs investigation and is compelled to appear before a superior officer for the purpose of answering questions during the course of the investigation is entitled to legal representation pursuant to R.C. 9.84. For the following reasons, we find that R.C. 9.84 provides for legal representation in this instance. We reverse the judgment of the court of appeals.
Because the narrow question before us today involves the right to counsel arising in a statutory context, we leave for another day the issue of whether a departmental policy that requires members of the police force to respond to questions asked of them in any internal investigation or face disciplinary action violates constitutional rights against self-incrimination. But, see, Henneman v. Toledo (1988), 35 Ohio St.3d 241, 245-246, 520 N.E.2d 207, 211-212, fn. 4, and Jones v. Franklin Cty. Sheriff (1990), 52 Ohio St.3d 40, 48, 555 N.E.2d 940, 949 (Douglas, J., dissenting).
R.C. 9.84 states:
"Any person
appearing as a witness before any public official, department, board, bureau, commission, agency, or representative thereof, in any administrative or executive proceeding or investigation, public or private, if he so requests, shall be permitted to be accompanied, represented, and advised
by an attorney * * *." (Emphasis added.)
The court of appeals found that R.C. 9.84 was inapplicable because appellant was not sworn to "appear as a witness" during the interview. The court stated that "while a person need not be sworn to be a witness, a person must be sworn to appear as a witness." (Emphasis sic.)
Appellant argues that the court of appeals' decision is erroneous because its holding runs contrary to the clear wording of the statute. He argues that a "witness" is anyone called upon to relate facts, regardless of whether they are placed under oath. Thus, he maintains that he is entitled to legal representation under R.C. 9.84.
It is a cardinal rule of statutory interpretation that a court must first look at the language of the statute itself to determine statutory intent. Provident Bank v. Wood (1973), 36 Ohio St.2d 101, 105, 65 O.O.2d 296, 298, 304 N.E.2d 378, 381. Moreover, in construing a legislative pronouncement, words are given their ordinary meanings. In re Appropriation for Hwy. Purposes (1969), 18 Ohio St.2d 214, 47 O.O.2d 445, 249 N.E.2d 48, paragraph one of the syllabus.
The common meaning of a "witness" is "[i]n general, one who, being present, personally perceives a thing; a beholder, spectator, or eyewitness." Black's Law Dictionary (6 Ed. 1990) 1603. Clearly, appellant was asked to participate in the walk-through because of what he personally perceived to have occurred during the July 9 incident.
Yet the city argues that the right to counsel is reserved to one "appearing as a witness"; thus, this contemplates proceedings of a more formal nature. The city relies on Erb v. Landreth (Dec. 2, 1985), Butler App. No. CA85-05-049, unreported, 1985 WL 3973, which concluded that police officers called into the office of the city's director of safety for meetings concerning their activities as police officers were not entitled to the presence of counsel. The court reasoned that "R.C. 9.84 contemplates the right of counsel in proceedings of a more formal nature" and not to the "informal investigative meetings" that were held in that case.
The city misconstrues the facts. Appellant was not called in just for questioning before his superior officer. This was an official investigation conducted by the Internal Affairs Bureau of the police force and his attendance at the scheduled videotape walk-through was mandatory. Moreover, appellant was the subject of the investigation. In fact, appellant was read the Garrity Warning. As part of this warning, he was specifically told that he was being questioned as part of an official investigation.
In State FOP, Grand Lodge No. 1 v. State (Dec. 31, 1981), Franklin App. No. 80AP-744, unreported, 1981 WL 3707, the Tenth District Court of Appeals was asked to decide whether a member of the State Highway Patrol had a right to counsel at an internal investigative disciplinary proceeding. In construing R.C. 9.84, the appellate court determined that the General Assembly has created a broad right to representation by counsel with the adoption of this statute. After considering the definition of "witness," the court ruled that the term "witness" as used in R.C. 9.84 is used in its broadest sense and should not be interpreted so as to exclude a person who is also a party to the investigation. Therefore, the court concluded that a member of the State Highway Patrol who is the subject of any administrative or executive proceeding or investigation has a right to be represented by legal counsel according to R.C. 9.84.
We agree with the reasoning found in State FOP, Grand Lodge No. 1, that the General Assembly has created a broad right to representation with the adoption of R.C. 9.84, and that the term "witness," as used in the statute, is used in its broadest sense. We construe the statute according to its plain words. The statute provides that a person "appearing as a witness" before a public official in an "administrative * * * proceeding or investigation," if he so requests, "shall be permitted to be accompanied, represented, and advised by an attorney."
Applying the plain meaning of the statute to the facts of this case, we hold that, pursuant to R.C. 9.84, a police officer who is the subject of a police department internal affairs investigation and is compelled to appear before a superior officer for the purpose of answering questions during the course of the investigation is "appearing as a witness" and, therefore, "shall be permitted to be accompanied, represented, and advised by an attorney." The judgment of the court of appeals is reversed.
Judgment reversed.
DOUGLAS, RESNICK, PFEIFER and LUNDBERG STRATTON, JJ., concur.
MOYER, C.J., COOK and LUNDBERG STRATTON, JJ., concur separately.