In re Civil Service Charges & Specifications Against Piper

Cook, J.,

concurring. I concur with the majority’s decision because courts must construe remedial statutes, such as the one at bar, liberally. See R.C. 1.11. See, also, Wellston Iron Furnace Co. v. Rinehart (1923), 108 Ohio St. 117, 140 N.E. 623, syllabus (“All statutes relating to procedure are remedial in their nature and should be liberally construed and applied to effect them respective purposes.”). Thus, since the phrase “appearing as a witness,” as well as the words “administrative * * * investigation,” can reasonably be interpreted as Officer Piper suggests, we are obliged to adopt those meanings.

It is because of this view about the remedial purpose of the statute that I differ with the court of appeals’ narrower interpretation of the text of the statute. Although the court of appeals concluded that one is hot “appearing as a witness” unless one has taken an oath, there appears no basis to foreclose the view that the words have a different meaning in common parlance.

However, I wish to emphasize something the majority opinion suggests — that “appearing as a witness” alone is not sufficient to trigger the right to counsel under R.C. 9.84. One must “appea[r] as a witness * * * in [an] administrative or executive proceeding or investigation.” (Emphasis added.) The city correctly argues that the “investigation” or “proceeding” cannot be simply an informal interview and still trigger a right to counsel. I agree with the holding in Erb v. Landreth (Dec. 2, 1985), Butler App. No. CA85-05-049, unreported, 1985 WL 3973, that the benefits of this statute are triggered only where there is the requisite formality that would distinguish “administrative or executive proceedings or investigation” from informal interviews. The question is, what constitutes the requisite formality?

The level of formality in any proceeding or investigation is a function of the rules applicable to the manner in which the proceeding or investigation is conducted. The scheduled “walk through” at issue here was a sufficiently formal “administrative * * * investigation” to trigger the application of the statute. Based on documents in the record, Article 8 of the collective bargaining agreement then in effect between the officers and the city required that the city give appellant at least twenty-four hours’ notice of any inquiry it wished to conduct of *313him regarding suspected misconduct on his part, and furthermore required the city to formally inform him of his right to representation. In addition, no disciplinary action could be taken unless appellant had had an opportunity for a hearing.

It also appears — again, according to the record — that the Dayton Police Department’s General Orders 1.10-5 III(B) and (C) provide that the subject of an administrative investigation conducted by Internal Affairs shall be given formal twenty-four-hour notice of the interview and of the right to representation. Regarding “walk-throughs,” General Order 1.10-5 111(G)(1) provides that an officer may be “required” to participate in a videotape walk-through when necessitated by an administrative investigation. It seems incontrovertible that these written and detailed procedural rules satisfy the requirement of formality contemplated by R.C. 9.84.

Because appellant “appeared as a witness” during a sufficiently formal “administrative investigation,” he had a right to be represented by counsel pursuant to R.C. 9.84.

Moyer, C.J., and Lundberg Stratton, J., concur in the foregoing concurring opinion.