Goudy v. Tuscarawas Cty. Pub. Defender ( 2022 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Goudy v. Tuscarawas Cty. Pub. Defender, Slip Opinion No. 2022-Ohio-4121.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2022-OHIO-4121GOUDY, APPELLANT, v. TUSCARAWAS COUNTY PUBLIC DEFENDER, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Goudy v. Tuscarawas Cty. Pub. Defender, Slip Opinion No.
2022-Ohio-4121.]
The phrase “adversely affected” as used in R.C. 119.12(I) imposes a prejudice
requirement—State Personnel Board of Review’s failure to timely certify a
complete record of its proceedings to the common pleas court within 30
days of receiving notice of appeal did not adversely affect the public
defender’s office—Court of appeals’ judgment reversed and cause
remanded.
(No. 2021-0831—Submitted May 10, 2022—Decided November 22, 2022.)
APPEAL from the Court of Appeals for Tuscarawas County,
No. 2020 AP 10 0023, 2021-Ohio-1754.
_________________
SUPREME COURT OF OHIO
DEWINE, J.
{¶ 1} Classified civil-service employees in Ohio who are fired from their
jobs have a right to challenge their terminations by appealing to the State Personnel
Board of Review. A party who loses before the personnel board may appeal to the
common pleas court. When that happens, the personnel board is required to certify
a complete record of its proceedings to the common pleas court within 30 days of
receiving notice of the appeal. If the personnel board misses that deadline, the
common pleas court is required to enter judgment in favor of the “adversely
affected” party. This case is about what it means to be an “adversely affected”
party.
{¶ 2} Here, the personnel board ordered that Kristy Goudy be reinstated to
her position at the Tuscarawas County Public Defender’s Office. But when the
public defender’s office appealed that decision to the court of common pleas, the
personnel board failed to certify a complete record within the time allotted. The
personnel board had inadvertently failed to include the transcript of the second day
of the hearing. It subsequently corrected its error and certified the remainder of the
record outside the time allotted. The court of common pleas concluded that the
delay in certifying the record did not cause any prejudice to the public defender’s
office and therefore it was not an adversely affected party. The court of appeals
disagreed: it determined that one need not be prejudiced to be an adversely affected
party and that even if the statute did impose a prejudice requirement, the
requirement was met in this case.
{¶ 3} We conclude that the phrase “adversely affected” as used in R.C.
119.12(I) imposes a prejudice requirement. We also conclude that that prejudice
has not been shown in this case. Therefore, we reverse the decision of the court of
appeals and remand the case to the court of appeals for it to consider the public
defender’s office’s remaining assignments of error.
2
January Term, 2022
I. Goudy is fired and challenges her termination
{¶ 4} Goudy was a classified employee at the Tuscarawas County Public
Defender’s Office. Classified employees may be fired only for cause, that is, for
grounds enumerated in R.C. 124.34(A). A classified employee may challenge a
termination by appealing to the personnel board. R.C. 124.34(B). A party who
loses before the personnel board may appeal to the court of common pleas. Id.{¶ 5} R.C. 119.12, part of Ohio’s Administrative Procedure Act, governs
appeals from administrative agencies, such as the personnel board, to the common
pleas court. When an appeal is taken, the appealing party must provide the agency
with a security deposit to cover the cost of transcribing the record. R.C. 119.12(J).
The agency then has 30 days to prepare and certify to the court a complete record
of the administrative proceedings. R.C. 119.12(I). If the agency fails to comply
with this 30-day requirement, the court “upon motion” is “to enter a finding in favor
of the party adversely affected.” Id.{¶ 6} That remedy is a harsh one in a case like this. In many cases, the
agency that conducted the administrative hearing will also be a party to the case.
For example, a nurse might appeal a decision by the board of nursing to suspend
his license. If the board of nursing does not timely certify the record with the court,
it seems fair to penalize the board of nursing for its failure to do so. In other cases,
however, the agency adjudicating the action is not a litigant in the case—for
example, cases, like this one, involving the personnel board. In such cases, the
consequences of the agency’s failure fall on a party who had nothing to do with the
failure. Nonetheless, absent a finding that the statute violates the state or federal
constitutions—and no constitutional challenge has been developed here—we are
required to apply the statute as written.
A. Goudy is fired but prevails on appeal to the personnel board
{¶ 7} In 2018, the public defender’s office fired Goudy from her job as a
secretary on the basis that she had violated the office’s standards of conduct. The
3
SUPREME COURT OF OHIO
allegations against her ranged from transferring calls incorrectly and slamming
doors to making unwanted sexual comments while touching a coworker’s waist.
Goudy appealed her firing to the personnel board.
{¶ 8} Following a hearing before an administrative-law judge, the personnel
board determined that the public defender’s office proved only some of the
allegations against Goudy and modified the firing to a ten-day suspension.
B. The public defender’s office appeals,
and the personnel board certifies an incomplete record
{¶ 9} On October 2, 2019, the public defender’s office appealed the order
to the Tuscarawas County Court of Common Pleas. At the same time, the public
defender’s office provided the personnel board with notice of the appeal and a
security deposit. See R.C. 119.12(J). Twenty-eight days later, the personnel board
certified the record with the court of common pleas.
{¶ 10} Unbeknownst to the personnel board, the transcript for the second
day of the hearing was missing from the record. The omission initially went
undiscovered, and the case proceeded as normal. On January 8, 2020, the court
established a briefing schedule, and on January 9, it set a hearing date of April 27.
Then, on January 30, the personnel board discovered its mistake and notified the
parties and the court. Seven days later, it filed the rest of the record. In the
meantime, the public defender’s office moved for judgment in its favor based on
the personnel board’s failure to timely certify the complete record. The court put
merits briefing on hold to allow for briefing on the motion.
{¶ 11} The court held a hearing on the motion for judgment on March 9,
and on April 22, it vacated the April 27 merits-hearing date. On April 27, the court
denied the motion for judgment, finding that no prejudice had resulted from the
personnel board’s failure to timely file the complete record. The court opined that
to be entitled to judgment, the public defender’s office needed to have been
prejudiced by the late filing. It observed that the personnel board’s filing, albeit
4
January Term, 2022
late, came well before the case was set for a merits hearing. The court then found:
“[T]he late filing * * * may have resulted in a modified briefing schedule; however,
the late filing alone would not have necessitated a delay of the overall disposition
of this case.”
{¶ 12} The case proceeded to a hearing on the merits, and the court of
common pleas affirmed the personnel board’s order. The public defender’s office
then reinstated Goudy. It also appealed the decision to the Fifth District Court of
Appeals, challenging the common pleas court’s decisions on both the motion for
judgment and the merits of the case.
C. The court of appeals determines that the personnel board’s omission entitled
the public defender’s office to judgment in its favor
{¶ 13} The Fifth District agreed with the public defender’s office that the
common pleas court should have entered judgment in its favor. 2021-Ohio-1754,
¶ 25, 28, 40. In doing so, it interpreted this court’s precedent as establishing a two-
track method for applying R.C. 119.12(I). Id. at ¶ 39. In its view of our precedent,
when an agency fails to timely certify the complete record of the administrative
proceedings, the common pleas court is required to enter judgment in favor of the
appellant. Id. On the other hand, the Fifth District explained, when the agency’s
submission contains a mere “omission” in an otherwise complete record, an
additional showing of prejudice is required for the appellant to be entitled to
judgment. Id. The court of appeals categorized the personnel board’s error in this
case as going beyond a “mere omission,” thus eliminating any need for the public
defender’s office to show prejudice. Id. at ¶ 40, 45. Accordingly, it concluded that
the personnel board’s failure to file a complete record within 30 days of receiving
the notice of appeal entitled the public defender’s office to judgment in its favor.
Id. at ¶ 43, 45. Even so, the court went on to examine prejudice. Id. at ¶ 46.
{¶ 14} The court of appeals disagreed with the court of common pleas’
finding that no prejudice had occurred. It found that the personnel board’s failure
5
SUPREME COURT OF OHIO
to file the complete transcript led to a five-month delay in adjudication and that this
delay increased the amount of back pay that the public defender’s office would
potentially be responsible for paying Goudy. Id. at ¶ 48. In addition, it said that
the personnel board’s failure caused “a delay in the due process of law.” Id. at ¶ 49.
As a result, it opined in dicta that the public defender’s office would be entitled to
judgment even if the statute required a showing of prejudice. See id.
{¶ 15} Goudy appealed, and we accepted jurisdiction. 164 Ohio St.3d
1431, 2021-Ohio-3091, 173 N.E.3d 508. Her arguments on appeal are difficult to
follow, but she essentially contends (1) that R.C. 119.12(I) requires a showing of
prejudice and (2) that the personnel board did not suffer prejudice.1
II. Both the ordinary meaning of “adversely affected” and our precedent
establish that the statute requires a showing of prejudice
{¶ 16} The public defender’s office contends that the personnel board’s
failure to timely certify a complete record entitled it to a judgment in its favor.
Goudy disagrees and submits that a party is entitled to judgment only if the
personnel board’s untimely filing causes prejudice.
A. Under the plain language of the statute, judgment based on an untimely
certification is warranted only if the party was prejudiced by the delay
{¶ 17} R.C. 119.12(I) provides:
Within thirty days after receipt of a notice of appeal from an
order in any case in which a hearing is required * * *, the agency
shall prepare and certify to the court a complete record of the
1. Following Goudy’s arguments is made even more difficult because the propositions of law that
she sets forth in her merit brief do not match those over which we accepted jurisdiction. This court
did not grant Goudy leave to amend her propositions, nor did Goudy ask for leave. Because the
crux of Goudy’s propositions remains largely the same, we will proceed to the merits of the case.
But we caution that such conduct is improper. Any party that tries to amend his propositions of law
without leave does so at the risk of dismissal.
6
January Term, 2022
proceedings in the case. Failure of the agency to comply within the
time allowed, upon motion, shall cause the court to enter a finding
in favor of the party adversely affected.
{¶ 18} By its plain terms, the statute requires a showing of prejudice. No
great linguistic dexterity is necessary to understand the meaning of the phrase
“adversely affected.” In common parlance, one is adversely affected when he is
harmed. In legal parlance, we call this prejudice. Thus, under the plain language
of the statute, when an agency does not comply with the certification requirement,
the court must make a finding in favor of the party that has been harmed or
prejudiced by the agency’s failure.
{¶ 19} The public defender’s office pushes back on this plain reading and
contends that the phrase “party adversely affected” does not impose a prejudice
requirement but simply means the party that lost before the agency (that is, the
appellant in the court of common pleas). The phrase “party adversely affected,” it
claims, is simply the “term-of-art” that the Ohio Administrative Procedure Act uses
for the party that receives an unfavorable result from an agency’s adjudication. In
support of its argument, the public defender’s office points out that in other
subsections of the statute, the General Assembly uses the phrase when referring to
the party that lost before the agency. The public defender’s office asserts that the
phrase should be given the same meaning here.
{¶ 20} The problem with that argument is that the phrase is used differently
in the subsections to which the public defender’s office refers. The public
defender’s office relies on R.C. 119.12(A)(1) and (B). But in those subsections,
the statute refers to the “party adversely affected by any order of an agency.”
(Emphasis added.) Similarly, R.C. 119.092(C), the other statutory subsection cited
by the public defender’s office, refers to a party that “could have appealed the
adjudication order of the agency had the party been adversely affected by it.”
7
SUPREME COURT OF OHIO
{¶ 21} In each of the subsections cited by the public defender’s office, the
phrase “adversely affected” is paired with the phrase “order of an agency.” R.C.
119.12(A)(1) and (B); see also R.C. 119.092(C). In contrast, the subsection at issue
in this case, R.C. 119.12(I), pairs “party adversely affected” with “failure of the
agency” to comply with the 30-day deadline. Thus, we have little difficulty
rejecting the public defender’s office’s interpretation. We conclude that by its plain
terms, R.C. 119.12(I) imposes a prejudice requirement.
B. We realign our precedent with the plain language of the statute
{¶ 22} While the plain language of the statute makes clear that prejudice is
required, our caselaw is a good deal murkier. We first dealt with R.C. 119.12(I) in
Matash v. Ohio Dept. of Ins., 177 Ohio St. 55, 202 N.E.2d 305 (1964). That case
involved an appeal by an insurance agent whose license had been revoked by the
department of insurance. The department of insurance failed to timely certify the
record of its administrative proceedings to the common pleas court, and the
question we confronted was whether dismissal was mandatory. We held that it was,
explaining that the legislature had recently amended the statute to add the language
requiring dismissal. Those amendments, we explained, “clearly express a
legislative intention that a failure to certify such record within the time * * *
specified must, on motion of the appellant, result in a judgment for the party
adversely affected by the order appealed from.” Id. at 57. In Matash, the issue of
prejudice was not directly before the court. Rather, the issue was whether the
statute was mandatory or directory. The parties did not brief the prejudice issue,
and the court did not opine on the issue. Nonetheless, because the Matash court
stated that dismissal was mandatory, the case has often been cited for the
proposition that no showing of prejudice is required. See, e.g., In re Troiano, 33
Ohio App.3d 316, 317, 515 N.E.2d 985 (8th Dist.1986); Sinha v. Ohio Dept. of
Agriculture, 10th Dist. Franklin No. 95APE09-1239, 1996 WL 99753, *2.
8
January Term, 2022
{¶ 23} We again took up R.C. 119.12(I) in Lorms v. Ohio Dept. of
Commerce, Div. of Real Estate, 48 Ohio St.2d 153, 357 N.E.2d 1067 (1976). Like
the present case, that case involved an appeal from the personnel board. In Lorms,
the personnel board had timely certified the record but had inadvertently omitted
two letters that had been introduced as exhibits. There, we equated “adversely
affected” with prejudice. Id. at 155. We thus held that “[a]n agency’s omission of
items from the certified record * * * does not require a finding for the appellant
* * * when the omissions in no way prejudice him in the presentation of his appeal.”
Id. at syllabus.
{¶ 24} In arguing for dismissal, Lorms maintained that Matash made
dismissal mandatory. The court could have distinguished Matash simply by noting
that the prejudice issue was not raised in Matash. But instead, the court made a
distinction based on the fact that in Matash, no record was filed at all. In a footnote,
the court opined that “[s]ince the agency in Matash failed to certify any record
within 34 days after receipt of notice of appeal, that case did not raise the issue of
nonprejudicial omissions from a record under R.C. 119.12.” (Emphasis in
original.) Lorms at 155, fn. 1. The distinction drawn in that footnote—between a
complete failure to file a record and an omission—has created persistent confusion
in the lower courts. We hope to put an end to that confusion today.
{¶ 25} This court adhered to Lorms in a case involving a record that was
certified using an unintentionally erroneous case number. Arlow v. Ohio Rehab.
Servs. Comm., 24 Ohio St.3d 153, 155, 493 N.E.2d 1337 (1986). That case, like
the present one, involved the review of an employment-termination decision by the
personnel board. Id. at 154. We found that failing to include the proper case
number was similar to omitting part of the record in Lorms, and, therefore held that
prejudice must be shown for a party to be entitled to judgment based on that error.
See Arlow at 156. At the same time, we distinguished the failure to include the
correct case number on the record from a complete failure to file a record and
9
SUPREME COURT OF OHIO
suggested that a different result would be required when “no action has been taken
to certify an administrative record.” (Emphasis deleted.) Id.
{¶ 26} Drawing upon this line of cases, the court of appeals below held that
two different standards applied: no showing of prejudice is required when there is
a complete failure to file a record, and a showing of prejudice is required when
there is a mere unintentional error or omission from an otherwise complete record.
In so holding, it acted in accord with decisions by numerous other courts of appeals.
See, e.g., Gwinn v. Ohio Elections Comm., 187 Ohio App.3d 742, 2010-Ohio-1587,
933 N.E.2d 1112, ¶ 15-16 (10th Dist.); McClendon v. Ohio Dept. of Edn., No.
104292, 2017-Ohio-187, 77 N.E.3d 523, ¶ 55 (8th Dist.); Citizens for Akron v. Ohio
Elections Comm., No. 11AP-152, 2011-Ohio-6387, ¶ 20-21 (10th Dist.). Today, we
clarify that there is only one standard.
{¶ 27} The bifurcated test used by the Fifth District has no basis in the
statutory language. The statute simply says that when there is a failure to timely
file a “complete record,” the court shall, upon motion, “enter a finding in favor of
the party adversely affected.” R.C. 119.12(I). The statute doesn’t distinguish
“mere omissions” from more serious failures. And the “adversely affected”
language applies universally to all failures to timely file a complete record. So, the
statute either requires prejudice or it doesn’t. There is no room for a middle ground.
The judicially manufactured sometimes-prejudice-is-required, sometimes-it’s-not
approach cannot be reconciled with the statutory language.
{¶ 28} We make clear today that prejudice is always required. The plain
meaning of “party adversely affected” leaves no room for any other construction.
We do not view this holding as inconsistent with Matash; as we explained earlier,
the prejudice issue was not litigated in Matash. But nothing in Matash or the
subsequent reference to Matash in the Lorms footnote should be read as dispensing
with R.C. 119.12(I)’s prejudice requirement.
10
January Term, 2022
C. The public defender’s office has not shown that it was prejudiced
{¶ 29} The court of appeals opined that even if there was a prejudice
requirement, that requirement was met. The common pleas court had determined
that while the untimely filing caused a modification of the briefing schedule, it did
not result in any delay in the disposition of the case. But the court of appeals
apparently disagreed. It noted that after the trial court denied the motion for
judgment filed by the public defender’s office, the court set a new merits-briefing
and oral-argument schedule. Under the new schedule, oral argument was set for
August 24, 2020, rather than the original argument date of April 27, 2020. The
court of common pleas issued its opinion affirming the personnel board’s decision
on September 16, 2020. In concluding that the public defender’s office had been
prejudiced, the court of appeals said, “The five months delay from briefing to
judgment arguably increased [the public defender’s office’s] exposure for back pay
and postponed the enforcement of the Order reinstating Ms. Goudy’s employment.”
2021-Ohio-1754 at ¶ 48.
{¶ 30} The problem is that this conclusion is at odds with the trial court’s
statement that the late filing of the transcript did not cause an overall delay in the
proceedings. Here, the court of common pleas was obviously familiar with its
docket and its caseload. There is nothing in the record that provides any basis for
the court of appeals to question the trial court’s statement that the late filing of the
transcript did not delay the overall disposition of the case.
{¶ 31} The court of appeals apparently conflated the delay occasioned by
the public defender’s office’s motion for judgment with the delay caused by the late
filing of the transcript. The court of appeals focused on the five-month interval
between the original oral-argument date and the date the trial court’s decision was
issued. In doing so, it apparently assumed that the late filing of the transcript caused
the trial court to vacate the original hearing date. But the record does not support
the conclusion that the five-month interval was attributable to the late filing of the
11
SUPREME COURT OF OHIO
transcript. Rather, the record suggests that the reason that the original hearing date
was vacated was to allow the public defender’s office to go forward with its motion
for judgment. Indeed, as explained above, the court of common pleas explicitly
found that “the late filing alone would not have necessitated a delay of the overall
disposition of this case.”
{¶ 32} One might posit that the motion for judgment would not have been
filed but for the late filing of the transcript and therefore any delay attributable to
the motion for judgment can also be attributed to the late filing of the transcript.
But that makes little sense. As we explained earlier, to be entitled to judgment, the
public defender’s office was required to show that it was prejudiced by the late
filing. It is hardly reasonable to allow the public defender’s office to claim that the
delay occasioned by its own motion for judgment is itself the prejudice that entitles
it to judgment in its favor.
{¶ 33} There is nothing in the record that provides any basis to disregard
the trial court’s finding that the late filing of the transcript did not delay the overall
disposition of the case.
III. Conclusion
{¶ 34} The court of appeals erred in concluding that R.C. 119.12(I) does not
contain a prejudice requirement. Further, the record does not support a conclusion
that the late filing of the transcript delayed the overall disposition of the case.
Therefore, we reverse the judgment of the Fifth District Court of Appeals. Because
it concluded that the public defender’s office was entitled to judgment based on the
untimely filing of part of the transcript, the court of appeals did not consider the
assignments of error raised by the public defender’s office challenging the trial
court’s judgment on the merits. We remand the case to the court of appeals for
consideration of these unresolved assignments of error.
Judgment reversed
and cause remanded.
12
January Term, 2022
O’CONNOR, C.J., and KENNEDY, FISCHER, DONNELLY, STEWART, and
BRUNNER, JJ., concur.
_________________
Moses Law Offices, L.L.C., and Michael Moses, for appellant.
Zashin and Rich Co., L.P.A., Scott H. DeHart, Jonathan J. Downes, and
Drew C. Piersall, for appellee.
Betsy Rader Law, L.L.C., and Elizabeth A. Rader, urging reversal for
amicus curiae Ohio Employment Lawyers Association.
Dave Yost, Attorney General, Benjamin M. Flowers, Solicitor General, and
Diane R. Brey and Stephen P. Carney, Deputy Solicitors General, urging reversal
for amicus curiae Attorney General Dave Yost.
_________________
13