Hageman v. Bryan City School Dist. , 2019 Ohio 223 ( 2019 )

[Cite as Hageman v. Bryan City School Dist., 2019-Ohio-223.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Janet Hageman, :
Appellee-Appellee, :
No. 17AP-742
v. : (C.P.C. No. 17CV-2412)
Bryan City Schools, : (REGULAR CALENDAR)
Appellant-Appellant. :
D E C I S I O N
Rendered on January 24, 2019
On brief: Thomas A. Sobecki, for appellee. Argued:
Thomas A. Sobecki.
On brief: Ennis Britton Co., LPA, C. Bronston McCord, III,
Pamela A. Leist, and J. Michael Fischer, for appellant.
Argued: J. Michael Fischer.
APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
{¶ 1} Appellant, Bryan City School District Board of Education, appeals from a
judgment of the Franklin County Court of Common Pleas affirming an order of the State
Personnel Board of Review ("SPBR") ordering appellee, Janet Hageman, be reinstated to
her position as an assistant treasurer. For the following reasons, we affirm.
I. Facts and Procedural History
{¶ 2} Hageman was employed by the Bryan City School District ("BCSD") as an
assistant treasurer, under the supervision of BCSD's treasurer, Rob Rosswurm. On
January 6, 2012, Rosswurm purchased a computer for his daughter through BCSD.
Rosswurm's daughter did not attend a BCSD school. The invoice stated the purchase was
tax exempt and indicated it was made on behalf of BCSD. The purchase was paid for by a
No. 17AP-742 2
BCSD check dated February 2, 2012. On January 25, 2012, Rosswurm paid BCSD for the
cost of the computer. On November 21, 2013, Hageman reported Rosswurm's computer
purchase to the State Auditor's office, indicating that sales tax was not paid on the purchase.
Over two years after the purchase, on July 15, 2014, Rosswurm paid the State Treasurer for
the cost of the sales tax on the computer.
{¶ 3} On July 10, 2014, Hageman met with Rosswurm about a pay increase
request, and Rosswurm informed Hageman she would not receive the requested pay
increase. During the meeting, Hageman told Rosswurm she had reported the computer
purchase to the State Auditor's fraud line based on misappropriation of funds. Rosswurm
subsequently claimed that Hageman verbally attacked him at the meeting; Hageman
asserted she did not say anything inappropriate. As a result of Rosswurm's allegation, a
disciplinary hearing was conducted and BCSD superintendent Diana Savage issued a
written reprimand to Hageman and suspended her for two days.
{¶ 4} Hageman testified she reported Rosswurm's computer purchase to certain
members of appellant in July 2014 and also raised the issue in July 2015 at a meeting where
one member of appellant was present.
{¶ 5} Hageman was subjected to discipline a second time in December 2015, based
on allegations from a BCSD custodian and union representative who stated that Hageman
spoke disparagingly of another member of the BCSD treasurer's office staff. A notice of
disciplinary hearing was issued on December 8, 2015. As a result of the disciplinary
hearing, Savage suspended Hageman for three days and implemented a performance
improvement plan.
{¶ 6} On December 8, 2015, Hageman reported Rosswurm's computer purchase to
the Williams County Sheriff's Department. Hageman met with the Williams County Sheriff
on December 11, 2015 and advised him she believed Rosswurm misappropriated funds and
used his office for personal gain by purchasing the computer for his daughter through
BCSD.
{¶ 7} Hageman was subjected to discipline by BCSD for a third time in April 2016,
based on allegations of creating a disruptive work environment, displaying unprofessional
behavior, and dishonesty, related to a text message Rosswurm claimed he received from
Hageman's phone number. At a disciplinary hearing, Hageman claimed she did not send
No. 17AP-742 3
the alleged text message, but Savage concluded she had sent it. On May 25, 2016, Savage
recommended to appellant that Hageman be discharged; on May 31, 2016, appellant voted
to terminate Hageman's employment contract.
{¶ 8} Hageman appealed her termination to the SPBR. An administrative law
judge ("ALJ") conducted a hearing on the appeal on September 29, December 19, and
December 20, 2016. Following the hearing, the ALJ issued a report and recommendation
concluding Hageman was terminated because she filed the report with the Williams County
Sheriff, and the report was protected activity under R.C. 124.341. The ALJ recommended
the termination be disaffirmed and Hageman be reinstated to the position of account clerk.
The SPBR adopted the ALJ's recommendation, with a limited exception that Hageman's
proper job title was assistant treasurer, and ordered that Hageman be reinstated to that
position.
{¶ 9} Appellant appealed SPBR's order to the Franklin County Court of Common
Pleas pursuant to R.C. 119.12, asserting the order was not supported by reliable, probative,
and substantial evidence. The common pleas court affirmed the SPBR order, concluding it
was supported by reliable, probative, and substantial evidence.
II. Assignments of Error
{¶ 10} Appellant appeals and assigns the following two assignments of error for our
review:
[I.] The Common Pleas Court abused its discretion by failing to
determine whether the State Personnel Board of Review's
finding that Appellee is a whistleblower within the meaning of,
and entitled to the protection of, R.C. 124.341 is supported by
reliable, probative and substantial evidence in the
administrative record.
[II.] The Common Pleas Court abused its discretion by
affirming the State Personnel Board of Review's decision that
Appellee was terminated because she engaged in protected
whistleblowing activities when that decision is not supported
by reliable, probative and substantial evidence in the
administrative record.
No. 17AP-742 4
III. Analysis
{¶ 11} We must begin our review of this appeal by considering a jurisdictional issue.
R.C. 119.12(B) provides for an appeal to the common pleas court by a party adversely
affected by an agency order issued pursuant to certain adjudications. R.C. 119.12(N)
provides for appeal of the decision of the common pleas court to the court of appeals:
The judgment of the court [of common pleas] shall be final and
conclusive unless reversed, vacated, or modified on appeal.
These appeals may be taken either by the party or the agency,
shall proceed as in the case of appeals in civil actions, and shall
be pursuant to the Rules of Appellate Procedure and, to the
extent not in conflict with those rules, Chapter 2505. of the
Revised Code. An appeal by the agency shall be taken on
questions of law relating to the constitutionality, construction,
or interpretation of statutes and rules of the agency, and, in the
appeal, the court may also review and determine the
correctness of the judgment of the court of common pleas that
the order of the agency is not supported by any reliable,
probative, and substantial evidence in the entire record.
For purposes of Revised Code Chapter 119, "party" is defined as "the person whose interests
are the subject of an adjudication by an agency." R.C. 119.01(G). "Person" is defined as a
"person, firm, corporation, association, or partnership." R.C. 119.01(F).
{¶ 12} In the context of determining the right to appeal a decision of the State
Employment Relations Board, the Supreme Court of Ohio has held that because a county
board of developmental disabilities is a governmental unit of a county, which is a political
subdivision of the state, the county board was a body corporate and politic and fell within
the definition of "person" set forth in R.C. 119.01(F). Therefore, the court reasoned, the
county board could be a "party" within the definition set forth in R.C. 119.01(G) for purposes
of applying R.C. 119.12. Hamilton Cty. Bd. of Mental Retardation & Dev. Disabilities v.
Professionals Guild of Ohio, 46 Ohio St. 3d 147, 149-51 (1989). Similarly, this court has
held, as a body corporate and politic, a county board of commissioners is a corporation
within the definition of "person" under R.C. 119.01(F) and, accordingly, may be a "party"
within the meaning of R.C. 119.01(G) and 119.12. Staples v. Ohio Civ. Serv. Emps. Assn.,
32 Ohio App. 3d 9, 12 (10th Dist.1986). In Staples, this court relied in part on the definition
of a political subdivision contained in R.C. 2744.01(F); that definition also includes school
districts, and the reasoning in Hamilton County and Staples would apply with equal force
No. 17AP-742 5
to BCSD in the present case. Thus, we conclude appellant fits within the definition of
"party" set forth in R.C. 119.01(G) for purposes of applying R.C. 119.12 and will consider the
merits of its appeal.1
{¶ 13} In an administrative appeal under R.C. 119.12, the common pleas court
reviews the entire record and determines whether an agency's order is supported by
reliable, probative, and substantial evidence and is in accordance with law. Pons v. Ohio
State Med. Bd., 66 Ohio St. 3d 619, 621 (1993). The standard of review for a court of appeals
in an administrative appeal is more limited; we must determine whether the common pleas
court abused its discretion. Id. An abuse of discretion occurs when a decision is
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St. 3d 217,
219 (1983). "A decision is unreasonable if there is no sound reasoning process that would
support that decision." AAAA Ents., Inc. v. River Place Community Urban Redevelopment
Corp., 50 Ohio St. 3d 157, 161 (1990). An arbitrary decision is one that lacks adequate
determining principle and is not governed by any fixed rules or standard. Porter, Wright,
Morris & Arthur, LLP v. Frutta del Mondo, Ltd., 10th Dist. No. 08AP-69, 2008-Ohio-3567,
¶ 11. An unconscionable decision may be defined as one that affronts the sense of justice,
decency, or reasonableness. Id. On questions of whether an agency's decision was in
accordance with law, we exercise plenary review. Gralewski v. Ohio Bur. of Workers'
Comp., 167 Ohio App. 3d 468, 2006-Ohio-1529, ¶ 17 (10th Dist.).
{¶ 14} Appellant argues in its first assignment of error that the common pleas court
abused its discretion by failing to determine whether SBPR's conclusion that Hageman was
entitled to protection under the whistleblower statute was supported by reliable, probative,
and substantial evidence. Appellant asserts Hageman failed to establish she had a
reasonable, good-faith belief that Rosswurm had committed a criminal offense. Appellant
further claims the fact that Hageman's report to the Williams County Sheriff was made
nearly four years after the computer purchase must be considered in determining whether
she had a reasonable, good-faith belief that the purchase was a criminal offense.
1 We acknowledge this court's recent decision in Ohio Veterans Home v. Taylor, 10th Dist. No. 17AP-867,
2018-Ohio-3879, dismissing an appeal from a decision of the common pleas court affirming a decision of the
SPBR pursuant to the jurisdictional limitation set forth in R.C. 119.12(N). The appellant in that case was a
state entity, not a unit of a county government. The definitions of "party" and "person" set forth in R.C. 119.01
may apply differently in that scenario. See Dept. of Adm. Servs., Office of Collective Bargaining v. State Emp.
Relations Bd., 54 Ohio St. 3d 48, 51-53 (1990).
No. 17AP-742 6
{¶ 15} Ohio's whistleblower-protection statute provides that "[i]f an employee in the
classified or unclassified civil service becomes aware in the course of employment of a
violation of state or federal statutes, rules, or regulations or the misuse of public resources,
and the employee's supervisor or appointing authority has authority to correct the violation
or misuse, the employee may file a written report identifying the violation or misuse with
the supervisor or appointing authority." R.C. 124.341(A). The employee also may file a
written report with the office of internal audit or the state auditor's fraud-reporting system.
R.C. 124.341(A). Further, the statute provides if the employee reasonably believes a
violation or misuse of public resources is a criminal offense, she may report it to a
prosecutor or law enforcement official, including a sheriff. R.C. 124.341(A). With limited
exceptions, an employee may not be subjected to disciplinary action for making a
whistleblower report. R.C. 124.341(B).
{¶ 16} Under R.C. 124.341(C), an employee must make a "reasonable effort to
determine the accuracy of any information reported under [R.C. 124.341(A)]." An employee
is not required to prove that an actual statutory violation occurred, only that she reasonably
believed a statutory violation occurred. Leslie v. Ohio Dept. of Dev., 171 Ohio App. 3d 55,
2007-Ohio-1170, ¶ 63 (10th Dist.), citing Fox v. Bowling Green, 76 Ohio St. 3d 534 (1996).
In light of the good-faith requirement under the statute, this court has held "it is both
reasonable and logical to look at the context in which the report was made, as well as the
content of the report." Haddox v. Ohio State Atty. Gen., 10th Dist. No. 07AP-857, 2008-
Ohio-4355, ¶ 34.
{¶ 17} In the present case, Hageman testified before the ALJ that prior to making
her report to the Williams County Sheriff, she had reported Rosswurm's computer purchase
to the State Auditor's office and to certain members of appellant. She further testified that
she believed the disciplinary action in December 2015 was part of a continued pattern of
retaliation due to her prior reports. Hageman explained her reasons for reporting the
matter to the Williams County Sheriff in December 2015:
But I wanted to – I was – I felt that my boss had changed his
treatment of me since July 10th, 2014, and I felt that this was a
continuation – a possible continuation of the retaliation, so I
went to the Sheriff because I knew the law had been broken
from conferences I'd gone to and (Inaudible) I had spoken to,
and no one in the administration where I had reported it to up
No. 17AP-742 7
to that point had done anything, even though they had charged
another administrator with the same charges, and turned it
into the police when she misappropriated funds.
(Sept. 29, 2016 Tr. at 129-30.) Hageman further testified she also believed the computer
purchase was illegal based on Rosswurm's responses to similar requests from other school
employees:
ALJ: Okay. Well, let me just go ahead and ask you. Why did you
believe that Mr. Rosswurm's alleged purchase of this computer
through the school was a – was – was – that there was
something wrong with it? Why did you believe that?
[Hageman]: Because actually – we had had employees since my
employment that had come to the treasurer's department and
asked, "Can we buy something through the school and then
reimburse the school," and [Rosswurm] had told them no.
ALJ: Did – did you know why he said no?
[Hageman]: Because he said it was illegal.
(Sept. 29, 2016 Tr. at 130-31.) Later in the hearing, Hageman reiterated her explanation:
Q: And why did you call Steve Towns – Sheriff Towns that
morning?
A: Because I had gone to multiple administrators above me, to
include board members, my supervisor, and the
Superintendent Diana Savage with a possible illegal activity,
since my boss had misappropriated funds for personal use to
buy a computer and printer for his daughter through the
school's books, when he had told me throughout the years,
"When other employees would call me and say, 'Can I put
something on this order and then just pay the school back,' " he
specifically said, "You cannot do that because you would be
avoiding sales tax."
Q: And when you said "he" several times in your answer, who
were you referring to?
A: Rob Rosswurm.
(Dec. 20, 2016 Tr. at 564-65.) However, Hageman admitted on cross-examination that an
auditor from the State Auditor's office told her during the regular audit of BCSD in autumn
No. 17AP-742 8
2014 that the situation was resolved because Rosswurm had reimbursed the school for the
purchase and had separately paid the sales tax for the purchase.
{¶ 18} Based on our review of the record, we cannot conclude the common pleas
court abused its discretion by finding there was reliable, probative, and substantial evidence
to support SPBR's conclusion that Hageman's report to the Williams County Sheriff was
protected under R.C. 124.341. As set forth above, Hageman explained the basis for her
belief that the computer purchase was a criminal offense and the reason for her delay in
reporting the matter to the sheriff. Although there was competing evidence regarding
whether it was reasonable for Hageman to believe the computer purchase constituted a
criminal act, generally in an R.C. 119.12 appeal, the common pleas court should defer to an
agency's determination regarding witness credibility and the weight assigned to the
evidence. Trish's Café & Catering, Inc. v. Ohio Dept. of Health, 195 Ohio App. 3d 612, 2011-
Ohio-3304, ¶ 25 (10th Dist.). The ALJ must have concluded Hageman was credible because
he found her report to the Williams County Sheriff was protected under R.C. 124.341, and
SPBR adopted that finding. The common pleas court afforded deference to SPBR's
weighing of the evidence and we do not find the common pleas court's decision affirming
SPBR's conclusion was unreasonable, arbitrary, or unconscionable.
{¶ 19} Accordingly, we overrule appellant's first assignment of error.
{¶ 20} In its second assignment of error, appellant asserts the common pleas court
abused its discretion by affirming SPBR's conclusion that Hageman was terminated
because she engaged in activity that was protected under R.C. 124.341. Appellant claims
Hageman failed to establish that the whistleblower report was the sole reason she was
terminated, arguing that Hageman would have been terminated due to her disrespectful
and unprofessional behavior, not because of her report to the Williams County Sheriff.
{¶ 21} In Leslie, this court concluded there was no reliable, probative, and
substantial evidence to support the employee's claim that his whistleblowing activity
motivated his employer's decision to terminate him. Id. at ¶ 50. The court noted that the
employee's immediate supervisors testified the decision to terminate him was based solely
on his insubordinate behaviors. Similarly, the director of his department testified he was
only told that the employee had engaged in unwelcome behavior toward a co-worker, and
had failed to follow instructions not to have any personal contact with that co-worker. Id.
No. 17AP-742 9
Based on this evidence, the court affirmed the trial court's conclusion that there was no
reliable, probative, and substantial evidence showing the termination decision was
motivated by the employee's whistleblowing activity.
{¶ 22} By contrast, in the present case, there was evidence that Hageman's
supervisors and members of appellant were aware of Hageman's whistleblowing activity at
the time of her termination. Hageman testified she did not have any problems with
Rosswurm prior to July 10, 2014, when she informed him that she had reported the
computer purchase to the auditor's fraud line. Hageman testified that afterward her
relationship with Rosswurm changed and he made comments that he could demote her if
he wished. Hageman also testified she first informed Savage about Rosswurm's computer
purchase on August 1, 2014, during the first disciplinary proceeding. Hageman further
testified she alleged to Savage that Rosswurm was retaliating against her for having
reported the purchase.
{¶ 23} Savage testified the text message involved in the final disciplinary incident
was not necessarily offensive, but she believed there was a pattern of disrespectful and
unprofessional behavior by Hageman. Savage stated she recommended to appellant that
Hageman be terminated for that reason. However, there was evidence from which the
SPBR could conclude that Hageman's whistleblowing activity was considered in the
termination decision. Savage admitted she knew about the computer purchase before
Hageman informed her about it, testifying Rosswurm told her at the time that he was
purchasing a computer for his daughter through the school and planned to reimburse the
school for the cost. Savage testified this did not cause any concern for her at the time, but
in retrospect she recognized it differed from the school's practice of reimbursing teachers
who purchased classroom materials from their personal funds. Savage further testified she
would have an obligation to notify appellant if she became aware of the school treasurer
engaging in misconduct. Thus, there was reliable, probative, and substantial evidence to
support the ALJ's conclusion that Hageman's whistleblowing activity was a potential
problem for Savage and may have motivated her decision to recommend termination.
Because there was reliable, probative, and substantial evidence to support the ALJ's
conclusions, which were adopted by SPBR, the common pleas court did not abuse its
discretion by affirming SPBR's decision.
No. 17AP-742 10
{¶ 24} Accordingly, we overrule appellant's second assignment of error.
IV. Conclusion
{¶ 25} For the foregoing reasons, we overrule appellant's two assignments of error
and affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BROWN and HORTON, JJ., concur.