Wolfe v. Ohio Accountancy Bd. , 2016 Ohio 8542 ( 2016 )

[Cite as Wolfe v. Ohio Accountancy Bd., 2016-Ohio-8542.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Matthew Robert Wolfe, :
Plaintiff-Appellant, :
No. 16AP-453
v. : (C.P.C. No. 14CVF11-12358)
Accountancy Board of Ohio, : (ACCELERATED CALENDAR)
Defendant-Appellee. :
D E C I S I O N
Rendered on December 30, 2016
On brief: Matthew Robert Wolfe, pro se.
On brief: Michael DeWine, Attorney General, and Rachel
Huston, for appellee.
APPEAL from the Franklin County Court of Common Pleas
KLATT, J.
{¶ 1} Plaintiff-appellant, Matthew R. Wolfe, appeals from a judgment of the
Franklin County Court of Common Pleas that affirmed a decision of defendant-appellee,
Accountancy Board of Ohio ("the Board"), to revoke appellant's certification as a certified
public accountant ("CPA"). For the following reasons, we affirm that decision.
I. Factual and Procedural Background
{¶ 2} Appellant has held a CPA certificate in Ohio since 2006. In 2013, however,
he entered no contest pleas and was found guilty of multiple counts of attempted
pandering of sexually oriented matter involving a minor, all felonies of the third degree.
Appellant was sentenced to four and one-half years in prison.
No. 16AP-453 2
{¶ 3} As a result of those convictions, the Board sent appellant a "Notice of
Opportunity for Hearing" ("Notice") on August 4, 2014. In the Notice, the Board notified
him that it intended to pursue disciplinary action against his certification pursuant to R.C.
4701.16(A)(5), which allows the Board to take such action against a certificate holder who
has been convicted of a felony. The Notice also informed appellant that he could request a
hearing before the Board on the proposed disciplinary action. On August 15, 2014,
appellant requested such a hearing by letter. Appellant's letter also requested that he be
permitted to attend the hearing via videoconferencing technology due to his incarceration.
Lastly, appellant asserted in his letter that his certification should not be revoked or
suspended because the basis for his felony convictions did not involve his accounting
practice. The Board did not expressly address appellant's request to attend the hearing
via videoconference. The Board simply scheduled a hearing for November 7, 2014. The
Board sent appellant and his attorney a letter informing them of the scheduled hearing.
{¶ 4} The Board conducted the hearing on November 7, 2014. Appellant did not
appear at the hearing due to his incarceration. Appellant's attorney did not attend the
hearing either. However, a witness read into the record that portion of appellant's letter
that advocated for a sanction less than a revocation or suspension. That argument was
based on the ground that appellant's convictions did not relate to his accounting practice.
{¶ 5} The Board members voted unanimously to revoke appellant's certification
due to his felony convictions. Appellant appealed that decision to the trial court, which
affirmed the Board's decision to revoke his certification.
II. Appellant's Appeal
{¶ 6} Appellant appeals the trial court's decision and assigns the following errors:
[1.] The Trial Court erred as a matter of law in holding that
the appellant's Due Process rights were not violated when the
Ohio State Board of Accountancy failed to permit appellant's
attendance at his revocation hearing by videoconference.
[2.] The Trial Court erred as a matter of law in holding that
the Ohio State Board of Accountancy's decision to revoke the
CPA was proper even though his convictions were unrelated
to the practice of accounting.
No. 16AP-453 3
A. Standard of Review
{¶ 7} This appeal is governed by R.C. 119.12, which requires a common pleas
court, in reviewing an order of an administrative agency, to consider the entire record to
determine whether reliable, probative, and substantial evidence supports the agency's
order and the order is in accordance with law. Haver v. Accountancy Bd., 10th Dist. No.
05AP-280, 2006-Ohio-1162, ¶ 6, citing Univ. of Cincinnati v. Conrad, 63 Ohio St. 2d 108,
110-11 (1980). On appeal to this court, however, the standard of review is more limited.
Haver at ¶ 8, citing Pons v. Ohio State Med. Bd., 66 Ohio St. 3d 619, 621 (1993). In
reviewing the common pleas court's determination that an agency order is or is not
supported by reliable, probative, and substantial evidence, the appellate court's role is
limited to determining whether or not the common pleas court abused its discretion. Ace
Ventures L.L.C. v. Ohio Dept. of Transp., 10th Dist. No. 03AP-280, 2003-Ohio-6556, ¶ 6.
An appellate court's review of questions of law, however, is plenary. Haver at ¶ 9; Univ.
of Cincinnati College of Medicine v. State Emp. Relations Bd., 63 Ohio St. 3d 339 (1992),
paragraph one of the syllabus. Here, appellant's assignments of error both raise questions
of law.
B. First Assignment of Error–Appellant's Due Process Right to Appear at
the Hearing
{¶ 8} Appellant argues that the Board violated his right to due process by not
allowing him to attend the Board's administrative hearing by videoconferencing. We
disagree.
{¶ 9} In Haver, we noted that the requirements of procedural due process apply
only to the deprivation of interests encompassed by the Fourteenth Amendment's
protection of liberty and property. Id. at ¶ 45, citing Bd. of Regents v. Roth, 408 U.S. 564,
569 (1972). Thus, the first question to be answered in a due process challenge is whether
a protected property or liberty interest was at stake. Id., quoting State ex rel. Haylett v.
Ohio Bur. of Workers' Comp., 87 Ohio St. 3d 325, 331 (1999). We concluded in Haver
that the revocation of a CPA certificate by the Board implicates a protected property right
under the Fourteenth Amendment to the United States Constitution and under Ohio
Constitution, Article I, Section 16, so as to implicate procedural due process protections.
Haver at ¶ 47.
No. 16AP-453 4
{¶ 10} The next question to answer is what process is due, Haj-Hamed v. State
Med. Bd., 10th Dist. No. 06AP-351, 2007-Ohio-2521, ¶ 52, because due process is flexible
and calls for such procedural protections as the particular situation demands. LTV Steel
Co. v. Indus. Comm., 140 Ohio App. 3d 680, 688 (10th Dist.2000); Morrissey v. Brewer,
408 U.S. 471, 481 (1972). To determine whether due process is satisfied in an
administrative context, Ohio courts consider the test articulated in Matthews v. Eldridge,
424 U.S. 319 (1976). Doyle v. Ohio Bur. of Motor Vehicles, 51 Ohio St. 3d 46, 51-52 (1990)
(applying Matthews analysis to administrative context in Ohio); Gross v. State Med. Bd.,
10th Dist. No. 08AP-437, 2008-Ohio-6826, ¶ 22; Krusling v. Bd. of Pharm., 12th Dist.
No. CA2012-03-023, 2012-Ohio-5356, ¶ 15. Under that test, the court must weigh the
following three factors to determine whether the process granted in the administrative
proceeding is constitutionally adequate: (1) the private interest at stake; (2) the risk of an
erroneous deprivation of that interest and the probable value of additional procedural
safeguards; and, (3) the government's interest, including the function involved and the
fiscal and administrative burdens that the additional or substitute procedural
requirements would entail. Id.; Matthews at 335. The question of whether the due
process requirements have been satisfied presents a legal question we review de novo.
McRae v. State Med. Bd., 10th Dist. No. 13AP-526, 2014-Ohio-667, ¶ 36.
{¶ 11} Applying those factors to appellant's case, we recognize appellant's
protected property interest in his certificate as well as the state's interest in regulating the
accounting practice in Ohio. Krusling at ¶ 16. There was no evidence of the fiscal or
administrative burdens that the Board would incur through the use of videoconferencing,
so we are unable to weigh this factor in the analysis. We can weigh the risk of appellant
having his certificate erroneously taken from him and the probable value of his presence
at the hearing via videoconferencing. We conclude that both of these concerns are
minimal. The Board properly served appellant with Notice of its intent to discipline his
certificate based on his felony convictions. That Notice also notified him that he could
present his position in writing. Id. at ¶ 16-17 (little risk of erroneous deprivation where
license holder received notice of allegations and opportunity to present objections); Gross
at ¶ 24 (same). Appellant set forth his argument in his letter requesting a hearing.
Appellant did not dispute his felony convictions and conceded the Board's authority to
No. 16AP-453 5
revoke his certificate due to his convictions. Based on these facts, the risk of an erroneous
deprivation of his certificate is negligible.
{¶ 12} Appellant argued that the Board should impose a lesser sanction because
his convictions did not involve his accounting practice. This argument was presented to
the Board via appellant's letter. The Board rejected that argument and chose to revoke his
certificate. Appellant has not set forth any reason for us to conclude that his presence at
the hearing by videoconference would have strengthened his argument.
{¶ 13} Balancing the relevant interests, we conclude that the Board's failure to
provide appellant the opportunity to attend the hearing by videoconferencing did not
deprive appellant of due process. Appellant had notice of the hearing and the basis for the
Board's action against his certification. Appellant presented his position by letter, the
relevant portions of which were read into the record during the hearing. Appellant's
attorney could have attended the hearing on appellant's behalf. Given these facts, we
overrule appellant's first assignment of error.
C. Second Assignment of Error–The Board's Revocation of Appellant's
Certificate
{¶ 14} Although appellant concedes in this assignment of error that the Board,
pursuant to R.C. 4701.16, has the authority to revoke his certificate due to his felony
convictions, he argues that the Board should not have done so because his felony
convictions were not related to or in any way facilitated by his profession, nor was the
revocation of his certificate necessary to protect the public from criminality. Instead, he
argues that the Board should have censured, fined, or suspended his certificate. We
disagree.
{¶ 15} R.C. 4701.16(A)(5) authorizes the Board to discipline a person holding a
CPA certificate for a felony conviction. Specifically, R.C. 4701.16(A)(5) permits the Board
to discipline a certificate holder for the "[c]onviction of a felony under the laws of any
state or of the United States." R.C. 4701.16(B) permits revocation as an authorized
discipline. The statute's plain language conveys a clear and definite meaning: a felony
conviction subjects a certificate holder to discipline. The statute does not require a
connection between the conviction and the certificate holder's practice or profession or
any other finding. We will not add such a requirement to the language of a statue that is
No. 16AP-453 6
plain and unambiguous. Haver at ¶ 14-18 (refusing to construe R.C. 4701.16(A)(8) in
such a manner that would require the insertion of words not used in the plain language of
the statute, which conveys a clear and definite meaning).
{¶ 16} Appellant also argues that the Board's sanction was excessive. We reject
this argument because a reviewing court is prohibited from modifying a sanction that an
agency has statutory authority to impose if reliable, probative, and substantial evidence
supports the agency's order. Kellough v. State Bd. of Edn., 10th Dist. No. 10AP-419, 2011-
Ohio-431, ¶ 57, citing Henry's Cafe, Inc. v. Bd. of Liquor Control, 170 Ohio St. 233 (1959),
paragraphs two and three of the syllabus. The determination of the appropriate sanction
in an administrative hearing is strictly for the agency. Reed v. State Med. Bd., 162 Ohio
App.3d 429, 2005-Ohio-4071, ¶ 41 (10th Dist.). As this court has previously stated, " '[a]s
a practical matter, courts have no power to review penalties meted out by the commission.
Thus, we have little or no ability to review a penalty even if it seems on the surface to be
unreasonable or unduly harsh.' " Abunku v. State Med. Bd., 10th Dist. No. 11AP-906,
2012-Ohio-2734, ¶ 29, quoting Goldfinger Ents., Inc. v. Ohio Liquor Control Comm., 10th
Dist. No. 01AP-1172, 2002-Ohio-2770, ¶ 23.
{¶ 17} Here, appellant does not dispute his felony convictions or that the Board
has the authority to revoke his certificate as a result of those convictions. Therefore, the
Board's order is supported by reliable, probative, and substantial evidence and we cannot
modify the authorized sanction chosen by the Board. Kellough at ¶ 57-58.
{¶ 18} For these reasons, we overrule appellant's second assignment of error.
III. Conclusion
{¶ 19} Having overruled appellant's two assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
TYACK and LUPER SCHUSTER, JJ., concur.