Robinson v. Ohio Dept. of Edn. ( 2012 )

[Cite as Robinson v. Ohio Dept. of Edn., 2012-Ohio-1982.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
CRAIG ROBINSON :
Plaintiff-Appellant : C.A. CASE NO. 24808
v. : T.C. NO. 11CV1321
OHIO DEPARTMENT OF EDUCATION : (Civil appeal from
Common Pleas Court)
Defendant-Appellee :
:
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OPINION
Rendered on the 4th day of May , 2012.
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JOHN R. FOLKERTH, JR., Atty. Reg. No. 0016366, 109 North Main Street, 500
Performance Place, Dayton, Ohio 45402
Attorney for Plaintiff-Appellant
JENNIFER BONDURANT, Atty. Reg. No. 0079384, Assistant Attorney General, Education
Section, 30 East Broad Street, 16th Floor, Columbus, Ohio 43215
Attorney for Defendant-Appellee
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FROELICH, J.
{¶ 1} Craig Robinson appeals from a judgment of the Montgomery County
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Court of Common Pleas, which affirmed the resolution of the Ohio State Board of Education
to suspend Robinson’s teaching license for one year, with all but 60 days suspended, to be
served in the summer months. For the following reasons, the trial court’s judgment will be
affirmed.
I.
{¶ 2} The underlying facts, as found by the Ohio Board of Education hearing
officer, are as follows:
{¶ 3} Craig Robinson, a well-respected high school science teacher with 21 years
of experience, is employed at Longfellow Alternative School, a Dayton Public School.
Robinson holds a five-year professional adolescence to young adult teaching license, which
was issued in 2009.
{¶ 4} During his planning period on June 8, 2009, Robinson received and viewed
an email containing four pictures of a woman posing. In three of the pictures, the woman
was wearing a bikini; the fourth picture showed her bare breasts and pubic area. (The
images were attached to a message from a fraternity brother of Robinson regarding the
nursing care of another fraternity brother who had undergone surgery.) Later that day,
Robinson accessed the email on the classroom computer of another teacher, Billy Brooks, in
order to show the pictures to Brooks. There were students in Brooks’s classroom at the
time, but there was no evidence that the students saw or were intended to see the pictures.
Brooks believed that the fourth image was pornographic, and he reported what occurred to
Bettylene Mulligan, principal of Longfellow Alternative School. Mulligan investigated and
reported the incident to her superiors at Dayton Public Schools.
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{¶ 5} Robinson was placed on administrative leave on or about August 5, 2009.
After a hearing on August 27, 2009, Robinson was suspended without pay for a period of
five days. On September 25, 2009, Dayton Public Schools filed an educator misconduct
reporting form with the Ohio Department of Education.
{¶ 6} Following an investigation, the Ohio Department of Education notified
Robinson that the State Board of Education intended to determine whether to limit, suspend,
or revoke his teaching license. Robinson requested a hearing on the matter, which
ultimately occurred on September 14, 2010. Mulligan and Robinson testified at the hearing.
Robinson recognized that the email’s images were inappropriate for students to view, but
he asserted that his conduct was not “conduct unbecoming an educator.”
{¶ 7} The hearing officer considered R.C. 3319.31(B), Ohio Adm.Code
3301-73-21, and the Licensure Code of Professional Conduct for Ohio Educators and
concluded that “Mr. Robinson violated this standard, along with the aforementioned
applicable law, through his use of school e-mail, school computers, and the school network
to view lewd photos, one including nudity, during the school day and with students in the
classroom.” The hearing officer considered Robinson’s “conduct and work activity before
the misconduct, his lack of previous misconduct or discipline, and the five day suspension
already imposed by the Dayton Public Schools” to be mitigating factors. The officer
considered Robinson’s belief that his conduct was not inappropriate for an educator to be an
aggravating factor.
{¶ 8} The hearing officer concluded that Robinson’s conduct constituted conduct
unbecoming a teacher, in violation of R.C. 3319.31(B)(1). The officer further concluded
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that there was a nexus between Robinson’s conduct and his performance as a teacher. The
officer recommended that Robinson’s license be suspended for one year, with all but 60 days
suspended, to be served in the summer months.
{¶ 9} Robinson filed objections to the hearing officer’s report and
recommendation. On January 2011, the Ohio State Board of Education issued a resolution
rejecting Robinson’s objections and accepting the hearing officer’s recommendations.
Robinson’s one-year suspension was to begin on January 11, 2011, and the suspension was
to be served from June 15, 2011 through August 13, 2011.
{¶ 10} Robinson appealed the Board’s order to the Montgomery County Court of
Common Pleas, pursuant to R.C. Chapter 119. The trial court affirmed the Board’s
resolution. Robinson appeals from the trial court’s decision, raising one assignment of
error.
II.
{¶ 11} Robinson’s sole assignment of error states:
THE TRIAL COURT ERRED IN AFFIRMING THE RESOLUTION OF
THE OHIO STATE BOARD OF EDUCATION AS THE RESOLUTION IS
NOT SUPPORTED BY RELIABLE, PROBATIVE, AND SUBSTANTIAL
EVIDENCE AND IS NOT SUPPORTED BY LAW.
{¶ 12} Robinson claims that the trial court erred in affirming the Ohio State Board
of Education’s resolution. He argues that his conduct did not violate professional teaching
standards, that the hearing officer’s conclusions were contrary to the evidence, and that his
suspension was contrary to law.
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{¶ 13} “Under R.C. 119.12, when a decision of a state board is appealed, a court of
common pleas must decide whether the board’s order was ‘supported by reliable, probative,
and substantial evidence and is in accordance with law.’” Spitznagel v. State Bd. of Edn.,
126 Ohio St. 3d 174, 2010-Ohio-2715, 931 N.E.2d 1061, ¶ 14, quoting R.C. 119.12. The
trial court must give deference to the board’s resolution of factual conflicts unless they are
clearly unsupportable. Jackson v. Ohio Dept. of Rehab. & Corr., 2d Dist. Montgomery No.
22580, 2009-Ohio-896, ¶ 18.
{¶ 14} An appellate court’s review is more limited than that of the trial court. In
reviewing the trial court’s determination on whether the order was supported by reliable,
probative, and substantial evidence, the appellate court is limited to determining whether the
trial court abused its discretion. Rossford Exempted Village School Dist. Bd. of Edn. v.
State Bd. of Edn., 63 Ohio St. 3d 705, 707, 590 N.E.2d 1240 (1992), citing Lorain City Bd. of
Edn. v. State Emp. Relations Bd., 40 Ohio St. 3d 257, 261, 533 N.E.2d 264 (1988). An
abuse of discretion means that the trial court’s attitude was unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 15} When reviewing whether the Board’s, or the trial court’s, order was in
accordance with the law, however, an appellate court’s review is de novo. Sptiznagel at
¶ 14.
A. Professional Teaching Standards
{¶ 16} Robinson first disputes the Board’s and the trial court’s conclusion that his
conduct violated R.C. 3319.31(B)(1). That statute permits the state board of education to
“suspend, revoke, or limit a license that has been issued to any person” for “[e]ngaging in an
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immoral act, incompetence, negligence, or conduct that is unbecoming to the * * * person’s
position.” The Ohio Administrative Code sets forth factors for the state board of education
to consider when evaluating “conduct unbecoming” under R.C. 3319.31(B)(1). Ohio
Adm.Code 3301-73-21(A). They include “[c]rimes or misconduct involving the school
community, school funds, or school equipment/property” and “[a]ny other crimes or
misconduct that negatively reflect upon the teaching profession.” Ohio Adm.Code
3301-73-21(A)(5), (8).
{¶ 17} An uncodified portion of 2007 H 190, which amended R.C. 3319.31
effective November 14, 2007, required the Educator Standards Board to recommend to the
State Board of Education a code of conduct for educators. The code of conduct was to
address persons who are licensed by the State Board of Education and to include
recommendations regarding conduct that is inappropriate for educators and suggested
disciplinary actions for each type of misconduct.
{¶ 18} The Licensure Code of Professional Conduct for Ohio Educators was
adopted by the State Board of Education in March 2008. It provides “a guide for conduct in
situations that have professional implications for all individuals licensed by the State Board
of Education,” and sets forth eight principles of behavior, including:
1. Professional Behavior
Educators shall behave as professionals realizing that their actions
reflect directly on the status and substance of the education profession.
An educator serves as a positive role model to both students and adults and is
responsible for preserving the dignity and integrity of the teaching profession
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and for practicing the profession according to the highest ethical standards.
Conduct unbecoming to the profession includes, but is not limited to, the
following actions:
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g) Using technology to intentionally host or post improper or
inappropriate material that could reasonably be accessed by the school
community. (Emphasis in original.)
{¶ 19} The presumptive range of disciplinary action for a violation of Principle 1
(for acts other than violations of a testing procedure and failure to comply with required
background checks) is “Letter of admonishment up to revocation/denial of a license for other
acts unbecoming to the professional conduct of educators.”
{¶ 20} Robinson argues that there was no evidence that he “hosted or posted
improper or inappropriate material” when he showed the email, which he understood to be a
joke, to Brooks. Robinson argues that the trial court applied “its own, unique definition of
posting” to include displaying a picture on a computer.
{¶ 21} We find no reversible error in the trial court’s conclusion that Robinson’s
actions constituted conduct unbecoming an educator. Robinson viewed a personal email
with four attached images, three of which showed a young woman in a bikini and one of
which showed the same woman exposing her breasts and pubic area. Robinson accessed
that email in Brooks’s classroom during school hours and with students in the classroom,
and he displayed the images to Brooks. Robinson does not contest that the images were
inappropriate for school, and we agree that the images, particularly the fourth image, was
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inappropriate as school material.
{¶ 22} Robinson did not upload the material to a server that could be independently
accessed by other members of the school community. However, Principle 1 is not limited
to strict definitions of the examples provided (i.e., hosting and posting), and the intent of
subpart g appears to be that educators should not use technology to display improper or
inappropriate material where they could be reasonably accessed by the school community.
After viewing the email himself, Robinson chose to again access the email on a school
computer and the school network and to display inappropriate images to a fellow teacher,
who is a member of the school community. We find no fault with the conclusion that
Robinson’s actions violated Principle 1 of the Licensure Code of Professional Conduct for
School Educators and R.C. 3319.31(B)(1).
B. Reliable, Probative, and Substantial Evidence
{¶ 23} Robinson next argues that the trial court “failed to recognize the Hearing
Officer made findings of fact contrary to the evidence, misstated Mr. Robinson’s testimony,
considered evidence that is irrelevant and prejudicial, and refused to consider mitigating
factors relevant to making a recommendation.” Robinson thus asserts that the Board’s
resolution was not supported by reliable, probative, and substantial evidence.
{¶ 24} First, Robinson emphasizes that the email, which was sent by a fraternity
brother, was a joke, and he argues the hearing officer “distorted the evidence” when she
found that Robinson accessed the email to “show the pictures to Mr. Brooks.” Robinson
testified that the email’s images were intended by the sender and understood by Robinson as
a joke, and that he intended to share the joke with Brooks. Brooks did not testify, and there
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is conflicting evidence as to whether Brooks perceived the images as a joke; it is not
disputed that Brooks reported the incident to his principal.
{¶ 25} Regardless, the evidence is clear that Robinson accessed the email to show
the message and images to Brooks. Robinson testified that he went to Brooks’s classroom
and said, “Look, Brooks, I got something I want you to see. I want you to see something.”
Robinson stated that he then went onto Brooks’s computer, logged out of Brooks’s email
account, logged onto his own email account, went into the email trash folder, retrieved the
email, and “showed him [Brooks] the pictures and told him the joke.” The hearing officer’s
conclusion that Robinson accessed the email to show the pictures to Brooks is not a
distortion of the evidence, and the trial court did not abuse its discretion in rejecting
Robinson’s argument.
{¶ 26} Second, Robinson challenges the hearing officer’s finding that Brooks, who
did not testify, believed the fourth picture to be pornographic. Robinson argued to the trial
court that this opinion was irrelevant. The trial court noted that the rules of evidence are
less strict in an administrative setting and that Brooks’s opinion was elicited from Mulligan
when she articulated what prompted her investigation. Robinson claims that the trial court
“missed the point that the Hearing Officer needed to exaggerate the photographs as
pornographic to justify a finding of misconduct.”
{¶ 27} In finding that Robinson’s conduct constituted conduct unbecoming a
teacher, the hearing officer found that Robinson used his school email, school computers,
and school network to view “lewd photos, one including nudity,” during the school day and
with students in the classroom. The nature of the photos was readily apparent from the
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exhibits presented to the hearing officer, and the officer did not need to rely on Brooks’s
perception of the photos. A finding that the photos did or did not constitute “pornography”
was not necessary for a determination on whether Robinson’s actions constituted conduct
unbecoming a teacher. Moreover, as stated by the trial court, Brooks’s opinion was
mentioned by the hearing officer when explaining how the investigation by the principal
began. The hearing officer’s report did not exaggerate the evidence, and we agree with the
trial court that the reference to Brooks’s opinion does not invalidate the Board’s
determination.
{¶ 28} Third, Robinson takes issue with the hearing officer’s conclusion that “Mr.
Robinson’s belief that his conduct was not in any way inappropriate for an educator [is] an
aggravating factor.” Robinson emphasizes that he testified that he realized his behavior was
inappropriate and that it would have been inappropriate for students to view the
photographs. He further argues that there is a difference between inappropriate behavior
and conduct unbecoming a teacher.
{¶ 29} Ohio Adm.Code 3301-73-21(B) permits the Board to take the following
mitigating and aggravating factors, as applicable and appropriate, into consideration when
determining a final action under R.C. 3319.31(B)(1):
(1) The nature and seriousness of the crime or misconduct;
(2) The extent of the person’s past criminal activity or misconduct;
(3) The age of the person when the crime or misconduct was committed;
(4) The amount of time that has elapsed since the person’s last criminal
activity or misconduct;
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(5) The conduct and work activity of the person before and after the criminal
activity or misconduct;
(6) Whether the educator has completed the terms of his/her probation or
deferred adjudication;
(7) Evidence of rehabilitation * * *;
(8) Whether the educator is amenable to rehabilitation * * *;
(9) Whether the person fully disclosed the crime or misconduct to the state
board or the employing school district;
(10) Whether licensure will negatively impact the health, safety, or welfare of
the school community and/or statewide education community;
(11) Whether the educator has previously been disciplined by the state board
of education or any other licensing entity, including, but not limited to,
out-of-state licensing entities;
(12) Whether the school district or educational entity imposed any penalties,
sanctions, or other conditions addressing the educator’s professional conduct;
(13) Whether the educator has been employed in any capacity within a school
district or educational entity after having a license, certificate, or permit
revoked; and
(14) Any other relevant factor.
{¶ 30} At the hearing, Robinson acknowledged that he had violated the school
district’s acceptable use policy by using school computers for personal business. Robinson
did not agree, however, that his conduct violated the statute prohibiting conduct unbecoming
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an educator. When asked if he recognized that his “sharing that joke with Mr. Brooks”
violated the statute, Robinson responded,
No. If I had – if it was a salacious attempt in showing him those pictures, if I
had not even took the precautions of not letting kids views the pictures, then I
would say, yes. I realize that my behavior, again, was inappropriate. It was
definitely inappropriate. There’s no doubt about that. And if [I] could go
back to that day, he never would have seen those pictures.
{¶ 31} Robinson was then asked if he was aware of any professional guidance that
identifies what teachers are allowed to look at on school computers. Robinson answered,
No. I am now. I’m sorry. Let me rephrase that. I do believe that – I
mean, common sense would tell me hard-core pornography would be an
issue. But she was dressed in three of those pictures and they wasn’t
showing every, everything. And the last picture, I didn’t see it as being
pornographic.
{¶ 32} Although Robinson acknowledged that he should not have used a school
computer to view personal emails, his testimony could reasonably be construed as
expressing a lack of awareness of the import of his actions. His conduct constituted more
than the use of the school network and school computers to view an innocuous personal
email. Rather, he displayed three images of a scantily clad woman and one image where the
woman’s breasts and pubic area were exposed to another teacher during school hours while
students were in the classroom. The images were sexual in nature, and the fourth image, in
particular, was reasonably described by the hearing officer as “lewd.” Robinson, however,
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continued to maintain that he merely shared a joke with Brooks. The hearing officer did not
act unreasonably in considering Robinson’s minimization of his actions to be an aggravating
factor.
{¶ 33} Fourth, Robinson asserts that the hearing officer failed to properly consider
as a mitigating factor that he has continued to teach since the disciplinary action and that his
performance evaluations demonstrate consistently high performance. As noted by the trial
court, the hearing officer found that Robinson is a well-respected science teacher and that he
served a five-day unpaid suspension for Dayton Public Schools. The hearing officer further
considered “Robinson’s conduct and work activity before the misconduct” and “his lack of
previous misconduct or discipline” as mitigating factors. The hearing officer’s report and
recommendation noted that Robinson had 21 years of experience as a teacher. Although
Robinson’s performance evaluations were not expressly mentioned, they are encompassed
by the hearing officer’s references to Robinson’s years of experience, his reputation as a
“well-respected” teacher, and his “conduct and work activity before the misconduct,” which
had not included any prior misconduct or discipline. The Board’s resolution is not
undermined by the lack of an express reference to Robinson’s performance evaluations since
the misconduct.
{¶ 34} Fifth, Robinson claims that the hearing officer erred in concluding that a
nexus exists between Robinson’s conduct and his performance as a teacher. Robinson
relies on Freisthler v. State Board of Education, 3d Dist. Allen No. 1-02-36,
2002-Ohio-4941, which adopted the position that “when evaluating whether conduct is
‘unbecoming’ a teacher[, * * *] the board must show some nexus between the conduct that
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the individual is accused of and the individual’s performance as a teacher.” Id. at ¶ 20.
Freisthler adopted several criteria to evaluate whether a teacher is unfit to teach, including
[the] likelihood that the conduct may have adversely affected students or
fellow teachers, the degree of such adversity anticipated, the proximity or
remoteness in time of the conduct, the type of teaching certificate held by the
party involved, the extenuation or aggravating circumstances, if any,
surrounding the conduct, the praiseworthiness or blameworthiness of the
motives resulting in the conduct, the likelihood of the recurrence of the
questioned conduct, and the extent to which disciplinary action may inflict an
adverse impact or chilling affect upon the constitutional rights of the teacher
involved or other teachers. Freisthler at ¶ 22, quoting Morrison v. State Bd.
of Edn., 1 Cal. 3d 214, 239, 82 Cal. Rptr. 175, 461 P.2d 375 (1969) (footnotes
omitted).
{¶ 35} In addition to the Third District, the Fifth and Eighth Districts have also
expressly required a nexus between the educator’s conduct and the ability to teach or
administrate in order for the Board of Education to act on the educator’s license. See, e.g.,
Hoffman v. State Bd. of Edn., 145 Ohio App. 3d 392, 763 N.E.2d 210 (8th Dist.2001);
Johnson v. State Bd. of Edn., 5th Dist. Stark No. CA-8019, 1990 WL 62988 (May 14, 1990).
See, also, Bertolini v. Whitehall City Sch. Dist. Bd. of Edn., 139 Ohio App. 3d 595, 744
N.E.2d 1245 (10th Dist.2000) (requiring a private act to have a serious impact on the
teacher’s professional duties in order to justify termination of teacher’s contract). We note
that all of the Third, Fifth, and Eighth District cases involved conduct that pre-dated the
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2007 amendment to R.C. 3319.31 requiring the creation of a code of conduct for teachers.
{¶ 36} The Eighth and Fifth Districts have found that a nexus exists when the
educator’s conduct impacts the individual’s professional life. For example, in Sayers v.
Ohio State Bd. of Edn., 8th Dist. Cuyahoga No. 66578, 1994 WL 676869 (Dec. 1, 1994), a
physical education teacher entered a guilty plea to importuning based on inappropriate
physical contact with elementary school students. The appellate court found a nexus
existed, noting that the teacher’s duties required him to be in close physical contact with
children before, during, and after school, and that many of those children would have to
dress and undress for instruction or competition not far from the teacher’s supervision. In
Hoffman, the Eighth District affirmed the revocation of a teacher’s license based on his
engaging in public indecency at an adult book store, even though his conduct did not occur
on school grounds, during school hours, or involve students. The court concluded that the
teacher ”established the nexus between his conduct and his teaching duties when he solicited
students to write letters on his behalf.” Hoffman, 145 Ohio App. 3d at 396. In Johnson, the
Fifth District concluded that there was a nexus between an elementary school principal’s
public indecency in a public restroom along a highway and the principal’s job performance
when there was evidence that the behavior “jeopardized his role model and leadership
abilities.”
{¶ 37} Freisthler involved a teacher who challenged the State Board of
Education’s decision not to renew his teaching license based on a conviction for persistent
disorderly conduct that had occurred five years previously. The disorderly conduct
conviction was based on Freisthler’s solicitation and inappropriate touching of an
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undercover officer in a park. In finding no nexus between Freisthler’s conduct and his
ability to teach, the Third District emphasized that his conviction was not publicized, that
there was no evidence that students were made aware of the matter, that teachers and
administrators who were informed of the conduct testified that Freisthler was an exceptional
teacher, and that Freisthler had taught for seven years after his conviction without incident or
complaint.
{¶ 38} This court has not addressed whether a nexus must exist between the
conduct and the individual’s performance as an educator, and we need not decide that issue
in this case. Even if we were to follow Freisthler and the other cases requiring a nexus, we
would find no error in the conclusion that a nexus existed. Robinson’s conduct occurred in
a classroom during school hours while students were present in the room. Although there
was no evidence that students saw the photographs and Robinson testified that he took steps
to ensure that students would not see the pictures, the fact that he displayed the pictures to
another teacher during school hours while students were engaged in class work in the room
reflects on Robinson’s performance as a teacher and affected his relationships within the
school community. We find no fault with the hearing officer’s and the trial court’s
conclusion that a nexus existed between Robinson’s conduct and his performance as a
teacher, if that were needed.
C. Lawfulness of Suspension
{¶ 39} Robinson asserts that his suspension is contrary to law, because his actions
did not constitute conduct unbecoming an educator, there was no nexus between the alleged
misconduct and Robinson’s performance as a teacher, and no public purpose would be
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served by upholding the Board’s suspension of his license. Robinson further claims that
Board’s decision to suspend him for sharing a private communication with a fellow educator
is unconstitutional.
{¶ 40} As stated above, we find no error in the conclusions that Robinson’s conduct
constituted conduct unbecoming an educator, in violation of R.C. 3319.31(B)(1), and to the
extent that a nexus need be shown between his conduct and his teaching performance, that
such a nexus exists. The record contains reliable, probative, and substantial evidence to
support the Board’s resolution, and the trial court did not abuse its discretion in so finding.
Moreover, the suspension of Robinson’s license was within the range of discipline for his
violation of Principle 1 of the Licensure Code.
{¶ 41} As for Robinson’s claim that his sharing of a joke with another teacher was
constitutionally protected, we disagree. Robinson was not punished merely because he
privately shared a joke with another teacher. Rather, his conduct was deemed conduct
unbecoming an educator because he showed inappropriate photos, including a sexual image
of a nude woman, to another teacher using school equipment, during school hours, and while
students were present in the classroom. The fact that no students actually viewed the
photos, particularly the fourth photo, likely mitigated against a more severe punishment.
{¶ 42} The Board’s suspension of Robinson’s license for one year, with all but 60
days suspended, to be served during summer months, was not contrary to law, and the trial
court did not abuse its discretion in affirming the Board’s decision.
{¶ 43} Robinson’s assignment of error is overruled.
{¶ 44} The trial court’s judgment will be affirmed.
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FAIN, J. and DONOVAN, J., concur.
Copies mailed to:
John R. Folkerth, Jr.
Jennifer Bondurant
Hon. Michael L. Tucker