Williams v. Ohio Dept. of Edn. ( 2011 )

[Cite as Williams v. Ohio Dept. of Edn., 2011-Ohio-6615.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
JACKSON COUNTY
MARK A. WILLIAMS, :
:
Plaintiff-Appellant, : Case No. 10CA17
:
vs. : Released: December 5, 2011
:
OHIO DEPARTMENT OF : DECISION AND JUDGMENT
EDUCATION, et al., : ENTRY
:
Defendants-Appellees. :
_____________________________________________________________
APPEARANCES:
Bradford D. Zelasko, Jeffries, Kube, Forrest & Monteleone Co., L.P.A.,
Cleveland, Ohio, for Appellant.
Mike DeWine, 1, Ohio Attorney General, and Amy Nash Golian, Assistant
Ohio Attorney General, Columbus, Ohio, for Appellees.
_____________________________________________________________
McFarland, J.:
{¶1} This is an appeal from a Jackson County Court of Common Pleas
judgment entry affirming an administrative decision and order by Appellee,
Ohio Department of Education, permanently revoking Appellant, Mark
Williams’, professional teaching certificate and principal license, and
dismissing his appeal. On appeal, Appellant contends that 1) the trial court’s
denial of his motion for admission of additional evidence was erroneous and
1
At the time of the filing of this appeal, Richard Cordray was the Ohio Attorney General.
Jackson App. No. 10CA17 2
prejudicial; 2) the trial court erred in determining that the evidence relied
upon by the administrative hearing officer was reliable, probative, and
substantial; and 3) the trial court’s decision is contrary to the manifest
weight of the evidence.
{¶2} In light of our determination that the trial court did not err or
abuse its discretion in refusing to admit additional evidence on appeal,
Appellant’s first assignment of error is overruled. Further, as we find that
the State’s medical and factual evidence was reliable, and that the board and
trial court’s decisions were supported by reliable, probative and substantial
evidence, Appellant’s second assignment of error is overruled. Finally, as
Appellant raises arguments under his third assignment of error which were
not raised at the common pleas court level, he cannot raise them for the first
time on appeal. Thus, his third assignment of error is overruled.
Accordingly, the decision of the trial court is affirmed.
FACTS
{¶3} This appeal involves Appellee, Ohio State Board of Education’s,
permanent revocation of Appellant, Mark Williams’, five-year professional
elementary principal license and permanent elementary teaching certificate.
Appellant began his employment as an elementary school teacher with
Wellston City School District in 1992. In 2002, he was made Assistant
Jackson App. No. 10CA17 3
Principal of Bundy Elementary in the Wellston City School District. After
serving in that position for one year, he took the principal’s position, a
position in which he remained until his resignation on August 8, 2007. The
record reveals that Appellant resigned his position under threat of
termination and/or non-renewal, after an investigation by the Wellston City
School Board revealed inappropriate email messages sent from Appellant’s
school computer, inappropriate materials on his school computer,
inappropriate access of websites on his school computer, misuse of school
time, and other unacceptable behaviors and interactions with parents,
teachers, and supervisors.
{¶4} On August 13, 2007, Superintendent Kaple of the Wellston City
School District, through counsel, C. Allen Shaffer with the law firm of
Bricker & Eckler, sent a “School District, MRDD & Community School
Educator Misconduct Reporting Form” to the Ohio State Board of Education
reporting Appellant’s resignation and a brief history leading up to the
resignation. Subsequently, Appellant received a Notice Letter dated June
18, 2008, from the Ohio State Board of Education advising him of the
board’s intention to limit, suspend or revoke his five year professional
elementary principal license and his permanent elementary school teaching
license and informing him of his right to a hearing. Appellant then
Jackson App. No. 10CA17 4
requested an administrative hearing, which took place over a seven day
period, ending on February 9, 2009.
{¶5} An administrative hearing officer presided over the seven day
hearing, during which the State presented fifteen witnesses and Appellant
presented two witnesses. Numerous exhibits were also introduced. Of
importance herein, the State presented testimony by Dr. Marjorie Gallagher,
M.D., the psychiatrist who performed a two-part fitness for duty evaluation
on Appellant as part of the investigation previously conducted by the
Wellston City School Board; Brigitte Sollie, an expert forensic computer
analyst obtained by the law firm of Bricker & Eckler as part of the Wellston
school board’s investigation; Joey Rapp, the Wellston school district
information technology professional, as well as several teachers and staff
under Appellant’s supervision.
{¶6} Dr. Gallagher testified that in her medical opinion, which was to
a reasonable degree of medical certainty, Appellant suffered from bipolar
disorder, and that the Appellant’s behavior raised several red flags. Dr.
Gallagher ultimately testified that in her opinion Appellant was not fit for
duty. Ms. Sollie, the forensic computer analyst testified that she performed
an analysis of Appellant’s then current computer, as well an old computer he
used prior to obtaining a new computer. A report generated by her during
Jackson App. No. 10CA17 5
the Wellston City School Board’s investigation was also admitted into
evidence, which indicated that Ms. Sollie located pornographic content on
Appellant’s school issued computers.
{¶7} Mr. Rapp also testified regarding the various computer filtering
systems in place within the school district and how internet usage is stored
and can be retrieved by user based upon login information and IP address.
He explained how he went about retrieving Appellant’s email history, old
computer information and the hard drive from his current computer in order
that it could be analyzed by Ms. Sollie.
{¶8} Several teachers also testified, identifying multiple instances of
unprofessional and bizarre conduct by Appellant, in relation to both staff and
students. For example, testimony was presented that Appellant would
routinely pretend to be picking his nose, accuse others of picking their nose,
make flatulence noises, talk about bodily functions and fluids, would act in
an effeminate manner using a high pitched voice, would ask staff
inappropriate and personal questions, would routinely either encourage or
permit one staff member in particular to perform “pole dances” during staff
meetings, and also permitted chocolate suckers in the shape of male genitalia
to be passed out at a staff meeting.
Jackson App. No. 10CA17 6
{¶9} The seven days of administrative hearings resulted in over 2000
pages of transcript. On September 22, 2009, the administrative hearing
officer issued a 48 page report and recommendation identifying numerous
instances of conduct unbecoming a teacher under R.C. 3319.31(B)(1). As a
result, the administrative hearing officer recommended that Appellant’s five-
year professional elementary principal license and his permanent elementary
school teaching certificate be revoked. It was further recommended that
Appellant be permanently ineligible to apply for any license issued by the
State Board and that he shall no longer be permitted to hold any position in
any school district in the state that requires a license issued by the State
Board.
{¶10} Subsequently, on November 10, 2009, the Ohio State Board of
Education passed a resolution adopting the report and recommendation of
the hearing officer. Appellant appealed the decision of the Ohio State Board
of Education to the Jackson County Court of Common Pleas, which found
that the board’s decision was supported by reliable, probative and substantial
evidence and thus affirmed the decision. It is from the decision of the
Jackson County Court of Common Pleas that Appellant now brings his
timely appeal, assigning the following errors for our review.
Jackson App. No. 10CA17 7
ASSIGNMENTS OF ERROR
“I. THE TRIAL COURT’S DENIAL OF PLAINTIFF-APPELLANT’S
MOTION FOR ADMISSION OF ADDITIONAL EVIDENCE WAS
ERRONEOUS AND PREJUDICIAL.
II. THE TRIAL COURT ERRED IN DETERMINING THAT THE
EVIDENCE RELIED UPON BY THE ADMINISTRATIVE
HEARING OFFICER WAS RELIABLE, PROBATIVE, AND
SUBSTANTIAL.
III. THE TRIAL COURT’S DECISION IS CONTRARY TO THE
MANIFEST WEIGHT OF THE EVIDENCE.”
STANDARD OF REVIEW
{¶11} The present case involves an administrative appeal to the
Jackson County Court of Common Pleas pursuant to R.C. 119.12. The trial
court reviews an administrative appeal in order to determine whether it is
supported by reliable, probative and substantial evidence and is in
accordance with law. Reliable, probative and substantial evidence has been
defined as: (1) “Reliable” evidence is dependable; that is, it can be
confidently trusted. In order to be reliable, there must be a reasonable
probability that the evidence is true; (2) “Probative” evidence is evidence
that tends to prove the issue in question; it must be relevant in determining
the issue; (3) “Substantial” evidence is evidence with some weight; it must
have importance and value.” Contini v. Ohio State Board of Education,
Licking App. No. 2007CA0136, 2008-Ohio-5710 at ¶ 16; citing, Our Place,
Jackson App. No. 10CA17 8
Inc. v. Ohio Liquor Control Comm. (1992), 63 Ohio St.3d 570, 571, 589
N.E.2d 1303.
{¶12} In determining evidentiary conflicts, the Supreme Court of
Ohio, in University of Cincinnati v. Conrad (1980), 63 Ohio State 2d 108,
407 N.E.2d 1265, directed courts of common pleas to give deference to the
administrative resolution of such conflicts. The Supreme Court noted when
the evidence before the court consists of conflicting testimony of
approximately equal weight, the common pleas court should defer to the
determination of the administrative body, which, acting as the finder of fact,
had the opportunity to determine the credibility and weight of the evidence.
Conrad at 111; see, also Contini at ¶ 17.
{¶13} On appeal to this Court, the standard of review is more limited.
Unlike the court of common pleas, a court of appeals does not determine the
weight of the evidence. Rossford Exempted Village School Dist. Bd. of Edn.
v. State Bd. of Edn. (1992), 63 Ohio St.3d 705, 707, 590 N.E.2d 1240; see,
also, Contini at ¶ 18. In reviewing the trial court's determination that
Appellee's order was supported by reliable, probative and substantial
evidence, this Court's role is limited to determining whether the trial court
abused its discretion. Roy v. Ohio State Med. Bd. (1992), 80 Ohio App.3d
675, 680, 610 N.E.2d 562. The term “abuse of discretion” connotes more
Jackson App. No. 10CA17 9
than an error of law or judgment; it implies that the court's attitude is
unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983),
5 Ohio St.3d 217, 219, 450 N.E.2d 1140.
{¶14} Additionally, pertinent to the issues herein, R.C. 3319.31,
entitled “Refusal, limitation, suspension, or revocation of license” provides
in section (B)(1) as follows:
“(B) For any of the following reasons, the state board of education, in
accordance with Chapter 119. and section 3319.311 of the Revised
Code, may refuse to issue a license to an applicant; may limit a license
it issues to an applicant; may suspend, revoke, or limit a license that
has been issued to any person; or may revoke a license that has been
issued to any person and has expired:
(1) Engaging in an immoral act, incompetence, negligence, or conduct
that is unbecoming to the applicant's or person's position;”
ASSIGNMENT OF ERROR I
{¶15} In his first assignment of error, Appellant contends that the trial
court’s denial of his motion for admission of additional evidence was
erroneous and prejudicial. Appellant claims that his ability to seek
admission of additional evidence is particularly important as he had no right
to prehearing discovery depositions prior to the administrative hearings. In
hearing an administrative appeal, the court of common pleas is confined to
the record certified by the agency. R.C. 119.12. R.C. 119.12 further provides
that:
Jackson App. No. 10CA17 10
“unless otherwise provided by law, the court may grant a request for the
admission of additional evidence when satisfied that such additional
evidence is newly discovered and could not with reasonable diligence have
been ascertained prior to the hearing before the agency. ‘Newly discovered
evidence refers to evidence that was in existence at the time of the
administrative hearing, but which was incapable of discovery by due
diligence; however newly discovered evidence does not refer to newly
created evidence.’ * * * ”
{¶16} “In interpreting Civ. R. 60(B)(2), which is analogous to R.C.
119.12 as it pertains to newly discovered evidence, [the Fifth District] has
held that the moving party has the burden of demonstrating: ‘(1) that the
evidence was actually “newly discovered”; that is it must have been
discovered subsequent to the trial; (2) that the movant exercised due
diligence; and (3) that the evidence is material, not merely impeaching or
cumulative and that a new trial would probably produce a different result.’ ”
O'Wesney v. State Bd. of Registration For Professional Engineers and
Surveyors, Stark App. No. 2009-CA-00074, 200 -Ohio-6444 at ¶ 79; citing,
Clark v. State Bd. of Registration for Professional Engineers & Surveyors
(1997), 121 Ohio App.3d 278, 287-288, 699 N.E.2d 968.
{¶17} In the common pleas level appeal, Appellant sought to
introduce 1) an affidavit of Jeffrey Smalldon, Ph.D. with attachment
including his post-hearing letter to Appellant’s counsel at the hearing
suggesting medical board inquiry into Dr. Gallaher’s objectivity and role in
Jackson App. No. 10CA17 11
the proceeding;2 and 2) counsel’s affidavit identifying a letter to Dr.
Gallagher from the law firm representing the Wellston City School District
Board of Education. Appellee contends that neither of the documents
Appellant sought to introduce, which were affidavits, were newly
discovered, but rather were newly created. We agree.
{¶18} However, we will nonetheless address the trial court’s refusal to
admit the underlying document referenced by counsel’s affidavit related to
the information provided to Dr. Gallagher. Appellant challenges the trial
court’s refusal to admit a letter, which he claims was discovered after the
administrative hearing, that was provided to Dr. Gallagher by the law firm of
Bricker and Eckler, arguing that the trial court did not employ the proper
analysis when making its decision. Although the trial court’s entry did not
include language indicating whether the proposed additional evidence was
newly discovered or not, the entry stated as follows:
“That hearing resulted in 2,069 pages of transcript and a voluminous amount
of exhibits. The Plaintiff-Appellant was represented throughout the hearing
by counsel. Many witnesses were called on behalf of the Ohio Department
of Education. Approximately 21 witnesses were identified and subpoenaed
by the Plaintiff-Appellant, many of which appeared for the hearing. Out of
the 21 witnesses only two (2) were called to testify. This hearing before the
Ohio Department of Education may not have been the longest hearing had
before said board, but it was certainly one of the longest. This appeal is
brought under Section 119.12 of the Ohio Revised Code. This Court may
2
Appellant does not address how this affidavit constituted newly discovered evidence or how its admission
would have produced a different result; thus, we do not address it on appeal.
Jackson App. No. 10CA17 12
affirm the findings of the state administration agency if this Court finds that
the order is supported by reliable, probative and substantial evidence and is
in accordance with law. This Court may allow additional evidence to be
admitted, but it is not required to do so. The Plaintiff-Appellant had ample
opportunity to present any information which he had in the hearing before
the state board. The Plaintiff-Appellant decided to chose [sic] not to call
certain witnesses that had been identified and subpoenaed. The trial/hearing
strategy to call or not call witnesses and/or to introduce or not to introduce
matters is something that rests with the party.”
{¶19} Further, a review of the record reveals that Appellee is correct
in that the letter to Dr. Gallagher was discussed during the administrative
hearing and that Appellant’s counsel conceded at the hearing that he had not
issued the proper subpoenas. As such, this evidence was not discovered
subsequent to trial and does not constitute newly discovered evidence. Thus,
we cannot conclude that the trial court erred or abused its discretion in
denying admission of Appellant’s proposed additional evidence.
Accordingly, Appellant’s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
{¶20} In his second assignment of error, Appellant contends that the
trial court erred in determining that the evidence relied upon by the
administrative hearing officer was reliable, probative and substantial. As set
forth above, in reviewing the trial court's determination that Appellee's order
was supported by reliable, probative and substantial evidence, this Court's
role is limited to determining whether the trial court abused its discretion.
Jackson App. No. 10CA17 13
Roy v. Ohio State Med. Bd. at 680. The term “abuse of discretion” connotes
more than an error of law or judgment; it implies that the court's attitude is
unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore at 219.
{¶21} While Appellant acknowledges that the State presented
numerous witnesses and a “multitude of exhibits,” Appellant claims that the
State’s medical evidence and factual evidence was unreliable. As to the
medical evidence, Appellant claims that Dr. Marjorie Gallagher’s testimony
was unreliable because the evidentiary material she reviewed prior to her
evaluation of Appellant was provided by Bricker and Eckler, a law firm
hired by the Wellston City Board of Education.3
{¶22} A review of the record reveals that under the direction of
Superintendent Mr. Kaple, the school information technology employee, Mr.
Rapp, secured copies of Appellant’s emails from his school computer,
Appellant’s old computer, as well the hard drive from the computer
Appellant was using in his office. This information was provided to the law
firm of Bricker and Eckler, which had been hired by the Wellston school
board. Bricker and Eckler in turn obtained the services of computer forensic
analyst, Brigitte Sollie, to perform an analysis of Appellant’s computer
usage. Ms. Sollie performed an analysis and provided a computer
3
This provision of information by Bricker and Eckler forms the basis of Appellant’s first assignment of
error, wherein Appellant sought introduction of a letter from Bricker and Eckler that was provided to Dr.
Gallagher.
Jackson App. No. 10CA17 14
investigative report dated April 6 to May 8, 2007. Specifically, her report
indicated that she analyzed Appellant’s old computer and also the hard drive
from his then current computer, which had been delivered to Bricker and
Eckler and given to her for imaging. The report indicated that she analyzed
and reviewed the files, carved files out of the unallocated space to recover
any items that had been deleted, extracted files, and found a pornographic
movie. The report further indicated that Ms. Sollie burned the files to a CD
and six DVD’s, which she provided to “Shaffer” at Bricker and Eckler for
review. Ms. Sollie also testified during the administrative hearing regarding
her analysis and findings.
{¶23} The record also reveals that Appellant underwent a fitness for
duty evaluation, conducted by Marjorie C. Gallagher, M.D., a board certified
psychiatrist. Appellant’s evaluation was conducted in two parts, the first
part taking place on March 8, 2007, prior to the computer evaluation, and the
second part taking place June 13, 2007, after the computer evaluation. As
indicated by Dr. Gallagher, the second part of Appellant’s fitness for duty
evaluation was conducted after additional information had been provided to
her, which “included the results of a computer forensic analysis performed
by an independent computer expert and directed, managed, and analyzed by
C. Allen Shaffer, an attorney with Bricker and Eckler, LLP, on three of the
Jackson App. No. 10CA17 15
school computers used by Mr. Williams over the previous year and a half.”4
Thus, it appears from the record that Dr. Gallagher was clear about where
the information she was reviewing came from, and that an attorney with
Bricker and Eckler directed the investigation, with the assistance of a
forensic computer analyst. We cannot conclude, based upon the record, that
Dr. Gallagher was under any misconception regarding the reliability of the
information she utilized during her evaluation of Appellant.
{¶24} Further, the summary paragraph of Dr. Gallagher’s psychiatric
evaluation of Appellant’s states as follows:
“Mainly because of, but not limited to, the evidence found on Mr.
Williams’s computers; because of Mr. Williams’ symptoms of Bipolar
Disorder, NOS, and Personality Disorder, NOS; and because of Mr.
Williams’ sexually inappropriate behavior, it is my opinion with a
reasonable degree of medical certainty that Mr. Williams is not fit for duty
to work as an elementary school principal or as a teacher. Psychiatric
treatment with psychotherapy and medication management is
recommended.”
Dr. Gallagher further testified at trial, explaining that even after the first part
of the evaluation, prior to being provided with information related to
Appellant’s computer usage, she had already determined that Appellant was
not fit for duty without treatment.
4
Appellant places much emphasis on the fact the C. Allen Shaffer, an attorney with Bricker and Eckler,
was involved in the analysis of Appellant’s computer, arguing that his involvement resulted in an unreliable
analysis. In fact, it was Shaffer who drafted the letter to Dr. Gallagher, the admission of which was denied
by the common pleas court, and which is the subject of Appellant’s first assignment of error. As such, the
actual letter, though its existence is referenced in Dr. Gallagher’s report and was the subject of testimony
during the administrative hearing, is not part of the record on appeal.
Jackson App. No. 10CA17 16
{¶25} Although a Bricker and Eckler attorney was involved in the
analysis of Appellant’s computers and allegedly wrote a letter to Dr.
Gallagher providing her with information related to that analysis, there is no
indication that Dr. Gallagher’s evaluation was affected by this fact. Further,
it is clear from the record that Appellant’s computers were, in fact, analyzed
by Brigitte Sollie, a computer forensic analyst, who issued an investigative
report advising that pornography had been found on Appellant’s computer.
Finally, as set forth above, Dr. Gallagher testified during the administrative
hearing that she determined Appellant was not fit for duty even before she
was provided with the computer analysis information, as Appellant refused
to obtain treatment for what, in her opinion, was bipolar disorder.
{¶26} Appellant also challenges certain information accepted by Dr.
Gallagher to be true, specifically that Appellant’s internet surfing included
visits to sites in foreign countries where a virtual child could be created.
Appellant argues that the State failed to present any evidence that Appellant
actually visited these sites or that visiting such sites is linked with sexual
attraction to children. However, the transcript from the administrative
hearing reveals that when questioned about these internet sites in particular,
Dr. Gallagher stated that she did not base her decision or diagnosis on this
Jackson App. No. 10CA17 17
information. For example, the following testimony appears as follows in the
transcript:
“Q. Disregarding that information about surfing the Eastern Bloc Internet
sites regarding virtual children, if you did not have that information in
front of you, would your opinion have changed as to what you had
under Axis I, possible pedophilia, non-exclusive type?
A. No.
Q. And why is that?
A. Because the other information I had of the children sitting on his lap
and his giving them candy and the 800 pictures on his computer and
the nude photograph of the child all would have been red flags.5
Q. You have mentioned a couple times, and I believe you set forth in
your report about the candy, and I’m looking also at 8-7A, fourth
paragraph, the Bundy Lottery. Why is that significant? Why is the
candy significant?
A. Because again, pedophiles try to make special relationships with
children, and one way they do is to give them prizes or gifts to
establish a closer relationship of that child or to make the child feel
special, tell the child they’re special. It’s a way of increasing or
making more intimate a relationship.
Q. Did you at any time discuss with Mr. Williams the number of prizes
or the number of times this Bundy Lottery ran or anything of that?
A. Not any more than what’s already in the report. They would have a
lucky day every month. He explained when a child did something
5
The record indicates that Appellant had previously been reported to Children’s Services for having a child
sit on his lap in his office; however, Appellant testified that this was report was unfounded. The record
further identifies that Appellant would keep candy in office which he would give to the students. The
reference to 800 pictures and the nude photograph of the child relate to the information recovered from
Appellant’s computers. Apparently Appellant’s computer had over 800 photographs of students, mainly
from different activities, and also prize winners from the “Bundy Lottery.” Further, a nude photograph of a
child was found on Appellant’s computer, which Appellant claims was sent to him as an email attachment.
The hearing transcript indicates that Appellant had knowledge that this photo was on his computer.
Jackson App. No. 10CA17 18
good, they would go to the office and get a toy out of the prize box
that in the office.
Q. Did this frequency come into play with you as far as the frequency of
gift giving, or did anything like that have anything to do with making
any type of significance for your opinion?
A. Well, I think, first of all, it’s unusual for principals to be giving gifts
to children, but the fact this was at least once a month and even more
frequent with all the pictures, I think that’s not normal.”
Thus, Dr. Gallagher testified that even omitting the information related to
surfing foreign country websites, based on other information, her diagnostic
impression still would have been possible pedophilia.
{¶27} Further, as noted by the hearing officer in her September 22,
2009, report and recommendation:
“The testimony was clear that Dr. Gallagher’s evaluation and subsequent
report was retained at the request of the Wellston City School District. This
request for an evaluation by Dr. Gallagher was separate and apart from the
action initiated by the Department [of Education]. The case against Mr.
Williams concerns the numerous allegations set forth in the Notice Letter, of
which Dr. Gallagher’s finding that Mr. Williams is unfit for duty as an
educator, is only one allegation.”
Based on the foregoing, we cannot conclude that the trial court abused its
discretion in affirming the decision of the Board of Education to
permanently revoke Appellant’s teaching and principal’s license. Therefore,
we reject the first argument raised under Appellant’s second assignment of
error.
Jackson App. No. 10CA17 19
{¶28} Appellant next argues under this assignment of error that the
State’s factual evidence was unreliable. Although Appellant concedes that
the evidentiary rules are relaxed in the context of administrative hearings,
Appellant contends that the hearing officer “admitted and considered
evidence constituting hearsay on multiple levels and allowed the medical
testimony based upon that hearsay.” Other than referencing Dr. Gallagher’s
reliance on a letter allegedly sent to her from Bricker and Eckler regarding
the computer analysis, which is not in the record before us, as well as Dr.
Gallagher’s reliance on several anonymous statements regarding Appellant’s
workplace behavior, Appellant does not specifically set forth the other
instances of hearsay to which he alleges. Instead, Appellant simply cites us
to his brief filed with the court of common pleas.
{¶29} As to the Bricker and Eckler letter, we have already noted that
that letter was not admitted during the administrative hearing process, was
properly excluded during the appeal to the common pleas court, and, as
such, is not properly before us for consideration. As to the anonymous
statements referenced by Dr. Gallagher during her psychiatric evaluation of
Appellant, the hearing officer stated as follows in her recommendation and
report:
“* * * Mr. Williams’ counsel correctly states that there was no evidence
presented on some of the issues raised in Dr. Gallagher’s report. This
Jackson App. No. 10CA17 20
administrative hearing action is based upon the evidence presented at the
numerous days of hearings in this case; it is not based upon a report. It is
noted that evidence was present at the administrative hearing on many of the
‘anonymous’ complaints referenced in the report; therefore, for the purposes
of the case before the Board, these complaints are not anonymous.”
Thus, although Dr. Gallagher did utilize several anonymous statements
provided by teachers and staff in conducting Appellant’s evaluation, the
hearing officer made it clear that her decision was based on the testimony
actually presented at the administrative hearings, not on Dr. Gallagher’s
report. Further, several teachers and staff testified during the hearings to
Appellant’s unprofessional, and quite frankly, bizarre workplace behavior,
directed not only toward staff, but also students. As it appears that the
hearing officer relied on the testimony presented, rather than the anonymous
statements, we find no error or abuse of discretion.
{¶30} Finally, though not properly briefed for this Court, Appellant
references arguments set forth in his trial court brief challenging evidence
related to the following: 1) “joke” emails; 2) staff meetings and activities; 3)
interaction with students; and 4) miscellaneous teacher testimony.
Specifically, in his trial court brief, Appellant set forth arguments with
respect to the following areas of evidence: 1) “joke” emails: “while some
may not find them funny or entertaining, any suggestion that they are badges
of pedophilia lacks merit[;]” 2) staff meetings and activities: “[t]hese
Jackson App. No. 10CA17 21
episodes may well evidence deficiencies in management skills, but it is
submitted that such sporadic occurrences should not be career-ending
events[;]” 3) interaction with students: “[t]he totality of the evidence reveals
that Mark Williams’ humor may be better appreciated by 1st and 2nd graders
than many teachers[;]” and 4) miscellaneous teacher testimony: “it is
submitted that much of the evidence of teacher commentary and complaint
regarding Mark Williams does not carry weight and significance that calls
for the permanent revocation of his teaching credentials . . . unless, of
course, the evidence is viewed as pertaining to a potential pedophile.”
{¶31} On appeal, Appellant seems to argue that the foregoing
evidence was inadmissible hearsay, relying on the arguments made in his
trial brief. However, a review of Appellant’s trial brief indicates that no
hearsay objections were raised, but rather Appellant challenged the weight
afforded to the evidence by the hearing officer and the Board of Education.
As set forth above, unlike the court of common pleas, a court of appeals
does not determine the weight of the evidence. Rossford Exempted Village
School Dist. Bd. of Edn. v. State Bd. of Edn. at 707; see, also, Contini at ¶
18. Here, it was within the province of the hearing officer and the board to
determine, as the trier of fact, the weight to be afforded this particular
evidence. And, from our perspective, the trial court did not abuse its
Jackson App. No. 10CA17 22
discretion in affirming the board’s decision to revoke Appellant’s teaching
and principal license, which was supported by reliable, probative and
substantial evidence.
{¶32} Accordingly, we reject the second argument raised under
Appellant’s second assignment of error and accordingly overrule
Appellant’s second assignment of error in total.
ASSIGNMENT OF ERROR III
{¶33} In his third assignment of error, Appellant contends that the
trial court’s decision is contrary to the manifest weight of the evidence and
thus was essentially contrary to law. However, as we have previously stated,
unlike the court of common pleas, a court of appeals does not determine the
weight of the evidence. Id.; see, also, Contini at ¶ 18. In reviewing the trial
court's determination that Appellee's order was supported by reliable,
probative and substantial evidence, this Court's role is limited to determining
whether the trial court abused its discretion. Roy v. Ohio State Med. Bd. at
680.
{¶34} However, as noted by Appellant, although an appellate court
must afford deference to the administrative resolution of evidentiary
conflicts, the determination of whether an agency’s order is in accordance
with the law is unlimited. Bivins v. Ohio State Bd. of Emergency Med.
Jackson App. No. 10CA17 23
Servs., 165 Ohio App.3d 390, 395, 2005-Ohio-5999, 846 N.E.2d 881. As a
result, Appellant asks this Court to consider whether the trial court’s
decision was contrary to law, based upon the contention that the issue of
whether Appellant saved or downloaded allegedly improper data, or even
knew of the data’s presence on the hard drive was irrelevant to the hearing
officer. Appellant also contends that the hearing officer failed to distinguish
between Appellant’s fitness for duty as a teacher versus as an administrator.
{¶35} A review of the record reveals that Appellant did not raise these
arguments at the trial court level. “It is a cardinal rule of appellate procedure
that a party cannot assert new legal theories for the first time on appeal.” In
re Banks, Scioto App. No. 07CA3192, 2008-Ohio-2339, at ¶ 10. As such,
Appellant has waived these arguments on appeal and we will not address
them. Thus, Appellant’s third and final assignment of error is overruled.
{¶36} In light of our determination under Appellant’s second
assignment of error that the trial court’s decision was supported by reliable,
probative and substantial evidence, we cannot conclude that the trial court’s
erred or abused its discretion in reaching its decision. Accordingly, the
decision of the trial court is affirmed.
JUDGMENT AFFIRMED.
Jackson App. No. 10CA17 24
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and that the
Appellees recover of Appellant costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Jackson County Common Pleas Court to carry this judgment into
execution.
Any stay previously granted by this Court is hereby terminated as of
the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Exceptions.
Harsha, P.J. and Kline, J.: Concur in Judgment and Opinion
For the Court,
BY: _________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.