Bergdahl v. Ohio State Bd. of Psychology ( 1990 )

This is an appeal from an Athens County Common Pleas Court judgment reversing a decision of the Ohio State Psychology Board.

On July 24, 1985, appellee, Judith Briggs Bergdahl, applied to the Ohio State Psychology Board ("board"), asking to be admitted to the examination for psychology license. At a hearing on June 27, 1986, the board informed appellee she would only be able to take the examination if she took additional coursework and had her college transcript changed to reflect the additional coursework.

Appellee completed the coursework but was unable to obtain the necessary changes to her transcript to satisfy the board. On December 8, 1988, the board informed appellee her application was denied.

Appellee filed an appeal with the Athens County Court of Common Pleas. On April 14, 1989, appellee filed a motion to submit additional evidence requesting that certified copies of the "official minutes" of the board's meetings be included in the official record. On May 22, 1989, the court ordered the minutes to be submitted by the board within thirty days. The board did not comply with the court's order and on July 24, 1989, appellee filed a motion for a finding in her favor. On October 13, 1989, the court granted appellee's motion and remanded the case to the board.

We affirm.

Assignment of Error I "The court below erred in concluding that the board of psychology failed to certify a complete record of its proceedings because the minutes of the board's June 27, 1986 meeting are not a mandatory part of the certified record."

R.C. 119.12 states in part:

"Within thirty days after receipt of a notice of appeal from an order in any case in which a hearing is required by sections119.01 to 119.13 of the Revised Code, the agency shall prepare and certify to the court a complete record of the proceedings in the case. Failure of the agency to comply within the timeallowed, upon motion, shall cause the court to enter a findingin favor of the party adversely affected." (Emphasis added.)

"Complete record of proceedings" was defined by the court inChecker Realty Co. v. Ohio Real Estate Comm. (1974), 41 Ohio App. 2d 37,42, 70 O.O.2d 46, 49, 322 N.E.2d 139, 142-143, as "[a] precise history of the administrative proceedings from their commencement to their termination."

Appellant contends the minutes of its meetings are not necessary to provide a "precise history" of its proceedings. Although appellant cites Tisone v. Ohio Bd. of Liquor Control (1964), 1 Ohio App. 2d 126, 30 O.O.2d 153, 204 N.E.2d 82, a review of that decision shows that what constitutes a complete record was not an issue.

In the instant case, the court gave specific reasons why it felt the minutes were a necessary part of this record. Appellee raised the constitutionality of the applicable section of the Administrative Code as a basis of appeal in the lower court. The court found that the minutes of the meeting were essential in determining the merits of appellee's appeal.

We have reviewed the record and agree with the lower court that the minutes of the meetings were a necessary part of the certified record. Appellant's first assignment of error is overruled.

Assignment of Error II "The court below erred in concluding that the board of psychology failed to certify a complete record of its proceedings because the minutes of the board's June 27, 1986 meeting and the motion concerning Bergdahl reflected in those minutes were actually included in the record certified by the board."

Appellant contends that because minutes of meetings were attached to memoranda filed by appellee, this meets the statutory requirement that the record be certified. We have reviewed the record and are convinced the certified copies of the minutes were not included in the original certified record nor were they submitted as required by the court in its May 22, 1989 entry. Appellant's second assignment of error is overruled.

Assignment of Error III "The court below erred in granting judgment in favor of Bergdahl pursuant to R.C. 119.12, paragraph nine, because the non-listing of the minutes of the board's June 27, 1986 meeting as a separate item in the board's certified record did not prejudice Bergdahl in the presentation of her appeal."

Appellant contends that even if R.C. 119.12 was violated, a finding could only be issued in favor of appellee if prejudice resulted from the omission. We agree. When the record is timely filed but is incomplete, a finding in favor of the party adversely affected is appropriate if prejudice is shown.Lorms v. Ohio Dept. of Commerce (1976), 48 Ohio St. 2d 153, 2 O.O.3d 336, 357 N.E.2d 1067. See, also, Jenneman v. Ohio StateBd. of Chiropractic Examiners (1985), 21 Ohio App. 3d 225, 21 OBR 241, 486 N.E.2d 1272.

We have reviewed the record and believe the court had a basis for finding appellant was prejudiced by the incomplete record. One of appellant's grounds for appeal was the constitutionality of Ohio Adm. Code 4732-9-01 as applied to her individual case. That section of the Administrative Code sets out the course requirements and experience necessary to be eligible for licensure.

Appellee received her doctoral degree two months after the effective date of the regulation. The board's application of that regulation to appellee's situation was at issue in the appeal before the lower court. The court found and we agree that it could only evaluate that claim if it had access to "all relevant minutes."

The issues presented in this appeal are similar to those raised in Jordan v. State Bd. of Nursing Edn. NurseRegistration (Apr. 3, 1987), Jackson App. No. 532, unreported, 1987 WL 9338. In Jordan, we stated:

"What could be more prejudicial to an appellant than the trial court's inability to determine the validity of her appeal because the agency did not certify the complete record."

We find sufficient support for the court's requirement that appellant certify the "relevant minutes" so that it could determine the validity of appellee's appeal. Appellant's third assignment of error is overruled.

Judgment affirmed.

HARSHA, J., concurs.

STEPHENSON, J., concurs in part and dissents in part.