Lucas v. Ohio State Bd. of Edn.

[Cite as Lucas v. Ohio State Bd. of Edn., 2020-Ohio-2738.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Megan E. Lucas et al., :
Appellants-Appellees, :
No. 19AP-463
v. : (C.P.C. No. 19CV-1945)
[Ohio State Board of Education, and] : (ACCELERATED CALENDAR)
Jefferson Township Local School
District Board of Education, :
Intervening Appellee-Appellant. :
D E C I S I O N
Rendered on April 30, 2020
On brief: Coolidge Wall Co., L.P.A., Merle F. Wilberding,
and Christopher R. Conard, for appellants-appellees.
Argued: Christopher R. Conard.
On brief: Subashi, Wildermuth & Justice, and Tabitha
Justice, for intervening appellee-appellant. Argued: Tabitha
Justice.
APPEAL from the Franklin County Court of Common Pleas
NELSON, J.
{¶ 1} The record of this case reflects that schools under the immediate aegis of the
Jefferson Township Local School District Board of Education had not been faring well when
a group of dissatisfied residents petitioned the State Board of Education in 2018 to transfer
approximately nine square miles of land out of the Jefferson district and into the Valley
View Local School District. More than 40 percent of eligible students already had "opted
out of attending Jefferson schools," leaving roughly 300 students enrolled in the district;
the state's "report card" routinely gave Jefferson very low ratings; the Auditor of State had
found Jefferson's books "inauditable" for 2017; and it had become "difficult for Jefferson to
No. 19AP-463 2
attract teachers because of its low pay and the fear that the district will cease to exist."
Hearing Officer's January 7, 2019 Report and Recommendation at ¶ 32, 33, 36, 37, 40, 46.
The state board's hearing officer recommended that the state board grant the transfer
request. But Jefferson objected on a variety of grounds, and the state board, in light of the
general "persuasiveness of Jefferson['s] * * * objections," voted 10-7 to reject that
recommendation and disapprove the transfer. February 11, 2019 Board Minutes at 20. The
petitioners took an administrative appeal to the Franklin County Court of Common Pleas,
which overturned the decision of the state board and itself granted the transfer. Jefferson
appeals from that judgment.
{¶ 2} We agree with the common pleas court that the state board did not fulfill its
statutory obligation to identify the reason (or reasons?) for its disapproval of the hearing
officer's recommendation. But in part because the board's rationale was so inchoate, and
because the record could contain evidence that might support the state board's result
depending on what the basis for it was, we will remand the case so that the common pleas
court may return it to the state board for appropriate and appropriately reviewable
disposition of the transfer petition.
Procedural history
{¶ 3} In March 2018, Megan Lucas and other concerned residents of the Jefferson
school district petitioned the state board for the transfer of the roughly nine square miles
of school district territory from Jefferson to Valley View pursuant to R.C. 3311.24. The Ohio
Department of Education appointed a hearing officer to review the matter.
{¶ 4} In January 2019, after holding a two-day evidentiary hearing on the territory
transfer request, the hearing officer issued her rather detailed report and recommendation.
She found, among other things, that the proposed transfer area is owned by fewer than ten
families and that of the 25 or so school-age children who live there, only "four or five of
these children appear to attend Jefferson schools." Report and Recommendation at ¶ 18,
20-21. After critiquing Jefferson's performance ("[a]s of October 2018," for example,
"Jefferson had not finalized its students' schedules for the 2018-2019 school year," id. at
¶ 43) and contrasting it unfavorably with Valley View's much better job on state report
cards and graduation rates, she reviewed transfer factors identified in Ohio's
Administrative Code and assessed the issues raised by the parties.
No. 19AP-463 3
{¶ 5} "Valley View provides a better assortment of higher caliber classes and
activities to its students than Jefferson does," she observed, and she gave "great weight" to
the fact that "[t]he predominant [agricultural] vocation of the residents of the Territory
[proposed for transfer] is not being addressed by Jefferson," which unlike Valley View does
not offer agriculture classes and 4H programs. Id. at page 11. She also noted that "[n]o
evidence has been presented that racial animus was a factor in this transfer request," and
that Jefferson had stated that the transfer would not have more than a de minimis effect on
the racial composition of its schools. Id. at 10-11. While "Jefferson claims an alleged tax
revenue loss of $456,552.00 [annually] and an alleged valuation loss of $13,600.00 [sic:
should be $13,600,000.00]," the district did not provide any "specific examples" of how
that revenue loss would adversely affect its students, she said, and the district's 2017
revenues had outpaced its expenses by more than $800,000. Id. at 12.
{¶ 6} "Jefferson has been in overall disorder for many years," the hearing officer
concluded, "even with the revenue from the Territory. * * * * [T]he decreasing student
population, accounting issues and the turnover/retention of administration/staff have
continued to be issues. This transfer will not change the issues that have challenged
Jefferson." Id. at 14. On the other side of the equation, the residents proposing transfer
"have been concerned about their children's educational opportunities for many years."
And "[t]he educational opportunities available to the students in the Territory [at issue]
* * * will be vastly improved by the granting of this transfer." Id. In sum, she recommended
that the state board grant the petitioners' request. Id.
{¶ 7} Jefferson submitted objections to the hearing officer's report and
recommendation, reciting that the transfer would have "immense emotional and financial
impact * * * on Jefferson's stakeholders." Objections at 1. Among other things, and using
what may seem odd locution for an educational enterprise, Jefferson argued that
"petitioners * * * presented tangible evidence related to the best interest of only two
children [sic, and emphasis in original] within the disputed territory." Id. at 2. The
transfer would have racial isolation implications, they argued, and would not be in the best
interests of the students remaining in the district; whether movement of students should
be permitted must turn in part on those children's hypothesized race, the objections
contended, because boundary changes affect students district-wide. Id. at 2-4. Moreover,
No. 19AP-463 4
"Valley View would be acquiring over $450k in tax revenues while assuming the duty to
educate 2 to 5 children. This disproportionality clearly does not weigh in favor of a
transfer." Id. at 7. And "better educational programming in one district for two specific
children is not 'overwhelming' evidence supporting the transfer [of] nine square miles of
territory." Id. at 9.
{¶ 8} Jefferson's objections also noted that the district's superintendent had
testified that revenue losses would result in programming cuts, and responses from the
treasurer reflected a threat of hemorrhaging deficits. Id. at 10. Additionally, Jefferson
submitted, petitioners had failed to explain "why nine square miles needs to be transferred
when a much smaller transfer would accomplish the same alleged goal [of helping
transferring students]." Id. at 11. As to agricultural offerings, "[t]here was no evidence
presented regarding any courses taken by any specific students that would not be available
should those students attend Jefferson or another district through open enrollment." Id.
at 13. "Finally, the hearing officer did not even address proximity of the transferred
property to the receiving school district, which is a factors [sic] set forth in OAC 3301-89-
02(B)(13) and (14)." Id. (with map at 14).
{¶ 9} The state board met to consider the transfer petition on February 11, 2019.
The minutes of that meeting reflect that after the recommendation was presented to the
board, three individual board members advocated rejecting the hearing officer's
recommendation and disapproving the transfer. Each of the three advanced different and
separate reasons for that position: one "stated her main concern was that a segregated area
would be even more segregated if the transfer were to be allowed," and also noted that "only
four to five students would be affected in an almost nine-mile area"; one "noted the 14
percent loss of the budget"; and one "stated concerns with setting precedent [because]
petitioners knew what district the house they purchased was in." February 11, 2019 State
Board Minutes at 19.
{¶ 10} By a vote of 10-7, the board then voted to reject the recommendation of the
hearing officer and disapprove the transfer "in light of the persuasiveness of Jefferson Local
School District's objections." Id. at 20. The resolution itself contained no other explanation
for the board's rejection of the hearing officer's recommendation. Id.
No. 19AP-463 5
{¶ 11} The petitioners appealed the state board's determination to the Franklin
County Court of Common Pleas pursuant to R.C. 119.12. With briefing complete, the trial
court began its decision with a succinct procedural overview and observed that before
"seeking the land transfer, [the petitioners had] attempted to work with the Jefferson
School Board to improve the district, including one appellant serving on the school board."
Decision and Entry at 1. The trial court then recited that R.C. 119.12(M) provides: "The
court may affirm the order of the agency complained of in the appeal if it finds, upon
consideration of the entire record and any additional evidence the court has admitted, that
the order is supported by reliable, probative, and substantial evidence and is in accordance
with law. In the absence of this finding, it may reverse, vacate, or modify the order or make
such other ruling as is supported by reliable, probative, and substantial evidence and is in
accordance with law." Id. at 2-3 (then citing Bartchy v. State Bd. of Edn., 120 Ohio St.3d
205, 212, 2008-Ohio-4826, for instructions including that while the court should give
deference to agency findings of fact, the court itself determines questions of law).
{¶ 12} The trial court then turned to our decision in Residents of Baldwin Rd. v.
State, 10th Dist. No. 02AP-257, 2002-Ohio-5522. As the trial court noted, see Decision and
Entry at 3-4, we said there that "[w]hile the Board is not required to accept a referee's
recommendation to grant or deny a requested transfer, when the Board rejects a
recommendation, there is a presumption that only the specific grounds listed by the Board
provided the basis for the decision, with other possible grounds being rejected. However,
where nothing in the Board's resolution addresses or contradicts the referee's conclusion
that the students would be better served by the transfer, the Board's decision is not
supported by reliable, probative and substantial evidence." 2002-Ohio-5522 at ¶ 16, citing
Schreiner v. State Bd. of Edn., 10th Dist. No. 98AP-1251 (Nov. 9, 1999). The trial court
continued by reciting that the state board's rejection of a hearing examiner's
recommendation in Baldwin Rd. had been for an expressed reason that was appropriately
overturned as "counter to evidence presented that showed the transfer [considered there]
only affected one child and the economic impact was de minimis." Decision and Entry at
4.
{¶ 13} In this case, too, the trial court said, the state board "ignored the evidence
found by the Hearing Officer supporting the transfer and instead relied on speculation and
No. 19AP-463 6
non-statutory factors." Id. The trial court then noted that three (of the seventeen) voting
board members each had voiced one (different) concern, and the trial court reviewed each
and found each to lack any reliable, probative, and substantial support in the record. Id. at
4-6. "The Hearing Officer's decision was based on reliable, probative, and substantial
evidence," the trial court concluded. Id. at 6. "Thus, without specific grounds addressing
or contradicting the recommendation of the Hearing Officer, the Board's decision is not
based on reliable, probative and substantial evidence." Id. The trial court reversed the
order of the state board and proceeded to grant the territory transfer request. Id.
{¶ 14} Jefferson—but not the state board—appeals.
Administrative scheme and standards
{¶ 15} R.C. 3301.13 places the state board within the state department of education
and makes it "subject to Chapter 119 of the Revised Code" relating to the administrative
appeal process. Thus, a decision of the state board on an R.C. 3311.24 transfer request is
appealable under R.C. 119.12. See also, e.g., Rossford Exempted Village School Dist. v.
State Bd. of Edn., 45 Ohio St.3d 356 (1989), syllabus.
{¶ 16} In reviewing an order of an administrative agency under R.C. 119.12, a
common pleas court must consider the entire record to determine whether reliable,
probative, and substantial evidence supports the agency's order and whether the order is in
accordance with law. Univ. of Cincinnati v. Conrad, 63 Ohio St.2d 108, 110 (1980). As to
questions of fact, the common pleas court must give due deference to the administrative
agency's resolution of evidentiary conflicts, but "the findings of the agency are by no means
conclusive." Id. at 111. The common pleas court's "review of the administrative record is
neither a trial de novo nor an appeal on questions of law only, but a hybrid review in which
the court 'must appraise all the evidence as to the credibility of the witnesses, the probative
character of the evidence, and the weight thereof.' " Lies v. Ohio Veterinary Med. Bd., 2
Ohio App.3d 204, 207 (1st Dist.1981), quoting Andrews v. Bd. of Liquor Control, 164 Ohio
St. 275, 280 (1955).
{¶ 17} An appellate court's review of an administrative decision is more limited.
Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993). While the common pleas court
must examine the evidence, "[s]uch is not the charge of the appellate court." Rossford, 63
Ohio St.3d at 707. The appellate court is to determine only whether the common pleas
No. 19AP-463 7
court abused its discretion. Id.; Blakemore v. Blakemore, 5 Ohio St.3d 217, 218 (1983). On
review of purely legal questions, including whether the common pleas court applied the
proper standard of review, an appellate court exercises de novo review. Big Bob's, Inc. v.
Ohio Liquor Control Comm., 151 Ohio App.3d 498, 2003-Ohio-418, ¶ 15 (10th Dist.); Univ.
Hosp., Univ. of Cincinnati College of Medicine v. State Emp. Relations Bd., 63 Ohio St.3d
339, 343 (1992) ("it is the prerogative and the responsibility of the court entertaining the
appeal to investigate whether the lower court accorded due deference to the factfinder").
{¶ 18} "R.C. 3311.24 itself contains little guidance for the state board's consideration
of a petition for a transfer [of school district territory] under that statute," but more specific
"standards, factors, and procedures for the administrative consideration of such a petition
are contained in Ohio Adm. Code Chapter 3301-89." Bartchy at ¶ 44; see also Concerned
Citizens for Quality Edn. v. Ohio Dept. of Edn., 10th Dist. No. 10AP-569, 2011-Ohio-3081,
¶ 7. Ohio Adm.Code 3301-89-01 gives the state board's general policies regarding transfers
of territory and confirms, at subsection (F), that "[a] request for transfer of territory shall
be considered upon its merit with primary consideration given to the present and ultimate
good of the pupils in the affected districts." Ohio Adm.Code 3301-89-02 outlines
procedures for considering a petition for transfer of territory and sets forth 25 questions
that each school district implicated by a requested transfer must answer to aid the state
board in its consideration. Ohio Adm.Code 3301-89-03 contains a non-exhaustive list of
further factors to be considered. "In supplying the overall standard for considering school
district territory transfer requests, the Administrative Code focuses on educational impact
as the key to whether such requests should be approved." Bartchy, 2008-Ohio-4826, at
¶ 86.
{¶ 19} " '[T]he several factors for consideration set forth in Ohio Adm. Code 3301-
89-02(B) and 3301-89-03(B) are intended to be an integral part of the board's transfer
decision with primary consideration given to the present and ultimate good of all the
students who are affected by the proposed transfer.' " Id. at ¶ 50, quoting Garfield Hts. City
School Dist. v. State Bd. of Edn., 62 Ohio App.3d 308, 319 (10th Dist.1990). Each transfer
request is decided on its particular facts under the required balancing test. Bartchy at ¶ 81.
Thus, " '[w]hen a transfer of school districts is proposed, a balancing must take place
between many competing factors in order to achieve the desired result of achieving what is
No. 19AP-463 8
in the best interests of the students concerned.' " Id. at ¶ 51, quoting Garfield Hts. at 323.
As we have held and the Supreme Court has reaffirmed, " '[b]ecause the good of the pupils
must be the primary consideration of the board, by definition no other single factor may be
determinative of the transfer request.' " Bartchy at ¶ 51, quoting Cincinnati City Sch. Dist.
v. State Bd. of Edn., 113 Ohio App.3d 305, 310 (10th Dist.1996). "[T]he hearing officer's
[and ultimately the state board's] balancing of the factors should be treated with deference."
Id. at ¶ 89.
Discussion
{¶ 20} Jefferson assigns four asserted errors for our review:
[1.] The trial court erred as a matter of law in failing to apply
the correct standard of review of an administrative decision.
[2.] The trial court abused its discretion by failing to review
and/or address the evidence in the record regarding the
financial impact of the transfer on the school district.
[3.] The trial court abused its discretion by failing to review
and/or address the evidence in the record regarding racial
isolation.
[4.] The trial court abused its discretion by failing to review
and/or address the evidence in the record regarding
disproportionality and proximity.
{¶ 21} Jefferson urges under its first assignment of error that "the trial court * * *
did not consider the entirety of the record" in reaching its decision because it "concluded
that the State Board had failed to adequately delineate its justifications for rejecting the
hearing officer's recommendation." Appellant's Brief at 25. Jefferson then proceeds to
argue, under its next three assignments of error, from what it says is evidence that would
support what it now apparently distills as three of the more significant prongs of the
objections that it had made to the hearing officer's recommendation and that the board
(either on the basis of one objection or by combining two or more) had found
"persuasive[ ]." See id. at 26 (citing "persuasiveness of objections"), 32-41 (starting with
claimed 14 percent valuation loss to district).
{¶ 22} The state board resolution did not need to point to specific evidence to
support a particular reason or set of reasons for rejecting the hearing officer's
No. 19AP-463 9
recommendation, so long as the record in fact contained reliable, probative, and substantial
evidence that could support an articulated board rationale. In Baldwin Rd., for example,
the reviewing courts themselves examined the record and determined that the reason given
by the state board for departing from the hearing officer's recommendation "was not"
supported by substantial, reliable, and probative evidence. See 2002-Ohio-5522, at ¶ 19
(further noting that board's articulated concern of burden to transferee school "was reached
despite evidence that the property transfer would only affect a single child * * * and was
likely not to affect significant numbers of future students").
{¶ 23} But the trial court's possible reluctance here to dig too deeply into the
administrative record—as when, for example, it cited to the hearing officer's view that
Jefferson had "presented no evidence or testimony to support their claim" of significant
revenue loss, see Decision and Entry at 5, and did not cite to Jefferson's answers of record
to responses 9 and 21 to the 25 questions (indicating a valuation loss of $13.6 million
dollars, an annual revenue loss to the district of $456,552, and a projected doubling of
projected deficit spending by the end of a five-year forecast period), or to the district
treasurer's reaffirmation of those answers, see Petitioner's Ex. 2 and September 25, 2018
hearing transcript at 168—is quite understandable given the state board's failure to comply
with Ohio law requiring it to include in the record its reasons for not following the hearing
officer's recommendation.
{¶ 24} When it "modifies or disapproves the recommendations" of its hearing
officer, the state board of education "shall include in the record of its proceedings the
reasons for such modification or disapproval." R.C. 119.09, as applicable pursuant to R.C.
3301.13. That requirement is necessary to the system of appellate review, for "when the
Board rejects a recommendation, there is a presumption that only the specific grounds
listed by the Board provided the basis for the decision, with other possible grounds being
rejected." Baldwin Rd., 2002-Ohio-5522, at ¶ 16, citing Schreiner, 10th Dist. No. 98AP-
1251 (Nov. 9, 1999), 1999 Opinions, Vol. V, 4792. As we have explained, there would not be
"any point in allowing each reviewing body to make a decision completely independent of
any preceding findings and conclusions. Instead, the system envisions a series of checks
and balances in which each reviewing body considers what has gone before with an eye for
No. 19AP-463 10
the reasonability of the prior decision based upon all the facts presented and in light of the
statutory requirements and factors." Id. at ¶ 17.
{¶ 25} The board as a body did not say what it found persuasive about the objections.
Id. It did not specify whether it found one objection compelling, or more than one, and if
so in what combination. Id. That is, it did not list or specify any particular objection to
which it subscribed, or in any other way describe the reasons for its conclusion; it simply
endorsed the overall "persuasiveness" of the objections as an undifferentiated group and in
sum, and without more ruled against the transfer. Id.
{¶ 26} Jefferson submits to us that "the trial court should have presumed [that] the
reasons supporting the State Board's decision were all those reasons set forth in Jefferson's
objections." Appellant's Brief at 27 (emphasis in original). But given the guileful phrasing
of the board's resolution and the limited discussion of record, no more than one board
member is committed to any one of the objections, let alone all. By the same token, no
member of the narrow board majority is committed to rejecting any one of the objections.
Compare Baldwin Rd. at ¶ 16 ("presumption that only the specific grounds listed by the
Board provided the basis for the decision, with other possible grounds being rejected").
This noncommittal approach runs directly counter to the accountability that R.C. 119.09
demands.
{¶ 27} Thus, we cannot tell from the board minutes and the resolution what the
reasons for the board's disapproval were: all we really know is the 15-page filing of
"objections" from which "persuasive[ ]" reasons were drawn. And especially because the
legal analysis required of the trial court in assessing whether the record offered reliable,
probative, and substantial evidence to support the board's determination might well vary
depending on each particular reason examined, telling the trial court to "review the entire
record" in the absence of a coherent board rationale would serve no productive purpose at
this juncture. Compare Schreiner at page 13 ("the trial court should limit its review to two
basic questions. First, are the specified grounds for the Board's decision supported by
reliable, probative, and substantial evidence," and second, "are such grounds [as 'specified'
by the board] legally sufficient to support the Board's determination?") (emphasis in
original). So whereas in Baldwin Rd. the courts were able to scour the record and match
evidence (or the lack thereof) against the state board's articulated rationale, here, where the
No. 19AP-463 11
state board did not articulate a rationale as required by law but simply said that it yielded
to the "persuasiveness" of Jefferson's rather diffuse, disparate, and perhaps disparately
supported objections, that would have been something of a mug's game.
{¶ 28} If what made Jefferson's objections persuasive to the board were its race-
based arguments, for example, that analysis would examine different record evidence,
under different controlling legal authority, than would analysis of tax revenue loss, which
would look to evidence different still from evidence concerning "proximity of some of the
territory to Jefferson school buildings," or the relative breadth of the territory proposed for
transfer. See, e.g., Hearing Transcript at 148 (Jefferson Superintendent agrees that transfer
of four or five students would have "de minimis" effect on racial composition of schools);
May 16, 2018 "25 Questions" letter from Jefferson's counsel at 2 ("the transfer would not
result in an increase in the percentage of minority pupils in the * * * district"); id. at
Addendum A (claiming $456,522 annual tax loss); Hearing Transcript at 140
(superintendent says any loss of revenue would be significant to this district); see also, e.g.,
Schreiner at pages 20, 22 (where evidence of "racial isolation" supports "only * * * a
conclusion that such an impact would be de minimus," that is not a valid reason for denying
transfer); Appellant's Brief at 35 (conceding that Title VI of 1964 Civil Rights Act applies in
this context); Spitznagel v. State Bd. of Edn., 126 Ohio St.3d 174, 2010-Ohio-2715, ¶ 18
(state board's permissible weighing of generalized revenue loss in considering transfer is
reviewed for abuse of discretion).
{¶ 29} But precisely because the trial court was correct in observing that the state
board did not provide "specific grounds" for departing from the hearing officer's
recommendation, see Decision and Entry at 6, we do not entirely understand the trial
court's finding that the state board "relied on speculation and non-statutory factors in its
decision," Id. at 4. The record is unclear as to what the board relied on (and this case in
that way is very different from Baldwin Rd.).
{¶ 30} Moreover, and relatedly, the review of the entire record that the trial court
purported nonetheless to undertake was phrased in places as relying on the hearing officer's
conclusions (only) rather than on the fuller administrative record. See supra at ¶ 23
(regarding dispute as to the state of the evidence concerning revenue loss); Decision and
Entry at 5 (citing only to hearing officer Report and Recommendation for proposition that
No. 19AP-463 12
"[w]hile Jefferson claimed a 14% loss of tax revenue, they presented no evidence or
testimony to support their claim"); compare Jefferson's responses to 25 questions. The
board's failure to specify reasons does not (necessarily) mean that the board had no
evidence on which it could have grounded a disapproval of the recommendations. This
case therefore presents a problem quite different from the circumstance we found in
Baldwin Rd., where the board cited a rationale for its denial of a transfer contrary to a
hearing officer's recommendation (" 'the transfer * * * is hereby DENIED because, if the
transfer were approved, the facilities of the [school district] would be burdened and,
consequently, the educational facilities of both districts would not be effectively utilized' "),
but where the courts' examination of the full record showed that "the Board's resolution
was not" supported by the evidence. 2002-Ohio-5522, at ¶ 7, 19.
{¶ 31} In these contrasting circumstances, we conclude that where a board governed
by R.C. 119.09 "fails to set forth its reasons for modifying [or rejecting] the officer's
recommendations, the Board's order is not in accordance with law" and must be overturned
on that basis. Wheat v. State Bd. of Chiropractic Examiners, 9th Dist. No. 13538, 1988
Ohio App. Lexis 4859 (Nov. 30, 1988), citing Chapman v. Ohio State Rental Bd., 33 Ohio
App.3d 324 (9th Dist.1986).
{¶ 32} Our discussion in Baldwin Rd. emphasized the importance of the board's
statutory obligation to include "the reasons" for disapproval as appropriately supported by
evidence and "on grounds which are legally sufficient" to trump evidence supporting the
hearing officer's recommendation. 2002-Ohio-5522, at ¶ 17 (emphasis omitted); R.C.
119.09. And the entire structure of our Schreiner decision that informed our views in
Baldwin Rd. illustrates the significance to judicial review (and therefore to what both the
legislature and the courts have deemed essential to good governance of the administrative
process) of the need for the administrative record to reflect the board's stated reasoning in
such circumstances (just as reviewing courts would have examined the hearing officer's
report were the board to have adopted that).
{¶ 33} Such transparency serves as a check not only on the administrative body that
must include its reasons, but also on the courts that are confined to examination of those
actually stated reasons and the evidence underlying them, rather than being loosed to
engage in judicial policy making as supported by any rationale that comes to hand. See
No. 19AP-463 13
Schreiner at 13 ("the trial court did not limit its inquiry to a determination of whether the
grounds specified by the Board were supported by the factual record and legally sufficient
to support the Board's determination to deny the transfer. Rather, the trial court placed
itself in the role of the Board by engaging in a complete reweighing of the evidence and
regulatory factors and by coming to its own, independent conclusion as to the propriety of
the transfer, albeit the same conclusion reached by the Board"), id. at 14-22 (then marching
through each of the four grounds that actually had been specified by the board there, and
finding that the trial court had abused its discretion in finding them supported by reliable,
probative, and substantial evidence and in accordance with law).
{¶ 34} Jackson v. Franklin Cty. Animal Control Dept., 10th Dist. No. 86AP-930,
1987 Ohio App. Lexis 9144 (Oct. 6, 1987), does not relieve the board of its obligation under
R.C. 119.09 to provide the reasons for its disapproval of the hearing officer's
recommendation. There, in that case involving the Ohio Civil Rights Commission, "the
Attorney General, in behalf of the commission, filed objections" to part of the hearing
examiner's recommendation. Id. at *6 (emphasis added). And those objections by the
commission's own lawyer "suggested that reinstatement also be ordered" as part of the
discrimination remedy. Id. So the reasons for the commission's order to that effect were
"sufficiently included in the record." Id. That case relied on Bd. of Edn. v. Civil Rights
Comm., 66 Ohio St.2d 252, 257 (1981), where again the objections came from the Attorney
General making one point (there, "that the examiner used an incorrect standard of proof"),
and where the commission "accepted this contention in its conclusions of law" (and also
made "findings of fact" as further reviewable by the courts). Here, quite unlike Jackson,
the objections to which the board adverted were (1) diffuse and varied, and (2) were not
made by the board's lawyer "in behalf of" the board, but rather came from a different party
to the dispute entirely—the Jefferson school district, opposing the requested transfer.
Compare, e.g., State ex rel. Am. Legion Post 25 v. Ohio Civil Rights Comm., 117 Ohio St.3d
441, 2008-Ohio-1261, ¶ 9 (explaining that in Civil Rights Commission hearings, "the
attorney general represents the commission and prosecutes the charge," citing R.C.
4112.05(B)(5) through (7) [involving statutory mechanisms specific to that commission, but
not relevant to the board here]).
No. 19AP-463 14
{¶ 35} In this case, the board in its failure to identify what Baldwin Rd. and
Schreiner termed the "specific grounds" for its disapproval did not begin to approach what
we have said is the minimal threshold for satisfying that R.C. 119.09 requirement. In In re
Meridia Euclid Hosp., 10th Dist. No. 93AP-138, 1993 Ohio App. Lexis 4054, *8 (Aug. 7,
1993), for example, we reviewed an order of the Certificate of Need Review Board reciting
that it had " 'rejected the Hearing Examiner's Findings of Fact having determined that the
submitted findings are contrary to statute. In conjunction with the Findings of Fact the
Board rejected the Hearing Examiner's Conclusions of Law determining that the
conclusions are flawed due to the fact that the Hearing Examiner placed the 'burden of
proof' on the Appellees rather than on the Appellants.' " We held that with those two
sentences, not lengthy or unduly arduous for the governmental body but nonetheless
sufficient to convey rather precisely why that board had decided as it did, the "order
minimally satisfies the requirements set forth in R.C. 119.09." Id. (emphasis added; saying,
too, that "[u]ntil such time as the statutes require more from an agency, * * * this barest of
explanations suffices"). See also, e.g., In re Lima Memorial Hosp., 10th Dist. No. 93AP-
580, 1993 Ohio App. Lexis 4184, *9 (Aug. 24, 1993) ("the board, in amending, deleting and
adding its own finding of fact and conclusions of law, sufficiently set forth its reasons for
disapproving the hearing examiner's recommendations").
{¶ 36} Because the board did not make its determination here in accordance with
law, and because the trial court consequently was not in a position to compare the
evidentiary record to reasons specified by the board and does not appear to have conducted
a full review of the administrative record, we sustain Jefferson's first assignment of error
only to that limited extent and remand the matter to the trial court for remand to the board
for appropriate, reviewable consideration of the hearing officer's report and disposition of
the transfer petition. See, e.g., Wheat, 1988 Ohio App. Lexis 4859, at *21 (where a board
order is not in accordance with law because the board has failed to set forth its reasons for
modification or disapproval, "the reviewing court may remand to the [b]oard," citing
Chapman); Chapman, 33 Ohio App.3d at 328 ("[s]uch a remand does not dismiss or
terminate the administrative proceeding but, rather, means that the agency may take a
fresh look at the matter"); In re Jefferson Health Care Center, 10th Dist. No. 89AP-182,
1989 Ohio App. Lexis 3161, *12 (Aug. 15, 1989) ("R.C. 119.12 permits the common pleas
No. 19AP-463 15
court to remand a case to an administrative body where its action did not conform with
law," citing Chapman; Demint v. State Med. Bd., 10th Dist. No. 15AP-456, 2016-Ohio-3531,
¶ 61 (citing Chapman).
Conclusion
{¶ 37} Remanding the matter to the board should enhance accountability,
administrative transparency, and focused judicial review by permitting the board to
comply, as it must if it decides to reject the hearing officer's recommendation, with the
specification requirements of R.C. 119.09. In light of our ruling sustaining in part the first
assignment of error and remanding this case to the trial court for remand to the board for
further consideration of the report and land transfer petition, and because the board did
not purport to rely on any one of the three reasons for overruling the hearing officer
suggested in Jefferson's assignments of error two through four, we overrule those
assignments as moot.
Judgment reversed and cause remanded with instructions for
remand to the state board of education for further determination.
BEATTY BLUNT, J., concurs.
LUPER SCHUSTER, J., concurring in part and dissenting in part.
LUPER SCHUSTER, J., concurring in part and dissenting in part.
{¶ 38} While I concur in the majority's reversal of the trial court's judgment, I
disagree with the majority's instructions to the trial court on remand. Therefore, I concur
in part and dissent in part.
{¶ 39} The majority finds that the Ohio State Board of Education ("state board") did
not comply with its obligation under R.C. 119.09 to set forth the reasons for its disapproval
of the hearing officer's recommendation to grant the petition to transfer certain land from
the Jefferson Township Local School District ("Jefferson") to the Valley View Local School
District ("Valley View"). The majority concludes that this deficiency precluded the trial
court from properly reviewing whether the administrative record supported the state
board's reasons. Thus the majority remanded the matter to the state board "for appropriate,
reviewable consideration of the hearing officer's report and disposition of the transfer
petition." (Majority Decision at ¶ 36.) I disagree.
No. 19AP-463 16
{¶ 40} The state board's denial of the requested transfer of territory from Jefferson
to Valley View reflected both its disagreement with the hearing officer's balancing of all the
pertinent factors in evaluating the request, and its conclusion regarding whether a transfer
of the territory would best serve the ultimate good of the children concerned. The state
board's resolution indicates that, upon considering the hearing officer's report and
recommendation, the documents provided by the parties, and Jefferson's objections to the
hearing officer's report and recommendation, it was persuaded by the objections.
Accordingly, the state board denied the transfer request on that basis. See Jackson v.
Franklin Cty. Animal Control Dept., 10th Dist. No. 86AP-930, 1987 Ohio App. LEXIS 9144(Oct. 6, 1987) (agency ruling in favor of party's objections that are contained in the
administrative record complies with R.C. 119.09's requirement that the agency include in
the record of its proceedings the reasons for disapproving of a hearing officer's
recommendation). Jefferson's objections centered on the projected financial and racial
impact of the requested transfer, and the prudence of transferring nine square miles of
territory instead of a geographically more limited transfer. In support of its objections,
Jefferson cited specific undisputed evidence that, according to it, favored the denial of the
transfer. In other words, the objections provided a competing view of how certain evidence
should be weighed in considering the factors pertinent to the transfer request. Thus, the
state board accepted Jefferson's reasoning as to why, in balancing the applicable factors,
the circumstances disfavored the approval of the territory transfer request. In my view, this
met R.C. 119.09's requirement that the state board provide its reasons for disapproving the
hearing officer's recommendation.
{¶ 41} Even though the state board complied with this requirement, there is no
indication the trial court meaningfully reviewed the evidentiary basis of the state board's
decision. For example, the objections emphasized that Jefferson would incur a 14 percent
property tax revenue loss as a result of the territory transfer. Despite undisputed evidence
in the administrative record of this revenue loss, the trial court cited the hearing officer's
assertion that there was no evidence presented to support this level of revenue loss. I can
only conclude that, instead of reviewing the entire administrative record, and the reasoning
against the transfer set forth in the objections, which the state board found to be persuasive,
the trial court focused its analysis on the hearing officer's discussion and weighing of certain
No. 19AP-463 17
pertinent factors, including her discounting of evidence relating to the financial harm to
Jefferson and the racial impact of the requested territory transfer. The underlying facts
here were undisputed, and the state board viewed the significance of those facts differently
than the hearing officer. While the trial court purported to review whether the state board's
decision was supported by reliable, probative, and substantial evidence, it instead in effect
deferred to the hearing officer's weighing of the evidence and imposed a requirement on
the state board to offer evidence to refute the hearing officer's analysis.
{¶ 42} Consequently, I conclude the trial court erred as a matter of law in applying
the wrong standard in its review of the state board's decision. I would instruct the trial
court on remand to review the entire record to determine whether the state board's denial
of the transfer request, which was necessarily based on its conclusion that approving the
territory transfer request is not in the best interest of the children concerned, was supported
by reliable, probative, and substantial evidence. Accordingly, unlike the majority, I would
sustain Jefferson's first assignment of error in its entirety. On this basis, I agree with the
majority that Jefferson's second, third, and fourth assignments of error are rendered moot.
{¶ 43} For these reasons, I concur in part and dissent in part.
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