Hal v. Ohio Dept. of Edn.

[Cite as Hal v. Ohio Dept. of Edn., 2019-Ohio-5081.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Martha Hal, :
Appellant-Appellant, :
No. 18AP-301
v. : (C.P.C. No. 17CV-4132)
State of Ohio : (REGULAR CALENDAR)
Department of Education,
:
Appellee-Appellee.
:
D E C I S I O N
Rendered on December 10, 2019
On brief: Farlow & Associates, LLC, and Beverly J. Farlow,
for appellant. Argued: Beverly J. Farlow.
On brief: [Dave Yost], Attorney General, Mary L. Hollern,
and Hannah Stoneburner, for appellee. Argued: Hannah
Stoneburner.
APPEAL from the Franklin County Court of Common Pleas
BRUNNER, J.
{¶ 1} Appellant-appellant, Martha Hal, appeals from a decision and entry of the
Franklin County Court of Common Pleas affirming the resolution of the State of Ohio Board
of Education ("Board") which determined that Hal had engaged in conduct unbecoming to
the teaching profession, in violation of R.C. 3319.31(B)(1), and denying Hal's applications
for a five-year professional principal license and five-year professional special all grades
teaching license. For the following reasons, we affirm the common pleas court judgment.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} Hal was employed by Columbus City Schools ("CCS") as a teacher and
administrator beginning in 1989. During the 2010-2011 school year, she was employed as
a leadership intern assigned to Walnut Ridge High School, which involved duties similar to
No. 18AP-301 2
those of an assistant principal. Hal was instrumental in implementing a new program for
ninth graders called the "Freshman Forgiveness Program" ("FFP"), a program that offered
the opportunity to ninth graders to raise a failing grade to a "D" if they met the requirements
of the program, including attendance and additional make-up work. The program only
applied to core subjects, English, Science, Math, and Social Studies and a student could
only be enrolled in the program in one core class per nine-week period. A student needed
to attend the program for nine weeks to raise the failing grade for a nine-week period. A
student who successfully completed the FFP for a particular grading period could not
receive any grade higher than a "D." The FFP was approved by the Board in January 2011
and implemented immediately.
{¶ 3} On June 2 and 10, 2011, Hal's computer username was used to make changes
to the grades of eight freshman students, five of whom participated in the FFP. Hal
admitted making 7 of the 29 changes for those students because she argued the changes
were the result of the FFP and permissible changes. The changes are as follows:
{¶ 4} June 2, 2011 changes:
1. 2:49 pm, Student 1 – final mark in Exploration Lit & Comp
9 was changed from "F" to "D." Appellant admitted
making this change.
2. 2:48 pm, Student 1 – first grading period mark in
Exploration Lit & Comp 9 changed from "F" to "A."
Appellant denied making this change.
3. 2:46 pm, Student 1 – first grading period mark in Physical
Science was changed from "F" to "B." Appellant denied
making this change.
4. 12:40 pm, Student 2 – final mark in Exploration Lit &
Comp 9 was changed from "F" to "D." Appellant admitted
making this change.
5. 12:44 pm, Student 2 – final mark in Physical Science
changed from "F" to "D." Appellant admitted making this
change.
6. 12:36 pm, Student 2 – first grading period mark in
Physical Science was changed from "F" to "B." Appellant
denied making this change.
7. 12:39 pm, Student 2 – second grading period mark in
Exploration Lit & Comp 9 changed from "F" to "B."
Appellant denied making this change.
8. 12:37 pm, Student 2 – second grading period mark in
Physical Science changed from "F" to "D." Appellant
admitted making this change.
No. 18AP-301 3
9. 2:53 pm, Student 3 – final mark in Physical Science
changed from "D" to "C." Appellant denied making this
change.
10. 12:28 pm, Student 3 – final mark in Algebra 1 changed
from "F" to "D." Appellant admitted making this change.
11. 12:27 pm, Student 3 – first grading period mark in Algebra
1 changed from "F" to "B." Appellant denied making this
change.
12. 2:54 pm, Student 3 – third grading period mark in Physical
Science changed from "F" to "B." Appellant denied making
this change.
13. 12:32 pm, Student 4 – final mark in Physical Science
changed from "F" to "D." Appellant admitted making this
change.
14. 12:31 pm, Student 4 – first grading period mark in Physical
Science changed from "F" to "B." Appellant denied making
this change.
15. 12:07 pm, Student 6 – final mark in Physical Science
changed from "F" to "C." Appellant denied making this
change.
16. 12:06 pm, Student 6 – second grading period mark in
Physical Science changed from "F" to "A." Appellant
denied making this change.
17. 12:19 pm, Student 7 – final mark in Physical Science
changed from "F" to "D." Appellant admitted making this
change.
18. 12:17 pm, Student 7 – grading period one mark in Physical
Science changed from "F" to "A." Appellant denied making
this change.
19. 12:24 pm, Student 8 – final mark in Physical Science
changed from "D" to "C." Appellant denied making this
change.
20. 12:12 pm, Student 8 – grading period one mark in Physical
Science changed from "F" to "A." Appellant denied making
this change.
(Ex. 11.)
{¶ 5} Appellant denied making any changes on June 10, 2011:
1. 8:21 am, Student 5 – final exam in French 1 changed from
"D" to "B."
2. 8:22 am, Student 5 – final mark in Exploration Lit & Comp
9 changed from "C" to "B."
3. 8:21 am, Student 5- final mark in Physical Science changed
from "F" to "C."
4. 8:19 am, Student 5 – first grading period mark in Physical
Science changed from "F" to "C."
No. 18AP-301 4
5. 8:20 am, Student 5 – second grading period mark in
Physical Science changed from "F" to "C."
6. 8:20 am, Student 5 – third grading period mark in
Physical Science changed from "F" to "C."
7. 8:22 am, Student 5 – final mark in Exploration Lit & Comp
9 changed from "D" to "A."
8. 8:21 am, Student 5 – fourth grading period mark in French
1 changed from "F" to "B."
9. 8:21 am, Student 5 – fourth grading period mark in
Physical Science changed from "F" to "C."
(Ex. 11.)
{¶ 6} The Board caused Hal to be notified of its intention to determine whether to
deny or permanently deny her pending applications on account of alleged violations of R.C.
3319.31(B)(1) for engaging in conduct that was negligent and/or unbecoming a licensed
educator for changing the grades of multiple students for impermissible reasons. Hal
timely requested a hearing that was held before a hearing officer over the course of several
days, October 24-27, 2016. On January 24, 2017, the hearing officer issued her report and
recommendation and concluded that Hal engaged in conduct unbecoming to the teaching
profession, in violation of R.C. 3319.31(B)(1). The hearing officer recommended that the
Board deny Hal's applications for a 5-year professional principal license and 5-year
professional special all grades teaching license and, further, Hal be ineligible to reapply for
any license issued by the Board until on or after April 11, 2022 and only after Hal would
submit evidence that she completed 16 hours of ethics training.
{¶ 7} Hal filed objections to the report and recommendation. At its April 11, 2017
meeting, the Board issued a resolution in which it accepted the hearing officer's report and
recommendation and denied Hal's applications until on or after April 11, 2022, requiring
her to submit evidence that she completed 16 hours of ethics training. Hal filed a notice of
appeal to the Franklin County Court of Common Pleas under R.C. 119. The common pleas
court, acting as an administrative appellate court, affirmed the Board's resolution.
II. ASSIGNMENTS OF ERROR
{¶ 8} Hal appeals and assigns the following six assignments of error for our review:
[1.] THE TRIAL COURT ABUSED ITS DISCRETION IN
FINDING THAT ODE'S RESOLUTION WAS SUPPORTED BY
RELIABLE PROBATIVE, AND SUBSTANTIAL EVIDENCE.
[2.] THE LOWER COURT ABUSED ITS DISCRETION WHEN
IT FOUND THAT THE HEARING OFFICER DID NOT CRAFT
No. 18AP-301 5
HER OWN DEFINITION OF WHAT GRADES MEAN AND
THAT ODE OFFERED PROBATIVE RELIABLE EVIDENCE
TO ESTABLISH THE MEANING OF GRADES AND TO
EXPLAIN WHAT CONSTITUTES ACCURATE GRADES.
[3.] THE LOWER COURT ABUSED ITS DISCRETION IN
UPHOLDING THE FINDING THAT APPELLANT'S
BEHAVIOR CONSTITUTED CONDUCT UNBECOMING TO
THE TEACHING PROFESSION.
[4.] THE LOWER COURT ERRED AS A MATTER OF LAW IN
STATING THAT RELIABLE, PROBATIVE AND
SUBSTANTIAL EVIDENCE IS A QUESTION OF THE
ABSENCE OR PRESENCE OF THE REQUISITE AMOUNT OF
EVIDENCE.
[5.] THE LOWER COURT ERRED AS A MATTER OF LAW IN
FINDING THAT THE SANCTION IMPOSED BY THE BOARD
IS IN ACCORDANCE WITH THE LAW.
[6.] THE LOWER COURT ERRED AS A MATTER OF LAW IN
VIOLATION OF APPELLANT'S DUE PROCESS RIGHTS.
III. ANALYSIS
A. Standard of Review
{¶ 9} When hearing an appeal from a state administrative agency, a court of
common pleas "may affirm the order of the agency complained of in the appeal if it finds,
upon consideration of the entire record and such additional evidence as the court has
admitted, that the order is supported by reliable, probative, and substantial evidence and
is in accordance with law." R.C. 119.12(M). Without such a 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. The Supreme Court of Ohio
defined those terms in Our Place, Inc. v. Ohio Liquor Control Comm., 63 Ohio St.3d 570,
571 (1992), as follows:
(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.
No. 18AP-301 6
{¶ 10} An appellate court's standard of review is "more limited than that of the trial
court." Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993). In reviewing whether
the common pleas court's determination concerning reliable, probative, and substantial
evidence does or does not support the agency's order, the appellate court's role is limited to
determining whether the common pleas court abused its discretion. Id.; Gallagher v. Ross
Cty. Sheriff, 10th Dist. No. 06AP-942, 2007-Ohio-847, ¶ 15, citing Lorain City. Bd. of Edn.
v. State Emp. Relations Bd., 40 Ohio St.3d 257, 261 (1988). Absent an abuse of discretion
on the part of the trial court, an appellate court may not substitute its judgment for the
judgment of the board or a trial court. Pons at 621. However, "on the question of whether
the agency's order was in accordance with the law, this court's review is plenary." Leslie v.
Ohio Dept. of Dev., 171 Ohio App.3d 55, 2007-Ohio-1170, ¶ 44 (10th Dist.), citing Univ.
Hosp., Univ. of Cincinnati College of Medicine v. State Emp. Relations Bd., 63 Ohio St.3d
339, 343 (1992).
{¶ 11} The issue on appeal is whether the common pleas court abused its discretion
or committed a legal error when it found that there is reliable, probative, and substantial
evidence supporting the Board's resolution. Pons; Lorain City Bd. of Edn. at 261. An abuse
of discretion occurs when a trial court's judgment is unreasonable, arbitrary, or
unconscionable. State ex rel. McCann v. Delaware Cty. Bd. of Elections, 155 Ohio St.3d 14,
2018-Ohio-3342, ¶ 12. Even under an abuse of discretion standard, however, "no court has
the authority, within its discretion, to commit an error of law." Shaw v. Underwood, 10th
Dist. No. 16AP-605, 2017-Ohio-845, ¶ 25; State v. Akbari, 10th Dist. No. 13AP-319, 2013-
Ohio-5709, ¶ 7. Thus, " '[a] court abuses its discretion when its ruling is founded on an
error of law or a misapplication of law to the facts.' " Independence v. Office of the
Cuyahoga Cty. Exec., 142 Ohio St.3d 125, 2014-Ohio-4650, ¶ 49 (O'Donnell, J., dissenting),
quoting Doe v. Natl. Bd. of Med. Examiners, 199 F.3d 146, 154 (3d Cir.1999).
B. First Assignment of Error
{¶ 12} In her first assignment of error, Hal contends that the common pleas court
abused its discretion by finding that the Board's resolution was supported by reliable,
probative, and substantial evidence. Hal argues that the evidence offered by appellee-
appellee, Ohio Department of Education ("ODE"), is inadequate because ODE did not
definitively demonstrate that Hal was the person that changed the students' grades.
No. 18AP-301 7
{¶ 13} ODE introduced Exhibit 11, which is a spreadsheet of multiple grade changes
attributed to Hal's username that occurred on June 2 and 10, 2011. On June 2 and 10, 2011,
changes were made to the grades of 8 freshman students (29 changes in total), 5 of whom
participated in the FFP, by someone using Hal's username. Hal admits to making 7 of the
changes but denies making the other changes. Randy Ziemba, who during the 2010-2011
school year was employed as a data analyst for the Student Information System used at that
time, Electronic Student Information System, or eSIS, for CCS1 created Exhibit 11.2 Ziemba
testified that at the end of June or early July every year, the database is frozen, and it cannot
be edited anymore. The frozen database is archived. He created Exhibit 11 and explained
that the information in the spreadsheet was extracted from the CCS eSIS 2010-2011
database after the database had been frozen and changes could no longer be made to it.
{¶ 14} Hal argues that Exhibit 11 does not constitute competent evidence and does
not satisfy the rules of evidence. " 'Although administrative appeals to government agencies
are required to comport with fundamental aspects of due process, they are not judicial
proceedings.' " MNH Truck Leasing Co., LLC v. Dir., Ohio Dept. of Job & Family Servs.,
10th Dist. No. 16AP-301, 2017-Ohio-442, ¶ 12, quoting Rudd v. Ohio Dept. of Job & Family
Servs., 2d Dist. No. 2015-CA-9, 2015-Ohio-3796, ¶ 13. "As a general rule, administrative
agencies are not bound by the strict rules of evidence applied in court." MNH Truck
Leasing Co. at ¶ 12, citing H.K. Trading Ctr., Inc. v. Liquor Control Comm., 10th Dist. No.
09AP-293, 2010-Ohio-913, ¶ 41.
{¶ 15} Hal contends that since Exhibit 11 was altered after Ziemba created it by
replacing the students' names with numbers, it could not be considered an original. Evid.R.
1001(3) provides that "[i]f data are stored in a computer or a similar device, any printout or
other output readable by sight, shown to reflect the data accurately, is an 'original.' " Hal
ignores Ziemba's testimony that other than the students' names, Exhibit 11 was identical to
the exhibit he created. Ziemba compared Exhibit 11 to the original document (Exhibit 11(a))
he created during the hearing and found the information identical. Further, Ziemba
testified that the student numbers corresponded to the student names reflected in the
1 Subsequent to the 2010-2011 school year, CCS began using a database called Infinite Campus rather than
eSIS.
2 After Ziemba created Exhibit 11, the student names were exchanged for numbers to protect the students'
identities. Ziemba testified that Exhibit 11 was identical to the exhibit he created except for the substitution
of numbers for the names.
No. 18AP-301 8
Confidential Student Key, which was Exhibit 3B. Ziemba testified that the grade changes
in Exhibit 11 corresponded to the students' condensed reports (end of quarter or end of year
report) that constituted Exhibit 12. Thus, the common pleas court did not err in finding
that Exhibit 11 constituted reliable, probative, and substantial evidence.
{¶ 16} Hal further argues that the evidence demonstrated that the computer
passwords were not secure and, thus, the evidence adduced at the hearing was not reliable.
Hal testified that other employees used her computer and she saved her username and
password in the system. She generally left her office door unlocked. She had seen someone
using her computer remotely a couple times. Further, she believed once reassignment to a
different building took place, all access to the student information from the former building
was denied. Thus, once she transferred to Whetstone on June 6, 2011, she no longer had
access to the information at Walnut Ridge. Finally, she testified that the principal at Walnut
Ridge during the 2010-2011 school year admitted changing students' grades because the
building was in academic distress and he had access to her computer.
{¶ 17} The hearing officer found that the testimony regarding the accessibility of
usernames and passwords was such that it is possible that someone else made the changes
on June 10, 2011. (Report and Recommendation, Findings of Fact No. 16.) And it appears
the hearing officer concluded that the evidence was not reliable, probative, and substantial
in order to find that Hal made the grade changes on June 10, 2011. However, the hearing
officer found that regardless of the security of the computers, usernames, and passwords,
Hal's testimony denying she made the grade changes on June 2, 2011 "is not credible."
(Report and Recommendation, Findings of Fact No. 15.) Credibility determinations are
within the province of the trier of fact because the trier of fact is in the best position to take
into account inconsistencies, witnesses' mannerisms and demeanor, and to determine
witness credibility. Kabeer v. Purakaloth, 10th Dist. No. 05AP-1122, 2006-Ohio-3584,
¶ 12. Thus, the fact that the username and passwords were not secure does not dictate an
improper inference or a finding that the evidence at the hearing was unreliable.
{¶ 18} Hal also argues that the citation in the hearing officer's report and
recommendation incorrectly cites the record of that hearing. The hearing officer's findings
include:
On or about June 6, 2011, Ms. Hal was reassigned to Whetstone
High School. Ms. Hal testified that she would not have had
No. 18AP-301 9
remote computer access to Walnut Ridge records to make any
grade changes in June 10. However, because Ms. Hal's user ID
was used to change grades, Ms. Hal clearly has access
regardless of the building she was assigned to. Based on the
testimony regarding the accessibility of user names and
passwords, it is also possible that someone else made the
changes. The changes made on June 10 were to Student 5's
grades. The June 10 changes did not appear to follow the same
pattern of changes made on June 2 to all of the other students'
grades. Tr. Vol. 3, p. 82; ODE exhibits 11, 11a.
(Report and Recommendation, Findings of Fact No. 16.)
{¶ 19} The above quote of the hearing officer's Report and Recommendation refers
to Hal's testimony about her own Exhibit BB. Exhibit BB is a computer document that Hal
created on June 10, 2011, while at Whetstone High School. Hall offered in support of her
assertion that she was present at her new assignment at Whetstone on June 10, 2011 and
that she did not have remote access to Walnut Ridge student information after being
transferred to Whetstone. However, we view the transcript reference as reflecting that the
hearing officer believed that Hal was at Whetstone on June 10, 2011, and that someone else
may have made the changes on that date. But even if the hearing officer made reference to
that specific page in the transcript in error, we cannot conclude that the record shows the
evidence at the hearing was unreliable. Moreover, Hal testified it was necessary to complete
a Change of Location form in order to gain access, but such a form she states she completed
on her first day at Whetstone was not produced during trial.
{¶ 20} Finally, Hal takes issue with the statement of the hearing officer that Hal had
access to a CCS computer on June 10, 2011, because there was no evidence of which
computer Hal had access to on that date. We note that Hal's own Exhibit BB, submitted in
an effort to demonstrate that she had access to a computer at Whetstone on that date, shows
she had access to some computer in the school system on that date, which may have had an
effect on the hearing officer's judgment of Hal's credibility. But as for the hearing officer's
findings, Findings of Fact No. 16 and Conclusion of Law No. 6, contain this statement:
"Based on the foregoing findings of fact, Ms. Hal's misconduct on June 2, 2011 violated
Principles 1 and 3 [of the State Board of Education Licensure Code of Professional Conduct
for Ohio Educators in 2008]." (Emphasis added.) Thus, it is clear that the hearing officer
No. 18AP-301 10
did not use the conduct that occurred on June 10, 2011 as a basis for finding Hal violated
Principles 1 and 3. Hal's first assignment of error is overruled.
{¶ 21} In her second assignment of error, Hal contends that the common pleas court
abused its discretion when it found on the one hand that the hearing officer did not craft
her own definition of what grades mean but on the other hand found that ODE offered
probative, reliable evidence to establish the meaning of grades and to explain what
constitutes accurate grades. Hal's argument is essentially that ODE did not present any
evidence regarding what the students' grades at issue should have been in order to
demonstrate that their recorded grades were not accurate.
{¶ 22} Despite Hal's contention, a CCS employee did testify at the hearing about
grades. Laura Commodore, a CCS administrator, testified that CCS did not have a policy
stating that grades could not be changed. However, she testified that there were reasons
for permitting grade changes, such as the teacher had inputted an incorrect grade, missing
grades from the condensed grade report from transfer students, and changes to align the
students' grades with policy where the students' grade calculations did not add together
properly. Hal highlights Commodore's testimony on this point to argue that grades are
changed to "align with policy" in an effort to argue that there was no set policy and grades
could be changed, therefore, ODE did not demonstrate what constitutes accurate grades.
However, Commodore testified that changes could be made to align with policy, but that
was when the mathematical calculations were not accurate. Commodore described the
mathematical calculation for determining grades by assigning a number to the letter grade
for each grading period (four points for an A, three points for a B, two points for a C, one
point for a D, and zero points for an F). The final grade was calculated by doubling each
grading period, adding the points earned on the final exam and dividing the total by nine.
See also Exhibit 10.
{¶ 23} Hal testified that she believed it was important for grades to be accurate and
to reflect what students have learned, to demonstrate what the student has mastered in the
subject and to indicate such to the student, parents, and future teachers. Hal further
testified that the classroom teacher is the person responsible for determining a student's
grade. Hal also testified about what she understood to be "impermissible reasons" for
No. 18AP-301 11
changing grades as "reasons that were not governed by the Board or sanctioned by the
teacher." (Tr. Vol. III at 124.)
{¶ 24} Given this testimony, the common pleas court did not abuse its discretion in
finding that the hearing officer did not craft her own definition of what grades mean and
that ODE offered probative, reliable, and substantial evidence to establish the meaning of
grades and to explain what constitutes accurate grades. Hal's second assignment of error
is overruled.
{¶ 25} In her third assignment of error, Hal contends that the common pleas court
abused its discretion in upholding the finding that Hal's behavior constituted conduct
unbecoming to the teaching profession. Hal argues that the penalty she received was an
arbitrary application of the law.
{¶ 26} The hearing officer, the Board, and the common pleas court relied on Ohio
Adm.Code 3301-73-21(B)(1) and the Licensure Code in finding that Hal's behavior
constituted conduct unbecoming to the teaching profession. Conversely, Hal argues an
arbitrary and discriminatory application.
{¶ 27} R.C. 3319.31(B)(1) permits the Board to "suspend, revoke, or limit a license
that has been issued to any person" for "[e]ngaging in an immoral act, incompetence,
negligence, or conduct that is unbecoming to the * * * person's position." Haynam v. Ohio
State Bd. of Edn., 6th Dist. No. L-11-1100, 2011-Ohio-6499, ¶ 32, citing Poignon v. Ohio
Bd. of Pharmacy, 10th Dist. No. 03AP-178, 2004-Ohio-2709. The Ohio Administrative
Code augments the statute's implementation with specific factors for determining conduct
that is "unbecoming." Ohio Adm.Code 3301-73-21(A) provides,
(A) The state board of education shall consider, but not be
limited to, the following factors when evaluating conduct
unbecoming under division (B)(1) of section 3319.31 of the
Revised Code:
***
(3) Crimes or misconduct involving academic fraud.
{¶ 28} The hearing officer specifically found that Hal's conduct on June 2, 2011,
violated Principles 1 and 3 of the Licensure Code of Professional Conduct for Educators.
Principle 1 provides that 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
No. 18AP-301 12
and for practicing the profession according to the highest ethical standards. Principle 1 lists
as conduct unbecoming "[c]ommitting any violation of state or federal laws, statutes or rule,
although the conduct may not have resulted in a criminal charge, indictment, prosecution
or conviction." (Ex. 16.) Principle 3 provides that "[e]ducators shall accurately report
information required by the local board of education or governing board, state education
agency, federal agency or state or federal law." Id. Principle 3 lists conduct unbecoming as
"falsifying, intentionally misrepresenting, willfully omitting or being negligent in reporting
information regarding the evaluation of students and/or personnel." Id.{¶ 29} The hearing officer specifically relied on these factors when evaluating Hal's
conduct. Hal's argument is thus not meritorious that the hearing officer's finding was
arbitrary, that is, that Hal engaged in conduct unbecoming in an arbitrary manner. Nor
can we find that the common pleas court erred in affirming that finding. In the course of
hearing the evidence at Hal's hearing, the hearing officer made a credibility determination,
finding Hal not to be credible. As a result, based on the evidence adduced at the hearing,
the hearing officer found Hal changed the grades on June 2, 2011, finding that behavior to
constitute misconduct involving academic fraud and conduct unbecoming to her position
as a teacher. Hal's third assignment of error is overruled.
{¶ 30} In her fourth assignment of error, Hal argues that the common pleas court
erred as a matter of law in stating its review standard—that reliable, probative, and
substantial evidence is a question of the absence or presence of the requisite amount of
evidence. Hal contends that the common pleas court only referred to the amount of
evidence and not the quality of the evidence and whether the evidence was probative.
{¶ 31} The common pleas court stated, "[d]etermining whether an agency's order or
resolution is supported by reliable, probative and substantial evidence is a question of the
absence or presence of the requisite amount of evidence. Although this is a legal question,
it inevitably involves a consideration of the evidence and, to a limited extent would permit
a substitution of judgment by the reviewing common pleas court." (Apr. 9, 2018 Decision
at 16.) The common pleas court used this standard as it was reviewing the hearing officer's
resolution of the evidentiary conflicts.
{¶ 32} This Court previously stated in Beeler v. Franklin Cty. Sheriff, 67 Ohio
App.3d 748, 753 (10th Dist.1990), citing Andrews v. Bd. of Liquor Control, 164 Ohio St.
No. 18AP-301 13
275 (1955), that "the determination of whether an agency order is supported by reliable,
probative, and substantial evidence is primarily a question of the absence or presence of
the requisite quantum of evidence." The Beeler court recognized that Andrews "pointed
out that, while in essence this is a legal question, inevitably it involves a consideration of
the evidence and to a limited extent would permit a substitution of judgment by the
reviewing common pleas court." Id.{¶ 33} In Gallagher, this Court stated that "a trial court's role in an administrative
appeal 'is to determine whether the agency's decision is supported by a preponderance of
substantial, reliable, and probative evidence.' " Gallagher at ¶ 16, quoting Mathews v. Ohio
State Liquor Control Comm., 10th Dist. No. 04AP-46, 2004-Ohio-3726, ¶ 11. In Collins v.
Ohio State Racing Comm., 10th Dist. No. 03AP-587, 2003-Ohio-6444, ¶ 23, this Court
stated:
"[T]he key term is 'preponderance.' If a preponderance of
reliable, probative and substantial evidence exists, the Court of
Common Pleas must affirm the agency decision; if it does not
exist, the court may reverse, vacate, modify or remand."
Dudukovich v. Housing Auth. (1979), 58 Ohio St.2d 202, 207,
389 N.E.2d 1113.
{¶ 34} The common pleas court appropriately stated and applied the standard of
review to the hearing officer's determinations as adopted by the Board and found them to
be supported by reliable, probative, and substantial evidence. The common pleas court
examined the evidence and its probative value and did not simply find there was a certain
amount of evidence as Hal suggests.
{¶ 35} Hal also argues that the hearing officer cited Pang v. Minch, 53 Ohio St.3d
186 (1990), and that it is not relevant to the facts in this case. While the facts in Pang are
not similar to the facts in this case, the hearing officer cited Pang for the proposition that a
preponderance of the evidence required that ODE must prove that it is more likely than not
that the misconduct occurred and that the misconduct constituted conduct unbecoming a
teacher. In Pang, the Supreme Court of Ohio quoted the Restatement of the Law 2d, Torts,
442, Section 433(B)(1), Comment a (1965), holding the meaning of the preponderance of
the evidence to be that " 'it is more likely than not that the conduct of the defendant was a
substantial factor in bringing about the harm.' " In light of this, we find that the hearing
No. 18AP-301 14
officer did not err in citing Pang for this proposition. Hal's fourth assignment of error is
overruled.
{¶ 36} In her fifth assignment of error, Hal contends that the common pleas court
erred as a matter of law in finding that the sanction imposed by the Board is in accordance
with law. In support of this, Hal argues that the hearing officer provided no legal basis for
the conclusion that Hal's actions violated Principles 1 and 3 of the Licensure Code. Hal's
argument is not clear. The hearing officer found that under the facts of this case, Hal's
actions violated those principles. The hearing officer concluded that Hal's actions violated
Ohio Adm.Code 3301-73-21(A) because she engaged in "crimes or misconduct involving
academic fraud." (Emphasis added.) Hal argues that Exhibit 11 should not be taken at face
value and as such there is not reliable, probative, and substantial evidence to support the
findings. We have already addressed this argument and rejected it.
{¶ 37} The real crux of Hal's fifth assignment of error is her argument that there is
no justification for such a severe penalty as was imposed on her by the Board. The Board
denied Hal's applications for a 5-year professional principal license and 5-year professional
special all grades teaching license. The Board ordered that Hal is ineligible to reapply for
any license issued by the Board until on or after April 11, 2022 and only after Hal submits
evidence that she has completed 16 hours of ethics training.
{¶ 38} R.C. 3319.31(B) authorizes the Board to refuse to issue a license to Hal or to
suspend, revoke, or limit a license that has been issued to Hal for engaging in conduct that
is unbecoming to the person's position. Ohio Adm.Code 3301-73-03(H) provides that
"[d]isciplinary action under this chapter means a final disposition of an investigation by
any professional licensing entity in this state or another jurisdiction. This can include, but
is not limited to, a letter of admonishment, consent agreement, suspension, revocation,
permanent revocation, limitation, denial or permanent denial of a license, or the voluntary
surrender or voluntary denial of a license." Hal argues that the Board could have elected to
impose a less severe penalty.
{¶ 39} It is well-settled that the reviewing court may not modify a sanction that is
authorized by statute if the agency's order is supported by reliable, probative, and
substantial evidence. Henry's Café, Inc. v. Bd. of Liquor Control, 170 Ohio St. 233 (1959),
paragraphs two and three of the syllabus. "As a practical matter, courts have no power to
No. 18AP-301 15
review penalties meted out by the commission. Thus, we have little or no ability to review
a penalty even if it seems on the surface to be unreasonable or unduly harsh." Goldfinger
Ents., Inc. v. Ohio Liquor Control Comm., 10th Dist. No. 01AP-1172, 2002-Ohio-2770, ¶ 16.
{¶ 40} Statute (R.C. 3319.31(B)) and administrative law (Ohio Adm.Code 3301-73-
03(H)) permit the Board to refuse to issue a license to Hal or to suspend, revoke, or limit a
license that had been issued to her. The common pleas court did not err in finding the
Board was authorized to sanction Hal and the sanction imposed was authorized by statute,
and the findings of misconduct were supported by reliable, probative, and substantial
evidence. We agree.
{¶ 41} Hal further argues that the Board was required to consider all mitigation
factors listed in Ohio Adm.Code 3301-73-21(B) in determining the proper sanction. The
common pleas court addressed this argument, finding that the mitigating circumstances
listed in Ohio Adm.Code 3301-73-21 are factors that the Board may consider. Ohio
Adm.Code 3301-73-21(B) provided at the time as follows:
If the state board finds that a person has engaged in conduct
unbecoming as described in paragraph (A) of this rule, then the
state board may take the following mitigating and aggravating
factors, as applicable and appropriate, into consideration when
determining a final action under division (B)(1) of section
3319.31 of the Revised Code: 3
{¶ 42} This administrative code section lists 14 factors. The hearing officer
specifically considered some of the factors, such as, "the nature and seriousness of Ms. Hal's
conduct," finding her conduct to be "serious." (Report & Recommendation, Conclusions of
Law at ¶ 8.) The hearing officer also considered the aggravating factor that Hal did not
disclose her misconduct to the Board. Id. Countering that, we note the hearing officer also
found the lack of previous criminal activity or misconduct and Hal's excellent work activity
to be mitigating factors. Id. at ¶ 9. Clearly, the hearing officer did consider mitigating and
aggravating factors, not being required to consider every factor. We find no abuse of
discretion by the common pleas court; nor did it err in affirming the Board's sanction. Hal's
fifth assignment of error is overruled.
3 Ohio Adm.Code 3301-73-21 was amended effective January 21, 2019.
No. 18AP-301 16
{¶ 43} In her sixth assignment of error, Hal contends that the common pleas court
erred as a matter of law by violating her due process rights. Hal specifically argues that the
common pleas court's reliance on Henry's Café in finding that the sanction imposed by the
Board was in accordance with law, violated her due process rights. Hal contends that the
common pleas court should have modified the Board's sanction because it is too harsh.
{¶ 44} We already addressed the issue that when an administrative board's action is
based on reliable, probative, and substantial evidence, and in accordance with law, a
reviewing court may not modify the imposed sanction if it is authorized by law. In Wolfe v.
Accountancy Bd. of Ohio, 10th Dist. No. 16AP-453, 2016-Ohio-8542, this court stated that
"[t]he determination of the appropriate sanction in an administrative hearing is strictly for
the agency." Id. at ¶ 16, citing Reed v. State Med. Bd., 162 Ohio App.3d 429, 2005-Ohio-
4071, ¶ 41 (10th Dist.).
{¶ 45} Hal attempts to distinguish Henry's Café on the basis that her professional
license is at issue and education has been her passion and livelihood. However, this Court
has applied Henry's Café in the arena of professional licenses. See Shah v. State Med. Bd.
of Ohio, 10th Dist. No. 14AP-147, 2014-Ohio-4067 (upheld permanent revocation of
medical license); Kellough v. Ohio State Bd. of Edn., 10th Dist. No. 10AP-419, 2011-Ohio-
431 (upheld permanent revocation of teaching license); Wolfe (upheld revocation of a
Certified Public Accountancy certificate).
{¶ 46} Further, in Goldberg v. Kelley, 397 U.S. 254, 267 (1970), superseded by
statute on other grounds, the United States Supreme Court held that due process in the
administrative context requires, "[t]he fundamental requisite of due process of law is the
opportunity to be heard." (Citations omitted.) Hal was afforded a hearing in this case.
{¶ 47} This Court previously addressed a due process argument regarding the
failure to modify or overturn Henry's Café, as follows:
As a court inferior to the Supreme Court of Ohio, we are bound
by and must follow the decisions of that court. State ex rel.
Abrusci v. Indus. Comm., 10th Dist. No. 08AP-756, 2009-
Ohio-4381, ¶ 5; State v. Mickens, 10th Dist. No. 08AP-743,
2009-Ohio-2554, ¶ 21; State v. Worrell, 10th Dist. No. 06AP-
706, 2007-Ohio-2216, ¶ 10. Ohio appellate courts have no
authority to declare unconstitutional a decision of the Supreme
Court of Ohio. State v. Howard, 7th Dist. No. 08-MA-121,
2009-Ohio-6398, ¶ 49. Consequently, this court has
No. 18AP-301 17
repeatedly rejected appellants' requests that we modify or
overrule Henry's Café. Auchi v. Liquor Control Comm., 10th
Dist. 06AP-493, 2006-Ohio-6003, ¶ 8, fn. 3; Gehad & Mandi,
Inc. v. Ohio State Liquor Control Comm., 10th Dist. No. 05AP-
1181, 2006-Ohio-3081, ¶ 7; Goldfinger Enterprises, Inc. v.
Ohio Liquor Control Comm., 10th Dist. No. 01AP-1172, 2002-
Ohio-2770, ¶ 22; Lindner v. Ohio Liquor Control Comm. (May
31, 2001), 10th Dist. No. 00AP-1430, 2001 Ohio App. LEXIS
2447. We do so again in this case.
Kellough at ¶ 58.
{¶ 48} We hold that the common pleas court did not err in relying on Henry's Café
in Hal's case and Hal therefore was not denied due process. Hal's sixth assignment of error
is overruled.
IV. CONCLUSION
{¶ 49} For the foregoing reasons, Hal's six assignments of error are overruled, and
the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
DORRIAN and LUPER SCHUSTER, JJ., concur.