Bennett v. Ohio Dept. of Edn.

[Cite as Bennett v. Ohio Dept. of Edn., 2022-Ohio-1747.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
DONALD E. BENNETT, JR., :
Plaintiff-Appellant, : CASE NO. 21CA3948
:
v.
:
OHIO DEPARTMENT OF EDUCATION, DECISION AND JUDGMENT ENTRY
:
Defendant-Appellee.
_________________________________________________________________
APPEARANCES:
Stanley C. Bender, Portsmouth, Ohio, for appellant.
Zoe A. Saadey Lamberson, Assistant Attorney General, Columbus,
Ohio, for appellee.
___________________________________________________________________
CIVIL CASE FROM COMMON PLEAS COURT, GENERAL DIVISION
DATE JOURNALIZED:5-18-22
ABELE, J.
{¶1} This is an appeal from a Scioto County Common Pleas Court
judgment that affirmed the order of the Ohio Department of
Education, defendant below and appellee herein, to revoke the
substitute teaching license of Donald E. Bennett, Jr., plaintiff
below and appellant herein.
{¶2} Appellant assigns two errors for review:
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT ABUSED ITS DISCRETION BY NOT
ONLY FAILING TO CONSIDER ALL OF THE EVIDENCE
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BUT, MORE IMPORTANTLY, BY FAILING TO REQUIRE
THE ADMINISTRATIVE AGENCY TO PRODUCE ALL OF THE
EVIDENCE, I.E., TO HAVE THE ENTIRE RECORD TO
REVIEW.”
SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT’S DETERMINATION THAT ODE’S
DECISION DID NOT VIOLATE APPELLANT’S
SUBSTANTIVE DUE PROCESS RIGHTS IS BOTH WRONG
AND A QUESTION OF LAW AND THIS COURT’S REVIEW
IS PLENARY.”
{¶3} On November 7, 2017, appellant served as a substitute
teacher at Valley Local Middle School and was present with Students
1, 2, 3, 4, and 5, among others, for a study skills class.
Students 1-5 accused appellant of (1) threatening to stab Student 1
with a pen, and (2) placing his hands on Student 1's
neck/shoulders/shirt.
{¶4} On June 18, 2019, appellee (ODE) sent a Notice of
Opportunity for Hearing to appellant to notify him that the State
Board of Education intended to determine whether to limit, suspend,
revoke, or permanently revoke his substitute license. The notice
included allegations of misconduct1 and informed appellant that (1)
1
COUNT 1
On or about November 7, 2017, you engaged in conduct unbecoming to
the teaching profession when you had an inappropriate verbal and
physical interaction with Student 1, which included you putting your
hands on Student 1 and/or Student 1's shirt collar and threatening
to stab Student 1.
COUNT 2
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his actions violated R.C. 3319.31(B)(1)[engaging in an immoral act,
incompetence, negligence, or conduct unbecoming to the position],
and (2) he was entitled to a hearing. On October 11, 2019, ODE
sent an amended Notice of Opportunity for Hearing that omitted
Count 5, but otherwise the same. ODE also requested subpoenas for
Principal Aaron Franke, Student 1, Mother of Student 1, Student 2
and Student 3. Appellant requested subpoenas for Franke,
Superintendent of the South Central Ohio Educational Service Center
Sandy Mers, ODE Staff Attorney Samuel Dunsky and ODE Superintendent
of Public Instruction Paolo DeMaria. Subsequently, the hearing
officer, pursuant to the Ohio Adm.Code 3301-73-13(D) confidential
investigation provision, granted ODE’s motion to quash the
On or about December 4, 2008, in the Plymouth Municipal Court, your
case was dismissed after you successfully completed a first offenders
program relating to the charge of one misdemeanor count of sale of
alcohol to underage persons.
COUNT 3
On or about January 2, 1997, in the Portsmouth Municipal Court, you
were convicted of one minor misdemeanor count of disorderly conduct.
COUNT 4
On or about December 2, 1992, in the Circuit Court of the Second
Judicial Circuit of Gadsden County, Florida, you pled no contest to
one misdemeanor count of cultivation of cannabis, for which
adjudication was withheld.
COUNT 5
On or about March 1, 2005, June 9, 2005, July 10, 2006, June 5, 2007,
July 31, 2007, and February 8, 2017, you engaged in conduct unbecoming
to the teaching profession when you failed to fully disclose your
criminal history on your applications for licensure to the Ohio
Department of Education.
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subpoenas for Dunsky and DeMaria.
{¶5} At the hearing, appellee called several witnesses
including appellant, Students 1, 2, 3, and Principal Franke.
Student 1 testified that, during his study skills class, he talked
with Student 3 and played with his Harry Potter wand pen: “I was
seeing how it opened, and I was twisting it in and out, and it just
kept clicking. And I was watching it and how the ball back of it
blew up.” Student 1 said that at that point, appellant “walked up
to me and told me to give me the pen. And I told him no, because
it wasn’t mine. And I handed it back to [Student 3},” then “he
[appellant] took the pen from [Student 3] and grabbed the collar of
my shirt and said he was going to stab me with it.” Student 1
indicated that appellant did not smile or laugh, and then “grabbed
the collar of my shirt, and, like, he was pulling like this, so I
proceeded to stand up and turn around so he couldn’t stab me in my
back with the pen.” After appellant let go of Student 1, he sat
down. Student 1 did acknowledge the disruptive nature of his pen
clicking and that he did not tell his mother about the incident.
{¶6} After Principal Franke called Student 1’s mother, they
all discussed the incident the following day. Also, students 2, 3,
4, and 5 spoke with Franke and gave him written statements.
Student 1 read his statement during the hearing:
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I was messing with a pen of Student 3 - - 3’s, and he
walked up to me and said give me the pen. I gave him the
pen and said it wasn’t mine, Student - - it was Student
3’s. He grabbed me by the shirt - - yeah - - by my shirt,
then he threatened me and said he was going to stab me with
it, and I stood up so he could not - - so he would not be
able to stab me in the back, and then he walked away, and
I did not speak to him again that day.
Student 1 additionally testified that, at Franke’s request and in
Franke’s presence, he and other students typed their statements
while in the computer lab. Student 1 did acknowledge that he
talked with the other students prior to them making statements, but
denied they discussed the matter with the goal of getting their
“stories straight.” Student 1 further acknowledged that Student
2's statement that “the only thing I heard from Mr. Bennett out of
that sentence was, ‘kill’” and that appellant “put his hands around
the reporting student’s neck and choked him” differed from his
account.
{¶7} Student 3 testified that approximately seven students
occupied the classroom when Student 1 asked to borrow his pen.
Appellant then approached and asked, “Whose pen is that?” When
Student 1 said Student 3, appellant said, “Give it to me.” When
Student 1 responded, “Why?,” appellant grabbed Student 1 by the
shirt collar and said, “Give it to me, or I’ll stab you with it.”
Student 3 said he did not believe appellant joked because of his
serious and angry tone. Student 1 then gave the pen to appellant,
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who handed it to Student 3 and walked away.
{¶8} A couple of days after the incident, Principal Franke
asked Student 3 to provide a written statement that he also read at
the hearing:
First Student 1 was looking at my pen and standing up.
Then Mr. Bennett walked over and said what do you have.
Then Student 1 said Student 3’s pen and Mr. Bennett said
let me see it. Then Mr. Bennett said give it to me now or
I will stab you with it. As he said that he was grabbing
Student 1’s shirt collar. And then Student 1 gave him the
pen. Then Mr. Bennett looked at it and gave it back to
me.
{¶9} Student 2 testified that, on the day of the incident, she
sat about five feet away from Student 1, while approximately 20
people occupied the classroom. Student 1 had a wand from the book
fair and everyone was “doing their homework and stuff, so he was
playing with the wand, not really doing what he was supposed to.”
When appellant approached Student 1 to ask for the wand, Student 1
refused to give it to appellant. When appellant again asked for
the wand and Student 1 did not comply, appellant approached Student
1 and “it kept on going like that.” Student 1 “sort of got
irritated, stood up, and Mr. Bennett said that he would stab him if
he didn’t give it to him.” Appellant then “grabbed Student 1
somewhere around the neck, shoulder, somewhere like that, and took
[the wand] from Student 1. And then Mr. Bennett went back to the
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teacher’s desk.” Student 2 also did not believe appellant joked.
Later that day, Student 2 told her parents about the incident and a
day or two after spoke with Principal Franke. Student 2 also said
that Students 2, 3, 4 and 5 discussed the incident. Student 2 also
read her written statement:
So, we were in study skills in Ms. Canter’s class at the
end of the day. We had a substitute and his name was Mr.
Bennett. We were in class doing work and Student 1 was
being a little disruptive throughout the class. He was
out of his seat and talking out loud while so people were
trying to do their homework. It was the second day of the
book fair, and you’re able to buy books, posters and
toys/gadgets. Well, Student 1 had like this Harry Potter
wand and he was playing with it instead of doing his work.
Mr. Bennett came over and said, ‘Student 1, give me that.’
But Student 1 did not do so. Mr. Bennett said again,
‘Student 1, give me that now,’ but once again, Student 1
did not give the object to him. Now at this point Student
1 stood up out of his chair, put the object behind his
back, and looked in Mr. Bennett’s eyes. Mr. Bennett said,
‘Give me that right now or I’ll stab you.’ Student 1 said
something but I could not hear what he had said, and Mr.
Bennett said something back, but I also could not tell what
he said except for the only thing I heard from Mr. Bennett
out of the sentence was ‘kill.’ After Mr. Bennett said
that, he grab Student 1’s neck, held on for a couple of
seconds and pushed Student 1 back. At this point, Mr.
Bennett had the wand and went back to Mrs. Canter’s bigger
desk.
{¶10} Valley Middle School Principal Aaron Franke testified
that appellant had served as a substitute teacher for a year or two
before the incident. Franke acknowledged that he spoke with
Students 1, 2, 3, 4, and 5 and he referred to them as classmates,
not necessarily friends. Based on what he had learned, Franke
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believed that appellant had behaved inappropriately and
unprofessionally in the classroom. A day or two later, Franke
called appellant and took notes from the conversation and,
according to Franke, appellant “seemed confused by the questions,
and he was also very nonspecific with his answers. He didn’t admit
to doing it, but then he also didn’t say that he didn’t do it.”
When asked if he put his hands on Student 1, appellant said, “No,
not that I recall. Possibly only to sit him down, like I maybe put
my hand on his shoulder to sit him down.” When asked if he
threatened to stab Student 1, appellant said, “I don’t recall
saying that, Aaron, but if I did, it was just a joke, but I don’t
joke like that.”
{¶11} Based on Principal Franke’s conversation with appellant,
Franke believed appellant (1) did say “I’m going to stab you” to
Student 1, and (2) put his hands on Student 1. Because of this
incident, Franke removed appellant from the substitute list.
{¶12} On cross-examination, Principal Franke acknowledged that
Student 1 has a temper and staff members have had difficulty with
him. Franke further stated that “[t]here had been discipline
incidents with [Student 1],” but he is “not a severe discipline
problem, but he could and can be argumentative.” Franke further
stated that, although he believed appellant threatened Student 1
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and acted inappropriately and unprofessionally, he did not report
the conduct to law enforcement because he did not believe that
appellant would harm students.
{¶13} ODE Staff Attorney Kyle Downie testified that Attorney
Samuel Dunsky conducted an investigation, but had since changed
roles with ODE. Downie explained that ODE does not call the
investigator to testify at hearings “because they’re not going to
be testifying about what they spoke about, because the
investigations we do are confidential.” Appellant’s counsel also
referenced a statement appellant gave at his ODE interview, but ODE
counsel asserted that statement is a R.C. 3319.311(A)(1) and Ohio
Adm.Code 3301-73-04 confidential investigative record. The hearing
officer thus did not permit any reference to the statement.
{¶14} Appellant’s counsel also questioned Staff Attorney Downie
regarding appellant’s 2008 misdemeanor charge for the sale of
alcohol to a minor, and Downie explained that Licensure Code of
Professional Conduct for Educators Principle 1(b) provides that,
regardless of conviction, a violation of a federal, state or local
statute or rule is “still conduct unbecoming” pursuant to R.C.
3319.31(B)(1). When asked why ODE continued to issue substitute
licenses after two prior offenses, Downie stated, “[i]f you go back
to 2008, we knew about it. We issued him a warning letter around
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June, July, 2008, that was sent to the address that is right there
on the Notice – Amended Notice of Opportunity for Hearing.” Also,
South Central Ohio Educational Service Center Superintendent Sandra
Mers testified that she is the custodian of personnel records for
Scioto County substitute teachers and she brought appellant’s
records to the hearing.
{¶15} Appellee called appellant, as if on cross-examination,
and he testified that, on November 7, 2017, he served as a
substitute teacher at Valley Middle School. During the last period
study skills class, Student 1 sat at a table approximately 15 feet
from appellant and played with a wand pen. Initially, appellant
did not recall approaching Student 1’s table and telling him to
give him the pen, or taking the pen. Appellant also denied that he
stated, “Give me the pen, or I’ll stab you with it,” that he
grabbed Student 1 by the shoulder or shirt collar, and that he took
the pen from Student 1.
{¶16} Appellant explained that when he spoke with Principal
Franke (1) appellant did not recall telling Student 1 he would stab
him, and (2) he disputed that he told Franke that, if he did make a
comment about stabbing, it was a joke. Appellant acknowledged that
he told Franke he did not put his hands on Student 1, and also
disputed that he told Franke that, if he had put his hands on
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Student 1, it would have been on his shoulder to “set him down.“
Appellant also acknowledged his 1992 Florida misdemeanor cannabis
charge, his 1997 disorderly conduct conviction, and his 2008
misdemeanor sale of alcohol to a minor charge.
{¶17} On direct examination, appellant testified he is 69 years
old, has been a substitute teacher for approximately nine years in
various school districts, and has substituted over 500 times from
fourth through twelfth grades. When asked if he told Student 1 he
would stab him, appellant denied doing so and stated, “I said I
would grab his leg. I did not say I would stab him.”
{¶18} Appellant further testified that after Student 1 “got up,
went over to the next group of desks, jerked the girl’s paper out
of her hand, and started writing her answers on his,” he told
Student 1, “you need to sit back down, son,” but Student 1 “just
ignored me, and walked around the room, took a couple more kids’
papers, wrote their answers down.” Appellant said, “‘Student 1,
you need to have a seat’ and I got up and walked around * * * the
block of tables.” When appellant came within 8-9 feet from Student
1, “[Student 1] took off. He went flying over there and round the
other group of desks and started pulling other kids’ papers and
writing their answers down. He was copying.” Appellant stated
that, after he talked to a couple of other students, he turned
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around and Student 1 “had his back to me right in front of me,”
about “3 feet maybe” away. Appellant “crossed [his] arms and went
boom, boom, boom” on Student 1’s shoulder while Student 1’s back
was to him. Student 1 ignored him, so appellant:
[d]id it a second time. After I did it the
second time, he [Student 1] turned around, looked
at me and went, ‘Ahhhhhh’ and just fell on the
floor. I went, ‘What is going on?’ And he put
his feet up in the air to kick me, laying [sic.]
flat on his back, had his feet up, and I had - -
like I said, I had injuries from construction.
My knee was wrapped in an Ace bandage, so it was
bothering me all day. I thought he was going to
kick me in the knee. And I looked down at him
and said, ‘[Student 1], don’t make me grab you
in the leg.’ And he put his feet down. Then I
said, ‘Get back in your seat,’ * * * I reached
my hand down. He grabbed it and pulled himself
up, walked over and sit [sic.] down at his desk.
Two minutes later, the bell went off.
{¶19} Appellant left a note for the regular teacher (Ms.
Canter) about the day and informed her that Student 1 had been
“totally out of control.” Appellant also said he wanted to ask
Principal Franke whether Student 1 was “on Ritalin or something,”
but Franke was not in his office. A couple of days later, Franke
called appellant to explain the incident, but appellant said “I
just couldn’t recall what was going on.” Appellant also received a
call from ODE about the incident, but he was not permitted to
testify about the contents of the call.
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{¶20} Appellant stated that, prior to his first substitute
license in 2004, ODE inquired about his 1992 Florida charge.
Apparently, ODE found his explanation sufficient and issued his
first license. ODE also called appellant in 2017 when he applied
for the five-year license. After appellant explained the Florida
charge, the ODE representative said, “That’s exactly what you said
before,” and reissued his license.
{¶21} After hearing the evidence, the hearing officer filed her
report and recommendation and noted that the standard of proof in
administrative cases is a preponderance of the evidence.
Concerning Counts 2-4, the officer found that, although ODE proved
the existence of a couple misdemeanor violations, if ODE
“determined in 2008 that appellant’s past court involvement was not
of sufficient import to preclude the issuance of a license, the
convictions cannot now be the basis for action against his license
retrospectively.”
{¶22} Regarding Count 1, the hearing officer observed that,
although the students did not give precisely the same details,
“their accounts are substantially the same regarding the physical
contact with Student 1’s neck and the word “stab.” She further
noted that appellant “has given varied accounts of what took place.
For example, “[w]hen interviewed by Mr. Franke, Mr. Bennett could
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not remember much about the incident, other than he might have
placed his hand on Student 1 to guide him; if he said, ‘stab,’ he
was only joking.” Further, early in the hearing appellant
testified he did not remember the toy pen, but later stated that
Student 1 walked around the classroom, clicked the toy pen and
acted in a disruptive manner. Thus, the hearing officer “did not
find Mr. Bennett’s testimony regarding the incident to be
credible,” and determined that ODE had proven, by a preponderance
of the evidence, that appellant’s conduct constitutes “conduct
unbecoming a teacher, as set forth in Count 1 of ODE’s Notice, in
violation of R.C. 3319.31(B)(1).” The hearing officer further
concluded that appellant’s misconduct merited the revocation of his
teaching credential and, pursuant to Ohio Admin.Code 3301-73-
22(A)(2)(a), a prohibition from reapplication for his credentials
for a period of time. However, because almost three years had
passed since the 2017 incident, the officer limited that period to
one year with reapplication contingent on the completion of
classroom management training and anger management training.
{¶23} After review, the State Board of Education accepted the
hearing officer’s report and recommendation to revoke appellant’s
substitute career technical teaching license. Appellant appealed
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the resolution to the Scioto County Common Pleas Court and the
court affirmed the Board’s actions. This appeal followed.
Standard of Review
{¶24} In general, in an R.C. 119.12 an administrative appeal a
trial court reviews an administrative agency’s order to determine
whether the order is supported by reliable, probative, and
substantial evidence and is in accordance with law. In the absence
of such a finding, the court 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.
R.C. 119.12. Thus, a reviewing trial court is obligated to uphold
an order if supported by reliable, probative, and substantial
evidence and is in accordance with law. Id.; In re Williams, 60
Ohio St.3d 85, 86, 573 N.E.2d 638 (1991); Pons v. Ohio State Med.
Bd., 66 Ohio St.3d 619, 621, 614 N.E.2d 748 (1993). “‘Reliable’
evidence is dependable or trustworthy; ‘probative’ evidence tends
to prove the issue in question and is relevant to the issue
presented; and ‘substantial’ evidence carries some weight or
value.” Ohio Civ. Rights Comm. v. Case W. Res. Univ., 76 Ohio
St.3d 168, 178, 666 N.E.2d 1376 (1996), citing Our Place, Inc. v.
Ohio Liquor Control Comm., 63 Ohio St.3d 570, 571, 589 N.E.2d 130316
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(1992); Washington Cty. Home v. Ohio Dept. of Health, 179 Ohio
App.3d 78, 2008-Ohio-4342, 896 N.E.2d 1011, ¶ 20-23 (4th Dist.).
{¶25} When undertaking a review of an administrative agency’s
order of adjudication, a court of common pleas acts in a limited
appellate capacity. See Univ. Hosp. of Cincinnati College of
Medicine v. State Emp. Relations Bd., 63 Ohio St.3d 339, 343, 587
N.E.2d 835 (1992), citing Andrews v. Bd. of Liquor Control, 164
Ohio St. 275, 279-280, 131 N.E.2d 390. In undertaking this review,
a trial court “must give due deference to the administrative
resolution of evidentiary conflicts.” Univ. of Cincinnati v.
Conrad, 63 Ohio St.2d 108, 111, 407 N.E.2d 1265 (1980). However,
“the findings of the agency are by no means conclusive.” Id.Where the court, in its appraisal of the evidence,
determines that there exist legally significant reasons
for discrediting certain evidence relied upon by the
administrative body, and necessary to its determination,
the court may reverse, vacate, or modify the administrative
order. Thus, where a witness’ testimony is internally
inconsistent, or is impeached by evidence of a prior
inconsistent statement, the court may properly decide that
such evidence should be given no weight. Likewise, where
it appears that the administrative determination rests upon
inferences improperly drawn from the evidence adduced, the
court may reverse the administrative order.
Id. at 111-112.
{¶26} With respect to the role of appellate courts undertaking
a review of a trial court’s review of an administrative agency’s
order, the appellate court’s review is even more limited. While a
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trial court must examine the evidence, this is not the appellate
court’s function. Instead, an appellate court determines whether a
trial court abused its discretion. Absent an abuse of discretion,
a court of appeals may not substitute its judgment for the
administrative agency or a trial court. Instead, an appellate
court must affirm the trial court’s judgment. Lorain City School
Dist. Bd. of Edn. v. State Emp. Relations Bd., 40 Ohio St.3d
257,260-261, 533 N.E.2d 264 (1988); see also Henry’s Café, Inc. v.
Bd. of Liquor Control, 170 Ohio St. 233, 163 N.E.2d 678 (1959).
{¶27} Consequently, an appellate court’s standard of review is
limited to a determination of whether a trial court abused its
discretion. Mathews v. Ohio State Liquor Control Comm., 10th Dist.
Franklin No. 04AP-46, 2004-Ohio-3726, ¶ 11. An abuse of discretion
implies that a trial court’s attitude was unreasonable, arbitrary,
or unconscionable. Landis v. Grange Mut. Ins. Co., 82 Ohio St.3d
339, 342, 695 N.E.2d 1140 (1998); Malone v. Courtyard by Marriott
L.P., 74 Ohio St.3d 440, 448, 659 N.E.2d 1242 (1996). However,
appellate courts will exercise independent judgment concerning
purely legal issues. VFW Post 8586 v. Ohio Liquor Control Comm.,
83 Ohio St.3d 79, 81-82, 697 N.E.2d 655 (1998).
I.
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{¶28} In his first assignment of error, appellant asserts that
the trial court’s failure to consider all of the evidence and, in
particular, the failure to require the administrative agency to
produce all of the evidence, constitutes abuse of discretion.
Specifically, appellant contends that his defense had been
improperly limited in light of the failure to: (1) order interviews
of all potential witnesses, (2) order potential witnesses be
available to interview, (3) order appellee to produce appellant’s
previously recorded statement2 as an exhibit, (4) permit appellant
to subpoena Attorney Samuel Dunsky (whom appellant alleges recorded
appellant’s statement), (5) permit appellant to testify about his
statement given to Dunsky, and (6) permit appellant to call Dunsky
as a witness.
{¶29} Appellant contends the trial court erred when it affirmed
the decision to not order interviews of all potential witnesses.
In other words, appellant appears to argue that appellee deprived
appellant of due process when it did not call every potential
witness. However, as appellee points out, the identities of the
student witnesses were available to appellant. Moreover, appellant
2
Appellant and the trial court refer to appellant’s
interview with Dunsky as “under oath,” but the record does not
confirm this designation.
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cites no authority to support his argument that ODE is required to
interview or to call every potential witness in its case-in-chief.
{¶30} Appellant’s other arguments relate to what the hearing
officer and trial court concluded constitute R.C. 3319.311
confidential investigative records. Appellant asserts that the
failure to (1) produce appellant’s initial statement to ODE Staff
Attorney Samuel Dunsky as an exhibit, (2) permit him to subpoena
Dunsky (who recorded the statement), (3) permit appellant to
testify about his “under-oath statement” to Dunsky, and (4) permit
appellant to call Dunsky as a witness all constitute reversible
error.
{¶31} The trial court, however, concluded that the subpoenas
could properly be quashed and noted that “[t]he ability to limit or
quash subpoenas must necessarily be inferred from the power to
issue subpoenas ‘[f]or the purpose of conducting any adjudication
hearing.’” Clayton v. Ohio Bd. of Nursing, 147 Ohio St.3d 114,
2016-Ohio-643, 62 N.E.3d 132, ¶ 33, citing R.C. 119.09. The court
agreed with the hearing officer’s conclusion that appellant’s
statement made during ODE’s investigation are confidential pursuant
to R.C. 3319.311(A)(1), which provides: “Except as provided in
division (A)(2) of this section, all information received * * * and
all information obtained during an investigation is confidential
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and is not a public record under section 149.43 of the Revised
Code.” In addition to R.C 3319.311(A)(1), the Ohio Administrative
Code contains two regulations that speak about subpoenas for
confidential department records. Ohio Adm.Code 3301-73-13(F) and
(I) state: “(F) Upon motion and for good cause, the hearing officer
may order any subpoena be quashed. * * * (I) Respondents do not
have the right to request the superintendent to issue subpoenas for
the department’s records that are confidential under section
3319.311 of the Revised Code.” Finally, Ohio Adm. Code 3301-73-
04(A) provides that with certain exceptions, “[a]ll information
obtained during an investigation is confidential and is not a
public record under section 149.43 of the Revised Code * * *.”
{¶32} “‘An Ohio Administrative Code section is a further arm,
extension, or explanation of statutory intent implementing a
statute passed by the General Assembly.’” Belinky v. Drake Ctr.,
Inc., 117 Ohio App.3d 505-506, 690 N.E.2d 1302 (1st Dist.1996),
quoting State ex rel. Meyers v. State Lottery Comm., 34 Ohio App.3d
232, 234, 517 N.E.2d 1029 (6th Dist.1986). Further, a rule
implemented as an extension of a statute has the full force and
effect of a statute unless it is unreasonable or conflicts with a
statute that covers the same subject matter. See Washington Cty.
Home, supra, 178 Ohio App.3d 78, 2008-Ohio-4342, 896 N.E.2d 1011, ¶
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37, citing State ex rel. Celebrezze v. Natl. Lime & Stone Co., 68
Ohio St.3d 377, 382, 627 N.E.2d 538 (1994).
{¶33} In the case sub judice, the trial court observed that
appellant attempted to subpoena the investigation attorney in order
to elicit evidence concerning appellant’s prior statement. The
court concluded, however, that the decision to grant the motion to
quash the subpoenas for Attorney Samuel Dunsky and State Board of
Education Superintendent Paolo DeMaria could be deemed to be R.C.
3319.311 confidential material. Consequently, the court concluded
that quashing the subpoenas and failing to disclose the
investigative material did not deny appellant a full and fair
hearing. The court further observed that the hearing officer heard
testimony from 7 witnesses and admitted 19 exhibits. The witnesses
included three students who observed the incident, appellant, and
Principal Franke, who investigated the incident for the local
school district. The court pointed out that the hearing officer
apparently found the testimony of the students and Franke more
credible than appellant’s testimony, and that the court must accept
the hearing officer’s credibility determination. Sohi v. Ohio State
Dental Bd., 130 Ohio App.3d 414, 424, 720 N.E.2d 187 (1st
Dist.1998) (trial courts give due deference to board findings
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concerning conflicting testimony and must not substitute own
judgment for credibility determinations).
{¶34} Thus, the trial court determined that, based on the
parties’ briefs and arguments, “reliable, probative, and
substantial” evidence supports ODE’s decision and is in “accordance
with law.” The court concluded that R.C. 3319.311 protects as
confidential investigative material the material appellant sought.
Although administrative rules prevent obtaining those records in an
administrative hearing, the court opined:
In the review of this matter, it is troubling the ease with
which the Department may use one statement of Bennett
obtained in its investigation which is damning and suppress
another statement by Bennett which is beneficial, albeit
of slight worth given the length of time between the
incident and when the statement was given. However, that
is the system created by the General Assembly, which makes
investigations of this nature confidential.
{¶35} In general, the primary goal of statutory construction is
to determine and give effect to the General Assembly’s intent in
enacting the statute. Brooks v. Ohio State Univ., 111 Ohio App.3d
342, 349, 676 N.E.2d 162 (10th Dist.1996). Appellate courts first
look to a statute’s plain language and apply it as written if the
meaning is unambiguous. Beckett v. Warren, 124 Ohio St.3d 256,
2010-Ohio-4, 921 N.E.2d 624, ¶ 15, citing State v. Lowe, 112 Ohio
St.3d 507, 2007-Ohio-606, 861 N.E.2d 512, ¶ 9. See also Portage
Cty. Bd. of Commrs. v. Akron, 109 Ohio St.3d 106, 2006-Ohio-954,
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846 N.E.2d 478, ¶ 52, State ex rel. Savarese v. Buckeye Local
School Dist. Bd. of Edn., 74 Ohio St.3d 543, 545, 660 N.E.2d 463(1996); State ex rel. Burrows v. Indus. Comm., 78 Ohio St.3d 78,
81, 676 N.E.2d 519 (1997).
{¶36} Here, the language in R.C. 3319.311(A)(1) is clear - all
information obtained during ODE’s investigation is confidential.
The Ohio Administrative Code makes it even clearer - Ohio Adm.Code
3301-73-13 allows a hearing officer to order any subpoena quashed,
and Ohio Adm.Code 3301-73-04 echoes R.C. 3319.311(A)(1) in that all
information obtained during an investigation is confidential.
Although we understand and appreciate appellant’s and the trial
court’s disdain for this particular procedure, as the trial court
stated courts must apply the law as written. “[T]he General
Assembly is responsible for weighing [policy] concerns and making
policy decisions; we are charged with evaluating the
constitutionality of their choices.” Arbino v. Johnson & Johnson,
116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, ¶ 113; Groch v.
Gen. Motors. Corp, 117 Ohio St.3d 192, 2008-Ohio-546, 833 N.E.2d
377, ¶ 212. R.C. 3319.311(A)(1) is not ambiguous. Here, the
statute unambiguously provides that the investigative records
appellant sought are confidential records. Although some may not
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agree with a statute’s content, the legislature, within the
constitutional framework, determines policy concerns.
{¶37} Therefore, based on the foregoing reasons, we conclude
that the trial court did not abuse its discretion and we overrule
appellant’s first assignment of error.
II.
{¶38} In his second assignment of error, appellant asserts that
the trial court erred in its determination that ODE’s decision did
not violate appellant’s substantive due process rights.
{¶39} Notice and an opportunity to be heard is a fundamental
requirement of due process. Griffin v. State Med. Bd. of Ohio,
10th Dist. Franklin No. 11AP-174, 2011-Ohio-6089, ¶ 22; Corn v.
Ohio State Med. Bd., 61 Ohio App.3d 677, 684. 573 N.E.2d 1100 (10th
Dist.1988). With regard to the case sub judice, R.C. 119.07
requires the State Board of Education to provide appellant with
sufficient notice of the charges against him. Geroc v. Ohio
Veterinary Med. Bd., 37 Ohio App.3d 192, 199, 525 N.E.2d 501 (8th
Dist.1987). In addition, the right to a hearing includes the right
to appear at the hearing prepared to defend oneself through
testimony, evidence, or argument against the charges brought.
Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313, 70
S.Ct. 652, 94 L.Ed. 865 (1950); Sohi, 130 Ohio App.3d at 422;
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Johnson v. State Med. Bd. of Ohio, 10th Dist. Franklin No. 98AP-
1324, 2000 WL 192374 (Sept. 28, 1999). Thus, an administrative
agency cannot revoke or suspend a professional license without
safeguarding a respondent’s statutory and due process rights.
Sohi, 130 Ohio App.3d at 422.
{¶40} Interestingly, the rules of civil procedure do not apply
in administrative proceedings. “Something less than a full
evidentiary hearing is generally sufficient in an administrative
action.” Froug v. Ohio Bd. of Nursing, 10th Dist. Franklin No.
00AP-523, 2001 WL 82926 (Feb. 1, 2001), *3, citing Johnson supra.An administrative board meets “its duty as to ‘discovery’ by
supplying [a licensee] with sufficient information enabling him [or
her] to properly respond to the charges.” Carratola v. Ohio State
Dental Bd., 9th Dist. Summit No. 18658, 1998 WL 225033 (May 6,
1998), quoting Miccichi v. Ohio State Dental Bd., 5th Dist.
Tuscarawas No. 86AP-080063, 1997 WL 11070 (May 4, 1987). See also
Froug, supra, at 3, citing Ohio State Bd. of Pharmacy v. Frantz, 51
Ohio St.3d 143, 555 N.E.2d 630 (1990), paragraph one of the
syllabus; State Med. Bd. of Ohio v. Murray, 66 Ohio St.3d 527, 535,
613 N.E.2d 636 (1993).
{¶41} Appellant points to Sohi’s admonition that “[p]rocedural
due process also embodies the concept of fundamental fairness.”
[Cite as Bennett v. Ohio Dept. of Edn., 2022-Ohio-1747.]
Sohi, 130 Ohio App.3d at 422. Sohi, however, holds that due
process requires an agency to provide a respondent with sufficient
notice of the charges and an opportunity to be heard. Id. In the
case at bar, the notice appellant received included specific
allegations and a confidential key that identified the witness. In
addition, the notice provided the names of the other witnesses in a
supplemental confidential key. At the hearing, appellant had the
opportunity to cross-examine ODE witnesses and to provide his own
testimony and exhibits. Thus, appellant did receive notice and the
opportunity to be heard.
{¶42} Appellant further asserts that appellee prevented him
from subpoenaing Ms. Canter, the regularly assigned teacher, and
that Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287(1970) holds that due process requires a “timely and adequate
notice detailing the reasons for a proposed termination, and an
effective opportunity to defend by confronting any adverse
witnesses and by presenting his own arguments and evidence orally.”
Id. at 267-268. Our review of the record, however, does not
support appellant’s contention that appellee prevented him from
subpoenaing witnesses, other than the agency’s investigation
attorney and staff attorney.
[Cite as Bennett v. Ohio Dept. of Edn., 2022-Ohio-1747.]
{¶43} In the case sub judice, ODE sent a Notice of Opportunity
for Hearing to appellant to notify him that the Board intended to
determine whether to limit, suspend, revoke or permanently revoke
his five-year substitute career technical license. Although ODE
notified appellant it would present evidence on five claims, it
later amended its notice to remove the fifth claim. The notice
further informed appellant that his alleged misconduct violated
R.C. 3319.31(B)(1) and notified him he was entitled to a hearing if
he so requested. Our review reveals that appellant did receive the
due process protections generally afforded in administrative agency
proceedings. While everyone may not agree with every aspect of the
truncated nature of the administrative agency determination process
in Ohio, once again this is the particular system that the
legislature has chosen to implement.
{¶44} Accordingly, based upon the foregoing reasons, we agree
with the trial court’s conclusion, overrule appellant’s second
assignment of error and affirm the trial court’s judgment.
JUDGEMENT AFFIRMED.
SCIOTO, 21CA3948
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JUDGMENT ENTRY
It is ordered that the judgment be affirmed. Appellee shall
recover of appellant the 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 Scioto County Common Pleas Court to carry this
judgment into execution.
A certified copy of this entry shall constitute that mandate
pursuant to Rule 27 of the Rules of Appellate Procedure.
Smith, P.J. & Wilkin, J.: Concur in Judgment & Opinion
For the Court
BY:____________________________
Peter B. Abele, 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.
SCIOTO, 21CA3948
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