# Zedaker v. State Med. Bd.

> Ohio Court of Appeals · December 31, 2024 · 2024 Ohio 6108

URL: https://www.frixlaw.com/law-library/cases/10772815

## Case

- **Court:** Ohio Court of Appeals
- **Decided:** December 31, 2024
- **Citations:** 2024 Ohio 6108
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Dorrian
- **Cited by:** 1 later opinions in the Frix Law Library

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## Opinion text

[Cite as Zedaker v. State Med. Bd., 2024-Ohio-6108.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

James Zedaker, :

Appellant-Appellant, :

v. : No. 24AP-244
(C.P.C. No. 23CV-6056)
State Medical Board of Ohio, :
(REGULAR CALENDAR)
Appellee-Appellee. :

D E C I S I O N

Rendered on December 31, 2024

On brief: Graff & McGovern, L.P.A., and Brandon M. Smith,
for appellant. Argued: Brandon M. Smith.

On brief: Dave Yost, Attorney General, and Kyle C. Wilcox,
for appellee. Argued: Kyle C. Wilcox.

APPEAL from the Franklin County Court of Common Pleas

DORRIAN, J.
{¶ 1} Appellant, James Zedaker, appeals from a judgment of the Franklin County
Court of Common Pleas affirming an order of appellee, State Medical Board of Ohio
(“Board”), suspending his license to practice as a physician assistant (“PA”) for six months,
imposing a $1000 fine, and placing his license on probation, subject to certain conditions,
for a minimum of one year. For the following reasons, we affirm.
I. Facts and Procedural History
{¶ 2} Appellant obtained an Ohio license to practice as a PA in 2004 and has
renewed his license every two years since that time. He is also actively licensed as a PA in
Florida and California. In January 2016, he was hired by Florida State University (“FSU”)
to develop an accredited PA training program; the program began in fall 2017.
No. 24AP-244 2

{¶ 3} By letter dated November 5, 2021, FSU informed appellant that he was the
subject of a formal sexual misconduct investigation based on complaints by FSU
employees. On November 29, 2021, appellant was interviewed by FSU investigators about
the allegations. On December 2, 2021, appellant submitted an online application seeking
to renew his Ohio PA license. As relevant here, in the renewal application, he answered
“No” when asked “[a]t any time since signing your last application for renewal of your
certificate have you been investigated, warned, censured, put on probation, terminated, or
disciplined by any employer, hospital, group, practice, nursing home, clinic, health
maintenance organization, or other similar institution, for any reason?” (Record of
Proceedings, Dec. 2, 2021 License Renewal App., State’s Ex. 3 at 6.)
{¶ 4} By notice dated April 13, 2022, the Board informed appellant that it would
determine whether to take disciplinary action against his license to practice as a PA for the
following reason:
(1) On or about December 2, 2021, you submitted an online
application to renew your license to practice as a physician
assistant [Application]. On your Application, you answered
“no” to two questions regarding being involved in any
investigations since signing your last application for renewal.
In fact, you were notified of a pending investigation at Florida
State University on November 5, 2021, and were interviewed
as part of the investigation on November 29, 2021.

Your acts, conduct, and/or omissions as alleged in paragraph
(1) above, individually and/or collectively, constitute
“[m]aking a false, fraudulent, deceptive, or misleading
statement in soliciting or advertising for employment as a
physician assistant; in connection with any solicitation or
advertisement for patients; in relation to the practice of
medicine as it pertains to physician assistants; or in securing
or attempting to secure a license to practice as a physician
assistant, as that clause is used in Section 4730.25(B)(8), Ohio
Revised Code.

(Record of Proceedings, Oct. 24, 2022 Notice, State’s Ex. 1(a).)
{¶ 5} Appellant requested and received an adjudicatory hearing. At that hearing,
held before a Board hearing examiner on October 24, 2022, appellant testified he received
the November 5, 2021 letter from FSU and was thus aware that he was under investigation
related to allegations of sexual misconduct made by FSU employees; he further
No. 24AP-244 3

acknowledged that he hired legal counsel approximately one week later to defend him.
When asked by the assistant attorney general whether he was interviewed by FSU
investigators pursuant to that investigation, counsel for appellant objected and requested
that the assistant attorney general “establish timelines per the question so that the record
is clear what was in my client’s head and on what dates so that it’s not just a blurring or a
merging.” (Record of Proceedings Tr. at 25.) In response, the assistant attorney general
asked appellant to identify a section of State’s exhibit 5 establishing that as part of the
investigation, he was interviewed by FSU investigators on November 29, 2021. State’s
exhibit 5 consists of FSU’s investigative file, an 86-page document which includes an 8-
page investigative summary dated January 4, 2022, along with several attachments. The
attachments include a written statement from one of appellant’s alleged accusers,
investigator notes from appellant’s November 29, 2021 interview, investigator notes from
interviews of appellant’s alleged accusers, and samples of text messages sent between
appellant and an alleged accuser.
{¶ 6} Appellant averred that he was “pretty much * * * kept in the dark as to what
the investigation was.” (Record of Proceedings Tr. at 27.) In response to that statement,
the assistant attorney general asked appellant to identify portions of State’s exhibit 5 setting
forth his responses to questions posed by the FSU investigators. Appellant ultimately
agreed that he understood from the interview that he was being investigated about his
employment at FSU and his relationships with employees.
{¶ 7} Appellant further testified that in the December 2, 2021 Ohio license renewal
application, he answered no when asked if at any time since signing his last renewal
application he had been investigated for any reason by any employer. Appellant averred
that he knowingly answered no to the question because it was an accurate answer “for the
time it was answered.” (Record of Proceedings Tr. at 40.) Appellant explained that he
answered as he did because he interpreted the word “investigated” as pertaining to
investigations having been conducted in the past rather than being presently conducted.
Appellant clarified:
To me, investigated is past tense. And I was - - in the middle
of this [investigation]. So this was not an intent to mislead.
This was just me reading the words that were there. And
investigated is past tense. And I read this as, you know, I was
No. 24AP-244 4

in the middle of something; not having been investigated, I
was being investigated.

(Record of Proceedings Tr. at 41.)
{¶ 8} Appellant acknowledged that the question does not ask whether a past
investigation had been completed; however, he reiterated that the question “uses past tense
words” and that the investigation by FSU “was not completed, and so I didn’t look at this as
I’ve been investigated.” (Record of Proceedings Tr. at 42.) He further acknowledged that
he was under investigation by FSU at the time he completed the license renewal application.
He averred that had the question asked if he was “currently under investigation,” he would
have answered yes. (Record of Proceedings Tr. at 54-55.)
{¶ 9} At the conclusion of appellant’s testimony, the state moved to admit State’s
exhibit 5 for the purpose of establishing dates related to the investigation, such as when
appellant was notified of the investigation and when he was interviewed by FSU
investigators. Counsel for appellant objected on grounds that the file included disparaging
information about appellant unrelated to the proceedings at issue. The hearing examiner
admitted State’s exhibit 5 “for the purpose of which it is being offered.” (Record of
Proceedings Tr. at 66.)
{¶ 10} After a brief recess, the hearing examiner offered the following clarification
regarding admission of State’s exhibit 5:
I do want to make a clarification. I’m looking at the notice
letter, which is Exhibit 1a, and the notice letter is about a
possible [R.C. 4730.25](B)(8) violation on the renewal
application and is answered no -- Mr. Zedaker’s answer to no
[sic] to two questions. And Exhibit 5 was offered, my
understanding - - and I’ll give the parties the chance to
address this after I’m done - - was being offered solely as to - -
for the purposes of the dates of - - of when the investigation
was occurring and when he - - when Mr. Zedaker was
interviewed by the Florida officials.

And I allowed the introduction of Exhibit 5 - - State’s Exhibit
5 for the purposes of establishing when particular things
happened during the investigation. And that’s the only
purpose that I’m allowing Exhibit 5 into the record. I don’t -
- I’m not considering a lot - - for the purposes of the report
and recommendation, a lot of the other things that are said in
Exhibit 5 about the allegations of sexual harassment because
No. 24AP-244 5

that was not the stated purpose of the document being
introduced. But I am allowing it for the purposes of how when
[sic] the investigation was being conducted by Florida State.
So that’s my ruling.

Of course, the Board will review my -- both my factual findings
and my legal decisions, but the - - that’s - - so I’m allowing
Exhibit 5 - - State’s Exhibit 5 but for only those purposes.

(Record of Proceedings Tr. at 67-68.)
{¶ 11} Thereafter, counsel for appellant renewed the objection to consideration of
State’s exhibit 5 for any reason.
{¶ 12} On July 13, 2023, the hearing examiner issued a report and recommendation,
finding that appellant’s explanation for his answer to the question in the license renewal
application was not credible. The hearing examiner reasoned:
[T]his question clearly calls for the disclosure of an
investigation. * * * It specifically calls for any investigations
conducted by his employer. Mr. Zedaker had not only recently
been notified about an investigation but had answered
questions by FSU officials in the presence of his attorney just
days before he submitted his renewal application. The
question essentially asked, “have you been investigated…by
any employer…since signing your last application for
renewal[.]” The obvious answer to that question, under Mr.
Zedaker’s circumstances, was “Yes.” Mr. Zedaker claimed that
because the question utilized the past tense when is [sic] said
“investigated,” instead of calling for an ongoing investigation,
that he was justified in stating “No” to this question. This is
simply not credible. The question was obviously calling for
any investigation by any employer—not just investigations
that had been concluded before he filled out his renewal
application. Furthermore, having heard Mr. Zedaker’s
testimony, coupled with observing his demeanor when
testifying, the Hearing Examiner finds this part of his
testimony regarding the past tense of the word “investigated”
to be incredulous. Even if the notice letter lacked sufficient
factual details, he had just been interviewed by FSU officials
extensively about the underlying allegations just days before
he submitted his renewal application. The fact that he insisted
at the hearing that his interpretation was justifiable is further
troubling. Based on the following, the Hearing Examiner finds
that Mr. Zedaker intended to mislead the Board when he
answered “No” to the second question at issue.
No. 24AP-244 6

(Record of Proceedings, July 13, 2023 Report & Recommendation at 12.)
{¶ 13} Thus, the hearing examiner concluded that appellant engaged in the conduct
alleged in the Board’s notice, which was sanctionable pursuant to R.C. 4730.25(B).1 The
hearing examiner recommended that appellant’s license be suspended for 6 months, he be
fined $1000, and he be placed on probation for a minimum of 1 year, with the condition
that he complete a professional ethics course and a professional boundaries in the
workplace course. In support of the recommended sanction, the hearing examiner averred:
As to the appropriate sanction, there are a few aggravating
factors. Mr. Zedaker clearly had a duty to be completely
candid with the Board in his renewal application and failed to
do so. Furthermore, at the hearing, he insisted he was justified
in his failure to disclose. In mitigation, this appears to be an
isolated incident, which is unlikely to reoccur. Furthermore,
he has been a PA for several years, and has no prior
disciplinary history. The Assistant Attorney General made no
recommendation as to an appropriate sanction.

As to the FSU investigation, the Hearing Examiner, in an
abundance of caution, ruled that he would allow St. Ex. 5 to
be introduced by the State, but would only consider it for
purposes of a timeline. Even assuming the findings in the FSU
investigation are true, his conduct at FSU does not appear to
violate R.C. 4730.25 et seq. However, the Hearing Examiner
does find that Respondent’s motivation for his failure to
disclose was his attempt to hide the investigation from the
Board due to the serious nature of the allegations. Although
the Hearing Examiner did not consider the findings of the
investigation in its determination of whether Respondent
violated R.C. 4730.24(B)(8) [sic], the “Board may consider
aggravating circumstances, including uncharged misconduct,
in determining the appropriate sanction for a member who
violates the rules of practice.” Froe[h]lich v. Ohio State Med.
Bd., 2016-Ohio-1035, 61 N.E.3d 568, ¶ 31 (10th Dist.2016).
Although the allegations and findings from the FSU
investigation are quite troubling, Mr. Zedaker’s ability to

1 In the renewal application, appellant also answered “No” when asked “[a]t any time since signing your last

application for renewal of your certificate have you been investigated, warned, censured, put on probation,
disciplined, or have had any charges, allegations or complaints filed against you, by any board, bureau,
department, agency, or any other body, including those in Ohio?” (Record of Proceedings, License Renewal
App. at 5.) The hearing examiner found that although appellant unreasonably responded “No” to this
question, the state was unable to prove that appellant violated R.C. 4730.25(B). This finding was based on
appellant’s testimony regarding his subjective understanding of the question and his misunderstanding of the
term “department” as used in the question. (Record of Proceedings, Report & Recommendation at 11-12.)
No. 24AP-244 7

participate in the investigation appeared circumvented: He
was not permitted to question his accusers/victims, he
allegedly did not get an opportunity to offer evidence, and
there did not appear to be any sort of official review of the
findings.

(Record of Proceedings, Report & Recommendation at 12-13.)
{¶ 14} On July 14, 2023, the hearing examiner issued an errata as to the “Procedural
Matters” section of the report and recommendation. The revised “Procedural Matters”
section provides:
The hearing was held using videoconferencing software.
During the hearing, the Respondent objected to State’s Ex. 5
as irrelevant because it involved uncharged conduct. (Tr. at
66.) At the hearing, the Hearing Examiner allowed it solely for
purposes of establishing a timeline of events. (Tr. 68-69.)
After deliberations, the Hearing Examiner additionally
considered notes taken from the Respondent’s FSU interview,
which was attached to Ex. 5, as to whether Respondent was
sufficiently apprised of the allegations of the investigation to
put him on notice he had an obligation to affirmatively answer
the two questions at issue, which goes to the core of the
Board’s charges against him. That being said, the Hearing
Examiner did not consider State’s Ex. 5 for purposes of
finding he violated the Board’s charges. However, the Hearing
Examiner did consider the limited testimony regarding the
allegations in determining the recommended sanction. (Tr. at
27-28.)

(Record of Proceedings, July 14, 2023 Errata for Report & Recommendation.)
{¶ 15} Appellant filed objections to the hearing examiner’s report and
recommendation. Appellant first objected to the hearing examiner’s admission and
utilization of State’s exhibit 5 on grounds that such violated his due process rights.
Appellant maintained that the notice of intent was constitutionally deficient because it
failed to adequately notify him of the Board’s intention to use the information contained in
State’s exhibit 5 against him. Appellant particularly noted the hearing examiner’s
statements regarding the “serious” and “troubling” nature of the allegations contained in
State’s exhibit 5 in enhancing the recommended sanction. (Record of Proceedings, Objs. at
2.) Appellant also objected to the hearing examiner’s findings of fact and conclusions of
law regarding his determination that appellant had the subjective intent to deceive the
No. 24AP-244 8

Board when responding in the negative to the question asking whether he had been
investigated by any employer since signing his last application for renewal. Appellant
pointed to his testimony that he read the question to refer to concluded investigations, not
ongoing investigations, and answered accordingly. He further noted in his testimony that
had the question asked about ongoing investigations directly, he would have disclosed the
investigation by FSU.
{¶ 16} At a Board meeting held on August 9, 2023, both appellant and his counsel
addressed the Board. The minutes of the Board meeting show that counsel reiterated the
legal arguments raised in the objections to the hearing examiner’s report and
recommendation, particularly noting the content of State’s exhibit 5, described by counsel
as laying out “salacious and unsubstantiated allegations against Mr. Zedaker which were
not the focus of the Notice of Opportunity for Hearing.” (Record of Proceedings, Bd.
Meeting Minutes at 2.) Counsel requested that if the Board issued any sanctions against
appellant, it do so without consideration of any of the evidence included in State’s exhibit
5. For his part, appellant stated he did not intend to mislead the Board. He explained that
between March 2020 and his December 2021 license renewal application, he was under a
great deal of stress due to his significantly increased workload, the suicides of a friend and
a student, his hospitalizations for dehydration, exhaustion and heart issues, and the
commencement of the FSU investigation. He further explained that he answered the
application question at issue as he interpreted it, i.e., he did not report the ongoing FSU
investigation because he felt the question was a past-tense question.
{¶ 17} The assistant attorney general also addressed the Board, arguing that the
question on the license renewal application asking if appellant had been investigated by his
employer was unambiguous. The assistant attorney general further argued that the fact
appellant appeared before the FSU investigative panel just a few days before completing
the license renewal application established that he lied on the application and evidenced
his intent to deceive the Board.
{¶ 18} Without any discussion regarding appellant’s case, the Board voted to adopt
the hearing examiner’s report and recommendation, including the proposed findings of
fact, conclusions of law and proposed order included therein. The Board issued its order
on August 9, 2023.
No. 24AP-244 9

{¶ 19} Appellant timely appealed the Board’s order to the common pleas court. On
March 11, 2024, the common pleas court issued a decision and judgment entry affirming
the Board’s order. The court concluded that the Board’s order “is supported by reliable,
probative and substantial evidence and is in accordance with law.” (Decision & Jgmt. Entry
at 11.)
II. Assignments of Error
{¶ 20} In a timely appeal, appellant advances the following two assignments of error
for our review:
I. The lower court abused its discretion when it determined
that the Board’s consideration of items outside of the notice
did not violate Mr. Zedaker’s due process rights and that the
order was issued in accordance with law.

II. The lower court abused its discretion when it determined
that the board proved Mr. Zedaker intended to mislead the
board and that the order is based on reliable, probative, and
substantial evidence and is in accordance with law.

III. Discussion
{¶ 21} Under R.C. 119.12, when a common pleas court reviews an order of an
administrative agency, it must consider the entire record to determine if the agency’s order
is supported by reliable, probative, and substantial evidence and is in accordance with law.
Applegate v. State Med. Bd. of Ohio, 10th Dist. No. 07AP-78, 2007-Ohio-6384, ¶ 10. “To
be ‘reliable,’ evidence must be dependable and true within a reasonable probability.” Id.,
citing Our Place, Inc. v. Ohio Liquor Control Comm., 63 Ohio St.3d 570, 571 (1992). “To
be ‘probative,’ evidence must be relevant, or, in other words, tend to prove the issue in
question.” Id., citing Our Place at 571. “To be ‘substantial,’ evidence must have importance
and value.” Id., citing Our Place at 571.
{¶ 22} On appeal to this court, however, the standard of review is more limited.
Unlike the court of common pleas, a court of appeals does not determine the weight of the
evidence. Coleman v. State Med. Bd. of Ohio, 10th Dist. No. 06AP-1299, 2007-Ohio-5007,
¶ 11, citing Rossford Exempted Village School Dist. Bd. of Edn. v. State Bd. of Edn., 63 Ohio
St.3d 705, 707 (1992). Rather than appraising the weight of the evidence, an appellate court
determines whether the common pleas court abused its discretion as to whether the
agency’s order is supported by reliable, probative, and substantial evidence. Id., citing Roy
No. 24AP-244 10

v. Ohio State Med. Bd., 80 Ohio App.3d 675, 680 (10th Dist.1992); Applegate at ¶ 11. An
abuse of discretion means that the court’s attitude is unreasonable, arbitrary, or
unconscionable. Coleman at ¶ 11, citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219
(1983). Absent an abuse of discretion, an appellate court must affirm the common pleas
court’s judgment, even if the appellate court would have concluded otherwise. Applegate
at ¶ 11, citing Lorain City School Dist. Bd. of Edn. v. State Emp. Relations Bd., 40 Ohio
St.3d 257, 261 (1988). However, on the question of whether the Board’s order is in
accordance with law, this court’s review is plenary. Coleman at ¶ 11, citing Univ. Hosp.,
Univ. of Cincinnati College of Medicine v. State Emp. Relations Bd., 63 Ohio St.3d 339,
343 (1992).
{¶ 23} For ease of analysis, we will address appellant’s assignments of error out of
order.
{¶ 24} In his second assignment of error, appellant contends the common pleas
court abused its discretion when it determined the Board met its burden of presenting
reliable, probative, and substantial evidence sufficient to prove the charges levied against
him. Specifically, appellant maintains the Board’s evidence did not support the conclusion
that he falsely responded to the question at issue on his December 2, 2021 renewal
application in an effort to mislead or deceive the Board.
{¶ 25} Pursuant to R.C. 4730.25(B)(8), the Board may discipline a PA for “[m]aking
a false, fraudulent, deceptive, or misleading statement * * * in securing or attempting to
secure a license to practice as a physician assistant.” The statute defines a “false, fraudulent,
deceptive, or misleading statement” as one that “includes a misrepresentation of fact, is
likely to mislead or deceive because of a failure to disclose material facts, is intended or is
likely to create false or unjustified expectations of favorable results, or includes
representations or implications that in reasonable probability will cause an ordinarily
prudent person to misunderstand or be deceived.” R.C. 4730.25(B)(8). In order to
discipline a PA under R.C. 4730.25(B)(8), the Board must prove that the PA intended to
mislead or deceive the Board. Menkes v. State Med. Bd., 10th Dist. No. 19AP-476, 2020-
Ohio-4656, ¶ 34 (construing analogous R.C. 4731.22(B)(5) applicable to physicians);
Accord Applegate at ¶ 12; Coleman at ¶ 12; Instanbooly v. Ohio State Med. Bd., 10th Dist.
No. 04AP-76, 2004-Ohio-3696, ¶ 15; Gipe v. State Med. Bd. of Ohio, 10th Dist. No. 02AP-
No. 24AP-244 11

1315, 2003-Ohio-4061, ¶ 64. A licensee’s intent to mislead or deceive the Board “may be
inferred from the surrounding circumstances, such as when a licensee clearly has
information which he fails to disclose in a response to a direct question.” Coleman at ¶ 12,
citing Webb v. State Med. Bd. of Ohio, 146 Ohio App.3d 621, 628 (10th Dist.2001). Accord
Applegate at ¶ 12; Instabooly at ¶ 16; Gipe at ¶ 64. “Thus, ‘[d]irect evidence of intent is not
necessary because intent may be inferred from the surrounding circumstances.’ ” Menkes
at ¶ 37, quoting Mansour v. State Med. Bd. of Ohio, 10th Dist. No. 17AP-615, 2018-Ohio-
2605, ¶ 19.
{¶ 26} In his renewal application, appellant denied that he had been investigated by
any employer since signing his last application for renewal. At the hearing, the Board
claimed that FSU’s November 5, 2021 letter informing appellant that he was under
investigation for alleged workplace sexual misconduct and its subsequent November 29,
2021 interview of appellant regarding those allegations constituted an investigation against
him by an employer that appellant should have disclosed. Appellant testified that he both
received the letter from FSU and was interviewed by FSU investigators prior to completing
the renewal application. However, he claimed he interpreted the term “investigated” as
meaning an investigation that had reached a conclusion, and because the FSU investigation
was still ongoing at the time he submitted his renewal application, he answered the
question truthfully and thus did not intend to mislead or deceive the Board.
{¶ 27} The hearing examiner’s report and recommendation sets forth a detailed and
exhaustive account of the evidence presented at the hearing, including appellant’s
testimony as to his interpretation of the term “investigated” and his explanation for not
disclosing the FSU investigation. The hearing examiner found appellant’s testimony and
explanation “simply not credible” and “incredulous.” (Record of Proceedings, Report &
Recommendation at 12.) In so determining, the hearing examiner noted appellant’s
“demeanor when testifying” and his “troubling” insistence that his interpretation was
justified. (Record of Proceedings, Report & Recommendation at 12.) Finding appellant’s
explanation not credible, the hearing examiner concluded appellant intended to mislead
the Board when answering no to the question on the renewal application. Appellant
reiterated his explanation at the Board hearing, stating he answered the question as he
No. 24AP-244 12

interpreted it, i.e., that the term investigated connoted a concluded investigation; as such,
he did not intend to deceive the Board in failing to report the ongoing FSU investigation.
{¶ 28} Essentially, appellant contends the hearing examiner and the Board should
have believed the explanation he provided regarding his answer to the question on the
renewal application. However, “[t]he board is under no obligation to believe [a licensee’s]
testimony den[ying] any intent to deceive.” (Internal quotations and citation omitted.)
Menkes at ¶ 37, quoting Mansour v. State Med. Bd. of Ohio, 10th Dist. No. 07AP-78, 2007-
Ohio-6384, ¶ 25. See also Bhama v. State Med. Bd. of Ohio, 10th Dist. No. 08AP-488,
2009-Ohio-819, ¶ 34 (“The board is not bound to accept a version of the facts that it does
not find credible where there is other evidence in the record to the contrary.”). Here,
appellant requests that we resolve factual conflicts in his favor, rehashing the same
arguments he presented both to the Board and the common pleas court. However, “[a]n
appellate court cannot second guess the Board’s credibility determinations.” Applegate at
¶ 21, citing Hoxie v. Ohio State Med. Bd., 10th Dist. No. 05AP-681, 2006-Ohio-646, ¶ 32.
Moreover, even if this court were inclined to assess appellant’s credibility, we cannot find
fault with the Board’s rejection of appellant’s explanation for answering as he did. As the
hearing examiner noted, the question at issue called for appellant’s disclosure of any
investigation conducted by his employer at any time after he signed his last application for
renewal. The question at issue is direct and straightforward and thus not subject to
interpretation by appellant. The renewal application made no provision for permitting
appellant to determine for himself the nature or scope of the information sought by the
Board with regard to investigations conducted by his employer. See Bhama at ¶ 34.
{¶ 29} Upon review of the record, we find that the evidence before the Board
demonstrates that when appellant completed the December 2, 2021 license renewal
application, he knew that he had been investigated by his employer for workplace
infractions since filing his last license renewal application. Nevertheless, he answered “no”
to a clear, unambiguous question that sought to ascertain that very information. Given this
reliable, probative, and substantial evidence, we conclude the common pleas court did not
abuse its discretion in finding that appellant intended to mislead or deceive the Board when
completing his December 2, 2021 license renewal application.
{¶ 30} Appellant’s second assignment of error is overruled.
No. 24AP-244 13

{¶ 31} In his first assignment of error, appellant contends the common pleas court
abused its discretion in determining that the Board did not violate his right to due process
when it disciplined him for uncharged misconduct.
{¶ 32} Both the Fourteenth Amendment to the United States Constitution and
Article I, Section 16, of the Ohio Constitution require that administrative proceedings
comport with due process. Macheret v. State Med. Bd. of Ohio, 188 Ohio App.3d 469,
2010-Ohio-3483, ¶ 24 (10th Dist.), citing Mathews v. Eldridge, 424 U.S. 319 (1976).
“Procedural due process requires administrative agencies to provide an individual with fair
notice of the precise nature of the charges that the agency will pursue at a disciplinary
hearing.” Id., citing Applegate at ¶ 23. “[T]he board’s notice is constitutionally sufficient
where the notice includes (1) the allegation against [the licensee], (2) the statute directly
involved, and (3) the reasons for the board’s proposed action.” Froehlich v. Ohio State Med.
Bd., 10th Dist. No. 15AP-666, 2016-Ohio-1035, ¶ 30, citing Gross v. Ohio State Med. Bd.,
10th Dist. No. 08AP-437, 2008-Ohio-6826, ¶ 24. “The question of whether due process
requirements have been satisfied presents a legal question we review de novo.” Seman v
State Med. Bd. of Ohio, 10th Dist. No. 19AP-613, 2020-Ohio-3342, ¶ 20, citing Flynn v.
State Med. Bd. of Ohio, 10th Dist. No. 16AP-29, 2016-Ohio-5903, ¶ 46. A licensee must
demonstrate that any violation of due process resulted in prejudice. Id. at ¶ 21, citing
Griffin v. State Med. Bd. of Ohio, 10th Dist. No. 11AP-174, 2011-Ohio-6089, ¶ 26.
{¶ 33} Appellant asserts that his due process rights were violated because the
April 13, 2022 notice failed to inform him that the Board intended to discipline him for the
alleged workplace sexual misconduct that motivated FSU to open an investigation against
him. Appellant contends that the Board’s notice included only a single allegation against
him, i.e., that despite being required to do so, he did not disclose the FSU investigation on
his renewal application. Appellant maintains that such was the only allegation he was
prepared to discuss and defend at the administrative hearing. Appellant contends that the
admission of State’s exhibit 5, the FSU investigative file, demonstrates that the Board
utilized the “salacious, prejudicial, allegations against Mr. Zedaker” contained in that
exhibit to deny his renewal application. (Appellant’s Brief at 9.)
{¶ 34} The hearing examiner consistently stated at the administrative hearing, in his
report and recommendation, and in the errata thereto that State’s exhibit 5 was admitted
No. 24AP-244 14

only for purposes of establishing a timeline of events related to the FSU investigation, i.e.,
when appellant was notified of the investigation and when he was interviewed by FSU
investigators. Further, in his report and recommendation and again in the errata thereto,
the hearing examiner expressly stated that he did not consider the findings of the FSU
investigation in the determination of whether appellant violated R.C. 4730.25(B)(8). As
such, appellant’s due process rights were not violated because appellant was not disciplined
for the disputed misconduct at FSU. See Applegate at ¶ 23. At most, the hearing examiner
simply viewed the disputed misconduct as further indication of appellant’s willingness to
lie to protect his own self-interest. Id.
{¶ 35} Moreover, this court has consistently found that the Board may consider
aggravating circumstances, including uncharged misconduct, during the administrative
hearing. Seman at ¶ 24, quoting Macheret at ¶ 28 (“ ‘[i]n setting the appropriate sanction
for the violations alleged and proven, the Board may, as it did, take into account aggravating
circumstances, including uncharged conduct.’ ”) Accord Froehlich at ¶ 31 (medical review
board may consider aggravating circumstances, including uncharged conduct, in
considering appropriate sanction). In his report and recommendation and errata thereto,
the hearing examiner expressly stated that he considered the uncharged misconduct only
in determining the appropriate sanction for the violation alleged and proven.
{¶ 36} At oral argument, appellant for the first time argued that the Board’s
requirement that appellant complete courses related to professional ethics and workplace
boundaries as part of the sanction violates this court’s holding in In re Eastway, 95 Ohio
App.3d 516 (10th Dist.1994), because that condition of probation is not supported by
reliable, probative, and substantial evidence. Appellant’s briefing reveals no reference to
Eastway. An appellate court will generally not consider an argument raised for the first
time at oral argument when a party had an opportunity to raise the issue in its brief. State
v. Clay, 10th Dist. No. 21AP-566, 2022-Ohio-2878, ¶ 18, citing Mun. Tax. Invest. L.L.C. v.
Northup Reinhardt Corp., 10th Dist. No. 19AP-26, 2019-Ohio-4867, ¶ 32, citing Serra v.
Serra, 1oth Dist. No. 15AP-528, 2016-Ohio-950, ¶ 16.
{¶ 37} Appellant’s first assignment of error is overruled.
No. 24AP-244 15

IV. Conclusion
{¶ 38} Having overruled appellant’s two assignments of error, we hereby affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
MENTEL, P.J., and EDELSTEIN, J., concur.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10772815. Public record. Not legal advice.