The opinion
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Brown, Appellant, v. Ohio Bureau of Employment Services,
Appellee.
[Cite as Brown v. Ohio Bur. of Emp. Serv. (1994), Ohio
St.3d .]
Public employment -- R.C. 124.34 -- Removal of Ohio Bureau of
Employment Services administrative assistant from office
-- Court of common pleas decision to reinstate
administrative law judge's recommendation of a ten-day
suspension supported by reliable, probative, and
substantial evidence, when.
(No. 93-924 -- Submitted May 16, 1994 -- Decided August 3,
1994.)
Appeal from the Court of Appeals for Marion County, No.
9-91-50.
Appellant, Larry J. Brown, was removed from his
appointment as an administrative assistant with the Ohio Bureau
of Employment Services ("OBES"), pursuant to R.C. 124.34, on
the grounds of insubordination, malfeasance, and neglect of
duty. Brown appealed to the State Personnel Board of Review.
An administrative law judge held a hearing and issued her
recommendation that the removal order be disaffirmed and that
appellant be given a ten-day suspension in lieu thereof. The
administrative law judge found appellant insubordinate for his
failure to surrender certain OBES documents requested by the
bureau's legal counsel during an internal investigation. The
board of review adopted the findings of the administrative law
judge but rejected the recommendation that appellant be given a
ten-day suspension. The board of review ordered that the
appellant be removed from his position as a classified employee
of OBES. The court of common pleas reviewed all the testimony
and concluded that the order and opinion of the board of review
to remove appellant were not supported by reliable, probative,
and substantial evidence. The court of common pleas reinstated
the administrative law judge's recommendation of a ten-day
suspension. The court of appeals reversed the judgment of the
court of common pleas and reinstated the board of review's
decision to remove appellant.
This matter is now before this court upon an allowance of
a motion to certify the record.
Cloppert, Portman, Sauter, Latanick & Foley Co., L.P.A.,
and Russell E. Carnahan; and Robert E. Wilson, for appellant.
Lee I. Fisher, Attorney General, and Cheryl J. Nester,
Assistant Attorney General, for appellee.
Francis E. Sweeney, Sr., J. The main issue is whether
the court of common pleas' decision to reinstate the
administrative law judge's recommendation of a ten-day
suspension for appellant's failure to surrender the OBES
documents was supported by reliable, probative, and substantial
evidence. For the following reasons, we find that it was
supported by reliable, probative, and substantial evidence and,
accordingly, we reverse the judgment of the court of appeals.
The evidence in the record demonstrates that an internal
investigation was commenced by OBES regarding a number of lease
agreements it executed over the years. One of the lease
agreements investigated was entered into by OBES and Ohio
Leasing Systems to have the Telecom Plus system installed at
the OBES Dublin Road office. Cynthia Kramer, then Chief Legal
Counsel and Director of the Employment Service Division of
OBES, conducted the investigation. Appellant served as an
assistant to the OBES deputy administrator. As part of his
responsibilities, Brown negotiated the lease agreement for the
Dublin Road facility.
During the investigation, Kramer asked appellant to meet
with her to discuss the lease agreement. At this meeting,
Kramer asked appellant if he had any documents relating to the
Dublin Road lease agreement. Appellant responded that he had
nothing in his possession other than copies of various
documents, and that the complete Dublin Road file would be in
the office of the telecommunication officer, Chester White.
During this meeting, appellant gave Kramer an overview of the
negotiations for the Dublin contract and a detailed account of
how the final contract came about. Following the meeting,
Kramer conferred with the Administrator of OBES and it was
determined that appellant be placed on administrative leave.
After appellant was placed on administrative leave, his desk
was searched and while some documents regarding
telecommunications companies were found, apparently no files or
original documents were found on or in his desk.
After a full evidentiary hearing, the administrative law
judge concluded that appellant "was at the very least negligent
in not surrendering the papers he had in his desk, even if they
were copies of another person's files." Further, the
administrative law judge concluded that: "While this merits
some discipline, removal is too harsh a penalty for this
isolated action." The administrative law judge recommended
appellant be given a ten-day suspension.
An administrative agency should accord due deference to
the findings and recommendation of its referee, especially
where there exists evidentiary conflicts, because it is the
referee who is best able to observe the demeanor of the
witnesses and weigh their credibility. Jones v. Franklin Cty.
Sheriff (1990), 52 Ohio St.3d 40, 43, 555 N.E.2d 940, 944. In
the present case, the board of review reviewed the report and
recommendation of the administrative law judge without
examining the record and then adopted her findings of fact but
not her recommendation.
After a more extensive review of the record the court of
common pleas determined that the board's decision did not give
due deference to the recommendation of its referee and was not
supported by reliable, probative, and substantial evidence.
See Univ. of Cincinnati v. Conrad (1980), 63 Ohio St.2d 108, 17
O.O.3d 65, 407 N.E.2d 1265. The court of common pleas noted
that there is no evidence that appellant at any time attempted
to conceal any relevant files. Further, a search of
appellant's desk revealed no files or original documents. This
corroborates his statement that all he had in his possession
were copies of documents.
Based on the above, we find that the decision of the court
of common pleas was supported by reliable, probative and
substantial evidence. Thus, the judgment of the court of
appeals is reversed and the decision of the trial court is
reinstated.
Judgment reversed.
A.W. Sweeney, Douglas, and Resnick, JJ., concur.
Moyer, C.J., and Pfeifer, J., dissent.
Wright, J., dissents with opinion.
Wright, J., dissenting. This case is an appeal of an
order by the State Personnel Board of Review (the "board") to
remove Larry J. Brown from his position as an Administrative
Assistant 4 with the Ohio Bureau of Employment Services. Brown
filed the appeal with the court of common pleas pursuant to
R.C. 119.12.
I
The fundamental flaw in the majority's opinion is the
majority's misstatement of the issue. The majority states that
the issue is whether the decision of the court of common pleas
is supported by reliable, probative, and substantial evidence.
R.C. 119.12 and the case law call for a different approach.
They require courts to determine whether the order of the State
Personnel Board of Review is supported by reliable, probative,
and substantial evidence. That we must look at the board's
order and not the court's decision is quite clear from the
language of R.C. 119.12, which states that the common pleas
court "may affirm the order of the agency *** if it finds ***
that the order is supported by reliable, probative, and
substantial evidence ***." (Emphasis added.)
Under previous decisions by this court, the board's order
removing Brown from his position must be upheld if the factual
basis for the order is supported by reliable, probative, and
substantial evidence and the order is in accordance with law.
See Pons v. Ohio State Med. Bd. (1993), 66 Ohio St.3d 619, 621,
614 N.E.2d 748, 750 ("a reviewing trial court is bound to
uphold the [agency's] order if it is supported by reliable,
probative, and substantial evidence, and is in accordance with
law. [Emphasis added.]"), and Henry's Cafe, Inc. v. Bd. of
Liquor Control (1959), 170 Ohio St. 233, 236, 10 O.O.2d 177,
179, 163 N.E.2d 678, 680 (if the court finds that the agency's
order is supported by reliable, probative, and substantial
evidence and is in accordance with the law, the court "can only
affirm and cannot reverse, vacate or modify"). Furthermore, in
an appeal under R.C. 119.12, the court of common pleas "has no
authority to modify a penalty that the agency was authorized to
and did impose, on the ground that the agency abused its
discretion." Henry's Cafe, supra, paragraph three of the
syllabus.
Without a doubt, Brown was removed from his position
pursuant to R.C. 124.34 because of his insubordinate behavior
in refusing to surrender documents necessary for an internal
investigation into telephone leases at OBES. Brown appealed to
the State Personnel Board of Review, and an administrative law
judge conducted a hearing on the matter. The administrative
law judge concluded: "I believe it is more likely than not that
the Appellant [Brown] was asked to surrender these papers and
resisted doing so. For that unwillingness to relinquish these
papers, Appellant must be deemed insubordinate."
As noted by the majority, the board should have deferred
to the administrative law judge's finding on this issue because
it involves an evidentiary conflict.1 When such a conflict
exists, deference to the administrative law judge is warranted
because it is the judge "who is best able to observe the
demeanor of the witnesses and weigh their credibility." Jones
v. Franklin Cty. Sheriff (1990), 52 Ohio St.3d 40, 43, 555
N.E.2d 940, 944. Adhering to this principle, the board did
defer to the administrative law judge by adopting the finding
that Brown refused to surrender documents after being asked to
do so.
The court of common pleas reviewed the record to determine
whether the board's adoption of the administrative law judge's
finding was supported by reliable, probative, and substantial
evidence, and the court found such evidence. The court
affirmed the findings of the administrative law judge:
"IT IS THEREFORE ORDERED that the Order of the State
Personnel Board of Review adopting the Findings of the
Administrative Law Judge be and hereby is affirmed, and that
the Order removing appellant from his position be and hereby is
reversed and vacated and the Recommendation of the
Administrative Law Judge is affirmed." (Emphasis added.)
Despite finding reliable, probative, and substantial
evidence supporting the board's decision, the common pleas
court reversed and vacated the order removing Brown from his
position, imposing a ten-day suspension instead. The common
pleas court erred in doing so -- under our decision in Henry's
Cafe, supra, the court had no authority to modify the penalty
imposed by the board.
As previously noted, Henry's Cafe requires a court of
common pleas to affirm the penalty imposed by an agency if the
agency is authorized to impose the penalty. In the present
case, the penalty imposed -- removal -- is one that the board
was authorized by statute to impose. First, under R.C. 124.34,
insubordination is a sufficient basis for removing an
employee. Second, the State Personnel Board of Review is
authorized by R.C. 124.03(A) to affirm a decision to remove an
employee. Finally, in affirming such a decision, the State
Personnel Board of Review is not obligated to follow the
recommendation of the administrative law judge. Ohio Adm. Code
124-15-03(A). Thus, the board in the present case acted well
within the scope of its authority in rejecting the
administrative law judge's recommended ten-day suspension and
ordering Brown removed from his state position. The court of
common pleas, however, acted outside its authority in reversing
and vacating the board's order. Pursuant to our decision in
Henry's Cafe, a trial court has no discretion in an appeal
under R.C. 119.12 to modify a penalty lawfully imposed. The
court of appeals, therefore, properly reversed the trial court
on this issue.
II
The majority's failure to apply well-established case law
on appeals under R.C. 119.12 is more than an insignificant
error. It results in an outcome that ought to offend the
sensibilities of us all. At the end of the day appellant Brown
-- despite his insubordination at OBES and his pleading guilty
to a criminal conspiracy charge in another matter related to
his state employment (a matter neatly paralleling the charges
forming the basis for his removal in the present case) -- faces
an inconsequential ten-day suspension. The result will
undoubtedly be disheartening to all state employees who manage
to accomplish their daily tasks without defying their superiors
and/or committing a felony. The result announced today will be
no less frustrating to the taxpayers of this state who must
foot the bill for Brown's salary and benefits.
For the foregoing reasons, I would affirm the decision of
the court of appeals to reinstate the decision by the board
ordering Brown removed from his position. Accordingly, I
respectfully dissent.
FOOTNOTE:
1 I note that Brown's credibility on this issue is even
more suspect in hindsight given his subsequent guilty plea to
the crime of conspiracy for his involvement with telephone
leases with the Ohio Department of Agriculture. Brown pleaded
guilty to accepting money from a lobbyist in exchange for
Brown's influencing his superiors at the Ohio Department of
Agriculture.