Baltimore Ravens, Inc. v. Self-Insuring Emp. Evaluation Bd.

[This decision has been published in Ohio Official Reports at 94 Ohio St.3d 449.]

BALTIMORE RAVENS, INC., F.K.A. CLEVELAND BROWNS, INC., APPELLEE, v.

SELF-INSURING EMPLOYERS EVALUATION BOARD ET AL., APPELLANTS.

[Cite as Baltimore Ravens, Inc. v. Self-Insuring Emp. Evaluation Bd.,

2002-Ohio-1362.]

Workers’ compensation—Disciplinary orders issued by the Self-Insuring

Employers Evaluation Board pursuant to R.C. 4123.352(C) are not

subject to judicial review under R.C. 119.12 of the Administrative

Procedure Act.

(No. 00-1744—Submitted October 16, 2001—Decided March 27, 2002.)

APPEAL from the Court of Appeals for Franklin County, Nos. 99AP-1262 and

99AP-1263.

__________________

SYLLABUS OF THE COURT

Disciplinary orders issued by the Self-Insuring Employers Evaluation Board

pursuant to R.C. 4123.352(C) are not subject to judicial review under R.C.

119.12 of the Administrative Procedure Act.

__________________

ALICE ROBIE RESNICK, J.

{¶ 1} Appellants Ricky Bolden, Paul Farren, Mark Harper, Lee Jones, and

Stacey Hairston were formerly employed as professional football players by

appellee, Baltimore Ravens, Inc., and had played for appellee when it was doing

business as the Cleveland Browns. Each player filed a complaint with the Self-

Insuring Division of the Bureau of Workers’ Compensation, alleging that the team

had failed to pay workers’ compensation benefits as previously ordered by the

Industrial Commission of Ohio. The bureau found all five complaints valid and

referred them to appellant, the Self-Insuring Employers Evaluation Board.

SUPREME COURT OF OHIO

{¶ 2} After conducting an informal hearing, the board issued a

comprehensive decision on March 10, 1999, addressing all five complaints. The

board found that the Ravens “consistently refused to pay workers’ compensation

awards, acting in a manner inconsistent with its legal obligations.” Based on what

it described as the Ravens’ “blatant and defiant behavior,” the board recommended

a fine of $10,000 on each complaint for a total fine of $50,000 to be paid to the

bureau.

{¶ 3} The Ravens appealed this decision to the Franklin County Court of

Common Pleas pursuant to R.C. 119.12 of the Administrative Procedure Act. (Case

No. 99CVF-03-2486.) The Ravens alleged that the board had violated R.C.

4123.352(C), which requires that the board’s determinations and recommendations

for disciplining a self-insuring employer be made “after a hearing conducted

pursuant to Chapter 119. of the Revised Code.”

{¶ 4} On April 29, 1999, the board filed a motion to dismiss the Ravens’

appeal for lack of jurisdiction. The board argued that its March 10, 1999 decision

is not appealable under R.C. 119.12 because the board is a part of the bureau and

R.C. 119.01(A) exempts the bureau’s adjudications from the appeal provisions of

the Administrative Procedure Act. Meanwhile, the board sought to correct the

defect in its March 10 order by vacating that order and scheduling a new hearing to

be held in compliance with R.C. 4123.352(C). In an order dated May 27, 1999, the

board explained that its “previous findings are being vacated and held for naught in

order that a determination of this matter can be made at a record hearing held in

accordance with Chapter 119 [of] the Revised Code.”

{¶ 5} On June 9, 1999, the trial court denied the board’s motion to dismiss.

According to the trial court, “R.C. 4123.[3]52(A) specifically provides that the

board is to be considered part of the Bureau only for administrative purposes such

as the equipment, space, and personnel required by the board to function.” Thus,

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January Term, 2002

the court denied the motion on the basis that the board is not part of the bureau “for

the purposes of determining whether the provisions of R.C. 119.12 apply.”

{¶ 6} Nevertheless, the board proceeded to hold a new hearing on June 14,

1999, and followed with a new order issued July 8, 1999, which is substantially the

same as its March 10 order. The Ravens then appealed the board’s July 8 order,

and the board moved to dismiss this appeal as well. (Case No. 99CVF-07-5896.)

{¶ 7} On September 8, 1999, the trial court, under case No. 99CVF-07-

5896, denied the board’s motion to dismiss the Ravens’ second appeal for the same

reasons that it denied the board’s motion to dismiss the Ravens’ first appeal. On

October 6, 1999, the trial court, under case No. 99CVF-03-2486, (1) held that the

board’s actions leading to the second appeal were void, (2) found that the board

should have conducted a hearing pursuant to R.C. Chapter 119 before issuing its

March 10, 1999 order, and (3) remanded the cause to the board for such a hearing.

Also on October 6, 1999, the trial court dismissed case No. 99CVF-07-5896 on the

basis that its decision in the other case “obviates the reason for and is dispositive of

this matter.”

{¶ 8} The board appealed both cases to the Court of Appeals for Franklin

County. In a divided opinion, the court of appeals affirmed the judgments of the

trial court. In so doing, the court found as follows:

“We agree with the Ravens that, although linked to the bureau of workers’

compensation for administrative purposes, SIEEB is an independent quasi-judicial

agency created by statute and not under the control of the bureau of workers’

compensation for adjudicatory purposes. Although the administrator refers

complaints to SIEEB, it is SIEEB, not the administrator or the bureau, that has

jurisdiction to investigate, make findings, and order that corrective action or

discipline be imposed by the administrator. Nothing in the statute permits the

administrator to contravene any finding or determination that SIEEB makes. Even

though discipline recommended by SIEEB is to be imposed by the administrator,

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the act of imposing such discipline is ministerial in nature because R.C.

4123.35.2(C) precludes him from exercising any discretion in this regard.

Therefore, we agree with the trial court that it had jurisdiction to hear the Ravens’

appeal from the March 10, 1999 order of SIEEB.”

{¶ 9} The court of appeals also found that “the actions taken by SIEEB at

the June 14, 1999 hearing are of no effect.” The court explained, “When a notice

of appeal from a decision of an administrative agency has been filed, the agency is

divested of its inherent jurisdiction to reconsider, modify, or vacate the decision.”

Accordingly, the appellate court remanded the cause to the board “for a new hearing

conducted in accordance with R.C. Chapter 119 as the original hearing was not

conducted in accordance with R.C. Chapter 119 and the second hearing was a

nullity.” The cause is now before this court pursuant to the allowance of a

discretionary appeal.

{¶ 10} Despite its disordered procedural history, this case presents two

straightforward jurisdictional questions for our review. The first and primary issue

involves the trial court’s jurisdiction over the Ravens’ appeals from the board’s

March 10 and July 8, 1999 decisions. More precisely, we are asked to decide

whether the board’s recommendations for disciplining a self-insured employer

under R.C. 4123.352 are subject to judicial review under R.C. 119.12 of the

Administrative Procedure Act.

{¶ 11} The second issue involves the board’s jurisdiction to revisit matters

that are the subject of a pending appeal, that is, whether the board was divested of

jurisdiction to vacate and attempt to remedy the alleged defect in its March 10

decision while the Ravens’ appeal of that decision was pending before the trial

court.

4

January Term, 2002

I

Jurisdiction of the Trial Court

{¶ 12} The asserted basis for the trial court’s jurisdiction is the residual

clause in R.C. 119.12, which provides: “Any party adversely affected by any order

of an agency issued pursuant to any other adjudication may appeal to the court of

common pleas of Franklin county * * *.” (Emphasis added.) Everyone agrees that

the board’s March 10, 1999 decision constitutes an order issued pursuant to an

“adjudication,” as that term is defined in R.C. 119.01(D). The dispute in this case

revolves around the definition of “agency” in R.C. 119.01(A).

{¶ 13} R.C. 119.01(A) provides that, as used in R.C. 119.01 to 119.13:

“ ‘Agency’ means, except as limited by this division, [1] any * * * board *

* * having authority to promulgate rules or make adjudications in * * * the bureau

of workers’ compensation, [2] the functions of any administrative * * * board * *

* of the government of the state specifically made subject to sections 119.01 to

119.13 of the Revised Code, and [3] the licensing functions of any administrative

* * * board * * * of the government of the state having the authority or

responsibility of issuing, suspending, revoking, or canceling licenses.”

{¶ 14} R.C. 119.01(A) then sets forth a series of exclusions and limitations,

including the following:

“Sections 119.01 to 119.13 of the Revised Code do not apply to actions of

* * * the bureau of workers’ compensation under sections 4123.01 to 4123.94 of

the Revised Code with respect to all matters of adjudication * * *.”

{¶ 15} Thus, the board will be deemed an agency under R.C. 119.01(A) if

it is described by one or more of the three branches of the definition of “agency”

and not otherwise excluded. The courts below focused their analyses entirely on

the exclusion for adjudications by the bureau. They found that the board, as

established by R.C. 4123.352, is separate and independent from the bureau and,

therefore, beyond the purview of this exclusion. However, they never determined

5

SUPREME COURT OF OHIO

which, if any, of the three branches of the definition in R.C. 119.01(A) applies in

the first instance to render the board an agency. Instead, their decisions seem to

rest on the assumption that the board would be an agency under R.C. 119.01(A) so

long as none of the specific exclusions was applicable. We disagree, on two levels.

{¶ 16} First, we find that the board is a part of the bureau for purposes of

R.C. 119.01(A). In so doing, we acknowledge that certain aspects of the enabling

legislation for the board, if viewed in isolation, could appear to support the

autonomy of the board. Particularly, R.C. 4123.352(A) creates the board to consist

of three members, who are appointed and/or subject to removal by the Governor,

and R.C. 4123.352(C) requires the Administrator of Workers’ Compensation to

promptly and fully implement the board’s recommendations for disciplining a self-

insuring employer. When considering the totality of the statutory scheme, however,

it becomes apparent that these isolated indicia of separateness do not truly reflect

the board’s essential character and function vis-à-vis the bureau.

{¶ 17} After creating the board and establishing the terms of its members,

R.C. 4123.352 provides:

“(A) * * *

“For administrative purposes, the board is a part of the bureau of workers’

compensation, and the bureau shall furnish the board with necessary office space,

staff, and supplies. The board shall meet as required by the administrator of

workers’ compensation.

“(B) In addition to the grounds listed in section 4123.35 of the Revised Code

pertaining to criteria for being granted the status as a self-insuring employer, the

grounds upon which the administrator may revoke or refuse to renew the status

includes [sic] failure to comply with any rules or orders of the administrator or to

pay contributions to the self-insuring employers’ guaranty fund established by

section 4123.351 of the Revised Code, continued failure to file medical reports

bearing upon the injury of the claimant, and failure to pay compensation or benefits

6

January Term, 2002

in accordance with law in a timely manner. A deficiency in any of the grounds

listed in this division is sufficient to justify the administrator’s revocation or refusal

to renew the employer’s status as a self-insuring employer. The administrator need

not revoke or refuse to renew an employer’s status as a self-insuring employer if

adequate corrective action is taken by the employer pursuant to division (C) of this

section.

“(C) The administrator shall refer to the board all complaints or allegations

of misconduct against a self-insuring employer or questions as to whether a self-

insuring employer continues to meet minimum standards. The board shall

investigate and may order the employer to take corrective action in accordance with

the schedule the board fixes. The board’s determination in this regard need not be

made by formal hearing but shall be issued in written form and contain the signature

of at least two board members. If the board determines, after a hearing conducted

pursuant to Chapter 119. of the Revised Code and the rules of the bureau, that the

employer has failed to correct the deficiencies within the time fixed by the board or

is otherwise in violation of this chapter, the board shall recommend to the

administrator revocation of an employer’s status as a self-insuring employer or such

other penalty which may include, but is not limited to, probation, or a civil penalty

not to exceed ten thousand dollars for each failure. A board recommendation to

revoke an employer’s status as a self-insuring employer shall be by unanimous vote.

A recommendation for any other penalty shall be by majority vote. Where the

board makes recommendations to the administrator for disciplining a self-insuring

employer, the administrator promptly and fully shall implement the

recommendations.”

{¶ 18} As established under R.C. 4123.352, the board is not self-sustaining

or self-governing. It is not charged with administering or implementing any

legislation, does not have its own staff or agenda, and does not promulgate any

rules or regulations. The board is devoid of power to execute or enforce its own

7

SUPREME COURT OF OHIO

recommendations and cannot autonomously impose a penalty, revoke or refuse to

renew a self-insurer’s status, or otherwise take disciplinary action against a self-

insuring employer. Only the administrator has the statutory authority to take such

action. Indeed, the power given to the administrator under R.C. 4123.352 is

correlative to that given under R.C. 4123.35, which vests the administrator with the

exclusive authority to grant or deny the privilege of self-insurance in the first

instance. The board meets only as required by the administrator, who makes the

initial determination of whether a complaint is valid and should be referred to the

board. See Ohio Adm.Code 4123-9-06(A)(3), 4123-19-09(A), (B), and (D), and

4123-19-13(B). The board is dependent upon the bureau for office space, staff, and

supplies, and is subject to those administrative rules that the bureau promulgates

for the board pursuant to R.C. 119.03. Rather than being a separate and

independent agency under R.C. 4123.352, the board is inextricably entangled with

and dependent upon the bureau.

{¶ 19} In addition, R.C. 4123.352(A) expressly provides, “For

administrative purposes, the board is a part of the bureau of workers’

compensation.” However, the Ravens contend that the reference to “administrative

purposes” in this provision is “limiting language.” Invoking the ancient maxim of

statutory interpretation “expressio unius est exclusio alterius,” meaning that the

expression of one thing is the exclusion of another, the Ravens construe this

language as implying that the board is independent from the bureau for all but

administrative purposes. Similarly, the trial court found that R.C. 4123.352(A)

“specifically provides that the board is to be considered part of the Bureau only for

administrative purposes.” (Emphasis added.) And amicus curiae, General Motors

Corporation, actually inserts and italicizes the word “only” in its quotation of R.C.

4123.352(A).

{¶ 20} Of course, R.C. 4123.352(A) does not contain the word “only” or

any other indication that the phrase “administrative purposes” was intended to

8

January Term, 2002

restrict the board’s connection to the bureau. In any case, this court has long

recognized that the canon “expressio unius est exclusio alterius” is not an

interpretive singularity but merely an aid to statutory construction, which must

yield whenever a contrary legislative intent is apparent. See, e.g., State ex rel.

Jackman v. Court of Common Pleas of Cuyahoga Cty. (1967), 9 Ohio St.2d 159,

164, 38 O.O.2d 404, 407, 224 N.E.2d 906, 910; Smilack v. Bowers (1958), 167

Ohio St. 216, 218-219, 4 O.O.2d 271, 273, 147 N.E.2d 499, 501; State ex rel. Curtis

v. DeCorps (1938), 134 Ohio St. 295, 12 O.O. 96, 16 N.E.2d 459; State v. Cleveland

(1910), 83 Ohio St. 61, 67, 93 N.E. 467, 468.

{¶ 21} In Sec. & Exchange Comm. v. C.M. Joiner Leasing Corp. (1943),

320 U.S. 344, 350-351, 64 S.Ct. 120, 123, 88 L.Ed. 88, 93, the United States

Supreme Court declined to invoke the canon, explaining as follows:

“Some rules of statutory construction come down to us from sources that

were hostile toward the legislative process itself and thought it generally wise to

restrict the operation of an act to its narrowest permissible compass. However well

these rules may serve at times to aid in deciphering legislative intent, they long have

been subordinated to the doctrine that courts will construe the details of an act in

conformity with its dominating general purpose, will read text in the light of context

and will interpret the text so far as the meaning of the words fairly permits so as to

carry out in particular cases the generally expressed legislative policy.” (Footnotes

omitted.) See, also, Herman & MacLean v. Huddleston (1983), 459 U.S. 375, 387,

103 S.Ct. 683, 690, 74 L.Ed.2d 548, 558, fn. 23.

{¶ 22} Accordingly, we interpret the phrase “administrative purposes” in

R.C. 4123.352(A) to comport with the statute’s overriding design, which is to place

the board under the aegis of the bureau. In this light, the phrase “For administrative

purposes” appears not to limit the relationship between the board and the bureau,

but merely to designate the administrative agency to which the board belongs. It is

simply an indication that the board is a part of the bureau rather than a part of the

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Industrial Commission, one of whose members serves, ex officio, as chairman of

the board.

{¶ 23} We conclude, therefore, that the board is a part of the bureau for

purposes of R.C. 119.01(A), that the exclusion for adjudications by the bureau is

applicable to the board, and that the board’s adjudications are generally exempt

from the provisions of the Administrative Procedure Act, including those in R.C.

119.12 governing the right of appeal to common pleas court.

{¶ 24} On a more basic level, we find that even if the board were distinct

from the bureau for purposes of R.C. 119.01(A), as held below, it would still lack

the status of an agency subject to R.C. Chapter 119 for purposes of judicial review.

{¶ 25} The courts below carried their analyses only so far as to conclude

that the board is not expressly excluded from the definition of agency set forth in

R.C. 119.01(A). But at some point, they should have determined whether and to

what extent the board is included in the statutory definition. If the board is not a

part of the bureau under R.C. 119.01(A), as held below, then of course the exclusion

for bureau adjudications is not applicable to the board. By the same token,

however, it can no longer be concluded that the board is an agency by virtue of

being “in * * * the bureau” under the first branch of R.C. 119.01(A)’s definition of

“agency.” The only remaining definition that is potentially applicable includes “the

functions of any * * * board * * * specifically made subject to sections 119.01 to

119.13 of the Revised Code.” The courts below should have been compelled by

their own view of the board’s independence to consider whether and to what extent

the board is specifically made subject to R.C. Chapter 119 in the enabling

legislation. Having failed to address this aspect of the issue, those courts rendered

incomplete analyses.

{¶ 26} R.C. 4123.352(C) authorizes the board to make recommendations to

the administrator for disciplining a self-insuring employer “after a hearing

conducted pursuant to Chapter 119. of the Revised Code.” (Emphasis added.)

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January Term, 2002

According to amicus curiae General Motors, “the reference in R.C. § 4123.352(C)

to a ‘Hearing’ incorporates and includes not only the board’s hearing room

adjudicatory procedure but also the APA provided judicial review of it.” The

Ravens argue that any other interpretation would be inconsistent with R.C.

119.01(E), which defines “hearing” as “a public hearing by any agency in

compliance with procedural safeguards afforded by sections 119.01 to 119.13 of

the Revised Code.”

{¶ 27} On the other hand, the board argues that in providing for a hearing

conducted pursuant to R.C. Chapter 119, the General Assembly “did not likewise

provide that an ‘appeal’ pursuant to that Chapter would follow. * * * Had our

lawmakers intended to provide for such review of the SIEEB’s orders, they could

easily have done so. * * * Instead, the legislature clearly expressed its intent by

specifying that only the ‘hearing’ was subject to Chapter 119.” (Emphasis sic.) We

agree with the board.

{¶ 28} R.C. 4123.352(C) does not incorporate R.C. Chapter 119 for all

purposes. In requiring the board to make its recommendations to the administrator

after a hearing conducted pursuant to R.C. Chapter 119, R.C. 4123.352(C)

establishes the procedure leading up to the board’s decision. In so doing, the statute

incorporates R.C. Chapter 119 for the purpose of delineating the guidelines that

govern the board’s actions on a predecisional administrative level. It does not,

however, incorporate R.C. Chapter 119 into the process at the postadjudicatory

level. Instead, the statute directs the administrator to promptly and fully implement

the board’s recommendations, without providing for any intervening appeal. R.C.

4123.352(C) simply requires the board to conduct a hearing pursuant to R.C.

Chapter 119 before it makes any disciplinary recommendations to the

administrator. It does not subject the board to R.C. Chapter 119 for all purposes,

and certainly not for purposes of judicial review.

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{¶ 29} This is not the first time that the court has encountered legislation

that incorporates R.C. Chapter 119 for purposes other than judicial review. R.C.

Chapter 4112 is the enabling legislation for the Ohio Civil Rights Commission.

Former R.C. 4112.05(G) provided that if the commission determines from evidence

presented at hearing that an unlawful discriminatory practice has been committed,

it “shall issue and, subject to the provisions of Chapter 119. of the Revised Code,

cause to be served on such respondent an order.” 138 Ohio Laws, Part I, 2281.

{¶ 30} In addition, former R.C. 4112.05(I) provided:

“Until a transcript of the record in a case is filed in a court as provided in

section 4112.06 of the Revised Code, the commission may, subject to the provisions

of Chapter 119. of the Revised Code, * * * modify or set aside in whole or in part,

any finding or order made by it.” 138 Ohio Laws, Part I, 2282.

{¶ 31} Yet despite these references to R.C. Chapter 119, this court held that

the Ohio Civil Rights Commission is not subject to the thirty-day record-

certification requirement of R.C. 119.12 because the enabling legislation did not

specifically make the commission subject to R.C. Chapter 119 for purposes of

judicial review. In Plumbers & Steamfitters Joint Apprenticeship Commt. v. Ohio

Civ. Rights Comm. (1981), 66 Ohio St.2d 192, 194, 20 O.O.3d 200, 201, 421 N.E.2d

128, 130, the court explained:

“Reading R.C. Chapters 119 and 4112 together leads to an incongruous

result. A literal reading of the statutory language reveals that the commission is an

agency specifically subject to R.C. Chapter 119 for purposes of R.C. 4112.05(G)

and (I). Under R.C. 4112.06, however, the commission is not an agency because

judicial review of commission proceedings is not specifically made subject to R.C.

Chapter 119. We are constrained to hold that the commission’s administrative split

personality represents the intent of the General Assembly. Therefore, the Court of

Appeals erred in concluding that the commission is an agency subject to R.C.

Chapter 119 for purposes of judicial review.”

12

January Term, 2002

{¶ 32} A consideration of former R.C. 4121.44 is also instructive. Former

R.C. 4121.44(Q) (143 Ohio Laws, Part II, 3294-3297) was effective from

November 3, 1989, until October 20, 1993, when R.C. 4121.44 was repealed and

replaced by the provisions governing the newly established qualified health plan

and health care partnership program, R.C. 4121.44 to 4121.443. Former R.C.

4121.44(Q) required the administrator to adopt rules for excluding from the system

health care providers who engage in certain practices as part of the treatment of

workers’ compensation claimants. Former R.C. 4121.44(Q) expressly provided

that these rules “shall provide procedures for review and appeal, pursuant to

Chapter 119. of the Revised Code.” (Emphasis added.)

{¶ 33} In In re Seltzer (1993), 67 Ohio St.3d 220, 616 N.E.2d 1108, the

court held that the administrator’s orders under former R.C. 4121.44(R) are not

subject to judicial review under R.C. Chapter 119. In so holding, the court

explained:

“Under division (Q), the General Assembly specifically included a right to

review and appeal in compliance with R.C. Chapter 119. The General Assembly

did not include this appeal provision in division (R). * * * This comparison of the

language in divisions (Q) and (R) leads us to conclude that the General Assembly

did not intend to allow orders issued under R.C. Chapter 4121.44(R) to be appealed

under R.C. Chapter 119.” Id., 67 Ohio St.3d at 223, 616 N.E.2d at 1111.

{¶ 34} These principles were also recognized by the federal district court in

Lexington Supermarket, Inc. v. United States Dept. of Agriculture (S.D.Ohio 1999),

84 F.Supp.2d 886. The court held that the decisions of the Ohio Department of

Health disqualifying or suspending a vendor from the Women, Infants and

Children’s Program are not subject to judicial review under R.C. 119.12.

Recognizing that “a state agency could be subject to Ohio Rev.Code Ch. 119 for

some purposes but not for others,” the court explained:

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SUPREME COURT OF OHIO

“Similar to Chapter 4112, the statute authorizing the Ohio Department of

Health to administer the WIC program subjects the ODH to Chapter 119 for some

purposes but not for others. Ohio Rev.Code § 3701.132 specifies that any

rulemaking in which ODH may engage to effectuate the WIC program must be

conducted pursuant to Chapter 119. There is no other reference to Chapter 119,

and the statute does not provide a right of judicial review, pursuant to Ohio

Rev.Code § 119.12. The reference to the ODH as a ‘state agency,’ without a

specific reference to Chapter 119, is insufficient to subject the ODH to that Chapter

for every action it takes while administering the WIC program. Accordingly,

although § 3701.132 provides that ODH is subject to Ohio Rev.Code Ch. 119 to

the extent it engages in rulemaking for the WIC program, the Court concludes that

§ 3701.132 does not subject ODH to § 119.12 for purposes of a WIC vendor’s right

to appeal.” Id., 84 F.Supp.2d at 890.

{¶ 35} The dissent argues that “[n]one of the three cases the majority cites,

however, supports its analysis because each concerned a dissimilar statutory

scheme.” The dissent then attempts to distinguish each statute in accordance with

its underlying theme that R.C. 4123.352(C) incorporates the entirety of R.C.

Chapter 119.

{¶ 36} The dissimilarities in the statutory schemes to which the dissent

refers, however, are distinctions without a difference for purposes of the present

analysis. The critical similarity between R.C. 4123.352(C) and the statutes under

review in Plumbers & Steamfitters and Lexington Supermarket is that they all

contain a qualified incorporation of R.C. Chapter 119 and, therefore, do not

incorporate the entirety of R.C. Chapter 119. What the dissent ignores is that R.C.

4123.352(C), like those other statutes, incorporates R.C. Chapter 119 for a limited

purpose. Instead, the dissent simply overlooks the fact that R.C. 4123.352(C)

incorporates R.C. Chapter 119 specifically for the purpose of conducting a hearing

that takes place before an adjudication is made by an advisory board under a scheme

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January Term, 2002

that directs the administrator to implement the board’s recommendations without

providing for any intervening judicial review.

{¶ 37} On the other hand, it appears that where the General Assembly does

intend to make an agency’s adjudications appealable under R.C. Chapter 119, it

will either specifically provide for such an appeal, as it did in former R.C.

4121.44(Q), or incorporate R.C. Chapter 119 into the enabling legislation without

qualification. R.C. 3301.13 is an example of an unqualified incorporation of R.C.

Chapter 119. It provides:

“In the exercise of any of its functions or powers, including the power to

make rules and regulations and to prescribe minimum standards the department of

education, and any officer or agency therein, shall be subject to Chapter 119. of the

Revised Code.” (Emphasis added.)

{¶ 38} Based on all of the foregoing, we hold that disciplinary orders issued

by the Self-Insuring Employers Evaluation Board pursuant to R.C. 4123.352(C) are

not subject to judicial review under R.C. 119.12 of the Administrative Procedure

Act.

{¶ 39} Accordingly, the trial court lacked jurisdiction over the Ravens’

appeals from the board’s March 10 and July 8, 1999 decisions, and the judgment

of the court of appeals is reversed as to this issue.

II

Jurisdiction of the Board

{¶ 40} It is well established that in the absence of express statutory authority

to the contrary, once a decision of an administrative board is appealed to court, the

board is divested of its inherent jurisdiction to reconsider, vacate, or modify that

decision. See Lorain Edn. Assn. v. Lorain City School Dist. Bd. of Edn. (1989), 46

Ohio St.3d 12, 544 N.E.2d 687; Hal Artz Lincoln-Mercury, Inc. v. Ford Motor Co.

(1986), 28 Ohio St.3d 20, 28 OBR 83, 502 N.E.2d 590; State ex rel. Republic Steel

Corp. v. Environmental Bd. of Rev. (1978), 54 Ohio St.2d 75, 80, 8 O.O.3d 79, 82,

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374 N.E.2d 1355, 1358. Even if the court itself lacks subject-matter jurisdiction

over the cause, the board still has no power to relitigate the disputed issues during

the pendency of the appeal. State ex rel. Borsuk v. Cleveland (1972), 28 Ohio St.2d

224, 227-228, 57 O.O.2d 464, 466, 277 N.E.2d 419, 421; Diltz v. Crouch (1962),

173 Ohio St. 367, 19 O.O.2d 312, 182 N.E.2d 315.

{¶ 41} Once the Ravens filed its appeal from the board’s March 10, 1999

order, the board was divested of jurisdiction to vacate that order, hold a new formal

hearing on June 14, 1999, and issue a second order on July 8, 1999. Since these

actions took place while the Ravens’ appeal was pending, they are of no force or

effect. Thus, the trial court correctly determined that the board’s postappeal actions

are a nullity.

{¶ 42} However, the trial court did not vacate the board’s postappeal actions

solely to render them ineffective. Instead, the trial court found that because the

board had no jurisdiction to take those actions, it failed to remedy the defect in its

March 10 order. Having found the deficiency still remaining, the court ordered the

board to vacate its March 10 order and conduct a new hearing pursuant to R.C.

Chapter 119. As this order goes to the merits of the appeal, it required the trial

court to exercise the very jurisdiction it lacks. Thus, we find that although the trial

court correctly nullified the board’s postappeal actions, it nevertheless lacked the

power to remand the cause for a new hearing. While the Ravens may indeed be

entitled to a new hearing conducted pursuant to R.C. Chapter 119, as everyone

seems to agree it is, the appropriate proceeding in which to obtain such relief would

be an action in mandamus.

{¶ 43} For all of the foregoing reasons, we reverse the judgment of the court

of appeals and remand the cause to the trial court to enter the appropriate dismissal.

Judgment reversed

and cause remanded.

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January Term, 2002

MOYER, C.J., DOUGLAS, F.E. SWEENEY, PFEIFER and LUNDBERG STRATTON,

JJ., concur.

COOK, J., dissents.

__________________

COOK, J., dissenting.

{¶ 44} The majority holds that because the board is a part of the bureau, and

because it is not an agency, there is no right to appeal board disciplinary

recommendations to the Franklin County Common Pleas Court. But by analyzing

the text of the statute creating the board and the text of the administrative procedure

statutes that are expressly incorporated into the board statutory scheme, I conclude

that the majority’s holding is incorrect.1

R.C. 4123.352 Incorporates R.C. Chapter 119

{¶ 45} The statute creating the board is the starting point for deciding the

question regarding appealability of board orders. That statute, R.C. 4123.352,

provides that if the board opts to pursue imposition of a penalty, as the board did

here, then the board must conduct the required formal hearing “pursuant to Chapter

119. of the Revised Code and the rules of the bureau.” Notably, the General

Assembly referred to the entirety of R.C. Chapter 119 and not just select provisions.

Included within that chapter is R.C. 119.01(E), which defines a “hearing” (as that

word is used in R.C. Chapter 119, and therefore by incorporation in R.C.

4123.352’s “formal hearing” provision) as “a public hearing by any agency in

compliance with procedural safeguards afforded by sections 119.01 to 119.13 of

the Revised Code.” By this reading of R.C. 4123.352 and 119.01(E), a “hearing”

conducted pursuant to R.C. Chapter 119 encompasses the “procedural safeguard”

of R.C. 119.12—the right to appeal agency adjudications.

1. I express no opinion on whether board orders of corrective action that do not arise from formal

hearings are appealable. See R.C. 4123.352(C).

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{¶ 46} R.C. 119.12 provides a general right to appeal “any order of an

agency issued pursuant to * * * [an] adjudication.” Thus, assuming that the board

is an “agency” and its decision can be shown to be an “adjudication,” it would seem

that the Ravens ought to be able to appeal the board’s disciplinary

recommendations. But the definitions section of R.C. Chapter 119 further limits

the applicability of this right of appeal:

“Sections 119.01 to 119.13 of the Revised Code do not apply to actions of

the industrial commission or the bureau of workers’ compensation under sections

4123.01 to 4123.94 of the Revised Code with respect to all matters of adjudication

* * *.” R.C. 119.01(A).

{¶ 47} This case, then, turns on three interrelated questions. The first two

questions target whether the R.C. 119.12 right to appeal can apply here: (1) is the

board an agency, and (2) does board action constitute an “adjudication”? The third

question targets whether the R.C. 119.01(A) exclusion applies to the board: (3) is

the board distinct from the bureau so that its actions are not “actions * * * of the

bureau,” which are removed from the purview of R.C. Chapter 119 and its appeal

provision? If the answer to all three questions is yes, then there is a right of appeal.

If the answer to any question is no, then a party may not challenge board decisions

by way of appeal to court.

The Board Satisfies the Statutory Definition of an Agency

{¶ 48} As the majority notes, R.C. 119.01(A) defines “agency” in three

ways. The second—”the functions of any administrative or executive * * * board

* * * specifically made subject to sections 119.01 to 119.13 of the Revised Code”—

on its face encompasses the board’s disciplinary functions. R.C. 4123.352(C)

specifically makes the board subject to R.C. Chapter 119 in disciplinary

proceedings. Because R.C. Chapter 119 consists of “sections 119.01 to 119.13 of

the Revised Code,” the board is therefore an agency within the meaning of R.C.

119.01(A).

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January Term, 2002

{¶ 49} The board’s disciplinary recommendations thus meet the first of the

two qualifiers for R.C. 119.12’s right to appeal “any order of an agency issued

pursuant to any other adjudication * * * to the court of common pleas of Franklin

county.” (Emphasis added.)

Board Action Constitutes an Adjudication

{¶ 50} The next question is whether a board disciplinary recommendation

constitutes an “adjudication” as contemplated in the second qualifier of R.C.

119.12. If it does not, then there cannot be an R.C. 119.12 right of appeal. Because

the majority finds the agency qualifier dispositive, the majority concedes the

adjudication issue, noting only that “[e]veryone agrees that the board’s March 10,

1999 decision constitutes an order issued pursuant to an ‘adjudication,’ as that term

is defined in R.C. 119.01(D).”

{¶ 51} R.C. 119.01(D) defines an “adjudication” as “the determination by

the highest or ultimate authority of an agency of the rights, duties, privileges,

benefits, or legal relationships of a specified person, but does not include * * * acts

of a ministerial nature.” Here, the board consists of three members whom the

statute charges with investigating “all complaints or allegations of misconduct

against a self-insuring employer or questions as to whether a self-insuring employer

continues to meet minimum standards.” R.C. 4123.352(A) and (C). The board

then may issue disciplinary recommendations to the bureau administrator, who

“promptly and fully shall implement the recommendation.” R.C. 4123.352(C).

{¶ 52} Board action satisfies the three foregoing requirements to constitute

an R.C. Chapter 119 adjudication. First, the three board members are the “highest

or ultimate authority” of the board, an agency. Second, they determine the rights,

duties, privileges, benefits, or legal relationships of a specified person. Because

R.C. 119.01(D) does not define “person,” the default definition of the term applies:

“ ‘Person’ includes an individual, corporation, business trust, estate, trust,

partnership, and association.” R.C. 1.59(C) (providing definitions “used in any

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statute, unless another definition is provided in such statute or a related statute”).

Here, the board determines the rights, duties, privileges, benefits, or legal

relationships of the five former football players and the Ravens. Third, the board’s

actions are not ministerial in nature. Although the General Assembly does not

define “ministerial” in R.C. Chapter 119, the legislature has directed that courts

shall construe statutory words and phrases in context and according to common

usage, unless the words have acquired a technical or particular meaning. R.C. 1.42.

The common definition of “ministerial” is “[o]f or relating to an act that involves

obedience to instructions or laws instead of discretion, judgment, or skill.” Black’s

Law Dictionary (7 Ed.1999) 1011. Cf. State ex rel. Trauger v. Nash (1902), 66

Ohio St. 612, 618, 64 N.E. 558. Although the fact that the board recommends

penalties might suggest that its determinations are not adjudications, the board’s

penalty recommendations bind the bureau administrator in that the administrator

lacks discretion to vary from the recommendations in implementing them. R.C.

4123.352(C). It is the board that the General Assembly charges with exercising

decision-making and discretion.

{¶ 53} For these reasons, board disciplinary recommendations constitute

agency adjudications within the meaning of R.C. 119.01(D) and 119.12. This

means that there is a right to appeal such determinations, unless board action

constitutes bureau action that is exempted from R.C. Chapter 119 treatment.

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January Term, 2002

Board Action Is Not Bureau Action

{¶ 54} The remaining question is whether, even if the board is an agency

making adjudications, the board is so intertwined with the bureau as to constitute a

part of the bureau. If the board were part of the bureau so that board actions are

“actions of the * * * bureau,” then the majority would be correct in concluding that

the R.C. 119.12 right of appeal does not apply to the board. In fact, if the board is

part of the bureau, no provision of R.C. Chapter 119 could apply to the board, save

for the R.C. 119.01(A) exclusion.

{¶ 55} But two basic reasons establish that, despite their interrelationship,

the board is a separate entity from the bureau.

{¶ 56} The first reason is that one cannot reconcile the statutory schemes of

R.C. Chapter 4123 and Chapter 119 if board action constitutes bureau action. If

the board is part of the bureau, R.C. 4123.352’s incorporation of R.C. Chapter 119

directly conflicts with R.C. 119.01(A)’s exclusion of R.C. Chapter 119. That is,

R.C. 4123.352(C) would refer parties to R.C. Chapter 119 for controlling authority

regarding the board’s formal hearings, only to be met with the obstacle of R.C.

119.01(A) foreclosing that chapter’s application to R.C. 4123.352(C) formal

hearings. But it is presumed that, in enacting a statute, the General Assembly

intended a result feasible of execution. R.C. 1.47(D). Thus, construing R.C.

4123.352 and 119.01 in pari materia, the only reading that supports cohesive,

feasible operation is the one that establishes the board as separate from the bureau,

thereby obviating the R.C. 119.01(A) obstacle to the R.C. 119.12 right to appeal.

Cf. Blackwell v. Bowman (1948), 150 Ohio St. 34, 43-44, 37 O.O. 323, 80 N.E.2d

493 (“It is a fundamental rule in construing a statute that all parts of it must be

construed together and any apparent contradictions reconciled, if possible”).

{¶ 57} The majority’s exegesis also runs afoul of the R.C. 1.47(B)

presumption that “[t]he entire statute is intended to be effective,” because it nullifies

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R.C. 4123.352(C)’s incorporation of the entirety of R.C. Chapter 119 despite the

plain language calling for such incorporation.

{¶ 58} Today’s majority concludes that R.C. 4123.352(C) “incorporates

R.C. Chapter 119 for the purpose of delineating the guidelines that govern the

board’s actions on a predecisional administrative level. It does not, however,

incorporate R.C. Chapter 119 into the process at the postadjudicatory level.” Its

holding, then, is that the unambiguous text “Sections 119.01 to 119.13 of the

Revised Code do not apply to actions of the industrial commission or the bureau of

workers’ compensation under sections 4123.01 to 4123.94 of the Revised Code

with respect to all matters of adjudication * * *” actually means that some of the

sections nevertheless still apply to board/bureau action. And when the General

Assembly used inclusive language in R.C. 119.01(E) in defining a hearing as “a

public hearing by any agency in compliance with procedural safeguards afforded

by sections 119.01 to 119.13 of the Revised Code,” it was nevertheless excluding

R.C. 119.12 when the board is involved. Neither proposition finds support in the

text of the statutes or in our rules of statutory construction.

{¶ 59} As support for its construction of the statutory scheme, the majority

cites a number of cases as standing for the proposition that “[t]his is not the first

time that the court has encountered legislation that incorporates R.C. Chapter 119

for purposes other than judicial review.” I agree with this statement. None of the

three cases the majority cites, however, supports its analysis because each

concerned a dissimilar statutory scheme.

{¶ 60} The majority first cites Plumbers & Steamfitters Joint

Apprenticeship Commt. v. Ohio Civ. Rights Comm. (1981), 66 Ohio St.2d 192, 20

O.O.3d 200, 421 N.E.2d 128, as supporting its holding. I agree that this case

supports the proposition that the General Assembly can incorporate portions of

R.C. Chapter 119 without incorporating the R.C. 119.12 right to judicial review.

But the important distinction between R.C. Chapter 4112 and the present case is

22

January Term, 2002

that R.C. 4112.06 itself specifically provided for judicial review of commission

orders. Here, R.C. Chapter 4123 contains no such provision; rather, R.C.

4123.352(C) incorporates the entirety of R.C. Chapter 119, including the appellate

mechanism. Similarly, In re Seltzer (1993), 67 Ohio St.3d 220, 616 N.E.2d 1108,

fails to inform the present inquiry. There, the court addressed whether orders issued

by the bureau administrator under R.C. 4121.44(R) were subject to review under

R.C. Chapter 119. Contrary to the majority’s characterization of the case, the fact

that R.C. 4121.44(Q) contained a specific right of appeal under R.C. Chapter 119

that R.C. 4121.44(R) lacked is not the dispositive factor. Rather, the court held that

because “the administrator’s decision to suspend a provider under R.C. 4121.44(R)

is a ministerial act, * * * such a decision is not an ‘adjudication’ as defined in R.C.

119.01(D).” Id. at 225, 616 N.E.2d 1108. And because R.C. 119.12 provides for

appeals of agency orders issued pursuant to adjudications, the court correctly

determined that there was no right to appeal. Id. This contrasts with the present

case, which all parties agree involves adjudications.

{¶ 61} The majority’s reliance on Lexington Supermarket, Inc. v. United

States Dept. of Agriculture (S.D.Ohio 1999), 84 F.Supp.2d 886, is equally

unpersuasive. There, as the majority notes, the federal district court determined

that vendors could not appeal decisions of the Ohio Department of Health under

R.C. 119.12. But what the majority neglects to credit sufficiently is that the

enabling statute in that case referred to R.C. Chapter 119 only for purposes of

rulemaking; there was no direct or indirect incorporation of the R.C. 119.12 right

to appeal adjudications. See R.C. 3701.132. In the instant case, however, R.C.

4123.352 incorporates the entirety of R.C. Chapter 119—which includes both R.C.

119.12, which creates the right to appeal adjudications, and R.C. 119.01(E), which

attaches this right to the definition of a hearing. None of the cases cited by the

majority therefore targets the precise statutory framework at issue here. As such,

they provide no substantive support for the majority’s reasoning. The only

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reasonable construction of R.C. Chapter 119 and Chapter 4123 that supports the

substance of the General Assembly’s enactments is one that provides for judicial

review.

{¶ 62} The second reason compelling my dissent is that R.C. 4123.352(A)

characterizes the board as distinct from the bureau for all but one limited purpose.

That statute provides that “[f]or administrative purposes, the board is a part of the

bureau of workers’ compensation, and the bureau shall furnish the board with

necessary office space, staff, and supplies.” (Emphasis added.) R.C. 4123.352(A).

The Ravens urge the court to construe this language in accordance with the Latin

maxim expressio unius est exclusio alterius—”to express or include one thing

implies the exclusion of the other”—and find that the General Assembly has

distinguished the board from the bureau for all purposes except for administrative

purposes.

{¶ 63} I agree with this reasoning. In so doing, I join the majority in

appreciating that while this maxim may inform the court’s decision, the legal canon

is not always controlling. Here, however, I find the maxim applicable. The General

Assembly has enacted legislation in which the statutory detail—the “administrative

purposes” provision—conforms with the dominating general purpose of the

statutory scheme: to establish the board as an agency separate from the bureau.

{¶ 64} There exists further support for this position in R.C. 4123.352(A)’s

mandate that “the bureau shall furnish the board with necessary office space, staff,

and supplies.” If the board were indeed a part of the bureau, the General Assembly

would not have needed to set forth the necessity for supplying administrative

support in R.C. 4123.352(A). The predecessor of R.C. 4121.121(B)(4) already

required the bureau administrator to “[p]rovide offices, equipment, supplies, and

other facilities for the bureau.” (Emphasis added.) Former R.C. 4121.121(D),

Sub.H.B. No. 201, 141 Ohio Laws, Part I, 2362. A court should construe a statute,

if possible, so that “ ‘no clause, sentence, or word shall be superfluous, void, or

24

January Term, 2002

insignificant.’ “ TRW Inc. v. Andrews (2001), 534 U.S. 19, ___, 122 S.Ct. 441, 449,

151 L.Ed.2d 339, 350, quoting Duncan v. Walker (2001), 533 U.S. 167, ___, 121

S.Ct. 2120, 2125, 150 L.Ed.2d 251, 259. See, also, Brown v. Martinelli (1981), 66

Ohio St.2d 45, 50, 20 O.O.3d 38, 419 N.E.2d 1081. The majority’s reading of the

“administrative purposes” language, however, renders that portion of R.C.

4123.352(A) wholly superfluous.

{¶ 65} The majority proffers an explanation for the statutory provision: that

it serves “merely to designate the administrative agency to which the board belongs.

It is simply an indication that the board is a part of the bureau rather than a part of

the Industrial Commission.” Yet the majority’s theory insufficiently addresses the

question of why the General Assembly specified this linkage for administrative

purposes, when it supposedly intended that the board and bureau were linked for

all purposes. Thus, while it is not itself dispositive, I find that the “administrative

purposes” provision of R.C. 4123.352(A) is additional textual support for the view

that the General Assembly intended that the board be distinct from the bureau for

all but administrative purposes.

Conclusion

{¶ 66} The statutory scheme set forth in R.C. Chapter 4123 and Chapter 119

evinces legislative intent to establish the board as a separate agency from the

bureau. Accordingly, I would hold that Chapter 119, with its right to appeal to

court, applies to board disciplinary recommendations. And once a party appeals a

board disciplinary recommendation, the board lacks jurisdiction to vacate that

recommendation. See Lorain Edn. Assn. v. Lorain City School Dist. Bd. of Edn.

(1989), 46 Ohio St.3d 12, 544 N.E.2d 687, syllabus (“When a notice of appeal from

a decision of an administrative agency has been filed, the agency is divested of its

inherent jurisdiction to reconsider, vacate or modify the decision unless there is

express statutory language to the contrary”).

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{¶ 67} Because I would therefore affirm the judgment of the court of

appeals, I respectfully dissent.

__________________

Dinn, Hochman, Potter & Levy, L.L.C., and Irwin J. Dinn, for appellee.

Betty D. Montgomery, Attorney General, and William J. McDonald,

Assistant Attorney General, for appellant Self-Insuring Employers Evaluation

Board.

Cornrich & Cornrich Co., L.P.A., and Neil Cornrich, for appellants Ricky

Bolden, Paul Farren, Mark Harper, Lee Jones, and Stacey Hairston.

Vorys, Sater, Seymour & Pease, L.L.P., F. Daniel Balmert and Deron A.

Cook, urging affirmance for amicus curiae General Motors Corp.

__________________

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