The opinion
[Cite as Millard v. Ohio Accountancy Bd., 2017-Ohio-7677.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STEPHANIE GAYE MILLARD, : APPEAL NO. C-160858
TRIAL NO. A-1506230
Plaintiff-Appellant, :
vs. : O P I N I O N.
ACCOUNTANCY BOARD OF OHIO, :
Defendant-Appellee. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: September 20, 2017
Hawley Law Co., LPA, and Kenneth G. Hawley, for Plaintiff-Appellant,
Michael DeWine, Ohio Attorney General, and Rachel Huston, Assistant Attorney
General, for Defendant-Appellee.
OHIO FIRST DISTRICT COURT OF APPEALS
MYERS, Judge.
{¶1} Stephanie Gaye Millard appeals the judgment of the Hamilton County
Common Pleas Court affirming the order of the Accountancy Board of Ohio that
revoked her certified public accountant (“CPA”) certificate.
{¶2} In January 2015, Millard was convicted, following guilty pleas, of two
counts of unauthorized use of property, in violation of R.C. 2913.04(A). In
November 2015, the accountancy board conducted a disciplinary hearing pursuant to
its authority under R.C. 4701.16(A)(6), which allows disciplinary action against an
accountant for “[c]onviction of any crime, an element of which is dishonesty or
fraud, under the laws of any state or of the United States.”
The Disciplinary Hearing
{¶3} At the disciplinary hearing, the accountancy board heard testimony
from its investigator and from Millard. Copies of the indictment, the plea form, the
judgment of conviction, and the bill of particulars from Millard’s criminal case were
admitted into evidence.
{¶4} The documentary evidence demonstrated that Millard had been
indicted by a Hamilton County grand jury for 26 felony offenses: nine counts of theft
in office, nine counts of unauthorized use of property, and eight counts of tampering
with evidence. The indictment and bill of particulars alleged that Millard had
worked as a treasurer for the Cincinnati College Preparatory Academy (“CCPA”) from
July 2006 to February 2013. During that time, Millard had allegedly used funds
from CCPA and the Ohio Department of Education (“ODE”) to pay for personal
expenditures for herself and for Lisa Hamm, the superintendent of CCPA.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶5} Millard entered guilty pleas to counts 4 and 16, for unauthorized use of
property in violation of R.C. 2913.04(A), after the counts were reduced from felonies
to misdemeanors. As charged in the indictment, counts 4 and 16 alleged that Millard
had knowingly used the property of the ODE and/or CCPA, without the consent of
the owner or person authorized to give consent, and had committed the offenses for
the purpose of devising a scheme to defraud or obtain property or services, and that
the value of the property or services or the loss had been between $7,500 and
$150,000.
{¶6} With respect to count 4, the bill of particulars alleged that the CCPA
school board had authorized Millard, Hamm, and two others to attend a three-day
conference in San Diego. The group traveled to the conference six days before it
began and “went vacationing and sightseeing.” The group claimed to have visited
some charter schools in that time, but no such visits occurred. Unauthorized
individuals were present for portions of the school-funded trip. The group spent
more than $20,000, which was four times the amount that had been authorized by
the school board. Hamm did not ask to school board to ratify the expenditure of
additional funds, and Millard used ODE and/or CCPA funds to pay for the entire
trip.
{¶7} For count 16, the bill of particulars alleged that the CCPA school board
had authorized Hamm and Clayton Mathews to attend a seven-day residency
program in Liverpool, England. The pair flew into Paris, France, where they met
Millard, before visiting Manchester and London, England, as well as Edinburgh,
Scotland. During the 15-day trip, the group conducted no school visits or school-
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OHIO FIRST DISTRICT COURT OF APPEALS
related business, outside of the residency program. Millard used ODE and/or CCPA
funds to pay the $32,000 cost of the trip.
{¶8} Millard entered guilty pleas to counts 4 and 16 as amended, and the
remaining 24 counts were dismissed. In addition, she agreed to pay restitution in
the amount of $2,000. The trial court sentenced her to two years’ community
control.
{¶9} Millard testified that she had attended the conference in San Diego,
and had already been in Paris at the time she met with Hamm and Mathews. She
admitted that school funds had been used for some of her expenses, stating, “They
paid some of my expenses. I shared a room with the superintendent in Paris. And
the hotel charges were $800, so.”
{¶10} At the conclusion of the disciplinary hearing, the accountancy board
voted unanimously to revoke Millard’s CPA certificate. The revocation order
contained a provision that she could not apply for reinstatement until she completed
the terms and conditions established by the court in the criminal matter.
{¶11} Millard appealed the revocation order to the common pleas court,
pursuant to R.C. 119.12. The court stayed enforcement of the revocation order
pending its disposition of the appeal. Following a hearing, the court affirmed the
order of the accountancy board. This appeal followed.
The Appeal
{¶12} In a single assignment of error, Millard argues that the trial court
erred by affirming the accountancy board’s revocation of her CPA certificate under
R.C. 4701.16(A)(6), where the revocation was based solely on her convictions for
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OHIO FIRST DISTRICT COURT OF APPEALS
unauthorized use of property. She contends that no reliable, probative, or
substantial evidence supported the accountancy board’s determination that she had
committed an offense that included an element of fraud or dishonesty.
Standard of Review
{¶13} An appellate court’s standard of review for administrative appeals is
narrower than that of the common pleas court. The common pleas court may affirm
an administrative agency’s order if it finds, upon consideration of the entire record
and any additional evidence the court has admitted, that the order is supported by
reliable, probative, and substantial evidence and is in accordance with law. R.C.
119.12; Our Place, Inc. v. Ohio Liquor Control Comm., 63 Ohio St.3d 570, 571, 589
N.E.2d 1303 (1992).
{¶14} But an appellate court’s review of questions of fact is limited to
determining whether the common pleas court abused its discretion in finding that
the agency’s decision was supported by reliable, probative, and substantial evidence.
Gaither-Thompson v. Ohio Civ. Rights Comm., 176 Ohio App.3d 493, 2008-Ohio-
2559, 892 N.E.2d 524, ¶ 16 (1st Dist.); Pons v. Ohio State Med. Bd., 66 Ohio St.3d
619, 621, 614 N.E.2d 748 (1993). On questions of law, however, an appellate court
conducts a de novo review. Gaither-Thompson at ¶ 17; Bartchy v. State Bd. of Edn.,
120 Ohio St.3d 205, 2008-Ohio-4826, 897 N.E.2d 1096, ¶ 43.
Millard’s Convictions Supported the Revocation under R.C. 4701.16(A)(6)
{¶15} First, Millard asserts that her convictions do not support the
revocation of her CPA certificate under R.C. 4701.16(A)(6) because dishonesty and
fraud are not essential elements of the offense of unauthorized use of property under
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OHIO FIRST DISTRICT COURT OF APPEALS
R.C. 2913.04(A). Without proof of dishonesty or fraud, she contends, there was no
legal basis for the revocation.
{¶16} R.C. 2913.04(A) provides: “No person shall knowingly use or operate
the property of another without the consent of the owner or person authorized to
give consent.” The offense is a fourth-degree misdemeanor, unless otherwise
provided in divisions (F)(3) and (4) of the statute. See R.C. 2913.04(F)(2).
{¶17} Under division (F)(3) of R.C. 2913.04, if unauthorized use of property
is “committed for the purpose of devising or executing a scheme to defraud or to
obtain property or services,” the offense is, at a minimum, a first-degree
misdemeanor. See R.C. 2913.04(F)(3)(a). In this case, Millard pled guilty to two
first-degree misdemeanor violations of unauthorized use of property, which
necessarily included the element set forth in R.C. 2913.04(F)(3)(a).
{¶18} Millard contends that the offenses for which she was convicted did not
necessarily contain an element of fraud because R.C. 2913.04(F)(3) uses the
disjunctive “or” in the latter part of the following phrase: “if unauthorized use of
property is committed for the purpose of devising or executing a scheme to defraud
or to obtain property or services[.]” (Emphasis added.) See R.C. 2913.04(F)(3). She
asserts that because one form of conduct is fraudulent (devising or executing a
scheme to defraud), and the other is not necessarily fraudulent (devising or
executing a scheme to obtain property or services), the accountancy board was
required to receive and consider additional evidence beyond her convictions before
revoking her certificate. We disagree.
{¶19} First, the offense of unauthorized use of property is itself statutorily
defined as a “theft offense” in R.C. 2913.01(K)(1). Ohio courts have routinely held
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OHIO FIRST DISTRICT COURT OF APPEALS
that a theft offense is an offense of dishonesty. See State v. Watson, 1st Dist.
Hamilton No. C-010691, 2002 WL 1817327 (Aug. 9, 2002); Washington v. BancOhio
Nat. Bank, 21 Ohio App.3d 234, 486 N.E.2d 1227 (10th Dist.1985). In addition, a
prior conviction for a theft offense can be used for impeachment purposes pursuant
to Evid.R. 609(A). See State v. VanPelt, 1st Dist. Hamilton No. C-990505, 2000 WL
238032 (Mar. 3, 2000); State v. Taliaferro, 2 Ohio App.3d 405, 442 N.E.2d 481
(10th Dist.1981). “Clearly and undisputedly, a theft is inherently dishonest.
Common sense dictates that stealing is a dishonest act.” VanPelt at *2, citing State v.
Johnson, 10 Ohio App.3d 14, 16, 460 N.E.2d 625 (10th Dist.1983).
{¶20} Millard relies on Doelker v. Accountancy Bd., 12 Ohio St.2d 76, 232
N.E.2d 407 (1967), for the proposition that proof of her convictions alone, without
further proof of dishonesty or fraud, was insufficient to support the revocation of her
CPA certificate under R.C. 4701.16(A)(6). However, her reliance on Doelker is
misplaced. See Hayes v. State Med. Bd. of Ohio, 138 Ohio App.3d 762, 768, 742
N.E.2d 238 (1oth Dist.2000). In Doelker, the Supreme Court held that a certified
copy of an accountant’s conviction for failing to file a federal income-tax return was
insufficient evidence to support discipline under former R.C. 4701.16 because the
federal crime did not contain an element of dishonesty or fraud. Doelker at ¶ 79-80.
In light of our conclusion that a first-degree misdemeanor offense of unauthorized
use of property under R.C. 2913.04(A) necessarily involves an element of fraud or
dishonesty, Doelker is inapposite.
{¶21} Evidence that Millard had been convicted of two offenses of
unauthorized use of property was sufficient to support the accountancy board’s
disciplinary action under R.C. 4701.16(A)(6) because the offenses involved elements
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OHIO FIRST DISTRICT COURT OF APPEALS
of dishonesty or fraud. Consequently, we hold that the trial court did not err when it
affirmed the order of the accountancy board. We overrule the assignment of error
and affirm the trial court’s judgment.
Judgment affirmed.
MOCK, P.J., and ZAYAS, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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