Electronic Classroom of Tomorrow v. Ohio State Bd. of Edn.

[Cite as Electronic Classroom of Tomorrow v. Ohio State Bd. of Edn., 2018-Ohio-716.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Electronic Classroom of Tomorrow, :

Plaintiff-Appellant, :

v. : No. 17AP-510

(C.P.C. No. 17CV-5315)

Ohio State Board of Education, :

(ACCELERATED CALENDAR)

Defendant-Appellee. :

D E C I S I O N

Rendered on February 27, 2018

On brief: Zeiger, Tigges & Little LLP, Marion H. Little, Jr.,

John W. Zeiger and Christopher J. Hogan, for appellant.

Argued: Marion H. Little, Jr.

On brief: Isaac Wiles Burkholder & Teetor, LLC, Mark R.

Weaver, Mark Landes, Brian M. Zets and Michael L. Close,

for appellee. Argued: Mark Landes.

APPEAL from the Franklin County Court of Common Pleas

TYACK, J.

{¶ 1} Plaintiff-appellant, Electronic Classroom of Tomorrow ("ECOT"), appeals

from the July 12, 2017 decision and entry of the Franklin County Court of Common Pleas

granting defendant-appellee, Ohio State Board of Education's ("BOE") motion for

judgment on the pleadings and dismissing as moot ECOT's motion for a preliminary

injunction and motion for expedited discovery. For the reasons that follow, we affirm the

judgment of the trial court.

No. 17AP-510 2

I. FACTUAL AND PROCEDURAL BACKGROUND

{¶ 2} ECOT initiated this case on June 14, 2017 seeking to invalidate a decision

made by BOE at its June 12, 2017 public meeting. ECOT alleged violations of Ohio's Open

Meetings Act ("OMA"), codified at R.C. 121.22.

{¶ 3} ECOT is the largest of Ohio's community based schools, and specifically is

an internet or computer based community school as defined in R.C. 3314.02(A)(7). As a

public school, ECOT receives funding from the state of Ohio based on the number of full-

time equivalent ("FTE") students enrolled in the school. R.C. 3314.08(C); Elec.

Classroom of Tomorrow v. Ohio Dept. of Edn., 10th Dist. No. 16AP-863, 2017-Ohio-

5607, ¶ 3.

{¶ 4} Previously, the Ohio Department of Education ("ODE") had determined

that ECOT owed the state money for FTE funding overpayments for the 2015-2016 school

year. A community school that disagrees with ODE's determination on funding has a

right to an appeal to the BOE or its designee. R.C. 3314.08(K)(2)(a). ECOT disputed

ODE's finding and appealed the determination to a BOE designee.

{¶ 5} Under R.C. 3314.08(K)(2)(b), "[t]he board or its designee shall conduct an

informal hearing on the matter within thirty days of receipt of such an appeal and shall

issue a decision within fifteen days of the conclusion of the hearing." After notice to the

parties, a hearing officer conducted a 10-day hearing in which ECOT introduced more

than 2,000 exhibits. On May 10, 2017, the hearing officer issued a 100-plus page report

recommending recovery of over $60 million owed to the state of Ohio by ECOT.

{¶ 6} Under R.C. 3314.08(K)(2)(c), "[i]f the board has enlisted a designee to

conduct the hearing, the designee shall certify its decision to the board. The board may

accept the decision of the designee or may reject the decision of the designee and issue its

own decision on the matter." Under R.C. 3314.08(K)(2)(d), any decision made by the

BOE on the appeal is final. The hearing officer's recommendation was slated for a final

determination by BOE at its June 12, 2017 public meeting. Notice of the meeting had

been published on the BOE website on June 8, 2017. Included in the agenda for the

meeting was consideration of a resolution regarding the hearing officer's

recommendation.

No. 17AP-510 3

{¶ 7} ECOT submitted 140 pages of objections to the hearing officer's report and

recommendation. ODE's chief legal counsel indicated, by means of a letter, that the BOE

would consider ECOT's objections at its next regularly scheduled meeting in which it

would take up the hearing officer's report. BOE conducted its June 12, 2017 meeting as

scheduled. BOE went into executive session to discuss personnel cases and pending or

immediate legal action. After emerging from executive session, the chief legal counsel for

ODE gave a presentation about BOE's consideration of a resolution to accept the decision

of the hearing officer ("ECOT resolution").

{¶ 8} After further presentations on unrelated topics, the discussion returned to

the ECOT resolution, and BOE spent nine minutes formally deliberating the ECOT

resolution. The bulk of the discussion concerned whether the amount for recovery should

be approximately $60 million or $64 million. BOE then voted to adopt the hearing

officer's recommendation to recover $60,350,791 owed by ECOT. Public comment

followed the vote.

{¶ 9} Two days later, on June 14, 2017, ECOT filed this action seeking declaratory

and injunctive relief. The first amended complaint alleged three violations of the OMA.

On June 28, 2017, BOE filed an answer and a motion for judgment on the pleadings

pursuant to Civ.R. 12(C) in which it argued that ECOT's claims under the OMA were

barred for two reasons. First, BOE argued that the pleadings demonstrated that it did

comply with the requirements of the OMA. Second, BOE argued that the hearing process

afforded to ECOT was quasi-judicial in nature, and that the requirements of R.C. 121.22

do not apply to quasi-judicial proceedings.

{¶ 10} The trial court granted the motion for judgment on the pleadings after

finding ECOT had failed to state a viable claim under the OMA. The trial court concluded

the procedure outlined in R.C. 3314.08(K) was quasi-judicial in nature and, therefore, its

deliberations that led to the decision were quasi-judicial in nature and not within the

purview of R.C. 121.22. (July 12, 2017 Decision and Entry at 14, 15.)

II. ASSIGNMENT OF ERROR

{¶ 11} ECOT filed a timely notice of appeal assigning the following as error:

The Trial Court erred in granting Defendant/Appell[ee] the

Ohio State Board of Education's (the "BOE" or "Board")

No. 17AP-510 4

Motion for Judgment on the Pleadings. Such Motion should

have been denied.

III. STANDARD OF REVIEW

{¶ 12} A motion for judgment on the pleadings under Civ.R. 12(C) is to be granted

when, after viewing the allegations and reasonable inferences therefrom in the light most

favorable to the non-moving party, the moving party is entitled to judgment as a matter of

law. Kamnikar v. Fiorita, 10th Dist. No. 16AP-736, 2017-Ohio-5605, ¶ 35; Easter v.

Complete Gen. Constr. Co., 10th Dist. No. 06AP-763, 2007-Ohio-1297, ¶ 8. "A motion for

judgment on the pleadings is specifically intended for resolving questions of law." Id. at

¶ 9, citing Friends of Ferguson v. Ohio Elections Comm., 117 Ohio App.3d 332, 334 (10th

Dist.1997). In reviewing a motion for judgment on the pleadings, the courts are restricted

to the allegations in the pleadings as well as any material incorporated by reference or

attached as exhibits to the pleadings. Curtis v. Ohio Adult Parole Auth., 10th Dist. No.

04AP-1214, 2006-Ohio-15, ¶ 24. Appellate review of motions for judgment on the

pleadings is de novo. Kamnikar at ¶ 35, citing Perrysburg Twp. v. Rossford, 103 Ohio

St.3d 79, 2004-Ohio-4362, ¶ 5.

IV. ANALYSIS

{¶ 13} ECOT has alleged that BOE violated the OMA in three ways. In Count I of

the amended complaint, ECOT claims that BOE violated the OMA by unlawfully

deliberating and substantively discussing the ECOT resolution in a closed executive

session or in serial communications designed to avoid the need for public discussion.

(Am. Compl. at ¶ 55.) In Count II of the amended complaint, ECOT alleges that BOE

violated the OMA by conducting an improper executive session to discuss the ECOT

resolution because none of the statutory exceptions allowing for such a discussion apply.

(Am. Compl. at ¶ 58.) And in Count III of the amended complaint, ECOT claims that BOE

violated the OMA by failing to provide reasonable notice of its public meeting. (Am.

Compl. at ¶ 65.)

No. 17AP-510 5

{¶ 14} BOE has countered these arguments in two ways. First, BOE contends that

ECOT has failed to present a viable claim that BOE violated the OMA. Second, BOE

argues that it was exempt from the purview of the OMA because the actions taken by BOE

at the June 12, 2017 meeting were part of a quasi-judicial proceeding leading to a quasi-

judicial determination and thus outside the purview of R.C. 121.22.

{¶ 15} It is undisputed that the June 12, 2017 meeting of the BOE was a public

meeting within the meaning of the OMA. The question is whether the portion of the

meeting dealing with the ECOT resolution was exempt from the requirements of the

OMA. BOE argues that a hearing officer presided over a 10-day hearing , notice of the

hearing was provided to all prior to the hearing, and ECOT participated and presented

over 2,000 exhibits related to the matter. After submission of the 100-page report, BOE

contends that it was engaging in a quasi-judicial function when it decided whether to

adopt the hearing officer's report.

{¶ 16} In Bd. of Trustees of the Tobacco Use Prevention & Control Found. v.

Boyce, 185 Ohio App.3d 707, 2009-Ohio-6993, ¶ 64 (10th Dist.), this court stated:

Ohio's Open Meetings Act "is to be liberally construed to

require a public body at all times to take official action and

conduct deliberations upon official business in meetings

open to the public. R.C. 121.22(A). Its purpose is to assure

accountability of elected officials by prohibiting their secret

deliberations on public issues." State ex rel. Cincinnati

Enquirer v. Hamilton Cty. Commrs. (2002), 2002-Ohio-

2038, citing State ex rel. Cincinnati Post v. Cincinnati, 76

Ohio St.3d 540, 544, 1996-Ohio-372, 668 N.E.2d 903. If

specific procedures are followed, public officials may discuss

certain sensitive information in a private executive session

from which the public is excluded. R.C. 121.22(G) lists the

seven matters that a public body may consider in executive

session. A public body may convene in executive session only

after a motion and vote that specifically identifies the

permissible topic. R.C. 121.22(G); State ex rel. Long v.

Council of the Village of Cardington, 92 Ohio St.3d 54, 59,

2001-Ohio- 130, 748 N.E.2d 58 (If a public body decides to

conduct an executive session, the public body must specify in

its motion those matters that it will discuss in the executive

session.). The executive session may then be held "for the

sole purpose of the consideration of" one of the enumerated

exceptions. R.C. 121.22(G).

No. 17AP-510 6

{¶ 17} In the Tobacco Use case, this court held that a public board violated the

OMA because it conducted no public deliberation before taking action in an official

meeting. Id. at ¶ 74. "Given the absence of any public discussion by the board about the

specifics of the transfer resolution, it is reasonable to conclude that the board's discussion

regarding the amount and potential recipients of the transferred funds occurred during

the executive session." Id. at ¶ 73.

{¶ 18} In State ex rel. Ross v. Crawford Cty. Bd. of Elections, 125 Ohio St.3d 438,

2010-Ohio-2167, the relator asserted a violation of the OMA when the board of elections

failed to vote in public to hold an executive session to deliberate on a matter and then

failed to vote in public after the deliberations. The Supreme Court of Ohio held that

Ohio's Sunshine Law applies to meetings but not to adjudications in quasi-judicial

proceedings. Id. at ¶ 25. The court cited with approval a Sixth District Court of Appeals

decision in which the court held that because a certain proceeding was quasi-judicial, the

board was not required to comply with the OMA even though the board appeared to

conform to the exception in R.C. 121.22(G)(3) for holding an executive session. State ex

rel. Eaton v. Erie Cty. Bd. of Elections, 6th Dist. No. E-05-065, 2006-Ohio-966 at ¶ 66-

67, fn. 3.

{¶ 19} Therefore, if the BOE proceedings related to the ECOT resolution were

quasi-judicial, there can be no OMA violation.

{¶ 20} In determining whether a proceeding is quasi-judicial, the Supreme Court

has indicated the most common test is whether the function under consideration involves

the exercise of discretion and involves notice and the right to a hearing. M.J. Kelley Co. v.

Cleveland, 32 Ohio St.2d 150, 153 (1972); TBC Westlake v. Hamilton Cty. Bd. of Revision,

81 Ohio St.3d 58, 62 (1998). The Supreme Court has further indicated that quasi-judicial

proceedings require notice, hearing, and the opportunity for introduction of evidence.

Union Title Co. v. State Bd. of Edn., 51 Ohio St.3d 189, 191 (1990). "When there is no

requirement for notice, hearing, or an opportunity to present evidence, the proceedings

are not quasi-judicial." State ex rel. Mun. Constr. Equip. Operators' Labor Council v.

Cleveland, 141 Ohio St.3d 113, 2014-Ohio-4364, ¶ 36, citing M.J. Kelley Co., at paragraph

two of the syllabus ("Proceedings of administrative officers and agencies are not quasi-

No. 17AP-510 7

judicial where there is no requirement for notice, hearing and the opportunity for

introduction of evidence.").

{¶ 21} ECOT argues that whether a proceeding is quasi-judicial in nature depends

on what the law requires a public body to do and not what the public body actually does.

ECOT cites State ex rel. Zeigler v. Zumbar, 129 Ohio St.3d 240, 2011-Ohio-2939, for the

proposition that, if the statute does not expressly state notice, a hearing, and the

opportunity to present evidence, then the proceeding is not quasi-judicial. In Zeigler, a

board of county commissioners voted to remove a county treasurer from office. The

Supreme Court first reiterated that proceedings of administrative officers and agencies

are not quasi-judicial where there is no requirement for notice, hearing, and the

opportunity for introduction of evidence. Id. at ¶ 20. The court then stated:

The mere fact that the board of commissioners gave Zeigler

limited notice of the August 23 hearing and conducted the

hearing in a manner resembling a jury trial does not mean

that it exercised the quasi-judicial authority required to

make the removal order appealable under R.C. 2506.01. The

requirement of conducting a quasi-judicial hearing is the key

point of exercising that authority. State ex rel. Scheerach v.

Lorain Cty. Bd. of Elections, 123 Ohio St.3d 245, 2009-Ohio-

5349, ¶ 23 (fact that board of elections held a protest hearing

resembling a judicial trial even though not required to do so

did not constitute the exercise of quasi-judicial authority).

(Emphasis sic.) Id. at ¶ 21. Zeigler is distinguishable from the instant case in that in

Zeigler, there was no statute that required the board of commissioners to conduct a

hearing before it removed Zeigler from office, whereas here the statute expressly provides

for a hearing.

{¶ 22} Here, the statute in question provides for an informal hearing before the

board or its designee. R.C. 3314.08(K)(2)(b) expressly provides for a hearing, and it is

undisputed that ECOT was afforded the opportunity to present evidence at the hearing.

ECOT availed itself of that opportunity during a 10-day evidentiary hearing in which it

introduced more than 2,000 exhibits. By issuing its final determination after providing

notice, a hearing, and the opportunity to provide evidence, BOE was acting in a quasi-

judicial capacity.

No. 17AP-510 8

{¶ 23} ECOT further argues that BOE's final determination to adopt the ECOT

resolution was a policy decision, not a quasi-judicial determination.

{¶ 24} Here, the statute lays out a procedure for an appeal from a determination

that a community school owes money to the state. R.C. 3314.08(K) provides, in relevant

part, that:

If the review results in a finding that the community school

owes moneys to the state, the following procedure shall

apply:

(a) Within ten business days of the receipt of the notice of

findings, the community school may appeal the department’s

determination to the state board of education or its designee.

(b) The board or its designee shall conduct an informal

hearing on the matter within thirty days of receipt of such an

appeal and shall issue a decision within fifteen days of the

conclusion of the hearing.

(c) If the board has enlisted a designee to conduct the

hearing, the designee shall certify its decision to the board.

The board may accept the decision of the designee or may

reject the decision of the designee and issue its own decision

on the matter.

(d) Any decision made by the board under this division is

final.

{¶ 25} As can be seen from a plain reading of the statute, BOE is not required to

conduct the hearing itself, but can enlist a designee. Then BOE considers the evidence

and the report and recommendation of the hearing officer, much as a trial court acts on

the report and recommendation of a magistrate. BOE's determination is the final step in

the procedure. As such, it is part of a quasi-judicial proceeding.

{¶ 26} Finally, ECOT argues that BOE is bound by a letter written by the chief legal

counsel for the ODE in which counsel stated that the statutory provision at issue is not

listed in the BOE's policies and procedures manual as one of the department's quasi-

judicial determinations, is not subject to R.C. Chapter 119, and is therefore not an

adjudication under R.C. Chapter 119. The chief legal counsel then stated, "Thus it is not at

all clear that Board review of a decision from an 'informal hearing' under R.C. 3314.08(K)

constitutes a 'quasi-judicial' determination as that term is used in those Department

No. 17AP-510 9

reference materials." (May 19, 2017 Letter at 2, Ex. A to First Am. Compl.) The letter goes

on to state that even if a BOE review of the hearing officer's decision is a quasi-judicial

determination as that term is used in those reference materials, ECOT would not have the

right to appear in person at the BOE meeting to present additional evidence or testimony.

{¶ 27} This letter is not an admission as ECOT asserts. The legal counsel presented

alternative possibilities, but the question of whether the proceeding was quasi-judicial is

one of law for the court. The subject matter of the letter had to do with whether BOE's

review of the hearing officer's decision was subject to R.C. Chapter 119. The letter was not

an admission that the process was not quasi-judicial but, instead, dealt with what

procedures would be followed at the June 12, 2017 meeting. Whether ECOT could appeal

the BOE decision to the court of common pleas under R.C. Chapter 119 is not relevant to

the issue of this case.

{¶ 28} Because we have determined that the proceeding before BOE was quasi-

judicial, we need not address the BOE's remaining arguments that they fully complied

with the OMA.

V. CONCLUSION

{¶ 29} Based on the foregoing, we overrule the assignment of error and affirm the

judgment of the Franklin County Court of Common Pleas.

Judgment affirmed.

SADLER and BRUNNER JJ., concur.

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