Opinion

Hal v. Ohio Dept. of Edn.

2019 Ohio 5081

Court: Ohio Court of Appeals
Filed: Dec 10, 2019
Status: Published
On the bench: Brunner
Cited by: 6 cases
Authority: More cited than 62.6%

The opinion

[Cite as Hal v. Ohio Dept. of Edn., 2019-Ohio-5081.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Martha Hal, :

Appellant-Appellant, :

No. 18AP-301

v. : (C.P.C. No. 17CV-4132)

State of Ohio : (REGULAR CALENDAR)

Department of Education,

Appellee-Appellee.

D E C I S I O N

Rendered on December 10, 2019

On brief: Farlow & Associates, LLC, and Beverly J. Farlow,

for appellant. Argued: Beverly J. Farlow.

On brief: [Dave Yost], Attorney General, Mary L. Hollern,

and Hannah Stoneburner, for appellee. Argued: Hannah

Stoneburner.

APPEAL from the Franklin County Court of Common Pleas

BRUNNER, J.

{¶ 1} Appellant-appellant, Martha Hal, appeals from a decision and entry of the

Franklin County Court of Common Pleas affirming the resolution of the State of Ohio Board

of Education ("Board") which determined that Hal had engaged in conduct unbecoming to

the teaching profession, in violation of R.C. 3319.31(B)(1), and denying Hal's applications

for a five-year professional principal license and five-year professional special all grades

teaching license. For the following reasons, we affirm the common pleas court judgment.

I. FACTS AND PROCEDURAL HISTORY

{¶ 2} Hal was employed by Columbus City Schools ("CCS") as a teacher and

administrator beginning in 1989. During the 2010-2011 school year, she was employed as

a leadership intern assigned to Walnut Ridge High School, which involved duties similar to

No. 18AP-301 2

those of an assistant principal. Hal was instrumental in implementing a new program for

ninth graders called the "Freshman Forgiveness Program" ("FFP"), a program that offered

the opportunity to ninth graders to raise a failing grade to a "D" if they met the requirements

of the program, including attendance and additional make-up work. The program only

applied to core subjects, English, Science, Math, and Social Studies and a student could

only be enrolled in the program in one core class per nine-week period. A student needed

to attend the program for nine weeks to raise the failing grade for a nine-week period. A

student who successfully completed the FFP for a particular grading period could not

receive any grade higher than a "D." The FFP was approved by the Board in January 2011

and implemented immediately.

{¶ 3} On June 2 and 10, 2011, Hal's computer username was used to make changes

to the grades of eight freshman students, five of whom participated in the FFP. Hal

admitted making 7 of the 29 changes for those students because she argued the changes

were the result of the FFP and permissible changes. The changes are as follows:

{¶ 4} June 2, 2011 changes:

1. 2:49 pm, Student 1 – final mark in Exploration Lit & Comp

9 was changed from "F" to "D." Appellant admitted

making this change.

2. 2:48 pm, Student 1 – first grading period mark in

Exploration Lit & Comp 9 changed from "F" to "A."

Appellant denied making this change.

3. 2:46 pm, Student 1 – first grading period mark in Physical

Science was changed from "F" to "B." Appellant denied

making this change.

4. 12:40 pm, Student 2 – final mark in Exploration Lit &

Comp 9 was changed from "F" to "D." Appellant admitted

making this change.

5. 12:44 pm, Student 2 – final mark in Physical Science

changed from "F" to "D." Appellant admitted making this

change.

6. 12:36 pm, Student 2 – first grading period mark in

Physical Science was changed from "F" to "B." Appellant

denied making this change.

7. 12:39 pm, Student 2 – second grading period mark in

Exploration Lit & Comp 9 changed from "F" to "B."

Appellant denied making this change.

8. 12:37 pm, Student 2 – second grading period mark in

Physical Science changed from "F" to "D." Appellant

admitted making this change.

No. 18AP-301 3

9. 2:53 pm, Student 3 – final mark in Physical Science

changed from "D" to "C." Appellant denied making this

change.

10. 12:28 pm, Student 3 – final mark in Algebra 1 changed

from "F" to "D." Appellant admitted making this change.

11. 12:27 pm, Student 3 – first grading period mark in Algebra

1 changed from "F" to "B." Appellant denied making this

change.

12. 2:54 pm, Student 3 – third grading period mark in Physical

Science changed from "F" to "B." Appellant denied making

this change.

13. 12:32 pm, Student 4 – final mark in Physical Science

changed from "F" to "D." Appellant admitted making this

change.

14. 12:31 pm, Student 4 – first grading period mark in Physical

Science changed from "F" to "B." Appellant denied making

this change.

15. 12:07 pm, Student 6 – final mark in Physical Science

changed from "F" to "C." Appellant denied making this

change.

16. 12:06 pm, Student 6 – second grading period mark in

Physical Science changed from "F" to "A." Appellant

denied making this change.

17. 12:19 pm, Student 7 – final mark in Physical Science

changed from "F" to "D." Appellant admitted making this

change.

18. 12:17 pm, Student 7 – grading period one mark in Physical

Science changed from "F" to "A." Appellant denied making

this change.

19. 12:24 pm, Student 8 – final mark in Physical Science

changed from "D" to "C." Appellant denied making this

change.

20. 12:12 pm, Student 8 – grading period one mark in Physical

Science changed from "F" to "A." Appellant denied making

this change.

(Ex. 11.)

{¶ 5} Appellant denied making any changes on June 10, 2011:

1. 8:21 am, Student 5 – final exam in French 1 changed from

"D" to "B."

2. 8:22 am, Student 5 – final mark in Exploration Lit & Comp

9 changed from "C" to "B."

3. 8:21 am, Student 5- final mark in Physical Science changed

from "F" to "C."

4. 8:19 am, Student 5 – first grading period mark in Physical

Science changed from "F" to "C."

No. 18AP-301 4

5. 8:20 am, Student 5 – second grading period mark in

Physical Science changed from "F" to "C."

6. 8:20 am, Student 5 – third grading period mark in

Physical Science changed from "F" to "C."

7. 8:22 am, Student 5 – final mark in Exploration Lit & Comp

9 changed from "D" to "A."

8. 8:21 am, Student 5 – fourth grading period mark in French

1 changed from "F" to "B."

9. 8:21 am, Student 5 – fourth grading period mark in

Physical Science changed from "F" to "C."

(Ex. 11.)

{¶ 6} The Board caused Hal to be notified of its intention to determine whether to

deny or permanently deny her pending applications on account of alleged violations of R.C.

3319.31(B)(1) for engaging in conduct that was negligent and/or unbecoming a licensed

educator for changing the grades of multiple students for impermissible reasons. Hal

timely requested a hearing that was held before a hearing officer over the course of several

days, October 24-27, 2016. On January 24, 2017, the hearing officer issued her report and

recommendation and concluded that Hal engaged in conduct unbecoming to the teaching

profession, in violation of R.C. 3319.31(B)(1). The hearing officer recommended that the

Board deny Hal's applications for a 5-year professional principal license and 5-year

professional special all grades teaching license and, further, Hal be ineligible to reapply for

any license issued by the Board until on or after April 11, 2022 and only after Hal would

submit evidence that she completed 16 hours of ethics training.

{¶ 7} Hal filed objections to the report and recommendation. At its April 11, 2017

meeting, the Board issued a resolution in which it accepted the hearing officer's report and

recommendation and denied Hal's applications until on or after April 11, 2022, requiring

her to submit evidence that she completed 16 hours of ethics training. Hal filed a notice of

appeal to the Franklin County Court of Common Pleas under R.C. 119. The common pleas

court, acting as an administrative appellate court, affirmed the Board's resolution.

II. ASSIGNMENTS OF ERROR

{¶ 8} Hal appeals and assigns the following six assignments of error for our review:

[1.] THE TRIAL COURT ABUSED ITS DISCRETION IN

FINDING THAT ODE'S RESOLUTION WAS SUPPORTED BY

RELIABLE PROBATIVE, AND SUBSTANTIAL EVIDENCE.

[2.] THE LOWER COURT ABUSED ITS DISCRETION WHEN

IT FOUND THAT THE HEARING OFFICER DID NOT CRAFT

No. 18AP-301 5

HER OWN DEFINITION OF WHAT GRADES MEAN AND

THAT ODE OFFERED PROBATIVE RELIABLE EVIDENCE

TO ESTABLISH THE MEANING OF GRADES AND TO

EXPLAIN WHAT CONSTITUTES ACCURATE GRADES.

[3.] THE LOWER COURT ABUSED ITS DISCRETION IN

UPHOLDING THE FINDING THAT APPELLANT'S

BEHAVIOR CONSTITUTED CONDUCT UNBECOMING TO

THE TEACHING PROFESSION.

[4.] THE LOWER COURT ERRED AS A MATTER OF LAW IN

STATING THAT RELIABLE, PROBATIVE AND

SUBSTANTIAL EVIDENCE IS A QUESTION OF THE

ABSENCE OR PRESENCE OF THE REQUISITE AMOUNT OF

EVIDENCE.

[5.] THE LOWER COURT ERRED AS A MATTER OF LAW IN

FINDING THAT THE SANCTION IMPOSED BY THE BOARD

IS IN ACCORDANCE WITH THE LAW.

[6.] THE LOWER COURT ERRED AS A MATTER OF LAW IN

VIOLATION OF APPELLANT'S DUE PROCESS RIGHTS.

III. ANALYSIS

A. Standard of Review

{¶ 9} When hearing an appeal from a state administrative agency, a court of

common pleas "may affirm the order of the agency complained of in the appeal if it finds,

upon consideration of the entire record and such additional evidence as 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(M). Without such a finding, "it may reverse, vacate

or modify the order or make such other ruling as is supported by reliable, probative, and

substantial evidence and is in accordance with law." Id. The Supreme Court of Ohio

defined those terms in Our Place, Inc. v. Ohio Liquor Control Comm., 63 Ohio St.3d 570,

571 (1992), as follows:

(1) "Reliable" evidence is dependable; that is, it can be

confidently trusted. In order to be reliable, there must be a

reasonable probability that the evidence is true. (2) "Probative"

evidence is evidence that tends to prove the issue in question;

it must be relevant in determining the issue. (3) "Substantial"

evidence is evidence with some weight; it must have

importance and value.

No. 18AP-301 6

{¶ 10} An appellate court's standard of review is "more limited than that of the trial

court." Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993). In reviewing whether

the common pleas court's determination concerning reliable, probative, and substantial

evidence does or does not support the agency's order, the appellate court's role is limited to

determining whether the common pleas court abused its discretion. Id.; Gallagher v. Ross

Cty. Sheriff, 10th Dist. No. 06AP-942, 2007-Ohio-847, ¶ 15, citing Lorain City. Bd. of Edn.

v. State Emp. Relations Bd., 40 Ohio St.3d 257, 261 (1988). Absent an abuse of discretion

on the part of the trial court, an appellate court may not substitute its judgment for the

judgment of the board or a trial court. Pons at 621. However, "on the question of whether

the agency's order was in accordance with the law, this court's review is plenary." Leslie v.

Ohio Dept. of Dev., 171 Ohio App.3d 55, 2007-Ohio-1170, ¶ 44 (10th Dist.), citing Univ.

Hosp., Univ. of Cincinnati College of Medicine v. State Emp. Relations Bd., 63 Ohio St.3d

339, 343 (1992).

{¶ 11} The issue on appeal is whether the common pleas court abused its discretion

or committed a legal error when it found that there is reliable, probative, and substantial

evidence supporting the Board's resolution. Pons; Lorain City Bd. of Edn. at 261. An abuse

of discretion occurs when a trial court's judgment is unreasonable, arbitrary, or

unconscionable. State ex rel. McCann v. Delaware Cty. Bd. of Elections, 155 Ohio St.3d 14,

2018-Ohio-3342, ¶ 12. Even under an abuse of discretion standard, however, "no court has

the authority, within its discretion, to commit an error of law." Shaw v. Underwood, 10th

Dist. No. 16AP-605, 2017-Ohio-845, ¶ 25; State v. Akbari, 10th Dist. No. 13AP-319, 2013-

Ohio-5709, ¶ 7. Thus, " '[a] court abuses its discretion when its ruling is founded on an

error of law or a misapplication of law to the facts.' " Independence v. Office of the

Cuyahoga Cty. Exec., 142 Ohio St.3d 125, 2014-Ohio-4650, ¶ 49 (O'Donnell, J., dissenting),

quoting Doe v. Natl. Bd. of Med. Examiners, 199 F.3d 146, 154 (3d Cir.1999).

B. First Assignment of Error

{¶ 12} In her first assignment of error, Hal contends that the common pleas court

abused its discretion by finding that the Board's resolution was supported by reliable,

probative, and substantial evidence. Hal argues that the evidence offered by appellee-

appellee, Ohio Department of Education ("ODE"), is inadequate because ODE did not

definitively demonstrate that Hal was the person that changed the students' grades.

No. 18AP-301 7

{¶ 13} ODE introduced Exhibit 11, which is a spreadsheet of multiple grade changes

attributed to Hal's username that occurred on June 2 and 10, 2011. On June 2 and 10, 2011,

changes were made to the grades of 8 freshman students (29 changes in total), 5 of whom

participated in the FFP, by someone using Hal's username. Hal admits to making 7 of the

changes but denies making the other changes. Randy Ziemba, who during the 2010-2011

school year was employed as a data analyst for the Student Information System used at that

time, Electronic Student Information System, or eSIS, for CCS1 created Exhibit 11.2 Ziemba

testified that at the end of June or early July every year, the database is frozen, and it cannot

be edited anymore. The frozen database is archived. He created Exhibit 11 and explained

that the information in the spreadsheet was extracted from the CCS eSIS 2010-2011

database after the database had been frozen and changes could no longer be made to it.

{¶ 14} Hal argues that Exhibit 11 does not constitute competent evidence and does

not satisfy the rules of evidence. " 'Although administrative appeals to government agencies

are required to comport with fundamental aspects of due process, they are not judicial

proceedings.' " MNH Truck Leasing Co., LLC v. Dir., Ohio Dept. of Job & Family Servs.,

10th Dist. No. 16AP-301, 2017-Ohio-442, ¶ 12, quoting Rudd v. Ohio Dept. of Job & Family

Servs., 2d Dist. No. 2015-CA-9, 2015-Ohio-3796, ¶ 13. "As a general rule, administrative

agencies are not bound by the strict rules of evidence applied in court." MNH Truck

Leasing Co. at ¶ 12, citing H.K. Trading Ctr., Inc. v. Liquor Control Comm., 10th Dist. No.

09AP-293, 2010-Ohio-913, ¶ 41.

{¶ 15} Hal contends that since Exhibit 11 was altered after Ziemba created it by

replacing the students' names with numbers, it could not be considered an original. Evid.R.

1001(3) provides that "[i]f data are stored in a computer or a similar device, any printout or

other output readable by sight, shown to reflect the data accurately, is an 'original.' " Hal

ignores Ziemba's testimony that other than the students' names, Exhibit 11 was identical to

the exhibit he created. Ziemba compared Exhibit 11 to the original document (Exhibit 11(a))

he created during the hearing and found the information identical. Further, Ziemba

testified that the student numbers corresponded to the student names reflected in the

1 Subsequent to the 2010-2011 school year, CCS began using a database called Infinite Campus rather than

eSIS.

2 After Ziemba created Exhibit 11, the student names were exchanged for numbers to protect the students'

identities. Ziemba testified that Exhibit 11 was identical to the exhibit he created except for the substitution

of numbers for the names.

No. 18AP-301 8

Confidential Student Key, which was Exhibit 3B. Ziemba testified that the grade changes

in Exhibit 11 corresponded to the students' condensed reports (end of quarter or end of year

report) that constituted Exhibit 12. Thus, the common pleas court did not err in finding

that Exhibit 11 constituted reliable, probative, and substantial evidence.

{¶ 16} Hal further argues that the evidence demonstrated that the computer

passwords were not secure and, thus, the evidence adduced at the hearing was not reliable.

Hal testified that other employees used her computer and she saved her username and

password in the system. She generally left her office door unlocked. She had seen someone

using her computer remotely a couple times. Further, she believed once reassignment to a

different building took place, all access to the student information from the former building

was denied. Thus, once she transferred to Whetstone on June 6, 2011, she no longer had

access to the information at Walnut Ridge. Finally, she testified that the principal at Walnut

Ridge during the 2010-2011 school year admitted changing students' grades because the

building was in academic distress and he had access to her computer.

{¶ 17} The hearing officer found that the testimony regarding the accessibility of

usernames and passwords was such that it is possible that someone else made the changes

on June 10, 2011. (Report and Recommendation, Findings of Fact No. 16.) And it appears

the hearing officer concluded that the evidence was not reliable, probative, and substantial

in order to find that Hal made the grade changes on June 10, 2011. However, the hearing

officer found that regardless of the security of the computers, usernames, and passwords,

Hal's testimony denying she made the grade changes on June 2, 2011 "is not credible."

(Report and Recommendation, Findings of Fact No. 15.) Credibility determinations are

within the province of the trier of fact because the trier of fact is in the best position to take

into account inconsistencies, witnesses' mannerisms and demeanor, and to determine

witness credibility. Kabeer v. Purakaloth, 10th Dist. No. 05AP-1122, 2006-Ohio-3584,

¶ 12. Thus, the fact that the username and passwords were not secure does not dictate an

improper inference or a finding that the evidence at the hearing was unreliable.

{¶ 18} Hal also argues that the citation in the hearing officer's report and

recommendation incorrectly cites the record of that hearing. The hearing officer's findings

include:

On or about June 6, 2011, Ms. Hal was reassigned to Whetstone

High School. Ms. Hal testified that she would not have had

No. 18AP-301 9

remote computer access to Walnut Ridge records to make any

grade changes in June 10. However, because Ms. Hal's user ID

was used to change grades, Ms. Hal clearly has access

regardless of the building she was assigned to. Based on the

testimony regarding the accessibility of user names and

passwords, it is also possible that someone else made the

changes. The changes made on June 10 were to Student 5's

grades. The June 10 changes did not appear to follow the same

pattern of changes made on June 2 to all of the other students'

grades. Tr. Vol. 3, p. 82; ODE exhibits 11, 11a.

(Report and Recommendation, Findings of Fact No. 16.)

{¶ 19} The above quote of the hearing officer's Report and Recommendation refers

to Hal's testimony about her own Exhibit BB. Exhibit BB is a computer document that Hal

created on June 10, 2011, while at Whetstone High School. Hall offered in support of her

assertion that she was present at her new assignment at Whetstone on June 10, 2011 and

that she did not have remote access to Walnut Ridge student information after being

transferred to Whetstone. However, we view the transcript reference as reflecting that the

hearing officer believed that Hal was at Whetstone on June 10, 2011, and that someone else

may have made the changes on that date. But even if the hearing officer made reference to

that specific page in the transcript in error, we cannot conclude that the record shows the

evidence at the hearing was unreliable. Moreover, Hal testified it was necessary to complete

a Change of Location form in order to gain access, but such a form she states she completed

on her first day at Whetstone was not produced during trial.

{¶ 20} Finally, Hal takes issue with the statement of the hearing officer that Hal had

access to a CCS computer on June 10, 2011, because there was no evidence of which

computer Hal had access to on that date. We note that Hal's own Exhibit BB, submitted in

an effort to demonstrate that she had access to a computer at Whetstone on that date, shows

she had access to some computer in the school system on that date, which may have had an

effect on the hearing officer's judgment of Hal's credibility. But as for the hearing officer's

findings, Findings of Fact No. 16 and Conclusion of Law No. 6, contain this statement:

"Based on the foregoing findings of fact, Ms. Hal's misconduct on June 2, 2011 violated

Principles 1 and 3 [of the State Board of Education Licensure Code of Professional Conduct

for Ohio Educators in 2008]." (Emphasis added.) Thus, it is clear that the hearing officer

No. 18AP-301 10

did not use the conduct that occurred on June 10, 2011 as a basis for finding Hal violated

Principles 1 and 3. Hal's first assignment of error is overruled.

{¶ 21} In her second assignment of error, Hal contends that the common pleas court

abused its discretion when it found on the one hand that the hearing officer did not craft

her own definition of what grades mean but on the other hand found that ODE offered

probative, reliable evidence to establish the meaning of grades and to explain what

constitutes accurate grades. Hal's argument is essentially that ODE did not present any

evidence regarding what the students' grades at issue should have been in order to

demonstrate that their recorded grades were not accurate.

{¶ 22} Despite Hal's contention, a CCS employee did testify at the hearing about

grades. Laura Commodore, a CCS administrator, testified that CCS did not have a policy

stating that grades could not be changed. However, she testified that there were reasons

for permitting grade changes, such as the teacher had inputted an incorrect grade, missing

grades from the condensed grade report from transfer students, and changes to align the

students' grades with policy where the students' grade calculations did not add together

properly. Hal highlights Commodore's testimony on this point to argue that grades are

changed to "align with policy" in an effort to argue that there was no set policy and grades

could be changed, therefore, ODE did not demonstrate what constitutes accurate grades.

However, Commodore testified that changes could be made to align with policy, but that

was when the mathematical calculations were not accurate. Commodore described the

mathematical calculation for determining grades by assigning a number to the letter grade

for each grading period (four points for an A, three points for a B, two points for a C, one

point for a D, and zero points for an F). The final grade was calculated by doubling each

grading period, adding the points earned on the final exam and dividing the total by nine.