Hobbs v. Pickaway-Ross Career & Technology Ctr. Bd. of Edn.

[Cite as Hobbs v. Pickaway-Ross Career & Technology Ctr. Bd. of Edn., 2022-Ohio-921.]

IN THE COURT OF APPEALS OF OHIO

FOURTH APPELLATE DISTRICT

ROSS COUNTY

JON HOBBS, :

: Case No. 21CA3746

Appellant-Appellant, :

:

v. : DECISION AND JUDGMENT

: ENTRY

PICKAWAY-ROSS CAREER AND :

TECHNOLOGY CENTER BOARD OF :

EDUCATION, et al., :

: RELEASED: 03/21/2022

Appellees-Appellees. :

APPEARANCES:

Dennis L. Pergram, Manos, Martin & Pergram Co., L.P.A., Delaware, Ohio, for

Appellant.

James K. Stucko, Jr., and Derek L. Towster, Scott Scriven, L.L.P., Cleveland,

Ohio, for Appellees.

Wilkin, J.

{¶1} Appellant, Jon Hobbs, appeals the Ross County Court of Common

Pleas judgment affirming a decision by appellee, Pickaway-Ross Career and

Technology Center Board of Education that terminated appellant’s employment

as a custodian.

{¶2} Appellant presents four assignments of error for our review. First,

appellant asserts the trial court erred by finding a reason for termination that was

contrary to the reason stipulated by the parties. Second, appellant argues that

the trial court erred by not reversing the termination order because it was not

supported by a preponderance of reliable, probative and substantial evidence.

Third, appellant maintains that the trial court erred by not reversing the arbitrary,

Ross App. No. 21CA3746 2

capricious, and unreasonable termination by the appellee and applied the

incorrect standard of review. Fourth, appellant claims that the trial court erred by

not finding that the appellee’s termination of his employment was

unconstitutional. After reviewing the parties’ arguments, the record, and the

applicable law, we overrule appellant’s four assignments of error, and affirm the

trial court’s judgment.

FACTS AND PROCEDURAL BACKGROUND

{¶3} Appellant had been employed as a custodian for the appellee starting

on June 13, 2016 in accordance with R.C. 3319.081. On August 22, 2018,

appellant had an incident with two of appellee’s teachers. Appellant sought out

and confronted one of the teachers for putting tape on the floor of her classroom.

He was angry because the tape got caught in his sweeper. The two teachers co-

authored a written statement complaining of appellant’s conduct on that date,

claiming that he cursed because of the tape, but stopped short of calling the

teacher the third letter in the alphabet, which the second teacher interpreted to

mean “c _ _t.” Appellant authored his own written statement that provided his

version of what occurred, claiming that he apologized for sweeping up the tape

and did not say anything inappropriate or sexual in nature. Appellee’s

superintendent met with all three individuals to discuss the incident.

Subsequently, the superintendent recommended that appellee terminate

appellant’s employment. Appellee issued a resolution terminating appellant’s

employment for incompetency, inefficiency, dishonesty, neglect of duty,

misfeasance, malfeasance, and nonfeasance at its September 13, 2018

Ross App. No. 21CA3746 3

meeting.

{¶4} Appellant appealed the appellee’s decision to the court of common

pleas pursuant to R.C. Chapter 2506. In his brief before that court, appellant

asserted three assignments of error: (1) the appellee terminated his employment

without any fact finding, which made a meaningful review of appellee’s decision

impossible, (2) his due process rights were violated because he did not receive

notice of the charges against him; there was no transcript of the administrative

proceedings, he was not afforded an opportunity to present evidence, or

witnesses; and he was not permitted to attend the meeting where the appellee

voted to terminate his employment, and (3) the appellee erroneously labeled

appellant as a “substitute.” However, prior to the court’s consideration of

appellant’s appeal, the parties in pertinent part stipulated to the following:

 Appellant’s employment was in accordance with R.C. 3319.081.

 “Appellant’s termination of employment by Appellee was based solely

on an incident involving Appellant and two of Appellee’s teachers that

occurred on August 22, 2018.”

 “The August 22, 2018 incident is described in two written statements.”

One was co-authored by two of appellee’s teachers, and the other was

authored by appellant. Both statements were part of the transcript on

appeal.

 Appellee’s superintendent met individually with both teachers and

appellee regarding the incident and the superintendent recommended

to the appellee that appellant’s employment be terminated.

Ross App. No. 21CA3746 4

 Appellee terminated appellant’s employment in accordance with R.C.

3319.081 for incompetency, inefficiency, dishonesty, neglect of duty,

misfeasance, malfeasance, and nonfeasance.

 Both parties agreed to “waive any and all arguments regarding

procedural issues and requirements that were not followed or properly

provided.”

 The parties agreed to “jointly submit the following issue to the Court for

a bench decision: ‘Whether Appellee’s decision to terminate appellant

was unconstitutional, illegal, arbitrary, capricious, unreasonable, or

unsupported by the preponderance of substantial, reliable and

probative evidence.’ ”

 “No additional documents or evidence will be submitted with trial

briefs[.]”

{¶5} The court issued a judgment entry that found there was not a

preponderance of reliable, probative and substantial evidence that appellant was

incompetent, inefficient, neglected his duties, or acted with nonfeasance or

misfeasance. However, the court further found that there was a preponderance

of reliable, probative and substantial evidence that appellant acted with

malfeasance and was dishonest and on that basis affirmed the appellee’s

termination of appellant’s employment.

{¶6} In addressing appellee’s malfeasance determination, the court found

that malfeasance means “wrongdoing or misconduct, especially by a public

official.” The trial court found no evidence that appellant called one of appellee’s

Ross App. No. 21CA3746 5

teachers a “c_ _t,” but stated that “misses the greater point.” The court found

that there was “a preponderance of reliable, probative, and substantial evidence

that appellant: (1) initiated a conversation with a female teacher, (2) expressed

his displeasure at her having placed tape on the floor, and (3) indicated that he

had cursed her for doing it.” The court concluded that if the statement by the

teachers is “taken at face value, there is a preponderance of evidence that

appellant engaged in wrongdoing or misconduct.” Specifically, the court found

“[t]he manner in which appellant approached [the teacher], and the context of

what he said to her, left [her] shaken, and with the impression – whether accurate

or not – that appellant had directed a crude remark to her.” Therefore, the court

affirmed the appellee’s decision to terminate appellant’s employment based on

malfeasance, which it found was “wrongdoing or misconduct.”

{¶7} In addressing appellee’s dishonesty determination, the court

recognized that it was required to give deference to an administrative resolution

of evidentiary conflicts. The trial court noted that the written statements by

appellant and the teachers recounted the incident “differently.” It further found

that appellee’s superintendent had the opportunity to observe the demeanor of

appellant and the teachers while meeting with them regarding the incident, and

that the appellee concluded that appellant’s account was not truthful in stating

what happened during his encounter with the teachers. Therefore, the court also

affirmed appellee’s termination of appellant based on his dishonesty.

Ross App. No. 21CA3746 6

{¶8} Accordingly, the trial court found two of the five reasons cited by

appellee for terminating appellant were supported by the evidence, and therefore

affirmed appellant’s termination. It is this judgment that appellant appeals.

ASSIGNMENTS OF ERROR

I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY

FINDING A REASON FOR THE TERMINATION THAT WAS

CONTRARY TO THE REASON STIPULATED BY THE PARTIES.

II. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN

NOT REVERSING THE TERMINATION ORDER BECAUSE THE

TERMINATION WAS NOT SUPPORTED BY A

PREPONDERANCE OF RELIABLE, PROBATIVE AND

SUBSTANTIAL EVIDENCE.

III. THE TRIAL COURT COMMITTED PREJUCIAIL ERROR BY NOT

REVERSING THE ARBITRARY, CAPRICIOUS, AND

UNREASONABLE TERMINATION BY THE APPELLEEAND

APPLIED THE INCORRECT STANDARD OR REVIEW.

IV. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY

NOT FINDING THAT THE BOARD’S TERMINATION OF MR.

HOBB’S EMPLOYMENT WAS UNCONSTITUTIONAL

STANDARD OF REVIEW

{¶9} “R.C. 3319.081 governs the termination of non-teaching employees

of a local school board.” Durham v. Pike Cty. Joint Vocational Sch., 150 Ohio

App. 3d 148, 779 N.E.2d 1051, ¶ 17 (4th Dist.), citing Proctor v. Alliance Pub.

School Dist. Bd. of Edn., 60 Ohio App.2d 396, 398 N.E.2d 805 (5th Dist. 1978),

fn. 2. R.C. 3319.081(C) provides that non-teaching employees may “only be

terminated for cause” (e.g., incompetency, inefficiency, dishonesty, drunkenness,

immoral conduct, insubordination, discourteous treatment of the public, neglect of

duty, or any other acts of misfeasance, malfeasance, or nonfeasance), which

means that the employee has a property right in his or her employment, and

Ross App. No. 21CA3746 7

therefore must be afforded pre and post termination due process rights. Stewart

v. Lockland Sch. Dist. Bd. of Edn., 1st Dist. Hamilton No. C-130263, 2013-Ohio-

5513, ¶ 8. If an employee is afforded post-termination administrative procedures,

the pre-termination procedures need not be elaborate, and “[do] not require a full

evidentiary hearing.” Id., citing Cleveland Bd. of Edn. v. Loudermill, 470 U.S.

532, 545-548, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). “[W]here adequate post-

termination proceedings are in place to protect the employee's property interest,

the pre-termination process must meet only a barest minimum standard

of due process.” Green v. Vill. of Buckeye Lake, 5th Dist. Licking No. 01CA106,

2002-Ohio-2543, *4.

{¶10} “Because R.C. 3319.081 does not set forth specific procedures for

appeal, the trial court must follow the procedures set forth in R.C. Chapter 2506

to conduct the appeal.” Durham at ¶ 17, citing Robinson v. Springfield Local

School Dist. Bd. of Edn., 144 Ohio App.3d 38, 42, 759 N.E.2d 444 (9th Dist.

2001).

R.C. 2506.03 specifically provides that if an appellant was

not permitted to appear at the administrative level and allowed to

present arguments, offer and examine or cross-examine

witnesses or present evidence, and do all such other things

customarily allowed by due process, the court “shall hear the

appeal upon the transcript and such additional evidence as may

be introduced by the party.”

Id. at 31, citing Lewis v. Fairborn, 116 Ohio App.3d 602, 604, 688 N.E.2d 1082

(2d Dist.1996), quoting R.C. 2506.03; see also AT&T Commc'ns of Ohio, Inc. v.

Lynch, 132 Ohio St. 3d 92, 2012-Ohio-1975, 969 N.E.2d 1166, ¶ 13.

These deficiencies must appear on the face of the transcript, or be asserted in an

affidavit by the appellant. R.C. 2506.03(A). If not, the common pleas court is

Ross App. No. 21CA3746 8

limited to reviewing “the transcript as filed[.]” Lynch at ¶ 13, quoting Court Street

Dev. v. Stow City Council, 9th Dist. No. 19648, 2000 WL 1226604, *4 (Aug. 30,

2000).

{¶11} In reviewing an administrative decision, “the common pleas court

considers the whole record and determines whether the administrative order is

‘unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by

the preponderance of substantial, reliable, and probative evidence.’ ”

Independence v. Office of the Cuyahoga Cty. Executive, 142 Ohio St.3d 125,

2014-Ohio-4650, 28 N.E.3d 1182, ¶ 13, quoting R.C. 2506.04. If the court finds

“a preponderance of reliable, probative, and substantial evidence supports the

administrative decision, * * * the court may not substitute its judgment for that of

the board.” Id., citing Dudukovich v. Lorain Metro. Hous. Auth., 58 Ohio St.2d

202, 207, 389 N.E.2d 1113 (1979). “If it does not, the court may reverse, vacate

or modify the administrative decision.” Id.

{¶12} “As contrasted with reviews by common pleas courts, reviews by

appellate courts under R.C. 2506.04 are ‘ “more limited in scope.” ’ ” Three Wide

Ent. v. Athens Bd. of Zoning Appeals, 194 Ohio App. 3d 1, 954 N.E.2d 191, ¶ 9

(4th Dist.), quoting Henley v. Youngstown Bd. of Zoning Appeals, 90 Ohio St.3d

142, 147, 735 N.E.2d 433 (2000), quoting Kisil v. Sandusky, 12 Ohio St.3d 30,

34, 465 N.E.2d 848 (1984). “While the court of common pleas is required to

examine the evidence, the court of appeals may not weigh the evidence.” Shelly

Materials, Inc. v. City of Streetsboro Plan. & Zoning Comm'n, 158 Ohio St.3d

476, 2019-Ohio-4499, 145 N.E.3d 246, ¶ 17, citing Independence, 142 Ohio

Ross App. No. 21CA3746 9

St.3d 125, 2014-Ohio-4650, 28 N.E.3d 1182, at ¶ 14. “[T]he role of an appellate

court in a R.C. 2506.01 appeal is limited to reviewing questions of law, which the

court reviews de novo, and to determining whether the trial court abused its

discretion in applying the law.” Fahl v. Athens, 4th Dist. Athens No. 6CA23,

2007-Ohio-4925, ¶ 13, citing Kisil at 34, fn.4; Lawson v. Foster, 76 Ohio App.3d

784, 603 N.E.2d 370 (2d Dist. 1992).

Apart from deciding purely legal issues, the court of

appeals can determine whether the court of common pleas

abused its discretion, which in this context means reviewing

whether the lower court abused its discretion in deciding that an

administrative order was or was not supported by reliable,

probative, and substantial evidence.

Shelly Materials at ¶ 17, citing Boice v. Ottawa Hills, 137 Ohio St.3d 412, 2013-

Ohio-4769, 999 N.E.2d 649, ¶ 7, citing Kisil, at 34.

{¶13} An abuse of discretion means that the “trial court's decision was

unreasonable, arbitrary or unconscionable and not merely an error of law or

judgment.” Id., citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450

N.E.2d 1140 (1983). Absent an abuse of discretion, “we must affirm the

judgment of the trial court.” Biggert v. Highland Cty. Bd. of Dev. Disabilities, 4th

Dist. Highland No. 12CA19, 2013-Ohio-2112, ¶ 11, citing Benincasa v. Stark

County Board of MRDD, 5th Dist. Stark No. 2003CA00350, 2004-Ohio-4941, ¶

19, citing Doll v. Stark County Board of MRDD, 5th Dist. Stark No. 2001

CA00255, 2001-Ohio-7052; citing Unit. Hosp., Univ. of Cincinnati College of

Medicine v. State Emp. Relations Bd., 63 Ohio St.3d 339, 344, 587 N.E.2d 835

(1992).

Ross App. No. 21CA3746 10

FIRST ASSIGNMENT OF ERROR

{¶14} In the first assignment of error, appellant argues that the trial court

improperly considered issues beyond the scope of the parties’ stipulations by

affirming the appellee’s determination of dishonesty. Appellant relies on the

stipulated language, which states that “[his] termination of employment by

appellee was based solely on an incident involving appellant and two of

appellee’s teachers that occurred on August 22, 2018.” (Emphasis added.). He

claims that a determination of dishonesty could arise only from considering the

written statements by appellant and appellee’s employees, which were drafted

after the August 22nd incident. Appellant further maintains that “[a]lthough the

trial court erred in considering the written statements there does not appear to be

any dishonesty in [his] written statement but, rather, in his written statement and

the teacher’s written statement, a failure to set forth in precise detail what was

said from beginning to end.”

{¶15} In response, appellee argues that the trial court’s decision affirming

that appellant acted dishonest was consistent with the stipulations, citing the

following language:

[The parties] agree to jointly submit the following issue to the

Court for a bench decision:

“Whether Appellee’s decision to terminate appellant was

unconstitutional, illegal, arbitrary, capricious, unreasonable, or

unsupported by the preponderance of substantial, reliable and

probative evidence.”

Appellee asserts that this language required the trial court to consider the

“evidence,” which included the parties’ written statements, and the appellee

Ross App. No. 21CA3746 11

determined that the teachers’ position was more credible leading to its conclusion

that appellant was dishonest.

{¶16} A stipulation is “a voluntary agreement entered into between

opposing parties concerning the disposition of some relevant point to avoid the

necessity for proof on an issue.” Crow v. Nationwide Mut. Ins. Co., 2004-Ohio-

7117, 159 Ohio App. 3d 417, 824 N.E.2d 127, ¶ 18, quoting Rice v. Rice, 8th

Dist. Cuyahoga App. No. 78682, 2001 WL 1400012, (Nov. 8, 2001) * 4. “It is the

duty of the court to construe the written stipulations of parties, and in doing so to

adopt as the true meaning of words, the definitions of them according to which

they are generally understood, the presumption being that the parties intended to

use them in that sense.” Holterhoff v. Mut. Benefit Life Ins. Co., 5 Ohio Dec.Rep.

141, 149, 1874 WL 5359 (Super.Ct.1874), see also Columbus S. Power Co. v.

Pub. Util. Comm., 67 Ohio St. 3d 535, 620 N.E.2d 835 (1993).

{¶17} In pertinent part the parties’ stipulations provide:

4) Appellant’s termination of employment by Appellee was based

solely on an incident involving Appellant and two of Appellee’s

teachers that occurred on August 22, 2018.

***

10) Appellant and Appellee agree to jointly submit the following

issue to the Court for a bench decision”

“Whether Appellee’s decision to terminate Appellant was

unconstitutional, illegal, arbitrary, capricious, unreasonable, or

unsupported by the preponderance of substantial, reliable and

probative evidence.” (Emphasis added.)

{¶18} When section 4 of the stipulations is read in context with section 10,

we find the only reasonable interpretation is that the parties intended the court to

consider only the incident that occurred on August 22, 2018, and the evidence

Ross App. No. 21CA3746 12

pertaining to that incident, which was presented to the appellee. To adopt

appellant’s interpretation of the stipulations would effectively nullify the language

in section 10, which provides that the court was to determine whether there is a

“preponderance of substantial, reliable and probative evidence” supporting the

appellee’s decision. The written statements were evidence pertaining to the

incident. Appellant’s overly narrow interpretation of what “solely” occurred on the

August 22nd incident is unreasonable as it would have effectively precluded the

court from reviewing evidence in this case.

{¶19} Therefore, we find that the trial court did not err in deciding that the

stipulations permitted it to consider the evidence presented regarding the August

22, 2018 incident, which included the written statements. Accordingly, we

overrule appellant’s first assignment of error.

SECOND ASSIGNMENT OF ERROR

{¶20} In his second assignment of error, appellant asserts that the trial

court’s decision affirming his termination was not supported by a preponderance

of reliable, probative, and substantial evidence. Our review is whether the trial

court abused its discretion in finding that such evidence existed and supported

the appellee’s decision. Shelly Materials, 158 Ohio St. 3d 476, 2019-Ohio-4499,

145 N.E.3d 246, ¶ 17.

A. The Evidence

{¶21} Appellant admits that he had a “conversation” with a teacher and

“expressed his displeasure at her having placed tape on the floor[,]” but he

argues that there was not a preponderance of reliable, probative, and substantial

Ross App. No. 21CA3746 13

evidence that he “had cursed” at the teacher for putting the tape on the floor as

the trial court found. Rather, he “cursed the circumstance that occurred while he

was sweeping the floor.” On this basis, he appears to argue that the trial court’s

decision was not supported by a preponderance of substantial, reliable, and

probative evidence.

{¶22} In response, appellee argues that the trial court determined from the

evidence that it was more likely than not that appellant had cursed at the teacher

for placing the tape on the floor. Moreover, appellee maintains that the court

found that ultimately it was immaterial whether or not appellant called the teacher

a “c_ _ t.” Rather, appellee asserts that the trial court’s decision upholding the

termination was based on the manner in which appellant approached the teacher

that left her shaken and believing that he had made a crude remark toward her.

{¶23} Appellee also notes that appellant does not make any argument that

the trial court’s conclusion that appellant’s termination for dishonesty was

unsupported by a preponderance of probative, reliable, and substantial evidence.

Appellee argues that the trial court’s decision can be affirmed on this ground

alone.

{¶24} “ ‘ “Reliable” evidence is dependable or trustworthy; “probative”

evidence tends to prove the issue in question and is relevant to the issue

presented; and “substantial” evidence carries some weight or value.’ ” Ohio Univ.

v. Ohio Civ. Rts. Comm., 175 Ohio App. 3d 414, 2008-Ohio-1034, 887 N.E.2d

403, ¶ 57 (4th Dist.), quoting Case W. Res. Univ., 76 Ohio St.3d 168, 178, 666

N.E.2d 1376, citing Our Place, Inc. v. Ohio Liquor Control Comm., 63 Ohio St.3d

Ross App. No. 21CA3746 14

570, 571, 589 N.E.2d 1303 (1992). Preponderance of the evidence has been

defined as “ ‘evidence which is of greater weight or more convincing than the

evidence which is offered in opposition to it; * * * evidence which is more credible

and convincing to the mind.’ ” Williams v. Mosser, 6th Dist. Sandusky No. S-96-

051, 1997 WL 771565, *2, quoting Black's Law Dictionary (6 Ed.Rev.1990).

Therefore, in assessing whether there is a preponderance of evidence, “ ‘[i]t is

the quality of the evidence that must be weighed, and quality may or may not be

identical with the quantity or the greater number of witnesses.’ ” [brackets sic.]

Johnson v. Am. Italian Golf Ass'n of Columbus, 2018-Ohio-2100, 113 N.E.3d

1144 (10th Dist.), ¶ 22, quoting State v. Levonyak, 7th Dist. Mahoning No. 05 MA

227, 2007-Ohio-5044, ¶ 58. And “the Court of Common Pleas must give due

deference to the administrative resolution of evidentiary conflicts.” Univ. of

Cincinnati v. Conrad, 63 Ohio St. 2d 108, 111, 407 N.E.2d 1265 (1980).

However, the findings of the agency are by no means conclusive. If the court, in

reviewing the evidence, “determines that there exist legally significant reasons for

discrediting certain evidence relied upon by the administrative body, and

necessary to its determination, the court may reverse, vacate, or modify the

administrative order.” Id.

{¶25} The court found no evidence appellant called the teacher a “c_ _t,”

but went on to state that “misses the greater point,” and did not preclude the

appellee from finding malfeasance. Instead, the court found that there was a

preponderance of reliable, probative and substantial evidence that appellant “(1)

initiated a conversation with a female teacher, (2) expressed his displeasure at

Ross App. No. 21CA3746 15

her having placed tape on the floor, and (3) indicated that he had cursed her for

doing it.” The court further found that if the teachers’ statement “is taken at face

value, there is a preponderance of evidence that appellant engaged in

wrongdoing or misconduct.” The court found that it was the “manner in which

appellant approached [the teacher], and the context of what he said to her, left

[the teacher] shaken, and with the impression - whether accurate or not - that

appellant had directed a crude remark to her.”

{¶26} In his statement, appellant said that he apologized to the teacher for

sweeping up the tape off her classroom floor, and further stated “I was joking

about saying things when I was cutting the tape out of the sweeper.” However, in

contrast, the teachers’ statement indicated that appellant stated to them: “So,

have you decided to be rebellious?” The statement further indicated that he said

“shit” regarding the tape getting caught in the sweeper, and “stopped short of

calling [the teacher] the third letter of the alphabet,” which the second teacher

interpreted as meaning “c_ _ t.”

{¶27} Both statements corroborate that appellant and the teacher spoke to

each other on August 22, 2018, but the appellee had authority to assess the

credibility of the statements and determine, which, if either, was reliable or

credible. Accepting that the appellee found the teachers’ statement more

credible, even without speculating what appellant meant by not “calling [the

teacher] the third letter of the alphabet,” there is evidence that appellant acted in

a hostile, confrontational manner when speaking to the teacher, and could

support a claim of malfeasance (wrongdoing) by appellant. Therefore, we find

Ross App. No. 21CA3746 16

that the trial court did not abuse its discretion in finding that the appellee’s

decision was supported by a preponderance of reliable, probative, and

substantial evidence supporting the appellee’s decision.

B. Additional Considerations

{¶28} Appellant next argues that in most circumstances a public-school

employee should be afforded an opportunity to change their behavior, citing

Bertolini v. Whitehall City Sch. Dist. Bd. of Edn., 139 Ohio App. 3d 595, 744

N.E.2d 1245 (10th Dist. 2000). He further claims that in most circumstances

(except in cases involving serious offenses, such as sexual relationships with

students, embezzlement, felonies, and offenses of violence), a school board is

required to consider an employee’s record before terminating his or her

employment, citing Katz v. Maple Hts. City Sch. Dist. Bd. of Edn., 87 Ohio App.

3d 256, 622 N.E.2d 1 (8th Dist. 1993), Johnson v. Edgewood City Sch. Dist. Bd.

of Edn., 12th Dist. Butler No. CA2008-09-215, 2009-Ohio-3827, and Stalder v.

St. Bernard-Elmwood Place City Sch. Dist., 1st Dist. Hamilton No. C-090632,

2010-Ohio-2363. Finally, appellant maintains that appellee’s policy No. 4139

“protected [him] from discipline that is disproportionate to the complained

conduct.”

{¶29} “A failure to raise an issue during an administrative appeal before

the common pleas court operates as a waiver of the party's right to assert the

issue for the first time to an appellate court.” Gross Builders v. City of Tallmage,

9th Dist. Summit No. 22484, 2005-Ohio-4268, ¶ 36, citing Thrower v. Akron Dept.

of Public Hous. Appeals Bd., 9th Dist. Summit No. 20778, 2002-Ohio-3409, ¶ 20,

Ross App. No. 21CA3746 17

citing State ex rel. Zollner v. Indus. Comm., 66 Ohio St.3d 276, 278, 611 N.E.2d

830 (1993).

{¶30} In reviewing the brief that appellant filed in the common pleas court,

there is no argument that the appellee should have afforded him an opportunity

to change his behavior, considered his employment record before terminating

him, or that termination of his employment was an excessive punishment. By

failing to do so, appellant waived those issues in his appeal to this court.

{¶31} Therefore, because these issues were not raised by appellant in his

administrative appeal to the common pleas court, they are waived in his appeal

to this court. Accordingly, we overrule appellant’s second assignment of error.

THIRD ASSIGNMENT OF ERROR

{¶32} In his third assignment of error, appellant argues that the appellee’s

decision to terminate his employment was arbitrary, capricious, and

unreasonable.

A. Gross Negligence

{¶33} Appellant asserts that appellee “grossly neglected” its duty in

deciding to terminate appellant’s employment. In support, appellant cites the fact

that the appellee needed only ten minutes to decide that he should be

terminated. He also alleges that the face of the appellee’s resolution terminating

his employment cites contradictory grounds for his termination. He maintains that

these actions/inactions by the appellee violated his due process rights.

{¶34} In response, the appellee claims that it conducted an investigation

and provided appellant an opportunity to respond to the allegation before

Ross App. No. 21CA3746 18

convening and deciding to terminate him, which is sufficient pre-termination due

process.

{¶35} It appears that appellant is arguing that the appellee’s deliberation

during the pre-termination hearing was insufficient to afford him due process.

The parties’ stipulations “agree[d] to waive any and all arguments regarding

procedural issues and requirements that were not followed or properly

conducted.” Consequently, we find that appellant has waived his “gross

negligence” argument.

{¶36} Further, we find the mere fact that the appellee’s deliberation was

brief and found numerous grounds to support appellant’s termination, some

which were overturned by the trial court, is insufficient for use to conclude that

the trial court abused it discretion in affirming the appellee’s decision to terminate

appellant for purposes of pre-termination due process.

B. Executive Session

{¶37} Appellant also argues that his due process rights were violated

when the appellee went into executive session to determine his termination

without his presence. We also find that this issue was waived pursuant to the

parties’ stipulations. Moreover, for purposes of pre-termination due process, the

Supreme Court has held that if a non-teaching employee is afforded notice and

an opportunity to be heard, “nothing prevent[s] [a school board] from thereafter

adjourning into executive session to deliberate upon its decision.” Steward v.

Lockland School Dist. Bd. Of Edn., 144 Ohio St. 3d 292, 2015-Ohio-3839, 42

N.E.3d 730, ¶ 13.

Ross App. No. 21CA3746 19

{¶38} Therefore, we find that the trial court did not abuse its discretion in

finding that the appellee’s decision to terminate appellant’s employment was

supported by a preponderance of probative, reliable, and substantial evidence,

as well the parties’ stipulations, which waived appellant’s due process argument.

C. Standard of Review

{¶39} Appellant also maintains that the common pleas court applied the

wrong standard of review to the extent that it stated it must “presume the validity

of the administrative decision.” Appellant argues that the presumption-of-the-

validity-of-an-administrative-decision standard of review applies only when an

appellant alleges an “irregularity of the proceedings below.” Therefore, appellant

claims that the trial court erroneously believed that its review of the appellee’s

decision was unduly limited.

{¶40} In response, appellee maintains that the trial court employed the

proper standard of review. In support, the appellee cites the Supreme Court

case, Cmty. Concerned Citizens, Inc. v. Union Twp. Bd. of Zoning Appeals, 66

Ohio St. 3d 452, 456, 1993-Ohio-115, 613 N.E.2d 580.

{¶41} In its entirety, the trial court herein applied the following standard of

review:

“In reviewing an appeal of an administrative decision, a

court of common pleas begins with the presumption that the

board’s determination is valid, and the appealing party bears the

burden of showing otherwise.” A.M.R. v. Zane Trace Loc. Bd. Of

Edn., 2012-Ohio-2419 (4th Dist.). The Court of Common Pleas

must ‘weigh the evidence in the record * * * to determine whether

there exists a preponderance of reliable, probative and

substantial evidence to support the agency decision.”

Dudukovich v. Lorain Metropolitan Housing Authority, 58 Ohio

St.2d 202 (1979). If a preponderance of evidence exists, the

Ross App. No. 21CA3746 20

Court must affirm the decision; if it does not exist, the Court may

reverse, vacate, modify, or remand. Id.

{¶42} In Concerned Citizens, the Court addressed the standard of review

regarding the appeal of an administrative decision:

In reviewing appellee's decision, a court is bound by the nature

of administrative proceedings to presume that the decision of the

administrative agency is reasonable and valid. Courts evaluating

the decision of an administrative body must weigh the evidence

in the record in order to determine whether there is a

preponderance of reliable, probative, and substantial evidence

supporting the decision. (Internal citations omitted, emphasis

added)

66 Ohio St. 3d 452, 456, 1993-Ohio-115, 613 N.E.2d 580, citing R.C.

2506.04, Dudukovich v. Lorain Metro. Hous. Auth., 58 Ohio St.2d 202, 207, 389

N.E.2d 1113 (1979).

{¶43} The standard set out in Concerned Citizens is the same standard of

review that the trial court relied upon herein. Furthermore, the trial court’s action

of vacating several of the bases that the appellee relied upon in terminating

appellant’s employment reflects that it understood that it had the ability to reverse

an agency’s decision if there was insufficient evidence to support it. Therefore,

we find appellant’s argument that the trial court applied the wrong standard of

review lacks merit.

{¶44} Accordingly, we overrule appellant’s third assignment of error.

FOURTH ASSIGNMENT OF ERROR

{¶45} In his fourth assignment of error, appellant argues that the common

pleas court erred in not finding his termination by the appellee unconstitutional.

Appellant asserts that he was not afforded adequate pre-termination due process

consistent with Loudermill, in light of the fact that he was “not afforded any post-

Ross App. No. 21CA3746 21

termination administrative procedures.” [16] He complains that he was not

afforded a hearing conducted by a referee to consider the evidence, and issue a

written decision with a recommendation to the appellee regarding appellant’s

employment. He claims that he should have a right to appeal appellee’s decision

terminating his employment to the Civil Service Commission or the State

Personnel Board of Review, citing R.C. 3319.16.

{¶46} In response, the appellee first argues that appellant waived this due

process argument pursuant to the parties’ stipulations. The appellee also

contends that appellant’s termination was not unconstitutional. The appellee

maintains that under Loudermill due process required that appellant receive

written notice of the charges leveled against him, and an opportunity to present

his side of the story. The appellee claims that its resolution of appellant’s case

demonstrates that he received notice of the charges, an explanation of appellee’s

evidence, and an opportunity to present his side of the story that was sufficient to

satisfy pre-termination due process requirements.

{¶47} We agree with appellee and find that appellant has waived this due

process argument pursuant to the parties’ stipulations, which in pertinent part

provide that he agreed to “waive any and all arguments regarding procedural

issues and requirements that were not followed or properly provided.” (Emphasis

added.).

{¶48} Even addressing the merits of appellant’s due process argument, it

fails for several reasons. First, R.C. 3319.16, cited by appellant, affords

teachers, who are terminated from employment, a hearing before a referee.

Ross App. No. 21CA3746 22

Appellant was not a teacher. Therefore, as a custodian, appellant had no right to

a hearing before a referee. Second, “[t]he Supreme Court in Loudermill

concluded that a minimal opportunity to be heard at a pre-termination hearing is

sufficient where the employee is entitled to a full evidentiary hearing post-

termination, either by an administrative agency or upon further administrative

appeal.” (Emphasis added.) Robinson v. Springfield Loc. Sch. Dist. Bd. of

Educ., 144 Ohio App. 3d 38, 40–52, 759 N.E.2d 444 (9th Dist. 2001), citing

Loudermill at 547, 105 S.Ct. at 1496, 84 L.Ed.2d at 507, fn. 12. A non-teaching

employee, who is terminated from employment, is afforded post-termination due

process in a R.C. 2506-appeal to the common pleas court, in which the appellant

can present arguments, offer and examine witnesses, cross examine witnesses,

offer evidence, etc., if pre-termination due process did not permit such

proceedings. See Durham, 150 Ohio App. 3d 148, 2002-Ohio-6300, 779 N.E.2d

1051, ¶ 31 (4th Dist.); see also Robinson,44-45.

{¶49} Consistent with this body of law, appellant had an opportunity to

seek a more comprehensive post-termination due process in his appeal of the

appellee’s decision to the common pleas court. However, the record does not

reveal that appellant sought to admit additional evidence, call witnesses, etc.,

during his “appeal.” Rather, he expressly waived his right to submit additional

evidence in stipulating “[n]o additional documents or evidence will be submitted

with trial briefs[.]”

{¶50} Having waived his right to raise due process issues or to submit

additional evidence in his administrative appeal, we find appellant’s argument

Ross App. No. 21CA3746 23

that the trial court erred in failing to find that the appellee’s decision was

unconstitutional lacks merit. Therefore, we overrule Appellant’s fourth

assignment of error.

CONCLUSION

{¶51} Having overruled appellant’s four assignments of error, we affirm

the trial court’s judgment entry affirming appellee’s termination of appellant’s

employment.

JUDGMENT AFFIRMED.

Ross App. No. 21CA3746 24

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS AFFIRMED and that appellant shall

pay the costs.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the

Ross County Common Pleas Court to carry this judgment into execution.

Any stay previously granted by this Court is hereby terminated as of the

date of this entry.

A certified copy of this entry shall constitute the mandate pursuant to Rule

27 of the Rules of Appellate Procedure.

Hess, J. and Abele, J.: Concur in Judgment and Opinion.

For the Court,

BY: ____________________________

Kristy S. Wilkin, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final

judgment entry and the time period for further appeal commences from the

date of filing with the clerk.