[Cite as Biggert v. Highland Cty. Bd. of Dev. Disabilities, 2013-Ohio-2112.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HIGHLAND COUNTY
CHARLES BIGGERT, JR., : : Appellant-Appellant, : Case No. 12CA19 : vs. : : HIGHLAND COUNTY BOARD : DECISION AND JUDGMENT OF DEVELOPMENTAL : ENTRY DISABILITIES, : : Appellee-Appellee. : Released: 05/15/13 _____________________________________________________________ APPEARANCES:
Gary A. Reeve, Law Offices of Gary A. Reeve, LLC, Columbus, Ohio, for Appellant.
Mark Landes and Aaron M. Glasgow, Isaac, Brant, Ledman & Teetor, LLP, Columbus, Ohio, for Appellee. _____________________________________________________________
McFarland, P.J.
{¶1} Charles Biggert appeals the decision of the Highland County
Court of Common Pleas which affirmed Appellant’s termination from his
contract position as superintendent of Highland County Board of
Developmental Disabilities, Appellee herein. On appeal, Appellant contends
that the trial court committed error by 1) finding that Appellee gave proper
due process to Appellant for all charges, pursuant to R.C. 5126.23; and 2) by Highland App. No. 12CA19 2
finding that Appellee terminated Appellant’s contract for good cause,
pursuant to R.C. 5126.23.
{¶2} In light of our determination that Appellant was afforded due
process with respect to the notice of charges against him, and that the trial
court did not err or abuse its discretion in denying Appellant’s request for an
additional, evidentiary hearing, we find no merit to the arguments raised
under Appellant’s first assignment of error and it is therefore overruled.
Further, because we find the trial court’s decision affirming Appellant’s
termination for cause was supported by a preponderance of reliable,
probative and substantial evidence in the record, we cannot conclude that the
trial court abused its discretion in reaching its decision. Appellant’s second
assignment of error is also overruled.
{¶3} Accordingly, having found no merit to the arguments raised by
Appellant, the decision of the trial court is affirmed.
FACTS
{¶4} Appellant became employed as superintendent of Appellee,
Highland County Board of Developmental Disabilities, on December 16,
2008. Appellant’s employment contract was for the period of January 1,
2009, through December 31, 2011. During the summer of 2011, problems
began to occur related to Appellant’s management style, as well as his Highland App. No. 12CA19 3
dealings with outside offices, including the county commissioners’ office
and the county prosecutors’ office. Other problems occurred, including
Appellant’s attempt to have several board members removed for various
different reasons. These issues lead the board to make a decision not to
renew Appellant’s contract, which was accomplished by formal vote on June
28, 2011.
{¶5} On August 23, 2011, the board reassigned Appellant to work on
a specific project from home for the duration of his contract. Subsequently,
on September 29, 2011, the board provided Appellant with a notice of
termination and notice of charges, and informed him that a pre-disciplinary
conference would be held on October 3, 2011. The notice of charges was
five pages in length and contained twelve bullet pointed items, which
included more detailed information and allegations under each bullet point.
{¶6} Although Appellant was provided with notice of the conference,
he failed to attend. The record indicates Appellant had a scheduling conflict
and requested that the conference be held on a different date, which request
was denied by the board. During the pre-disciplinary conference on October
3, 2011, the board voted to terminate Appellant’s contract. As a result, Highland App. No. 12CA19 4
Appellant filed a request for a hearing before a referee pursuant to R.C.
5126.23(D).1
{¶7} On December 8 and 9, 2011, a hearing was held before a referee.
After hearing two days of testimony, which included ten witnesses on behalf
of the board, Appellant and one other witness on Appellant’s behalf, the
referee issued a report and recommendation that Appellant’s contract be
terminated December 16, 2011. On January 12, 2012, the board voted to
accept the referee’s report and recommendation and terminated Appellant’s
contract. Appellant subsequently filed a notice of appeal in the Highland
County Court of Common Pleas on February 10, 2012.
{¶8} In addition to appealing the board’s decision to adopt the report
and recommendation of the referee that he be terminated, Appellant filed
claims alleging breach of contract related to his termination and the failure
to pay him his unused leave. Appellant also requested that an additional
evidentiary hearing be held by the trial court, which request was denied on
June 13, 2012. After reviewing the administrative hearing transcripts and
exhibits, the trial court issued findings of fact and conclusions of law in a
written decision dated August 20, 2012, ultimately determining that
Appellee board’s adoption of the referee’s recommendation and report and
1 R.C. 5126.23 governs the disciplinary procedure for employees of county boards of developmental disabilities. Highland App. No. 12CA19 5
termination of Appellant was done in compliance with R.C. 5126.23 and
was for good cause. In arriving at its decision, the trial court further found
that the evidence supported a finding that Appellant was insubordinate,
which it pointed out is also grounds for termination. As such, the trial court
denied all of Appellant’s claims related to the termination of his contract,
leaving only one issue to be determined, which was Appellant’s claim
regarding his unused leave.
{¶9} Once the trial court received notification that the parties had
settled the issue of Appellant’s unused leave, the trial court issued a final
judgment entry on September 13, 2012, incorporating by reference its earlier
June 13, 2012, and August 20, 2012, decisions. It is from this final
judgment entry that Appellant now brings his current appeal, assigning the
following errors for our review.
ASSIGNMENTS OF ERROR
“I. THE COMMON PLEAS COURT COMMITTED ERROR BY FINDING THAT THE BOARD GAVE THE PROPER DUE PROCESS TO BIGGERT FOR ALL CHARGES, PURSUANT TO R.C. 5126.23.
II. THE COMMON PLEAS COURT COMMITTED ERROR BY FINDING THAT THE BOARD TERMINATED BIGGERT’S CONTRACT FOR GOOD CAUSE, PURSUANT TO R.C. 5126.23.” Highland App. No. 12CA19 6
STANDARD OF REVIEW
{¶10} The appeal of Appellee board's decision is governed by R.C.
5126.23(G). Benincasa v. Stark County Board of MRDD, 5th Dist. No.
2003CA00350, 2004-Ohio-4941, ¶ 18. In an appeal to the court of common
pleas, the court must affirm the decision if it determines that the board’s
decision is supported by a preponderance of reliable, probative and
substantial evidence. The common pleas court may consider the entire
record, including the credibility of the witnesses and the weight and
probative character of the evidence. Univ. of Cincinnati v. Conrad, 63 Ohio
St.2d 108, 111, 407 N.E.2d 1265 (1980). The common pleas court may not,
however, substitute its judgment for that of the agency. Instead, if a
preponderance of reliable, probative and substantial evidence exists, the
court must affirm the agency's decision. Dudukovich v. Lorain Metro.
Housing Auth., 58 Ohio St.2d 202, 207, 389 N.E.2d 1113 (1979).
{¶11} Conversely, in an appeal to the court of appeals, the court is not
permitted to re-weigh the evidence. Benincasa at ¶ 19. Instead, our review
is limited to a question of whether the trial court abused its discretion in
finding a preponderance of reliable, probative and substantial evidence
exists to support the decision of the board. Dudukovich at 207. In order to
find an abuse of discretion, we must determine that the trial court's decision Highland App. No. 12CA19 7
was unreasonable, arbitrary or unconscionable and not merely an error of
law or judgment. 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. Benincasa at ¶ 19; citing Doll v. Stark County
Board of MRDD, 5th Dist. No.2001CA00255, 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).
ASSIGNMENT OF ERROR I
{¶12} In his first assignment of error, Appellant contends that the trial
court erred by finding that Appellee board afforded him proper due process
for all charges, pursuant to R.C. 5126.23. Specifically, Appellant argues that
several of the charges, charges seven through twelve in particular, were
vague, lacking in evidence, and did not constitute notice under the law.
Appellant further argues that the trial court “failed to cure the due process
issue” by denying his request for an additional evidentiary hearing.
{¶13} R.C. 5126.23 governs the disciplinary procedure, required
notice, referee determination and appellate procedure related to employees
of county boards of developmental disabilities. R.C. 5126.23 provides in
section (C) as follows: Highland App. No. 12CA19 8
“Prior to the removal, suspension, or demotion of an employee
pursuant to this section, the employee shall be notified in
writing of the charges against the employee. Except as
otherwise provided in division (H) of this section, not later than
thirty days after receiving such notification, a predisciplinary
conference shall be held to provide the employee an
opportunity to refute the charges against the employee. At least
seventy-two hours prior to the conference, the employee shall
be given a copy of the charges against the employee.
* * * If the removal, suspension, or demotion action is directed
against a superintendent, the conference shall be held by the
members of the board or their designees, and the board shall
notify the superintendent within fifteen days after the
conference of its decision with respect to the charges.”
(Emphasis added).
R.C. 5126.23 further provides in section (D) as follows:
“Within fifteen days after receiving notification of the results of
the predisciplinary conference, an employee may file with the
board a written demand for a hearing before the board or before
a referee, and the board shall set a time for the hearing which Highland App. No. 12CA19 9
shall be within thirty days from the date of receipt of the written
demand, and the board shall give the employee at least twenty
days notice in writing of the time and place of the hearing.”
Additionally, R.C. 5126.23 provides in section (G) that on appeal to a
common pleas court, the court “shall examine the transcript and record of
the hearing and shall hold such additional hearings as it considers advisable,
at which it may consider other evidence in addition to the transcript and
record.”
{¶14} Here, a review of the record reveals that Appellant was
provided with a notice of charges on September 29, 2011, and was informed
at that time that a pre-disciplinary conference would be held on October 3,
2011. Although Appellant was provided notice of the conference, he did not
attend. Appellee Board voted to terminate Appellant during the conference
and, as a result, a notice of termination was provided to Appellant on
October 5, 2011. Appellant thereafter demanded a hearing before a referee,
which hearing was held on December 8 and 9, 2011. The referee issued a
report and recommendation on December 16, 2011, finding Appellant’s
termination was supported by a preponderance of evidence establishing good
cause for termination under R.C. 5126.23(B). Thus, our review of the record Highland App. No. 12CA19 10
indicates that the proper procedure was followed and Appellant was afforded
the notices and hearings required under R.C. 5126.23.
{¶15} However, Appellant argues that the content of the notice of
charges was lacking and that he was denied due process as a result. As
indicated above, the notice of charges was five pages in length and contained
twelve bullet points. Generally, the notice charged Appellant with: 1) being
dishonest in relation to a public statement he made during a June 28, 2011,
board meeting wherein he represented he had emailed and received direction
from county prosecutor Anneka Collins on a particular issue, when in fact he
had not (this bullet point contained additional details, including that the
email in question related to Sam Snyder’s eligibility to serve on the board);
2) routinely treating employees in a discourteous and aggressive manner
based upon bullying and intimidation (this bullet point mentioned two
employees and situations, in particular: Appellant’s aggressive, threatening,
bullying and intimidating behavior towards employee Kim Gilbert with
respect to an issue regarding the placement of a client, and Appellant’s
unprofessional and retaliatory behavior towards employee Sherry Morrison
regarding her use of sick leave); 3) routinely treating board members in a
discourteous and aggressive manner based upon bullying and intimidation
(this bullet point specifically detailed Appellant’s efforts to either prevent or Highland App. No. 12CA19 11
remove certain individuals as board members, including board president
Linda Allen, former board member Gary Boatman, as well as the then
current members Karen Adams and Sam Snyder;2 4) routinely treating
county officials in a discourteous and aggressive manner based upon
bullying and intimidation (this bullet point detailed Appellant’s
unprofessional and inappropriate dealings with Anneka Collins, the county
prosecutor, Tom Horst, a county commissioner, and the commissioners
office in general, which included “threatening public disclosure of
embarrassing information” and ultimately resulted in the county prosecutor’s
and county commissioners’ refusal to communicate with Appellant directly);
5) routinely treating the public and community in a discourteous and
aggressive manner based upon bullying and intimidation (this bullet point
detailed Appellant’s unprofessional and inappropriate dealings with Doug
Wagoner, the board’s insurance agent, Robert Morrison, the husband of
employee Sherry Morrison, and employees of the State of Ohio
Rehabilitation Services, which jeopardized the board’s receipt of a grant); 6)
lacking integrity in his management style, resulting in unfair treatment of the
staff, fear and lack of trust amongst the staff, which had an adverse affect of
the health of the organization; 7) lacking character in his management style,
2 These efforts included contacting board members’ employers and making threats, as well as challenging their residency and eligibility to serve on the board. Highland App. No. 12CA19 12
resulting in inefficiency of the organization; 8) threatening retaliation against
staff for voicing complaints; 9) regular use of profanity; 10) violation of the
county board’s staff attendance policy by reporting he was attending an out-
of-office in-service during work hours; 11) violating the county board’s
rules by failing to notify his administrative assistant of his location during
work hours; and 12) violating board and county policy that prohibits
personal use of his county owned email address.3
{¶16} The referee’s report found that Appellant engaged in bullying
and intimidation with respect to employees, county offices and board
members. It further found that Appellant tried to either keep certain people
from serving as board members or have certain board members removed,
believing they had some sort of personal vendetta against him. The report
further indicated that Appellant had engaged in dishonesty in his dealings
with the county prosecutor, his submission for mileage reimbursement, and
his work attendance. The report also found credible the allegation that
Appellant lacked integrity in his management style.
{¶17} On appeal to this Court, Appellant particularly takes issue with
the information contained in the notice of charges six through twelve. Upon
3 Charges six through twelve alleged that Appellant’s actions detailed therein also violated the County Board’s Code of Ethics and Values, Anti-Harassment Policy and Work Rules. The record also indicates that Appellant’s employment contract contained a provision entitled “Application of Board Policies” which bound Appellant to all official board policies applicable to all other employees. Highland App. No. 12CA19 13
review of the trial court’s decision, we note that the trial court specifically
found that charges seven, eight, nine and twelve were not proven. Thus, we
limit our discussion to charges six, ten and eleven, which the trial court
determined were proven. We initially note that after a review of the record,
we conclude that the notice of charges were sufficiently detailed so as to put
Appellant on notice of the allegations being made against him, and thus, we
cannot conclude that Appellant was deprived of due process with regard to
the substantive content of the notice.
{¶18} Further, Appellant argues that the referee impermissibly relied
on information presented at the administrative hearing that was not
contained in the notice of charges, in reaching her decision. While charge six
generally alleged that Appellant’s management style lacked integrity in that
employees did not trust and feared Appellant and were treated unfairly, a
review of the record indicates that there is a preponderance of reliable,
probative and substantial evidence in the record to support this finding. For
instance, Kim Gilbert, an employee who was specifically mentioned under
charge two, testified that the work atmosphere was stressful, that Appellant
was intimidating and threatening, that she was fearful, and that during one
episode she thought Appellant was going to strike her. This testimony alone
supports charge six as well as a portion of charge two. Additionally, Highland App. No. 12CA19 14
although charge six simply references “staff,” Appellant knew who his staff
members were. Appellant could have attended the pre-disciplinary
conference and could have clarified if he had a question, though he chose
not to attend. Further, he had two months to prepare for the administrative
hearing during which he could have requested more specific information if
he was unclear.
{¶19} Charges ten and eleven collectively alleged that Appellant
violated county board attendance and work rules by falsely reporting that he
was attending an out-of-office in-service during work hours when he was
not, and by routinely failing to notify his administrative assistant of his
location during work hours when he was not in the office. These charges
were straightforward and self-explanatory. The trial court determined that
these charges were proven in their entirety and we agree. Thus, we cannot
conclude that the trial court abused its discretion in finding that the record
contains a preponderance of reliable, probative and substantial evidence to
support the decision of the board.
{¶20} Appellant also argues certain testimony was introduced to
support the allegations contained in charges two through five, that was not
included in the notice of charges. It is important to note that the trial court
found only the allegations as to Kim Gilbert were proven as to charge two, Highland App. No. 12CA19 15
and Kim Gilbert’s testimony supports this finding. Further, with respect to
charge three, which related to Appellant’s treatment of board members, the
testimony of board member Linda Allen and county commissioner Tom
Horst supports this finding. As to the fourth charge, which related to
Appellant’s treatment of county officials, the testimony of county
commissioner Tom Horst and county prosecutor Anneka Collins supports
this finding. Finally, with regard to the fifth charge, the trial court only
found the portion of the charge relating to Appellant sending an
inappropriate text message to employee Sherry Morrison’s husband, Robert
Morrison, to be proven. By Appellant’s own testimony, the referenced text
message was indeed sent. Thus, our review of the record indicates that the
trial court did not abuse its discretion in finding the charges proven, as
specified above, as the record contains a preponderance of reliable,
probative and substantial evidence to support the decision of the board.
{¶21} Finally, Appellant argues that the trial court erred in denying
his request for an additional evidentiary hearing. As set forth above, R.C.
5126.23(G) provides that on appeal to a court of common pleas, the court
“shall examine the transcript and record of the hearing and shall hold such
additional hearings as it considers advisable, at which it may consider other
evidence in addition to the transcript and record.” The statute fails to Highland App. No. 12CA19 16
provide specific guidance as to when it might be appropriate for a trial court
to conduct additional hearings or consider additional evidence. However,
according to the plain language of the statute, the decision whether to
consider additional evidence is at the discretion of the court.
{¶22} R.C. 5126.23(G) also provides that an appeal may be taken
from a decision of a court of common pleas “pursuant to the Rules of
Appellate Procedure and, to the extent not in conflict with those rules,
Chapter 2505 of the Revised Code.”4 Further, Chapter 2506 governs appeals
from orders of administrative officers and agencies. R.C. 2506.01
“supplements the provision of Revised Code Sections 2505.01 to 2505.45.”
Grimes v. City of Cleveland, 17 Ohio Misc. 193, 194, 243 N.E.2d 777
(1969). R.C. 2506.01 governs appeals from agencies of political
subdivisions and specific guidance is provided in R.C. 2506.03 as to when
additional evidence may be considered in an administrative appeal. In the
absence of clear guidance on this particular issue in R.C. 5126.23, we look
to the language of R.C. 2506.03.
The pertinent portion of R.C. 2506.03 provides as follows:
“(A) The hearing of an appeal taken in relation to a final order,
adjudication, or decision covered by division (A) of section
4 Chapter 2505 of the Revised Code governs procedure to be followed on appeal. Highland App. No. 12CA19 17
2506.01 of the Revised Code shall proceed as in the trial of a
civil action, but the court shall be confined to the transcript
filed under section 2506.02 of the Revised Code unless it
appears, on the face of that transcript or by affidavit filed by the
appellant, that one of the following applies:
(1) The transcript does not contain a report of all evidence
admitted or proffered by the appellant.
(2) The appellant was not permitted to appear and be heard in
person, or by the appellant's attorney, in opposition to the final
order, adjudication, or decision, and to do any of the following:
(a) Present the appellant's position, arguments, and contentions;
(b) Offer and examine witnesses and present evidence in
support;
(c) Cross-examine witnesses purporting to refute the appellant's
position, arguments, and contentions;
(d) Offer evidence to refute evidence and testimony offered in
opposition to the appellant's position, arguments, and
contentions;
(e) Proffer any such evidence into the record, if the admission
of it is denied by the officer or body appealed from. Highland App. No. 12CA19 18
(3) The testimony adduced was not given under oath.
(4) The appellant was unable to present evidence by reason of a
lack of the power of subpoena by the officer or body appealed
from, or the refusal, after request, of that officer or body to
afford the appellant opportunity to use the power of subpoena
when possessed by the officer or body.
(5) The officer or body failed to file with the transcript
conclusions of fact supporting the final order, adjudication, or
decision.”
As noted by Appellee in its brief, Appellant did not argue any of these
grounds applied at either the trial court level, or on appeal. Further, in light
of our determination that Appellant was afforded the due process required
under R.C. 5126.23 with respect to the notice of charges, coupled with the
fact that Appellant received a two-day hearing before a referee in which he
was represented by counsel, was permitted to cross examine witnesses, call
witnesses on his behalf and present evidence, we cannot conclude that the
trial court erred or abused its discretion in denying Appellant’s request for
an additional evidentiary hearing. Accordingly, Appellant’s first assignment
of error is overruled. Highland App. No. 12CA19 19
ASSIGNMENT OF ERROR II
{¶23} In his second assignment of error, Appellant contends that the
trial court erred by finding that Appellee terminated him for good cause,
pursuant to R.C. 5126.23. As set forth above, R.C. 5126.23 governs the
disciplinary procedure, required notice, referee determination and appellate
procedure related to employees of county boards of developmental
disabilities. R.C. 5126.23 provides in section (B) as follows:
“An employee may be removed, suspended, or demoted in
accordance with this section for violation of written rules set
forth by the board or for incompetency, inefficiency,
dishonesty, drunkenness, immoral conduct, insubordination,
discourteous treatment of the public, neglect of duty, or other
acts of misfeasance, malfeasance, or nonfeasance.”
We have already considered each charge contained in the notice of charges
and determined that they sufficiently put Appellant on notice of the
allegations being made against him and thus, that Appellant was not
deprived of due process in this regard. Further, as part of that analysis, we
reviewed the trial court’s determinations as to which allegations were proven
under each charge. While some of the allegations were not proven, a
multitude of the allegations were proven. The ones that were proven, which Highland App. No. 12CA19 20
have been discussed in detail under Appellant’s first assignment of error,
more than demonstrate acts of dishonesty, as well as acts of misfeasance or
malfeasance, which under R.C. 5126.23(B), constitute grounds for removal.
{¶24} Additionally, as noted above, Appellant’s actions violated
official board policies, specifically the code of conduct and work attendance
rules, which were expressly referenced in Appellant’s employment contract.
Thus, we cannot conclude that the trial court abused its discretion by finding
that Appellee board terminated him for good cause, pursuant to R.C.
5126.23. Accordingly, Appellant’s second assignment of error is overruled.
{¶25} Having found no merit in the assignments of error raised by
Appellant, and having found that the board’s decision to terminate Appellant
was supported by a preponderance of reliable, probative and substantial
evidence, the trial court did not abuse its discretion in upholding the decision
of the board. As such, the decision of the trial court is affirmed.
JUDGMENT AFFIRMED. Highland App. No. 12CA19 21
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and that the Appellee recover of Appellant costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Highland 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. Exceptions.
Abele, J. & Hoover, J.: Concur in Judgment and Opinion.
For the Court,
BY: _________________________ Matthew W. McFarland Presiding 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.