Holben v. Ohio State Medical Board

924 N.E.2d 851, 185 Ohio App. 3d 463
CourtOhio Court of Appeals
DecidedDecember 3, 2009
DocketNo. 09AP-215
StatusPublished

This text of 924 N.E.2d 851 (Holben v. Ohio State Medical Board) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Holben v. Ohio State Medical Board, 924 N.E.2d 851, 185 Ohio App. 3d 463 (Ohio Ct. App. 2009).

Opinion

Bryant, Judge.

{¶ 1} Appellant, the Ohio State Medical Board, appeals from a judgment of the Franklin County Court of Common Pleas reversing a decision of the State Personnel Board of Review (“SPBR”) that dismissed the appeal of appellee, Gary J. Holben, a former employee of the medical board, for lack of jurisdiction under R.C. 124.03(A)(1). The medical board assigns a single error:

The Common pleas [court] erred when it reversed the decision by the State Personnel Board of Review to dismiss the appeal of Gary Holben.

Because the common pleas court correctly concluded that the decision of the SPBR is contrary to law and lacks reliable, probative, and substantial evidence to support it, we affirm the court’s judgment.

I. Factual and Procedural Overview

{¶ 2} Beginning in February 2005, the medical board employed Holben as a human resources administrator, a classified-employee position within the state civil service. See R.C. 124.01. Holben’s direct supervisor was Richard White-house, the medical board’s executive director.

[465]*465{¶ 3} Prior to August 2006, Whitehouse met with Holben on several occasions to discuss Holberis resigning from employment due to the expressed dissatisfaction of the medical board members regarding his job performance. On August 7, 2006, Holben submitted a letter to Whitehouse and the medical board notifying them of his “intent to resign” his employment. Holben’s letter indicated that his last working day in the office would be December 22, 2006, and it specified that his resignation would become effective when, on a subsequent date, his vacation and personal-leave balance drew down to eight hours or less.

{¶ 4} In response to Holben’s letter, Whitehouse issued a memorandum to Holben on August 7, 2006, acknowledging receipt of his letter of resignation and notifying him that “on behalf of the State Medical Board of Ohio, your resignation has been accepted.” Whitehouse promptly notified the medical board’s president that he had received and accepted Holben’s resignation.

{¶ 5} On November 30, 2006, Holben submitted a letter to Whitehouse and the medical board with the stated purpose “to advise you that I am rescinding my August 7, 2006 letter, which discussed my employment.” Explaining that the August letter “was an attempt to resolve issues which had been raised by Mr. Whitehouse,” the November letter pointed out that “[a]s you are aware, there was no effective date of my resignation contained therein, and it in no way constituted a relinquishment of my employment.”

{¶ 6} Through Whitehouse’s memorandum dated December 7, 2006, and a letter of the medical board’s attorney dated December 15, 2006, Holben’s attempt to rescind his resignation was denied; he was advised that his resignation would become effective on December 22, 2006. Accordingly, Holben’s last day of active work status was December 22, 2006, and he was compensated for his remaining leave balances. The record is undisputed that the medical board neither voted on nor passed a resolution to accept Holberis resignation until January 2007.

{¶ 7} Holben filed an appeal with the SPBR, alleging that the medical board had improperly removed him from employment. Following a hearing on the matter, an administrative law judge (“ALJ”) issued a report and recommendation that concluded that Holben had voluntarily resigned his employment with the medical board on August 7, 2006. The ALJ, however, also determined that the medical board, which serves as the appointing authority for its employees pursuant to R.C. 4731.05(B), had not conferred any power upon Whitehouse to accept Holberis resignation on the board’s behalf. As a result, the ALJ concluded that Holben’s resignation was not timely or properly “accepted” prior to his November 30, 2006 rescission.

{¶ 8} Applying Davis v. Marion Cty. Engineer (1991), 60 Ohio St.3d 53, 573 N.E.2d 51, the ALJ determined that Holben should have been permitted to rescind or withdraw his resignation on November 30, 2006, as the medical board [466]*466neither took any action nor adopted a resolution to accept Holben’s resignation until January 2007, after Holben had rescinded his resignation. Concluding that Holben’s involuntary separation from employment on December 22, 2006, constituted an improper “de facto removal” under R.C. 124.34, the ALJ recommended that the SPBR disaffirm Holben’s removal and reinstate him to his position with back pay and benefits.

{¶ 9} The SPBR adopted the ALJ’s finding that Holben had voluntarily resigned, but it rejected the ALJ’s recommendation. The SPBR instead concluded that Whitehouse possessed the requisite authority, as the executive director of the medical board, to accept a board employee’s resignation and, consistent with that authority, timely and properly accepted Holben’s resignation prior to his attempt to rescind it. The SPBR dismissed Holben’s appeal, concluding that it lacked jurisdiction over the matter pursuant to R.C. 124.03.

{¶ 10} Holben appealed the SPBR’s order to the Franklin County Court of Common Pleas. The court concurred in the ALJ’s determination that White-house lacked authority to accept Holben’s resignation on behalf of the medical board. Concluding that the SPBR’s decision was contrary to law and lacked reliable, probative, and substantial evidence to support it, the common pleas court ordered Holben to be reinstated to his position, with back pay and benefits, effective December 22, 2006. The court thus reversed the SPBR’s decision and order. The medical board timely appealed.

II. Standard of Review

{¶ 11} Under R.C. 119.12, a common pleas court, in reviewing an order of an administrative agency, must consider the entire record to determine whether reliable, probative, and substantial evidence supports the agency’s order and the order is in accordance with law. Univ. of Cincinnati v. Conrad (1980), 63 Ohio St.2d 108, 110-111, 17 O.O.3d 65, 407 N.E.2d 1265. The common pleas court’s “review of the administrative record is neither a trial de novo nor an appeal on questions of law only, but a hybrid review in which the court ‘must appraise all the evidence as to the credibility of the witnesses, the probative character of the evidence, and the weight thereof.’ ” Lies v. Veterinary Med. Bd. (1981), 2 Ohio App.3d 204, 207, 2 OBR 223, 441 N.E.2d 584, quoting Andrews v. Bd. of Liquor Control (1955), 164 Ohio St. 275, 280, 58 O.O. 51, 131 N.E.2d 390. The common pleas court must give due deference to the administrative agency’s resolution of evidentiary conflicts, but “the findings of the agency are by no means conclusive.” Conrad at 111, 17 O.O.3d 65, 407 N.E.2d 1265. The common pleas court conducts a de novo review of questions of law, exercising its independent judgment in determining whether the administrative order is “in [467]*467accordance with law.” Ohio Historical Soc. v. State Emp. Relations Bd. (1993), 66 Ohio St.3d 466, 471, 613 N.E.2d 591.

{¶ 12} An appellate court’s review of an administrative decision is more limited than that of a common pleas court. Pons v.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Gallangher v. Ross Cty. Sheriff, Unpublished Decision (3-1-2007)
2007 Ohio 847 (Ohio Court of Appeals, 2007)
Lies v. Ohio Veterinary Medical Board
441 N.E.2d 584 (Ohio Court of Appeals, 1981)
Big Bob's, Inc. v. Ohio Liquor Control Commission
784 N.E.2d 753 (Ohio Court of Appeals, 2003)
University of Cincinnati v. Conrad
407 N.E.2d 1265 (Ohio Supreme Court, 1980)
Blakemore v. Blakemore
450 N.E.2d 1140 (Ohio Supreme Court, 1983)
Davis v. Marion County Engineer
573 N.E.2d 51 (Ohio Supreme Court, 1991)
Ohio Historical Society v. State Employment Relations Board
1993 Ohio 182 (Ohio Supreme Court, 1993)
Pons v. Ohio State Medical Board
614 N.E.2d 748 (Ohio Supreme Court, 1993)
State ex rel. Minor v. Eschen
656 N.E.2d 940 (Ohio Supreme Court, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
924 N.E.2d 851, 185 Ohio App. 3d 463, Counsel Stack Legal Research, https://law.counselstack.com/opinion/holben-v-ohio-state-medical-board-ohioctapp-2009.