Schrenk v. Butler
2017 Ohio 8745
| Ohio Ct. App. | 2017Background
- OEPA alleged that John Schrenk, a certified water/wastewater operator, failed to keep required logbook entries (arrival/departure times and maintenance entries), operated a Class III public water plant while only Class II-certified, and allowed a plant to exceed approved capacity. OEPA proposed a five-year suspension of his certifications.
- OEPA held an adjudicatory hearing where OEPA witness Andrew Barienbrock (an OEPA manager) testified from business records and NOVs; OEPA exhibits (logbooks, NOVs, enforcement logs) were admitted without objection from Schrenk. Schrenk declined to testify and presented no witnesses or exhibits at the hearing.
- The OEPA hearing officer found multiple regulatory violations and the OEPA director adopted the recommendation, imposing a five-year suspension on Schrenk’s Class II and Class III certificates.
- Schrenk appealed to ERAC, which was constrained to the certified record but allowed limited supplemental materials; ERAC reversed parts of the director’s decision, finding (1) insufficient proof of minimum staffing based on missing log times, (2) MOR-related findings unsupported because OEPA relied on NOVs/hearsay, and (3) the finding that the plant operated over capacity unsupported.
- The Tenth District Court of Appeals reviewed ERAC’s decision, addressing two assignments of error: (a) whether ERAC improperly shifted the burden / required proof of a negative regarding minimum staffing, and (b) whether ERAC improperly excluded or discounted OEPA’s NOV-based evidence as hearsay.
Issues
| Issue | Plaintiff's Argument (OEPA) | Defendant's Argument (Schrenk) | Held |
|---|---|---|---|
| Whether OEPA met its burden to prove minimum staffing violations where logbooks lacked arrival/departure times | Missing entries in regularly kept business records are admissible circumstantial evidence that staffing minimums were not met; burden was on OEPA to prove the violations | Absence of time entries does not affirmatively prove absence; an entry (even without times) suggests presence and ERAC should not infer nonattendance | Court held OEPA met burden: lack of time entries in business records is admissible circumstantial evidence supporting OEPA’s finding; ERAC erred in treating the absence as non‑evidence |
| Whether reliance on Notices of Violation and witness restatement of NOVs to prove MOR omissions/overcapacity was inadmissible hearsay | OEPA relied on NOVs and business‑record principles; Barienbrock’s testimony about NOVs supported the director’s findings | NOVs and Barienbrock’s restatement constitute hearsay if the witness lacked personal knowledge of MOR contents; ERAC excluded these as unsubstantiated | Court held ERAC erred by retroactively excluding evidence on Schrenk’s behalf; OEPA’s use of NOVs in the certified record was not properly excluded by ERAC and ERAC’s exclusion was legal error |
Key Cases Cited
- Williams v. Akron, 107 Ohio St.3d 203 (2005) (business records/circumstantial evidence can support findings in civil and punitive contexts)
- State v. Jenks, 61 Ohio St.3d 259 (1991) (standards for evaluating circumstantial evidence and inference)
- Taylor Bldg. Corp. of Am. v. Benfield, 117 Ohio St.3d 352 (2008) (questions of law reviewed de novo)