Elеctronic Classroom of Tomorrow, Appellant-Appellant, v. Ohio State Board of Education, et al., Appellees-Appellees.
No. 17AP-767 (C.P.C. No. 17CV-5773)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
July 10, 2018
17AP-767, 2018-Ohio-2695
BRUNNER, J.
(ACCELERATED CALENDAR)
On brief: Organ Cole, LLP, Douglas R. Cole, Erik J. Clark, and Carrie M. Lymanstall, for appellees. Argued: Douglas R. Cole.
APPEAL from the Franklin County Court of Common Pleas
D E C I S I O N
Rendered on July 10, 2018
BRUNNER, J.
{¶ 1} Appellant-appellant, Electronic Classroom of Tomorrow (“ECOT“), appeals a decision of the Franklin County Court of Common Pleas issued on October 6, 2017 dismissing its administrative appeal from an adverse decision of appellee-appellee, Ohio State Board of Education (“BOE“). Because we havе previously held that the decision of the BOE in this case was an adjudication in a “quasi-judicial” proceeding and is therefore appealable under
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} We have previously stated the facts underlying the conflict between ECOT and the appellees, the BOE and the Ohio Department of Education (“ODE“), as follows:
ECOT, in operation since 2000, is an online or “e-school” in which students do not attend traditional, brick-and-mortar buildings, but instead attend classes through a computer by logging in to ECOT‘s online platform to access educational curriculum. Students enrolled in ECOT also have access to other non-computer educational opportunities, including field trips. Pursuant to
R.C. 3314.01(B) , ECOT is considered a “community school,” which is “a public school, independent of any school district, and is part of the state‘s program of education.” As a public school, a community school such as ECOT receives funding from the state of Ohio based on the number of full-time equivalent (“FTE“) students enrolled in the community school.R.C. 3314.08(C) . The community schools self-report the number of FTE students to ODE through the education management information system (“EMIS“). [The Ohio Department of Education (ODE)] then has the right to “adjust” the payment to the community school “to reflect any enrollment of students in community schools for less than the equivalent of a full school year.”R.C. 3314.08(H) .ODE performs periodic FTE reviews of community schools to investigate whether a funding adjustment is warranted in a given year. Such a review involvеs ODE personnel visiting the community school and identifying the records ODE would like to view in order to confirm the school‘s reported FTE numbers for the previous academic year. If, through the review, ODE discovers it owes additional funding to the community school, ODE has 30 days to provide the additional funding. However, if the review results in a finding that the community school cannot substantiate the number of FTE students for which it received funding, ODE can reduce the school‘s funding amount. The reduction, or “clawback,” occurs on a going-forward basis by reducing, over an extended period of time, future state dollars paid to the community school. (Sept. 13, 2016 Tr. Vol. II at 179-80.) A community school that disagrees with ODE‘s initial determination on funding has a right to an administrative appeal to the State Board of Education.
R.C. 3314.08(K)(2) . The State Board of Education‘s decision on the appeal is the agency‘s final determination on the appropriate funding for the community school for the given academic yеar.R.C. 3314.08(K)(2)(d) .
{¶ 4} While the declaratory and injunctive relief case was proceeding before the trial court, on September 26, 2016, following completion of the audit of ECOT‘s FTE data, ODE issued a final determination letter advising ECOT that ODE‘s review had concluded that ECOT had misreported its FTE numbers resulting in a false report that was approximately 242.7 percent of the actual figures determined from ODE‘s audit of ECOT.1 (Admin. Record A, Sept 26, 2016 Final Determination at 1.) Expressed differently, ECOT‘s actual FTE numbers were just 41.2 percent of what ECOT claimed they were. Id. ECOT disputed this finding and appealed to the BOE, which designated a hearing officer to hear the appeal. (Admin. Record B, Oct. 10, 2016 Appeal Letter; Admin. Record C, Oct. 18, 2016 Designation Letter; Admin. Record D, Oct. 26, 2016 Designation Notice.) ODE‘s designee held a hearing and considered a voluminous body of evidence. (Admin. Record QQ, May 10, 2017 Hearing Officer Decision at 4-9.) In addition, before the hearing officer issued a decision, the Franklin County Court of Common Pleas issued its decision in the injunctive and declaratory relief case settling a number of questions of law that otherwise might have been disputed issues in the administrative appeal before the hearing officer. Id. at App‘x, enclosing Electronic Classroom of Tomorrow v. Ohio Dept. of Edn., Franklin C.P. No. 16CV-6402 (Dec. 14, 2016). The ODE hearing officer followed the decision of the Court of Common Pleas in writing his decisiоn. (Admin. Record QQ, Hearing Officer Decision at
{¶ 5} On May 22, 2017, ECOT raised a large number of objections to the hearing officer‘s report. (Admin. Recоrd RR, May 22, 2017 Objs.) ODE timely responded. (Admin. Record TT, May 31, 2017 Resp. to Objs.) At a meeting on June 12, 2017, BOE adopted the recommendations of the hearing officer‘s decision and authorized ODE to take necessary measures to obtain repayment of public funds in overpayments to ECOT in the amount of $60,350,791. (Admin. Record UU, June 15, 2017 Resolution at 1.)
{¶ 6} Following this adverse result, ECOT took three actions. It filed suit alleging that the BOE violated the open meetings act. (June 14, 2017 Compl., filed in Electronic Classroom of Tomorrow v. Ohio Dept. of Edn., Franklin C.P. No. 17CV-5315.) It sought, in the case now on review, to appеal the administrative action directly to the Franklin County Court of Common Pleas pursuant to
{¶ 7} In the open meetings case, the Franklin County Court of Common Pleas concluded that the BOE did not violate the open meetings act. Electronic Classroom of Tomorrow v. Ohio State Bd. of Edn., Franklin C.P. No. 17CV-5315 (July 12, 2017). On appeal, this Court agreed that the BOE did not violate the open meetings act because the administrative process was “quasi-judicial.” Electronic Classroom of Tomorrow, 2018-Ohio-716, ¶ 28. ECOT has sought (but not yet been granted) a further appeal from that decision. (Apr. 19, 2018 Memo. in Support of Jurisdiction, filed in Electronic Classroom of Tomorrow v. Ohio State Bd. of Edn., Supreme Ct. No. 2018-0526.)
{¶ 8} The direct appeal before the common pleas court from the BOE administrative action was stayed while the Supreme Court considered ECOT‘s complaint for a writ of mandamus or prohibition. (Aug. 31, 2017 Stay Order.) Ultimately, the
{¶ 9} Thereafter, the common pleas court reactivated ECOT‘s administrative appeal and dismissed for lack of jurisdiction. (Oct. 6, 2017 Decision & Entry.) The trial court reasoned that BOE and ODE had presented several arguments as reasons the Supreme Court should dismiss (only one of which was the рendency of this case as an adequate remedy at law) but that the Supreme Court had given no indication why it dismissed the mandamus and prohibition action. Id. at 3-4. The common pleas court declined to read the Supreme Court‘s summary dismissal as an endorsement of ECOT‘s right to appeal the BOE administrative decision and turned to a strict construction of the statutes possibly authorizing the appeal to the common pleas court. Id. The court viewed
{¶ 10} ECOT has appealed the common pleas court‘s ruling, seeking review of its decision dismissing its complaint.
II. ASSIGNMENT OF ERROR
{¶ 11} ECOT presents a single assignment of error for review:
The Trial Court erred in dismissing the R.C. Chapter 119 Apрeal filed by Plaintiff/Appellant The Electronic Classroom of Tomorrow (“ECOT“) based on a purported lack of subject matter jurisdiction.
III. DISCUSSION
A. Standard of Review
{¶ 12} This Court has previously set forth the standard of review in cases challenging the jurisdiction of a trial court to hear an administrative appeal:
“Jurisdiction” refers to a court‘s “‘statutory or constitutional power to adjudicate the case.‘” Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, ¶ 11, 806 N.E.2d 992, quoting Steel Co. v.
Citizens for a Better Environment, 523 U.S. 83, 89, 118 S. Ct. 1003, 140 L. Ed. 2d 210 (1998). Courts of common pleas only have “such powers of review of proceedings оf administrative officers and agencies as may be provided by law.”
Ohio Constitution, Article IV, Section 4 ; see also Springfield Fireworks, Inc. v. Ohio Dept. of Commerce, 10th Dist. No. 03AP-330, 2003-Ohio-6940, ¶ 17. Thus, courts of common pleas lack jurisdiction to review actions of administrative agencies unlessR.C. 119.12 or some other specific statutory authority grants it. Total Office Prods. v. Dept. of Adm. Servs., 10th Dist. No. 05AP-955, 2006-Ohio-3313, ¶ 12; accord Univ. of Toledo v. Ohio State Empl. Relations Bd., 10th Dist. No. 11AP-834, 2012-Ohio-2364, ¶ 9, 971 N.E.2d 448 (“A court of common pleas has power to review proceedings of administrative agencies and officers only to the extent the law so grants.“). Whether a court of common pleas possesses subject-matter jurisdiction is a question of law, which appellate courts reviеw de novo. Courtyard Lounge v. Bur. of Environmental Health, 10th Dist. No. 10AP-182, 190 Ohio App. 3d 25, 2010-Ohio-4442, ¶ 5, 940 N.E.2d 626.
Clifton Care Ctr. v. Ohio Dept. of Job & Family Servs., 10th Dist. No. 12AP-709, 2013-Ohio-2742, ¶ 9.
B. Whether the Trial Court Erred in Dismissing for Want of Jurisdiction
{¶ 13}
(B) Any party adversely affected by any order of an agency issued pursuant to any [] adjudication [other than those excepted elsewhere in this section] may appeal to the court of common pleas of Franklin county * * *.
“Agency” is defined in pertinent part as “the functions of any * * * board * * * of the government of the state specifically made subject to sections 119.01 to 119.13 of the Revised Code.”
{¶ 15} That portion of the BOE and ODE administrative appeal procedural statute contains specific language concerning the review of a school‘s enrollment data. It also requires that “[a]ny decision made by the board under this division is final.”
{¶ 16} There are some instances in the Ohio Revised Code in which the legislature uses “final” while simultaneously contemplating a right to appeal. See
{¶ 17} In Heartland Jockey Club v. Ohio State Racing Comm., when the Ohio State Racing Commission made a determination about what was “final” in the relevant statute, we were “asked to determine how final the word ‘final’ [wa]s in
{¶ 19} In Carney v. School Employees Retirement Syst. Bd., we held that no appeal lay from a determination by the School Employees Retirement Board because the statute in question, former
{¶ 20} On the other hand, the Supreme Court has recently decided that an ODE determination that an entity was not “education-oriented” under
{¶ 21} In this case, there is no stated appeal right that is specific to or set forth in
{¶ 22} The ODE parties argue that it is, ” ‘[a] well-settled principle of Ohio law [] that when two statutes, one general and one specific, cover the same subject matter, the specific provision is to be construed as an exception to the general statute that might otherwise apply.’ ” (Jan. 16, 2018 Appellees’ Brief at 27, quoting State ex rel. Motor Carrier Serv. v. Rankin, 135 Ohio St.3d 395, 2013-Ohio-1505, ¶ 26.) They, therefore, argue that the specific provision in
“If a general provision conflicts with a special or local provision, they shall be construed, if possible, so that effect is given to both. If the conflict between the provisions is irrecоncilable, the special or local provision prevails as an exception to the general provision, unless the general provision is the later adoption and the manifest intent is that the general provision prevail.”
(Emphasis added.) Rankin at ¶ 26, quoting
{¶ 23} One way to reconcile the two statutes wоuld be to say that
{¶ 24} This case has a robust and multi-faceted procedural history. Because of that, as оur discussion shows, caselaw and statutes can provide legally persuasive reasoning for allowing this appeal or for dismissing this appeal. ECOT has been permitted to litigate the substantive merits of its case in a declaratory judgment/injunctive relief proceeding that has been appealed to the highest court in Ohio where it currently is pending. ECOT has also been permitted to challenge the manner in which the administrative proceeding occurred (via its opеn meetings act litigation). However, ECOT has not been permitted to directly dispute the findings of the administrative process and the Supreme Court has dismissed ECOT‘s mandamus action without explanation. With the law in equipoise, we hold that ECOT is entitled to the opportunity to dispute not just the substantive and procedural merits of their action (which it is already doing in the declaratory/injunctive action and the open meetings act litigation) but also to appeal the particular findings and dеcisions of the administrative adjudication, especially as to the “claw back” of funds
IV. CONCLUSION
{¶ 25} Accordingly, we reverse the judgment of the Franklin County Court of Common Pleas and remand ECOT‘s
Judgment reversed; cause remanded.
BROWN, P.J., concurs.
LUPER SCHUSTER, J., dissents.
LUPER SCHUSTER, J., dissenting.
{¶ 26} I disagree with the majority and would find the decision of the ODE to be final and not subject to an appeal filed under
{¶ 27} In Brookwood, the Supreme Court considered a statute that provided that ODE‘s decision as to whether an entity was education-oriented was “final.” The Supremе Court noted that the same statute also expressly provided a right to appeal under
{¶ 29} For these reasons, I respectfully dissent.