Michael Gyugo, Plaintiff-Appellant, v. Franklin County Board of Developmental Disabilities, Defendant-Appellee.
No. 15AP-150 (C.P.C. No. 14CVF-10833)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
March 3, 2016
[Cite as Gyugo v. Franklin Cty. Bd. of Dev. Disabilities, 2016-Ohio-823.]
SADLER, J.
(REGULAR CALENDAR)
Rendered on March 3, 2016
On brief: McFadden & Winner, and Mary Jane McFadden, for appellant. Argued: Mary Jane McFadden.
On brief: Ron O‘Brien, Prosecuting Attorney, and Denise L. DePalma, for appellee. Argued: Denise L. DePalma.
APPEAL from the Franklin County Court of Common Pleas
SADLER, J.
{¶ 1} Plaintiff-appellant, Michael Gyugo, appeals from a final judgment of the Franklin County Court of Common Pleas that affirmed a decision of the State Personnel Board of Review holding that appellant was properly terminated from his job at the Franklin County Board of Developmental Disabilities (“FCBDD“). For the reasons that follow, we affirm the judgment of the trial court.
I. BACKGROUND
{¶ 2} The facts in this case are undisputed. Appellant was, on a date not reflected in the record, convicted of a violation of one of the statutes listed in
{¶ 3} Approximately three years later, in April 1995, appellant applied for a job as a training specialist with FCBDD. The application for the training specialist position informed appellant that he would be subjected to a criminal background check if he were “under final consideration for employment with the Board” and posed the following multi-part question:
- Have you ever been convicted of or pleaded guilty to any of the following?
- A felony contained in the Ohio Revised Code:
Yes □ No □
- A crime contained in the Ohio Revised Code constituting a misdemeanor of the first degree on the first offense and a felony on subsequent offenses:
Yes □ No □
- A violation of an existing or former law of Ohio, any other state, or the United States, which offense is substantially equivalent to any of the offenses described in (a) or (b) above:
Yes □ No □
- A felony contained in the Ohio Revised Code:
{¶ 4} Shortly after applying, appellant was hired. In 1996, 2000, 2004, and 2008, appellant was required to renew his certification/registration as an employee of FCBDD. Each of those applications for renewal posed questions to appellant about his criminal past. The forms used in 1996 and 2000 asked:
Have you ever been convicted of a felony or a misdemeanor (other than a minor traffic offense)?
You must answer this section even if the record of your conviction(s) has been sealed/expunged. (If yes, use a separate sheet of paper to describe the conviction(s), state when and where the conviction(s) occurred, and attach a copy of the criminal background check from the Ohio Bureau of Criminal Identification and Investigation. In addition, if you have not been a resident of the state of Ohio for the past five (5) years, please also attach a copy of your FBI background check.)
Yes □ No □
(Emphasis sic.) In both 1996 and 2000, appellant checked the box next to “No.” The form appellant completed in 2004 posed the same question somewhat differently:
Have you ever been convicted of any felony or misdemeanor (other than a minor traffic offense)? You must answer this question, even if the record of your conviction(s) has been sealed or expunged by a court of law. If you answer “Yes,” use a separate sheet of paper to provide information regarding the date, the location (city, county, and state), and a description of the event leading to the conviction, and nature of the offense. If the conviction has been sealed or expunged, also provide information regarding the sealing or expungement. Attach a copy of the criminal background check from the Ohio Bureau of Criminal Identification and Investigation (BCII). In addition, if you have not been a resident of the state of Ohio for the past five years, please also attach a copy of the criminal background check from the Federal Bureau of Investigation.
Yes □ No □
Have you ever been convicted of any felony or misdemeanor (other than a minor traffic offense)?
You must answer this question, even if the record of your conviction(s) has been sealed or expunged by a court of law and regardless of whether or not the conviction appears on a criminal background check. If you answer “Yes,” use a separate sheet of paper to provide a detailed description of the nature of the offense including the name of the conviction, the date, the location (i.e., city, county, and state), and an explanation of the event leading to the conviction. If the conviction has been sealed or expunged, also provide detailed information regarding the sealing or expungement. Attach a copy of the criminal background check from the Ohio Bureau of Criminal Identification and Investigation (BCII). In addition, if you have lived outside of the state of Ohio during the past five years, attach a copy of the criminal background check from the Federal Bureau of Investigation.
Yes □ No □
Once again, appellant checked the box corresponding with “No.”
{¶ 5} In 2013, FCBDD performed a criminal record check on all its employees and learned of appellant‘s sealed conviction. Following notice and a pre-disciplinary hearing, effective October 4, 2013, appellant was removed from his position as training specialist. The stated reason was:
Dishonesty and other failure of good behavior, i.e., you misrepresented your past criminal record on the application for employment and on each of four applications for certification/registration required for your position.
{¶ 6} Appellant timely appealed to the State Personnel Board of Review (“SPBR“). The administrative law judge decided the case on written briefs, stipulated facts, and written exhibits. On August 8, 2014, the administrative law judge recommended to SPBR that appellant‘s removal from employment be affirmed. She recommended that appellant‘s failure to disclose the sealed conviction on his initial application, which had not requested information per se about sealed convictions, be found reasonable by SPBR.
{¶ 7} On August 25, 2014, appellant filed objections to the recommendation. On October 9, 2014, over the objections of appellant, but without written discussion or analysis, SPBR adopted the recommendation of the administrative law judge and affirmed appellant‘s removal from employment with FCBDD. Appellant then filed an appeal with the Franklin County Court of Common Pleas on October 21, 2014.
{¶ 8} In the court of common pleas proceedings, the parties again agreed on all relevant facts and briefed the law. On February 2, 2015, the common pleas court affirmed the ruling of SPBR, finding the order of SPBR to be supported by reliable, probative, and substantial evidence and in accordance with the law. Appellant submitted a timely notice of appeal.
II. ASSIGNMENT OF ERROR
{¶ 9} Appellant raises the following assignment of error for our review:
The trial court erred by permitting the State Personnel Board of Review and the Franklin County Board of Developmental Disabilities to act in contravention of Ohio‘s expungement law and the
R.C. 2953.32 court order that granted Appellant‘s expungement.
III. DISCUSSION
A. Standard of Review
{¶ 10} When hearing an appeal from an agency decision, a court of common pleas “may affirm the order of the agency complained of in the appeal if it finds, upon consideration of the entire record and any additional evidence the court has admitted, that the order is supported by reliable, probative, and substantial evidence and is in accordance with law.”
{¶ 11} “On appeal to an appellate court, the standard of review is even more limited.” Tres Amigos at ¶ 8. We are to “determine only if the trial court has abused its discretion * * *. Absent an abuse of discretion on the part of the trial court, [we] may not substitute [our] judgment for those of the * * * board or a trial court. Instead, [we] must affirm the trial court‘s judgment.” Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993), citing Rossford Exempted Village School Dist. Bd. of Edn. v. State Bd. of Edn., 63 Ohio St.3d 705, 707 (1992); Lorain City Bd. of Edn. v. State Emp. Relations Bd., 40 Ohio St.3d 257, 260-61 (1988). However, an appellate court has plenary review of “purely legal questions” raised in an administrative appeal. Tres Amigos. Because the facts are undisputed in this case, our review is only of issues of law and the application of law to fact. Accordingly, our review of the contested issues in this case shall be de novo. Leslie v. Ohio Dept. of Dev., 171 Ohio App.3d 55, 2007-Ohio-1170, ¶ 44 (10th Dist.); see also Tres Amigos.
B. Assignment of Error
{¶ 12} Under his assignment of error, appellant generally contends that, because his conviction was sealed under
{¶ 13} The stated reason for firing appellant was:
Dishonesty and other failure of good behavior, i.e., you misrepresented your past criminal record on the application for employment and on each of four applications for certification/registration required for your position.
Appellant argues that he was not dishonest for treating his sealed conviction as if it had not occurred, but, rather, his ” ‘no’ answers were true by virtue of his
{¶ 14} Appellant cites to Ohio State Bd. of Pharmacy v. Friendly Drugs, 27 Ohio App.3d 32 (8th Dist.1985) for the proposition that answering “no” to an employment application is not dishonest where the conviction was sealed prior to filing the application. However, Friendly is easily distinguishable on its facts. The court in Friendly reviewed a pharmacy board decision and sanctions particular to that case, and only made express determinations regarding a pharmacist who had not yet sealed his conviction and regarding the company. Furthermore, the language of the question posed to the pharmacists did not include language instructing the applicant on whether a sealed conviction should be disclosed. Therefore, Friendly is not instructive in this matter.
{¶ 15} It is true that, when a court seals records of a conviction pursuant to
The proceedings in the case that pertain to the conviction * * * shall be considered not to have occurred and the conviction * * * of the person who is the subject of the proceedings shall be sealed * * *.
{¶ 16} However, the same statute makes clear that the history of conviction does not literally vanish, but is accessible in a variety of specific situations. See, e.g.,
{¶ 17} Further, even if appellant believed sealing of his conviction entitled him to answer that he did not have a conviction initially, a belief that was reinforced by a history of “no” answers unchallenged by criminal record check results, the express language of the 2008 certification renewal called for disclosure of sealed records of a conviction even if the conviction had not appeared on criminal record checks. Therefore, appellant‘s decision to answer “no” to the 2008 certification renewal in the face of clear language calling for him to disclose his sealed conviction regardless of criminal check results was plainly dishonest.
{¶ 18} Thus, the issue becomes whether appellant‘s dishonesty should be excused under the circumstances and as a matter of law. To this point, appellant “does not * * * contend that the ODDD [Ohio Department of Developmental Disabilities] and FCBDD lacked statutory authority to question him about his sealed conviction.” (Appellant‘s Brief, 24.) Rather, appellant contends that FCBDD could not lawfully require him to disclose his sealed conviction on a public record and in a question form which, in violation of sealing statutes, does not bear a direct and substantial relationship to the position for which he was considered.
{¶ 19} Appellant‘s public record argument is premised on the conclusion that all information in the application and the certification renewals is public record under
{¶ 20}
{¶ 21} When an employment application submitted to and reviewed by DDD contains sealed records or information regarding sealed convictions, the record and information regarding the sealed convictions are not part of the public record and cannot be released absent special circumstances of the kind set forth in the sealing statutes. See
{¶ 22} This places a responsibility on any agency seeking sealed records to comply with all laws governing the maintenance, security, storage, and release or non-release of such records. See, e.g.,
{¶ 23} Finally, the breadth of the conviction disclosure questions on the applications likewise did not excuse appellant from disclosing his particular sealed conviction. Under
{¶ 24}
{¶ 25}
{¶ 26} Here, the questions framed by FCBDD on the application may potentially present a disclosure problem for individuals with criminal records that are sealed, but not clearly “disqualifying offenses” under
{¶ 27} Consequently, after conducting a de novo review, we find that appellant is not excused from honestly answering questions about his sealed conviction, and that the specificity of the 2008 question combined with appellant‘s failed obligation to disclose his sealed conviction under
{¶ 28} Accordingly, we overrule appellant‘s assignment of error.
IV. CONCLUSION
{¶ 29} Having overruled appellant‘s sole assignment of error, we hereby affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
DORRIAN, P.J., concurs.
BRUNNER, J., dissents.
BRUNNER, J., dissenting.
{¶ 30} I respectfully dissent from the decision of the majority.
{¶ 31} In our de novo review of the contested issues of this case, it is incumbent on us to also consider the operation of
The proceedings in the case that pertain to the conviction * * * shall be considered not to have occurred and the conviction * * * of the person who is the subject of the proceedings shall be sealed, except that upon conviction of a subsequent offense, the sealed record of prior conviction * * * may be considered by the court in determining the sentence or other appropriate disposition, including the relief provided for in sections
2953.31 to2953.33 of the Revised Code.
In any application for employment, license, or other right or privilege, any appearance as a witness, or any other inquiry, except as provided in division (E) of section
2953.32 and in section3319.292 of the Revised Code * * * a person may be questioned only with respect to convictions not sealed * * * unless the question bears a direct and substantial relationship to the position for which the person is being considered.
{¶ 32} Despite this, FCBDD posits that the Ohio Administrative Code lists a number of offenses that disqualify an individual from holding the position Gyugo held, either completely or for some window of time. FCBDD argues that
{¶ 33} Gyugo argues in response that the disclosures FCBDD rules require, violate the letter and spirit of laws on sealing records of criminal convictions and arrests and are invalid. No agency may promulgate rules that conflict with statutes. If an agency does, such rules are invalid. Cent. Ohio Joint Vocational School Dist. Bd. of Edn. v. Admr., Ohio Bur. of Emp. Servs., 21 Ohio St.3d 5, 10 (1986).
{¶ 34}
{¶ 35} FCBDD argues that “catch-all” provisions in the statutes and rules defining “disqualifying offenses” permit the broad question asked. (Appellee‘s Brief, 15-16.) However, the modern version of the “catch-all” provisions to which the FCBDD refers does not, in fact, catch all. Rather, they only catch former or similar, other state law violations.
A violation of an existing or former municipal ordinance or law of this state, any other state, or the United States that is substantially equivalent to any of the offenses listed in divisions (A)(3)(a) to (d) of this section.
Even in their former iterations (now rescinded) the “catch alls” FCBDD quotes caught only offenses that were “substantially equivalent” to listed disqualifying offenses and those crimes that bore “a direct and substantial relationship to the duties and responsibilities of the position being filled.” (Appellee‘s Brief, 15-16.) Unlike the State Board of Education and the Ohio Department of Education, FCBDD is not exempted by statute from the need to “assert or demonstrate that its questioning with respect to the offense bears a direct and substantial relationship to the issuance or renewal of the license or to the position in which the applicant will work under the license.”
{¶ 36} Gyugo argues that, even if FCBDD had asked a proper question, by forcing him to disclose sealed records in a public application, FCBDD is undermining the purpose
{¶ 37} Finally, Gyugo argues that it was reasonable for him to have relied on the sealing statutes and the language of the sealing order that proceedings in the criminal cases for which records were sealed were ordered by the court, consistent with the language in
Dishonesty and other failure of good behavior, i.e., you misrepresented your past criminal record on the application for employment and on each of four applications for certification/registration required for your position.
(Mar. 5, 2014 Stipulated Facts and Joint Exhibits, 1.) “Dishonesty” is defined in Black‘s Law Dictionary as “Deceitfulness as a character trait; behavior that deceives or cheats people; untruthfulness; untrustworthiness.” Black‘s Law Dictionary 568 (10th Ed.2014). “Deceitfulness” is defined in the Oxford English Dictionary in relation to “deceitful” which, in turn, is defined as being full of deceit. Oxford English Dictionary, www.oed.com (OED online Ed., Sept. 2015). According to these sources, at the core of “dishonesty” lies deceit, which is defined in relevant part as “concealment of the truth in order to mislead.” Oxford. Courts in other jurisdictions have closely examined the nature of dishonesty and how to measure it. The Lord Chief Justice of England, Lord Lane, has said:
[A] jury must first of all decide whether according to the ordinary standards of reasonable and honest people what was done was dishonest. If it was not dishonest by those standards, that is the end of the matter * * *. If it was dishonest by those standards, then the jury must consider whether the defendant himself must have realised that what he was doing was by those standards dishonest.
Regina v. Ghosh, 1982 QB 1053, (Eng. C.A.). I would draw persuasively from this apt description in which overt actions to conceal the truth are involved.
{¶ 39} Gyugo was faced with unlawfully broad and formulaic questions about his sealed criminal background. Viewing Gyugo‘s conduct objectively, I cannot say as a matter of law that a reasonable person would have considered it dishonest, when faced with such overbroad questions about sealed records, to rely on statements of a court (and statute) that sealed criminal convictions are to be treated as if they had not occurred. See
{¶ 40} I would hold that the trial court erred when it failed to determine that FCBDD‘s question was impermissibly broad. See Leslie v. Ohio Dept. of Dev., 171 Ohio App.3d 55, 2007-Ohio-1170, ¶ 44 (10th Dist.). Based on a record of agreed to facts, I would find that the trial court further erred as a matter of law in affirming State Personnel Board of Review‘s finding that Gyugo was “dishonest” when applying and re-registering for his job at FCBDD. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993). Accordingly, I would sustain Gyugo‘s sole assignment of error and reverse the judgment of the Franklin County Court of Common Pleas for the reasons stated in this dissent with an order that Gyugo be reinstated to his position with back pay with interest from the date of his last day of employment with FCBDD.