GYUGO, APPELLANT, v. FRANKLIN COUNTY BOARD OF DEVELOPMENTAL DISABILITIES, APPELLEE.
SLIP OPINION NO. 2017-OHIO-6953
SUPREME COURT OF OHIO
July 27, 2017
2017-Ohio-6953
FRENCH, J.
Submitted April 4, 2017. APPEAL from the Court of Appeals for Franklin County, No. 15AP-150, 2016-Ohio-823.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Gyugo v. Franklin Cty. Bd. of Dev. Disabilities, Slip Opinion No. 2017-Ohio-6953.]
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Gyugo v. Franklin Cty. Bd. of Dev. Disabilities, Slip Opinion No. 2017-Ohio-6953.]
Sealing of records—
(No. 2016-0564—Submitted April 4, 2017—Decided July 27, 2017.)
FRENCH, J.
{¶ 1} Appellant, Michael Gyugo, challenges the termination of his employment by appellee, Franklin County Board of Developmental Disabilities (“board”), for his failures to disclose his sealed criminal conviction on an application for employment and on applications to renew his registration as an adult-services worker with the Ohio Department of Developmental Disabilities (“department”). Gyugo maintains that he was not obligated to disclose his sealed conviction because the application questions that required disclosure of sealed convictions violated
{¶ 2} In this opinion, we consider only the questions on the registration applications that explicitly required disclosure of sealed convictions. We hold that those questions did not violate
{¶ 3} In 1992, an Ohio common pleas court entered an order pursuant to
{¶ 4} In 1995, Gyugo applied for employment as a training specialist with the board. The employment application asked whether Gyugo had ever been convicted of or pleaded guilty to (1) a felony under the Revised Code, (2) a crime under the Revised Code that is a first-degree misdemeanor on the first offense and a felony on subsequent offenses or (3) a substantially equivalent violation of an existing or former state or federal statute. Gyugo answered “No” to each of the three questions. The employment application informed Gyugo that he would be subjected to a criminal-background investigation if he came under final consideration for employment, but the investigation ultimately conducted into Gyugo’s criminal background did not reveal his sealed conviction.
{¶ 5} From 1995 to 2013, the board employed Gyugo as a training specialist. His duties included training and instructing employees with developmental disabilities in a vocational/habilitation setting, assisting employees with personal-care needs, and assisting with the development and implementation of training plans.
{¶ 6} In 1995 and again in 2004, Gyugo acknowledged receipt of the board’s policy manual, which prescribed the terms and conditions of his employment. The policy manual listed offenses that warranted discipline, up to and including termination, upon a first offense. Offenses warranting termination upon a first offense included “giving false information or withholding pertinent information called for in making application for employment,” dishonesty, and failing to maintain registration required for the position.
{¶ 7} Gyugo’s position required him to maintain registration with the department as an adult-services worker. To that end, in 1996, 2000, 2004, and 2008, Gyugo applied to renew his adult-services registration. Each registration application asked whether Gyugo had ever been convicted of a felony or a misdemeanor other than a minor traffic offense and stated that he had to “answer this question even if the record of [his] conviction(s)” had been sealed or expunged. The 2008 application also stated that he had to “answer this question * * * regardless of whether or not the conviction appears on a criminal background check.” On each of the four registration applications, Gyugo answered “No” to the question.
{¶ 9} Gyugo appealed his termination to the State Personnel Board of Review (“SPBR”). The administrative-law judge found that the registration-application questions at issue were not improper. She concluded that Gyugo’s belief that he was not required to disclose his sealed conviction on his 1995 employment application was reasonable because that application did not refer to sealed or expunged records. But she concluded that his reliance on that belief was unreasonable with respect to the registration applications, based on the wording of the application questions and the board’s policy manual. She held that Gyugo’s failure to disclose his conviction on the registration applications constituted dishonesty and failure of good behavior sufficient to justify his termination. The SPBR overruled Gyugo’s objections, adopted the administrative-law judge’s recommendation, and affirmed Gyugo’s termination.
{¶ 10} Gyugo appealed to the Franklin County Court of Common Pleas, which affirmed the SPBR’s order. The Tenth District likewise affirmed, in a two-to-one decision. The majority rejected Gyugo’s argument that the application questions about prior convictions were impermissibly broad, and it held that at least his answer on the 2008 registration application “was plainly dishonest” “in the face of clear language calling for him to disclose his sealed conviction regardless of criminal check results.” 2016-Ohio-823, 60 N.E.3d 715, ¶ 17, 23, 26-27.
{¶ 11} This court accepted Gyugo’s discretionary appeal. 146 Ohio St.3d 1469, 2016-Ohio-5108, 54 N.E.3d 1268. Gyugo submits the following proposition of law:
An applicant with a criminal conviction that has been sealed pursuant to
R.C. 2953.32 is not obliged to disclose it in response to an application question posed in violation ofR.C. 2953.33(B)(1) and may not be disciplined for declining to do so.
{¶ 12} We reject the premise of Gyugo’s proposition. We hold that the registration-application questions explicitly requiring disclosure of sealed convictions did not violate
{¶ 13} An appellate court reviews a common pleas court’s decision in an administrative appeal to determine whether the common pleas court abused its discretion in determining whether reliable, probative, and substantial evidence supports the administrative order. Pons v. State Med. Bd., 66 Ohio St.3d 619, 621, 614 N.E.2d 748 (1993). But an appellate court exercises plenary review over questions of law, including questions of statutory interpretation, like those before us here. State v. Straley, 139 Ohio St.3d 339, 2014-Ohio-2139, 11 N.E.3d 1175, ¶ 9.
{¶ 14} Our review in this appeal implicates a confusing array of statutes, including many that the General Assembly amended—in some cases, multiple times—during the course of Gyugo’s employment by the board. Because Gyugo premises his proposition of law on
{¶ 15} When a court orders a criminal record sealed, the proceedings in the underlying case “shall be considered not to have occurred,”
{¶ 16} At all times relevant to this case, former
{¶ 18} Prior to 2013, and subject to exceptions not relevant here, former
{¶ 19} During the period of Gyugo’s employment, the General Assembly enacted
{¶ 20} When Gyugo applied for his position, former
{¶ 21} During the period of Gyugo’s employment, a training specialist employed by the board had to register as an adult-services worker with the department and maintain that registration as a condition of employment. Each time Gyugo applied to renew his adult-services registration, former
former Ohio Adm.Code 5123:2-5-04(J), 2002-2003 Ohio Monthly Record 718, effective Oct. 10, 2002.
{¶ 22} Prior to July 25, 2013, former Ohio Adm.Code 5123:2-5-04(G) afforded applicants the opportunity to avoid disqualification by satisfying certain conditions to demonstrate rehabilitation. 1995-1996 Ohio Monthly Record 1677. If an applicant satisfied the rehabilitation conditions—one of which was that the record of the prior conviction had been sealed—the department could not deny or revoke registration based on the prior conviction. Former Ohio Adm.Code 5123:2-5-04(G)(4), 1996-1997 Ohio Monthly Record 1677; former Ohio Adm.Code 5123:2-5-04(G)(7), 2002-2003 Ohio Monthly Record 718. Sealing alone did not establish rehabilitation; the applicant had to satisfy all the conditions listed in Ohio Adm.Code 5123:2-5-04(G) to avoid disqualification. Former Ohio Adm.Code 5123:2-5-04(H), 1995-1996 Ohio Monthly Record 1677; former Ohio Adm.Code 5123:2-5-04(I), 2002-2003 Ohio Monthly Record 718.
{¶ 23} Having reviewed the myriad statutes and regulations implicated here, we turn to their application in this case.
The order sealing Gyugo’s conviction does not negate disqualifications under R.C. 5123.081 and former R.C. 5126.28
{¶ 24} Gyugo stipulates that his sealed conviction was for an offense that is currently listed in
{¶ 25} First, Gyugo’s argument is contrary to the plain language of
Questions explicitly requiring disclosure of sealed convictions on the registration applications bore a direct and substantial relationship to Gyugo’s position and adult-services registration
{¶ 26} The prior-conviction questions on all four of Gyugo’s applications to renew his adult-services registration stated that he had to disclose sealed convictions. Regardless of any belief on his part that the 1992 sealing order precluded questions about his prior conviction, Gyugo failed to disclose on the registration applications that he had a prior conviction. The issue becomes whether the department was entitled to ask those questions. See 2016-Ohio-823, 60 N.E.3d 715. We conclude that it was.
{¶ 27}
{¶ 28} Subject to the rehabilitation provisions in former Ohio Adm.Code 5123:2-5-04(G), former
{¶ 29} Former Ohio Adm.Code 5123:2-5-04(D)(2) left to the department the task of determining whether an unlisted felony offense bore a direct and substantial relationship to the position for which registration was required. Relevant factors included the duties and responsibilities of the position, the nature and seriousness of the offense, the circumstances surrounding the offense, the victim’s characteristics, the applicant’s participation in the offense, and the extent to which the position would provide an opportunity for the commission of the same or a similar offense. Former Ohio Adm.Code 5123:2-5-04(F), 1995-1996 Ohio Monthly Record 1677.
{¶ 30} Consistently with the dissenting opinion from the Tenth District, Gyugo argues that the registration-application questions at issue here violated
The state board of education and the department of education may question an applicant for issuance or renewal of any license with respect to any criminal offense committed or alleged to have been committed by the applicant. If the record of a conviction * * * has been sealed or expunged, the state board and the department need not 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.
Gyugo argues that
{¶ 32} Gyugo’s proposed requirement that application questions about sealed convictions specifically list all sufficiently related offenses is contrary to the department’s statutory and regulatory discretion. The department was not able to list every offense that might be directly and substantially related to the position because, in light of its fact-intensive, case-by-case analysis, a particular offense might be sufficiently related to require disqualification in some circumstances but not in others.
{¶ 33} Gyugo’s argument also disregards the difference between the relationships required by
{¶ 34} We think Kistler is instructive. There, a Bureau of Workers’ Compensation (“BWC”) regulation prohibited certification of a healthcare provider for participation in the Health-Partnership Program (“HPP”) if the provider had a “ ‘history of a felony conviction in any jurisdiction’ ” or “ ‘a conviction for an act involving dishonesty, fraud, or misrepresentation.’ ” Kistler at ¶ 3, quoting former
{¶ 35} Kistler challenged the revocation, arguing that the BWC could not consider his Florida conviction because the records of the conviction had been sealed pursuant to
{¶ 36} Here, we conclude that the prior-conviction application questions explicitly requiring disclosure of sealed convictions bore a direct and substantial relationship to Gyugo’s position, for which registration as an adult-services worker was required. Determination of both Gyugo’s qualifications for employment by the board and qualifications for the required adult-services registration involved consideration of Gyugo’s criminal history, including any convictions that had been sealed. Therefore, the application questions were directly and substantially related to Gyugo’s position as a training specialist and registration as an adult-services worker.
Conclusion
{¶ 37} The prior-conviction questions explicitly requiring disclosure of sealed convictions on Gyugo’s applications to renew his adult-services registration did not violate
Judgment affirmed.
O’CONNOR, C.J., and O’DONNELL, KENNEDY, O’NEILL, FISCHER, and DEWINE, JJ., concur.
McFadden & Winner, Mary Jane McFadden, and Joseph C. Winner, for appellant.
Ron O’Brien, Franklin County Prosecuting Attorney, and Denise L. DePalma, Assistant Prosecuting Attorney, for appellee.
Russell S. Bensing, urging reversal for amicus curiae Ohio Association of Criminal Defense Lawyers.
Michael DeWine, Attorney General, Eric E. Murphy, State Solicitor, Michael J. Hendershot, Chief Deputy Solicitor, and Ryan Harmanis, Deputy Solicitor, urging affirmance for amicus curiae state of Ohio.
Bricker & Eckler, L.L.P., Anne Marie Sferra, and Jill K. Bigler, urging affirmance for amicus curiae Ohio Association of County Boards of Developmental Disabilities.