{¶ 2} Appellant is the former chief financial officer for Telxon Corporation. According to appellant, in December 1998, alleging violations of the Securities Exchange Act of 1934, Telxon shareholders sued Telxon, appellant, and the corporation's former chief executive officer in federal district court. Later, according to appellant, in May 2001, separate suits were brought against PricewaterhouseCoopers LLP, Telxon's outside auditors. In March 2002, claiming appellant violated the Securities Exchange Act of 1934, the United States Securities and Exchange Commission ("SEC") sued appellant in federal district court and sought a permanent injunction and a civil penalty against appellant. Thereafter, appellant and the SEC entered into an agreement related to the SEC's suit against appellant. Appellant also consented to an administrative order wherein the SEC suspended appellant's privilege to appear or practice before the SEC as an accountant for five years with a right to apply for reinstatement at the expiration of the five-year period.
{¶ 3} Subsequently, by letter dated December 20, 2002, the accountancy board proposed disciplinary action against appellant, pursuant to R.C.
{¶ 4} After granting several continuances, the accountancy board held an administrative hearing to consider the matter. Thereafter, the accountancy board found that appellant violated R.C.
{¶ 5} Appellant assigns four errors for our consideration:
1. The Lower Court abused its discretion when finding that by allegedly failing to repeat his numerous previous requests for a continuance on grounds of procedural due process at his hearing, Appellant waived any right to raise this issue on appeal.
2. The Lower Court abused its discretion when finding that Appellant made no showing of prejudice from any inability to use evidence and when finding that Appellant failed to provide any description of evidence that he would have offered or how it would have been material to this case.
3. The Lower Court abused its discretion when failing to consider that present restrictions on Appellant's opportunity to present evidence to the Board imposed by protective orders entered in related securities litigation deprived Appellant of a meaningful opportunity to be heard before the Board.
4. The Lower Court erroneously held that under R.C. §
{¶ 6} Pursuant to R.C.
{¶ 7} 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. Ohio Veterinary Med. Bd. (1981),
{¶ 8} An appellate court's review of an administrative decision is more limited than that of a common pleas court. Ponsv. Ohio State Med. Bd. (1993),
* * * While it is incumbent on the trial court to examine the evidence, this is not a function of the appellate court. The appellate court is to determine only if the trial court has abused its discretion, i.e., being not merely an error of judgment, but perversity of will, passion, prejudice, partiality, or moral delinquency. Absent an abuse of discretion on the part of the trial court, a court of appeals may not substitute its judgment for [that of an administrative agency] or a trial court. Instead, the appellate court must affirm the trial court's judgment. * * *
Id. at 621.
{¶ 9} An appellate court does, however, have plenary review of questions of law. Chirila v. Ohio State Chiropractic Bd.
(2001),
{¶ 10} R.C.
After notice and hearing as provided in Chapter 119. of the Revised Code, the accountancy board may discipline as described in division (B) of this section a person holding * * * a CPA certificate * * * for any one or any combination of the following causes:
* * *
(8) Suspension or revocation of the right to practice before any state or federal agency[.]
{¶ 11} Division (B) of R.C.
For any of the reasons specified in division (A) of this section, the board may do any of the following:
(1) Revoke, suspend, or refuse to renew any CPA certificate * * *;
* * *
(3) Publicly censure * * * a holder of a CPA certificate * * *;
(4) Levy against * * * a holder of a CPA certificate * * * a penalty or fine not to exceed five thousand dollars for each offense. Any fine shall be reasonable and in relation to the severity of the offense.
{¶ 12} Pursuant to R.C.
{¶ 13} However, in his fourth assignment of error, appellant asserts that, absent reliable, probative, and substantial evidence that a suspension occurred for cause, the common pleas court's affirmance of the accountancy board's order was error.
{¶ 14} R.C.
{¶ 15} "The polestar of construction and interpretation of statutory language is legislative intention." State ex relFrancis v. Sours (1944),
{¶ 16} "In determining the legislative intent of a statute `it is the duty of this court to give effect to the words used (in a statute), not to delete words used or to insert words notused.'" Wheeling Steel Corp. v. Porterfield (1970),
{¶ 17} "No clear standard has evolved to determine the level of lucidity necessary for a writing to be unambiguous." State v.Porterfield,
{¶ 18} Here, we cannot conclude that a definitive meaning of R.C.
{¶ 19} Furthermore, we do not conclude that our interpretation of R.C.
{¶ 20} Through R.C.
{¶ 21} Before this court and for the first time in appellant's appeal proceedings, appellant asserts that it is unconstitutional to interpret R.C.
{¶ 22} "[T]he question of the constitutionality of a statute must generally be raised at the first opportunity." State v.1981 Dodge Ram Van (1988),
{¶ 23} Here, appellant's fourth assignment of error does not advance a claim that R.C.
{¶ 24} Accordingly, having failed to raise the constitutionality of R.C.
{¶ 25} To support his fourth assignment of error, appellant also relies upon Urella v. State Med. Bd. of Ohio (1997),
{¶ 26} On advice of counsel, Dr. Urella, who at the time of these charges was living in Kentucky and practicing medicine in Kentucky and whose New York medical license at that time was inactive, applied to voluntarily surrender his New York medical license rather than defend against the charges brought against him. In his application of surrender, Dr. Urella asserted that he was not admitting fault in any manner, and he pled nolo contendere. Thereafter, the New York board accepted Dr. Urella's voluntary surrender application and prohibited him from reapplying for licensure for one year. The New York board made no separate findings or conclusions concerning whether the allegations against Dr. Urella were true or proven.
{¶ 27} Claiming that the New York board's acceptance of Dr. Urella's application to surrender his New York medical license and the striking of Dr. Urella's name from New York's roster of physicians constituted the limitation, revocation, or suspension of a license issued by another state under former R.C.
{¶ 28} Finding an absence of reliable, probative, and substantial evidence to support the State Medical Board of Ohio's order, this court concluded:
* * * Under the circumstances of this case, the New York Board's statement of charges amounts to nothing more than unsubstantiated and unproven allegations. Ohio cannot discipline Dr. Urella based on these unsubstantiated allegations, especially in light of Dr. Urella's appearance and denial of the charges before the Ohio Board and the failure to present any evidence in rebuttal. * * *
Id. at 562. This court therefore affirmed the judgment of the common pleas court reversing the State Medical Board of Ohio's order of revocation.
{¶ 29} The present case, however, is factually distinguishable from Urella. Here, the SEC suspended appellant, and the suspension constituted a disciplinary action against appellant. By contrast, in Urella, the New York board's acceptance of Dr. Urella's voluntary surrender application was not legally tantamount to a disciplinary action under the circumstances of that case. See id. at 563 (Deshler, J., concurring separately).
{¶ 30} In Fehrman v. Ohio Dept. of Commerce, Div. ofSecurities (2001),
Unlike the statute in Urella, neither R.C.
Id. at 508-509.
{¶ 31} Similarly, here, unlike former R.C.
{¶ 32} Additionally, appellant's reliance upon In re Apollo
(1997),
{¶ 33} Thereafter, the Committee on Professional Standards in New York moved to reciprocally discipline Apollo. Denying the motion for reciprocal discipline, the Apollo court noted that "[a] prerequisite for the imposition of reciprocal discipline is the imposition of discipline by the foreign jurisdiction after a finding of misconduct." Id. at 732, citing Matter of Moed
(1993),
{¶ 34} In re Apollo also is factually distinguishable from this case. Under the plain language of R.C.
{¶ 35} Relying upon Evid.R. 408,2 appellant also contends that the SEC's suspension order, as a matter of law, was an insufficient basis for the accountancy board's revocation of appellant's CPA certificate. Appellant reasons that, because a settlement agreement between appellant and the SEC underlay the SEC's suspension order, Evid.R. 408 therefore prohibited the introduction of this suspension order for the purpose of establishing liability. See Fireman's Fund Ins. Co. v. BPS Co.
(1985),
{¶ 36} First, appellant failed to object to the introduction of the SEC's suspension order at the administrative hearing. (Tr. 6.) "Errors arising in the trial court, which are not called to the court's attention at a time when the error could have been corrected or avoided, are waived, absent plain error." Napieralav. Szczublewski, Lucas App. No. L-02-1025,
{¶ 37} "`The plain error doctrine provides for the correction of errors clearly apparent on their face and prejudicial to the complaining party even though the complaining party failed to object to the error at trial. * * * The plain error doctrine may be utilized in civil cases only with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice. * * *'" Napierala, at ¶ 25, quotingLeFort v. Century 21-Maitland Realty Co. (1987),
{¶ 38} Here, by failing to object to the introduction of the suspension order, appellant waived this issue, absent plain error. Moreover, even assuming arguendo that the accountancy board's reliance upon the SEC's suspension order was error, we do not conclude that the accountancy board's reliance upon the SEC's suspension order rises to the level of plain error.
{¶ 39} Secondly, Evid.R. 101(A) provides that the Ohio Rules of Evidence, with some exceptions as specified in Evid.R. 101(C), govern proceedings in the courts of this state. The 1980 staff notes to Evid.R. 101(A) state: "The rules * * * apply to `court-appointed referees.' The language `court-appointed' is used because the Supreme Court cannot constitutionally extend its rule-making power to `referees' in the executive department."
{¶ 40} Thus, because the Supreme Court of Ohio cannot constitutionally extend its rule-making power to hearing officers in the executive department, absent adoption of the Ohio Rules of Evidence by the accountancy board, whether Evid.R. 408 applies to proceedings before the accountancy board is not indisputable as a matter of law.
{¶ 41} Accordingly, for the foregoing reasons, appellant's fourth assignment of error is overruled.
{¶ 42} Having concluded that, under R.C.
{¶ 43} Appellant's third assignment of error asserts the common pleas court abused its discretion when it failed to consider that restrictions imposed by protective orders in related securities litigation deprived appellant of a meaningful opportunity to be heard before the accountancy board. Appellant's second assignment of error asserts that the common pleas court abused its discretion by finding that appellant failed to show prejudice from an inability to use evidence and by finding that appellant failed to provide any description of evidence that he would have proffered, or how this unavailable evidence would have been material to his case before the accountancy board. Because these assignments of error are interrelated, we will consider them jointly.
{¶ 44} By his third assignment of error, appellant asserts he was denied procedural due process. See, e.g., Mackey v. Montrym
(1979),
{¶ 45} "The requirements of procedural due process apply only to the deprivation of interests encompassed by the
{¶ 46} In Korn v. Ohio State Med. Bd. (1988),
{¶ 47} Accordingly, construing Korn and Vaughn, we conclude that the revocation of appellant's CPA certificate by the accountancy board implicates a protected property right under the
{¶ 48} "Procedural due process requirements are flexible and vary according to a particular situation." State v. Pennington
(Jan. 29, 2002), Franklin App. No. 01AP-657, appeal not allowed,
{¶ 49} However, "the right to due process in an administrative proceeding is not limited to a simple right to have the hearing conform with the letter of applicable procedural regulations." Clayman v. State Med. Bd. of Ohio (1999),
{¶ 50} Here, appellant claims that, due to protective orders in related securities litigation, many documents involved in related securities litigation were unavailable to him at the accountancy board hearing. Therefore, appellant reasons that, because these documents were unavailable to him in the matter before the accountancy board, he was denied a meaningful opportunity to be heard. However, except for a claim that the protected documents would have assisted appellant in challenging allegations that he violated federal securities law, appellant does not show how the unavailability of these documents actually prejudiced appellant at the administrative hearing.
{¶ 51} Even assuming arguendo that the documents covered by the protective orders would have challenged allegations that he violated federal securities law, appellant does not assert that these protected documents would have rebutted evidence of the SEC's suspension of appellant. Thus, at best, the usefulness of these protected documents would have been limited to mitigating potential discipline by the accountancy board.
{¶ 52} Through his testimony at the hearing before the accountancy board, appellant had an opportunity to advance his contention that he did not violate federal securities law. (Tr. 9-18.) Assuming these unavailable documents would have supported appellant's testimony before the board, they would have served only as cumulative evidence.
{¶ 53} Furthermore, at the beginning of the proceedings before the accountancy board, appellant did not claim that he could not adequately present a defense due to the unavailability of protected documents. Rather, appellant's counsel represented to the board that appellant was ready to proceed. (Tr. 6.)
{¶ 54} Under these facts and circumstances, we cannot conclude that appellant was denied a meaningful opportunity to be heard. Furthermore, we cannot conclude that the common pleas court abused its discretion by finding that appellant failed to show prejudice from an inability to use evidence and by finding that appellant failed to provide any description of evidence that he would have proffered or how this unavailable evidence would have been material to his case before the accountancy board.
{¶ 55} Accordingly, appellant's second and third assignments of error are overruled.
{¶ 56} Finally, appellant's first assignment of error asserts that the common pleas court abused its discretion when it found that appellant's failure to request a continuance at the administrative hearing constituted waiver of this issue.
{¶ 57} In an opening statement before the accountancy board, appellant's counsel represented:
[Appellant's counsel]: But we appreciate the opportunity to come and address the issue of whether Mr. Haver should be disciplined. Certainly we don't question in any respect the jurisdiction of the Board to address this matter with the understanding that the jurisdiction says you believe that discipline is warranted. A full hearing on the evidence related to the underlying events would certainly take multiple days and many witnesses and scores of exhibits. We have no intention of going down that path today. Of course we do believe that disciplinary action shouldn't be taken without a search and examination of the evidence. These underlying transactions are going to be the subject of a jury trial probably next year. Mr. Haver's former employer has brought an action against the SI auditing company, PWC. These issues are going to be addressed at that trial. We are very confident the result of that trial will be a vindication of Mr. Haver. But we're not looking to postpone this matter any further awaiting that trial. Frankly, Mr. Haver's been barred from the company for over five years. The company's been taken over. We simply don't have access to the documentary evidence that we would need to postpone this hearing any further, really wouldn't get us anywhere. * * *
(Tr. 8-9.)
{¶ 58} Here, through his representations to the accountancy board, appellant's counsel conveyed that appellant was ready to proceed with the administrative hearing. Based upon these representations to the accountancy board, we cannot conclude that the common pleas court abused its discretion when it concluded that, by failing to object or request a further continuance at the administrative hearing, appellant waived the issue for purposes of appeal. Appellant's first assignment of error is therefore overruled.
{¶ 59} Accordingly, we hold the common pleas court did not abuse its discretion by finding that the accountancy board's order was supported by reliable, probative, and substantial evidence.
{¶ 60} For the foregoing reasons, appellant's four assignments of error are overruled, and the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
Bryant and Sadler, JJ., concur.
Notes
Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.