Haynam v. Ohio State Bd. of Edn.Haynam v. Ohio State Bd. of Edn.
Decided: December 16, 2011
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Douglas G. Haynam, for appellant.
Mike DeWine, Attorney General of Ohio, Amy Nash Golian and Jennifer Bondurant, Assistant Attorneys General, for appellees.
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YARBROUGH, J.
{¶ 1} Plaintiff-appellant, Benjamin J. Haynam, appeals a judgment entered by the Lucas County Court of Common Pleas affirming a decision of appellee Ohio State Board of Education (“Board“), which, among other aspects, ordered that he “be permanently ineligible to apply for any license issued by the State Board of Education.”
{¶ 3} The record is unclear whether this academic episode served to fuel further mendacity or whether Haynam simply felt trapped within the accumulated deceit. Regardless, in late 2008, and with support from his parents, Haynam obtained a substitute teaching position with Sylvania City Schools (“Sylvania“). This employment was gained largely on the strength of a resume detailing sham credentials and accomplishments at KSU, and falsely claiming he had taught for five months at Kent High School. Although Sylvania initially requested copies of Haynam‘s academic degree and state teaching license, he ignored the request and the school‘s personnel official did not pursue it. From 2008 to 2009, Haynam continued to substitute teach. He also assisted with various extracurricular events. He apparently did well enough in these roles to earn positive evaluations from otherwise unsuspecting Sylvania administrators, teachers, parents and students.
{¶ 5} Amid the unraveling deceit, Haynam claimed “it was all a mistake” when Sylvania personnel confronted him with the inconsistent facts and the failure to submit the requested documents. Official frustration with this response soon became an investigative matter for the Sylvania Police Department. In July 2009, Haynam was indicted on three counts of forgery and three counts of tampering with records, all felonies, in connection with the fraudulent teaching license and the forged documents. In November 2009, he pled guilty to one count each of the forgery and tampering offenses. Hayman was sentenced to four years of community control and ordered to pay restitution to Sylvania in the amount of $21,837.34.
{¶ 7} After reviewing the facts, the hearing officer found sufficient evidence from which to conclude that Haynam‘s convictions, and the underlying fraudulent and deceptive acts which precipitated them, violated the standards for licensure established in
{¶ 8} Haynam filed objections to the report. On October 12, 2010, after considering the report and the objections, the Board, by resolution, adopted the substance of the three recommendations. Haynam then appealed to the Lucas County Court of Common Pleas, which affirmed the Board‘s decision. This appeal followed.
{¶ 9}
{¶ 10} Haynam has assigned three errors for our review. There is no dispute about the underlying material facts which led to the hearing officer‘s recommendation or the Board‘s decision to adopt it, and this appeal involves none. The first and third assignments seek to reverse the trial court‘s decision holding that the Board had statutory authority under
{¶ 11} The first assigned error states:
{¶ 12} “1. The Lucas County Common Pleas Court erred in affirming the decision of the Ohio State Board of Education (‘SBOE‘) declaring Benjamin J. Haynam permanently ineligible to apply for an educator‘s license in that the SBOE lacks authority under the Revised Code to declare an individual subject to discretionary discipline permanently ineligible to apply for a license.”
{¶ 13}
{¶ 14} “(B) For any of the following reasons, the state board of education, in accordance with Chapter 119 and section 3319.311 of the Revised Code, may refuse to issue a license to an applicant; may limit a license it issues to an applicant; may suspend,
{¶ 15} “(1) Engaging in an immoral act, incompetence, negligence, or conduct that is unbecoming to the applicant‘s or person‘s position;
{¶ 16} “(2) A plea of guilty to, a finding of guilt by a jury or court of, or a conviction of any of the following:
{¶ 17} “(a) A felony other than a felony listed in division (C) of this section;
{¶ 18} “(b) An offense of violence other than an offense of violence listed in division (C) of this section;
{¶ 19} “(c) A theft offense, as defined in section 2913.01 of the Revised Code, other than a theft offense listed in division (C) of this section;
{¶ 20} “* * *
{¶ 21} “* * *
{¶ 22} “(C) Upon learning of a plea of guilty to, a finding of guilt by a jury or court of, or a conviction of any of the offenses listed in this division by a person who holds a current or expired license or is an applicant for a license or renewal of a license, the state board or the superintendent of public instruction, if the state board has delegated the duty pursuant to division (D) of this section, shall by a written order revoke the person‘s license or deny issuance or renewal of the license to the person. The state board or the superintendent shall revoke a license that has been issued to a person to whom this division applies and has expired in the same manner as a license that has not expired.
{¶ 24}
{¶ 25} Haynam maintains that the discretion given in
{¶ 26} In support of their respective positions on whether any sense of permanency is implied by the sanctions listed in
{¶ 27} In Roy, the physician‘s license had been permanently revoked based on two felony theft convictions. On appeal, he argued that
{¶ 28} In Richter, the medical board permanently revoked the physician‘s license for various violations of
{¶ 29} Roy and Richter, however, were decided under
{¶ 30} In his application, Guanzon had failed to disclose the fact that disciplinary proceedings had been initiated against him in another state, resulting in the surrender of his medical license there. Finding that Roy “appli[ed] with equal weight” because both subsections of
{¶ 31} Roy and Richter thus dispose of Haynam‘s claim that unless a particular sanction, such as “revoke,” is modified by the adjective “permanently,” the Board is necessarily without authority to make it permanent. Plainly it has that authority. Guanzon, as a matter of construction, indicates that where a statute grants the board discretion to impose a sanction against a licensee or applicant, that discretion can encompass imposing the sanction in its permanent form. That does not end the analysis, however, for the medical board cases take us only so far.
{¶ 32} Notably relevant here is Poignon v. Ohio Bd. of Pharmacy, 10th Dist. No. 03-AP-178, 2004-Ohio-2709. The issue in Poignon was whether the pharmacy board can forever bar an applicant. Poignon, who had been a licensed pharmacist, had his license permanently revoked both for stealing controlled substances, primarily narcotics and stimulants, and for the ensuing felony convictions. Through a mandamus action, he asked the appeals court to order the pharmacy board to process his application for a new license and either grant it or give him a hearing.
{¶ 33} The pharmacy board had revoked Poignon‘s license under its discretionary authority in
{¶ 34} The Poignon court noted that this administrative code section was adopted pursuant to
{¶ 35} “The state board of pharmacy may adopt rules in accordance with Chapter 119. of the Revised Code, not inconsistent with the law, as may be necessary to carry out the purposes of and to enforce the provisions of this chapter.* * *” (Emphasis added.)
{¶ 36} Therefore, because
{¶ 37} “[T]he pharmacy board does not need to specify in its order [under
{¶ 38} In sum, Poignon indicates that where the enabling statute gives the board the discretionary authority to sanction licensees and applicants, and also gives it the rule-making authority “to carry out” those sanctions, the board may, by administrative rule, define both the meaning and scope (or effect) of a particular sanction, unless the legislature has otherwise done so or has restricted that authority.
{¶ 39} This brings us to the scope of the Board of Education‘s disciplinary authority under
{¶ 40} Given this, among the discretionary adverse actions available to the Board in
{¶ 41}
{¶ 42} “(G) The state board may adopt rules in accordance with Chapter 119 of the Revised Code to carry out this section and section 3319.311 of the Revised Code.” (Emphasis added.)3
{¶ 44} “(A) The state board, in accordance with Chapter 119. and section 3319.311 of the Revised Code, may suspend, revoke or deny a license as specified in paragraph (A) of this rule.
{¶ 45} “* * *
{¶ 46} “(2) Revocation of a license is a final action. After revoking a license, the state board shall impose one of the conditions described in paragraphs (A)(2)(a) and (A)(2)(b) of this rule.
{¶ 47} “(a) The state board may establish a minimum period of time before an applicant can apply for a new license. At the conclusion of the specified period, and upon demonstration of compliance with any educational requirements, the terms of the state board‘s order, and the criteria set forth in rule 3301-73-24 of the Administrative Code, the state board may issue a new license to the applicant.
{¶ 48} “(b) The state board may order that the respondent whose license has been revoked shall be permanently ineligible to apply for any license issued by the state board and that the respondent shall no longer be permitted to hold any position in any school district in the state that requires a license issued by the state board.
{¶ 50} “(a) The state board may establish a minimum period of time before an applicant can apply for a license. At the conclusion of the specified period, and upon demonstration of compliance with any educational requirements, the state board‘s order, and the criteria set forth in rule 3301-73-24 of the Administrative Code, the state board may issue a license to the applicant.
{¶ 51} “(b) The state board may order that the respondent whose license has been denied shall be permanently ineligible to apply for any license issued by the state board and that the respondent shall not be permitted to hold any position in any school district in the state that requires a license issued by the state board.” (Emphasis added.)
{¶ 52}
{¶ 53} Haynam nevertheless maintains that the Board “[lacks] a clear grant of authority to use its discretionary powers under
{¶ 54} Haynam next argues that {¶ 55} In D.A.B.E., the Supreme Court held that the General Assembly had not expressly delegated to local health boards the authority under {¶ 56} The court first reviewed the entirety of {¶ 58} Secondarily, the D.A.B.E. court found “no express grant of power” in the language of {¶ 59} “Such grant of power, by virtue of a statute, may be either express or implied, but the limitation put upon the implied power is that it is only such as may be reasonably necessary to make the express power effective. In short, the implied power is only incidental or ancillary to an express power, and, if there be no express grant, if follows, as a matter of course, that there can be no implied grant.” (Emphasis added.) D.A.B.E. at ¶ 39. {¶ 61} Having been adopted pursuant to {¶ 62} Accordingly, the first assignment of error is not well-taken. {¶ 63} The third assigned error states: {¶ 64} “3. The Lucas County Common Pleas Court erred in affirming the decision of the SBOE declaring Benjamin Haynam permanently ineligible to apply for an educator‘s license in that its decision was ad hoc, arbitrary, declared without reference to any standard, and unreasonable.” {¶ 65} In support of this assignment, Haynam makes two arguments. He first maintains that even assuming the Board had authority under {¶ 66} We will first address the litany of “ad hoc, arbitrary and standardless.” For this trio, Haynam relies on language from the Supreme Court‘s decision in Northwestern Ohio Bldg. & Constr. Trades Council v. Conrad, 92 Ohio St.3d 282. He maintains that even if an agency has the statutory authority to act, but the statute leaves the details of carrying out the legislative program to the agency, Conrad requires both a reasonable interpretation of that mandate and reasonableness in performing the act. As a casual summary unattached to any facts, that is accurate; yet, a closer reading reveals that Conrad plainly supports the Board‘s position. {¶ 67} Conrad involved the issue whether, absent express legislative direction, the Bureau of Workers’ Compensation could withdraw proceeds from the state insurance fund (“SIF“) needed to pay the required administrative and performance-incentive fees to certified managed-care organizations (“MCOs“) under the Health Partnership Program (“HPP“). The HPP was created by {¶ 68} Like Haynam‘s narrow reading of {¶ 69} Conrad and later cases have only accentuated the need for reviewing courts to weigh the administrative agency‘s view of the legislative mandate and to “give due {¶ 70} “[C]ourts, when interpreting statutes, must give due deference to an administrative interpretation formulated by an agency which has accumulated substantial expertise, and to which the legislature has delegated the responsibility of implementing the legislative command. Therefore, under these circumstances, where the legislature has granted the authority to the Attorney General to adopt rules governing the informal dispute-resolution mechanisms, we defer to the Attorney General‘s policy on mileage setoffs.” (Emphasis added.) Id. at ¶ 26.7 {¶ 71} We have already concluded that under {¶ 72} {¶ 73} “(A) The state board of education shall consider, but not be limited to, the following factors when evaluating conduct unbecoming under division (B)(1) of section 3319.31 of the Revised Code: {¶ 74} “(1) Crimes or misconduct involving minors; {¶ 75} “(2) Crimes or misconduct involving school children; {¶ 76} “(3) Crimes or misconduct involving academic fraud; {¶ 77} “(4) Making, or causing to make, any false or misleading statement, or concealing a material fact in a matter pertaining to facts concerning qualifications for professional practice and other educational matters; {¶ 78} “(5) Crimes or misconduct involving the school community, school funds, or school equipment/property; {¶ 79} “(6) A plea of guilty to, or finding of guilt, of a conviction, granting of treatment in lieu of conviction, or a pre-trial diversion program to any offense in violation of federal, state, or local laws and/or statutes regarding criminal activity; {¶ 80} “(7) A violation of the terms and conditions of a consent agreement; and {¶ 82} Given the foregoing, the “ad hoc, arbitrary and standardless” mantra is unconvincing. In some sense all punitive actions by the Board, whether permanent or temporary, are ad hoc in nature. The “ad hoc” characterization thus adds nothing to the analysis. In {¶ 83} The factors set forth in {¶ 84} Haynam also claims that the same exercise of discretion was “per se unreasonable.” In substance, this claim is little more than conclusory and duplicates his arbitrariness contention. He identifies no specific aspect of the hearing or decision process as unreasonable, other than to complain that the Board lacks “a set of precedent-establishing cases relating to its exercise of its authority” and “there are no readily available prior decisions of [the Board] regarding its exercise of [the] power to declare an individual permanently ineligible to apply” for a license. However, if these are indeed legal predicates before an agency‘s decision on licensure can be deemed reasonable, Haynam has failed to cite any case, statute or administrative code section that requires them. {¶ 85} In part, Haynam‘s unreasonableness objection resembles a proportionality challenge to the decision to bar him permanently. Although postured as if his case were the first instance of permanent ineligibility, we note that in State ex rel. Kleja v. State Teachers Retirement Bd., 10th Dist. No 08-AP-326, 2009-Ohio-2047, the teacher‘s {¶ 86} In rejecting the physician‘s proportionality argument in Guanzon, the Tenth Appellate District expressed its disapprobation for his deceit, stating: {¶ 87} “[T]he nature of the violation in this case justifies, in our view, a severe sanction. Indeed, the violation involves deception, fraud, and dishonesty by [Guanzon] in his dealings with the state licensing authority. Acts of deception by an applicant in securing a medical license put the public at a substantial risk of harm. Under the circumstances, we cannot say that the penalty imposed [permanent revocation] was so severe as to be out of all proportion to the wrong.” (Emphasis added.) Id. at 497. {¶ 89} In this case the record indicates that the hearing officer had serious reservations about ever allowing Haynam to return to a setting in which parents and {¶ 90} Accordingly, the third assignment of error is not well-taken. {¶ 91} The second assignment of error states: {¶ 92} “2. The Lucas County Common Pleas Court erred in affirming the decision of the SBOE declaring Benjamin Haynam permanently ineligible to apply for an educator‘s license in that the SBOE lacks authority under the Ohio Constitution to limit the exercise of discretionary authority by future State Boards of Education.” {¶ 94} As argued in this assignment, the concept is ripped from its unique mooring in cases that address the tension between the legislature‘s plenary power to legislate on {¶ 95} Haynam also cites State ex rel. Stenberg v. Moore (1996), 249 Neb. 589. There, the Nebraska Supreme Court addressed an attempt to “bind a successor legislature” by means of a statute that required any subsequent legislation likely to increase the state‘s prison population to include operating-cost estimates and to make appropriations to cover those costs. To enforce this, the legislature inserted a provision declaring “null and void” any prison legislation passed after 1993 without the cost estimates and separate appropriations. The Stenberg court struck down the statute on the ground that the “null and void” provision was an attempt at “irrepealable legislation,” thereby violating the general rule against impeding the constitutional discretion of a later legislature to revise or repeal a law passed by an earlier body. Id. at 595. {¶ 96} The proffered analogy to the legislative cases might perhaps be more accurate if the Board had actually attempted something like the Nebraska legislature in {¶ 97} Though not cited by either party, the Ohio Supreme Court has spoken on the binding concept before in Bd. of Trustees v. Boyce, 127 Ohio St.3d 511, 2010-Ohio-6207. Boyce involved a declaratory judgment action challenging a 2008 statute that allegedly destroyed an irrevocable trust and the contractual obligations arising from it. A statute passed in 2000 had established, in part, a $235 million trust fund containing monies paid from a settlement agreement with tobacco manufacturers. Under this statute a state foundation was created as the trustee of the fund. Various anti-tobacco plaintiffs sued after the 2008 statute abolished the foundation. The Boyce court rejected both the trust and contract claims, finding that the fund was not a trust and no contract had been formed when the foundation and the fund were created. Id. at ¶ 25-29. In discussing the 2008 statute and the General Assembly‘s power to legislate, the court stated: {¶ 98} “Although the General Assembly‘s plenary legislative power is expansive, it is not all-inclusive. It does not include the ability to bind future General Assemblies. ‘No general assembly can guarantee the continuity of its legislation or tie the hands of its successors.’ * * * ‘[N]o General Assembly has power to render its enactment irrevocable and unrepealable by a future General Assembly. No General Assembly can guarantee the {¶ 99} Winstar, Stenberg and Boyce only underscore the fact that the restriction against “binding” future assemblies draws its sole relevance from the inherent institutional power to make, change or repeal statutes—typically as exercised in the face of alleged commitments in public contracts. Winstar; Boyce. That power is both plenary and sui generis to the legislature. The binding restriction exists to protect the continuity of the power to legislate from self-disablement, despite periodic rotations in legislative office. Boyce at ¶ 10-11. Beyond that constitutional context it has no application and cannot be forcibly transmuted into the decisions of administrative agencies acting in matters of occupational licensure. {¶ 100} The Board does not have plenary law-making power and was not undertaking a legislative function when it ordered Haynam to be permanently ineligible for a license. What power it has is regulatory and delegated by statute. The Board‘s authority over educational licensure is exercised interstitially, and the process of sanctioning educators and applicants is individuated. Certainly nothing in the decision here forecloses a future Board from adopting a new or amended rule that allows for {¶ 101} Accordingly, the second assignment of error is not well-taken. {¶ 102} On consideration whereof, the judgment of the Lucas County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to JUDGMENT AFFIRMED. A certified copy of this entry shall constitute the mandate pursuant to Peter M. Handwork, J. Thomas J. Osowik, P.J. Stephen A. Yarbrough, J. CONCUR. This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.