Kellough v. Ohio State Bd. of Edn.Kellough v. Ohio State Bd. of Edn.
Kingsley Law Office, James R. Kingsley and Nickolas D. Owen, for appellant.
Michael DeWine, Attorney General, Mia Meucci and Todd R. Marti, for appellee.
APPEAL from the Franklin County Court of Common Pleas
KLATT, J.
{¶1} Appellant, Martin L. Kellough, appeals from a judgment of the Franklin County Court of Common Pleas affirming the decision of appellee, the Ohio State Board of Education (“Board“), to revoke Kellough‘s five-year professional career technical teaching license. For the following reasons, we affirm.
{¶2} From approximately 1997 until 2008, Kellough was a teacher at Pike County Career Technology Center (“Career Technology Center“), a vocational and technical high school located in Piketon, Ohio. Kellough was assigned to teach electricity
{¶3} Throughout the 2007-2008 school year, the Career Technology Center was undergoing renovations, so classes convened at three separate locations in and around Piketon. Kellough and Cox taught their electricity classes at a temporary laboratory set up at the Pike County Fairgrounds. The morning of December 20, 2007, Kellough and Cox asked the school principal, Kevin Smith, if they could hold a Christmas party for their students at the fairgrounds. Smith denied their request because he had to supervise classes at two other locations—the Old Piketon High School and the 2J Supply Building—and he did not want to also supervise classes at a third location. Smith told Kellough and Cox to hold their Christmas party in an empty classroom at the Old Piketon High School. Smith then went to the 2J Supply Building, located about three miles from the Old Piketon High School.
{¶4} At approximately 10:45 a.m., Smith received a telephone call from Lorna Music, the school guidance counselor. Music told Smith that an accident had occurred in the auditorium of the Old Piketon High School, a student was unconscious, and a school official had called for emergency medical assistance. Smith immediately returned to the Old Piketon High School.
{¶5} When Smith arrived, he discovered that Kellough and Cox had held their Christmas party in the combination auditorium and gymnasium, not an empty classroom. The auditorium/gymnasium at the Old Piketon High School consists of three sections. In the first section, rows of seats face a stage that is approximately four feet above the auditorium floor. The stage section is bracketed by curtains, which were partially drawn
{¶6} When Smith entered the auditorium, he found the unconscious student, Student 1, lying on the floor of the auditorium next to the stage.1 Wendy Harper, a registered nurse and allied health careers instructor at the Career Technology Center, was attending to Student 1. Harper had responded to the auditorium after another teacher had come into her classroom seeking medical help for Student 1. Upon arriving at the auditorium, Harper had asked Kellough what had happened, and Kellough had responded that, “[t]he kid fell off the stage.” (Tr. 130.) Harper then asked what Student 1 had been doing when he fell, and Kellough said, “I‘m not sure. He just fell.” (Tr. 130.)
{¶7} Harper assessed Student 1 and determined that he had sustained a serious head injury. Although Student 1 would periodically rouse from unconsciousness for seconds, he could not regain sustained consciousness. Paramedics rushed Student 1 to the local hospital and later transported him to Grant Medical Center in Columbus, Ohio, for further treatment.
{¶8} Smith, meanwhile, quizzed Kellough about what had happened. Kellough told Smith that he had not seen Student 1‘s accident, but he understood from the other students that Student 1 had fallen from the stage. Smith instructed Kellough and Cox to question the students about what had occurred and report back to him.
{¶9} At approximately 1:00 p.m., Smith received a telephone call from Kellough. According to Kellough, the students had admitted that Student 1 and Student 2 had been
{¶10} Smith reported the incident to Stephen E. Martin, the superintendent of the Career Technology Center,2 who told Smith to speak with everyone involved to determine exactly what happened. Upon the students’ return from winter break, Smith interviewed the students who had attended the Christmas party. Given his head injury, Student 1 did not have much memory of the events of December 20, and he could not recall boxing or falling from the stage. Most of the other students were similarly unhelpful to Smith because they were either playing basketball in the gymnasium or the video game “Guitar Hero” on a large screen set up in the seating section of the auditorium. With their attention focused elsewhere, the majority of the students claimed that they did not see Student 1 get injured. Three students, however, gave Smith more information about the boxing match and Student 1‘s fall.
{¶11} Student 4 told Smith that he had brought his boxing gloves to school on the day of the party because he was scheduled to box after school. During the party, Student 2 approached Student 4 while Student 4 was playing “Guitar Hero.” Student 2 asked to borrow Student 4‘s boxing gloves, and Student 4 consented. Student 4 then returned to the video game. Because Student 4 was concentrating on the game, he did not see Student 1‘s fall. Student 4 also stated that Cox was watching the students playing “Guitar Hero” and did not see the boxing match.
{¶13} After Smith had completed his investigation, he received a telephone call from Mrs. Fout, the school‘s apprenticeship coordinator, who asked him to come to the fairgrounds to talk with Cox. When Smith arrived at the fairgrounds, he found Cox pacing, wringing his hands, and about to cry. Cox told Smith that everything he had heard from Cox, Kellough, and the students was a lie. Cox said that he wanted to confess the truth because his wife was urging him to do so and he was unable to sleep. According to Cox, both he and Kellough knew that Student 1 and Student 2 were boxing during the Christmas party. Cox stated that the boxing match occurred on the floor of the auditorium, not the stage. While Cox was focused on the students playing “Guitar Hero,” Kellough was part of the crowd watching the boxers. Cox heard Kellough say, “hey, Tim, check this out.” (Tr. 73.) Cox turned and saw Student 1 go limp and fall to the floor.
{¶14} Given the extent of Student 1‘s injuries, Cox and Kellough knew that they could face discipline, and they decided to concoct a more palatable story to explain what had happened. Cox and Kellough gathered the students who had been involved with the boxing match. Kellough told the students that they all needed to say that Student 1 and Student 2 had been boxing on the stage, Student 1 fell from the stage after Student 2 punched him, and neither Cox nor Kellough knew about the boxing. Afterward, Cox felt extremely guilty, particularly when he discovered that Student 1 had nearly died. He
{¶15} After meeting with Cox, Smith re-interviewed all of the students. When interviewing Student 2 for the second time, Smith told Student 2 that he could tell Smith anything and that he would not be in trouble. Smith then said, “I already know the truth. You just need to tell it to me now.” (Tr. 80.) Student 2 responded that he was glad that someone had finally admitted the truth. Student 2‘s subsequent explanation of the events leading up to Student 1‘s injuries corroborated Cox‘s confession. Importantly, Student 2 confirmed that Kellough was among the crowd of 15 to 20 people who watched the boxing match. He also substantiated Cox‘s explanation of the attempted cover up, stating that Cox and Kellough had told the students to say that he and Student 1 boxed on the stage and that the boxing match occurred without the teachers’ knowledge.
{¶16} Having received corroboration of Cox‘s story, Smith confronted Kellough. When Smith asked Kellough to tell him what really happened, Kellough responded that everything he had previously told Smith was accurate.
{¶17} On January 18, 2008, Smith prepared a report of his findings and submitted the report to Martin. Martin then held a meeting with Smith, Cox, and Kellough. At the meeting, Kellough again denied Cox‘s version of events and reiterated that his recounting of the incident was truthful. Martin suspended both teachers for three days, and he told them that he would be taking the matter before the board of the joint vocational school district. Both Cox and Kellough resigned their positions before that board took any further disciplinary action against them.
{¶19} The Board sent Kellough the October 6, 2008 notice of intent by certified mail. A notation at the conclusion of the notice of intent states, “cc: * * * James R. Kingsley, Attorney for Respondent.” In accordance with this notation, Beall mailed a copy of the notice of intent to Kingsley by regular mail.
{¶20} Pursuant to
{¶22} Before the hearing commenced, Kellough filed a motion for leave to request a hearing. Kellough recognized that he had waived his right to present evidence, cross-examine witnesses, and make opening and closing statements when he failed to timely request a hearing. Goldman v. State Med. Bd. of Ohio (Oct. 20, 1998), 10th Dist. No. 98AP-238 (“Goldman II“). Kellough argued, however, that Goldman II did not preclude the hearing examiner from exercising his discretion to accept a late-filed request for a hearing and to allow Kellough to fully participate in that hearing. Moreover, Kellough asserted that his attorney had never received a copy of the October 6, 2008 notice of intent, so good cause existed to allow Kellough to belatedly file a request for a hearing.
{¶23} On March 20, 2009, the hearing examiner held a hearing on Kellough‘s motion for leave to request a hearing. Through his attorney, Kellough admitted that he received the notice of intent. Kellough claimed that he did not request a hearing because he assumed that his attorney had received the same notice, and he relied on his attorney to file the request for him. Kellough‘s attorney asserted that he did not know to request a hearing because he did not receive a copy of the notice of intent. In response, the Board contended that it had sent a copy of the notice of intent to Kellough‘s attorney through regular mail.
{¶25} At the April 22, 2009 hearing, Martin, Smith, Harper, and Beall testified as to the facts recounted above. Additionally, the Board introduced into evidence a copy of Smith‘s January 18, 2008 report.
{¶26} The hearing examiner issued his report and recommendation on July 17, 2009. The hearing examiner acknowledged that Cox and Kellough gave contradictory explanations of how Student 1 was injured. Even assuming that Kellough‘s explanation was true, the hearing examiner concluded that Kellough had failed to adequately supervise the students at the Christmas party. Due to the size and configuration of the auditorium/gymnasium, Kellough and Cox could not sufficiently manage and ensure the safety of the approximately 40 students who were engaging in multiple physical activities in every section of the large space. The fact that two students could hold a boxing match—whether or not the teachers knew about it—established that Kellough and Cox were not adequately supervising their students. The hearing examiner determined that this inadequate supervision amounted to conduct unbecoming to Kellough‘s position, which is a ground for discipline under
{¶28} On October 13, 2009, the Board resolved to adopt the hearing examiner‘s report and recommendation. The Board revoked Kellough‘s teaching license and barred him from applying for any teaching license issued by the Board. Kellough appealed the Board‘s order to the trial court. After considering Kellough‘s arguments, the trial court affirmed the Board‘s order. Kellough now appeals to this court, and he assigns the following errors:4 [1.] Did the Court of Common Pleas abuse its discretion when it found that the notice-of-hearing was received by counsel? [2.] Did the Court of Common Pleas abuse its discretion when it found that the Board lacked jurisdiction to permit Mr. Kellough to participate? [3.] Did the Court of Common Pleas abuse its discretion when it found that the Board‘s decision to permanently revoke Mr. Kellough‘s teaching license was supported by reliable, substantial, and probative evidence on the record as a whole? [4.] Did the Court of Common Pleas abuse its discretion when it affirmed the Board‘s decision not to bifurcate the issue of appropriate punishment? [5.] Did the Court of Common Pleas abuse its discretion when it failed to review the appropriateness of the punishment? {¶29} Pursuant to {¶30} In reviewing the record for reliable, probative, and substantial evidence, the trial court ” ‘must appraise all the evidence as to the credibility of the witnesses, the probative character of the evidence, and the weight thereof.’ ” AmCare, Inc. v. Ohio Dept. of Job & Family Servs., 161 Ohio App.3d 350, 2005-Ohio-2714, ¶9 (quoting Lies v. Ohio Veterinary Med. Bd. (1981), 2 Ohio App.3d 204, 207). In doing so, the trial court must give due deference to the administrative resolution of evidentiary conflicts because the agency, as the fact finder, is in the best position to observe the manner and demeanor of the witnesses. Univ. of Cincinnati v. Conrad (1980), 63 Ohio St.2d 108, 111. {¶31} Unlike a trial court, an appellate court may not review the evidence. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621, 1993-Ohio-122. An appellate court is limited to determining whether the trial court abused its discretion. Id. Absent such an {¶32} By his first assignment of error, Kellough argues that the trial court abused its discretion when it found that reliable, probative, and substantial evidence proved that Kingsley, Kellough‘s attorney, received the October 6, 2008 notice of intent. This argument misconstrues the trial court‘s holding. The trial court, in fact, found that the record contained reliable, probative, and substantial evidence that the Board “complied with {¶33} In relevant part, [I]n all cases in which {¶34} In arguing to the contrary, Kellough asserts that by mandating that a notice of intent be “mailed to attorneys,” the General Assembly intended that agencies assure {¶35} In the case at bar, the plain language of {¶36} Moreover, we do not accept Kellough‘s contention that due process commands that his attorney receive a copy of the notice of intent before the Board may take action against his teaching license. Both the Fourteenth Amendment of the United Therefore, Kingsley‘s failure to receive the notice did not deny Kellough his due process rights or preclude the Board from disciplining Kellough. Cf. Leonard v. Delphia Consulting, LLC, 10th Dist. No. 06AP-874, 2007-Ohio-1846, ¶19 (holding that mailing a notice of a final judgment to a party‘s attorney and recording the mailing on the docket satisfies due process, even if the attorney does not receive the notice). {¶37} Here, Kellough does not dispute that the Board mailed his attorney a copy of the notice of intent.8 Investigator Beall testified that he sent Kingsley a letter that enclosed a copy of the notice of intent. Accordingly, we conclude that the trial court did not abuse its discretion in determining that reliable, probative, and substantial evidence established that the Board complied with {¶38} By his second assignment of error, Kellough argues that the trial court erred in concluding that the Board lacked the discretion to allow him to participate in the hearing. Pursuant to {¶39} To address this argument, we must review the legal precedent that caused the Board to decide to hold a hearing, but to preclude Kellough from any meaningful participation in that hearing. In Goldman I, the State Medical Board permanently revoked the appellant‘s license to practice cosmetic therapy by roll-call vote after the appellant failed to request a hearing. On appeal to this court, we considered whether an agency may proceed in such a summary manner when a party fails to request or appear for a hearing. To resolve this issue, we looked to The fact that [ {¶40} The question then arose: to what extent could the party participate in the hearing? In Goldman I, we concluded that because the appellant had not timely requested a hearing, he had “waived his right to appear at further hearings * * * and the board may proceed with further adjudication in his absence, so long as it more substantially complies with the procedural safeguards implicit and explicit in {¶41} Upon remand to the State Medical Board in accordance with our instruction in Goldman I, a hearing examiner held an evidentiary hearing at which a board investigator testified. Although the appellant and his attorney were present at the hearing, the hearing examiner did not allow them to present evidence, cross-examine the board investigator, or make an opening statement or closing argument. After considering the evidence introduced at the hearing, the hearing examiner recommended that the State Medical Board indefinitely suspend the appellant‘s license to practice cosmetic therapy. The State Medical Board approved and adopted the hearing examiner‘s report and recommendation. The appellant again appealed and, in relevant part, argued that the Board erred in refusing to allow him to participate in the hearing. This time, we disagreed with the appellant‘s argument, holding that: The fundamental requirement of procedural due process is notice and the opportunity to be heard. Such opportunity is subject to waiver. This is precisely what occurred here. Appellant was given notice and the opportunity to be heard. Appellant waived the right to appear at the hearing, including the right to present evidence, cross-examine and make opening and closing statements. Goldman II (emphasis sic and citations omitted). Thus, because a party waives his opportunity to be heard by not requesting a hearing, due process does not require an agency to allow that party to participate in a Goldman hearing. Id. See also Black v. Ohio State Bd. of Psychology, 160 Ohio App.3d 91, 2005-Ohio-1449, ¶9; Flowers v. Ohio State Dental Bd. (July 21, 1998), 10th Dist. No. 97APE12-1632; Davidson v. State Med. Bd. of Ohio (May 7, 1998), 10th Dist. No. 97APE08-1036. {¶42} Kellough acknowledges that an agency does not err if it disallows a party from participating in a Goldman hearing. However, he contends that agencies have the discretion to decline to hold a Goldman hearing, and instead proceed with a full hearing, giving the party all the rights of participation that he would have had if he had timely requested an {¶43} The resolution of Kellough‘s second assignment of error turns upon the Board‘s lack of statutory authority to allow Kellough to participate in the hearing. “An administrative agency has no authority beyond the authority conferred by statute and it may exercise only those powers that are expressly granted by the General Assembly.” State ex rel. Lucas Cty. Bd. of Commrs. v. Ohio Environmental Protection Agency, 88 Ohio St.3d 166, 171, 2000-Ohio-282. See also Shell v. Ohio Veterinary Med. Licensing Bd., 105 Ohio St.3d 420, 2005-Ohio-2423, ¶32 (holding that a state agency “has only those powers explicitly delegated by statute and must operate within whatever limitations {¶44} Here, because Kellough failed to request a hearing within 30 days of the mailing of the notice of intent, nothing in the Board‘s enabling statutes or {¶45} By Kellough‘s third assignment of error, he argues that the trial court abused its discretion in finding that reliable, probative, and substantial evidence supported the Board‘s decision to permanently revoke his teaching license. Kellough contends that the Board disciplined him solely on the strength of hearsay testimony, and he asserts that this testimony does not amount to reliable, probative, and substantial evidence. We disagree. {¶46} Generally, hearsay is inadmissible in Ohio courts. {¶47} The rules of evidence do not bind administrative agencies. Bd. of Edn. for Orange City School Dist. v. Cuyahoga Cty. Bd. of Revision (1996), 74 Ohio St.3d 415, 417. In hearings before the Board, as before other administrative agencies, the rules of {¶48} Pursuant to [The auditorium/gymnasium is] a big space, it‘s large. There‘s two teachers and all this space to cover. There‘s two of them. I mean, I know that there wasn‘t any way for them to cover all of it[.] (Tr. 61.) {¶50} Of this evidence, only Kellough‘s version of events was introduced into evidence through out-of-court statements. However, Kellough‘s statements do not constitute hearsay because they qualify as the admissions of a party-opponent. Under {¶51} With regard to the second reason given for Kellough‘s discipline, the hearing examiner credited Smith‘s statement that he told Kellough and Cox to hold the Christmas party in an empty classroom. The hearing examiner also accepted the testimony of both Smith and Harper, both of whom observed the aftermath of the Christmas party, that the party occurred in the auditorium/gymnasium. {¶53} With regard to the third reason given for Kellough‘s discipline, the hearing examiner considered and found credible Smith‘s testimony regarding Cox‘s and Student 2‘s revised recounting of what happened during the Christmas party. Unlike the other out-of-court statements at issue, this testimony constituted hearsay. However, as we stated above, hearsay is admissible in an administrative hearing, as long as it is not inherently unreliable. We find that the hearing examiner did not act arbitrarily in considering this hearsay evidence because the circumstances under which both statements were elicited established the statements’ reliability. First, Cox acted against his own interest in admitting to Smith that he knew about the boxing match and that he and Kellough lied in an attempt to hide their knowledge. By his obvious distress and his own admission, Cox demonstrated that he understood that he would face adverse consequences, but his conscience demanded that he confess. Moreover, when Smith confronted Student 2 after Cox‘s recantation, Student 2 corroborated Cox without any {¶54} Finally, Kellough argues that the Board erred when it did not, on its own initiative, subpoena Cox and Student 2 to obtain their testimony. This argument does not correspond with the third assignment of error. While the assignment of error challenges the quality of the evidence, this argument asserts that the Board must, as a matter of law, obtain for itself relevant testimony. As a general matter, this court rules on assignments of error, not mere arguments. Ellinger v. Ho, 10th Dist. No. 08AP-1079, 2010-Ohio-553, ¶70. See also In re Estate of Taris, 10th Dist. No. 04AP-1264, 2005-Ohio-1516, ¶5-6 (refusing to address any “contentions in the argument section of the brief that do not plainly fall under one of the listed assignments of error“). Because the argument at issue does not relate to the assignment of error, we decline to address it. {¶55} In sum, we conclude that the trial court did not abuse its discretion in finding that reliable, probative, and substantial evidence supported the Board‘s decision to permanently revoke Kellough‘s teaching license. Accordingly, we overrule Kellough‘s third assignment of error. {¶57} By Kellough‘s fifth assignment of error, he argues that the trial court erred in refusing to review the appropriateness of the sanction that the Board imposed on him. In so arguing, Kellough acknowledges that Supreme Court of Ohio precedent prohibits a reviewing court from modifying a sanction that an agency has statutory authority to impose if reliable, probative, and substantial evidence supports the agency‘s order. See Henry‘s Café, Inc. v. Bd. of Liquor Control Comm. (1959), 170 Ohio St. 233, paragraphs two and three of the syllabus. Kellough also concedes that {¶58} As a court inferior to the Supreme Court of Ohio, we are bound by and must follow the decisions of that court. State ex rel. Abrusci v. Indus. Comm., 10th Dist. No. 08AP-756, 2009-Ohio-4381, ¶5; State v. Mickens, 10th Dist. No. 08AP-743, 2009-Ohio-2554, ¶21; State v. Worrell, 10th Dist. No. 06AP-706, 2007-Ohio-2216, ¶10. Ohio appellate courts have no authority to declare unconstitutional a decision of the Supreme {¶59} For the foregoing reasons, we overrule all of Kellough‘s assignments of error, and we affirm the judgment of the Franklin County Court of Common Pleas. Judgment affirmed. BROWN and CONNOR, JJ., concur.