TUSCARAWAS COUNTY PUBLIC DEFENDER‘S OFFICE v. KRISTY GOUDY
Case No. 2020 AP 10 0023
COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
May 20, 2021
[Citе as Tuscarawas Ct.y Pub. Defender‘s Office v. Goudy, 2021-Ohio-1754.]
Hon. Craig R. Baldwin, P.J., Hon. William B. Hoffman, J., Hon. Patricia A. Delaney, J.
CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County Court of Common Pleas, Case No. 2019 AA 10 0679
JUDGMENT: REVERSED; JUDGMENT RENDERED PURSUANT TO APP.R. 12(B)
DATE OF JUDGMENT ENTRY: May 20, 2021
APPEARANCES:
For Appellant:
SCOTT H. DEHART, JONATHAN J. DOWNES, Zashin & Rich Co., L.P.A., 17 South High St., Suite 750, Columbus, OH 43215
For Appellee:
MICHAEL A. MOSES, Moses Law Offices, L.L.C., 556 E. Town Street — Suite 201, Columbus, OH 43215-4802
{¶1} Appellant Tuscarawas County Public Defender‘s office appeals the September 16, 2020 judgment entry of the Tuscarawas County Court of Common Pleas.
FACTS AND PROCEDURAL HISTORY
Tuscarawas County Public Defender‘s Office
{¶2} Appellant Tuscarawas County Public Defender‘s Office (“TCPD“) hired Appellee Kristy Goudy as a full-time secretary on or about August 19, 1996. Ms. Goudy was a classified employee.
{¶3} In 2017 and 2018, TCPD alleged that Ms. Goudy engaged in multiple acts of misconduct in violation of the Tuscarawas County personnel policy manual. The Tuscarawas County Human Resources began an investigation and placed Ms. Goudy on paid administrative leave.
{¶4} A pre-disciplinary hearing was held on July 27, 2018. The Hearing Officer issued a report determining Ms. Goudy had violated various standards of conduct. On November 7, 2018, the TCPD issued an Order of Removal, terminating Ms. Goudy‘s employment. The Order of Removal stated that Ms. Goudy engaged in insubordination, discourteous treatment of the public, dishonesty, violations of rules and other failure of good behavior when:
[Goudy] disregarded written instructiоns for answering the telephone on June 15, 2018; dishonestly represented that [a secretary] was not on the phone; slammed [the secretary‘s] office door in anger; made inappropriate comments of a sexual nature directed at [another secretary]; violated a
direct order not to discuss an ongoing investigation by talking with [another secretary about it]; and engaged in menacing behavior.
Appeal to the State Personnel Board of Review
{¶5} Ms. Goudy appealed her removal to the State Personnel Board of Review (“SPBR“). The administrative hearing was held before the Administrative Law Judge on April 2 and 3, 2019. Multiple witnesses testified аt the hearing. On May 14, 2019, the Administrative Law Judge issued his Report and Recommendation. The Report sustained three charges of misconduct based on Ms. Goudy slamming the office door; disregarding the policy for answering the telephone; and discourteous or disrespectful treatment of a coworker. The ALJ did not find that Ms. Goudy engaged in menacing, dishonesty, or insubordination.
{¶6} Based on the ALJ‘s interpretation of TCPD‘s Personnel Manual, the ALJ found Ms. Goudy committed three Group 1 offenses. The Personnel Manual adopted a system of progressive discipline that considered the nature of the violation, the emрloyee‘s record of discipline/corrective action, and the employee‘s record of performance and conduct. Based on the Group 1 offenses, the progressive disciplinary system, and the failure of the TCPD to conduct a performance evaluation of Ms. Goudy during her 22 years of employment, the ALJ recommended that Ms. Goudy‘s removal be modified to a ten-day suspension. The ten-day suspension represented the maximum three-day suspension for each offense plus an extra day of suspension for committing multiple offenses in a short period of time.
{¶7} Ms. Gоudy and TCPD filed written objections to the Report and Recommendation to the SPBR pursuant to
{¶8} On September 18, 2019, the SPBR overruled the parties’ objections and adopted the Report and Recommendation that Ms. Goudy‘s removal be modified to a ten-day suspension pursuant to
Appeal to the Court of Common Pleas
{¶9} On October 2, 2019, TCPD filed a Notice of Appeal of the September 18, 2019 SPBR Order with the Tuscarawas County Court of Common Pleas. TCPD paid a deposit to the Ohio State Treasurer in thе amount of $935.50 pursuant to
{¶10} On November 13, 2019, the trial court issued a judgment entry acknowledging a Notice of Appeal of Administrative Order was filed by TCPD on October 2, 2019. The trial court ordered the SPBR, pursuant to
{¶11} On October 30, 2019, Shane G. Trace, SPBR Program Administrator, filed a notice with the Clerk of Courts stating “[e]nclosed please find the complete record of the proceedings before the State Personnel Board of Review in the appeal of Tuscarawas County Public Defender v. Kristy Goudy. This is to certify that the record consists of the enclosed proceedings, exhibits, miscellaneous documents, and transcript. Documents are presented in reversed chronological order.”
{¶12} The trial court held a pretrial conference on January 6, 2020. The pretrial order, filed on January 8, 2020, set a briefing schedule. TCPD‘s memorandum of law was due on February 6, 2020, Ms. Goudy‘s memorandum of law was due on March 9, 2020, and the reply memorandum was due on March 24, 2020.
{¶13} On January 30, 2020, Lisa Reid, assistant attorney general representing the SPBR, sent an email to the trial court stating:
We today discovered that one day of the transcript was omitted from our earlier filing.
We have contacted the court reporter and ordered the missing day, and will request that they put a rush on it. We believe that the missing piece of the transcript can reasonably be filed on or before February 14th.
Of course, this necessitates altering the briefing schedule earlier set by the Court.
Thanks for your attention and patience here. We apologize for this inconvenience tо all concerned.
{¶14} On January 31, 2020, TCPD filed a “Motion for Judgment in Favor of Appellant to Vacate the Order of the State Personnel Board of Review.” In the motion,
{¶15} TCPD argued SPBR failed to prepare and certify the complete record in compliance with
{¶16} The April 3, 2019 transcript was filed with the Clerk of Courts on February 6, 2020.
{¶17} On February 7, 2020, SPBR filed a Notice of Appеarance, Memorandum in Opposition to TCPD‘s Motion for Judgment, and Motion for Leave to File Excerpt of Administrative Record Out of Rule. SPBR stated the April 3, 2019 transcript was omitted from the certified record due to a unspecified clerical error. Ms. Goudy also filed a Memorandum in Opposition, Motion for Leave to Join Additional Party, and Motion for Leave to File Additional Portion of Record. SPBR and Ms. Goudy argued the SPBR substantially complied with
{¶18} TCPD filed replies to the motions for joinder, arguing the SPBR was not a proper party to the administrative appeal. Ms. Goudy filed a response and included the affidavit of Shane Trace, the SPBR Program Administrator. Trace averred that in his capacity as Program Administrator, he prepares, files, and certifies the administrative record developed by the SPBR to the Courts of Common Pleas. He stated that due to a “clerical error” by his office, “a third day of transcript before the SPBR was inadvertently omitted from the October 30, 2019 filing.”
{¶19} The trial court held an oral hearing on the motions on Mаrch 9, 2020.
{¶20} The trial court issued its judgment entry on April 27, 2020. It first denied the motion of the SPBR and Ms. Goudy to join the SPBR as a party to the administrative appeal. It next analyzed whether the failure to file the April 3, 2019 transcript violated
{¶21} The court set a new briefing schedule, which was to be completed by July 3, 2020. The trial court held an oral hearing on the merits of the administrative appeal on August 24, 2020.
{¶22} On September 16, 2020, the trial court issued its judgment entry affirming the Order of the SPBR that modified Ms. Goudy‘s removal to a ten-day suspension.
{¶23} It is from this judgment entry that TCPD now appeals.
ASSIGNMENTS OF ERROR
{¶24} TCPD raises three Assignments of Error:
{¶25} “I. THE COMMON PLEAS COURT ERRED IN FINDING THAT THE TUSCARAWAS COUNTY PUBLIC DEFENDER WAS NOT ENTITLED TO JUDGMENT UNDER
{¶26} “II. THE COMMON PLEAS COURT ERRED IN AFFIRMING THE ORDER OF SPBR, TO THE EXTENT IT DETERMINED THAT KRISTY GOUDY WAS NOT
{¶27} “III. THE COMMON PLEAS COURT ERRED IN AFFIRMING THE ORDER OF THE SPBR, TO THE EXTENT THAT SPBR RELIED IMPROPERLY ON AN EXTRA-STATUTORY REQUIREMENT TO CONDUCT PERFORMANCE EVALUATIONS.”
ANALYSIS
I.
{¶28} In its first Assignment of Error, TCPD argues the trial court erred when it did not find that the SPBR failed to timely certify a complete record of the administrative proceedings to the trial court. We agree.
Administrative Proceedings
{¶29}
{¶30} Within ten days of the date on which the order is servеd, the employee:
The Boundaries of R.C. 119.12
{¶31} An appeal from the SPBR is governed by
Within thirty days after receipt of a notice of appeal from an order in any case in which a hearing is required by
sections 119.01 to119.13 of the Revised Code , the agency shall prepare and certify to the court a complete record of the proceedings in the case. Failure of the agency to comply within the time allowed, upon motion, shall cause the court to enter a finding in favor of the party adversely affected. Additional time, however, may be granted by the court, not to exceеd thirty days, when it is shown that the agency has made substantial effort to comply. The record shall be prepared and transcribed, and the expense of it shall be taxed as a part of the costs on the appeal. The appellant shall provide security for costs satisfactory to the court of common pleas. Upon demand by any interested party, the agency shall furnish at the cost of the party requesting it a copy of the stenographic report of testimony offered and evidence submitted at any hearing and a copy of the complete record.
{¶32} The Ohio Supreme Court first examined
{¶33} The Ohio Supreme Court next examined
{¶34} On appeal to the Supreme Court, the appellant argued that under
{¶35} Considering the facts of the case under its interpretation of
{¶36} The Ohio Supreme Court further refined the boundaries of
{¶37} The Arlow Court affirmed the holding in Matash that an administrative agency‘s failure to certify to the common pleas court the complete record of the appealed administrative proceedings within the time limit of
A mechanistic interpretation of
R.C. 119.12 where appellees have not shown prejudice and where a record has been submitted, albeit unintentionally with erroneous or omitted case numbers, may constitute the farthest boundary of the exception we set forth in Lorms, supra. Such an exception does not vitiate the basic premise ofR.C. 119.12 where no action has been taken to certify an administrative record.
Id. at 156.
{¶38} The Court found the records in Arlow were timely submitted to the trial court and the trial record did not show, nor did the parties аllege, that the unintentionally erroneous or omitted case numbers prejudiced the appellants. Id. The Arlow Court held that “under
{¶39} After Arlow, the courts of appeals applying
A Complete Record? The Failure to File the April 3, 2019 Transcript
{¶40} TCPD argues that because the SPBR failed to file the complete record pursuant to
{¶41} The Tenth District Court of Appeals remarked there were at least three situations in which an appellant is entitled to judgment pursuant to
Absent a showing of prejudice, an appellant is not entitled to judgment pursuant to paragraph nine when:
(1) there is a mere omission from a record that is timely certified, Lorms v. State (1976), 48 Ohio St.2d 153; Gahm v. Ohio State Bd. of Cosmetology (Dec. 10, 1992), Scioto App. No. 92CA2074, unreported; Bergdahl v. Ohio State Board of Psychology (1990), 70 Ohio App.3d 488, 491-493; Whitaker v. Department of Commerce (May 18, 1987), Montgomery App. No. СА-10005, unreported;
(2) the record is timely certified but under an unintentionally erroneous or оmitted case number, Arlow v. Ohio Rehab. Serv. Comm. (1986), 24 Ohio St.3d 153; or
(3) the record is timely certified under the case number of a separately filed appeal from the same agency adjudication, State ex rel. Williams Ford Sales, Inc. v. Connor (Jan. 25, 1996), Franklin App. No. 93APD11-1539, unreported (Memorandum Decision); In re Calcutta Health Care Center (Feb. 13, 1990), Franklin App. No. 89AP-599, unreported (1990 Opinions 520, 523-525).
{¶42} There is no dispute in this case that the SPBR did not file the complete record of the SPBR proceedings within 30 days of the notice of appeal. The filing on October 30, 2019 can only be characterized as an incomplete record because the SPBR omitted the transcript of the April 3, 2019 hearing, the second day of a two-day hearing where TCPD finished its case-in-chief and Ms. Goudy presented her case-in-chief. Pursuant to
{¶43} The record shows that not only did the SPBR fail to file the April 3, 2019 transcript within the 30-day time period, it failed to have the April 3, 2019 hearing transcribed within the time period. The email from the SPBR stated, “We have contacted the court reporter and ordered the missing day, and will request that they put a rush on it.”2
{¶44} The SPBR‘s failure to comply with
{¶45} We find the SPBR‘s failure to prepare and file a complete record falls within the boundary established by Matash, therefore TCPD is entitled to judgment without a showing of prejudice. The failure to prepare and certify the complete record by transcribing the April 3, 2019 proceedings, the second day of testimony from a two-day hearing, goes beyond a mere omission or clerical error as found in Lorms or Arlow. No action to prеpare and certify the complete record was taken by the SPBR until alerted by TCPD. The action taken by the SPBR in submitting the overdue transcript to the trial court did not comply with
{¶46} We are cognizant, however, of the holding in Arlow and the Supreme Court‘s concern for substance over form to assist parties in obtaining justice through the due process of law. Arlow, supra at 155. We therefore consider whether TCPD was prejudiced by the failure to file the transcript of the April 3, 2019 hearing within the 30-day period.
{¶47} The trial court found the late filing of the transcript resulted only in a modification of the briefing schedule; therefore, TCPD was not prejudiced by the filing of
{¶48} At the March 9, 2020 oral hearing on TCPD‘s motion for judgment, the parties stated that after the SPBR ordered that Ms. Goudy receive a 10-day suspension, TCPD did not reinstate Ms. Goudy‘s employment. (T. 30). There was no motion asking the trial court to stay the Order of the SPBR. (T. 31). Ms. Goudy was searching for other employment because she had to a duty to mitigate her damages. (T. 32). If the trial court affirmed the Order and this Court likewise affirmed, TCPD could be liable for Ms. Goudy‘s back pay from the date of the Order. The SPBR‘s failure to timely prepare and file the April 3, 2019 transcript prejudiced both parties. The five months delay from briefing to judgment arguably increased TCPD‘s exposure for back pay and postponed the enforcement of the Order reinstating Ms. Goudy‘s employment.
{¶49} The SPBR failed to prepare and certify to the trial court a complete record of the proceedings in the case within 30 days. The failure of the SPBR to prepare and
{¶50} Our decision today reverses the judgment of the trial court, which affirmed the Order of the SPBR rescinding Ms. Goudy‘s removal and ordering a 10-day suspension. Our judgment today reinstates Ms. Goudy‘s removal from her employment with TCPD. As stated above, we recognize procedural decisions have real-life impact and the decision in this case will negatively impact Ms. Goudy‘s employment with TCPD. This decision, however, was not lightly made. It was based on the language of
CONCLUSION
{¶51} TCPD‘s first Assignment of Error is sustained. The judgment of the Tuscarawаs County Court of Common Pleas is reversed and we render judgment in favor of Appellant Tuscarawas County Public Defender‘s Office pursuant to
{¶52} Based on our ruling on TCPD‘s first Assignment of Error, we find the remaining Assignments of Error to be moot and overrule the same.
By: Delaney, J.,
Baldwin, P.J. and
Hoffman, J., concur.