[Cite as Biggert v. Highland Cty. Bd. of Dev. Disabilities,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HIGHLAND COUNTY

CHARLES BIGGERT, JR., : : Appellant-Appellant, : Case No. 12CA19 : vs. : : HIGHLAND COUNTY BOARD : DECISION AND JUDGMENT OF DEVELOPMENTAL : ENTRY DISABILITIES, : : Appellee-Appellee. : Released: 05/15/13 _____________________________________________________________ APPEARANCES:

Gary A. Reeve, Law Offices of Gary A. Reeve, LLC, Columbus, Ohio, for Appellant.

Mark Landes and Aaron M. Glasgow, Isaac, Brant, Ledman & Teetor, LLP, Columbus, Ohio, for Appellee. _____________________________________________________________

McFarland, P.J.

{¶1} Charles Biggert appeals the decision of the Highland County

Court of Common Pleas which affirmed Appellant’s termination from his

contract position as superintendent of Highland County Board of

Developmental Disabilities, Appellee herein. On appeal, Appellant contends

that the trial court committed error by 1) finding that Appellee gave proper

due process to Appellant for all charges, pursuant to R.C. 5126.23; and 2) by Highland App. No. 12CA19 2

finding that Appellee terminated Appellant’s contract for good cause,

pursuant to R.C. 5126.23.

{¶2} In light of our determination that Appellant was afforded due

process with respect to the notice of charges against him, and that the trial

court did not err or abuse its discretion in denying Appellant’s request for an

additional, evidentiary hearing, we find no merit to the arguments raised

under Appellant’s first assignment of error and it is therefore overruled.

Further, because we find the trial court’s decision affirming Appellant’s

termination for cause was supported by a preponderance of reliable,

probative and substantial evidence in the record, we cannot conclude that the

trial court abused its discretion in reaching its decision. Appellant’s second

assignment of error is also overruled.

{¶3} Accordingly, having found no merit to the arguments raised by

Appellant, the decision of the trial court is affirmed.

FACTS

{¶4} Appellant became employed as superintendent of Appellee,

Highland County Board of Developmental Disabilities, on December 16,

2008. Appellant’s employment contract was for the period of January 1,

2009, through December 31, 2011. During the summer of 2011, problems

began to occur related to Appellant’s management style, as well as his Highland App. No. 12CA19 3

dealings with outside offices, including the county commissioners’ office

and the county prosecutors’ office. Other problems occurred, including

Appellant’s attempt to have several board members removed for various

different reasons. These issues lead the board to make a decision not to

renew Appellant’s contract, which was accomplished by formal vote on June

28, 2011.

{¶5} On August 23, 2011, the board reassigned Appellant to work on

a specific project from home for the duration of his contract. Subsequently,

on September 29, 2011, the board provided Appellant with a notice of

termination and notice of charges, and informed him that a pre-disciplinary

conference would be held on October 3, 2011. The notice of charges was

five pages in length and contained twelve bullet pointed items, which

included more detailed information and allegations under each bullet point.

{¶6} Although Appellant was provided with notice of the conference,

he failed to attend. The record indicates Appellant had a scheduling conflict

and requested that the conference be held on a different date, which request

was denied by the board. During the pre-disciplinary conference on October

3, 2011, the board voted to terminate Appellant’s contract. As a result, Highland App. No. 12CA19 4

Appellant filed a request for a hearing before a referee pursuant to R.C.

5126.23(D).1

{¶7} On December 8 and 9, 2011, a hearing was held before a referee.

After hearing two days of testimony, which included ten witnesses on behalf

of the board, Appellant and one other witness on Appellant’s behalf, the

referee issued a report and recommendation that Appellant’s contract be

terminated December 16, 2011. On January 12, 2012, the board voted to

accept the referee’s report and recommendation and terminated Appellant’s

contract. Appellant subsequently filed a notice of appeal in the Highland

County Court of Common Pleas on February 10, 2012.

{¶8} In addition to appealing the board’s decision to adopt the report

and recommendation of the referee that he be terminated, Appellant filed

claims alleging breach of contract related to his termination and the failure

to pay him his unused leave. Appellant also requested that an additional

evidentiary hearing be held by the trial court, which request was denied on

June 13, 2012. After reviewing the administrative hearing transcripts and

exhibits, the trial court issued findings of fact and conclusions of law in a

written decision dated August 20, 2012, ultimately determining that

Appellee board’s adoption of the referee’s recommendation and report and

1 R.C. 5126.23 governs the disciplinary procedure for employees of county boards of developmental disabilities. Highland App. No. 12CA19 5

termination of Appellant was done in compliance with R.C. 5126.23 and

was for good cause. In arriving at its decision, the trial court further found

that the evidence supported a finding that Appellant was insubordinate,

which it pointed out is also grounds for termination. As such, the trial court

denied all of Appellant’s claims related to the termination of his contract,

leaving only one issue to be determined, which was Appellant’s claim

regarding his unused leave.

{¶9} Once the trial court received notification that the parties had

settled the issue of Appellant’s unused leave, the trial court issued a final

judgment entry on September 13, 2012, incorporating by reference its earlier

June 13, 2012, and August 20, 2012, decisions. It is from this final

judgment entry that Appellant now brings his current appeal, assigning the

following errors for our review.

ASSIGNMENTS OF ERROR

“I. THE COMMON PLEAS COURT COMMITTED ERROR BY FINDING THAT THE BOARD GAVE THE PROPER DUE PROCESS TO BIGGERT FOR ALL CHARGES, PURSUANT TO R.C. 5126.23.

II. THE COMMON PLEAS COURT COMMITTED ERROR BY FINDING THAT THE BOARD TERMINATED BIGGERT’S CONTRACT FOR GOOD CAUSE, PURSUANT TO R.C. 5126.23.” Highland App. No. 12CA19 6

STANDARD OF REVIEW

{¶10} The appeal of Appellee board's decision is governed by R.C.

5126.23(G). Benincasa v. Stark County Board of MRDD, 5th Dist. No.

2003CA00350,

. In an appeal to the court of common

pleas, the court must affirm the decision if it determines that the board’s

decision is supported by a preponderance of reliable, probative and

substantial evidence. The common pleas court may consider the entire

record, including the credibility of the witnesses and the weight and

probative character of the evidence. Univ. of Cincinnati v. Conrad,

,

(1980). The common pleas court may not,

however, substitute its judgment for that of the agency. Instead, if a

preponderance of reliable, probative and substantial evidence exists, the

court must affirm the agency's decision. Dudukovich v. Lorain Metro.

Housing Auth.,

,

(1979).

{¶11} Conversely, in an appeal to the court of appeals, the court is not

permitted to re-weigh the evidence.

. Instead, our review

is limited to a question of whether the trial court abused its discretion in

finding a preponderance of reliable, probative and substantial evidence

exists to support the decision of the board.

. In order to

find an abuse of discretion, we must determine that the trial court's decision Highland App. No. 12CA19 7

was unreasonable, arbitrary or unconscionable and not merely an error of

law or judgment. Blakemore v. Blakemore,

,

(1983). Absent an abuse of discretion, we must affirm the

judgment of the trial court.

; citing Doll v. Stark County

Board of MRDD, 5th Dist. No.2001CA00255,

; citing Unit.

Hosp., Univ. of Cincinnati College of Medicine v. State Emp. Relations Bd.,

,

(1992).

ASSIGNMENT OF ERROR I

{¶12} In his first assignment of error, Appellant contends that the trial

court erred by finding that Appellee board afforded him proper due process

for all charges, pursuant to R.C. 5126.23. Specifically, Appellant argues that

several of the charges, charges seven through twelve in particular, were

vague, lacking in evidence, and did not constitute notice under the law.

Appellant further argues that the trial court “failed to cure the due process

issue” by denying his request for an additional evidentiary hearing.

{¶13} R.C. 5126.23 governs the disciplinary procedure, required

notice, referee determination and appellate procedure related to employees

of county boards of developmental disabilities. R.C. 5126.23 provides in

section (C) as follows: Highland App. No. 12CA19 8

“Prior to the removal, suspension, or demotion of an employee

pursuant to this section, the employee shall be notified in

writing of the charges against the employee. Except as

otherwise provided in division (H) of this section, not later than

thirty days after receiving such notification, a predisciplinary

conference shall be held to provide the employee an

opportunity to refute the charges against the employee. At least

seventy-two hours prior to the conference, the employee shall

be given a copy of the charges against the employee.

* * * If the removal, suspension, or demotion action is directed

against a superintendent, the conference shall be held by the

members of the board or their designees, and the board shall

notify the superintendent within fifteen days after the

conference of its decision with respect to the charges.”

(Emphasis added).

R.C. 5126.23 further provides in section (D) as follows:

“Within fifteen days after receiving notification of the results of

the predisciplinary conference, an employee may file with the

board a written demand for a hearing before the board or before

a referee, and the board shall set a time for the hearing which Highland App. No. 12CA19 9

shall be within thirty days from the date of receipt of the written

demand, and the board shall give the employee at least twenty

days notice in writing of the time and place of the hearing.”

Additionally, R.C. 5126.23 provides in section (G) that on appeal to a

common pleas court, the court “shall examine the transcript and record of

the hearing and shall hold such additional hearings as it considers advisable,

at which it may consider other evidence in addition to the transcript and

record.”

{¶14} Here, a review of the record reveals that Appellant was

provided with a notice of charges on September 29, 2011, and was informed

at that time that a pre-disciplinary conference would be held on October 3,

2011. Although Appellant was provided notice of the conference, he did not

attend. Appellee Board voted to terminate Appellant during the conference

and, as a result, a notice of termination was provided to Appellant on

October 5, 2011. Appellant thereafter demanded a hearing before a referee,

which hearing was held on December 8 and 9, 2011. The referee issued a

report and recommendation on December 16, 2011, finding Appellant’s

termination was supported by a preponderance of evidence establishing good

cause for termination under R.C. 5126.23(B). Thus, our review of the record Highland App. No. 12CA19 10

indicates that the proper procedure was followed and Appellant was afforded

the notices and hearings required under R.C. 5126.23.

{¶15} However, Appellant argues that the content of the notice of

charges was lacking and that he was denied due process as a result. As

indicated above, the notice of charges was five pages in length and contained

twelve bullet points. Generally, the notice charged Appellant with: 1) being

dishonest in relation to a public statement he made during a June 28, 2011,

board meeting wherein he represented he had emailed and received direction

from county prosecutor Anneka Collins on a particular issue, when in fact he

had not (this bullet point contained additional details, including that the

email in question related to Sam Snyder’s eligibility to serve on the board);

2) routinely treating employees in a discourteous and aggressive manner

based upon bullying and intimidation (this bullet point mentioned two

employees and situations, in particular: Appellant’s aggressive, threatening,

bullying and intimidating behavior towards employee Kim Gilbert with

respect to an issue regarding the placement of a client, and Appellant’s

unprofessional and retaliatory behavior towards employee Sherry Morrison

regarding her use of sick leave); 3) routinely treating board members in a

discourteous and aggressive manner based upon bullying and intimidation

(this bullet point specifically detailed Appellant’s efforts to either prevent or Highland App. No. 12CA19 11

remove certain individuals as board members, including board president

Linda Allen, former board member Gary Boatman, as well as the then

current members Karen Adams and Sam Snyder;2 4) routinely treating

county officials in a discourteous and aggressive manner based upon

bullying and intimidation (this bullet point detailed Appellant’s

unprofessional and inappropriate dealings with Anneka Collins, the county

prosecutor, Tom Horst, a county commissioner, and the commissioners

office in general, which included “threatening public disclosure of

embarrassing information” and ultimately resulted in the county prosecutor’s

and county commissioners’ refusal to communicate with Appellant directly);

5) routinely treating the public and community in a discourteous and

aggressive manner based upon bullying and intimidation (this bullet point

detailed Appellant’s unprofessional and inappropriate dealings with Doug

Wagoner, the board’s insurance agent, Robert Morrison, the husband of

employee Sherry Morrison, and employees of the State of Ohio

Rehabilitation Services, which jeopardized the board’s receipt of a grant); 6)

lacking integrity in his management style, resulting in unfair treatment of the

staff, fear and lack of trust amongst the staff, which had an adverse affect of

the health of the organization; 7) lacking character in his management style,

2 These efforts included contacting board members’ employers and making threats, as well as challenging their residency and eligibility to serve on the board. Highland App. No. 12CA19 12

resulting in inefficiency of the organization; 8) threatening retaliation against

staff for voicing complaints; 9) regular use of profanity; 10) violation of the

county board’s staff attendance policy by reporting he was attending an out-

of-office in-service during work hours; 11) violating the county board’s

rules by failing to notify his administrative assistant of his location during

work hours; and 12) violating board and county policy that prohibits

personal use of his county owned email address.3

{¶16} The referee’s report found that Appellant engaged in bullying

and intimidation with respect to employees, county offices and board

members. It further found that Appellant tried to either keep certain people

from serving as board members or have certain board members removed,

believing they had some sort of personal vendetta against him. The report

further indicated that Appellant had engaged in dishonesty in his dealings

with the county prosecutor, his submission for mileage reimbursement, and

his work attendance. The report also found credible the allegation that

Appellant lacked integrity in his management style.

{¶17} On appeal to this Court, Appellant particularly takes issue with

the information contained in the notice of charges six through twelve. Upon

3 Charges six through twelve alleged that Appellant’s actions detailed therein also violated the County Board’s Code of Ethics and Values, Anti-Harassment Policy and Work Rules. The record also indicates that Appellant’s employment contract contained a provision entitled “Application of Board Policies” which bound Appellant to all official board policies applicable to all other employees. Highland App. No. 12CA19 13

review of the trial court’s decision, we note that the trial court specifically

found that charges seven, eight, nine and twelve were not proven. Thus, we

limit our discussion to charges six, ten and eleven, which the trial court

determined were proven. We initially note that after a review of the record,

we conclude that the notice of charges were sufficiently detailed so as to put

Appellant on notice of the allegations being made against him, and thus, we

cannot conclude that Appellant was deprived of due process with regard to

the substantive content of the notice.

{¶18} Further, Appellant argues that the referee impermissibly relied

on information presented at the administrative hearing that was not

contained in the notice of charges, in reaching her decision. While charge six

generally alleged that Appellant’s management style lacked integrity in that

employees did not trust and feared Appellant and were treated unfairly, a

review of the record indicates that there is a preponderance of reliable,

probative and substantial evidence in the record to support this finding. For

instance, Kim Gilbert, an employee who was specifically mentioned under

charge two, testified that the work atmosphere was stressful, that Appellant

was intimidating and threatening, that she was fearful, and that during one

episode she thought Appellant was going to strike her. This testimony alone

supports charge six as well as a portion of charge two. Additionally, Highland App. No. 12CA19 14

although charge six simply references “staff,” Appellant knew who his staff

members were. Appellant could have attended the pre-disciplinary

conference and could have clarified if he had a question, though he chose

not to attend. Further, he had two months to prepare for the administrative

hearing during which he could have requested more specific information if

he was unclear.

{¶19} Charges ten and eleven collectively alleged that Appellant

violated county board attendance and work rules by falsely reporting that he

was attending an out-of-office in-service during work hours when he was

not, and by routinely failing to notify his administrative assistant of his

location during work hours when he was not in the office. These charges

were straightforward and self-explanatory. The trial court determined that

these charges were proven in their entirety and we agree. Thus, we cannot

conclude that the trial court abused its discretion in finding that the record

contains a preponderance of reliable, probative and substantial evidence to

support the decision of the board.

{¶20} Appellant also argues certain testimony was introduced to

support the allegations contained in charges two through five, that was not

included in the notice of charges. It is important to note that the trial court

found only the allegations as to Kim Gilbert were proven as to charge two, Highland App. No. 12CA19 15

and Kim Gilbert’s testimony supports this finding. Further, with respect to

charge three, which related to Appellant’s treatment of board members, the

testimony of board member Linda Allen and county commissioner Tom

Horst supports this finding. As to the fourth charge, which related to

Appellant’s treatment of county officials, the testimony of county

commissioner Tom Horst and county prosecutor Anneka Collins supports

this finding. Finally, with regard to the fifth charge, the trial court only

found the portion of the charge relating to Appellant sending an

inappropriate text message to employee Sherry Morrison’s husband, Robert

Morrison, to be proven. By Appellant’s own testimony, the referenced text

message was indeed sent. Thus, our review of the record indicates that the

trial court did not abuse its discretion in finding the charges proven, as

specified above, as the record contains a preponderance of reliable,

probative and substantial evidence to support the decision of the board.

{¶21} Finally, Appellant argues that the trial court erred in denying

his request for an additional evidentiary hearing. As set forth above, R.C.

5126.23(G) provides that on appeal to a court of common pleas, the court

“shall examine the transcript and record of the hearing and shall hold such

additional hearings as it considers advisable, at which it may consider other

evidence in addition to the transcript and record.” The statute fails to Highland App. No. 12CA19 16

provide specific guidance as to when it might be appropriate for a trial court

to conduct additional hearings or consider additional evidence. However,

according to the plain language of the statute, the decision whether to

consider additional evidence is at the discretion of the court.

{¶22} R.C. 5126.23(G) also provides that an appeal may be taken

from a decision of a court of common pleas “pursuant to the Rules of

Appellate Procedure and, to the extent not in conflict with those rules,

Chapter 2505 of the Revised Code.”4 Further, Chapter 2506 governs appeals

from orders of administrative officers and agencies. R.C. 2506.01

“supplements the provision of Revised Code Sections 2505.01 to 2505.45.”

Grimes v. City of Cleveland,

,

(1969). R.C. 2506.01 governs appeals from agencies of political

subdivisions and specific guidance is provided in R.C. 2506.03 as to when

additional evidence may be considered in an administrative appeal. In the

absence of clear guidance on this particular issue in R.C. 5126.23, we look

to the language of R.C. 2506.03.

The pertinent portion of R.C. 2506.03 provides as follows:

“(A) The hearing of an appeal taken in relation to a final order,

adjudication, or decision covered by division (A) of section

4 Chapter 2505 of the Revised Code governs procedure to be followed on appeal. Highland App. No. 12CA19 17

2506.01 of the Revised Code shall proceed as in the trial of a

civil action, but the court shall be confined to the transcript

filed under section 2506.02 of the Revised Code unless it

appears, on the face of that transcript or by affidavit filed by the

appellant, that one of the following applies:

(1) The transcript does not contain a report of all evidence

admitted or proffered by the appellant.

(2) The appellant was not permitted to appear and be heard in

person, or by the appellant's attorney, in opposition to the final

order, adjudication, or decision, and to do any of the following:

(a) Present the appellant's position, arguments, and contentions;

(b) Offer and examine witnesses and present evidence in

support;

(c) Cross-examine witnesses purporting to refute the appellant's

position, arguments, and contentions;

(d) Offer evidence to refute evidence and testimony offered in

opposition to the appellant's position, arguments, and

contentions;

(e) Proffer any such evidence into the record, if the admission

of it is denied by the officer or body appealed from. Highland App. No. 12CA19 18

(3) The testimony adduced was not given under oath.

(4) The appellant was unable to present evidence by reason of a

lack of the power of subpoena by the officer or body appealed

from, or the refusal, after request, of that officer or body to

afford the appellant opportunity to use the power of subpoena

when possessed by the officer or body.

(5) The officer or body failed to file with the transcript

conclusions of fact supporting the final order, adjudication, or

decision.”

As noted by Appellee in its brief, Appellant did not argue any of these

grounds applied at either the trial court level, or on appeal. Further, in light

of our determination that Appellant was afforded the due process required

under R.C. 5126.23 with respect to the notice of charges, coupled with the

fact that Appellant received a two-day hearing before a referee in which he

was represented by counsel, was permitted to cross examine witnesses, call

witnesses on his behalf and present evidence, we cannot conclude that the

trial court erred or abused its discretion in denying Appellant’s request for

an additional evidentiary hearing. Accordingly, Appellant’s first assignment

of error is overruled. Highland App. No. 12CA19 19

ASSIGNMENT OF ERROR II

{¶23} In his second assignment of error, Appellant contends that the

trial court erred by finding that Appellee terminated him for good cause,

pursuant to R.C. 5126.23. As set forth above, R.C. 5126.23 governs the

disciplinary procedure, required notice, referee determination and appellate

procedure related to employees of county boards of developmental

disabilities. R.C. 5126.23 provides in section (B) as follows:

“An employee may be removed, suspended, or demoted in

accordance with this section for violation of written rules set

forth by the board or for incompetency, inefficiency,

dishonesty, drunkenness, immoral conduct, insubordination,

discourteous treatment of the public, neglect of duty, or other

acts of misfeasance, malfeasance, or nonfeasance.”

We have already considered each charge contained in the notice of charges

and determined that they sufficiently put Appellant on notice of the

allegations being made against him and thus, that Appellant was not

deprived of due process in this regard. Further, as part of that analysis, we

reviewed the trial court’s determinations as to which allegations were proven

under each charge. While some of the allegations were not proven, a

multitude of the allegations were proven. The ones that were proven, which Highland App. No. 12CA19 20

have been discussed in detail under Appellant’s first assignment of error,

more than demonstrate acts of dishonesty, as well as acts of misfeasance or

malfeasance, which under R.C. 5126.23(B), constitute grounds for removal.

{¶24} Additionally, as noted above, Appellant’s actions violated

official board policies, specifically the code of conduct and work attendance

rules, which were expressly referenced in Appellant’s employment contract.

Thus, we cannot conclude that the trial court abused its discretion by finding

that Appellee board terminated him for good cause, pursuant to R.C.

5126.23. Accordingly, Appellant’s second assignment of error is overruled.

{¶25} Having found no merit in the assignments of error raised by

Appellant, and having found that the board’s decision to terminate Appellant

was supported by a preponderance of reliable, probative and substantial

evidence, the trial court did not abuse its discretion in upholding the decision

of the board. As such, the decision of the trial court is affirmed.

JUDGMENT AFFIRMED. Highland App. No. 12CA19 21

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED and that the Appellee recover of Appellant costs herein taxed.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Highland County Common Pleas Court to carry this judgment into execution.

Any stay previously granted by this Court is hereby terminated as of the date of this entry.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.

Abele, J. & Hoover, J.: Concur in Judgment and Opinion.

For the Court,

BY: _________________________ Matthew W. McFarland Presiding Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.