[Cite as 17AP-767, 2018-Ohio-2695.]


                            IN THE COURT OF APPEALS OF OHIO

                                 TENTH APPELLATE DISTRICT

Electronic Classroom of Tomorrow,               :

                Appellant-Appellant,            :
                                                                     No. 17AP-767
v.                                              :                 (C.P.C. No. 17CV-5773)

Ohio State Board of Education, et al.,          :          (ACCELERATED CALENDAR)

                Appellees-Appellees.            :



                                         D E C I S I O N

                                      Rendered on July 10, 2018


                On brief: Zeiger, Tigges & Little, LLP, Marion H. Little, Jr.,
                John W. Zeiger, and Christopher J. Hogan, for appellant.
                Argued: Marion H. Little.

                On brief: Organ Cole, LLP, Douglas R. Cole, Erik J. Clark,
                and Carrie M. Lymanstall, for appellees. Argued:
                Douglas R. Cole.

                 APPEAL from the Franklin County Court of Common Pleas

BRUNNER, J.
        {¶ 1} Appellant-appellant, Electronic Classroom of Tomorrow ("ECOT"), appeals a
decision of the Franklin County Court of Common Pleas issued on October 6, 2017
dismissing its administrative appeal from an adverse decision of appellee-appellee, Ohio
State Board of Education ("BOE"). Because we have previously held that the decision of the
BOE in this case was an adjudication in a "quasi-judicial" proceeding and is therefore
appealable under R.C. 119.12, we reverse and remand. Electronic Classroom of Tomorrow
v. Ohio State Bd. of Edn., 10th Dist. No. 17AP-510, 2018-Ohio-716, ¶ 28.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} We have previously stated the facts underlying the conflict between ECOT
and the appellees, the BOE and the Ohio Department of Education ("ODE"), as follows:
No. 17AP-767                                                                       2


               ECOT, in operation since 2000, is an online or "e-school" in
               which students do not attend traditional, brick-and-mortar
               buildings, but instead attend classes through a computer by
               logging in to ECOT's online platform to access educational
               curriculum. Students enrolled in ECOT also have access to
               other non-computer educational opportunities, including field
               trips.

               Pursuant to R.C. 3314.01(B), ECOT is considered a
               "community school," which is "a public school, independent of
               any school district, and is part of the state's program of
               education." As a public school, a community school such as
               ECOT receives funding from the state of Ohio based on the
               number of full-time equivalent ("FTE") students enrolled in the
               community school. R.C. 3314.08(C). The community schools
               self-report the number of FTE students to ODE through the
               education management information system ("EMIS"). [The
               Ohio Department of Education (ODE)] then has the right to
               "adjust" the payment to the community school "to reflect any
               enrollment of students in community schools for less than the
               equivalent of a full school year." R.C. 3314.08(H).

               ODE performs periodic FTE reviews of community schools to
               investigate whether a funding adjustment is warranted in a
               given year. Such a review involves ODE personnel visiting the
               community school and identifying the records ODE would like
               to view in order to confirm the school's reported FTE numbers
               for the previous academic year. If, through the review, ODE
               discovers it owes additional funding to the community school,
               ODE has 30 days to provide the additional funding. However,
               if the review results in a finding that the community school
               cannot substantiate the number of FTE students for which it
               received funding, ODE can reduce the school's funding
               amount. The reduction, or "clawback," occurs on a going-
               forward basis by reducing, over an extended period of time,
               future state dollars paid to the community school. (Sept. 13,
               2016 Tr. Vol. II at 179-80.) A community school that disagrees
               with ODE's initial determination on funding has a right to an
               administrative appeal to the State Board of Education. R.C.
               3314.08(K)(2). The State Board of Education's decision on the
               appeal is the agency's final determination on the appropriate
               funding for the community school for the given academic year.
               R.C. 3314.08(K)(2)(d).

Electronic Classroom of Tomorrow v. Ohio Dept. of Edn., 10th Dist. No. 16AP-863, 2017-
Ohio-5607, ¶ 2-4.
No. 17AP-767                                                                                            3


        {¶ 3} Apparently anticipating an adverse result from a 2016 full-time equivalent
("FTE") review, ECOT sought injunctive and declaratory relief from the Franklin County
Court of Common Pleas to prohibit ODE from considering the extent to which students it
reported as enrolled were actually spending time on learning opportunities and receiving
required educational instruction at public expense through ECOT. Id. at ¶ 8-14. The
injunctive and declaratory relief case was appealed to this Court where the decision of the
trial court was affirmed. Id. in passim.             The Supreme Court of Ohio has accepted
jurisdiction of a further appeal from that ruling and the matter is currently pending before
the Supreme Court. Electronic Classroom of Tomorrow v. Ohio Dept. of Edn., Supreme
Ct. No. 2017-0913.
        {¶ 4} While the declaratory and injunctive relief case was proceeding before the
trial court, on September 26, 2016, following completion of the audit of ECOT's FTE data,
ODE issued a final determination letter advising ECOT that ODE's review had concluded
that ECOT had misreported its FTE numbers resulting in a false report that was
approximately 242.7 percent of the actual figures determined from ODE's audit of ECOT.1
(Admin. Record A, Sept 26, 2016 Final Determination at 1.) Expressed differently, ECOT's
actual FTE numbers were just 41.2 percent of what ECOT claimed they were. Id. ECOT
disputed this finding and appealed to the BOE, which designated a hearing officer to hear
the appeal. (Admin. Record B, Oct. 10, 2016 Appeal Letter; Admin. Record C, Oct. 18, 2016
Designation Letter; Admin. Record D, Oct. 26, 2016 Designation Notice.) ODE's designee
held a hearing and considered a voluminous body of evidence. (Admin. Record QQ, May
10, 2017 Hearing Officer Decision at 4-9.) In addition, before the hearing officer issued a
decision, the Franklin County Court of Common Pleas issued its decision in the injunctive
and declaratory relief case settling a number of questions of law that otherwise might have
been disputed issues in the administrative appeal before the hearing officer. Id. at App'x,
enclosing Electronic Classroom of Tomorrow v. Ohio Dept. of Edn., Franklin C.P. No.
16CV-6402 (Dec. 14, 2016). The ODE hearing officer followed the decision of the Court of
Common Pleas in writing his decision. (Admin. Record QQ, Hearing Officer Decision at


1 The final determination letter said that ECOT's actual FTE was 6,312.62 as compared to the claimed FTE of

15,321.98 reported by ECOT. (Admin. Record A, Sept 26, 2016 Final Determination at 1.) 15,321.98 is
approximately 242.7 percent of 6,312.62.
No. 17AP-767                                                                              4


10-12.) Ultimately, based on exhibits and evidence placed before the hearing officer and
the decision of the Franklin County Court of Common Pleas (since affirmed by this Court
and now under review by the Supreme Court) the hearing officer concluded that ECOT's
actual FTE numbers were 44.6 percent of its reported numbers, entitling ODE to claw back
$60,350,791 in overpayment. Id. at 133.
       {¶ 5} On May 22, 2017, ECOT raised a large number of objections to the hearing
officer's report. (Admin. Record RR, May 22, 2017 Objs.) ODE timely responded. (Admin.
Record TT, May 31, 2017 Resp. to Objs.) At a meeting on June 12, 2017, BOE adopted the
recommendations of the hearing officer's decision and authorized ODE to take necessary
measures to obtain repayment of public funds in overpayments to ECOT in the amount of
$60,350,791. (Admin. Record UU, June 15, 2017 Resolution at 1.)
       {¶ 6} Following this adverse result, ECOT took three actions. It filed suit alleging
that the BOE violated the open meetings act. (June 14, 2017 Compl., filed in Electronic
Classroom of Tomorrow v. Ohio Dept. of Edn., Franklin C.P. No. 17CV-5315.) It sought, in
the case now on review, to appeal the administrative action directly to the Franklin County
Court of Common Pleas pursuant to R.C. 119.12. (June 27, 2017 Notice of Appeal.) Finally,
it petitioned the Supreme Court for a writ of mandamus or prohibition seeking to have the
High Court order the BOE to take a different action. (June 27, 2017 Compl. for Mandamus
or Prohibition, filed in State ex rel. Electronic Classroom of Tomorrow v. State Bd. of Edn.,
Supreme Ct. No. 2017-0880.)
       {¶ 7} In the open meetings case, the Franklin County Court of Common Pleas
concluded that the BOE did not violate the open meetings act. Electronic Classroom of
Tomorrow v. Ohio State Bd. of Edn., Franklin C.P. No. 17CV-5315 (July 12, 2017). On
appeal, this Court agreed that the BOE did not violate the open meetings act because the
administrative process was "quasi-judicial." Electronic Classroom of Tomorrow, 2018-
Ohio-716, ¶ 28. ECOT has sought (but not yet been granted) a further appeal from that
decision. (Apr. 19, 2018 Memo. in Support of Jurisdiction, filed in Electronic Classroom of
Tomorrow v. State Bd. of Edn., Supreme Ct. No. 2018-0526.)
       {¶ 8} The direct appeal before the common pleas court from the BOE
administrative action was stayed while the Supreme Court considered ECOT's complaint
for a writ of mandamus or prohibition. (Aug. 31, 2017 Stay Order.) Ultimately, the
No. 17AP-767                                                                                            5


Supreme Court dismissed ECOT's petition for a writ of mandamus or prohibition without
issuing any written opinion explaining the dismissal. State ex rel. Electronic Classroom of
Tomorrow v. State Bd. of Edn., 150 Ohio St.3d 1426, 2017-Ohio-7567.2
          {¶ 9} Thereafter, the common pleas court reactivated ECOT's administrative
appeal and dismissed for lack of jurisdiction. (Oct. 6, 2017 Decision & Entry.) The trial
court reasoned that BOE and ODE had presented several arguments as reasons the
Supreme Court should dismiss (only one of which was the pendency of this case as an
adequate remedy at law) but that the Supreme Court had given no indication why it
dismissed the mandamus and prohibition action. Id. at 3-4. The common pleas court
declined to read the Supreme Court's summary dismissal as an endorsement of ECOT's
right to appeal the BOE administrative decision and turned to a strict construction of the
statutes possibly authorizing the appeal to the common pleas court. Id. The court viewed
R.C. 3314.08(K)(2)(d) as requiring that decisions made by the BOE are "final" in the sense
that they are unappealable and supported its conclusion with legal findings that in similar
circumstances, courts have found that such language is a special or specific provision that
precludes the generally applicable appeal under R.C. 119.12. (Oct. 6, 2017 Decision & Entry
at 2-5.)
          {¶ 10} ECOT has appealed the common pleas court's ruling, seeking review of its
decision dismissing its complaint.
II. ASSIGNMENT OF ERROR
          {¶ 11} ECOT presents a single assignment of error for review:
                  The Trial Court erred in dismissing the R.C. Chapter 119 Appeal
                  filed by Plaintiff/Appellant The Electronic Classroom of
                  Tomorrow ("ECOT") based on a purported lack of subject
                  matter jurisdiction.

III. DISCUSSION
      A. Standard of Review
          {¶ 12} This Court has previously set forth the standard of review in cases challenging
the jurisdiction of a trial court to hear an administrative appeal:
                  "Jurisdiction" refers to a court's "'statutory or constitutional
                  power to adjudicate the case.'" Pratts v. Hurley, 102 Ohio St.3d
                  81, 2004 Ohio 1980, ¶ 11, 806 N.E.2d 992, quoting Steel Co. v.

2   The exact portion of the case announcement concerning ECOT is available online at 2017 Ohio LEXIS 1751.
No. 17AP-767                                                                                  6


                Citizens for a Better Environment, 523 U.S. 83, 89, 118 S. Ct.
                1003, 140 L. Ed. 2d 210 (1998). Courts of common pleas only
                have "such powers of review of proceedings of administrative
                officers and agencies as may be provided by law." Ohio
                Constitution, Article IV, Section 4; see also Springfield
                Fireworks, Inc. v. Ohio Dept. of Commerce, 10th Dist. No.
                03AP-330, 2003 Ohio 6940, ¶ 17. Thus, courts of common
                pleas lack jurisdiction to review actions of administrative
                agencies unless R.C. 119.12 or some other specific statutory
                authority grants it. Total Office Prods. v. Dept. of Adm. Servs.,
                10th Dist. No. 05AP-955, 2006 Ohio 3313, ¶ 12; accord Univ. of
                Toledo v. Ohio State Empl. Relations Bd., 10th Dist. No. 11AP-
                834, 2012 Ohio 2364, ¶ 9, 971 N.E.2d 448 ("A court of common
                pleas has power to review proceedings of administrative
                agencies and officers only to the extent the law so grants.").
                Whether a court of common pleas possesses subject-matter
                jurisdiction is a question of law, which appellate courts review
                de novo. Courtyard Lounge v. Bur. of Environmental Health,
                10th Dist. No. 10AP-182, 190 Ohio App. 3d 25, 2010 Ohio 4442,
                ¶ 5, 940 N.E.2d 626.

Clifton Care Ctr. v. Ohio Dept. of Job & Family Servs., 10th Dist. No. 12AP-709, 2013-Ohio-
2742, ¶ 9.
   B. Whether the Trial Court Erred in Dismissing for Want of Jurisdiction
          {¶ 13} Ohio Revised Code, Section 119.12(B) provides in relevant part as follows:
                (B) Any party adversely affected by any order of an agency
                issued pursuant to any [] adjudication [other than those
                excepted elsewhere in this section] may appeal to the court of
                common pleas of Franklin county * * *.

"Agency" is defined in pertinent part as "the functions of any * * * board * * * of the
government of the state specifically made subject to sections 119.01 to 119.13 of the Revised
Code."      R.C. 119.01(A)(1).   Ohio Revised Code, Section 3301.13 provides that "[t]he
department of education shall consist of the state board of education, the superintendent
of public instruction, and a staff of such professional, clerical, and other employees as may
be necessary to perform the duties and to exercise the required functions of the
department" and that "the department of education, and any officer or agency therein, shall
be subject to Chapter 119. of the Revised Code." There is no serious dispute that, as a
general matter, the BOE and ODE separately and together are deemed subject to R.C.
119.12.
No. 17AP-767                                                                              7


       {¶ 14} ECOT argues that it is entitled to appeal the decision of ODE's hearing officer
in this particular case and as adopted by BOE, under R.C. 119.12, because the decision was
an "adjudication" by an agency in a "quasi-judicial" proceeding. (ECOT's Brief at 13-20.) In
our decision on the open meetings act as applied to ODE and BOE, we specifically stated
that the action of the BOE in adopting the decision of the hearing officer was an
"adjudication" and part of a "quasi-judicial" proceeding.         Electronic Classroom of
Tomorrow, 2018-Ohio-716, ¶ 20-28.
       {¶ 15} That portion of the BOE and ODE administrative appeal procedural statute
contains specific language concerning the review of a school's enrollment data. It also
requires that "[a]ny decision made by the board under this division is final."          R.C.
3314.08(K)(2)(d). This question of finality is at the heart of this appeal. The meaning and
application of what is final is a legal determination for our plenary review. Does "final"
mean the decision is the "final" decision of the agency and appealable only to a court under
R.C. 119.12, or is "final" used in the sense that no further appeal is allowed at all, either
within the agency or in a court?
       {¶ 16} There are some instances in the Ohio Revised Code in which the legislature
uses "final" while simultaneously contemplating a right to appeal. See R.C. 5709.25(G) (tax
commissioner's determination on a pollution control exempt facility certificate); R.C.
3734.05(I)(6) (EPA director's determination on a Class 2 or 3 modification to a hazardous
waste facility); R.C. 718.11(E) (local board of tax review decision on a tax administrator's
assessment). There are also many instances in which the code uses a variant of the phrase,
"final and not appealable." See R.C. 4117.06(A) (state employment relations board decision
on the unit appropriate for collective bargaining); R.C. 3734.05(I)(6) (EPA director's
determination on a Class 2 or 3 modification to a hazardous waste facility); R.C.
718.11(A)(4) (legislative authority's decision to remove a member of the local board of tax
review); R.C. 4121.35(B)(5) (industrial commission hearing officers' decision on review of
settlement agreements); R.C. 3311.0510(A) (school superintendent's order dividing assets
and liabilities of a defunct educational service center); R.C. 109.921(C)(2) (the attorney
general's decision upon an application for funding from the rape crisis program trust fund
without a hearing); R.C. 3317.161(D)(5) (department of education determination on
whether to approve a career-technical education program); R.C. 3702.524(C)
No. 17AP-767                                                                                  8


(determination by the director of health that a certificate of need has expired in cases where
the certificate holder fails to take appropriate actions); R.C. 118.04(C) (determination by
the auditor of state whether a fiscal emergency condition exists); R.C. 3316.03(E)
(determination by the auditor of state whether a fiscal emergency condition exists); R.C.
3345.72(G) (determination by the chancellor of higher education on the issue of a fiscal
watch); R.C. 3345.74(A) (determination by the chancellor of higher education on whether
to appoint a conservator); R.C. 3345.76(A) (determination by a governance authority for a
state university or college on the issue of whether sufficient fiscal stability exists to warrant
terminating that governance authority). There are also statutes within which "final" is used
to describe both appealable and non-appealable decisions.            R.C. 3734.05(I)(6) (EPA
director's determination on a Class 2 or 3 modification to a hazardous waste facility); R.C.
718.11(A)(4) and (E) (legislative authority's decision to remove a member of the local board
of tax review and local board of tax review decision on a tax administrator's assessment);
R.C. 4121.35(B)(4) and (5) (industrial commission hearing officers' decisions on
applications for reconsideration and on review of settlement agreements). What the
legislature means when it merely says, "final," in the context of determining whether there
is a right to appeal from an administrative adjudication to a court of common pleas, is
therefore somewhat ambiguous and subject to judicial determination in the absence of
legislation to clarify it. Both this Court and the Supreme Court have addressed situations
in which the legislature has merely declared an administrative action to be "final" and these
courts have reached varying results.
       {¶ 17} In Heartland Jockey Club v. Ohio State Racing Comm., when the Ohio State
Racing Commission made a determination about what was "final" in the relevant statute,
we were "asked to determine how final the word 'final' [wa]s in R.C. 3769.089(E)(3)."
Heartland Jockey Club v. Ohio State Racing Comm., 10th Dist. No. 98AP-1465, 1999 WL
566857, 1999 Ohio App. LEXIS 3530, *2 (Aug. 3, 1999). The 1999 panel in that case
reached the conclusion that the statute's unadorned use of "final" precluded an appeal
under R.C. 119.12 and that mandamus was the proper action through which the plaintiff
could seek a remedy. Heartland Jockey Club at *2-4. However, in ECOT's case, a remedy
in mandamus has been rejected without explanation by the Supreme Court.
No. 17AP-767                                                                                               9


        {¶ 18} In State ex rel. Shumway v. State Teachers Retirement Bd., this Court
determined that a trial court lacked jurisdiction to consider an appeal of a final average
salary determination by the State Teachers Retirement Board because former R.C.
3307.013(E) provided that determinations of the board "shall be final." State ex rel.
Shumway v. State Teachers Retirement Bd., 114 Ohio App.3d 280, 286 (10th Dist.1996);
see Am.Sub.S.B. No. 230, 146 Ohio Laws, Part VI, 10257, 10282-833; R.C. 3307.501(E)
(current version of former R.C. 3307.013 containing the same language). The Shumway
panel also concluded that a declaratory judgment action cannot be substituted for an appeal
in such circumstances, leaving a petition for a writ of mandamus as the proper vehicle.
Shumway at 284, fn. 1, 286.
        {¶ 19} In Carney v. School Employees Retirement Syst. Bd., we held that no appeal
lay from a determination by the School Employees Retirement Board because the statute
in question, former R.C. 3309.394, provided that determinations of the board were "final"
and a prior Supreme Court case included this language: " '[t]he determination of whether a
member of the School Employees Retirement System is entitled to disability retirement is
solely within the province of the School Employees Retirement Board pursuant to R.C.
3309.39.' " Carney v. School Emps. Retirement Syst. Bd., 39 Ohio App.3d 71, 72 (10th
Dist.1987), quoting Fair v. School Emps. Retirement Syst., 53 Ohio St.2d 118 (1978). As in
Shumway, the Carney panel stated that a declaratory judgment action cannot be
substituted for an appeal. Like both Shumway and Heartland Jockey Club, the panel
concluded that mandamus was the appropriate course through which to seek a remedy.
Carney at 72.
        {¶ 20} On the other hand, the Supreme Court has recently decided that an ODE
determination that an entity was not "education-oriented" under R.C. 3314.015(B)(3) was
appealable pursuant to R.C. 3314.015(D) and in accordance with R.C. 119.12. Brookwood
Presbyterian Church v. Ohio Dept. of Edn, 127 Ohio St.3d 469, 2010-Ohio-5710, ¶ 1, in
passim.     The High Court held a right of appeal existed despite the fact that R.C.
3314.015(B)(3) contained language stating that a "determination of the state board is final."


3 Archived online at 1995 Ohio SB 230.
4 Current R.C. 3309.39 contains such language at division (F). The version of R.C. 3309.39 in effect when
Carney was decided contained no subdivisions but still contained the phrase, "the action of the board shall be
final." See Am.Sub.H.B. No. 502, 141 Ohio Laws, Part III, 4668, 4714-15.
No. 17AP-767                                                                                   10


In Brookwood, the court viewed the "final" language as requiring that, in order to be
reviewable upon appeal, decisions must be "final." Brookwood at ¶ 11-12. The High Court
then distinguished Heartland Jockey Club, Shumway, and Carney because, unlike in each
of those cases, the relevant statute in Brookwood, simultaneously stated that a
determination was "final," and, yet, also explicitly provided for an appeal of related matters.
Brookwood at ¶ 14-15; R.C. 3314.015(D). That is, R.C. 3314.015(B)(3) provides that a
"determination of the state board is final," when rendered on the question of whether a
community school contract proposed an education-oriented mission. But a different
division of that same statute also provides that "[t]he decision of the department to
disapprove an entity for sponsorship of a community school or to revoke approval for such
sponsorship under division (C) of this section, may be appealed by the entity in accordance
with section 119.12 of the Revised Code."            R.C. 3314.015(D).     The specific grant of
appealability in the statute, said the Supreme Court, "makes all the difference." Brookwood
at ¶ 15.
           {¶ 21} In this case, there is no stated appeal right that is specific to or set forth in
R.C. 3314.08. As such, this case is not on all fours with Brookwood. Yet, neither is it on all
fours with Heartland Jockey Club, Shumway, and Carney, because each of those cases
opined that mandamus was the proper vehicle to challenge the action at issue and in two of
those cases (Shumway and Carney) this Court opined that a declaratory judgment could
not be used instead. Adding to ECOT's unique situation is that ECOT has been permitted
to pursue declaratory judgment action (albeit unsuccessfully so far on the merits) but its
mandamus action has been dismissed without explanation for why it was inapropos. In
short, none of the cases we have cited definitively settles the matter.
           {¶ 22} The ODE parties argue that it is, " '[a] well-settled principle of Ohio law []
that when two statutes, one general and one specific, cover the same subject matter, the
specific provision is to be construed as an exception to the general statute that might
otherwise apply.' " (Jan. 16, 2018 Appellees' Brief at 27, quoting State ex rel. Motor Carrier
Serv. v. Rankin, 135 Ohio St.3d 395, 2013-Ohio-1505, ¶ 26.) They, therefore, argue that the
specific provision in R.C. 3314.08(K)(2)(d) declaring a decision of the BOE to be "final"
prevails over the general grant of an appeal provided in R.C. 119.12(B). (Appellees' Brief at
No. 17AP-767                                                                            11


27-28.) However, this argument becomes hollow without the other principle of law
discussed in Rankin and codified in R.C. 1.51:
               "If a general provision conflicts with a special or local provision,
               they shall be construed, if possible, so that effect is
               given to both. If the conflict between the provisions is
               irreconcilable, the special or local provision prevails as an
               exception to the general provision, unless the general provision
               is the later adoption and the manifest intent is that the general
               provision prevail."

(Emphasis added.) Rankin at ¶ 26, quoting R.C. 1.51. In short, if possible, we must give
effect to both R.C. 3314.08(K)(2)(d)'s pronouncement that decisions of the BOE are "final"
and to R.C. 119.12(B)'s provision of an appeal to the court of common pleas from
adjudications of administrative agencies.
       {¶ 23} One way to reconcile the two statutes would be to say that R.C.
3314.08(K)(2)(d) 's pronouncement that decisions of the BOE are "final" means they are
not subject to further administrative proceedings before ODE or the BOE and must be
appealed under R.C. 119.12(B). This would give "effect" to R.C. 119.12(B) in the sense that
its grant of an appeal would operate and would reconcile both R.C. 119.12(B) and R.C.
3314.08(K)(2)(d).     In this way, both statutes would have coherent non-conflicting
meanings and effect would be given to both.
       {¶ 24} This case has a robust and multi-faceted procedural history. Because of that,
as our discussion shows, caselaw and statutes can provide legally persuasive reasoning for
allowing this appeal or for dismissing this appeal. ECOT has been permitted to litigate the
substantive merits of its case in a declaratory judgment/injunctive relief proceeding that
has been appealed to the highest court in Ohio where it currently is pending. ECOT has
also been permitted to challenge the manner in which the administrative proceeding
occurred (via its open meetings act litigation). However, ECOT has not been permitted to
directly dispute the findings of the administrative process and the Supreme Court has
dismissed ECOT's mandamus action without explanation. With the law in equipoise, we
hold that ECOT is entitled to the opportunity to dispute not just the substantive and
procedural merits of their action (which it is already doing in the declaratory/injunctive
action and the open meetings act litigation) but also to appeal the particular findings and
decisions of the administrative adjudication, especially as to the "claw back" of funds
No. 17AP-767                                                                              12


already appropriated and distributed by the State of Ohio. ECOT's sole assignment of error
is sustained.
IV. CONCLUSION
       {¶ 25} Accordingly, we reverse the judgment of the Franklin County Court of
Common Pleas and remand ECOT's R.C. 119.12 appeal to the trial court for full
consideration, utilizing a robust procedure consistent with the law stated in this decision.
                                                    Judgment reversed; cause remanded.

                                BROWN, P.J., concurs.
                             LUPER SCHUSTER, J., dissents.

LUPER SCHUSTER, J., dissenting.

       {¶ 26} I disagree with the majority and would find the decision of the ODE to be final
and not subject to an appeal filed under R.C. 119.12. Therefore, I respectfully dissent. As
the majority notes, this court has previously construed the legislature's use of the word
"final" in the context of decisions of administrative bodies to mean the decision is not
subject to an appeal under R.C. 119.12. Carney v. School Emp. Retirement Sys. Bd., 39
Ohio App.3d 71, 72 (10th Dist.1987); State ex rel. Shumway v. State Teachers Retirement
Bd., 114 Ohio App.3d 280, 286 (10th Dist.1996); Heartland Jockey Club v. Ohio State
Racing Comm., 10th Dist. No. 98AP-1465 (Aug. 3, 1999). I would find this precedent and
the Supreme Court of Ohio's decision in Brookwood Presbyterian Church v. Ohio Dept. of
Edn., 127 Ohio St.3d 469, 2010-Ohio-5710, to be controlling.
       {¶ 27} In Brookwood, the Supreme Court considered a statute that provided that
ODE's decision as to whether an entity was education-oriented was "final." The Supreme
Court noted that the same statute also expressly provided a right to appeal under R.C.
119.12. Under those circumstances, the Supreme Court concluded that the use of the word
"final" in that statute did not preclude an appeal under R.C. 119.12 where further language,
within the same statute, specifically contemplated an appeal. In so deciding, the Supreme
Court reviewed our precedent in Carney, Shumway, and Heartland Jockey Club and
concluded the statutes in those cases "lacked what is present in [the statute at issue in
Brookwood]—a specific, statutory grant of jurisdiction to the trial court to review the
decisions of the administrative body pursuant to R.C. 119.12. Here, that makes all the
difference." Brookwood at ¶ 15.
No. 17AP-767                                                                              13


       {¶ 28} Unlike the statute at issue in Brookwood, here R.C. 3314.08(K) specifies that
the decision is "final" and does not provide a specific grant of statutory jurisdiction to the
trial court to review the decision of the administrative body. Thus, I would conclude that
Brookwood directs that a statute that provides a decision of an administrative body is
"final" and that does not include a separate specific, statutory grant of jurisdiction to the
trial court precludes an appeal under R.C. 119.12. Accordingly, I would follow the Supreme
Court's precedent in Brookwood and this court's precedent in Carney, Shumway, and
Heartland Jockey Club and find the use of the word "final" in R.C. 3314.08(K) precludes
an appeal under R.C. 119.12.
       {¶ 29} For these reasons, I respectfully dissent.
