[Cite as Robinson v. Ohio Dept. of Edn., 2012-Ohio-1982.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

CRAIG ROBINSON                                 :

        Plaintiff-Appellant                              :        C.A. CASE NO.       24808

v.                                                       :        T.C. NO.       11CV1321

OHIO DEPARTMENT OF EDUCATION                             :            (Civil appeal from
                                                                      Common Pleas Court)
        Defendant-Appellee                     :

                                                         :

                                             ..........

                                           OPINION

                         Rendered on the           4th       day of        May      , 2012.

                                             ..........

JOHN R. FOLKERTH, JR., Atty. Reg. No. 0016366, 109 North Main Street, 500
Performance Place, Dayton, Ohio 45402
       Attorney for Plaintiff-Appellant

JENNIFER BONDURANT, Atty. Reg. No. 0079384, Assistant Attorney General, Education
Section, 30 East Broad Street, 16th Floor, Columbus, Ohio 43215
       Attorney for Defendant-Appellee

                                             ..........

FROELICH, J.

                {¶ 1} Craig Robinson appeals from a judgment of the Montgomery County
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Court of Common Pleas, which affirmed the resolution of the Ohio State Board of Education

to suspend Robinson’s teaching license for one year, with all but 60 days suspended, to be

served in the summer months. For the following reasons, the trial court’s judgment will be

affirmed.

                                              I.

        {¶ 2}    The underlying facts, as found by the Ohio Board of Education hearing

officer, are as follows:

        {¶ 3}     Craig Robinson, a well-respected high school science teacher with 21 years

of experience, is employed at Longfellow Alternative School, a Dayton Public School.

Robinson holds a five-year professional adolescence to young adult teaching license, which

was issued in 2009.

        {¶ 4}     During his planning period on June 8, 2009, Robinson received and viewed

an email containing four pictures of a woman posing. In three of the pictures, the woman

was wearing a bikini; the fourth picture showed her bare breasts and pubic area. (The

images were attached to a message from a fraternity brother of Robinson regarding the

nursing care of another fraternity brother who had undergone surgery.) Later that day,

Robinson accessed the email on the classroom computer of another teacher, Billy Brooks, in

order to show the pictures to Brooks. There were students in Brooks’s classroom at the

time, but there was no evidence that the students saw or were intended to see the pictures.

Brooks believed that the fourth image was pornographic, and he reported what occurred to

Bettylene Mulligan, principal of Longfellow Alternative School. Mulligan investigated and

reported the incident to her superiors at Dayton Public Schools.
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       {¶ 5}    Robinson was placed on administrative leave on or about August 5, 2009.

After a hearing on August 27, 2009, Robinson was suspended without pay for a period of

five days. On September 25, 2009, Dayton Public Schools filed an educator misconduct

reporting form with the Ohio Department of Education.

       {¶ 6}    Following an investigation, the Ohio Department of Education notified

Robinson that the State Board of Education intended to determine whether to limit, suspend,

or revoke his teaching license.     Robinson requested a hearing on the matter, which

ultimately occurred on September 14, 2010. Mulligan and Robinson testified at the hearing.

 Robinson recognized that the email’s images were inappropriate for students to view, but

he asserted that his conduct was not “conduct unbecoming an educator.”

       {¶ 7}    The hearing officer considered R.C. 3319.31(B), Ohio Adm.Code

3301-73-21, and the Licensure Code of Professional Conduct for Ohio Educators and

concluded that “Mr. Robinson violated this standard, along with the aforementioned

applicable law, through his use of school e-mail, school computers, and the school network

to view lewd photos, one including nudity, during the school day and with students in the

classroom.” The hearing officer considered Robinson’s “conduct and work activity before

the misconduct, his lack of previous misconduct or discipline, and the five day suspension

already imposed by the Dayton Public Schools” to be mitigating factors.         The officer

considered Robinson’s belief that his conduct was not inappropriate for an educator to be an

aggravating factor.

       {¶ 8}     The hearing officer concluded that Robinson’s conduct constituted conduct

unbecoming a teacher, in violation of R.C. 3319.31(B)(1). The officer further concluded
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that there was a nexus between Robinson’s conduct and his performance as a teacher. The

officer recommended that Robinson’s license be suspended for one year, with all but 60 days

suspended, to be served in the summer months.

         {¶ 9}   Robinson    filed   objections     to   the   hearing   officer’s   report   and

recommendation. On January 2011, the Ohio State Board of Education issued a resolution

rejecting Robinson’s objections and accepting the hearing officer’s recommendations.

Robinson’s one-year suspension was to begin on January 11, 2011, and the suspension was

to be served from June 15, 2011 through August 13, 2011.

         {¶ 10} Robinson appealed the Board’s order to the Montgomery County Court of

Common Pleas, pursuant to R.C. Chapter 119.              The trial court affirmed the Board’s

resolution. Robinson appeals from the trial court’s decision, raising one assignment of

error.

                                              II.

         {¶ 11} Robinson’s sole assignment of error states:

         THE TRIAL COURT ERRED IN AFFIRMING THE RESOLUTION OF

         THE OHIO STATE BOARD OF EDUCATION AS THE RESOLUTION IS

         NOT SUPPORTED BY RELIABLE, PROBATIVE, AND SUBSTANTIAL

         EVIDENCE AND IS NOT SUPPORTED BY LAW.

         {¶ 12} Robinson claims that the trial court erred in affirming the Ohio State Board

of Education’s resolution. He argues that his conduct did not violate professional teaching

standards, that the hearing officer’s conclusions were contrary to the evidence, and that his

suspension was contrary to law.
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        {¶ 13} “Under R.C. 119.12, when a decision of a state board is appealed, a court of

common pleas must decide whether the board’s order was ‘supported by reliable, probative,

and substantial evidence and is in accordance with law.’” Spitznagel v. State Bd. of Edn.,

126 Ohio St.3d 174, 2010-Ohio-2715, 931 N.E.2d 1061, ¶ 14, quoting R.C. 119.12. The

trial court must give deference to the board’s resolution of factual conflicts unless they are

clearly unsupportable. Jackson v. Ohio Dept. of Rehab. & Corr., 2d Dist. Montgomery No.

22580, 2009-Ohio-896, ¶ 18.

        {¶ 14}   An appellate court’s review is more limited than that of the trial court. In

reviewing the trial court’s determination on whether the order was supported by reliable,

probative, and substantial evidence, the appellate court is limited to determining whether the

trial court abused its discretion. Rossford Exempted Village School Dist. Bd. of Edn. v.

State Bd. of Edn., 63 Ohio St.3d 705, 707, 590 N.E.2d 1240 (1992), citing Lorain City Bd. of

Edn. v. State Emp. Relations Bd., 40 Ohio St.3d 257, 261, 533 N.E.2d 264 (1988). An

abuse of discretion means that the trial court’s attitude was unreasonable, arbitrary, or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

        {¶ 15} When reviewing whether the Board’s, or the trial court’s, order was in

accordance with the law, however, an appellate court’s review is de novo. Sptiznagel at

¶ 14.

        A. Professional Teaching Standards

        {¶ 16} Robinson first disputes the Board’s and the trial court’s conclusion that his

conduct violated R.C. 3319.31(B)(1). That statute permits the state board of education to

“suspend, revoke, or limit a license that has been issued to any person” for “[e]ngaging in an
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immoral act, incompetence, negligence, or conduct that is unbecoming to the * * * person’s

position.” The Ohio Administrative Code sets forth factors for the state board of education

to consider when evaluating “conduct unbecoming” under R.C. 3319.31(B)(1).               Ohio

Adm.Code 3301-73-21(A). They include “[c]rimes or misconduct involving the school

community, school funds, or school equipment/property” and “[a]ny other crimes or

misconduct that negatively reflect upon the teaching profession.”           Ohio Adm.Code

3301-73-21(A)(5), (8).

       {¶ 17} An uncodified portion of 2007 H 190, which amended R.C. 3319.31

effective November 14, 2007, required the Educator Standards Board to recommend to the

State Board of Education a code of conduct for educators. The code of conduct was to

address persons who are licensed by the State Board of Education and to include

recommendations regarding conduct that is inappropriate for educators and suggested

disciplinary actions for each type of misconduct.

       {¶ 18}    The Licensure Code of Professional Conduct for Ohio Educators was

adopted by the State Board of Education in March 2008. It provides “a guide for conduct in

situations that have professional implications for all individuals licensed by the State Board

of Education,” and sets forth eight principles of behavior, including:

       1. Professional Behavior

       Educators shall behave as professionals realizing that their actions

       reflect directly on the status and substance of the education profession.

       An educator serves as a positive role model to both students and adults and is

       responsible for preserving the dignity and integrity of the teaching profession
                                                                                          7

       and for practicing the profession according to the highest ethical standards.

       Conduct unbecoming to the profession includes, but is not limited to, the

       following actions:

       ***

       g)      Using technology to intentionally host or post improper or

               inappropriate material that could reasonably be accessed by the school

               community.     (Emphasis in original.)

       {¶ 19} The presumptive range of disciplinary action for a violation of Principle 1

(for acts other than violations of a testing procedure and failure to comply with required

background checks) is “Letter of admonishment up to revocation/denial of a license for other

acts unbecoming to the professional conduct of educators.”

       {¶ 20} Robinson argues that there was no evidence that he “hosted or posted

improper or inappropriate material” when he showed the email, which he understood to be a

joke, to Brooks. Robinson argues that the trial court applied “its own, unique definition of

posting” to include displaying a picture on a computer.

       {¶ 21} We find no reversible error in the trial court’s conclusion that Robinson’s

actions constituted conduct unbecoming an educator. Robinson viewed a personal email

with four attached images, three of which showed a young woman in a bikini and one of

which showed the same woman exposing her breasts and pubic area. Robinson accessed

that email in Brooks’s classroom during school hours and with students in the classroom,

and he displayed the images to Brooks. Robinson does not contest that the images were

inappropriate for school, and we agree that the images, particularly the fourth image, was
                                                                                           8

inappropriate as school material.

       {¶ 22} Robinson did not upload the material to a server that could be independently

accessed by other members of the school community. However, Principle 1 is not limited

to strict definitions of the examples provided (i.e., hosting and posting), and the intent of

subpart g appears to be that educators should not use technology to display improper or

inappropriate material where they could be reasonably accessed by the school community.

After viewing the email himself, Robinson chose to again access the email on a school

computer and the school network and to display inappropriate images to a fellow teacher,

who is a member of the school community. We find no fault with the conclusion that

Robinson’s actions violated Principle 1 of the Licensure Code of Professional Conduct for

School Educators and R.C. 3319.31(B)(1).

       B. Reliable, Probative, and Substantial Evidence

       {¶ 23} Robinson next argues that the trial court “failed to recognize the Hearing

Officer made findings of fact contrary to the evidence, misstated Mr. Robinson’s testimony,

considered evidence that is irrelevant and prejudicial, and refused to consider mitigating

factors relevant to making a recommendation.” Robinson thus asserts that the Board’s

resolution was not supported by reliable, probative, and substantial evidence.

       {¶ 24} First, Robinson emphasizes that the email, which was sent by a fraternity

brother, was a joke, and he argues the hearing officer “distorted the evidence” when she

found that Robinson accessed the email to “show the pictures to Mr. Brooks.” Robinson

testified that the email’s images were intended by the sender and understood by Robinson as

a joke, and that he intended to share the joke with Brooks. Brooks did not testify, and there
                                                                                           9

is conflicting evidence as to whether Brooks perceived the images as a joke; it is not

disputed that Brooks reported the incident to his principal.

       {¶ 25}    Regardless, the evidence is clear that Robinson accessed the email to show

the message and images to Brooks. Robinson testified that he went to Brooks’s classroom

and said, “Look, Brooks, I got something I want you to see. I want you to see something.”

Robinson stated that he then went onto Brooks’s computer, logged out of Brooks’s email

account, logged onto his own email account, went into the email trash folder, retrieved the

email, and “showed him [Brooks] the pictures and told him the joke.” The hearing officer’s

conclusion that Robinson accessed the email to show the pictures to Brooks is not a

distortion of the evidence, and the trial court did not abuse its discretion in rejecting

Robinson’s argument.

       {¶ 26} Second, Robinson challenges the hearing officer’s finding that Brooks, who

did not testify, believed the fourth picture to be pornographic. Robinson argued to the trial

court that this opinion was irrelevant. The trial court noted that the rules of evidence are

less strict in an administrative setting and that Brooks’s opinion was elicited from Mulligan

when she articulated what prompted her investigation. Robinson claims that the trial court

“missed the point that the Hearing Officer needed to exaggerate the photographs as

pornographic to justify a finding of misconduct.”

       {¶ 27} In finding that Robinson’s conduct constituted conduct unbecoming a

teacher, the hearing officer found that Robinson used his school email, school computers,

and school network to view “lewd photos, one including nudity,” during the school day and

with students in the classroom. The nature of the photos was readily apparent from the
                                                                                         10

exhibits presented to the hearing officer, and the officer did not need to rely on Brooks’s

perception of the photos. A finding that the photos did or did not constitute “pornography”

was not necessary for a determination on whether Robinson’s actions constituted conduct

unbecoming a teacher.     Moreover, as stated by the trial court, Brooks’s opinion was

mentioned by the hearing officer when explaining how the investigation by the principal

began. The hearing officer’s report did not exaggerate the evidence, and we agree with the

trial court that the reference to Brooks’s opinion does not invalidate the Board’s

determination.

       {¶ 28} Third, Robinson takes issue with the hearing officer’s conclusion that “Mr.

Robinson’s belief that his conduct was not in any way inappropriate for an educator [is] an

aggravating factor.” Robinson emphasizes that he testified that he realized his behavior was

inappropriate and that it would have been inappropriate for students to view the

photographs. He further argues that there is a difference between inappropriate behavior

and conduct unbecoming a teacher.

       {¶ 29} Ohio Adm.Code 3301-73-21(B) permits the Board to take the following

mitigating and aggravating factors, as applicable and appropriate, into consideration when

determining a final action under R.C. 3319.31(B)(1):

       (1) The nature and seriousness of the crime or misconduct;

       (2) The extent of the person’s past criminal activity or misconduct;

       (3) The age of the person when the crime or misconduct was committed;

       (4) The amount of time that has elapsed since the person’s last criminal

       activity or misconduct;
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       (5) The conduct and work activity of the person before and after the criminal

       activity or misconduct;

       (6) Whether the educator has completed the terms of his/her probation or

       deferred adjudication;

       (7) Evidence of rehabilitation * * *;

       (8) Whether the educator is amenable to rehabilitation * * *;

       (9) Whether the person fully disclosed the crime or misconduct to the state

       board or the employing school district;

       (10) Whether licensure will negatively impact the health, safety, or welfare of

       the school community and/or statewide education community;

       (11) Whether the educator has previously been disciplined by the state board

       of education or any other licensing entity, including, but not limited to,

       out-of-state licensing entities;

       (12) Whether the school district or educational entity imposed any penalties,

       sanctions, or other conditions addressing the educator’s professional conduct;

       (13) Whether the educator has been employed in any capacity within a school

       district or educational entity after having a license, certificate, or permit

       revoked; and

       (14) Any other relevant factor.

       {¶ 30} At the hearing, Robinson acknowledged that he had violated the school

district’s acceptable use policy by using school computers for personal business. Robinson

did not agree, however, that his conduct violated the statute prohibiting conduct unbecoming
                                                                                          12

an educator. When asked if he recognized that his “sharing that joke with Mr. Brooks”

violated the statute, Robinson responded,

       No. If I had – if it was a salacious attempt in showing him those pictures, if I

       had not even took the precautions of not letting kids views the pictures, then I

       would say, yes. I realize that my behavior, again, was inappropriate. It was

       definitely inappropriate. There’s no doubt about that. And if [I] could go

       back to that day, he never would have seen those pictures.

       {¶ 31} Robinson was then asked if he was aware of any professional guidance that

identifies what teachers are allowed to look at on school computers. Robinson answered,

       No. I am now. I’m sorry. Let me rephrase that. I do believe that – I

       mean, common sense would tell me hard-core pornography would be an

       issue.   But she was dressed in three of those pictures and they wasn’t

       showing every, everything. And the last picture, I didn’t see it as being

       pornographic.

       {¶ 32} Although Robinson acknowledged that he should not have used a school

computer to view personal emails, his testimony could reasonably be construed as

expressing a lack of awareness of the import of his actions. His conduct constituted more

than the use of the school network and school computers to view an innocuous personal

email. Rather, he displayed three images of a scantily clad woman and one image where the

woman’s breasts and pubic area were exposed to another teacher during school hours while

students were in the classroom. The images were sexual in nature, and the fourth image, in

particular, was reasonably described by the hearing officer as “lewd.” Robinson, however,
                                                                                             13

continued to maintain that he merely shared a joke with Brooks. The hearing officer did not

act unreasonably in considering Robinson’s minimization of his actions to be an aggravating

factor.

          {¶ 33} Fourth, Robinson asserts that the hearing officer failed to properly consider

as a mitigating factor that he has continued to teach since the disciplinary action and that his

performance evaluations demonstrate consistently high performance. As noted by the trial

court, the hearing officer found that Robinson is a well-respected science teacher and that he

served a five-day unpaid suspension for Dayton Public Schools. The hearing officer further

considered “Robinson’s conduct and work activity before the misconduct” and “his lack of

previous misconduct or discipline” as mitigating factors. The hearing officer’s report and

recommendation noted that Robinson had 21 years of experience as a teacher. Although

Robinson’s performance evaluations were not expressly mentioned, they are encompassed

by the hearing officer’s references to Robinson’s years of experience, his reputation as a

“well-respected” teacher, and his “conduct and work activity before the misconduct,” which

had not included any prior misconduct or discipline.          The Board’s resolution is not

undermined by the lack of an express reference to Robinson’s performance evaluations since

the misconduct.

          {¶ 34}   Fifth, Robinson claims that the hearing officer erred in concluding that a

nexus exists between Robinson’s conduct and his performance as a teacher. Robinson

relies on Freisthler v. State Board of Education, 3d Dist. Allen No. 1-02-36,

2002-Ohio-4941, which adopted the position that “when evaluating whether conduct is

‘unbecoming’ a teacher[, * * *] the board must show some nexus between the conduct that
                                                                                                 14

the individual is accused of and the individual’s performance as a teacher.” Id. at ¶ 20.

Freisthler adopted several criteria to evaluate whether a teacher is unfit to teach, including

       [the] likelihood that the conduct may have adversely affected students or

       fellow teachers, the degree of such adversity anticipated, the proximity or

       remoteness in time of the conduct, the type of teaching certificate held by the

       party involved, the extenuation or aggravating circumstances, if any,

       surrounding the conduct, the praiseworthiness or blameworthiness of the

       motives resulting in the conduct, the likelihood of the recurrence of the

       questioned conduct, and the extent to which disciplinary action may inflict an

       adverse impact or chilling affect upon the constitutional rights of the teacher

       involved or other teachers. Freisthler at ¶ 22, quoting Morrison v. State Bd.

       of Edn., 1 Cal.3d 214, 239, 82 Cal.Rptr. 175, 461 P.2d 375 (1969) (footnotes

       omitted).

       {¶ 35} In addition to the Third District, the Fifth and Eighth Districts have also

expressly required a nexus between the educator’s conduct and the ability to teach or

administrate in order for the Board of Education to act on the educator’s license. See, e.g.,

Hoffman v. State Bd. of Edn., 145 Ohio App.3d 392, 763 N.E.2d 210 (8th Dist.2001);

Johnson v. State Bd. of Edn., 5th Dist. Stark No. CA-8019, 1990 WL 62988 (May 14, 1990).

 See, also, Bertolini v. Whitehall City Sch. Dist. Bd. of Edn., 139 Ohio App.3d 595, 744

N.E.2d 1245 (10th Dist.2000) (requiring a private act to have a serious impact on the

teacher’s professional duties in order to justify termination of teacher’s contract). We note

that all of the Third, Fifth, and Eighth District cases involved conduct that pre-dated the
                                                                                           15

2007 amendment to R.C. 3319.31 requiring the creation of a code of conduct for teachers.

        {¶ 36}   The Eighth and Fifth Districts have found that a nexus exists when the

educator’s conduct impacts the individual’s professional life. For example, in Sayers v.

Ohio State Bd. of Edn., 8th Dist. Cuyahoga No. 66578, 1994 WL 676869 (Dec. 1, 1994), a

physical education teacher entered a guilty plea to importuning based on inappropriate

physical contact with elementary school students.     The appellate court found a nexus

existed, noting that the teacher’s duties required him to be in close physical contact with

children before, during, and after school, and that many of those children would have to

dress and undress for instruction or competition not far from the teacher’s supervision. In

Hoffman, the Eighth District affirmed the revocation of a teacher’s license based on his

engaging in public indecency at an adult book store, even though his conduct did not occur

on school grounds, during school hours, or involve students. The court concluded that the

teacher ”established the nexus between his conduct and his teaching duties when he solicited

students to write letters on his behalf.” Hoffman, 145 Ohio App.3d at 396. In Johnson, the

Fifth District concluded that there was a nexus between an elementary school principal’s

public indecency in a public restroom along a highway and the principal’s job performance

when there was evidence that the behavior “jeopardized his role model and leadership

abilities.”

        {¶ 37}   Freisthler involved a teacher who challenged the State Board of

Education’s decision not to renew his teaching license based on a conviction for persistent

disorderly conduct that had occurred five years previously.        The disorderly conduct

conviction was based on Freisthler’s solicitation and inappropriate touching of an
                                                                                             16

undercover officer in a park. In finding no nexus between Freisthler’s conduct and his

ability to teach, the Third District emphasized that his conviction was not publicized, that

there was no evidence that students were made aware of the matter, that teachers and

administrators who were informed of the conduct testified that Freisthler was an exceptional

teacher, and that Freisthler had taught for seven years after his conviction without incident or

complaint.

       {¶ 38}    This court has not addressed whether a nexus must exist between the

conduct and the individual’s performance as an educator, and we need not decide that issue

in this case. Even if we were to follow Freisthler and the other cases requiring a nexus, we

would find no error in the conclusion that a nexus existed. Robinson’s conduct occurred in

a classroom during school hours while students were present in the room. Although there

was no evidence that students saw the photographs and Robinson testified that he took steps

to ensure that students would not see the pictures, the fact that he displayed the pictures to

another teacher during school hours while students were engaged in class work in the room

reflects on Robinson’s performance as a teacher and affected his relationships within the

school community.      We find no fault with the hearing officer’s and the trial court’s

conclusion that a nexus existed between Robinson’s conduct and his performance as a

teacher, if that were needed.

       C. Lawfulness of Suspension

       {¶ 39} Robinson asserts that his suspension is contrary to law, because his actions

did not constitute conduct unbecoming an educator, there was no nexus between the alleged

misconduct and Robinson’s performance as a teacher, and no public purpose would be
                                                                                            17

served by upholding the Board’s suspension of his license. Robinson further claims that

Board’s decision to suspend him for sharing a private communication with a fellow educator

is unconstitutional.

       {¶ 40} As stated above, we find no error in the conclusions that Robinson’s conduct

constituted conduct unbecoming an educator, in violation of R.C. 3319.31(B)(1), and to the

extent that a nexus need be shown between his conduct and his teaching performance, that

such a nexus exists. The record contains reliable, probative, and substantial evidence to

support the Board’s resolution, and the trial court did not abuse its discretion in so finding.

Moreover, the suspension of Robinson’s license was within the range of discipline for his

violation of Principle 1 of the Licensure Code.

       {¶ 41} As for Robinson’s claim that his sharing of a joke with another teacher was

constitutionally protected, we disagree. Robinson was not punished merely because he

privately shared a joke with another teacher. Rather, his conduct was deemed conduct

unbecoming an educator because he showed inappropriate photos, including a sexual image

of a nude woman, to another teacher using school equipment, during school hours, and while

students were present in the classroom. The fact that no students actually viewed the

photos, particularly the fourth photo, likely mitigated against a more severe punishment.

       {¶ 42} The Board’s suspension of Robinson’s license for one year, with all but 60

days suspended, to be served during summer months, was not contrary to law, and the trial

court did not abuse its discretion in affirming the Board’s decision.

       {¶ 43} Robinson’s assignment of error is overruled.

       {¶ 44} The trial court’s judgment will be affirmed.
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                                    ..........

FAIN, J. and DONOVAN, J., concur.

Copies mailed to:

John R. Folkerth, Jr.
Jennifer Bondurant
Hon. Michael L. Tucker
