[Cite as Izzo v. Dept. of Edn., 2019-Ohio-1008.]

                              IN THE COURT OF APPEALS OF OHIO

                                    TENTH APPELLATE DISTRICT


Carissa Izzo et al.,                               :

                 Appellants-Appellants,            :           No. 18AP-138
                                                            (C.P.C. No. 17CV-3361)
v.                                                 :
                                                       (ACCELERATED CALENDAR)
Ohio Department of Education,                      :

                 Appellee-Appellee.                :




                                          D E C I S I O N

                                      Rendered on March 21, 2019


                 On brief: Graff & McGovern LPA, and John A. Izzo, for
                 appellants. Argued: John A. Izzo.

                 On brief: Dave Yost, Attorney General, and Marissa J.
                 Palumbo, for appellee. Argued: Marissa J. Palumbo.

                   APPEAL from the Franklin County Court of Common Pleas

BROWN, J.
        {¶ 1} Carissa and John A. Izzo, appellants, appeal from the judgment of the
Franklin County Court of Common Pleas, in which the court affirmed the order of the
Ohio Department of Education ("ODE"), appellee.
        {¶ 2} Appellants reside on Little Falls Drive in Dublin, Ohio. Their property is in
the Columbus City School District ("CCSD"), but appellants desired to transfer their
address to the Hilliard City School District ("HCSD"). Appellants completed a petition to
transfer the address, pursuant to R.C. 3311.24, and submitted the petition to CCSD. On
April 1, 2016, CCSD forwarded the petition to ODE. ODE requested that appellants,
CCSD, and HCSD submit answers to an information form and "25 Questions" form,
No. 18AP-138                                                                             2


pursuant to Ohio Adm.Code 3301-89-02(B), and all parties responded. ODE then
informed appellants, CCSD, and HCSD that a hearing would be held if any of the parties
requested one. Appellants requested a hearing.
      {¶ 3} On December 12, 2016, a hearing on the matter was held before a hearing
officer for the State Board of Education ("board"), which is part of ODE. Appellants and
CCSD appeared at the hearing, and HCSD submitted its arguments in writing, although
appellants objected to the participation of CCSD and HCSD because they had not filed
requests for a hearing. Neither CCSD nor HCSD were in favor of the transfer.
      {¶ 4} On January 5, 2017, the hearing officer issued a report and
recommendation, recommending the transfer be denied. Appellants filed objections. On
March 27, 2017, the board issued an order approving the hearing officer's report.
      {¶ 5} Appellants appealed the board's order to the Franklin County Court of
Common Pleas, and, on January 24, 2018, the common pleas court affirmed the board's
order. Appellants appeal the judgment of the common pleas court, asserting the following
two assignments of error:
               [I.] The hearing officer and the Department allowed the
               Columbus City School District and the Hilliard City School
               District to participate in the hearing, which was contrary to
               law.

               [II.] The hearing officer's Report and Recommendation is not
               based upon reliable, probative, and substantial evidence and
               not in accordance with law.

      {¶ 6} Appellants argue in their first assignment of error that ODE erred when it
allowed CCSD and HCSD to participate in the hearing, even though they did not submit
requests for a hearing. An appellate court exercises plenary review on the question of
whether the board's order was in accordance with the law, and on other issues of law.
Paolucci v. Ohio Div. of Real Estate, 10th Dist. No. 09AP-450, 2009-Ohio-5551, ¶ 7.
Appellants here argue that neither CCSD nor HCSD should have been permitted to
participate in the hearing because they did not request a hearing in the matter pursuant to
R.C. 119.07, 3311.24, and Goldman v. State Med. Bd. of Ohio, 110 Ohio App.3d 124 (10th
Dist.1996) ("Goldman I"). Appellants contend the hearing officer should not have
permitted HCSD to submit in writing its position and arguments, and CCSD should not
No. 18AP-138                                                                        3


have been permitted to make a statement, present evidence, and cross-examine witnesses
at the hearing.
       {¶ 7} R.C. 119.06 provides, in pertinent part:
               No adjudication order shall be valid unless an opportunity for
               a hearing is afforded in accordance with sections 119.01 to
               119.13 of the Revised Code. Such opportunity for a hearing
               shall be given before making the adjudication order except in
               those situations where this section provides otherwise.

       {¶ 8} R.C. 119.07 provides, in pertinent part:
               Except when a statute prescribes a notice and the persons to
               whom it shall be given, in all cases in which section 119.06 of
               the Revised Code requires an agency to afford an opportunity
               for a hearing prior to the issuance of an order, the agency shall
               give notice to the party informing the party of the party's right
               to a hearing. Notice shall be given by registered mail, return
               receipt requested, and shall include the charges or other
               reasons for the proposed action, the law or rule directly
               involved, and a statement informing the party that the party is
               entitled to a hearing if the party requests it within thirty days
               of the time of mailing the notice. The notice shall also inform
               the party that at the hearing the party may appear in person,
               by the party's attorney, or by such other representative as is
               permitted to practice before the agency, or may present the
               party's position, arguments, or contentions in writing and that
               at the hearing the party may present evidence and examine
               witnesses appearing for and against the party. A copy of the
               notice shall be mailed to attorneys or other representatives of
               record representing the party. This paragraph does not apply
               to situations in which such section provides for a hearing only
               when it is requested by the party.

       {¶ 9} R.C. 3311.24(A)(2) provides, in pertinent part:
               The board of education of the district in which such proposal
               originates shall file such proposal, together with a map
               showing the boundaries of the territory proposed to be
               transferred, with the state board of education prior to the first
               day of April in any even-numbered year. The state board of
               education may, if it is advisable, provide for a hearing in any
               suitable place in any of the school districts affected by such
               proposed transfer of territory. The state board of education or
               its representatives shall preside at any such hearing.
No. 18AP-138                                                                               4


        {¶ 10} In Goldman I, this court held the appellant, a practitioner of cosmetic
therapy, was not entitled to participate in the disciplinary hearing before the state medical
board because he waived his right to a hearing when he failed to request a hearing after
proper notice. On remand, a hearing examiner held an evidentiary hearing wherein the
testimony of a board investigator was taken and certain evidence was admitted. The
appellant and his counsel were present; however, they were not permitted to present
evidence, cross-examine the witness, or make opening and closing remarks. After the
common pleas court affirmed the board's order, upon further appeal to this court, this
court, in Goldman v. State Med. Bd., 10th Dist. No. 98AP-238 (Oct. 20, 1998) ("Goldman
II"), held that the appellant, by waiving his right to appear, lost his right to present
evidence, cross-examine witnesses, and make opening and closing statements. We
explained that the fundamental requirement of procedural due process is notice and the
opportunity to be heard, and such is subject to waiver, which is what appellant did in that
case.
        {¶ 11} However, we do not find either Goldman I or Goldman II applicable to the
present case. Notably, the Goldman cases involved medical licensing, and there existed
only one interested party, a medical professional, and one supervisory body, the state
medical board, which is the body authorized to supervise and discipline medical
professionals practicing in the state. R.C. 4731.22(B). The present case involves a
completely different situation. Here, there are three interested parties: appellants, HCSD,
and CCSD, as well as a supervisory body, the board, which is the governing body charged
with supervision of public education in the state. See Cincinnati City School Dist. Bd. of
Edn. v. State Bd. of Edn. of Ohio, 176 Ohio App.3d 157, 2008-Ohio-1434, ¶ 3 (1st Dist.)
(the State of Ohio Board of Education is the governing body charged with general
supervision of public education in the state, while ODE is the administrative unit and
organization through which the policies, directives, and powers of the State Board of
Education are administered). Appellants fail to cite any cases involving multiple
interested parties, not to mention a school-district-transfer case, in which only the party
filing the request for hearing was allowed to participate in the hearing. As ODE points out,
permitting all interested parties to participate once a hearing has been scheduled allows
ODE to fully develop a record on which to base a decision.
No. 18AP-138                                                                                 5


       {¶ 12} Furthermore, the board has discretion to grant a hearing on its own accord
regardless of whether a party requests one, pursuant to R.C. 3311.24(A)(2) ("[t]he state
board of education may, if it is advisable, provide for a hearing in any suitable place in any
of the school districts affected by such proposed transfer of territory"), and clearly all
parties would receive notice of the hearing and an opportunity to be heard under such
circumstances. Therefore, given the board has the power to call a hearing on its own and
allow all the parties to participate, we cannot find that only the party filing a request for a
hearing is entitled to participate when only that party files a request. For these reasons,
we overrule appellants' first assignment of error.
       {¶ 13} Appellants argue in their second assignment of error that the report and
recommendation of ODE's hearing officer was not based on reliable, probative, and
substantial evidence and was not in accordance with law. In an R.C. 119.12 administrative
appeal, the trial court reviews an order to determine whether it is supported by reliable,
probative, and substantial evidence and is in accordance with the law. The Supreme Court
of Ohio has defined reliable, probative, and substantial evidence as follows:
               (1) "Reliable" evidence is dependable; that is, it can be
               confidently trusted. In order to be reliable, there must be a
               reasonable probability that the evidence is true.
               (2) "Probative" evidence is evidence that tends to prove the
               issue in question; it must be relevant in determining the issue.
               (3) "Substantial" evidence is evidence with some weight; it
               must have importance and value.

(Footnotes omitted.) Our Place, Inc. v. Ohio Liquor Control Comm., 63 Ohio St.3d 570,
571 (1992). In applying its standard of review, a trial court must "give due deference to
the administrative resolution of evidentiary conflicts." Univ. of Cincinnati v. Conrad, 63
Ohio St.2d 108, 111 (1980). "[A]n agency's findings of fact are presumed to be correct and
must be deferred to by a reviewing court unless that court determines that the agency's
findings are internally inconsistent, impeached by evidence of a prior inconsistent
statement, rest upon improper inferences, or are otherwise unsupportable." Ohio
Historical Soc. v. State Emp. Relations Bd., 66 Ohio St.3d 466, 471 (1993). Although the
reviewing court must defer to an agency's findings of fact, it must construe the law on its
own. Id.
No. 18AP-138                                                                             6


       {¶ 14} On appeal to this court, the standard of review is more limited. While the
common pleas court must examine the evidence, "[s]uch is not the charge of the appellate
court." Bd. of Edn. of Rossford Exempted Village School Dist. v. State Bd. of Edn., 63
Ohio St.3d 705, 707 (1992). In reviewing the trial court's determination of whether the
board's order was supported by reliable, probative, and substantial evidence, this court's
role is limited to determining whether the trial court abused its discretion. Roy v. Ohio
State Med. Bd., 80 Ohio App.3d 675, 680 (10th Dist.1992). " 'Appellate courts must not
substitute their judgment for those of an administrative agency or a trial court absent the
approved criteria for doing so.' " Rossford Exempted Village School Dist. at 707, quoting
Lorain City School Dist. Bd. of Edn. v. State Emp. Relations Bd., 40 Ohio St.3d 257, 261
(1988).
       {¶ 15} The standards, factors, and procedures for administrative consideration of a
petition for transfer of school district territory are set forth in Ohio Adm.Code 3301-89.
Ohio Adm.Code 3301-89-01 sets forth the board's general policies regarding transfers of
territory and provides at subsection (F), "[a] request for transfer of territory shall be
considered upon its merit with primary consideration given to the present and ultimate
good of the pupils in the affected districts." Ohio Adm.Code 3301-89-02(D) outlines
procedures for considering a petition for transfer of territory and sets forth 25 questions
that each school district implicated by a requested transfer must answer to aid the board
in its consideration. Those questions are:
               (1) Why is the request being made?

               (2) Are there racial isolation implications?

               (a) What is the percentage of minority students in the
               relinquishing district?

               (b) What is the percentage of minority students in the
               acquiring district?

               (c) If approved, would the transfer result in an increase in the
               percentage of minority pupils in the relinquishing district?

               (3) What long-range educational planning for the students in
               the districts affected has taken place?
No. 18AP-138                                                                       7


               (4) Will the acquiring district have the fiscal and human
               resources to efficiently operate an expanded educational
               program?

               (5) Will the acquiring district have adequate facilities to
               accommodate the additional enrollment?

               (6) Will both the districts involved have pupil population and
               property valuation sufficient to maintain high school centers?

               (7) Will the proposed transfer of territory contribute to good
               district organization for the acquiring district?

               (8) Does the acquiring district have the capacity to assume
               any financial obligation that might accompany the
               relinquished territory?

               (9) Will the loss of either pupils or valuation be detrimental to
               the fiscal or educational operation of the relinquishing school
               district?

               (10) Have previous transfers caused substantive harm to the
               relinquishing district?

               (11) Is the property wealth in the affected area such that the
               motivation for the request could be considered a mechanism
               for the receiving school district to receive additional real
               estate tax revenue?

               (12) Are there any school buildings in the area proposed for
               transfer? If so, was the school building constructed within the
               last five years?

               (13) What are the distances between the school buildings
               within:

               (a) The present school district?

               (b) The proposed school district?

               (14) What are the distances between:

               (a) The area proposed for transfer and each building in the
               present school district?
No. 18AP-138                                                                      8


               (b) The area proposed for transfer and each building in the
               proposed school district?

               (15) If approved, will the requested transfer create a school
               district with noncontiguous territory?

               (16) Is the area being requested an isolated segment of the
               district of which it is a part?

               (17) Will the municipal and school district boundary lines
               become coterminous?

               (18) For each district affected:

               (a) What is the inside millage?

               (b) What is the outside operating millage?

               (c) What is the bonded indebtedness millage?

               (19) What is the levy history in each of the affected districts?

               (20) Will the transfer of school district territory cause a
               negative impact on the state of Ohio?

               (21) How will the projected revenues and expenditures as set
               forth in the most recent five-year forecasts be impacted by the
               transfer, if implemented? Each district shall provide the
               department of education with copies of their most recent five-
               year forecasts.

               (22) What designation did each of the affected districts and
               building receive on their state report cards for the last five
               years?

               (23) How will the proposed transfer affect the educational
               offerings/programs of the affected districts?

               (24) What course offerings will be available through the
               acquiring district, as compared to the relinquishing district?

               (25) How will the proposed transfer affect the athletic
               programs and extracurricular activities of the affected
               districts? Will similar programs and activities be available to
               students of the affected districts?
No. 18AP-138                                                                        9


      {¶ 16} Ohio Adm.Code 3301-89-03(B) contains a non-exhaustive list of factors to
be considered:
               (1) Documented agreements made by public agencies involved
               in municipal annexation proceedings should be honored;

               (2) A previous agreement entered into by the school districts
               concerned should be honored unless all concerned districts
               agree to amend it;

               (3) The statement signed by the school district boards of
               education after negotiations as required by paragraph (D)(4)
               of Rule 3301-89-04 of the Administrative Code;

               (4) There should not be undue delay in requesting a transfer
               for school purposes after a territory has been annexed for
               municipal purposes;

               (5) The transfer shall not cause, preserve, or increase racial
               isolation;

               (6) All school district territories should be contiguous unless
               otherwise authorized by law;

               (7) School district boundary lines that have existed for a long
               period of time should not be changed if substantial upheaval
               results because of long-held loyalties by the parties involved;

               (8) The pupil loss of the relinquishing district should not be
               such that the educational program of that district is severely
               impaired;

               (9) The fiscal resources acquired should be commensurate
               with the educational responsibilities assumed;

               (10) The educational facilities of districts should be effectively
               utilized; and

               (11) The preference of the residents with school-age children
               who live in the territory sought to be transferred to another
               school district shall be considered if evidence establishing that
               preference is admitted, provided the articulated reasons are
               not contrary to existing statutes or rules.
No. 18AP-138                                                                                10


       {¶ 17} The standard for considering requests under R.C. 3311.24 "focuses on
educational impact as the key to whether such requests should be approved." Bartchy v.
State Bd. of Edn., 120 Ohio St.3d 205, 2008-Ohio-4826, ¶ 86. " '[T]he several factors for
consideration set forth in Ohio Adm.Code 3301-89-02(B) and 3301-89-03(B) are
intended to be an integral part of the board's transfer decision with primary consideration
given to the present and ultimate good of all the students who are affected by the
proposed transfer.' " Id. at ¶ 50, quoting Garfield Hts. City School Dist. v. State Bd. of
Edn., 62 Ohio App.3d 308, 319 (10th Dist.1990). Each transfer request is decided on its
particular facts under the required balancing test. Bartchy at ¶ 81. Thus, " '[w]hen a
transfer of school districts is proposed, a balancing must take place between many
competing factors in order to achieve the desired result of achieving what is in the best
interests of the students concerned.' " Id. at ¶ 51, quoting Garfield Hts. at 323. The weight
to be given to those factors "necessarily depends on the full context of the situation." Id. at
¶ 84. "[T]he [board's] balancing of the factors should be treated with deference." Id. at ¶
89.
       {¶ 18} In the present case, appellants first argue the hearing officer failed to
consider the best interests of the students. Appellants claim the hearing officer, instead,
focused on the interests of the school districts and others in the neighborhood. We
disagree. The hearing officer acknowledged the transfer would benefit appellants and
their children, in that their community ties are with Hilliard, Hilliard schools are closer,
their children's friends from Columbus live far away, they are active at the Hilliard library
and parks, and their social activities are primarily in Hilliard. However, the hearing officer
also correctly acknowledged the school districts and others in the neighborhood opposed
the transfer. Insofar as appellants are implying the board failed to weigh the competing
interests properly, the weight to be given these factors is generally within the province of
the board. We can find no error here, when the hearing officer specifically acknowledged
evidence on both sides of the issue, but decided that one party's evidence deserved more
weight.
       {¶ 19} Appellants also argue the hearing officer's statement that HCSD and CCSD
are both parties to the "Win-Win Agreement," which generally provides that the districts
will not accept transfers of territory from the other district, is irrelevant because there was
No. 18AP-138                                                                               11


no evidence in the record that the property in question was subject to the Win-Win
Agreement and, in fact, it is not. While appellants testified their property was not subject
to the Win-Win Agreement, there is little other specific evidence on this issue. Regardless,
we find no prejudicial error here. Although the hearing officer noted HCSD and CCSD
were both parties to the Win-Win Agreement, the hearing officer did not make any
specific findings related to the agreement and did not explicitly indicate how the
agreement was important to the present case. Read in context, however, the implication is
that the Win-Win Agreement provides evidence that HCSD and CCSD generally view
territorial stability as important. Notwithstanding, insomuch as the hearing officer's
actual factual finding that CCSD and HCSD were parties to the agreement is correct, we
can find no prejudicial error.
       {¶ 20} Appellants next argue the hearing officer failed to explain why contiguous
parcels were important in his opinion. They claim HCSD created an island for
Washington Elementary School, and the documentation showing the Northwest Planning
Area shows the property in question is not contiguous to CCSD. We disagree with
appellants' contentions. That the school district be contiguous is specifically set forth as a
factor to consider in Ohio Adm.Code 3301-89-03(B)(6) and provides that "[a]ll school
district territories should be contiguous unless otherwise authorized by law." Also, Ohio
Adm.Code 3301-89-02(D)(15) and (D)(16) express a preference for contiguous school-
district territories. Furthermore, based on a review of the maps and evidence, we agree
there exists a strip of land, the "common area" for appellants' subdivision, separating
appellants' property from HCSD, so that appellants' parcel would not be contiguous with
HCSD. Hilliard's superintendent agreed appellants' parcel was not contiguous with
HCSD. The board also noted that transferring only appellants' home, while leaving the
rest of the street part of CCSD, would create a non-contiguous island of territories. Thus,
we find the trial court did not abuse its discretion when it found the board's order was
supported by reliable, probative, and substantial evidence.
       {¶ 21} Relatedly, appellants also argue the hearing examiner failed to explain why
he discounted the determination of HCSD that the property in question is contiguous to
HCSD. Appellants claim the property at issue is across the street from HCSD, and the
hearing officer incorrectly stated a transfer of the property in question would result in
No. 18AP-138                                                                              12


non-contiguous territory. We agree that in submitting answers to the 25 questions, HCSD
responded that, if approved, the requested transfer would not create a school district with
non-contiguous territory; however, HCSD superintendent, Dr. John Marschhausen,
indicated in a subsequent letter that the territory in the transfer request was not
contiguous to HCSD. Furthermore, appellants seem to admit in their argument that the
property at issue is "across the street" from HCSD. As mentioned above, there is a strip of
property between appellants' property and HCSD, thereby rendering the property not
contiguous with HCSD.
       {¶ 22} Appellants also take issue with the hearing officer's use of "practical sense,"
in finding that it does not make "practical sense" to select appellants' residence out of the
entire subdivision and place it in HCSD, and argue that "practical sense" is not an
outlined consideration for the hearing officer. Initially, we note that, pursuant to Ohio
Adm.Code 3301-89-03(B), the board may consider additional factors that are not
necessarily limited to those enumerated in that section. Regardless, we do not view
"practical sense" as much a "factor" as it is a method of analysis. We find this argument
without merit.
       {¶ 23} Appellants also argue that, contrary to the hearing officer's finding,
appellants did not pursue the transfer because it was more convenient and beneficial for
them. Instead, appellants claim, the testimony was that the distance to the elementary
school took a toll on the students, educationally and socially. Appellants assert the hearing
officer should have given more weight to their preference under Ohio Adm.Code 3301-89-
03(B)(11). However, we do not see a practical distinction between the board's finding that
appellants believe the transfer would be "convenient" and "beneficial," and appellants
claim that the transfer takes an educational and social toll on the students. The board
recognized the transfer would benefit the students by requiring less travel. Certainly,
being "convenient" and "beneficial" play into the alleged educational and social toll.
Notwithstanding, the board is assigned the task of weighing the factors and determining
how much weight should have been given to appellants' preference. We find no error in
these respects.
       {¶ 24} Appellants next argue there was no evidence that either school would be
harmed by the transfer. Appellants contend the hearing officer incredulously agreed with
No. 18AP-138                                                                            13


HCSD that it could not afford to transfer two students into its district, as they presented
evidence that HCSD had recently passed a levy. Appellants are again attempting to have
this court reweigh and balance the factors, which is not the standard of review for this
court. Appellants are correct that HCSD had recently passed a levy, but HCSD also
presented evidence that asserted it could not afford to have the land transferred into the
district. HCSD's superintendent indicated there were currently a large number of
apartments, condominiums, and single-family homes planned or under construction in
appellants' area, and they would tax the capacity of HCSD, so adding territory transfers
could only exacerbate the problem. It was within the province of the board to believe
HCSD despite the fact the district had recently passed a levy. Therefore, this argument is
without merit.
      {¶ 25} Based on our above findings, we find the common pleas court did not abuse
its discretion when it found the board's order was supported by reliable, probative, and
substantial evidence. Appellants' second assignment of error is overruled.
      {¶ 26} Accordingly, we overrule appellants' two assignments of error and affirm
the judgment of the Franklin County Court of Common Pleas.
                                                                      Judgment affirmed.

                            KLATT and SADLER, JJ., concur.

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