[Cite as Barr v. Lorain Cty. Dept. of Job & Family Servs., 2019-Ohio-2597.]


STATE OF OHIO                     )                         IN THE COURT OF APPEALS
                                  )ss:                      NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

BARBARA BARR                                                C.A. No.          18CA011334

        Appellant

        v.                                                  APPEAL FROM JUDGMENT
                                                            ENTERED IN THE
LORAIN COUNTY DEPTARTMENT OF                                COURT OF COMMON PLEAS
JOB AND FAMILY SERVICES                                     COUNTY OF LORAIN, OHIO
                                                            CASE No.   16CV190175
        Appellee

                                 DECISION AND JOURNAL ENTRY

Dated: June 28, 2019



        CARR, Judge.

        {¶1}     Plaintiff-Appellant Barbara Barr appeals from the judgment of the Lorain County

Court of Common Pleas. This Court reverses and remands the matter for further proceedings

consistent with this opinion.

                                                      I.

        {¶2}     In 2014, Ms. Barr was employed by Defendant-Appellee the Lorain County

Department of Job and Family Services (“the Agency”) as a clerical supervisor. At that time, she

had worked for the Agency for over 20 years. As a clerical supervisor, Ms. Barr supervised four

intake workers at the front desk. In addition, individuals referred to as W.E.P. workers worked

for the Agency. These individuals were actually clients of the Agency who were required to

work a certain number of hours for the Agency in order to receive public benefits. Ms. Barr also

had W.E.P. workers under her supervision. One of those W.E.P. workers was P.R.
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        {¶3}   On April 1, 2014, Ms. Barr was removed from her position. Following pre-

disciplinary conferences, at which time P.R. provided a statement that was recorded, Ms. Barr

was demoted to the position of data entry operator 2. This was a demotion in position and pay

rate.

        {¶4}   At the time of her demotion, Ms. Barr’s son was addicted to heroin.

Understandably, Ms. Barr was very concerned for her son’s welfare. Inter alia, the Agency

alleged that Ms. Barr involved P.R. in these concerns and inappropriately used her work

computer to look up an individual on a court website. With respect to the former allegation, on

March 19, 2014, Ms. Barr asked P.R. if she recognized any phone numbers on a list, which

contained numbers that Ms. Barr believed to be drug dealers and which Ms. Barr was

considering turning over to the police. When P.R. indicated that she did recognize a number,

Ms. Barr allegedly told P.R. to tell the person to not sell Ms. Barr’s son drugs anymore. Later

that day, someone called Ms. Barr’s son and threatened their lives if Ms. Barr went to the police

with the phone numbers. Ms. Barr then got in touch with P.R. and told P.R. to tell the person

that Ms. Barr was not going to give the numbers to the police. The next day Ms. Barr requested

that P.R. be reassigned allegedly both because someone had been making mistakes in the area

where P.R. worked and because of the events the previous day.

        {¶5}   Ms. Barr appealed the demotion to the State Personnel Board of Review

(“SPBR”). A hearing was held before an administrative law judge (“ALJ”), at which P.R. did

not testify, but her prior statement was played. The ALJ issued a report and recommendation, in

which the ALJ made several findings and recommended that Ms. Barr’s demotion be affirmed.
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       {¶6}    Ms. Barr filed objections to the ALJ’s report and recommendation. SPBR heard

oral argument and thereafter issued an order.        SPBR adopted the findings of the ALJ but

modified the ALJ’s recommendation. SPBR concluded that:

       The record reflects that Appellant misused her position for personal reasons.
       However, Appellant’s actions must be counterbalanced with her many years of
       satisfactory service with Appellee in her position. Further, Appellant’s rather
       unique and difficult personal circumstances that unquestionably impacted on her
       behavior in this matter seem unlikely to be repeated. Finally, if Appellant is
       prospectively restored to her former position or a comparably-ranked
       position/pay, she still will have paid a hefty monetary penalty for her actions.
       This should certainly sensitize her to the need to carefully and faithfully follow all
       of Appellee’s practices and procedures going forward.

       Wherefore, it is hereby ORDERED that Appellant’s instant REDUCTION be
       MODIFIED to a FINE equivalent to the sum owed to Appellant representing the
       difference between her current pay and her back pay arising from restoration to
       her former classification of Clerical Supervisor, commencing from the effective
       date of the reduction until the final Order of this Board, pursuant to R.C. 124.03
       and R.C. 124.34.

(Emphasis in original.)

       {¶7}    Ms. Barr then appealed to the court of common pleas. Ms. Barr argued that

SPBR’s finding that she misused her position for personal reasons was not supported by the

evidence. In so doing, Ms. Barr challenged the consideration of P.R.’s unsworn statement at the

hearing held by the ALJ. In addition, Ms. Barr asserted that, even if the Agency established a

minor violation, the sanction was not warranted. The Agency filed a brief in opposition and a

hearing was held. The court of common pleas issued a decision affirming SPBR’s order.

       {¶8}    The court of common pleas concluded that one of the Agency’s arguments was

dispositive of the appeal: “the imposition of a fine, which is a penalty, is not subject to appeal.”

It concluded that, pursuant to Henry’s Cafe, Inc. v. Bd. of Liquor Control, 170 Ohio St. 233

(1959), the court could not review the propriety of the decision of SPBR to restore Ms. Barr to

her prior position without back pay.      It does not appear that the court of common pleas
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considered the merits of whether the decision of SPBR that Ms. Barr committed misconduct was

supported by the record.

       {¶9}    Ms. Barr has appealed, raising two assignments of error for our review.

                                                II.

                                 ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
       AFFIRMING THE DECISION OF THE SPBR ON THE FACTS.

       {¶10} Ms. Barr argues in her first assignment of error that the court of common pleas

erred in affirming the decision of SPBR on the facts. Specifically, she asserts that the evidence

did not support that she misused her position for personal reasons.

       {¶11} “Pursuant to R.C. 119.12, when a common pleas court reviews an order of an

administrative agency, the court must consider the entire record to determine whether reliable,

probative, and substantial evidence supports the agency’s order and that the order is in

accordance with the law.” (Internal quotations omitted.) Horn v. Ohio Dept. of Ins., 9th Dist.

Lorain No. 15CA010892, 2017-Ohio-231, ¶ 10, quoting Univ. of Cincinnati v. Conrad, 63 Ohio

St.2d 108, 110 (1980).

       The common pleas court’s review of the administrative record is neither a trial de
       novo nor an appeal on questions of law only, but a hybrid review in which the
       court must appraise all the evidence as to the credibility of the witnesses, the
       probative character of the evidence[,] and the weight [to be given it]. However,
       the findings of the agency are by no means conclusive. Accordingly, a court of
       common pleas may not substitute its judgment for that of an administrative
       agency, but must weigh the evidence in the record, including witness credibility.

(Internal citations and quotations omitted.) Horn at ¶ 10.

       {¶12} Our review is even more limited than that of the court of common pleas. Id. at ¶

11. “Unlike the court of common pleas, we do not determine the weight of the evidence. On
                                                   5


appeal, this court will only determine if the [court of common pleas] abused its discretion.”

(Internal citations and quotations omitted.) Id.

       {¶13} Here, we conclude that Ms. Barr is challenging an issue that the court of common

pleas did not review. While there is some language in the decision of the court of common pleas

that may have caused Ms. Barr to believe that it resolved the issue, considering the entirety of the

decision we can only conclude that court of common pleas did not review whether SPBR’s

conclusion that Ms. Barr engaged in misconduct was supported by the evidence. Instead, the

court of common pleas specifically found that the Agency’s fourth proposition of law was

determinative of the entire appeal. That proposition was that “the imposition of a fine, which is a

penalty, is not subject to appeal.” Later in the decision, the court of common pleas stated that,

“[a]s noted supra, this appeal can be resolved on the final proposition of law urged by [the

Agency], to wit: Barr cannot appeal a punishment or, put another way, a common pleas court

has no authority to disturb a sanction imposed by an administrative agency.”

       {¶14} However, even if we were to assume that the trial court was unable to modify Ms.

Barr’s sanction, we cannot say that the trial court was unable to review whether the record

supported that Ms. Barr engaged in misconduct. See Little v. State Med. Bd. of Ohio, 10th Dist.

Franklin No. 10AP-220, 2010-Ohio-5627, ¶ 5-6, 10-13. If the court of common pleas were to

determine that the evidence did not support SPBR’s conclusion that Ms. Barr engaged in

misconduct, then there could be no penalty. See Natoli v. Ohio State Dental Bd., 177 Ohio

App.3d 645, 2008-Ohio-4068, ¶ 15 (10th Dist.) (“Without a violation, there can be no penalty.”).

       {¶15} Particularly because the scope of the court of common pleas’ review is broader

than this Court’s, it would be inappropriate for this Court to presume that the court of common

pleas considered this issue when its decision indicates otherwise. This matter is remanded to the
                                                  6


court of common pleas for it to consider the merits of Ms. Barr’s argument.           Ms. Barr’s

assignment of error is sustained only to that extent.

                                 ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED AS A MATTER OF LAW BY FIN[D]ING THAT
       THE [] BOARD’S IMPOSITION OF A “FINE” EQUIVALENT TO BARR’S
       BACK PAY CANNOT BE CHALLENGED ON APPEAL IF IT FINDS
       RELIABLE, PROBATIVE AND SUBSTANTIAL EVIDENCE TO SUPPORT
       THE ORDER.

       {¶16} Ms. Barr argues in her second assignment of error that the court of common pleas

erred in failing to review the penalty imposed upon her. Given our resolution of Ms. Barr’s first

assignment of error, it would be premature for this Court to review this argument.

                                                 III.

       {¶17} Ms. Barr’s first assignment of error is sustained to the extent discussed above and

her second assignment of error is premature. The judgment of the Lorain County Court of

Common Pleas is reversed, and this matter is remanded for further proceedings consistent with

this decision.

                                                                             Judgment reversed,
                                                                            and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
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period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                     DONNA J. CARR
                                                     FOR THE COURT




TEODOSIO, P. J.
CONCURS.

CALLAHAN, J.
DISSENTING.

       {¶18} I disagree with the lead opinion’s conclusion that the trial court failed to consider

the merits of the issue raised by Ms. Barr’s first assignment of error. The trial court concluded

that SPBR’s decision on the merits of the appeal from the administrative law judge was “hardly

arbitrary” and noted that SPBR’s decision was “thoughtful, reasonable, and well-measured.”

The trial court applied Henry’s Café, Inc. v. Bd. of Liquor Control, 170 Ohio St. 233 (1959),

which held that a court of common pleas cannot modify a sanction based solely on a finding that

the agency abused its discretion, but must first conclude that an administrative decision is not

supported by reliable, probative, and substantial evidence. Id. at paragraphs two and three of the

syllabus. Having done so, the trial court concluded, in part:

       That said, I agree with [SPBR’s] determination that the evidence, testimony, and
       exhibits that make up the record demonstrate that Barr committed multiple
       instances of misconduct but that she nevertheless should be prospectively restored
       to her prior position without back-pay. As such, based on my determination that
       she cannot appeal a sanction to this Court, her appeal must be denied.
                                                  8


       Simply put, Henry’s Café and its progeny prohibit this Court from reviewing the
       propriety of the decision by [SPBR] to restore Barr to her prior position without
       back-pay. That decision was borne of a desire to harmonize her long years of
       unblemished service against her poor judgment and misconduct developed herein,
       supported by the evidence and testimony contained in the 440 pages of hearing
       transcript.

       Regardless, by restoring Barr to her previous position without back-pay, [SPBR]
       struck a fair, reasonable, and measured balance based upon all of the testimony
       and evidence, much [of] which is not contested. Because this Court finds the
       decision to be supported by reliable, probative, and substantial evidence, and
       what Barr complains of is in reality[] a punishment, this Court cannot review
       [SPBR’s] action on appeal.

(Emphasis added.) In other words, having reviewed the merits of Ms. Barr’s appeal and having

determined that SPBR’s decision was supported by reliable, probative, and substantial evidence,

the trial court acknowledged that it lacked the authority under Henry’s Café to modify the

sanction.

       {¶19} Accordingly, I would review the merits of Ms. Barr’s first and second

assignments of error at this time. I respectfully dissent.


APPEARANCES:

BRENT L. ENGLISH, Attorney at Law, for Appellant.

EUGENE NEVADA, Attorney at law, for Appellee.
