[Cite as Williams v. Ohio Dept. of Edn., 2011-Ohio-6615.]


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

MARK A. WILLIAMS,               :
                                :
     Plaintiff-Appellant,       : Case No. 10CA17
                                :
     vs.                        : Released: December 5, 2011
                                :
OHIO DEPARTMENT OF              : DECISION AND JUDGMENT
EDUCATION, et al.,              : ENTRY
                                :
      Defendants-Appellees.     :
_____________________________________________________________
                          APPEARANCES:

Bradford D. Zelasko, Jeffries, Kube, Forrest & Monteleone Co., L.P.A.,
Cleveland, Ohio, for Appellant.

Mike DeWine, 1, Ohio Attorney General, and Amy Nash Golian, Assistant
Ohio Attorney General, Columbus, Ohio, for Appellees.
_____________________________________________________________

McFarland, J.:

           {¶1} This is an appeal from a Jackson County Court of Common Pleas

judgment entry affirming an administrative decision and order by Appellee,

Ohio Department of Education, permanently revoking Appellant, Mark

Williams’, professional teaching certificate and principal license, and

dismissing his appeal. On appeal, Appellant contends that 1) the trial court’s

denial of his motion for admission of additional evidence was erroneous and


1
    At the time of the filing of this appeal, Richard Cordray was the Ohio Attorney General.
Jackson App. No. 10CA17                                                          2


prejudicial; 2) the trial court erred in determining that the evidence relied

upon by the administrative hearing officer was reliable, probative, and

substantial; and 3) the trial court’s decision is contrary to the manifest

weight of the evidence.

      {¶2} In light of our determination that the trial court did not err or

abuse its discretion in refusing to admit additional evidence on appeal,

Appellant’s first assignment of error is overruled. Further, as we find that

the State’s medical and factual evidence was reliable, and that the board and

trial court’s decisions were supported by reliable, probative and substantial

evidence, Appellant’s second assignment of error is overruled. Finally, as

Appellant raises arguments under his third assignment of error which were

not raised at the common pleas court level, he cannot raise them for the first

time on appeal. Thus, his third assignment of error is overruled.

Accordingly, the decision of the trial court is affirmed.

                                    FACTS

      {¶3} This appeal involves Appellee, Ohio State Board of Education’s,

permanent revocation of Appellant, Mark Williams’, five-year professional

elementary principal license and permanent elementary teaching certificate.

Appellant began his employment as an elementary school teacher with

Wellston City School District in 1992. In 2002, he was made Assistant
Jackson App. No. 10CA17                                                       3


Principal of Bundy Elementary in the Wellston City School District. After

serving in that position for one year, he took the principal’s position, a

position in which he remained until his resignation on August 8, 2007. The

record reveals that Appellant resigned his position under threat of

termination and/or non-renewal, after an investigation by the Wellston City

School Board revealed inappropriate email messages sent from Appellant’s

school computer, inappropriate materials on his school computer,

inappropriate access of websites on his school computer, misuse of school

time, and other unacceptable behaviors and interactions with parents,

teachers, and supervisors.

      {¶4} On August 13, 2007, Superintendent Kaple of the Wellston City

School District, through counsel, C. Allen Shaffer with the law firm of

Bricker & Eckler, sent a “School District, MRDD & Community School

Educator Misconduct Reporting Form” to the Ohio State Board of Education

reporting Appellant’s resignation and a brief history leading up to the

resignation. Subsequently, Appellant received a Notice Letter dated June

18, 2008, from the Ohio State Board of Education advising him of the

board’s intention to limit, suspend or revoke his five year professional

elementary principal license and his permanent elementary school teaching

license and informing him of his right to a hearing. Appellant then
Jackson App. No. 10CA17                                                        4


requested an administrative hearing, which took place over a seven day

period, ending on February 9, 2009.

      {¶5} An administrative hearing officer presided over the seven day

hearing, during which the State presented fifteen witnesses and Appellant

presented two witnesses. Numerous exhibits were also introduced. Of

importance herein, the State presented testimony by Dr. Marjorie Gallagher,

M.D., the psychiatrist who performed a two-part fitness for duty evaluation

on Appellant as part of the investigation previously conducted by the

Wellston City School Board; Brigitte Sollie, an expert forensic computer

analyst obtained by the law firm of Bricker & Eckler as part of the Wellston

school board’s investigation; Joey Rapp, the Wellston school district

information technology professional, as well as several teachers and staff

under Appellant’s supervision.

      {¶6} Dr. Gallagher testified that in her medical opinion, which was to

a reasonable degree of medical certainty, Appellant suffered from bipolar

disorder, and that the Appellant’s behavior raised several red flags. Dr.

Gallagher ultimately testified that in her opinion Appellant was not fit for

duty. Ms. Sollie, the forensic computer analyst testified that she performed

an analysis of Appellant’s then current computer, as well an old computer he

used prior to obtaining a new computer. A report generated by her during
Jackson App. No. 10CA17                                                         5


the Wellston City School Board’s investigation was also admitted into

evidence, which indicated that Ms. Sollie located pornographic content on

Appellant’s school issued computers.

      {¶7} Mr. Rapp also testified regarding the various computer filtering

systems in place within the school district and how internet usage is stored

and can be retrieved by user based upon login information and IP address.

He explained how he went about retrieving Appellant’s email history, old

computer information and the hard drive from his current computer in order

that it could be analyzed by Ms. Sollie.

      {¶8} Several teachers also testified, identifying multiple instances of

unprofessional and bizarre conduct by Appellant, in relation to both staff and

students. For example, testimony was presented that Appellant would

routinely pretend to be picking his nose, accuse others of picking their nose,

make flatulence noises, talk about bodily functions and fluids, would act in

an effeminate manner using a high pitched voice, would ask staff

inappropriate and personal questions, would routinely either encourage or

permit one staff member in particular to perform “pole dances” during staff

meetings, and also permitted chocolate suckers in the shape of male genitalia

to be passed out at a staff meeting.
Jackson App. No. 10CA17                                                        6


      {¶9} The seven days of administrative hearings resulted in over 2000

pages of transcript. On September 22, 2009, the administrative hearing

officer issued a 48 page report and recommendation identifying numerous

instances of conduct unbecoming a teacher under R.C. 3319.31(B)(1). As a

result, the administrative hearing officer recommended that Appellant’s five-

year professional elementary principal license and his permanent elementary

school teaching certificate be revoked. It was further recommended that

Appellant be permanently ineligible to apply for any license issued by the

State Board and that he shall no longer be permitted to hold any position in

any school district in the state that requires a license issued by the State

Board.

      {¶10} Subsequently, on November 10, 2009, the Ohio State Board of

Education passed a resolution adopting the report and recommendation of

the hearing officer. Appellant appealed the decision of the Ohio State Board

of Education to the Jackson County Court of Common Pleas, which found

that the board’s decision was supported by reliable, probative and substantial

evidence and thus affirmed the decision. It is from the decision of the

Jackson County Court of Common Pleas that Appellant now brings his

timely appeal, assigning the following errors for our review.
Jackson App. No. 10CA17                                                         7


                          ASSIGNMENTS OF ERROR

“I.    THE TRIAL COURT’S DENIAL OF PLAINTIFF-APPELLANT’S
       MOTION FOR ADMISSION OF ADDITIONAL EVIDENCE WAS
       ERRONEOUS AND PREJUDICIAL.

II.    THE TRIAL COURT ERRED IN DETERMINING THAT THE
       EVIDENCE RELIED UPON BY THE ADMINISTRATIVE
       HEARING OFFICER WAS RELIABLE, PROBATIVE, AND
       SUBSTANTIAL.

III.   THE TRIAL COURT’S DECISION IS CONTRARY TO THE
       MANIFEST WEIGHT OF THE EVIDENCE.”

                          STANDARD OF REVIEW

       {¶11} The present case involves an administrative appeal to the

Jackson County Court of Common Pleas pursuant to R.C. 119.12. The trial

court reviews an administrative appeal in order to determine whether it is

supported by reliable, probative and substantial evidence and is in

accordance with law. Reliable, probative and substantial evidence has been

defined as: (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.” Contini v. Ohio State Board of Education,

Licking App. No. 2007CA0136, 2008-Ohio-5710 at ¶ 16; citing, Our Place,
Jackson App. No. 10CA17                                                         8


Inc. v. Ohio Liquor Control Comm. (1992), 63 Ohio St.3d 570, 571, 589

N.E.2d 1303.

      {¶12} In determining evidentiary conflicts, the Supreme Court of

Ohio, in University of Cincinnati v. Conrad (1980), 63 Ohio State 2d 108,

407 N.E.2d 1265, directed courts of common pleas to give deference to the

administrative resolution of such conflicts. The Supreme Court noted when

the evidence before the court consists of conflicting testimony of

approximately equal weight, the common pleas court should defer to the

determination of the administrative body, which, acting as the finder of fact,

had the opportunity to determine the credibility and weight of the evidence.

Conrad at 111; see, also Contini at ¶ 17.

      {¶13} On appeal to this Court, the standard of review is more limited.

Unlike the court of common pleas, a court of appeals does not determine the

weight of the evidence. Rossford Exempted Village School Dist. Bd. of Edn.

v. State Bd. of Edn. (1992), 63 Ohio St.3d 705, 707, 590 N.E.2d 1240; see,

also, Contini at ¶ 18. In reviewing the trial court's determination that

Appellee'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. (1992), 80 Ohio App.3d

675, 680, 610 N.E.2d 562. The term “abuse of discretion” connotes more
Jackson App. No. 10CA17                                                         9


than an error of law or judgment; it implies that the court's attitude is

unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983),

5 Ohio St.3d 217, 219, 450 N.E.2d 1140.

        {¶14} Additionally, pertinent to the issues herein, R.C. 3319.31,

entitled “Refusal, limitation, suspension, or revocation of license” provides

in section (B)(1) as follows:

“(B) For any of the following reasons, the state board of education, in
     accordance with Chapter 119. and section 3319.311 of the Revised
     Code, may refuse to issue a license to an applicant; may limit a license
     it issues to an applicant; may suspend, revoke, or limit a license that
     has been issued to any person; or may revoke a license that has been
     issued to any person and has expired:

(1)     Engaging in an immoral act, incompetence, negligence, or conduct
        that is unbecoming to the applicant's or person's position;”

                          ASSIGNMENT OF ERROR I

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

court’s denial of his motion for admission of additional evidence was

erroneous and prejudicial. Appellant claims that his ability to seek

admission of additional evidence is particularly important as he had no right

to prehearing discovery depositions prior to the administrative hearings. In

hearing an administrative appeal, the court of common pleas is confined to

the record certified by the agency. R.C. 119.12. R.C. 119.12 further provides

that:
Jackson App. No. 10CA17                                                        10


“unless otherwise provided by law, the court may grant a request for the
admission of additional evidence when satisfied that such additional
evidence is newly discovered and could not with reasonable diligence have
been ascertained prior to the hearing before the agency. ‘Newly discovered
evidence refers to evidence that was in existence at the time of the
administrative hearing, but which was incapable of discovery by due
diligence; however newly discovered evidence does not refer to newly
created evidence.’ * * * ”

      {¶16} “In interpreting Civ. R. 60(B)(2), which is analogous to R.C.

119.12 as it pertains to newly discovered evidence, [the Fifth District] has

held that the moving party has the burden of demonstrating: ‘(1) that the

evidence was actually “newly discovered”; that is it must have been

discovered subsequent to the trial; (2) that the movant exercised due

diligence; and (3) that the evidence is material, not merely impeaching or

cumulative and that a new trial would probably produce a different result.’ ”

O'Wesney v. State Bd. of Registration For Professional Engineers and

Surveyors, Stark App. No. 2009-CA-00074, 200 -Ohio-6444 at ¶ 79; citing,

Clark v. State Bd. of Registration for Professional Engineers & Surveyors

(1997), 121 Ohio App.3d 278, 287-288, 699 N.E.2d 968.

      {¶17} In the common pleas level appeal, Appellant sought to

introduce 1) an affidavit of Jeffrey Smalldon, Ph.D. with attachment

including his post-hearing letter to Appellant’s counsel at the hearing

suggesting medical board inquiry into Dr. Gallaher’s objectivity and role in
Jackson App. No. 10CA17                                                                               11


the proceeding;2 and 2) counsel’s affidavit identifying a letter to Dr.

Gallagher from the law firm representing the Wellston City School District

Board of Education. Appellee contends that neither of the documents

Appellant sought to introduce, which were affidavits, were newly

discovered, but rather were newly created. We agree.

        {¶18} However, we will nonetheless address the trial court’s refusal to

admit the underlying document referenced by counsel’s affidavit related to

the information provided to Dr. Gallagher. Appellant challenges the trial

court’s refusal to admit a letter, which he claims was discovered after the

administrative hearing, that was provided to Dr. Gallagher by the law firm of

Bricker and Eckler, arguing that the trial court did not employ the proper

analysis when making its decision. Although the trial court’s entry did not

include language indicating whether the proposed additional evidence was

newly discovered or not, the entry stated as follows:

“That hearing resulted in 2,069 pages of transcript and a voluminous amount
of exhibits. The Plaintiff-Appellant was represented throughout the hearing
by counsel. Many witnesses were called on behalf of the Ohio Department
of Education. Approximately 21 witnesses were identified and subpoenaed
by the Plaintiff-Appellant, many of which appeared for the hearing. Out of
the 21 witnesses only two (2) were called to testify. This hearing before the
Ohio Department of Education may not have been the longest hearing had
before said board, but it was certainly one of the longest. This appeal is
brought under Section 119.12 of the Ohio Revised Code. This Court may

2
 Appellant does not address how this affidavit constituted newly discovered evidence or how its admission
would have produced a different result; thus, we do not address it on appeal.
Jackson App. No. 10CA17                                                         12


affirm the findings of the state administration agency if this Court finds that
the order is supported by reliable, probative and substantial evidence and is
in accordance with law. This Court may allow additional evidence to be
admitted, but it is not required to do so. The Plaintiff-Appellant had ample
opportunity to present any information which he had in the hearing before
the state board. The Plaintiff-Appellant decided to chose [sic] not to call
certain witnesses that had been identified and subpoenaed. The trial/hearing
strategy to call or not call witnesses and/or to introduce or not to introduce
matters is something that rests with the party.”

      {¶19} Further, a review of the record reveals that Appellee is correct

in that the letter to Dr. Gallagher was discussed during the administrative

hearing and that Appellant’s counsel conceded at the hearing that he had not

issued the proper subpoenas. As such, this evidence was not discovered

subsequent to trial and does not constitute newly discovered evidence. Thus,

we cannot conclude that the trial court erred or abused its discretion in

denying admission of Appellant’s proposed additional evidence.

Accordingly, Appellant’s first assignment of error is overruled.

                        ASSIGNMENT OF ERROR II

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

trial court erred in determining that the evidence relied upon by the

administrative hearing officer was reliable, probative and substantial. As set

forth above, in reviewing the trial court's determination that Appellee'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.
Jackson App. No. 10CA17                                                                                     13


Roy v. Ohio State Med. Bd. at 680. The term “abuse of discretion” connotes

more than an error of law or judgment; it implies that the court's attitude is

unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore at 219.

         {¶21} While Appellant acknowledges that the State presented

numerous witnesses and a “multitude of exhibits,” Appellant claims that the

State’s medical evidence and factual evidence was unreliable. As to the

medical evidence, Appellant claims that Dr. Marjorie Gallagher’s testimony

was unreliable because the evidentiary material she reviewed prior to her

evaluation of Appellant was provided by Bricker and Eckler, a law firm

hired by the Wellston City Board of Education.3

         {¶22} A review of the record reveals that under the direction of

Superintendent Mr. Kaple, the school information technology employee, Mr.

Rapp, secured copies of Appellant’s emails from his school computer,

Appellant’s old computer, as well the hard drive from the computer

Appellant was using in his office. This information was provided to the law

firm of Bricker and Eckler, which had been hired by the Wellston school

board. Bricker and Eckler in turn obtained the services of computer forensic

analyst, Brigitte Sollie, to perform an analysis of Appellant’s computer

usage. Ms. Sollie performed an analysis and provided a computer
3
 This provision of information by Bricker and Eckler forms the basis of Appellant’s first assignment of
error, wherein Appellant sought introduction of a letter from Bricker and Eckler that was provided to Dr.
Gallagher.
Jackson App. No. 10CA17                                                        14


investigative report dated April 6 to May 8, 2007. Specifically, her report

indicated that she analyzed Appellant’s old computer and also the hard drive

from his then current computer, which had been delivered to Bricker and

Eckler and given to her for imaging. The report indicated that she analyzed

and reviewed the files, carved files out of the unallocated space to recover

any items that had been deleted, extracted files, and found a pornographic

movie. The report further indicated that Ms. Sollie burned the files to a CD

and six DVD’s, which she provided to “Shaffer” at Bricker and Eckler for

review. Ms. Sollie also testified during the administrative hearing regarding

her analysis and findings.

      {¶23} The record also reveals that Appellant underwent a fitness for

duty evaluation, conducted by Marjorie C. Gallagher, M.D., a board certified

psychiatrist. Appellant’s evaluation was conducted in two parts, the first

part taking place on March 8, 2007, prior to the computer evaluation, and the

second part taking place June 13, 2007, after the computer evaluation. As

indicated by Dr. Gallagher, the second part of Appellant’s fitness for duty

evaluation was conducted after additional information had been provided to

her, which “included the results of a computer forensic analysis performed

by an independent computer expert and directed, managed, and analyzed by

C. Allen Shaffer, an attorney with Bricker and Eckler, LLP, on three of the
Jackson App. No. 10CA17                                                                                  15


school computers used by Mr. Williams over the previous year and a half.”4

Thus, it appears from the record that Dr. Gallagher was clear about where

the information she was reviewing came from, and that an attorney with

Bricker and Eckler directed the investigation, with the assistance of a

forensic computer analyst. We cannot conclude, based upon the record, that

Dr. Gallagher was under any misconception regarding the reliability of the

information she utilized during her evaluation of Appellant.

         {¶24} Further, the summary paragraph of Dr. Gallagher’s psychiatric

evaluation of Appellant’s states as follows:

“Mainly because of, but not limited to, the evidence found on Mr.
Williams’s computers; because of Mr. Williams’ symptoms of Bipolar
Disorder, NOS, and Personality Disorder, NOS; and because of Mr.
Williams’ sexually inappropriate behavior, it is my opinion with a
reasonable degree of medical certainty that Mr. Williams is not fit for duty
to work as an elementary school principal or as a teacher. Psychiatric
treatment with psychotherapy and medication management is
recommended.”

Dr. Gallagher further testified at trial, explaining that even after the first part

of the evaluation, prior to being provided with information related to

Appellant’s computer usage, she had already determined that Appellant was

not fit for duty without treatment.

4
 Appellant places much emphasis on the fact the C. Allen Shaffer, an attorney with Bricker and Eckler,
was involved in the analysis of Appellant’s computer, arguing that his involvement resulted in an unreliable
analysis. In fact, it was Shaffer who drafted the letter to Dr. Gallagher, the admission of which was denied
by the common pleas court, and which is the subject of Appellant’s first assignment of error. As such, the
actual letter, though its existence is referenced in Dr. Gallagher’s report and was the subject of testimony
during the administrative hearing, is not part of the record on appeal.
Jackson App. No. 10CA17                                                          16


      {¶25} Although a Bricker and Eckler attorney was involved in the

analysis of Appellant’s computers and allegedly wrote a letter to Dr.

Gallagher providing her with information related to that analysis, there is no

indication that Dr. Gallagher’s evaluation was affected by this fact. Further,

it is clear from the record that Appellant’s computers were, in fact, analyzed

by Brigitte Sollie, a computer forensic analyst, who issued an investigative

report advising that pornography had been found on Appellant’s computer.

Finally, as set forth above, Dr. Gallagher testified during the administrative

hearing that she determined Appellant was not fit for duty even before she

was provided with the computer analysis information, as Appellant refused

to obtain treatment for what, in her opinion, was bipolar disorder.

      {¶26} Appellant also challenges certain information accepted by Dr.

Gallagher to be true, specifically that Appellant’s internet surfing included

visits to sites in foreign countries where a virtual child could be created.

Appellant argues that the State failed to present any evidence that Appellant

actually visited these sites or that visiting such sites is linked with sexual

attraction to children. However, the transcript from the administrative

hearing reveals that when questioned about these internet sites in particular,

Dr. Gallagher stated that she did not base her decision or diagnosis on this
Jackson App. No. 10CA17                                                                                  17


information. For example, the following testimony appears as follows in the

transcript:

“Q.      Disregarding that information about surfing the Eastern Bloc Internet
         sites regarding virtual children, if you did not have that information in
         front of you, would your opinion have changed as to what you had
         under Axis I, possible pedophilia, non-exclusive type?

A.       No.

Q.       And why is that?

A.       Because the other information I had of the children sitting on his lap
         and his giving them candy and the 800 pictures on his computer and
         the nude photograph of the child all would have been red flags.5

Q.       You have mentioned a couple times, and I believe you set forth in
         your report about the candy, and I’m looking also at 8-7A, fourth
         paragraph, the Bundy Lottery. Why is that significant? Why is the
         candy significant?

A.       Because again, pedophiles try to make special relationships with
         children, and one way they do is to give them prizes or gifts to
         establish a closer relationship of that child or to make the child feel
         special, tell the child they’re special. It’s a way of increasing or
         making more intimate a relationship.

Q.       Did you at any time discuss with Mr. Williams the number of prizes
         or the number of times this Bundy Lottery ran or anything of that?

A.       Not any more than what’s already in the report. They would have a
         lucky day every month. He explained when a child did something

5
  The record indicates that Appellant had previously been reported to Children’s Services for having a child
sit on his lap in his office; however, Appellant testified that this was report was unfounded. The record
further identifies that Appellant would keep candy in office which he would give to the students. The
reference to 800 pictures and the nude photograph of the child relate to the information recovered from
Appellant’s computers. Apparently Appellant’s computer had over 800 photographs of students, mainly
from different activities, and also prize winners from the “Bundy Lottery.” Further, a nude photograph of a
child was found on Appellant’s computer, which Appellant claims was sent to him as an email attachment.
The hearing transcript indicates that Appellant had knowledge that this photo was on his computer.
Jackson App. No. 10CA17                                                            18


         good, they would go to the office and get a toy out of the prize box
         that in the office.

Q.       Did this frequency come into play with you as far as the frequency of
         gift giving, or did anything like that have anything to do with making
         any type of significance for your opinion?

A.       Well, I think, first of all, it’s unusual for principals to be giving gifts
         to children, but the fact this was at least once a month and even more
         frequent with all the pictures, I think that’s not normal.”

Thus, Dr. Gallagher testified that even omitting the information related to

surfing foreign country websites, based on other information, her diagnostic

impression still would have been possible pedophilia.

         {¶27} Further, as noted by the hearing officer in her September 22,

2009, report and recommendation:

“The testimony was clear that Dr. Gallagher’s evaluation and subsequent
report was retained at the request of the Wellston City School District. This
request for an evaluation by Dr. Gallagher was separate and apart from the
action initiated by the Department [of Education]. The case against Mr.
Williams concerns the numerous allegations set forth in the Notice Letter, of
which Dr. Gallagher’s finding that Mr. Williams is unfit for duty as an
educator, is only one allegation.”

Based on the foregoing, we cannot conclude that the trial court abused its

discretion in affirming the decision of the Board of Education to

permanently revoke Appellant’s teaching and principal’s license. Therefore,

we reject the first argument raised under Appellant’s second assignment of

error.
Jackson App. No. 10CA17                                                        19


      {¶28} Appellant next argues under this assignment of error that the

State’s factual evidence was unreliable. Although Appellant concedes that

the evidentiary rules are relaxed in the context of administrative hearings,

Appellant contends that the hearing officer “admitted and considered

evidence constituting hearsay on multiple levels and allowed the medical

testimony based upon that hearsay.” Other than referencing Dr. Gallagher’s

reliance on a letter allegedly sent to her from Bricker and Eckler regarding

the computer analysis, which is not in the record before us, as well as Dr.

Gallagher’s reliance on several anonymous statements regarding Appellant’s

workplace behavior, Appellant does not specifically set forth the other

instances of hearsay to which he alleges. Instead, Appellant simply cites us

to his brief filed with the court of common pleas.

      {¶29} As to the Bricker and Eckler letter, we have already noted that

that letter was not admitted during the administrative hearing process, was

properly excluded during the appeal to the common pleas court, and, as

such, is not properly before us for consideration. As to the anonymous

statements referenced by Dr. Gallagher during her psychiatric evaluation of

Appellant, the hearing officer stated as follows in her recommendation and

report:

“* * * Mr. Williams’ counsel correctly states that there was no evidence
presented on some of the issues raised in Dr. Gallagher’s report. This
Jackson App. No. 10CA17                                                        20


administrative hearing action is based upon the evidence presented at the
numerous days of hearings in this case; it is not based upon a report. It is
noted that evidence was present at the administrative hearing on many of the
‘anonymous’ complaints referenced in the report; therefore, for the purposes
of the case before the Board, these complaints are not anonymous.”

Thus, although Dr. Gallagher did utilize several anonymous statements

provided by teachers and staff in conducting Appellant’s evaluation, the

hearing officer made it clear that her decision was based on the testimony

actually presented at the administrative hearings, not on Dr. Gallagher’s

report. Further, several teachers and staff testified during the hearings to

Appellant’s unprofessional, and quite frankly, bizarre workplace behavior,

directed not only toward staff, but also students. As it appears that the

hearing officer relied on the testimony presented, rather than the anonymous

statements, we find no error or abuse of discretion.

      {¶30} Finally, though not properly briefed for this Court, Appellant

references arguments set forth in his trial court brief challenging evidence

related to the following: 1) “joke” emails; 2) staff meetings and activities; 3)

interaction with students; and 4) miscellaneous teacher testimony.

Specifically, in his trial court brief, Appellant set forth arguments with

respect to the following areas of evidence: 1) “joke” emails: “while some

may not find them funny or entertaining, any suggestion that they are badges

of pedophilia lacks merit[;]” 2) staff meetings and activities: “[t]hese
Jackson App. No. 10CA17                                                         21


episodes may well evidence deficiencies in management skills, but it is

submitted that such sporadic occurrences should not be career-ending

events[;]” 3) interaction with students: “[t]he totality of the evidence reveals

that Mark Williams’ humor may be better appreciated by 1st and 2nd graders

than many teachers[;]” and 4) miscellaneous teacher testimony: “it is

submitted that much of the evidence of teacher commentary and complaint

regarding Mark Williams does not carry weight and significance that calls

for the permanent revocation of his teaching credentials . . . unless, of

course, the evidence is viewed as pertaining to a potential pedophile.”

      {¶31} On appeal, Appellant seems to argue that the foregoing

evidence was inadmissible hearsay, relying on the arguments made in his

trial brief. However, a review of Appellant’s trial brief indicates that no

hearsay objections were raised, but rather Appellant challenged the weight

afforded to the evidence by the hearing officer and the Board of Education.

As set forth above, unlike the court of common pleas, a court of appeals

does not determine the weight of the evidence. Rossford Exempted Village

School Dist. Bd. of Edn. v. State Bd. of Edn. at 707; see, also, Contini at ¶

18. Here, it was within the province of the hearing officer and the board to

determine, as the trier of fact, the weight to be afforded this particular

evidence. And, from our perspective, the trial court did not abuse its
Jackson App. No. 10CA17                                                         22


discretion in affirming the board’s decision to revoke Appellant’s teaching

and principal license, which was supported by reliable, probative and

substantial evidence.

       {¶32} Accordingly, we reject the second argument raised under

Appellant’s second assignment of error and accordingly overrule

Appellant’s second assignment of error in total.

                        ASSIGNMENT OF ERROR III

       {¶33} In his third assignment of error, Appellant contends that the

trial court’s decision is contrary to the manifest weight of the evidence and

thus was essentially contrary to law. However, as we have previously stated,

unlike the court of common pleas, a court of appeals does not determine the

weight of the evidence. Id.; see, also, Contini at ¶ 18. In reviewing the trial

court's determination that Appellee'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. at

680.

       {¶34} However, as noted by Appellant, although an appellate court

must afford deference to the administrative resolution of evidentiary

conflicts, the determination of whether an agency’s order is in accordance

with the law is unlimited. Bivins v. Ohio State Bd. of Emergency Med.
Jackson App. No. 10CA17                                                       23


Servs., 165 Ohio App.3d 390, 395, 2005-Ohio-5999, 846 N.E.2d 881. As a

result, Appellant asks this Court to consider whether the trial court’s

decision was contrary to law, based upon the contention that the issue of

whether Appellant saved or downloaded allegedly improper data, or even

knew of the data’s presence on the hard drive was irrelevant to the hearing

officer. Appellant also contends that the hearing officer failed to distinguish

between Appellant’s fitness for duty as a teacher versus as an administrator.

      {¶35} A review of the record reveals that Appellant did not raise these

arguments at the trial court level. “It is a cardinal rule of appellate procedure

that a party cannot assert new legal theories for the first time on appeal.” In

re Banks, Scioto App. No. 07CA3192, 2008-Ohio-2339, at ¶ 10. As such,

Appellant has waived these arguments on appeal and we will not address

them. Thus, Appellant’s third and final assignment of error is overruled.

      {¶36} In light of our determination under Appellant’s second

assignment of error that the trial court’s decision was supported by reliable,

probative and substantial evidence, we cannot conclude that the trial court’s

erred or abused its discretion in reaching its decision. Accordingly, the

decision of the trial court is affirmed.

                                               JUDGMENT AFFIRMED.
Jackson App. No. 10CA17                                                         24


                           JUDGMENT ENTRY

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

      The Court finds there were reasonable grounds for this appeal.

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

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

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

Harsha, P.J. and Kline, J.: Concur in Judgment and Opinion

                                        For the Court,


                                        BY: _________________________
                                            Matthew W. McFarland, Judge




                          NOTICE TO COUNSEL

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