[Cite as Dept. of Youth Servs. v. Grimsley, 2018-Ohio-1530.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

Department of Youth Services,                        :

                 Appellant-Appellant,                :
                                                                      No. 16AP-682
v.                                                   :             (C.P.C. No. 16CV-4441)

Dan Grimsley,                                        :         (REGULAR CALENDAR)

                 Appellee-Appellee.                  :



                                            D E C I S I O N

                                      Rendered on April 19, 2018


                 On brief: Michael DeWine, Attorney General, Erin E. Butcher
                 and E. Joseph D'Andrea, for appellant. Argued: Erin E.
                 Butcher.

                 On brief: B. Zimmerman Law and Brian L. Zimmerman, for
                 appellee. Argued: Brian L. Zimmerman.

                  APPEAL from the Franklin County Court of Common Pleas

BRUNNER, J.
        {¶ 1} Appellant-appellant, Department of Youth Services ("DYS"), appeals from a
judgment of the Franklin County Court of Common Pleas which purports to affirm an order
of the State Personnel Board of Review ("SPBR") disaffirming an order of DYS that removed
appellee-appellee, Dan Grimsley, from his employment with DYS. Because the common
pleas court's decision misstates the SPBR order it purports to affirm, we reverse and
remand this matter for action consistent with this decision.
I. FACTS AND PROCEDURAL BACKGROUND
        {¶ 2} Grimsley was acting in his capacity as an operations manager at DYS's Indian
River Juvenile Correction Facility when he was involved in a physical confrontation with a
youth incarcerated at the facility. The incident was recorded on video. As a result of an
administrative investigation of the incident, DYS issued an order on January 22, 2014
No. 16AP-682                                                                            2


removing Grimsley from his employment based on R.C. 124.34 disciplinary offenses. DYS
stated in its removal order that Grimsley's actions violated DYS Policy 103.17, which
included these rule violations: (1) use of excessive force – without injury, in violation of
Rule 4.09P, (2) failure to follow policies and procedures regarding managing youth
resistance and use of force, in violation of Rule 5.01P, and (3) use of prohibited physical
response, in violation of Rule 6.05P. (June 6, 2016 Record of Proceedings at E2550-H59.)
       {¶ 3} Grimsley timely appealed DYS's removal order to the SPRB, arguing that his
conduct was not excessive under the circumstances. Grimsley, in addition, claimed that the
unit manager on duty at the time of the incident was negligent and this had put him in the
position of having to confront the youth, but the manager had not been disciplined.
Grimsley requested that his 20-year work history as a DYS employee at the Indian River
facility be taken into consideration.
       {¶ 4} A full evidentiary hearing was held before an administrative law judge
("ALJ") on October 20, 2014 and February 9, 2015. Evidence admitted at the hearing
included testimony from several persons, including Grimsley and DYS personnel, along
with documentary evidence, including a video of the incident.
       {¶ 5} On December 2, 2015, the ALJ issued a six-page report and recommendation
detailing her findings of fact and conclusions of law, along with two alternative
recommendations. The ALJ noted that it was DYS's burden to establish certain facts by a
preponderance of the evidence, including the fact Grimsley had committed one of the
enumerated infractions listed in R.C. 124.34 and as set forth in the order of removal. The
ALJ found there was no dispute Grimsley had struck a youth with a closed fist during the
incident that led to Grimsley's removal and that striking a youth is a prohibited use of
physical response. The ALJ did note, however, that the parties agreed "that use of
prohibited forms of physical response are permissible in an emergency defense situation."
(Record of Proceedings at E2550-F96.) The ALJ also stated:
              [DYS's] policies do not explicitly require individuals to wait
              until an assailant has gained a physical advantage over them or
              until they have actually suffered an injury to defend
              themselves, either in an emergency situation or otherwise.
              [DYS's] policies do not cite the use of alternative response
              techniques as a prerequisite to an emergency defense. Policy
              301.05, SOP 301-05-01, and Rule 6.05P all require a subjective
              determination by the individual involved in the situation as to
No. 16AP-682                                                                       3


              whether or not a risk of severe bodily injury or death exists.
              "Severe bodily injury" is not defined by [DYS's] policies.
Id. at E2550-F97. Based on the evidence offered and admitted at the hearings, the ALJ
found reasonable and justifiable Grimsley's determination that an emergency defense was
warranted and that Grimsley's limited use of force was not excessive. The ALJ therefore
concluded that Grimsley's conduct did not violate DYS's policies and recommended that
SPRB disallow his removal by DYS.
       {¶ 6} However, the ALJ also presented SPBR with an alternative to her
recommendation of disaffirmance of the agency's order. The ALJ recommended in the
alternative that the removal be modified to a 30-day suspension. She stated:
              In the event, however, that this Board should determine that
              [Grimsley's] use of a prohibited physical response was
              unjustified, and that his conduct violated [DYS's] policies,
              several mitigating factors should be considered in determining
              whether or not the discipline imposed by [DYS] was
              appropriate. The parties agreed that [Grimsley's] actions did
              not result in any injury to the youth. The parties also agreed
              that [Grimsley] had no history of prior discipline during his 20
              years of employment with [DYS]. Given the lack of definition
              provided in [DYS's] policies and the circumstances of the
              incident described, I find that the discipline imposed by [DYS]
              was too harsh and would alternatively RECOMMEND that
              [Grimsley's] removal be MODIFIED to a 30-day suspension.
Id. at E2550-F98.
       {¶ 7} DYS filed objections to the ALJ's report and recommendation. Grimsley
timely filed his response in opposition to DYS's objections.
       {¶ 8} In a unanimous decision issued April 22, 2016, SPBR adopted the ALJ's
report and her recommendation to disaffirm Grimsley's removal:
              After a thorough examination of the entirety of the record,
              including a review of the Report and Recommendation of the
              Administrative Law Judge, along with any objections to that
              report which have been timely and properly filed, the Board
              hereby adopts the Recommendation of the Administrative Law
              Judge.

              Wherefore, it is hereby ORDERED that [Grimsley's] removal is
              DISAFFIRMED.
Id. at E2550-F99.
No. 16AP-682                                                                         4


       {¶ 9} DYS appealed SPBR's order to the Franklin County Court of Common Pleas,
on the grounds that the order was not supported by reliable, probative, and substantial
evidence and was not in accordance with law.
       {¶ 10} On August 30, 2016, the common pleas court issued a decision that purported
to affirm SPBR's order. Although the common pleas court's decision correctly stated that
SPBR had disaffirmed Grimsley's removal, it erroneously stated that SPBR also had
imposed discipline on Grimsley consistent with the ALJ's alternative recommendation to
modify Grimsley's removal to a 30-day suspension.
       {¶ 11} The record indicates the common pleas court reviewed the underlying facts
contained in the ALJ's report and recommendation, the relevant DYS policies and
procedures, and the applicable law. The common pleas court's decision recited passages
from the testimony heard at the administrative hearings before the ALJ. The common pleas
court stated in its decision:
              Based on these eyewitness accounts, and all other evidence in
              the record, this Court concludes as a matter of law that there is
              reliable, probative and substantial evidence to support SPBR's
              April 22, 2016 Order. Once the reviewing court finds that there
              was reliable, probative and substantial evidence to support an
              agency order, it may not modify a sanction authorized by
              statute. See Henry's Café, Inc., v. Bd. of Liquor Control, 170
              Ohio St. 233 (1959).

              In considering the appropriateness of a sanction or penalty, the
              trial court is limited to determining whether the sanction or
              penalty is within the range of acceptable choices. Even if this
              Court were inclined to be more lenient or more stringent in
              imposing a sanction or penalty, it could not modify a penalty
              imposed by [SPBR] in this case as long as the penalty or
              sanction is statutorily permitted. R.C. 119.09. As a matter of
              law, this Court concludes that the April 22, 2016 SPBR Order is
              in accordance with the law, and the discipline imposed by
              [SPBR] is within the acceptable choices permitted by law. R.C.
              119.09. This Court declines to substitute its judgment for that
              of SPBR.

              In regard to [DYS's] asserted legal error that "OM Grimsley's
              Use of Force was Improper," the record is clear that the
              [SPBR's] April 22, 2016 SPBR's Order made that conclusion of
              law when it adopted the ALJ's Report and Recommendation,
              and modified the discipline imposed from a removal to a 30
              day suspension.
No. 16AP-682                                                                               5


                     … In the event, however, that this [SPBR] should
                     determine that [Grimsley's] use of prohibited physical
                     response was unjustified, and that his conduct violated
                     [DYS's] policies …

                     December 2, 2015 Report and Recommendation

              Consequently, this assertion of legal error is perplexing because
              the SPBR did find that [Grimsley's] use of force was improper
              when it imposed discipline. Moreover, [DYS] is requesting that
              this Court affirm the SPBR Order that imposes discipline
              against him. [DYS's] remaining legal errors, in essence, are
              challenging the level of discipline imposed by SPBR against
              [Grimsley]. Thus, the legal errors asserted by [DYS] are hereby
              OVERRULED.

              Accordingly, this Court concludes that there is reliable,
              probative and substantial evidence supporting SPBR's April 22,
              2016 Order. Furthermore, the [SPBR's] April 22, 2016 Order is
              in accordance with law and the sanction, which is less severe
              than the one imposed by DYS, is authorized by law and is
              within the range of acceptable choices. R.C. 119.09.
              Accordingly, this Court hereby AFFIRMS the [SPBR's] April
              22, 2016 Order and concludes that it is in accordance with law.
(Emphasis sic and added.) (Aug. 30, 2016 Decision & Entry at 9-10.)
       {¶ 12} DYS timely appealed the common pleas court's decision.
II. ASSIGNMENT OF ERROR
       {¶ 13} DYS presents a sole assignment of error for our review:
              The Common Pleas Court abused its discretion when it misread
              and misapplied the Board's order and failed to find that the
              Board's order was unsupported by reliable, probative or
              substantial evidence because Appellee-Appellee Grimsley's use
              of force was excessive and retaliatory.
III. LAW AND DISCUSSION
       {¶ 14} 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 thereof.' " (Emphasis sic.) Lies v. Veterinary Med. Bd., 2
Ohio App.3d 204, 207 (1st Dist.1980), quoting Andrews v. Bd. of Liquor Control, 164 Ohio
St. 275, 280 (1955); Ohio State Univ. v. Kyle, 10th Dist. No. 06AP-168, 2006-Ohio-5517,
¶ 27. The findings of the administrative agency are not conclusive, but the trial court must
No. 16AP-682                                                                            6


give due deference to the agency's resolution of evidentiary conflicts. Univ. of Cincinnati
v. Conrad, 63 Ohio St.2d 108, 111 (1980); Gallagher v. Ross Cty. Sheriff, 10th Dist. No.
06AP-942, 2007-Ohio-847, ¶ 14; Kyle at ¶ 27.
       {¶ 15} Where the evidence support's SPBR's decision, the common pleas court must
affirm SPBR's decision and has no authority to modify the penalty. State ex rel. Ogan v.
Teater, 54 Ohio St.2d 235 (1978); Henry's Case, Inc. v. Bd. of Liquor Control, 170 Ohio St.
233 (1959); Kyle at ¶ 27. Under such circumstances, the common pleas court may not
substitute its judgment for that of SPBR. Id., citing Steinbacher v. Louis, 36 Ohio App.3d
68 (8th Dist.1987), citing Ogan; Traub v. Warren Cty. Bd. of Commrs., 114 Ohio App.3d
486, 491 (10th Dist.1996).
       {¶ 16} An appellate court's review is more limited than that of the common pleas
court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993). In reviewing whether
the common pleas court's determination concerning reliable, probative, and substantial
evidence does or does not support SPBR's order, the appellate court's role is limited to
determining whether the common pleas court abused its discretion. Id.; Gallagher at ¶ 15,
citing Lorain City Bd. of Edn. v. State Emp. Relations Bd., 40 Ohio St.3d 257, 261 (1988).
On the question of whether SPBR's order is in accordance with the law, the appellate court's
review is plenary. Gallagher at ¶ 15. If the common pleas court abused its discretion or
committed legal error, the appellate court may reverse, vacate, or modify the judgment of
the common pleas court. R.C. 119.12. Franklin Cty. Sheriff v. Frazier, 174 Ohio App.3d
202, 2007-Ohio-7001, ¶ 17 (1oth Dist.).
       {¶ 17} The issue on appeal is whether the common pleas court abused its discretion
or committed legal error when it found that there is reliable, probative, and substantial
evidence supporting SPBR's April 22, 2016 order. Pons; Lorain City Bd. of Edn. at 261.
Abuse of discretion is more than an error of law; it implies that a court's decision was
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,
219 (1983).
       {¶ 18} We find that the common pleas court committed legal error in misstating and
thereby misapplying a result not reached by SPBR's April 22, 2016 order. SPBR in its order
states that SPBR had adopted the ALJ's recommendation to disaffirm Grimsley's removal,
remaining silent about the ALJ's alternative recommendation (to disaffirm and modify the
No. 16AP-682                                                                            7


removal to a suspension). In not adopting the alternative recommendation of modification
as set forth by the ALJ, we interpret as a matter of law that SPBR adopted only the first of
two alternative recommendations of the ALJ, reached by agreeing with the ALJ that
Grimsley's use of force was justified and as a result did not violate DYS policies.
       {¶ 19} The common pleas court clearly declined to substitute its judgment for
SPBR's, finding that SPBR's order "is in accordance with the law, and the discipline
imposed by [SPBR] is within the acceptable choices permitted by law." (Decision & Entry
at 9.) However, the common pleas court reached its conclusion based on the erroneous
supposition that SPBR had found that Grimsley's use of force to be improper because it had
imposed discipline on him in the form of a 30-day suspension. SPBR's order did not impose
any discipline on Grimsley, but rather, ordered that the DYS order removing him be
disaffirmed. The common pleas court's misinterpretation of SPBR's order is an error as a
matter of law.
       {¶ 20} The common pleas court apparently perceived DYS's appeal seeking
discipline against Grimsley to be a challenge of some level of discipline imposed by SPBR.
But SBPR imposed no discipline, since it found that Grimsley's use of force was justified
and did not violate DYS policy. While the common pleas court correctly overruled the legal
errors asserted by DYS, it committed legal error in misapplying SPBR's order, leaving us
with no recourse but to reverse and remand for correction of this error.
IV. CONCLUSION
       {¶ 21} Accordingly, we sustain that portion of DYS's assignment of error challenging
the common pleas court's reading and application of the SPBR order. We remand this
matter to the Franklin County Court of Common Pleas to determine as a matter of law
whether there is reliable, probative, and substantial evidence to support SPBR's April 22,
2016 order disaffirming Grimsley's removal.
       {¶ 22} Because we remand this matter for further consideration, we deny as moot
the remainder of DYS's assignment of error.
                                                                        Judgment reversed;
                                                                           cause remanded.


                          BROWN, P.J., and KLATT, J., concur.
