Preview
E1230 - 935
IN THE COURT OF COMMON PLEAS
FRANKLIN COUNTY, OHIO
Sepich Family Limited Partnership 2 =
a o=
Appellant, Case No. 11-CV-007478 2 =
© i
v. Judge Schneider a o
eo F
City of Columbus, Ss oy
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Board of Zoning Adjustment
Appellee.
APPELLEE CITY OF COLUMBUS, BOARD OF ZONING ADJUSTMENT’S
MMA PARTNENSHIP TO ALLOW NEW OR ADDITIONAL EVIDENCE
Appellant Sepich Family Limited Partnership (“Appellant”) has moved to
supplement the record to allow new or additional evidence. The City of Columbus,
Board of Zoning Adjustment (“BZA”) responds as follows. Appellant is entitled to
present a limited amount of additional evidence due to the failure of the BZA to file
with the transcript conclusions of fact supporting the BZA’s decision to grant
variances and a special permit to Columbus Bituminous Concrete Corp. However,
for the following reasons, Appellant is not entitled to a hearing with a scope beyond
that necessary to “fill in the gaps” created by the deficiency of failing to make
conclusions of fact.
A. R.C. 2506.03
R.C. 2506.03 provides as follows:
(A) The hearing of an appeal taken in relation to a final order, adjudication,
or decision covered by division (A) of section 2506.01 of the Revised Code
shall proceed as in the trial of a civil action, but the court shall be confined to
the transcript filed under section 2506.02 of the Revised Code unless it
3E1230 - 936
appears, on the face of that transcript or by affidavit filed by the appellant,
that one of the following applies:
(1) The transcript does not contain a report of all evidence admitted or
proffered by the appellant.
(2) The appellant was not permitted to appear and be heard in person, or
by the appellant's attorney, in opposition to the final order, adjudication, or
decision, and to do any of the following:
(a) Present the appellant's position, arguments, and contentions;
(b) Offer and examine witnesses and present evidence in support;
(c) Cross-examine witnesses purporting to refute the appellant's position,
arguments, and contentions;
{d) Offer evidence to refute evidence and testimony offered in opposition
to the appellant's position, arguments, and contentions;
(e) Proffer any such evidence into the record, if the admission of it is
denied by the officer or body appealed from.
(3) The testimony adduced was not given under oath.
(4) The appellant was unable to present evidence by reason of a lack of the
power of subpoena by the officer or body appealed from, or the refusal, after
request, of that officer or body to afford the appellant opportunity to use the
power of subpoena when possessed by the officer or body.
(5) The officer or body failed to file with the transcript conclusions of fact
supporting the final order, adjudication, or decision.
(B) If any circumstance described in divisions (A)(1) to (5) of this section
applies, the court shall hear the appeal upon the transcript and additional
evidence as may be introduced by any party. At the hearing, any party may
call, as if on cross-examination, any witness who previously gave testimony
in opposition to that party.
Appellant's arguments
Appellant argues that it is entitled to supplement the record to allow new or
additional evidence for four specific reasons. Each one is discussed individually.E1230
- 937
1. Appellant argues that the BZA failed to provide a complete transcript of
the proceedings.
Appellant argues that it is entitled to supplement the record because “...the
City of Columbus provided only part of the Transcript of the papers, testimony and
evidence offered heard and taken into consideration by the Board of Zoning
Adjustment in issuing the decision appealed.” Appellant’s reasoning behind this
argument is the List of Documents and Certification of Record reads, “I hereby
certify that the following documents are part of the transcript of the papers,
testimony and evidence offered, heard and taken into consideration by the Board of
Zoning Adjustment in issuing the decision appealed herefrom...”
Appellant's overly technical argument is that the filing states the words “are
part of the transcript” and this means that the BZA failed to file the complete record
of the proceedings. However, read in context, it is apparent that the entire record
was filed. In fact, the BZA provided a complete transcript of the proceedings.
Appellant is unable to demonstrate that any portion of the proceedings was omitted
from the record and Appellant’s argument on this basis fails.
2. Appellant argues that the transcript does not contain a report of all the
evidence admitted or proffered by the Appellant.
a. The PowerPoint presentation
Appellant argues that it is entitled to supplement the record because Joan
Cochran gave a PowerPoint presentation during her testimony before the BZA and
the DVD of that PowerPoint presentation was not included as an exhibit in the
record. Ms. Cochran never moved to enter the PowerPoint presentation as an
exhibit and never proffered such evidence. The PowerPoint presentation wasE1230
- 938
simply a visual aid that was used during Ms. Cochran’s testimony. Accordingly,
Appellant’s argument to supplement the record on this basis fails.
5 The amended position paper
Appellant next argues that it is entitled to supplement the record because it
offered a position paper containing 33 exhibits to the BZA for the April 26 BZA
hearing, offered a “Supplemental Position Paper” to the BZA for the May 24 BZA
hearing, and only the “Supplemental Position Paper” is entered into the record for
the May 24 BZA hearing. The April position paper containing the 33 exhibits is not
included in the record.
Appellant’s argument is misleading. A review of the record reveals that the
May position paper is not titled a “Supplemental Position Paper” but rather is titled
an “Amended Position Paper.” Appellant amended its position paper, but
apparently forgot to attach exhibits to its amended paper. Appellant made an error.
The BZA did not. The amended position paper was rightfully included as part of the
record. Appellant did not attach the exhibits to its amended paper and did not
attempt to either enter or proffer the exhibits as evidence at the hearing.
Accordingly, Appellant's argument to supplement the record to include either the
prior position paper or its attached exhibits fails.
3. Appellant argues that the transcript does not contain a conclusion of
fact supporting the final order, adjudication, or decision.
Appellant next argues that the BZA failed to file with the transcript
conclusions of fact supporting the BZA’s decision to grant variances and a special
permit to Columbus Bituminous Concrete Corp. Appellant is correct. The transcript
lacks appropriate conclusions of fact.E1230
- 939
A common pleas court should, when faced with a transcript of proceedings
lacking appropriate conclusions of fact, hold an evidentiary hearing to establish the
factual basis for the decision being appealed. Aria’s Way, LLC v. Bd. of Zoning
Appeals, 173 Ohio App. 3d 73, 79 (Ohio Ct. App., Lake County 2007). However,
Appellant does not have a right to a de novo hearing; rather, “[t]he purpose of R.C.
2506.03 is to allow the trial court to conduct an evidentiary hearing to ‘fill in the
gaps’ [if] the transcript is deficient or incomplete.” Moody v. Westerville City School
Dist. Bd. of Edn., Franklin App. No. 07AP-551, 2008-Ohio-591, at {| 14 (attached as
Exhibit 1), quoting Workman v. Franklin Cty. Dist. Bd. of Health (Mar. 27, 2001),
Franklin App. No. OOAP-905, 2001 Ohio App. LEXIS 1418 (attached as Exhibit
2)(internal quotation omitted).
As applied to the instant case, the deficiency, or “gap,” is the lack of
conclusions of fact. Filling in this gap does not require cross-examination of
witnesses or any additional evidence, but only the opportunity for the parties to
propose or argue what this Court should find those conclusions of fact to be based
on the evidence presented.
4. Appellant argues that the BZA did not allow Appellant or Appellant's
counsel to cross examine witnesses
Appellant next argues that the BZA did not allow Appellant or Appellant's
counsel to cross examine witnesses at the hearing. The record reflects that
Appellant and Appellant’s counsel had ample opportunity to present Appellant's
case. No attempt to cross-examine witnesses was made. Furthermore, no objection
regarding cross-examination was raised at the hearing, and that issue has been
waived accordingly. The objection from an “unknown speaker” from the audienceE1230
- 940
was much more general than what Appellant is now representing to the Court
(“You've given two-thirds of the time to the applicant, and I’m just going to formally,
on the record, object.” Tr. p. 79).
The Tenth District has held that, “[glenerally, a party waives the right to
appeal an issue that could have been but was not raised in earlier proceedings. This
principle has been applied in appeals from administrative agencies." Krumm v.
Upper Arlington City Council, Franklin App. No. OSAP-802, 2006-Ohio-2829, at J 44
(attached as Exhibit 3), quoting MacConnell v. Ohio Dept. of Commerce, Franklin App.
No. 04AP-433, 2005-Ohio-1960 (attached as Exhibit 4). That waiver of error has
been spccifically applied to the lack of/prohibition against cross-examination at the
administrative level. Neague v. Worthington City Sch. Dist. (1997), 122 Ohio App.3d
433, 441-42.
c Conclusion
Appellant is not entitled to a “do over” evidentiary hearing. The sole purpose
of an evidentiary hearing in this case should be for the Court to establish findings of
fact based on the evidence presented.E1230
- O41
Respectfully submitted,
CITY OF COLUMBUS, DEPARTMENT OF LAW
RICHARD C. PFEIFFER, JR., CITY ATTORNEY
J 4
Westley M. Phillips (0077728)
Assistant City Attorney
90 West Broad Street, Room 200
Columbus, Ohio 43215
(614) 645-7385
(614} 645-6949 (fax)
wmphillips@columbus.gov
Counsel for Appellee
City of Columbus, Board of Zoning Adjustment
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing was scrved by
First-Class US. Mail, postage prepaid, this 9 day of August, 2011, upon the following:
David A. Skrobot
John C. Ridge
Fisher, Skrobot & Sheraw, LLC
471 East Broad Street, Suite 1810
Columbus, Ohio 43215
Jeffrey L. Brown
Smith and Hale LLC
37 West Broad Street, Suite 725
Columbus, Ohio 43215
Westley M. PhillipsE123
0 - Q42
Page |
2008 Ohio 591, *: 2008 Ohio App. LEXIS 495, **
Ryan Moody, Appellant-Appellant, v. Westerville City School District Bourd of
Education, Appeltce-A ppellee.
No. 07AP-551
COURT OF APPEALS OF OHIO, TENTH APPELLATE DISTRICT, FRANKLIN
COUNTY
2008 Ohio 591; 2008 Ohio App. LEXIS 495
February 14, 2008, Rendered
PRIOR HISTORY: [**1]
APPEAL from the Franklin County Court of Com-
mon Pleas. (C.P.C. No. 06CV-7355).
DISPOSITION: — Judgment affirmed.
COUNSEL: John M. Gonzales, LLC, and John M.
Gonzales, for appellant.
Bricker & Eckler LLP, Laura G. Anthony and Jennifer
A. Flint, for appellee.
JUDGES: McGRATH, P.J. PETREE and TYACK, JJ.,
concur.
OPINION BY: McGRATII
OPINION
(REGULAR CALENDAR)
OPINION
McGRATH, P.J.
[*P1] Appellant, Ryan Moody. appeals from the
judgment of the Franklin County Court of Common
Pleas affirming the order of appellee, the Westerville
City School District Board of Education ("the Board"),
expelling appellant from school for 28 days, and finding
that said order is supported by reliable, probative and
substantial evidence, is not unconstitutional, and is in
accordance with law.
[*P2] On April 5, 2006, a ten-day suspension was
imposed against Ryan Moody, a sophomore student at
Westerville Central High School. ‘The notice indicated
the suspension grounds as disruption of school, insubor-
dination, assault, harassment and violation of school
rules resulting from appellant's alleged inappropriate and
unwanted contact with a female student (“female stu-
dent”).
[*P3] This incident came to light when Student 1
approached Assistant Principal Michelle Blackley on
April 3, 2006, with concerns [**2] about alleged inap-
propriate contact between appellant and female student. '
Student | reported that female student confided in him
that she was very upset about two incidents with appel-
lant, in which appellant made unwanted and inappro-
priate advances. Student | related to Ms. Blackley that
female student was not aware that Student | was coming
to talk to her, and that female student had also confided
in another friend, Student 2, about these alleged incidents
with appellant.
1 For purposes of anonymity, the other stu-
dents involved will be referred to as Student |
and Student 2.
[*P4] After speaking with Student 1, Ms. Black-
ley relayed the information to Dean of Students Tron
Smith and Principal Todd Meyer. Mr. Smith and Ms.
Blackley agreed that Ms. Blackley would speak with
female student and Mr. Smith would speak with appel-
lant. In speaking with Ms. Blackley, female student de-
scribed two separate incidents of unwanted contact with
appellant that essentially consisted of appellant kissing
and trying to touch female student despite her protesta-
tions. According to female student, these incidents oc-
curred once in an art room and once in the locker area.
After their conversation, Ms. Blackley [**3] described
female student as being "very upset." Ms. Blackley also
talked to Student 2, who confirmed that female student
confided in her about being upset by two occasions with
appellant. When asked why she did not inform anyone
about this matter, female student indicated it was because
she was taught to handle things herself.
[*P5] On April 3, 2006, appellant received a no-
lice of possible suspension. In talking to Mr. Smith, ap-
pellant denied any inappropriate contact, but admitted to
hugging and kissing female student at school, and indi-
cated it was consensual. Mr. Smith explained that he
instructed appellant not to discuss the matter with any
other students, Principal Meyer also spoke with appellant
EXHIBIT
|E1230
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Page 2
2008 Ohio $91, *; 2008 Ohio App. LEXIS 495, **
on April 4 and April 5, 2006, Appellant again admitted
to hugging and kissing female student in school and de-
scribed that female student jnitiatcd the kissing. Appel-
lant at first denied that he discussed the matter with any-
one, and then later admitted he showed the notice of
suspension to a friend and to female student and asked
female student if she was mad at him. Thereafter, by
letter dated April 5, 2006, Principal Meycr nutified ap-
peltant’s parents that appellant would be suspended for
[**4] ten days. No appeal was taken from the suspen-
sion.
[*P6] A letter dated April 17, 2006, indicated ex-
pulsion was being considered. The letter explained a
hearing was set for April 21, 2006, and would be con-
ducted by the Superintendent's designee, Mr. Hershiser,
the Executive Director of Student Activities, Safety and
Communication. Present at the April 21, 2006 hearing
were appellant, his parents, his counsel, Mr. Smith, Ms.
Blackley, and Principal Meyer. After the hearing, expul-
sion was recommended. A notice of expulsion was sent
by the Superintendent. The Superintendent's decision
was appealed to the Board, and the Board's designee,
Kevin Hoffman, held a hearing on May 8, 2006. Afier
the hearing, Mr. Hoffman issued findings of fact and
conclusions, which recommended the Board uphold the
28-day period of expulsion with modifications. Appellant
then appealed to the Franklin County Court of Common
Pleas in accordance with R,C, 2506.04.
[*P7| Pursuant to R.C. 2506.03, appellant filed an
affidavit from his mother, Tracy Moody, requesting that
the trial court consider additional evidence beyond the
administrative record due to inadequacies in the Board's
hearing. Appellant also scrved interrogatories [**5] and
a request for the production of documents, to which the
Board objected. Upon review of the administrative
record and the parties’ argumenis, the trial court issued a
discovery order captioned "DECISION AND ENTRY
GRANTING IN PART AND DENYING IN PART
APPELLANT'S REQUEST FOR AN EVIDENTIARY
HEARING; GRANTING IN PART AND DENYING IN
PART APPELLEE'S MOTION FOR A PROTECTIVE
ORDER, FILED ON JUNE 30, 2006, AND ESTAB-
LISHING BRIEFING SCLIEDULE,” which in essence
(1) denied appellant's requesi for a de novo hearing; (2)
allowed appellant to subpoena female student to testify at
a hearing; (3) allowed appellant the opportunity to refute
female student's testimony; (4) allowed appellant to take
the deposition of female student, and (5) limited appel-
lant's discovery to the deposition of female student. (Oct.
17, 2006 Entry.)
[*P8] Appellant, however, did not depose female
student, or take the testimony of female student at an
evidentiary hearing before the trial court. Therefore, the
trial court determined the matter based on the adminis-
trative record and the partics' written arguments. On May
21, 2007, the tial court affirmed the decision of the
Beard. This appeal followed, and appellant brings the
[**6] following three assignments of error for our re-
view:
Assignment of Error No. |
THE TRIAL COURT ERRED BY
DENYING DISCOVERY TO APPEL-
LANT AND BY LIMITING THE
RECORD ON APPEAL TO THE AD-
MINISTRATIVE RECORD.
Assignment of Error No. 2
THE TRIAL COURT ERRED IN
FAILING TO FIND THAT THE
SCHOOL BOARD'S DECISION WAS
UNCONSTITUTIONAL.
Assignment of Lrror No. 3
THE TRIAL COURT ERRED BY
FAILING TO FIND ‘THAT THE
SCHOOL BOARD'S DECISION WAS
ARBITRARY, CAPRICIOUS AND NOT
BASED UPON RELIABLE EVIDENCE.
[*P9] In his first assignment of error, appellant
contends the trial court erred by denying discovery and
limiting the record on appeal to the administrative
record, Because female student's father was a volunteer
coach for the high school baseball team, and was present
during the interviews with his daughter by school offi-
cials, appellant suggests there was an issue as to whether
the investigation of the incident was fair and impartial.
According to appellant, he did not have the ability during
the administrative process to discover the extent of the
“principal and assistant principal's lack of impartiality.”
(Appellant's brief, at 5.) Additionally, because he lacked
subpoena powers during the administrative process,
[**7] appellant asserts he was denied the ability to
cross-examine witnesses and/or challenge the testimony
of female student and the other students who did not tes-
tify at the hearing.
[*P10] We note initially that the trial court did not
simply deny appellant's request to submit additional evi-
dence and limit the record on appeal to the administrative
record. Instead, the trial court denied in part, and granted
in part appellant's request for an evidentiary hearing, and
denied in part, and granted in part the Board's motion for
a protective order. ‘This was done after the parties briefed
the issues and the trial court stayed discovery until it
could review the administrative record for deficiencies.E1230
The trial court reviewed R.C. 2506.03, which provides in
part:
- 944
2008 Ohio 591, *; 2008 Ohio App. LEXIS 495, **
(A) The hearing of an appeal taken in
relation to a final order, adjudication, or
decision covered by division (A) of sec-
tion 2506.01 of the Revised Code shall
procced as in the trial of a civil action, but
the court shall be confined to the tran-
script filed under section 2506.02 of the
Revised Code unless it appears, on the
face of that transcript or by affidavit filed
by the appeilant, that onc of the following
applies:
(1) The transcript [**8] does not
contain a report of all evidence admitted
or proffered by the appellant.
(2) The appellant was not permiued
to appear and be heard in person, or by
the appellant's attomey. in opposition to
the final order, adjudication, or decision,
and to do any of the following:
(a) Present the appellant's position,
arguments, and contentions;
(B) If any circumstance described in
divisions (A){1) to (5) of this section ap-
plies, the court shall hear the appeal upon
the transcript and additional evidence as
may be introduced by any party. At the
hearing, any parly may call, as if on
cross-cxamination, any witness who pre-
viously gave tcslimony in opposition to
that party.
Page 3
[*P11] Recognizing appellant's lack of subpoena
power over female student, the trial court held:
Accordingly, a de novo hearing will
not be afforded to the Appellant. Rather,
the Appellant will be permitted to sub-
poena the alleged female victim to testify
at a hearing before the Court. At the
hearing, the Court will also give {appel-
lant] the opportunity to refute the alleged
victim's testimony, if he wishes to do so.
See B.C. 2506.03(4)(1)(a).
(Oct. 17, 2007 Entry, at 5.)
[*P12] With respect to the Board's motion for
protective order the trial court stated:
(b) Offer and examine witnesses and
present evidence in support:
(c) Cross-examine witnesses pur-
porting to refute the appellant's position,
arguments, and contentions;
(d) Offer evidence to refute evidence
and testimony offered in opposition to the
appellant's position, arguments, and con-
tentions;
(e) Proffer any such cvidence into the *
record, if the admission of it is denied by
the officer or body appealed from.
(3) The testimony adduced was not
given under oath.
(4) The appellant was unable to
present evidence by reason of a lack of
the power of subpoena by the officer or
body appealed from, or the refusal, after
request, of that officer or body to afford
the appellant opportunity to use the power
of subpocna when possessed by the offic-
er or body.
(5) The officer or body failed to file
with the wanscript conclusions of fact
supporting the’ final order, [**9] adjudi-
cation, or decision.
Since the Court will allow Appellant to
present limited additional evidence, Ap-
pellant also will be permitted to take the
deposition of the alleged female victim.
Appellant also has requested the op-
portunity to conduct discovery on, among
other things, the alleged impartiality of
the hearing officer, [**10] whether fap-
pellant's] conduct caused the alleged vic-
tim to experience anxiety and/or depres-
sion, and other issues that "might" have
affected the due process afforded to |ap-
pellant]. The Court's review of the record
indicates that such additional discovery is
unnecessary and not warranted under R.C.
Chupter 2506. Ai the Board hearing. [ap-
pellant's] counsel questioned the district's
witnesses about issues of alleged impar-
tiality. Whether the alleged victim expe-
rienced anxiety or depression is immateri-
al to the question of whether [appellant}
violated the Code of Student Conduct.
Discovery in this case shall be limited to
the deposition discussed in the preceding
paragraph.E1230 - 945
Page 4
2008 Ohio 591, *: 2008 Ohio App. LEXIS 495, **
(Id. at 6.)
[*P13] Because appellant filed an affidavit stating
the circumstances described in 2.C, 2506.03(A)(4), ap-
pellant contends the trial court "was not confined to the
transcript,” and that the only restriction on his presenta-
tion of evidence should have been to that which was Te-
levant to the mutter at hand. (Appellant's Brief at
pellant further contends that the trial court's restrictive
reading of the statute, i.e., that additional evidence be
limited to deficiencies in the record, bears no support,
and that [**1}] he was entitled to a de novo hearing. In
support of his position, appellant cites to Neague v.
Worthington City School Dist. (1997), 122 Ohio App.3d
433, 702 N.E.2d 107, and Dawson v. Richmond Heights
Local School Bd. (1997), 121 Ohio App.3d 482, 700
N.E.2d 359.
[*P14] We, however, find that the statute itself
refutes appellant's position. A full reading of the statute
clearly does not grant a right to a de novo hearing. Fur-
ther, as this court has stated. "[t]he purpose of RC.
2506.03 is to allow ‘the trial court to conduct an eviden-
liary hearing to “fill in the gaps” [if] the transcript is de-
ficient or incomplete." Workman y, Franklin Cty. Dist.
Bd. of Health (Mar. 27, 2001), Franklin App. No.
O0AP-905, 2001 Ohio App. LEXIS 1418 , quoting Eck-
meyer v. Kent City School Dist. Bd. of Edn. (Nov. 3,
2000), Lake App. No 99-P-0117, 2000 Ohio App. LEXIS
5123, See, also, Price v. Magaretra Twp. Bd. of Zoning
Appeals, Erie App. No. E-04-023, 2005 Ohio 1778, at
P30 (explaining that where an appellant files an affidavit,
alleging deficiencies in an administrative hearing, the
common pleas court must consider this and afford the
appellant a hearing to correct the deficiencies outlined in
RC. 2506.03): Bay v. Gallia-Vinton Educ. Serv. Cir,
Gallia App. No. 02CA9, 2003 Ohio 7335 (noting |**12]
that where a transcripi is incomplete, X.C. 2506.03 pro-
vides for the trial court te conduct a hearing to fill in the
gaps); Bussey v. Portsmouth Metro, Hous. Auth. (Nov.
20, 1993), Scioto App. 92 CA 2059, 1993 Ohio App.
LEXIS 5988 (holding that R.C. 2506.03 does not grant a
right to a de novo hearing before the common pleas
coun); Wickliffe Firefighters Assn. v. Wickliffe (1990),
66 Ohio App.3d 681, 685, 586 N.E.2d 133 (stating that
"R.C. Chapter 2506 appeals are limited to the transcript
of the administrative body and to corrections of that
transcript, as provided in K.C. 2506.03").
[*P15] Appellant cites Neague and Dawson for
the proposition that the affidavit filed by appellant's
mother entitled him to a de novo hearing before the trial
court. In Neagve. a student was suspended from school,
and on appeal, the trial court limited the record solely to
the administrative record. This court held it was error for
the trial court not to permit additional evidence pursuant
to RC. 2506.03, because appellant established he was
unable to conduct cross-examination of one of the wit-
nesses at the administrative hearing. Therefore, the mat-
ter was remanded to the trial court "for the allowance of
additional evidence." Id. However, nothing in [**13)
Neague suggests this court's endorsement of a de novo
hearing due to deficiencies in an administrative record.
Rather, this court found only that the trial court erred in
not allowing any additional evidence after a deficiency in
the administrative record had been established. Similarly,
in Dawson, the Eighth District found that it was error for
the trial court 10 not hold a hearing on the appellant's
affidavit filed pursuant to &.C. 2506.03. But, again, there
is no mention that a de nove hearing is required despite
the appellant's suggestion that he was entitled to such. In
conclusion, we find no merit to appellant's position that
he was entitled to de novo hearing before the trial court.
[*P16] Our next inquiry then concerns whether
appellant established deficiencies in the record for which
he, now claims on appeal that he was prohibited from
conducting discovery and presenting evidence on appeal.
Appellant asserts his due process rights were violated by
the lack of impartiality, and that his due process rights
“may” have been violated through potential “procedural
defects" with respect to how this matter was handled.
(Appellant's bricf, at 5.) According to appellant, only
through discovery [**14] would he have been able to
obtain the needed information.
[*P17] The affidavit submitted by appellant al-
leges general deficiencies concerning the circumstances
listed in R.C. 2506.03, in that he was not permitted to
appear and cross-examine witnesses, he was not permit-
ted to offer evidence to refute evidence against him, and
he lacked subpoena power. With respect to appellant's
argument that he was unable to explore the impartiality
of the hearing officer and that there “may” have been
other procedural defects in this matter, as the trial court
noted, appellant's counsel questioned the Board's wit-
nesses about alleged impartiality. Ms. Blackley, Mr.
Smith, Mr. Hershiser and Principal Meyer were asked at
the Board hearing of the role, if any, the status of female
student's father played in cither the investigation or the
decision-making process. In fact, Ms. Blackley, Mr.
Smith and Mr. Hershiser testified they were unaware that
female student's father was a volunteer baseball coach at
the time this matter was being handled. Therefore, as the
trial court correctly found, there was no basis under &.C.
2506.03 to permit additional evidence on this issuc.
(*P18] Appellant further argues that he was not
[**15] able to cross-examine a number of witnesses or
challenge testimony due to the Board's reliance on hear-
say. As an example, appellant refers to the fact that nei-
ther female student, nor Student | and Student 2 testifiedE1230
Q46
Page 5
. 2008 Ohio 591. *; 2008 Ohio App. LEXIS 495, **
at the hearing, but their hearsay statements were relied
‘on by the hearing officer. We note that other than the
inability to compel the testimony of female student, this
issue was not raised at the administrative level, and as
such, it is waived. Stanger v. Worthington (Sept. 23.
1997), Franklin App. No. 96APE12-1622, 1997 Ohio
App. LEXIS 4355 (holding that appellant's error of failure
to swear witnesses, issues of examination and
cross-examination, and hearsay testimony were not ob-
jected to or otherwise raised at the administrative level
and were therefore waived).
[*P19] Moreover, as the Board contends, reliance
by an administrative agency on hearsay is not a defect
listed under R.C. 2506.03, and administrative agencies
are generally not subject to the Rules of Evidence, in-
cluding those related to hearsay. Sce, Duersam v. Ga-
hanna (Sept. 30, 1997), Franklin App. Na.
96APF 12-1766, 1997 Ohio App. LEXIS 4468 . (In an
appeal pursuant to R.C. Chapter 2506, the court held that
as a general rule, administrative agencics are not bound
[**16] by the strict rules of evidence und the hearsay rule
is relaxed in administrative proceedings.) Further, the
Sixth Circuit Court of Appeals has held there is no denial
of duc process by not being permitted to cross-examine
one's student accusers. Newsome v. Batavia Loc. Schuol
Dist. (C.A.6, 1988), 842 F.2d 920. The court in Newsome
stated:
The value of cross-examining student
witnesses in school disciplinary cases,
however, is somewhat muted by the fact
that the veracity of a student account of
misconduct by another student is initially
assessed by a school administrator -- in
this casc, the school principal -- who has,
or has available to him, a particularized
knowledge of the student's trustworthi-
ness. The school administrator gencrally
knows firsthand (or has access to school
records which disclose) the accusing stu-
dent's disciplinary history, which can
serve as a valuable gauge in evaluating
the beticvability of the student's account.
Additionally, the school administrator of-
ten knows, or can readily discover,
whether the student witness and the ac-
cused have had an amicable relationship
in the past. Consequently, the process of
cross-examining the student witness may
often be merely [**17] duplicative of the
evaluation process undertaken by the in-
vestigating school administrator.
id. at 924 (in. omitted); see, also, Due v. Bd. of Edn. of
the Elvria City Schools (C.A.6, 1988) No. 96-4008, 1998
US. App. LEXIS 10783; Beavers v. Anthony Wayne
Schools Bd. of Edn. (Apr, 19, 1991), Lucas App. No.
L-89-300, 1991 Ohio App. LEXIS 1718.
[(*P20] In his fina) argument, appellant asserts his
lack of subpoena power prevented him from calling wit-
nesses. However, with the exception of female student,
this issue was also not raised at the administrative level.
The trial court though recognized the lack of subpoena
powcr, and thereby did allow appellant to depose female
student and to call her to testify at an evidentiary hearing.
Appellant chose not to do so.
[*P21] We find the trial court permitted appellant
to "fill in the gaps" through limited discovery, and no
abuse of discretion in the trial court's discovery order.
Accordingly, we overrule appellant's first assignment of
error.
[*P22] Prior to reviewing appellant's remaining
two assignments of crror, we recall the applicable stan-
dard of review for both the trial court and this court from
an administrative appeal brought pursuant to R.C. Chap-
ter 2506. In an appeal pursuant to RC. Chapter 2506,
[**18] the court of common pleas may find that the or-
der, adjudication, or decision is "unconstitutional, illegal,
arbitrary, capricious, unreasonable, or unsupported by
the preponderance of substantial, reliable, and probative
.evidence on the whole record." &.C. 2506.04. Consistent
with its findings, the court of common pleas may “af-
firm, reverse, vacate, or modify the order, adjudication,
or decision, or remand the cause to the officer or body
appealed from with instructions to enter an order, adju-
dication, or decision consistent with the findings or opi-
nion of the court.” Id.
[*P23] In conducting its review, the common
pleas court is to give due deference to the agency's reso-
lution of evidentiary conflicts, and not “blatantly substi-
tute its judgment for that of the agency." Dudukovich v.
Lorain Metro, Hous. Auth. (1979), 58 Ohio St.2d 202,
207, 389 N.E.2d 1113. As such, the common pleas court
is required to affirm the agency's decision if it is sup-
ported by a preponderance of reliable, probative and
substantial evidence. Id.
[*P24] The standard of review to be applied by
the court of appeals is more limited in scope. Barristers,
inc, v. Westerville City Council, Franklin App. No.
03AP-1073, 2004 Ohio 2533. at PI, ching [**19]
Henley v. Youngstown Bd. of Zoning Appeals (2000). 90
Qhio St.3d 142, 2000 Ohio 493, 735 N.E.2d 433. Our
review is limited to the issue of whether the trial court
abused its discretion in finding that a preponderance of
reliable, probative and substantial evidence exists to
support the decision of the agency. /d. at P/3, citing Lo-E1230
- Q47
Page 6
2008 Ohio 591, *; 2008 Ohio App.’ LEXIS 495, **
rain City School Dist, Bd. of Edn. v. State Emp. Relations
Bd. (1988), 40 Ohio St.3d 257, 533 N.E.2d 264, See,
also, Gasper v. Washington Twp., Franklin App. No.
O2AP-1192, 2003 Ohio 3750, appeal not allowed, /00
Ohio St. 3d 1507, 2003 Ohio 6161, 799 N.E.2d 186, cit-
ing Elbert v. Bexley Planning Comm. (1995), 108 Ohio
App.3d 59, 66, 670 N.E.2d 245, appeal not allowed, 75
Ohio St. 3d 1477, 663 N.E.2d 1304.
[*P25] In his second assignment of error, appel-
lant contends the Board's decision was unconstitutional
because: (1) the officials investigating the allegations
‘were not impartial; (2) the assistant principal was not
properly authorized to suspend students; (3) appellant
had a due process right to appear in person before the
superintendent to challenge the reasons for the expulsion;
and (4) the Board's standard of review is supposed to be
de novo.
[*P26] As undcr his first assignment of error, ap-
pellant again suggests the’investigation of female siu-
dent's allegations [**20] was not impartial because of
her father’s status as a volunteer baseball coach for the
high school. However, there is no evidence to suggest
that female student's father's relationship with the school
played a role in either the investigation or the ultimate
decision. [uring the administrative hearing, both Ms.
Blackley and Mr. Smith testified that they were not
aware during the investigation that female student's fa-
ther was a volunteer coach for the district. Ms. Blackley
stated that she learned of female student's father’s rela-
tionship with the school just prior to the Board hearing
held on May 8, 2006, when she read it in a document.
Principal Meyer stated that he had forgotten the female
student's father was a volunteer coach until he saw him
during the investigation. Mr. Hershiser stated that he was
not aware at the time he conducted the hearing that fe-
male student's father was a voluntccr coach. Further, as
indicated previously, at the administrative hearing, ap-
pellant's counsel was able to cross-examine Ms. Black-
ley, Mr. Smith, Mr. Hershiser, and Principal Meyer on
this very issue. Consequently, we are unuble to find evi-
dence of partiality on the part of the school officials
{**21] conducting the investigation, and we are also un-
able to find a due process violation on that basis.
[*P27] Appellant next contends his duc process
rights were violated because the assistant principal
signed the April 2006 "Notice of Possible Suspen-
sion/Expulsion” and it is unknown whether he had au-
thority to do so granted by the Board. Ohio law provides
that only the principal may suspend a student unless the
school district has adopted a policy to allow the assistant
principal to take such action. R.C. 3313.66(A). Because
the Board has not established that the assistant principal
had the authority to suspend him, appellant contends the
suspension was invalid. As noted by the Board, no ap-
peal was taken from the suspension, and, therefore, the
only issue properly before the trial court was the expul-
sion. Moreover, as the trial court indicated, Mr. Smith
signed the "Notice of Possible Suspension/Expulsion,”
which serves to inform a student that he or she may be
suspended from school. ‘The letter sent to appellant's
parents, dated April 5, 2006, and signed by Principal
Meyer actually implements the suspension. Therefore,
we find no merit to appellant's contention of a duc
process violation conceming [**22] his suspension.
[*P28] Appellant next asserts his duc process
rights were violated because he was not given an oppor-
tunity to appear before the Superintendent to challenge
the reasons for the intended expulsion. This, according to
appellant, is in direct violation of R.C. 3313.66(B)(6),
which provides that:
(BX1) Except as provided under divi-
sion (1B)2), (3), or (4) of this section, the
superintendent of schools of a city, ex-
empted village, or local school district
may expel a pupil from school for a pe-
riod not to exceed the greater of eighty
school days or the number of school days
remaining in the semester or term in
which the incident that gives rise to the
expulsion takes place, unless the expul-
sion is extended pursuant to division (F)
of this section. If ut the time an expulsion
is imposed there are fewer than cighty
school days remaining in the school year
in which the incident that gives rise to the
expulsion takes place, the superintendent
May apply any remaining part or ull of the
period of the expulsion to the following
school year.
eee
(6) No pupil shall be expelled under
division (B)(1). (2). (3), (4) or (5) of this
section unless, prior to the pupil's expul-
sion, the superintendent [**23] does
both of the following:
(a) Gives the pupil and the pupil's
parent, guardian, or custodian written no-
tice of the intention to expel the pupil:
(b) Provides the pupil and the pupil's
parent, guardian, custodian, or representa-
tive an opportunity to appear in person
before the superintendent or the superin-
tendent's designee to challenge the rea-
sons for the intended expuision or other-
wise to explain the pupil's actions.E1230
- 948
Page 7
2008 Ohio 591, *; 2008 Ohio App. LEXIS 495, **
[*P29] According to appellant, he had a right to
appear before the person making the decision, who ac-
cording to appellant was the Superintendent, despite the
fact the hearing was actually conducted by his designee,
Mr. Hershiser. Because the Superintendent indicated his
decision to expel appellant was based on review of the
written documents and conversations with Mr. Hershiser,
it is appellant's position that the hearing in front of the
Superintendent's designee was meaningless because the
designee was not the party making the final decision.
(*P30] The statute, however, refutes, appellant's
position. Appellant and his parents had notice of the Su-
perintendent’s intent to expel appellant, which also noti-
fied them of their opportunity to appear at the hearing
and challenge the reasons {**24] for the expulsion
and/or explain appellant's behavior. The letter explained
the hearing would be conducted by Mr. Hershiser, who
held a hearing on Aprit 21, 2006. ence, appellant and
his parents were provided “an opportunity to appear in
person before * * * the superintendent's designee to
challenge the reasons" for the expulsion and to explain
appellant's actions. See RC. 33/3.66(B)(6). |t is clear
there was compliance with all the procedural require-
ments of R.C. 3313.66, which set forth the due process
that must be afforded in expulsion matters. See Turner v.
South-Western City School Dist. (S.D.Ohia 1999), 82
F Supp.2d 757.
[*P31] In his last argument under his second as-
signment of error, appellant contends due process re-
quires the right to an “independent hearing" with Mr.
Hoffman, and an "independent determination” of wheth-
cr or not there was a Student Code of Conduct violation.
(Appellant's brief, at 13.) Appellant suggests Mr. Hoff-
man’s statement that “there is sufficient information to
support the Superintendent's decision that [appellant]
violated the Student Code of Conduct," demonstrates that
Mr. Hoffman gave improper deference to the Superin-
tendent’s decision.
[*P32] However, as asserted [**25] by the
Board, the record refutes appettant’s claim. Mr. Hoffman
set forth findings of fact and conclusions, in which he
stated he reviewed the investigation and considered the
testimony to determine that sufficient evidence supported
the Superintendent's decision. ‘Thus, the record reveals
Mr. Hoffman not only conducted an independent review
of the evidence, but also did indeed make an independent
determination. This is further illustrated by the fact that
Mr. Hoffman modified the expulsion issued by the Su-
perintendent on two bases: (1) to provide appellant with
the opportunity to receive information from his teachers
to enable him to independently continue his studies and
prepare for exams; and (2) for appellant, upon gradua-
tion, to request and receive the documentation regarding
this matter. For these reasons, we find no indication Mr.
Hoftman gave improper deference to the Superinten-
dent's decision, and thereby caused a due process viola-
tion.
[*P33] Consequently, we overrule appellant's
second assignment of error.
[*P34] In his final assignment of error, appellant
contends the trial court crred in failing to find the Board's
order was arbitrary, capricious and not based upon relia-
ble evidence. [**26] According to appellant, there were
no witnesses to these alleged incidents at issue, and fe-
male student did not testify, and, therefore, the Board's
decision was not based upon reliable evidence. Appellant
suggests there was no evidentiary basis for Mr. Hoffman
fo conclude the female student's version of events should
be believed over appellant's.
{*P3S) As indicated previously, while it is in-
cumbent on the common pleas court to examine the evi-
dence, such is not the charge of the appellate court.
Krumm y. Upper Arlington City Council, Franklin App.
No, O5AP-802, 2006 Ohio 2829, at P10. citing Henley.
supra. "The fact that the court of appeals [* * *] might
have arrived at a different conclusion than the adminis-
trative agency is immaterial, Appellate courts must not
substitute their judgment for those of an administrative
agency or a trial court absent the approved criteria for
doing so." Id., quoting Henley at 147, quoting Lorain
City School Dist. Bd. of Edn., supra.
[*P36] As recognized by both parties, this matter
entailed credibility determinations in that it was essen-
tially appellant's word against that of female student.
However, there is nothing in the evidence to suggest fe-
mule student was |**27] not reliable or credible. At the
Board hearing, Mr. Hoffman heard testimony trom Ms.
Blackley, Mr. Hershiser, Mr. Smith, Principal Meyer,
appellant, and his parents, Tracy and David Moody. Mr.
Hoffman also reviewed the transcript of the hearing be-
fore Mr. Hershiser, as well as written character reter-
ences submitted by appellant. While appellant contended
the incidents complained of consisted of consensual
hugging, kissing, and him having his hand on female
student's stomach and at the waistline of her punts, fe-
male student's version of the incidents differed. Accord-
ing to the evidence, female student related that on the
two incidents at issue, appellant iricd to put his hand up
her skirt, put his hands down her pants, stated "show me
your boobs,” and hugged and kissed her without her
consent.
[*P37] Despite appellant's suggestion that he was
credible and female student was not, Mr. Hoffman ob-
viously found to the contrary. Though female student
was not there to testify, appellant was permitted to com-E1230 - Q49
Page 8
2008 Ohio 591, *; 2008 Ohio App. LEXIS 495, **
pel her testimony before the common pleas court, but he
declined to do so. Despite his protestations that the evi-
dence before the Board was inconsistent and contradic-
tory, upon review of the record, [**28] we are unable to
find that the trial court abused its discretion in giving due
deference to the Board's determination, and finding a
preponderance of reliable, probative, and substantial
evidence existed to support the Board's decision. Accor-
dingly, we overrule appellant's third assignment of error.
[*P38] For the foregoing reasons, appellant's three
assignments of error are overruled, and the judgment of
the Franklin County Court of Common Pleas is hereby
affirmed.
Judgment affirmed.
PETREE and TYACK, JJ., concur.E1230
- 950
Page 1
2001 Ohio App. LEXIS 1418, *
Billy L. Workman, Jr., Appellant-Appellant, v. Franklin County District Board of
Health, Appelice-Appellee.
No. OOAP-905
COURT OF APPEALS OF OHIO, TENTH APPELLATE DISTRICT, FRANKLIN
COUNTY
2001 Ohio App. LEXIS 1418
March 27, 2001, Rendered
PRIOR HISTORY: (*1] APPEAL from the
Franklin County Court of Common Pleas,
DISPOSITION: — Judgment affirmed.
COUNSEL: Gilbert L. Krone and Michael H. Dulin, for
appellant.
Ron O'Brien, Prosecuting Attorney, and Joseph R. Dur-
ham, for appellce.
JUDGES: BROWN, J. TYACK and LAZARUS, JJ.,
concur.
OPINION BY: BROWN
OPINION
(REGULAR CALENDAR)
DECISION
BROWN, J.
Billy L. Workman, Jr.. appellant, appeals a judgment
of the Franklin County Court of Common Pleas, which
rendered a decision in favor of appellee, the Franklin
County District Board of Health ("the board"), to deny a
request for a variance filed by appellant.
On September 3. 1999, appellant submitted a request
to the board for a variance in relation to property he pur-
chased. A house located on the property contained a po-
tentially bad water system and was serviced by an out-
house. Appellant wanted to tear down the existing house,
erect a manufactured home on the site, and install a
household sewage disposal system and water well on the
Property.
Appellant requested a variance of Franklin County
Board of Health Regulation ("Health Reg.”) 701.02(1),
which states:
On all lots requiring both an individual water supply
and a houschold sewage disposal system to be [2] in-
stalled, a minimum land area of 40,000 sq. f. will be
required. Only those lots created by regulations, proce-
dures, and policies established by the Mid-Ohio Regional
Planning Commission at the lime of their creation will be
exempt from the 40,000 sq. fi. requirement.
Appellant requested a variance because his lot
measures approximately 5,850 square feet, and thus.
does not comply with the 40.000 square foot require-
ment. Appellant stated in his application that “adherence
to the applicable regulation would be an unnecessary and
unusual hardship duc to the fact that I would be forced to
use the existing outdated sewage disposal system.”
The board notificd appellant by letter that it would
consider appellant's request at a mecting held on Sep-
tember 14, 1999. ‘The letter stated that appellant “and/or
your legal representative are invited and encouraged to
attend.” At the mecting, James Lynch, a water and
wastewater program advisor to the buard, recommended
that appellant's request for a variance be denied. Lynch
stated:
What this is is a size variance. This gentleman
bought a lot with an existing house on it. He was pro-
posing to tear down the house. Then he put a manufac-
lured [*3] home on the site. The site currently has an
outhouse. That's part of the reason the peuple left. They
also have a potentially bad water system in the house.
They never had plumbing sv there's no wastewater prob-
lems technically. MORPC [the Mid-Ohio Regional Plan-
ning Commission] did approve the previous owners for u
new well. But then these people moved out basically.
These new owners don't qualify under the MORPC pro-
gram for a free well. They're going to have to drill
another well.
The board voted 3-0 in favor of denying appellant's
requesi. The board's decision to deny the variance was
confirmed in a letter to appellant stating the "board did
not believe that the granting of this variance would be to
the best interest of the public."
Appellant filed an appeal of the board's decision
with the trial court pursuant to &.C. 1/91 xE1230
- 951
Page 2
2001 Ohio App. LEXIS 1418, *
argued before the trial court that the board's decision
should be overtumed because: (1) the board failed to
slate reasons for the denial of the variance, and (2) the
board violated the Equal Protection Clause of the Ohio
Constitution because the board had granted similar re-
quests in the past. The trial court affirmed [*4] the
board's decision. finding that the evidence presented
supported the denial of appellant's request. Appellant
claims he was denied equal protection because some of
his neighbors were granted similar variances although
evidence of such wus not presented to the board, and no
motion for presentation of additional evidence was made
pursuant to R.C. 2506.03. Appellant appeals this decision
and presents the following three assignments of error:
1. THE TRIAL COURT ERRED BY FIN
Preview
E1230 - 935 IN THE COURT OF COMMON PLEAS FRANKLIN COUNTY, OHIO Sepich Family Limited Partnership 2 = a o= Appellant, Case No. 11-CV-007478 2 = © i v. Judge Schneider a o eo F City of Columbus, Ss oy oO wn > Board of Zoning Adjustment Appellee. APPELLEE CITY OF COLUMBUS, BOARD OF ZONING ADJUSTMENT’S MMA PARTNENSHIP TO ALLOW NEW OR ADDITIONAL EVIDENCE Appellant Sepich Family Limited Partnership (“Appellant”) has moved to supplement the record to allow new or additional evidence. The City of Columbus, Board of Zoning Adjustment (“BZA”) responds as follows. Appellant is entitled to present a limited amount of additional evidence due to the failure of the BZA to file with the transcript conclusions of fact supporting the BZA’s decision to grant variances and a special permit to Columbus Bituminous Concrete Corp. However, for the following reasons, Appellant is not entitled to a hearing with a scope beyond that necessary to “fill in the gaps” created by the deficiency of failing to make conclusions of fact. A. R.C. 2506.03 R.C. 2506.03 provides as follows: (A) The hearing of an appeal taken in relation to a final order, adjudication, or decision covered by division (A) of section 2506.01 of the Revised Code shall proceed as in the trial of a civil action, but the court shall be confined to the transcript filed under section 2506.02 of the Revised Code unless it 3E1230 - 936 appears, on the face of that transcript or by affidavit filed by the appellant, that one of the following applies: (1) The transcript does not contain a report of all evidence admitted or proffered by the appellant. (2) The appellant was not permitted to appear and be heard in person, or by the appellant's attorney, in opposition to the final order, adjudication, or decision, and to do any of the following: (a) Present the appellant's position, arguments, and contentions; (b) Offer and examine witnesses and present evidence in support; (c) Cross-examine witnesses purporting to refute the appellant's position, arguments, and contentions; {d) Offer evidence to refute evidence and testimony offered in opposition to the appellant's position, arguments, and contentions; (e) Proffer any such evidence into the record, if the admission of it is denied by the officer or body appealed from. (3) The testimony adduced was not given under oath. (4) The appellant was unable to present evidence by reason of a lack of the power of subpoena by the officer or body appealed from, or the refusal, after request, of that officer or body to afford the appellant opportunity to use the power of subpoena when possessed by the officer or body. (5) The officer or body failed to file with the transcript conclusions of fact supporting the final order, adjudication, or decision. (B) If any circumstance described in divisions (A)(1) to (5) of this section applies, the court shall hear the appeal upon the transcript and additional evidence as may be introduced by any party. At the hearing, any party may call, as if on cross-examination, any witness who previously gave testimony in opposition to that party. Appellant's arguments Appellant argues that it is entitled to supplement the record to allow new or additional evidence for four specific reasons. Each one is discussed individually.E1230 - 937 1. Appellant argues that the BZA failed to provide a complete transcript of the proceedings. Appellant argues that it is entitled to supplement the record because “...the City of Columbus provided only part of the Transcript of the papers, testimony and evidence offered heard and taken into consideration by the Board of Zoning Adjustment in issuing the decision appealed.” Appellant’s reasoning behind this argument is the List of Documents and Certification of Record reads, “I hereby certify that the following documents are part of the transcript of the papers, testimony and evidence offered, heard and taken into consideration by the Board of Zoning Adjustment in issuing the decision appealed herefrom...” Appellant's overly technical argument is that the filing states the words “are part of the transcript” and this means that the BZA failed to file the complete record of the proceedings. However, read in context, it is apparent that the entire record was filed. In fact, the BZA provided a complete transcript of the proceedings. Appellant is unable to demonstrate that any portion of the proceedings was omitted from the record and Appellant’s argument on this basis fails. 2. Appellant argues that the transcript does not contain a report of all the evidence admitted or proffered by the Appellant. a. The PowerPoint presentation Appellant argues that it is entitled to supplement the record because Joan Cochran gave a PowerPoint presentation during her testimony before the BZA and the DVD of that PowerPoint presentation was not included as an exhibit in the record. Ms. Cochran never moved to enter the PowerPoint presentation as an exhibit and never proffered such evidence. The PowerPoint presentation wasE1230 - 938 simply a visual aid that was used during Ms. Cochran’s testimony. Accordingly, Appellant’s argument to supplement the record on this basis fails. 5 The amended position paper Appellant next argues that it is entitled to supplement the record because it offered a position paper containing 33 exhibits to the BZA for the April 26 BZA hearing, offered a “Supplemental Position Paper” to the BZA for the May 24 BZA hearing, and only the “Supplemental Position Paper” is entered into the record for the May 24 BZA hearing. The April position paper containing the 33 exhibits is not included in the record. Appellant’s argument is misleading. A review of the record reveals that the May position paper is not titled a “Supplemental Position Paper” but rather is titled an “Amended Position Paper.” Appellant amended its position paper, but apparently forgot to attach exhibits to its amended paper. Appellant made an error. The BZA did not. The amended position paper was rightfully included as part of the record. Appellant did not attach the exhibits to its amended paper and did not attempt to either enter or proffer the exhibits as evidence at the hearing. Accordingly, Appellant's argument to supplement the record to include either the prior position paper or its attached exhibits fails. 3. Appellant argues that the transcript does not contain a conclusion of fact supporting the final order, adjudication, or decision. Appellant next argues that the BZA failed to file with the transcript conclusions of fact supporting the BZA’s decision to grant variances and a special permit to Columbus Bituminous Concrete Corp. Appellant is correct. The transcript lacks appropriate conclusions of fact.E1230 - 939 A common pleas court should, when faced with a transcript of proceedings lacking appropriate conclusions of fact, hold an evidentiary hearing to establish the factual basis for the decision being appealed. Aria’s Way, LLC v. Bd. of Zoning Appeals, 173 Ohio App. 3d 73, 79 (Ohio Ct. App., Lake County 2007). However, Appellant does not have a right to a de novo hearing; rather, “[t]he purpose of R.C. 2506.03 is to allow the trial court to conduct an evidentiary hearing to ‘fill in the gaps’ [if] the transcript is deficient or incomplete.” Moody v. Westerville City School Dist. Bd. of Edn., Franklin App. No. 07AP-551, 2008-Ohio-591, at {| 14 (attached as Exhibit 1), quoting Workman v. Franklin Cty. Dist. Bd. of Health (Mar. 27, 2001), Franklin App. No. OOAP-905, 2001 Ohio App. LEXIS 1418 (attached as Exhibit 2)(internal quotation omitted). As applied to the instant case, the deficiency, or “gap,” is the lack of conclusions of fact. Filling in this gap does not require cross-examination of witnesses or any additional evidence, but only the opportunity for the parties to propose or argue what this Court should find those conclusions of fact to be based on the evidence presented. 4. Appellant argues that the BZA did not allow Appellant or Appellant's counsel to cross examine witnesses Appellant next argues that the BZA did not allow Appellant or Appellant's counsel to cross examine witnesses at the hearing. The record reflects that Appellant and Appellant’s counsel had ample opportunity to present Appellant's case. No attempt to cross-examine witnesses was made. Furthermore, no objection regarding cross-examination was raised at the hearing, and that issue has been waived accordingly. The objection from an “unknown speaker” from the audienceE1230 - 940 was much more general than what Appellant is now representing to the Court (“You've given two-thirds of the time to the applicant, and I’m just going to formally, on the record, object.” Tr. p. 79). The Tenth District has held that, “[glenerally, a party waives the right to appeal an issue that could have been but was not raised in earlier proceedings. This principle has been applied in appeals from administrative agencies." Krumm v. Upper Arlington City Council, Franklin App. No. OSAP-802, 2006-Ohio-2829, at J 44 (attached as Exhibit 3), quoting MacConnell v. Ohio Dept. of Commerce, Franklin App. No. 04AP-433, 2005-Ohio-1960 (attached as Exhibit 4). That waiver of error has been spccifically applied to the lack of/prohibition against cross-examination at the administrative level. Neague v. Worthington City Sch. Dist. (1997), 122 Ohio App.3d 433, 441-42. c Conclusion Appellant is not entitled to a “do over” evidentiary hearing. The sole purpose of an evidentiary hearing in this case should be for the Court to establish findings of fact based on the evidence presented.E1230 - O41 Respectfully submitted, CITY OF COLUMBUS, DEPARTMENT OF LAW RICHARD C. PFEIFFER, JR., CITY ATTORNEY J 4 Westley M. Phillips (0077728) Assistant City Attorney 90 West Broad Street, Room 200 Columbus, Ohio 43215 (614) 645-7385 (614} 645-6949 (fax) wmphillips@columbus.gov Counsel for Appellee City of Columbus, Board of Zoning Adjustment CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of the foregoing was scrved by First-Class US. Mail, postage prepaid, this 9 day of August, 2011, upon the following: David A. Skrobot John C. Ridge Fisher, Skrobot & Sheraw, LLC 471 East Broad Street, Suite 1810 Columbus, Ohio 43215 Jeffrey L. Brown Smith and Hale LLC 37 West Broad Street, Suite 725 Columbus, Ohio 43215 Westley M. PhillipsE123 0 - Q42 Page | 2008 Ohio 591, *: 2008 Ohio App. LEXIS 495, ** Ryan Moody, Appellant-Appellant, v. Westerville City School District Bourd of Education, Appeltce-A ppellee. No. 07AP-551 COURT OF APPEALS OF OHIO, TENTH APPELLATE DISTRICT, FRANKLIN COUNTY 2008 Ohio 591; 2008 Ohio App. LEXIS 495 February 14, 2008, Rendered PRIOR HISTORY: [**1] APPEAL from the Franklin County Court of Com- mon Pleas. (C.P.C. No. 06CV-7355). DISPOSITION: — Judgment affirmed. COUNSEL: John M. Gonzales, LLC, and John M. Gonzales, for appellant. Bricker & Eckler LLP, Laura G. Anthony and Jennifer A. Flint, for appellee. JUDGES: McGRATH, P.J. PETREE and TYACK, JJ., concur. OPINION BY: McGRATII OPINION (REGULAR CALENDAR) OPINION McGRATH, P.J. [*P1] Appellant, Ryan Moody. appeals from the judgment of the Franklin County Court of Common Pleas affirming the order of appellee, the Westerville City School District Board of Education ("the Board"), expelling appellant from school for 28 days, and finding that said order is supported by reliable, probative and substantial evidence, is not unconstitutional, and is in accordance with law. [*P2] On April 5, 2006, a ten-day suspension was imposed against Ryan Moody, a sophomore student at Westerville Central High School. ‘The notice indicated the suspension grounds as disruption of school, insubor- dination, assault, harassment and violation of school rules resulting from appellant's alleged inappropriate and unwanted contact with a female student (“female stu- dent”). [*P3] This incident came to light when Student 1 approached Assistant Principal Michelle Blackley on April 3, 2006, with concerns [**2] about alleged inap- propriate contact between appellant and female student. ' Student | reported that female student confided in him that she was very upset about two incidents with appel- lant, in which appellant made unwanted and inappro- priate advances. Student | related to Ms. Blackley that female student was not aware that Student | was coming to talk to her, and that female student had also confided in another friend, Student 2, about these alleged incidents with appellant. 1 For purposes of anonymity, the other stu- dents involved will be referred to as Student | and Student 2. [*P4] After speaking with Student 1, Ms. Black- ley relayed the information to Dean of Students Tron Smith and Principal Todd Meyer. Mr. Smith and Ms. Blackley agreed that Ms. Blackley would speak with female student and Mr. Smith would speak with appel- lant. In speaking with Ms. Blackley, female student de- scribed two separate incidents of unwanted contact with appellant that essentially consisted of appellant kissing and trying to touch female student despite her protesta- tions. According to female student, these incidents oc- curred once in an art room and once in the locker area. After their conversation, Ms. Blackley [**3] described female student as being "very upset." Ms. Blackley also talked to Student 2, who confirmed that female student confided in her about being upset by two occasions with appellant. When asked why she did not inform anyone about this matter, female student indicated it was because she was taught to handle things herself. [*P5] On April 3, 2006, appellant received a no- lice of possible suspension. In talking to Mr. Smith, ap- pellant denied any inappropriate contact, but admitted to hugging and kissing female student at school, and indi- cated it was consensual. Mr. Smith explained that he instructed appellant not to discuss the matter with any other students, Principal Meyer also spoke with appellant EXHIBIT |E1230 - 943 Page 2 2008 Ohio $91, *; 2008 Ohio App. LEXIS 495, ** on April 4 and April 5, 2006, Appellant again admitted to hugging and kissing female student in school and de- scribed that female student jnitiatcd the kissing. Appel- lant at first denied that he discussed the matter with any- one, and then later admitted he showed the notice of suspension to a friend and to female student and asked female student if she was mad at him. Thereafter, by letter dated April 5, 2006, Principal Meycr nutified ap- peltant’s parents that appellant would be suspended for [**4] ten days. No appeal was taken from the suspen- sion. [*P6] A letter dated April 17, 2006, indicated ex- pulsion was being considered. The letter explained a hearing was set for April 21, 2006, and would be con- ducted by the Superintendent's designee, Mr. Hershiser, the Executive Director of Student Activities, Safety and Communication. Present at the April 21, 2006 hearing were appellant, his parents, his counsel, Mr. Smith, Ms. Blackley, and Principal Meyer. After the hearing, expul- sion was recommended. A notice of expulsion was sent by the Superintendent. The Superintendent's decision was appealed to the Board, and the Board's designee, Kevin Hoffman, held a hearing on May 8, 2006. Afier the hearing, Mr. Hoffman issued findings of fact and conclusions, which recommended the Board uphold the 28-day period of expulsion with modifications. Appellant then appealed to the Franklin County Court of Common Pleas in accordance with R,C, 2506.04. [*P7| Pursuant to R.C. 2506.03, appellant filed an affidavit from his mother, Tracy Moody, requesting that the trial court consider additional evidence beyond the administrative record due to inadequacies in the Board's hearing. Appellant also scrved interrogatories [**5] and a request for the production of documents, to which the Board objected. Upon review of the administrative record and the parties’ argumenis, the trial court issued a discovery order captioned "DECISION AND ENTRY GRANTING IN PART AND DENYING IN PART APPELLANT'S REQUEST FOR AN EVIDENTIARY HEARING; GRANTING IN PART AND DENYING IN PART APPELLEE'S MOTION FOR A PROTECTIVE ORDER, FILED ON JUNE 30, 2006, AND ESTAB- LISHING BRIEFING SCLIEDULE,” which in essence (1) denied appellant's requesi for a de novo hearing; (2) allowed appellant to subpoena female student to testify at a hearing; (3) allowed appellant the opportunity to refute female student's testimony; (4) allowed appellant to take the deposition of female student, and (5) limited appel- lant's discovery to the deposition of female student. (Oct. 17, 2006 Entry.) [*P8] Appellant, however, did not depose female student, or take the testimony of female student at an evidentiary hearing before the trial court. Therefore, the trial court determined the matter based on the adminis- trative record and the partics' written arguments. On May 21, 2007, the tial court affirmed the decision of the Beard. This appeal followed, and appellant brings the [**6] following three assignments of error for our re- view: Assignment of Error No. | THE TRIAL COURT ERRED BY DENYING DISCOVERY TO APPEL- LANT AND BY LIMITING THE RECORD ON APPEAL TO THE AD- MINISTRATIVE RECORD. Assignment of Error No. 2 THE TRIAL COURT ERRED IN FAILING TO FIND THAT THE SCHOOL BOARD'S DECISION WAS UNCONSTITUTIONAL. Assignment of Lrror No. 3 THE TRIAL COURT ERRED BY FAILING TO FIND ‘THAT THE SCHOOL BOARD'S DECISION WAS ARBITRARY, CAPRICIOUS AND NOT BASED UPON RELIABLE EVIDENCE. [*P9] In his first assignment of error, appellant contends the trial court erred by denying discovery and limiting the record on appeal to the administrative record, Because female student's father was a volunteer coach for the high school baseball team, and was present during the interviews with his daughter by school offi- cials, appellant suggests there was an issue as to whether the investigation of the incident was fair and impartial. According to appellant, he did not have the ability during the administrative process to discover the extent of the “principal and assistant principal's lack of impartiality.” (Appellant's brief, at 5.) Additionally, because he lacked subpoena powers during the administrative process, [**7] appellant asserts he was denied the ability to cross-examine witnesses and/or challenge the testimony of female student and the other students who did not tes- tify at the hearing. [*P10] We note initially that the trial court did not simply deny appellant's request to submit additional evi- dence and limit the record on appeal to the administrative record. Instead, the trial court denied in part, and granted in part appellant's request for an evidentiary hearing, and denied in part, and granted in part the Board's motion for a protective order. ‘This was done after the parties briefed the issues and the trial court stayed discovery until it could review the administrative record for deficiencies.E1230 The trial court reviewed R.C. 2506.03, which provides in part: - 944 2008 Ohio 591, *; 2008 Ohio App. LEXIS 495, ** (A) The hearing of an appeal taken in relation to a final order, adjudication, or decision covered by division (A) of sec- tion 2506.01 of the Revised Code shall procced as in the trial of a civil action, but the court shall be confined to the tran- script filed under section 2506.02 of the Revised Code unless it appears, on the face of that transcript or by affidavit filed by the appeilant, that onc of the following applies: (1) The transcript [**8] does not contain a report of all evidence admitted or proffered by the appellant. (2) The appellant was not permiued to appear and be heard in person, or by the appellant's attomey. in opposition to the final order, adjudication, or decision, and to do any of the following: (a) Present the appellant's position, arguments, and contentions; (B) If any circumstance described in divisions (A){1) to (5) of this section ap- plies, the court shall hear the appeal upon the transcript and additional evidence as may be introduced by any party. At the hearing, any parly may call, as if on cross-cxamination, any witness who pre- viously gave tcslimony in opposition to that party. Page 3 [*P11] Recognizing appellant's lack of subpoena power over female student, the trial court held: Accordingly, a de novo hearing will not be afforded to the Appellant. Rather, the Appellant will be permitted to sub- poena the alleged female victim to testify at a hearing before the Court. At the hearing, the Court will also give {appel- lant] the opportunity to refute the alleged victim's testimony, if he wishes to do so. See B.C. 2506.03(4)(1)(a). (Oct. 17, 2007 Entry, at 5.) [*P12] With respect to the Board's motion for protective order the trial court stated: (b) Offer and examine witnesses and present evidence in support: (c) Cross-examine witnesses pur- porting to refute the appellant's position, arguments, and contentions; (d) Offer evidence to refute evidence and testimony offered in opposition to the appellant's position, arguments, and con- tentions; (e) Proffer any such cvidence into the * record, if the admission of it is denied by the officer or body appealed from. (3) The testimony adduced was not given under oath. (4) The appellant was unable to present evidence by reason of a lack of the power of subpoena by the officer or body appealed from, or the refusal, after request, of that officer or body to afford the appellant opportunity to use the power of subpocna when possessed by the offic- er or body. (5) The officer or body failed to file with the wanscript conclusions of fact supporting the’ final order, [**9] adjudi- cation, or decision. Since the Court will allow Appellant to present limited additional evidence, Ap- pellant also will be permitted to take the deposition of the alleged female victim. Appellant also has requested the op- portunity to conduct discovery on, among other things, the alleged impartiality of the hearing officer, [**10] whether fap- pellant's] conduct caused the alleged vic- tim to experience anxiety and/or depres- sion, and other issues that "might" have affected the due process afforded to |ap- pellant]. The Court's review of the record indicates that such additional discovery is unnecessary and not warranted under R.C. Chupter 2506. Ai the Board hearing. [ap- pellant's] counsel questioned the district's witnesses about issues of alleged impar- tiality. Whether the alleged victim expe- rienced anxiety or depression is immateri- al to the question of whether [appellant} violated the Code of Student Conduct. Discovery in this case shall be limited to the deposition discussed in the preceding paragraph.E1230 - 945 Page 4 2008 Ohio 591, *: 2008 Ohio App. LEXIS 495, ** (Id. at 6.) [*P13] Because appellant filed an affidavit stating the circumstances described in 2.C, 2506.03(A)(4), ap- pellant contends the trial court "was not confined to the transcript,” and that the only restriction on his presenta- tion of evidence should have been to that which was Te- levant to the mutter at hand. (Appellant's Brief at pellant further contends that the trial court's restrictive reading of the statute, i.e., that additional evidence be limited to deficiencies in the record, bears no support, and that [**1}] he was entitled to a de novo hearing. In support of his position, appellant cites to Neague v. Worthington City School Dist. (1997), 122 Ohio App.3d 433, 702 N.E.2d 107, and Dawson v. Richmond Heights Local School Bd. (1997), 121 Ohio App.3d 482, 700 N.E.2d 359. [*P14] We, however, find that the statute itself refutes appellant's position. A full reading of the statute clearly does not grant a right to a de novo hearing. Fur- ther, as this court has stated. "[t]he purpose of RC. 2506.03 is to allow ‘the trial court to conduct an eviden- liary hearing to “fill in the gaps” [if] the transcript is de- ficient or incomplete." Workman y, Franklin Cty. Dist. Bd. of Health (Mar. 27, 2001), Franklin App. No. O0AP-905, 2001 Ohio App. LEXIS 1418 , quoting Eck- meyer v. Kent City School Dist. Bd. of Edn. (Nov. 3, 2000), Lake App. No 99-P-0117, 2000 Ohio App. LEXIS 5123, See, also, Price v. Magaretra Twp. Bd. of Zoning Appeals, Erie App. No. E-04-023, 2005 Ohio 1778, at P30 (explaining that where an appellant files an affidavit, alleging deficiencies in an administrative hearing, the common pleas court must consider this and afford the appellant a hearing to correct the deficiencies outlined in RC. 2506.03): Bay v. Gallia-Vinton Educ. Serv. Cir, Gallia App. No. 02CA9, 2003 Ohio 7335 (noting |**12] that where a transcripi is incomplete, X.C. 2506.03 pro- vides for the trial court te conduct a hearing to fill in the gaps); Bussey v. Portsmouth Metro, Hous. Auth. (Nov. 20, 1993), Scioto App. 92 CA 2059, 1993 Ohio App. LEXIS 5988 (holding that R.C. 2506.03 does not grant a right to a de novo hearing before the common pleas coun); Wickliffe Firefighters Assn. v. Wickliffe (1990), 66 Ohio App.3d 681, 685, 586 N.E.2d 133 (stating that "R.C. Chapter 2506 appeals are limited to the transcript of the administrative body and to corrections of that transcript, as provided in K.C. 2506.03"). [*P15] Appellant cites Neague and Dawson for the proposition that the affidavit filed by appellant's mother entitled him to a de novo hearing before the trial court. In Neagve. a student was suspended from school, and on appeal, the trial court limited the record solely to the administrative record. This court held it was error for the trial court not to permit additional evidence pursuant to RC. 2506.03, because appellant established he was unable to conduct cross-examination of one of the wit- nesses at the administrative hearing. Therefore, the mat- ter was remanded to the trial court "for the allowance of additional evidence." Id. However, nothing in [**13) Neague suggests this court's endorsement of a de novo hearing due to deficiencies in an administrative record. Rather, this court found only that the trial court erred in not allowing any additional evidence after a deficiency in the administrative record had been established. Similarly, in Dawson, the Eighth District found that it was error for the trial court 10 not hold a hearing on the appellant's affidavit filed pursuant to &.C. 2506.03. But, again, there is no mention that a de nove hearing is required despite the appellant's suggestion that he was entitled to such. In conclusion, we find no merit to appellant's position that he was entitled to de novo hearing before the trial court. [*P16] Our next inquiry then concerns whether appellant established deficiencies in the record for which he, now claims on appeal that he was prohibited from conducting discovery and presenting evidence on appeal. Appellant asserts his due process rights were violated by the lack of impartiality, and that his due process rights “may” have been violated through potential “procedural defects" with respect to how this matter was handled. (Appellant's bricf, at 5.) According to appellant, only through discovery [**14] would he have been able to obtain the needed information. [*P17] The affidavit submitted by appellant al- leges general deficiencies concerning the circumstances listed in R.C. 2506.03, in that he was not permitted to appear and cross-examine witnesses, he was not permit- ted to offer evidence to refute evidence against him, and he lacked subpoena power. With respect to appellant's argument that he was unable to explore the impartiality of the hearing officer and that there “may” have been other procedural defects in this matter, as the trial court noted, appellant's counsel questioned the Board's wit- nesses about alleged impartiality. Ms. Blackley, Mr. Smith, Mr. Hershiser and Principal Meyer were asked at the Board hearing of the role, if any, the status of female student's father played in cither the investigation or the decision-making process. In fact, Ms. Blackley, Mr. Smith and Mr. Hershiser testified they were unaware that female student's father was a volunteer baseball coach at the time this matter was being handled. Therefore, as the trial court correctly found, there was no basis under &.C. 2506.03 to permit additional evidence on this issuc. (*P18] Appellant further argues that he was not [**15] able to cross-examine a number of witnesses or challenge testimony due to the Board's reliance on hear- say. As an example, appellant refers to the fact that nei- ther female student, nor Student | and Student 2 testifiedE1230 Q46 Page 5 . 2008 Ohio 591. *; 2008 Ohio App. LEXIS 495, ** at the hearing, but their hearsay statements were relied ‘on by the hearing officer. We note that other than the inability to compel the testimony of female student, this issue was not raised at the administrative level, and as such, it is waived. Stanger v. Worthington (Sept. 23. 1997), Franklin App. No. 96APE12-1622, 1997 Ohio App. LEXIS 4355 (holding that appellant's error of failure to swear witnesses, issues of examination and cross-examination, and hearsay testimony were not ob- jected to or otherwise raised at the administrative level and were therefore waived). [*P19] Moreover, as the Board contends, reliance by an administrative agency on hearsay is not a defect listed under R.C. 2506.03, and administrative agencies are generally not subject to the Rules of Evidence, in- cluding those related to hearsay. Sce, Duersam v. Ga- hanna (Sept. 30, 1997), Franklin App. Na. 96APF 12-1766, 1997 Ohio App. LEXIS 4468 . (In an appeal pursuant to R.C. Chapter 2506, the court held that as a general rule, administrative agencics are not bound [**16] by the strict rules of evidence und the hearsay rule is relaxed in administrative proceedings.) Further, the Sixth Circuit Court of Appeals has held there is no denial of duc process by not being permitted to cross-examine one's student accusers. Newsome v. Batavia Loc. Schuol Dist. (C.A.6, 1988), 842 F.2d 920. The court in Newsome stated: The value of cross-examining student witnesses in school disciplinary cases, however, is somewhat muted by the fact that the veracity of a student account of misconduct by another student is initially assessed by a school administrator -- in this casc, the school principal -- who has, or has available to him, a particularized knowledge of the student's trustworthi- ness. The school administrator gencrally knows firsthand (or has access to school records which disclose) the accusing stu- dent's disciplinary history, which can serve as a valuable gauge in evaluating the beticvability of the student's account. Additionally, the school administrator of- ten knows, or can readily discover, whether the student witness and the ac- cused have had an amicable relationship in the past. Consequently, the process of cross-examining the student witness may often be merely [**17] duplicative of the evaluation process undertaken by the in- vestigating school administrator. id. at 924 (in. omitted); see, also, Due v. Bd. of Edn. of the Elvria City Schools (C.A.6, 1988) No. 96-4008, 1998 US. App. LEXIS 10783; Beavers v. Anthony Wayne Schools Bd. of Edn. (Apr, 19, 1991), Lucas App. No. L-89-300, 1991 Ohio App. LEXIS 1718. [(*P20] In his fina) argument, appellant asserts his lack of subpoena power prevented him from calling wit- nesses. However, with the exception of female student, this issue was also not raised at the administrative level. The trial court though recognized the lack of subpoena powcr, and thereby did allow appellant to depose female student and to call her to testify at an evidentiary hearing. Appellant chose not to do so. [*P21] We find the trial court permitted appellant to "fill in the gaps" through limited discovery, and no abuse of discretion in the trial court's discovery order. Accordingly, we overrule appellant's first assignment of error. [*P22] Prior to reviewing appellant's remaining two assignments of crror, we recall the applicable stan- dard of review for both the trial court and this court from an administrative appeal brought pursuant to R.C. Chap- ter 2506. In an appeal pursuant to RC. Chapter 2506, [**18] the court of common pleas may find that the or- der, adjudication, or decision is "unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable, and probative .evidence on the whole record." &.C. 2506.04. Consistent with its findings, the court of common pleas may “af- firm, reverse, vacate, or modify the order, adjudication, or decision, or remand the cause to the officer or body appealed from with instructions to enter an order, adju- dication, or decision consistent with the findings or opi- nion of the court.” Id. [*P23] In conducting its review, the common pleas court is to give due deference to the agency's reso- lution of evidentiary conflicts, and not “blatantly substi- tute its judgment for that of the agency." Dudukovich v. Lorain Metro, Hous. Auth. (1979), 58 Ohio St.2d 202, 207, 389 N.E.2d 1113. As such, the common pleas court is required to affirm the agency's decision if it is sup- ported by a preponderance of reliable, probative and substantial evidence. Id. [*P24] The standard of review to be applied by the court of appeals is more limited in scope. Barristers, inc, v. Westerville City Council, Franklin App. No. 03AP-1073, 2004 Ohio 2533. at PI, ching [**19] Henley v. Youngstown Bd. of Zoning Appeals (2000). 90 Qhio St.3d 142, 2000 Ohio 493, 735 N.E.2d 433. Our review is limited to the issue of whether the trial court abused its discretion in finding that a preponderance of reliable, probative and substantial evidence exists to support the decision of the agency. /d. at P/3, citing Lo-E1230 - Q47 Page 6 2008 Ohio 591, *; 2008 Ohio App.’ LEXIS 495, ** rain City School Dist, Bd. of Edn. v. State Emp. Relations Bd. (1988), 40 Ohio St.3d 257, 533 N.E.2d 264, See, also, Gasper v. Washington Twp., Franklin App. No. O2AP-1192, 2003 Ohio 3750, appeal not allowed, /00 Ohio St. 3d 1507, 2003 Ohio 6161, 799 N.E.2d 186, cit- ing Elbert v. Bexley Planning Comm. (1995), 108 Ohio App.3d 59, 66, 670 N.E.2d 245, appeal not allowed, 75 Ohio St. 3d 1477, 663 N.E.2d 1304. [*P25] In his second assignment of error, appel- lant contends the Board's decision was unconstitutional because: (1) the officials investigating the allegations ‘were not impartial; (2) the assistant principal was not properly authorized to suspend students; (3) appellant had a due process right to appear in person before the superintendent to challenge the reasons for the expulsion; and (4) the Board's standard of review is supposed to be de novo. [*P26] As undcr his first assignment of error, ap- pellant again suggests the’investigation of female siu- dent's allegations [**20] was not impartial because of her father’s status as a volunteer baseball coach for the high school. However, there is no evidence to suggest that female student's father's relationship with the school played a role in either the investigation or the ultimate decision. [uring the administrative hearing, both Ms. Blackley and Mr. Smith testified that they were not aware during the investigation that female student's fa- ther was a volunteer coach for the district. Ms. Blackley stated that she learned of female student's father’s rela- tionship with the school just prior to the Board hearing held on May 8, 2006, when she read it in a document. Principal Meyer stated that he had forgotten the female student's father was a volunteer coach until he saw him during the investigation. Mr. Hershiser stated that he was not aware at the time he conducted the hearing that fe- male student's father was a voluntccr coach. Further, as indicated previously, at the administrative hearing, ap- pellant's counsel was able to cross-examine Ms. Black- ley, Mr. Smith, Mr. Hershiser, and Principal Meyer on this very issue. Consequently, we are unuble to find evi- dence of partiality on the part of the school officials {**21] conducting the investigation, and we are also un- able to find a due process violation on that basis. [*P27] Appellant next contends his duc process rights were violated because the assistant principal signed the April 2006 "Notice of Possible Suspen- sion/Expulsion” and it is unknown whether he had au- thority to do so granted by the Board. Ohio law provides that only the principal may suspend a student unless the school district has adopted a policy to allow the assistant principal to take such action. R.C. 3313.66(A). Because the Board has not established that the assistant principal had the authority to suspend him, appellant contends the suspension was invalid. As noted by the Board, no ap- peal was taken from the suspension, and, therefore, the only issue properly before the trial court was the expul- sion. Moreover, as the trial court indicated, Mr. Smith signed the "Notice of Possible Suspension/Expulsion,” which serves to inform a student that he or she may be suspended from school. ‘The letter sent to appellant's parents, dated April 5, 2006, and signed by Principal Meyer actually implements the suspension. Therefore, we find no merit to appellant's contention of a duc process violation conceming [**22] his suspension. [*P28] Appellant next asserts his duc process rights were violated because he was not given an oppor- tunity to appear before the Superintendent to challenge the reasons for the intended expulsion. This, according to appellant, is in direct violation of R.C. 3313.66(B)(6), which provides that: (BX1) Except as provided under divi- sion (1B)2), (3), or (4) of this section, the superintendent of schools of a city, ex- empted village, or local school district may expel a pupil from school for a pe- riod not to exceed the greater of eighty school days or the number of school days remaining in the semester or term in which the incident that gives rise to the expulsion takes place, unless the expul- sion is extended pursuant to division (F) of this section. If ut the time an expulsion is imposed there are fewer than cighty school days remaining in the school year in which the incident that gives rise to the expulsion takes place, the superintendent May apply any remaining part or ull of the period of the expulsion to the following school year. eee (6) No pupil shall be expelled under division (B)(1). (2). (3), (4) or (5) of this section unless, prior to the pupil's expul- sion, the superintendent [**23] does both of the following: (a) Gives the pupil and the pupil's parent, guardian, or custodian written no- tice of the intention to expel the pupil: (b) Provides the pupil and the pupil's parent, guardian, custodian, or representa- tive an opportunity to appear in person before the superintendent or the superin- tendent's designee to challenge the rea- sons for the intended expuision or other- wise to explain the pupil's actions.E1230 - 948 Page 7 2008 Ohio 591, *; 2008 Ohio App. LEXIS 495, ** [*P29] According to appellant, he had a right to appear before the person making the decision, who ac- cording to appellant was the Superintendent, despite the fact the hearing was actually conducted by his designee, Mr. Hershiser. Because the Superintendent indicated his decision to expel appellant was based on review of the written documents and conversations with Mr. Hershiser, it is appellant's position that the hearing in front of the Superintendent's designee was meaningless because the designee was not the party making the final decision. (*P30] The statute, however, refutes, appellant's position. Appellant and his parents had notice of the Su- perintendent’s intent to expel appellant, which also noti- fied them of their opportunity to appear at the hearing and challenge the reasons {**24] for the expulsion and/or explain appellant's behavior. The letter explained the hearing would be conducted by Mr. Hershiser, who held a hearing on Aprit 21, 2006. ence, appellant and his parents were provided “an opportunity to appear in person before * * * the superintendent's designee to challenge the reasons" for the expulsion and to explain appellant's actions. See RC. 33/3.66(B)(6). |t is clear there was compliance with all the procedural require- ments of R.C. 3313.66, which set forth the due process that must be afforded in expulsion matters. See Turner v. South-Western City School Dist. (S.D.Ohia 1999), 82 F Supp.2d 757. [*P31] In his last argument under his second as- signment of error, appellant contends due process re- quires the right to an “independent hearing" with Mr. Hoffman, and an "independent determination” of wheth- cr or not there was a Student Code of Conduct violation. (Appellant's brief, at 13.) Appellant suggests Mr. Hoff- man’s statement that “there is sufficient information to support the Superintendent's decision that [appellant] violated the Student Code of Conduct," demonstrates that Mr. Hoffman gave improper deference to the Superin- tendent’s decision. [*P32] However, as asserted [**25] by the Board, the record refutes appettant’s claim. Mr. Hoffman set forth findings of fact and conclusions, in which he stated he reviewed the investigation and considered the testimony to determine that sufficient evidence supported the Superintendent's decision. ‘Thus, the record reveals Mr. Hoffman not only conducted an independent review of the evidence, but also did indeed make an independent determination. This is further illustrated by the fact that Mr. Hoffman modified the expulsion issued by the Su- perintendent on two bases: (1) to provide appellant with the opportunity to receive information from his teachers to enable him to independently continue his studies and prepare for exams; and (2) for appellant, upon gradua- tion, to request and receive the documentation regarding this matter. For these reasons, we find no indication Mr. Hoftman gave improper deference to the Superinten- dent's decision, and thereby caused a due process viola- tion. [*P33] Consequently, we overrule appellant's second assignment of error. [*P34] In his final assignment of error, appellant contends the trial court crred in failing to find the Board's order was arbitrary, capricious and not based upon relia- ble evidence. [**26] According to appellant, there were no witnesses to these alleged incidents at issue, and fe- male student did not testify, and, therefore, the Board's decision was not based upon reliable evidence. Appellant suggests there was no evidentiary basis for Mr. Hoffman fo conclude the female student's version of events should be believed over appellant's. {*P3S) As indicated previously, while it is in- cumbent on the common pleas court to examine the evi- dence, such is not the charge of the appellate court. Krumm y. Upper Arlington City Council, Franklin App. No, O5AP-802, 2006 Ohio 2829, at P10. citing Henley. supra. "The fact that the court of appeals [* * *] might have arrived at a different conclusion than the adminis- trative agency is immaterial, Appellate courts must not substitute their judgment for those of an administrative agency or a trial court absent the approved criteria for doing so." Id., quoting Henley at 147, quoting Lorain City School Dist. Bd. of Edn., supra. [*P36] As recognized by both parties, this matter entailed credibility determinations in that it was essen- tially appellant's word against that of female student. However, there is nothing in the evidence to suggest fe- mule student was |**27] not reliable or credible. At the Board hearing, Mr. Hoffman heard testimony trom Ms. Blackley, Mr. Hershiser, Mr. Smith, Principal Meyer, appellant, and his parents, Tracy and David Moody. Mr. Hoffman also reviewed the transcript of the hearing be- fore Mr. Hershiser, as well as written character reter- ences submitted by appellant. While appellant contended the incidents complained of consisted of consensual hugging, kissing, and him having his hand on female student's stomach and at the waistline of her punts, fe- male student's version of the incidents differed. Accord- ing to the evidence, female student related that on the two incidents at issue, appellant iricd to put his hand up her skirt, put his hands down her pants, stated "show me your boobs,” and hugged and kissed her without her consent. [*P37] Despite appellant's suggestion that he was credible and female student was not, Mr. Hoffman ob- viously found to the contrary. Though female student was not there to testify, appellant was permitted to com-E1230 - Q49 Page 8 2008 Ohio 591, *; 2008 Ohio App. LEXIS 495, ** pel her testimony before the common pleas court, but he declined to do so. Despite his protestations that the evi- dence before the Board was inconsistent and contradic- tory, upon review of the record, [**28] we are unable to find that the trial court abused its discretion in giving due deference to the Board's determination, and finding a preponderance of reliable, probative, and substantial evidence existed to support the Board's decision. Accor- dingly, we overrule appellant's third assignment of error. [*P38] For the foregoing reasons, appellant's three assignments of error are overruled, and the judgment of the Franklin County Court of Common Pleas is hereby affirmed. Judgment affirmed. PETREE and TYACK, JJ., concur.E1230 - 950 Page 1 2001 Ohio App. LEXIS 1418, * Billy L. Workman, Jr., Appellant-Appellant, v. Franklin County District Board of Health, Appelice-Appellee. No. OOAP-905 COURT OF APPEALS OF OHIO, TENTH APPELLATE DISTRICT, FRANKLIN COUNTY 2001 Ohio App. LEXIS 1418 March 27, 2001, Rendered PRIOR HISTORY: (*1] APPEAL from the Franklin County Court of Common Pleas, DISPOSITION: — Judgment affirmed. COUNSEL: Gilbert L. Krone and Michael H. Dulin, for appellant. Ron O'Brien, Prosecuting Attorney, and Joseph R. Dur- ham, for appellce. JUDGES: BROWN, J. TYACK and LAZARUS, JJ., concur. OPINION BY: BROWN OPINION (REGULAR CALENDAR) DECISION BROWN, J. Billy L. Workman, Jr.. appellant, appeals a judgment of the Franklin County Court of Common Pleas, which rendered a decision in favor of appellee, the Franklin County District Board of Health ("the board"), to deny a request for a variance filed by appellant. On September 3. 1999, appellant submitted a request to the board for a variance in relation to property he pur- chased. A house located on the property contained a po- tentially bad water system and was serviced by an out- house. Appellant wanted to tear down the existing house, erect a manufactured home on the site, and install a household sewage disposal system and water well on the Property. Appellant requested a variance of Franklin County Board of Health Regulation ("Health Reg.”) 701.02(1), which states: On all lots requiring both an individual water supply and a houschold sewage disposal system to be [2] in- stalled, a minimum land area of 40,000 sq. f. will be required. Only those lots created by regulations, proce- dures, and policies established by the Mid-Ohio Regional Planning Commission at the lime of their creation will be exempt from the 40,000 sq. fi. requirement. Appellant requested a variance because his lot measures approximately 5,850 square feet, and thus. does not comply with the 40.000 square foot require- ment. Appellant stated in his application that “adherence to the applicable regulation would be an unnecessary and unusual hardship duc to the fact that I would be forced to use the existing outdated sewage disposal system.” The board notificd appellant by letter that it would consider appellant's request at a mecting held on Sep- tember 14, 1999. ‘The letter stated that appellant “and/or your legal representative are invited and encouraged to attend.” At the mecting, James Lynch, a water and wastewater program advisor to the buard, recommended that appellant's request for a variance be denied. Lynch stated: What this is is a size variance. This gentleman bought a lot with an existing house on it. He was pro- posing to tear down the house. Then he put a manufac- lured [*3] home on the site. The site currently has an outhouse. That's part of the reason the peuple left. They also have a potentially bad water system in the house. They never had plumbing sv there's no wastewater prob- lems technically. MORPC [the Mid-Ohio Regional Plan- ning Commission] did approve the previous owners for u new well. But then these people moved out basically. These new owners don't qualify under the MORPC pro- gram for a free well. They're going to have to drill another well. The board voted 3-0 in favor of denying appellant's requesi. The board's decision to deny the variance was confirmed in a letter to appellant stating the "board did not believe that the granting of this variance would be to the best interest of the public." Appellant filed an appeal of the board's decision with the trial court pursuant to &.C. 1/91 xE1230 - 951 Page 2 2001 Ohio App. LEXIS 1418, * argued before the trial court that the board's decision should be overtumed because: (1) the board failed to slate reasons for the denial of the variance, and (2) the board violated the Equal Protection Clause of the Ohio Constitution because the board had granted similar re- quests in the past. The trial court affirmed [*4] the board's decision. finding that the evidence presented supported the denial of appellant's request. Appellant claims he was denied equal protection because some of his neighbors were granted similar variances although evidence of such wus not presented to the board, and no motion for presentation of additional evidence was made pursuant to R.C. 2506.03. Appellant appeals this decision and presents the following three assignments of error: 1. THE TRIAL COURT ERRED BY FIN