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

STATE OF OHIO ) IN THE COURT OF APPEALS 

 )ss: NINTH JUDICIAL DISTRICT 

COUNTY OF LORAIN ) 

BARBARA BARR 

 Appellant 

 v. 

LORAIN COUNTY DEPTARTMENT OF 

JOB AND FAMILY SERVICES 

 Appellee 

C.A. No. 18CA011334 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

COURT OF COMMON PLEAS 

COUNTY OF LORAIN, OHIO 

CASE No. 16CV190175 

DECISION AND JOURNAL ENTRY 

Dated: June 28, 2019 

 

CARR, Judge. 

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

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

consistent with this opinion. 

I. 

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

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

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

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

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

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

had W.E.P. workers under her supervision. One of those W.E.P. workers was P.R. 
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{¶3} On April 1, 2014, Ms. Barr was removed from her position. Following predisciplinary conferences, at which time P.R. provided a statement that was recorded, Ms. Barr 

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

rate. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

modified the ALJ’s recommendation. SPBR concluded that: 

The record reflects that Appellant misused her position for personal reasons. 

However, Appellant’s actions must be counterbalanced with her many years of 

satisfactory service with Appellee in her position. Further, Appellant’s rather 

unique and difficult personal circumstances that unquestionably impacted on her 

behavior in this matter seem unlikely to be repeated. Finally, if Appellant is 

prospectively restored to her former position or a comparably-ranked 

position/pay, she still will have paid a hefty monetary penalty for her actions. 

This should certainly sensitize her to the need to carefully and faithfully follow all 

of Appellee’s practices and procedures going forward. 

Wherefore, it is hereby ORDERED that Appellant’s instant REDUCTION be 

MODIFIED to a FINE equivalent to the sum owed to Appellant representing the 

difference between her current pay and her back pay arising from restoration to 

her former classification of Clerical Supervisor, commencing from the effective 

date of the reduction until the final Order of this Board, pursuant to R.C. 124.03 

and R.C. 124.34. 

(Emphasis in original.) 

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

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

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

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

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

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

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

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

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

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

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

supported by the record. 

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

II. 

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN 

AFFIRMING THE DECISION OF THE SPBR ON THE FACTS. 

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

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

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

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

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

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

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

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

St.2d 108, 110 (1980). 

The common pleas court’s review of the administrative record is neither a trial de 

novo nor an appeal on questions of law only, but a hybrid review in which the 

court must appraise all the evidence as to the credibility of the witnesses, the 

probative character of the evidence[,] and the weight [to be given it]. However, 

the findings of the agency are by no means conclusive. Accordingly, a court of 

common pleas may not substitute its judgment for that of an administrative 

agency, but must weigh the evidence in the record, including witness credibility. 

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

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

11. “Unlike the court of common pleas, we do not determine the weight of the evidence. On 
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appeal, this court will only determine if the [court of common pleas] abused its discretion.” 

(Internal citations and quotations omitted.) Id.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

pleas considered this issue when its decision indicates otherwise. This matter is remanded to the 
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court of common pleas for it to consider the merits of Ms. Barr’s argument. Ms. Barr’s 

assignment of error is sustained only to that extent. 

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED AS A MATTER OF LAW BY FIN[D]ING THAT 

THE [] BOARD’S IMPOSITION OF A “FINE” EQUIVALENT TO BARR’S 

BACK PAY CANNOT BE CHALLENGED ON APPEAL IF IT FINDS 

RELIABLE, PROBATIVE AND SUBSTANTIAL EVIDENCE TO SUPPORT 

THE ORDER. 

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

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

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

III. 

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

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

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

this decision. 

Judgment reversed, 

and cause remanded. 

 

 There were reasonable grounds for this appeal. 

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

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

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

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

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

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

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

 Costs taxed to Appellee. 

 

 DONNA J. CARR 

 FOR THE COURT 

TEODOSIO, P. J. 

CONCURS. 

CALLAHAN, J. 

DISSENTING. 

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

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

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

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

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

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

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

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

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

That said, I agree with [SPBR’s] determination that the evidence, testimony, and 

exhibits that make up the record demonstrate that Barr committed multiple 

instances of misconduct but that she nevertheless should be prospectively restored 

to her prior position without back-pay. As such, based on my determination that 

she cannot appeal a sanction to this Court, her appeal must be denied. 
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Simply put, Henry’s Café and its progeny prohibit this Court from reviewing the 

propriety of the decision by [SPBR] to restore Barr to her prior position without 

back-pay. That decision was borne of a desire to harmonize her long years of 

unblemished service against her poor judgment and misconduct developed herein, 

supported by the evidence and testimony contained in the 440 pages of hearing 

transcript. 

Regardless, by restoring Barr to her previous position without back-pay, [SPBR] 

struck a fair, reasonable, and measured balance based upon all of the testimony 

and evidence, much [of] which is not contested. Because this Court finds the 

decision to be supported by reliable, probative, and substantial evidence, and 

what Barr complains of is in reality[] a punishment, this Court cannot review 

[SPBR’s] action on appeal. 

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

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

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

sanction. 

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

assignments of error at this time. I respectfully dissent. 

APPEARANCES: 

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

EUGENE NEVADA, Attorney at law, for Appellee.