[Cite as Tuscarawas Ct.y Pub. Defender's Office v. Goudy , 2021-Ohio-1754.]

COURT OF APPEALS TUSCARAWAS COUNTY, OHIO

FIFTH APPELLATE DISTRICT

TUSCARAWAS COUNTY PUBLIC DEFENDER’S OFFICE : : JUDGES:

: : Hon. Craig R. Baldwin, P.J. Appellan t : Hon. William B. Hoffman, J. : Hon. Patricia A. Delaney, J. -vs- : : Case No. 2020 AP 10 0023 : KRISTY GOUDY : : : Appellee : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County Court of Common Pleas, Case No. 2019 AA 10 0679

JUDGMENT: REVERSED; JUDGMENT RENDERED PURSUANT TO APP.R. 12(B)

DATE OF JUDGMENT ENTRY:

APPEARANCES: May 20, 2021

For Appellant: For Appellee:

SCOTT H. DEHART MICHAEL A. MOSES JONATHAN J. DOWNES Moses Law Offices, L.L.C. Zashin & Rich Co., L.P.A. 556 E. Town Street

– Suite 201 17 South High St., Suite 750 Columbus, OH 43215-4802 Columbus, OH 43215[Cite as Tuscarawas Ct.y Pub. Defender's Office v. Goudy , 2021-Ohio-1754.]

Delaney, J. {¶1} Appellant Tuscarawas County Public Defender’s office appea ls the September 16, 2020 judgment entry of the Tuscarawas County Cour t of Common Pleas.

FACTS AND PROCEDURAL HISTORY Tuscarawas County Public Defender’s Office {¶2} Appellant Tuscarawas County Public Defender’s Office (“TCP D”) hired Appellee Kristy Goudy as a full-time secretary on or about Augu st 19, 1996. Ms. Goudy was a classified employee. {¶3} In 2017 and 2018, TCPD alleged that Ms. Goudy engaged in m ultiple acts of misconduct in violation of the Tuscarawas County personnel p olicy manual. The Tuscarawas County Human Resources began an investigation and pl aced Ms. Goudy on paid administrative leave. {¶4} A pre-disciplinary hearing was held on July 27, 2018. The Hearing Officer issued a report determining Ms. Goudy had violated various stan dards of conduct. On November 7, 2018, the TCPD issued an Order of Removal, terminat ing Ms. Goudy’s employment. The Order of Removal stated that Ms. Goudy engaged in insubordination, discourteous treatment of the public, dishonesty, violations of rules and other failure of good behavior when: [Goudy] disregarded written instructions for answering the tele phone on June 15, 2018; dishonestly represented that [a secretary] was n ot on the phone; slammed [the secretary’s] office door in anger; made ina ppropriate comments of a sexual nature directed at [another secretary]; vi olated a[Cite as Tuscarawas Ct.y Pub. Defender's Office v. Goudy , 2021-Ohio-1754.]

direct order not to discuss an ongoing investigation by talking with [another secretary about it]; and engaged in menacing behavior. Appeal to the State Personnel Board of Review {¶5} Ms. Goudy appealed her removal to the State Personnel Boar d of Review (“SPBR”). The administrative hearing was held before the Admini strative Law Judge on April 2 and 3, 2019. Multiple witnesses testified at the hearin g. On May 14, 2019, the Administrative Law Judge issued his Report and Recommendation. The Report sustained three charges of misconduct based on Ms. Goudy slamming the off ice door; disregarding the policy for answering the telephone; and discourteous or dis respectful treatment of a coworker. The ALJ did not find that Ms. Goudy engaged in menaci ng, dishonesty, or

insubordination. {¶6} Based on the ALJ’s interpretation of TCPD’s Personnel Manu al, the ALJ found Ms. Goudy committed three Group 1 offenses. The Personnel Manual adopted a system of progressive discipline that considered the nature of the violation, the employee’s record of discipline/corrective action, and the empl oyee’s record of performance and conduct. Based on the Group 1 offenses, the pro gressive disciplinary system, and the failure of the TCPD to conduct a performance ev aluation of Ms. Goudy during her 22 years of employment, the ALJ recommended that Ms. Goudy’s removal be modified to a ten-day suspension. The ten-day suspension repres ented the maximum three-day suspension for each offense plus an extra day of susp ension for committing multiple offenses in a short period of time. {¶7} Ms. Goudy and TCPD filed written objections to the Report and Recommendation to the SPBR pursuant to Ohio Admin. Code 124-15- 02, which states,[Cite as Tuscarawas Ct.y Pub. Defender's Office v. Goudy , 2021-Ohio-1754.] “Objections to reports and recommendations should include both a brief statement of the case and a concise statement of each area of disagreement, toge ther with supporting arguments and memoranda. Parties' objections or responses must be limited to evidence presented at hearing. Objections and responses to objections co ntaining arguments based on evidence not already in the record shall be stricken.” In TCPD’s objections to the Report and Recommendation, it referred to the testimony pre sented at the administrative hearing and cited the auditory record of the hea ring (e.g., “Lowdermilk, 4/2/2019 04:02:00”). On August 28, 2019, a three-member panel o f the SPBR held an oral hearing on the parties’ objections. {¶8} On September 18, 2019, the SPBR overruled the parties’ obj ections and adopted the Report and Recommendation that Ms. Goudy’s removal be modified to a tenday suspension pursuant to R.C. 124.03 and 124.34. Appeal to the Court of Common Pleas {¶9} On October 2, 2019, TCPD filed a Notice of Appeal of the S eptember 18, 2019 SPBR Order with the Tuscarawas County Court of Common Plea s. TCPD paid a deposit to the Ohio State Treasurer in the amount of $935.50 pu rsuant to R.C. 119.12(J)

and Ohio Admin. Code. 124-15-08. {¶10} On November 13, 2019, the trial court issued a judgment e ntry acknowledging a Notice of Appeal of Administrative Order was fi led by TCPD on October 2, 2019. The trial court ordered the SPBR, pursuant to R.C. 119 .12(I), to certify and file the complete record of the administrative proceedings within 30 days after the receipt of the Notice of Appeal. After the certification and filing of the complete record, the trial court would issue further orders as required by R.C. 119.12.[Cite as Tuscarawas Ct.y Pub. Defender's Office v. Goudy , 2021-Ohio-1754.] {¶11} On October 30, 2019, Shane G. Trace, SPBR Program Adminis trator, filed a notice with the Clerk of Courts stating “[e]nclosed please fi nd the complete record of the proceedings before the State Personnel Board of Review in the a ppeal of Tuscarawas County Public Defender v. Kristy Goudy . This is to certify that the record consists of the enclosed proceedings, exhibits, miscellaneous documents, and tr anscript. Documents are presented in reversed chronological order.” {¶12} The trial court held a pretrial conference on January 6, 2020. The pretrial order, filed on January 8, 2020, set a briefing schedule. TCPD’ s memorandum of law was due on February 6, 2020, Ms. Goudy’s memorandum of law was due on March 9, 2020, and the reply memorandum was due on March 24, 2020. {¶13} On January 30, 2020, Lisa Reid, assistant attorney genera l representing the SPBR, sent an email to the trial court stating: We today discovered that one day of the transcript was omitted from our earlier filing. We have contacted the court reporter and ordered the missing da y, and will request that they put a rush on it. We believe that the missing piece of the transcript can reasonably be filed on or before February 14th. Of course, this necessitates altering the briefing schedule ear lier set by the

Court. Thanks for your attention and patience here. We apologize for t his

inconvenience to all concerned. {¶14} On January 31, 2020, TCPD filed a “Motion for Judgment in Favor of Appellant to Vacate the Order of the State Personnel Board of R eview.” In the motion,[Cite as Tuscarawas Ct.y Pub. Defender's Office v. Goudy , 2021-Ohio-1754.] TCPD stated it had requested copies from the SPBR of all the tr anscripts that SPBR had

filed with the trial court when it certified the record. The SP BR provided TCPD with transcripts for April 2, 2019, the first day of the administrat ive hearing, and August 28, 2019, the hearing on the parties’ objections. The SPBR did not file a transcript for the second day of the administrative hearing, held on April 3, 2019 . The second day of the administrative hearing included the testimony of Nicole Stephen , the last witness for TCPD’s case-in-chief, and the entirety of Ms. Goudy’s case-in-c hief, where she and her witness, Lisa Calderon testified. TCPD contacted SPBR on Januar y 29, 2020 regarding the missing April 3, 2019 transcript. In response, TCPD (and th e trial court) received the January 30, 2020 email from Lisa Reid, quoted above. {¶15} TCPD argued SPBR failed to prepare and certify the comple te record in compliance with R.C. 119.12(I), thereby placing a mandatory dut y on the trial court to find in favor of TCPD, the party adversely affected. It argued becau se the SPBR failed to certify the complete record, TCPD did not need to show prejudic e. In the alternative, if the trial court determined a showing of prejudice was necessary, TC PD was prejudiced because the record evidence necessary for the trial court to di spose of the appeal was not certified to the court, the certification of the record was completed at TCPD’s expense, and the SPBR’s omission necessitated a delay in the parties’ br iefing schedule, which potentially exposed TCPD to additional back pay liabilities and interest if the trial court

affirmed the Order. {¶16} The April 3, 2019 transcript was filed with the Clerk of Courts on February 6, 2020.[Cite as Tuscarawas Ct.y Pub. Defender's Office v. Goudy , 2021-Ohio-1754.] {¶17} On February 7, 2020, SPBR filed a Notice of Appearance, M emorandum in Opposition to TCPD’s Motion for Judgment, and Motion for Leave to File Excerpt of Administrative Record Out of Rule. SPBR stated the April 3, 201 9 transcript was omitted from the certified record due to a unspecified clerical error. Ms. Goudy also filed a Memorandum in Opposition, Motion for Leave to Join Additional P arty, and Motion for Leave to File Additional Portion of Record. SPBR and Ms. Goudy argued the SPBR substantially complied with R.C. 119.12(I) when it certified th e record. The omission of the transcript was a clerical error, which did not prejudice TC PD. Ms. Goudy filed a supplemental memorandum on February 12, 2020. {¶18} TCPD filed replies to the motions for joinder, arguing th e SPBR was not a proper party to the administrative appeal. Ms. Goudy filed a re sponse and included the affidavit of Shane Trace, the SPBR Program Administrator. Trace averred that in his capacity as Program Administrator, he prepares, files, and cert ifies the administrative record developed by the SPBR to the Courts of Common Pleas. He stated that due to a “clerical error” by his office, “a third day of transcript befo re the SPBR was inadvertently omitted from the October 30, 2019 filing.” {¶19} The trial court held an oral hearing on the motions on Ma rch 9, 2020. {¶20} The trial court issued its judgment entry on April 27, 20 20. It first denied the motion of the SPBR and Ms. Goudy to join the SPBR as a party to the administrative appeal. It next analyzed whether the failure to file the April 3, 2019 transcript violated R.C. 119.12(I), necessitating judgment in favor of TCPD. The trial c ourt found that when the SPBR was notified of the missing transcript on January 29, 2020 , it filed the transcript eight days later on February 6, 2020. The court looked at the b riefing schedule it had set.[Cite as Tuscarawas Ct.y Pub. Defender's Office v. Goudy , 2021-Ohio-1754.] As of January 9, 2020, the matter was not scheduled for an oral hearing until April 27, 2020. It found the “late filing of a portion of the written tra nscript on 2/6/2020, may have resulted in a modified briefing schedule; however, the late fil ing alone would not have necessitated a delay of the overall disposition of this case.” (Judgment Entry, Apr. 27, 2020). As of February 6, 2020, the trial court had the complete record, including the April 3, 2019 transcript. The trial court therefore concluded, TCPD h ad not been prejudiced by the late filing of a portion of the written transcript. It deni ed the motion for judgment filed by TCPD and granted the motion for leave to filed addition port ion of the record. {¶21} The court set a new briefing schedule, which was to be co mpleted by July 3, 2020. The trial court held an oral hearing on the merits of the administrative appeal on August 24, 2020. {¶22} On September 16, 2020, the trial court issued its judgmen t entry affirming the Order of the SPBR that modified Ms. Goudy’s removal to a te n-day suspension. {¶23} It is from this judgment entry that TCPD now appeals.

ASSIGNMENTS OF ERROR {¶24} TCPD raises three Assignments of Error: {¶25} “I. THE COMMON PLEAS COURT ERRED IN FINDING THAT THE

TUSCARAWAS COUNTY PUBLIC DEFENDER WAS NOT ENTITLED TO JUDGMENT UNDER R.C. §119.12(I) AS A RESULT OF THE FAILURE OF THE STATE P ERSONNEL

BOARD OF REVIEW TO CERTIFY TIMELY A COMPLETE RECORD OF ITS

PROCEEDINGS. {¶26} “II. THE COMMON PLEAS COURT ERRED IN AFFIRMING THE ORDER OF SPBR, TO THE EXTENT IT DETERMINED THAT KRISTY GOUDY WAS NOT[Cite as Tuscarawas Ct.y Pub. Defender's Office v. Goudy , 2021-Ohio-1754.]

GUILTY OF THE ADMINISTRATIVE CHARGE OF INSUBORDINATION FOR

VIOLATING AN ORDER NOT TO DISCLOSE DETAILS OF TUSCARAWAS COUNTY ’S

ADMINISTRATIVE INVESTIGATION TO A WITNESS. {¶27} “III. THE COMMON PLEAS COURT ERRED IN AFFIRMING THE ORDER OF THE SPBR, TO THE EXTENT THAT SPBR RELIED IMPROPERLY ON AN EX TRASTATUTORY REQUIREMENT TO CONDUCT PERFORMANCE EVALUATIONS.”

ANALYSIS

I. {¶28} In its first Assignment of Error, TCPD argues the trial c ourt erred when it did not find that the SPBR failed to timely certify a complete reco rd of the administrative proceedings to the trial court. We agree. Administrative Proceedings {¶29} R.C. 124.34(A) says that no employee or officer employed in the civil service “shall be reduced in pay or position, fined, suspended, or removed, or have the officer's or employee's longevity reduced or eliminated” except for the reasons enumerated in the statute, and those reasons include incompeten cy, inefficiency, unsatisfactory performance, dishonesty, neglect of duty, violat ion of any policy or work rule, acts of misfeasance, malfeasance, or nonfeasance in offic e, or conviction of a felony while employed in the civil service. Binder v. Cuyahoga Cty ., 161 Ohio St.3d 395, 2020- Ohio-5126, 163 N.E.3d 554, ¶ 17. In this case, Ms. Goudy was re moved from her position with the TCPD. In a case of removal, the appointing authority s hall serve the employee with a copy of the order of removal, which shall state the reas ons for the action. {¶30} Within ten days of the date on which the order is served, the employee:[Cite as Tuscarawas Ct.y Pub. Defender's Office v. Goudy , 2021-Ohio-1754.] may file an appeal of the order in writing with the state perso nnel board of review or the [local civil service] commission. * * * If an app eal is filed, the board or commission shall forthwith notify the appointing autho rity and shall hear, or appoint a trial board to hear, the appeal within thirty days from and after its filing with the board or commission. The boa rd, commission, or trial board may affirm, disaffirm, or modify the judgment of the appointing authority. * * * R.C. 124.34(B). In cases of removal, any party adversely affect ed by the order of the SPBR, the appointing authority or employee, may appeal from the decision of the state personnel board of review or the commission, and any such appea l shall be to the court of common pleas of the county in which the appointing authority is located, or to the court of common pleas of Franklin county, as provided by section 119. 12 of the Revised Code. R.C. 124.34(B); R.C. 119.12(B); Binder v. Cuyahoga Cty. , 161 Ohio St.3d 395, 2020- Ohio-5126, 163 N.E.3d 554, ¶ 18.

The Boundaries of R.C. 119.12 {¶31} An appeal from the SPBR is governed by R.C. 119.12. R.C. 119.12 sets forth the procedures that must be followed in administrative ap peals. Administrative agencies have the duty to furnish the record of appealed admini strative proceedings to the common pleas courts for the trial court’s review. “Indeed, the Ohio Supreme Court has observed that R.C. 119.12 sets forth a ‘stringent requireme nt’ for the transmittal of

administrative records.” Gwinn v. Ohio Elections Comm ., 187 Ohio App.3d 742, 2010- Ohio-1587, 933 N.E.2d 1112, ¶ 13 quoting Arlow v. Ohio Rehab. Servs. Comm ., 24 Ohio St.3d 153, 155, 493 N.E.2d 1337 (1986). Specifically, R.C. 119. 12 states:[Cite as Tuscarawas Ct.y Pub. Defender's Office v. Goudy , 2021-Ohio-1754.] Within thirty days after receipt of a notice of appeal from an order in any case in which a hearing is required by sections 119.01 to 119.1 3 of the Revised Code, the agency shall prepare and certify to the court a complete record of the proceedings in the case. Failure of the agency to comply within the time allowed, upon motion, shall cause the court to enter a finding in favor of the party adversely affected. Additional time, however , may be granted by the court, not to exceed thirty days, when it is sho wn that the agency has made substantial effort to comply. The record shall be prepared and transcribed, and the expense of it shall be taxed as a part of the costs on the appeal. The appellant shall provide security for costs s atisfactory to the court of common pleas. Upon demand by any interested party, the agency shall furnish at the cost of the party requesting it a c opy of the stenographic report of testimony offered and evidence submitted at any hearing and a copy of the complete record. {¶32} The Ohio Supreme Court first examined R.C. 119.12 and the agency’s responsibility to transmit the record in Matash v. State , Dept. of Ins ., 177 Ohio St. 55, 202 N.E.2d 305 (1964). In Matash , the administrative agency failed to prepare and certify the record for 34 days after filing of the notice of appeal of the administrative order. The Court held that “[w]here an appeal from an order of an administrative agency has been duly made to the Common Pleas Court pursuant to Section 119.12, Revi sed Code, and the agency has not prepared and certified to the court a complete r ecord of the proceedings within twenty days after a receipt of the notice of appeal and the court has granted the[Cite as Tuscarawas Ct.y Pub. Defender's Office v. Goudy , 2021-Ohio-1754.]

agency no additional time to do so, the court must, upon motion of the appellant, enter a judgment for the appellant.” 1 Matash , syllabus. {¶33} The Ohio Supreme Court next examined R.C. 119.12 in Lorms v. State Dept. of Commerce, Div. of Real Estate , 48 Ohio St.2d 153, 357 N.E.2d 1067 (1976). In that case, the Ohio Real Estate Commission rejected the appella nt’s application to

become a real estate broker because it found he did not have su fficient experience to

take the broker’s examination. Id . at 153. The appellant requested a public hearing on his application, where he introduced two letters from business asso ciates who had knowledge of his achievements as an electrical equipment salesp erson. The commission reaffirmed the denial of the appellant’s application and the ap pellant appealed to the Court

of Common Pleas. Id . at 153. The commission certified the record of the administra tive proceedings; however, it failed to include in the record the tw o letters from the appellant’s

business associates. Id . at 154. The appellant moved for judgment because the commission failed to certify “the complete record” as required by R.C. 119.12. The trial court denied the motion because it found the letters were adequ ately summarized in the

record. Id

. {¶34} On appeal to the Supreme Court, the appellant argued that under R.C. 119.12, there could only be one consequence as the result of an incomplete record on appeal, even if the omissions were nonprejudicial. Id . at 154-155. The Lorms Court examined the language of R.C. 119.12 and as a result, modified its prior holding in

Matash . The Court found R.C. 119.12 “only mandates a finding for the party ‘adversely

1 In 1964, R.C. 119.12 required the record be prepared and certif ied 20 days after the receipt of notice of appeal. It further stated, “Additional time, however, may be gr anted by the court, not to exceed ten days, when it is shown that the agency has made substantial effort to comply.”[Cite as Tuscarawas Ct.y Pub. Defender's Office v. Goudy , 2021-Ohio-1754.] affected’ by an agency’s failure to certify a ‘complete record’ s’ [sic] within the prescribed

time.” Id . at 155. R.C. 119.12 did not require an automatic finding for the appellant if the omission in no way prejudices the appellant in the presentation of his appeal. Id . By so finding, the Lorms Court reaffirmed the Court’s “institutional commitment to embra ce substance and abjure form where parties may be assisted in obta ining justice through due process of law.” Arlow , 24 Ohio St.3d 153, 155; See R.C. 1.11. {¶35} Considering the facts of the case under its interpretatio n of R.C. 119.12, the Court found the record did not indicate the appellant was preju diced by the omission of

the letters from the record. The letters were summarized in the record and the portion of the transcript where the letters are described made clear they were letters from general business associates not qualified to testify about the appellan t’s real estate experience.

Lorms , 48 Ohio St.2d 153, 155. {¶36} The Ohio Supreme Court further refined the boundaries of R.C. 119.12 in

Arlow v. Ohio Rehabilitation Services Com’n , 24 Ohio St.3d 153, 493 N.E.2d 1337 (1986).

The commission in Arlow filed the complete record of the administrative proceedings 16 days after the notice of appeal, but the commission used the in correct trial court case number. The issue before the Court was whether a timely and com plete record, albeit with an unintentionally erroneous or omitted case number, const itutes a failure of certification, which would require entry of a finding for the p arty appealing the administrative action pursuant to R.C. 119.12. Id . at 155. {¶37} The Arlow Court affirmed the holding in Matash that an administrative agency’s failure to certify to the common pleas court the compl ete record of the appealed administrative proceedings within the time limit of R.C. 119.12 requires the trial court,[Cite as Tuscarawas Ct.y Pub. Defender's Office v. Goudy , 2021-Ohio-1754.] upon motion, to enter a judgment for the appellant. Id . at 155; Sinha v. Ohio Dept. of Agriculture , 10th Dist. Franklin No. 95APE09-1239, 1996 WL 00753 (Mar. 5, 1996), *2;

Gwinn v. Ohio Elections Comm. , 187 Ohio App.3d 742, 2010-Ohio-1587, 933 N.E.2d 1112, ¶ 15 (10th Dist.), appeal not accepted, 126 Ohio St.3d 15 48, 2010 -Ohio- 3855, 932 N.E.2d 341. The Court was not prepared, however, to declare that a record certified

to the trial court with an inaccurate or omitted case number co nstituted a failure of

certification. Id . It looked to Lorms to find the edges of R.C. 119.12: A mechanistic interpretation of R.C. 119.12 where appellees hav e not shown prejudice and where a record has been submitted, albeit unintentionally with erroneous or omitted case numbers, may con stitute the farthest boundary of the exception we set forth in Lorms , supra . Such an exception does not vitiate the basic premise of R.C. 119.12 whe re no action has been taken to certify an administrative record.

Id

. at 156. {¶38} The Court found the records in Arlow were timely submitted to the trial court and the trial record did not show, nor did the parties allege, that the unintentionally erroneous or omitted case numbers prejudiced the appellants. Id . The Arlow Court held that “under R.C. 119.12 where a record has been timely submitte d to a court of common pleas, albeit with an unintentionally erroneous or omitted case number, in the absence of prejudice to the party appealing the administrative action, suc h submission shall not

constitute a failure of certification.” Id . at 156. {¶39} After Arlow , the courts of appeals applying R.C. 119.12 found the Supreme Court established two boundaries. First, if the agency has fail ed to file a complete,[Cite as Tuscarawas Ct.y Pub. Defender's Office v. Goudy , 2021-Ohio-1754.] certified record within the 30-day period and the trial court h as not granted the agency additional time, the rule is absolute: the court of common plea s must enter judgment for the appellant. Matash, supra ; Gwinn, supra at ¶ 15. Sinha v. Ohio Dept. of Agriculture , 10th Dist. Franklin No. 95APE09-1239, 1996 WL 99753 (Mar. 5, 19 96), *2; Knight v.

Cleveland Civ. Serv. Comm. , 8th Dist. Cuyahoga No. 96777, 2011-Ohio-6440, ¶ 8, appeal not accepted, 131 Ohio St.3d 1484, 963 N.E.2d 824, 2012 -Ohio- 1143. Second, “where an administrative agency timely certified to the court of commo n pleas the record of its administrative proceedings but with an unintentional error or o mission in an otherwise complete record, the party appealing the administrative action pursuant to R.C. 119.12 is not entitled to a judgment in his or her favor absent a showing of prejudice.” Citizens for

Akron v. Ohio Elections Comm ., 10th Dist. Franklin Nos. 11AP-152, 11AP-153, 2011- Ohio-6387, ¶ 19 quoting Gwinn, supra at ¶ 16 citing Arlow, supra ; Lorms, supra

. A Complete Record? The Failure to File the April 3, 2019 Transc ript {¶40} TCPD argues that because the SPBR failed to file the comp lete record pursuant to R.C. 119.12, TCPD is entitled to judgment in its fa vor, and it does not need to show prejudice to prevail. In the alternative, TCPD argues t hat if this Court determines the failure to timely file the April 3, 2019 transcript was an unintentional error or omission, TCPD can demonstrate it was prejudiced by the failure to file t he complete record. Ms. Goudy contends that while the complete record was not filed wit hin 30 days of the notice of appeal, the failure to include the April 3, 2019 transcript was a “mere omission” and TCPD suffered no prejudice from the omission. Upon our review o f the law and the record, we find the SPBR failed to file the complete record in violatio n of R.C. 119.12 and its[Cite as Tuscarawas Ct.y Pub. Defender's Office v. Goudy , 2021-Ohio-1754.] failure to file the transcript went beyond a “mere omission.” W e further find the failure to timely file the transcript prejudiced TCPD. {¶41} The Tenth District Court of Appeals remarked there were a t least three situations in which an appellant is entitled to judgment pursua nt to R.C. 119.12 only upon a showing of prejudice: Absent a showing of prejudice, an appellant is not entitled to judgment pursuant to paragraph nine when: (1) there is a mere omission from a record that is timely certi fied, Lorms v.

State (1976), 48 Ohio St.2d 153; Gahm v. Ohio State Bd. of Cosmetology (Dec. 10, 1992), Scioto App. No. 92CA2074, unreported; Bergdahl v. Ohio State Board of Psychology (1990), 70 Ohio App.3d 488, 491-493; Whitaker v. Department of Commerce (May 18, 1987), Montgomery App. No. CA10005, unreported; (2) the record is timely certified but under an unintentionally erroneous or omitted case number, Arlow v. Ohio Rehab. Serv. Comm . (1986), 24 Ohio St.3d 153; or (3) the record is timely certified under the case number of a s eparately filed appeal from the same agency adjudication, State ex rel. Williams Ford Sales, Inc. v. Connor (Jan. 25, 1996), Franklin App. No. 93APD11-1539, unreported (Memorandum Decision); In re Calcutta Health Care Center (Feb. 13, 1990), Franklin App. No. 89AP-599, unreported (1990 O pinions 520, 523-525).[Cite as Tuscarawas Ct.y Pub. Defender's Office v. Goudy , 2021-Ohio-1754.] Sinha v. Ohio Dept. of Agriculture , 10th Dist. Franklin No. 95APE09-1239, 1996 WL 99753, *2. “The Arlow exception requiring a showing of prejudice when a record has be en timely certified, albeit with an unintentionally erroneous or o mitted case number ‘does not vitiate the basic premise of R.C. 119.12 where no action has been taken to certify an

administrative record.’” Id. at *2. {¶42} There is no dispute in this case that the SPBR did not fi le the complete record of the SPBR proceedings within 30 days of the notice of appeal. The filing on October 30, 2019 can only be characterized as an incomplete rec ord because the SPBR omitted the transcript of the April 3, 2019 hearing, the second day of a two-day hearing where TCPD finished its case-in-chief and Ms. Goudy presented h er case-in-chief. Pursuant to R.C. 119.12(I), after a notice of appeal from an ag ency's order is filed with the common pleas court, the agency must, within 30 days after r eceipt of the notice, “prepare and certify to the court a complete record of the proc eedings in the case.” Angerbauer v. State Med. Bd ., 10th Dist. No. 17AP-88, 2017-Ohio-7420, 96 N.E.3d 1100, 2017 WL 3774838, ¶ 19. “A ‘complete record of proceedings’ in a case is a ‘precise history’ of the administrative proceedings from their commencem ent to their termination.”

Id

. quoting Beach v. Ohio Bd. of Nursing , 10th Dist. No. 10AP-940, 2011-Ohio-3451, 2011 WL 2732243, ¶ 21, quoting Checker Realty Co. v. Ohio Real Estate Comm ., 41 Ohio App.2d 37, 42, 322 N.E.2d 139 (10th Dist. 1974). A complete rec ord of proceedings includes a stenographic record of hearings in certain circumsta nces. Id . citing Citizens for

Akron v. Ohio Elections Comm ., 10th Dist. No. 11AP-152, 2011-Ohio-6387, 2011 WL

6270726.[Cite as Tuscarawas Ct.y Pub. Defender's Office v. Goudy , 2021-Ohio-1754.] {¶43} The record shows that not only did the SPBR fail to file the April 3, 2019 transcript within the 30-day time period, it failed to have the April 3, 2019 hearing

transcribed within the time period. The email from the SPBR stated, “We hav e contacted the court reporter and ordered the missing day, and will reques t that they put a rush on

it.” 2 R.C. 119.12 plainly states, “Within thirty days after receipt o f a notice of appeal from an order in any case in which a hearing is required * * *, the agency shall prepare and certify to the court a complete record of the proceedings in th e case.” (Emphasis added.) We cannot find the SPBR prepared and certified the complete rec ord within 30 days of the notice of appeal because it did not transcribe the second d ay of testimony from a twoday administrative hearing. It was only because TCPD contacted the SPBR for a copy of the transcripts that the agency discovered it did not transcrib e the April 3, 2019 hearing. Unlike the Rules of Appellate Procedure where it is the duty of the appellant to ensure the Court has the record upon appeal, R.C. 119.12 squarely places t he burden upon the agency to transmit the complete record to the court of common p leas. See App.R. 9; App.R. 10. Ohio Adm.Code 124-11-16(A) states, “The board shall transmit a transcript of each hearing appealed to a court of common pleas.” {¶44} The SPBR’s failure to comply with R.C. 119.12 is further compounded by its actions after it became aware it did not prepare and certif y the April 3, 2019 proceedings. R.C. 119.12 clearly states the procedure if the ag ency requires an extension to certify the record: “Additional time, however, may be grante d by the court, not to exceed thirty days, when it is shown that the agency has made substant ial effort to comply.” The SPBR sent an email on January 30, 2020 to the trial court and t he parties notifying of

2 It appears from the record that the three-panel board reviewed the auditory record of the administrative hearing when reviewing the objections to the Report and Recomme ndation.[Cite as Tuscarawas Ct.y Pub. Defender's Office v. Goudy , 2021-Ohio-1754.] them of the missing transcript. The email from the SPBR stated, “We believe that the missing piece of the transcript can reasonably be filed on or b efore February 14th.” The

SPBR did not move the trial court for additional time before fi ling the transcript well after the 30-day deadline had passed. The SPBR did not file a formal motion with the trial court requesting additional time until February 7, 2020, the day afte r it filed the April 3, 2019 transcript with the trial court. {¶45} We find the SPBR’s failure to prepare and file a complete record falls within the boundary established by Matash, therefore TCPD is entitled to judgment without a showing of prejudice. The failure to prepare and certify the co mplete record by transcribing the April 3, 2019 proceedings, the second day of t estimony from a two-day hearing, goes beyond a mere omission or clerical error as found in Lorms or Arlow. No action to prepare and certify the complete record was taken by the SPBR until alerted by TCPD. The action taken by the SPBR in submitting the overdue tr anscript to the trial court did not comply with R.C. 119.12. It is the basic premise of R.C . 119.12 that where no action has been taken to certify the complete administrative re cord within the 30-day period, judgment must be entered for the appellant. {¶46} We are cognizant, however, of the holding in Arlow and the Supreme Court’s concern for substance over form to assist parties in ob taining justice through the due process of law. Arlow, supra at 155. We therefore consider whether TCPD was prejudiced by the failure to file the transcript of the April 3 , 2019 hearing within the 30-day period. {¶47} The trial court found the late filing of the transcript r esulted only in a modification of the briefing schedule; therefore, TCPD was not prejudiced by the filing of[Cite as Tuscarawas Ct.y Pub. Defender's Office v. Goudy , 2021-Ohio-1754.] the portion of the written transcript. The modification of the briefing schedule, while seemingly procedurally innocuous, has a real-life impact on bot h parties. On September 18, 2019, the SPBR issued its order rescinding the Ms. Goudy’s removal, thereby entitling Ms. Goudy to a restatement to her employment. TCPD filed the no tice of appeal on October 2, 2019 and the trial court set a briefing schedule whe re TCPD’s memorandum of law was due on February 6, 2020, Ms. Goudy’s memorandum of l aw was due on March 9, 2020, the reply memorandum was due on March 24, 2020, and an oral hearing was to be held in April 2020. After the trial court’s denial of the mo tion for judgment, it set a new briefing schedule where the final brief was due on July 3, 2020 . It held an oral hearing on the briefs on August 24, 2020. Judgment affirming the SPBR orde r was rendered on September 16, 2020. {¶48} At the March 9, 2020 oral hearing on TCPD’s motion for ju dgment, the parties stated that after the SPBR ordered that Ms. Goudy recei ve a 10-day suspension, TCPD did not reinstate Ms. Goudy’s employment. (T. 30). There w as no motion asking the trial court to stay the Order of the SPBR. (T. 31). Ms. Gou dy was searching for other employment because she had to a duty to mitigate her damages. ( T. 32). If the trial court affirmed the Order and this Court likewise affirmed, TCPD could be liable for Ms. Goudy’s back pay from the date of the Order. The SPBR’s failure to time ly prepare and file the April 3, 2019 transcript prejudiced both parties. The five mont hs delay from briefing to judgment arguably increased TCPD’s exposure for back pay and po stponed the enforcement of the Order reinstating Ms. Goudy’s employment. {¶49} The SPBR failed to prepare and certify to the trial court a complete record of the proceedings in the case within 30 days. The failure of t he SPBR to prepare and[Cite as Tuscarawas Ct.y Pub. Defender's Office v. Goudy , 2021-Ohio-1754.] certify the complete record was prejudicial to both parties, re sulting in a delay in the due process of law. We find that based on Matash , Lorms , and Arlow , TCPD is entitled to judgment for the SPBR’s failure to comply with the time allowed under R.C. 119.12. {¶50} Our decision today reverses the judgment of the trial cou rt, which affirmed the Order of the SPBR rescinding Ms. Goudy’s removal and orderi ng a 10-day suspension. Our judgment today reinstates Ms. Goudy’s removal f rom her employment with TCPD. As stated above, we recognize procedural decisions h ave real-life impact and the decision in this case will negatively impact Ms. Goudy’s em ployment with TCPD. This decision, however, was not lightly made. It was based on the la nguage of R.C. 119.12 crafted by the General Assembly and its choice to place the bur den of ensuring the complete record is timely filed not on the parties with a veste d interest in the action, but upon the agency who is not a party to the appeal. As can be see n by Matash , Lorms , and

Arlow , the courts have attempted to fashion boundaries to ease the i mpact of an agency’s failure to comply with R.C. 119.12. However, the language craft ed by the General Assembly determines today’s result and we are duty-bound to fol low that result.[Cite as Tuscarawas Ct.y Pub. Defender's Office v. Goudy , 2021-Ohio-1754.]

CONCLUSION {¶51} TCPD’s first Assignment of Error is sustained. The judgme nt of the Tuscarawas County Court of Common Pleas is reversed and we rend er judgment in favor of Appellant Tuscarawas County Public Defender’s Office pursuan t to App.R. 12(B). {¶52} Based on our ruling on TCPD’s first Assignment of Error, we find the remaining Assignments of Error to be moot and overrule the same

. By: Delaney, J., Baldwin, P.J. and Hoffman, J., concur.