[Cite as Hal v. Ohio Dept. of Edn., 2019-Ohio-5081.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Martha Hal, : 

 Appellant-Appellant, : 

 No. 18AP-301 

v. : (C.P.C. No. 17CV-4132)

State of Ohio : (REGULAR CALENDAR) 

Department of Education, 

 : 

 Appellee-Appellee. 

 : 

 

D E C I S I O N 

Rendered on December 10, 2019 

 

On brief: Farlow & Associates, LLC, and Beverly J. Farlow, 

for appellant. Argued: Beverly J. Farlow.

On brief: [Dave Yost], Attorney General, Mary L. Hollern, 

and Hannah Stoneburner, for appellee. Argued: Hannah 

Stoneburner.

 

APPEAL from the Franklin County Court of Common Pleas 

BRUNNER, J. 

{¶ 1} Appellant-appellant, Martha Hal, appeals from a decision and entry of the 

Franklin County Court of Common Pleas affirming the resolution of the State of Ohio Board 

of Education ("Board") which determined that Hal had engaged in conduct unbecoming to 

the teaching profession, in violation of R.C. 3319.31(B)(1), and denying Hal's applications 

for a five-year professional principal license and five-year professional special all grades 

teaching license. For the following reasons, we affirm the common pleas court judgment.

I. FACTS AND PROCEDURAL HISTORY 

{¶ 2} Hal was employed by Columbus City Schools ("CCS") as a teacher and 

administrator beginning in 1989. During the 2010-2011 school year, she was employed as 

a leadership intern assigned to Walnut Ridge High School, which involved duties similar to 
No. 18AP-301 2 

those of an assistant principal. Hal was instrumental in implementing a new program for 

ninth graders called the "Freshman Forgiveness Program" ("FFP"), a program that offered 

the opportunity to ninth graders to raise a failing grade to a "D" if they met the requirements 

of the program, including attendance and additional make-up work. The program only 

applied to core subjects, English, Science, Math, and Social Studies and a student could 

only be enrolled in the program in one core class per nine-week period. A student needed 

to attend the program for nine weeks to raise the failing grade for a nine-week period. A 

student who successfully completed the FFP for a particular grading period could not 

receive any grade higher than a "D." The FFP was approved by the Board in January 2011 

and implemented immediately. 

{¶ 3} On June 2 and 10, 2011, Hal's computer username was used to make changes 

to the grades of eight freshman students, five of whom participated in the FFP. Hal 

admitted making 7 of the 29 changes for those students because she argued the changes 

were the result of the FFP and permissible changes. The changes are as follows: 

{¶ 4} June 2, 2011 changes: 

1. 2:49 pm, Student 1 – final mark in Exploration Lit & Comp 

9 was changed from "F" to "D." Appellant admitted 

making this change. 

2. 2:48 pm, Student 1 – first grading period mark in 

Exploration Lit & Comp 9 changed from "F" to "A." 

Appellant denied making this change. 

3. 2:46 pm, Student 1 – first grading period mark in Physical 

Science was changed from "F" to "B." Appellant denied 

making this change. 

4. 12:40 pm, Student 2 – final mark in Exploration Lit & 

Comp 9 was changed from "F" to "D." Appellant admitted 

making this change. 

5. 12:44 pm, Student 2 – final mark in Physical Science 

changed from "F" to "D." Appellant admitted making this 

change. 

6. 12:36 pm, Student 2 – first grading period mark in 

Physical Science was changed from "F" to "B." Appellant 

denied making this change. 

7. 12:39 pm, Student 2 – second grading period mark in 

Exploration Lit & Comp 9 changed from "F" to "B." 

Appellant denied making this change. 

8. 12:37 pm, Student 2 – second grading period mark in 

Physical Science changed from "F" to "D." Appellant 

admitted making this change. 
No. 18AP-301 3 

9. 2:53 pm, Student 3 – final mark in Physical Science 

changed from "D" to "C." Appellant denied making this 

change. 

10. 12:28 pm, Student 3 – final mark in Algebra 1 changed 

from "F" to "D." Appellant admitted making this change. 

11. 12:27 pm, Student 3 – first grading period mark in Algebra 

1 changed from "F" to "B." Appellant denied making this 

change. 

12. 2:54 pm, Student 3 – third grading period mark in Physical 

Science changed from "F" to "B." Appellant denied making 

this change. 

13. 12:32 pm, Student 4 – final mark in Physical Science 

changed from "F" to "D." Appellant admitted making this 

change. 

14. 12:31 pm, Student 4 – first grading period mark in Physical 

Science changed from "F" to "B." Appellant denied making 

this change. 

15. 12:07 pm, Student 6 – final mark in Physical Science 

changed from "F" to "C." Appellant denied making this 

change. 

16. 12:06 pm, Student 6 – second grading period mark in 

Physical Science changed from "F" to "A." Appellant 

denied making this change. 

17. 12:19 pm, Student 7 – final mark in Physical Science 

changed from "F" to "D." Appellant admitted making this 

change. 

18. 12:17 pm, Student 7 – grading period one mark in Physical 

Science changed from "F" to "A." Appellant denied making 

this change. 

19. 12:24 pm, Student 8 – final mark in Physical Science 

changed from "D" to "C." Appellant denied making this 

change. 

20.12:12 pm, Student 8 – grading period one mark in Physical 

Science changed from "F" to "A." Appellant denied making 

this change. 

(Ex. 11.) 

{¶ 5} Appellant denied making any changes on June 10, 2011: 

1. 8:21 am, Student 5 – final exam in French 1 changed from 

"D" to "B." 

2. 8:22 am, Student 5 – final mark in Exploration Lit & Comp 

9 changed from "C" to "B." 

3. 8:21 am, Student 5- final mark in Physical Science changed 

from "F" to "C." 

4. 8:19 am, Student 5 – first grading period mark in Physical 

Science changed from "F" to "C." 
No. 18AP-301 4 

5. 8:20 am, Student 5 – second grading period mark in 

Physical Science changed from "F" to "C." 

6. 8:20 am, Student 5 – third grading period mark in 

Physical Science changed from "F" to "C." 

7. 8:22 am, Student 5 – final mark in Exploration Lit & Comp 

9 changed from "D" to "A." 

8. 8:21 am, Student 5 – fourth grading period mark in French 

1 changed from "F" to "B." 

9. 8:21 am, Student 5 – fourth grading period mark in 

Physical Science changed from "F" to "C." 

(Ex. 11.) 

{¶ 6} The Board caused Hal to be notified of its intention to determine whether to 

deny or permanently deny her pending applications on account of alleged violations of R.C. 

3319.31(B)(1) for engaging in conduct that was negligent and/or unbecoming a licensed 

educator for changing the grades of multiple students for impermissible reasons. Hal 

timely requested a hearing that was held before a hearing officer over the course of several 

days, October 24-27, 2016. On January 24, 2017, the hearing officer issued her report and 

recommendation and concluded that Hal engaged in conduct unbecoming to the teaching 

profession, in violation of R.C. 3319.31(B)(1). The hearing officer recommended that the 

Board deny Hal's applications for a 5-year professional principal license and 5-year 

professional special all grades teaching license and, further, Hal be ineligible to reapply for 

any license issued by the Board until on or after April 11, 2022 and only after Hal would 

submit evidence that she completed 16 hours of ethics training. 

{¶ 7} Hal filed objections to the report and recommendation. At its April 11, 2017 

meeting, the Board issued a resolution in which it accepted the hearing officer's report and 

recommendation and denied Hal's applications until on or after April 11, 2022, requiring 

her to submit evidence that she completed 16 hours of ethics training. Hal filed a notice of 

appeal to the Franklin County Court of Common Pleas under R.C. 119. The common pleas 

court, acting as an administrative appellate court, affirmed the Board's resolution. 

II. ASSIGNMENTS OF ERROR 

{¶ 8} Hal appeals and assigns the following six assignments of error for our review: 

[1.] THE TRIAL COURT ABUSED ITS DISCRETION IN 

FINDING THAT ODE'S RESOLUTION WAS SUPPORTED BY 

RELIABLE PROBATIVE, AND SUBSTANTIAL EVIDENCE. 

[2.] THE LOWER COURT ABUSED ITS DISCRETION WHEN 

IT FOUND THAT THE HEARING OFFICER DID NOT CRAFT 
No. 18AP-301 5 

HER OWN DEFINITION OF WHAT GRADES MEAN AND 

THAT ODE OFFERED PROBATIVE RELIABLE EVIDENCE 

TO ESTABLISH THE MEANING OF GRADES AND TO 

EXPLAIN WHAT CONSTITUTES ACCURATE GRADES. 

[3.] THE LOWER COURT ABUSED ITS DISCRETION IN 

UPHOLDING THE FINDING THAT APPELLANT'S 

BEHAVIOR CONSTITUTED CONDUCT UNBECOMING TO 

THE TEACHING PROFESSION. 

[4.] THE LOWER COURT ERRED AS A MATTER OF LAW IN 

STATING THAT RELIABLE, PROBATIVE AND 

SUBSTANTIAL EVIDENCE IS A QUESTION OF THE 

ABSENCE OR PRESENCE OF THE REQUISITE AMOUNT OF 

EVIDENCE. 

[5.] THE LOWER COURT ERRED AS A MATTER OF LAW IN 

FINDING THAT THE SANCTION IMPOSED BY THE BOARD 

IS IN ACCORDANCE WITH THE LAW. 

[6.] THE LOWER COURT ERRED AS A MATTER OF LAW IN 

VIOLATION OF APPELLANT'S DUE PROCESS RIGHTS. 

III. ANALYSIS 

A. Standard of Review 

{¶ 9} When hearing an appeal from a state administrative agency, a court of 

common pleas "may affirm the order of the agency complained of in the appeal if it finds, 

upon consideration of the entire record and such additional evidence as the court has 

admitted, that the order is supported by reliable, probative, and substantial evidence and 

is in accordance with law." R.C. 119.12(M). Without such a finding, "it may reverse, vacate 

or modify the order or make such other ruling as is supported by reliable, probative, and 

substantial evidence and is in accordance with law." Id. The Supreme Court of Ohio 

defined those terms in Our Place, Inc. v. Ohio Liquor Control Comm., 63 Ohio St.3d 570, 

571 (1992), as follows: 

(1) "Reliable" evidence is dependable; that is, it can be 

confidently trusted. In order to be reliable, there must be a 

reasonable probability that the evidence is true. (2) "Probative" 

evidence is evidence that tends to prove the issue in question; 

it must be relevant in determining the issue. (3) "Substantial" 

evidence is evidence with some weight; it must have 

importance and value. 
No. 18AP-301 6 

{¶ 10} An appellate court's standard of review is "more limited than that of the trial 

court." Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993). In reviewing whether 

the common pleas court's determination concerning reliable, probative, and substantial 

evidence does or does not support the agency's order, the appellate court's role is limited to 

determining whether the common pleas court abused its discretion. Id.; Gallagher v. Ross 

Cty. Sheriff, 10th Dist. No. 06AP-942, 2007-Ohio-847, ¶ 15, citing Lorain City. Bd. of Edn. 

v. State Emp. Relations Bd., 40 Ohio St.3d 257, 261 (1988). Absent an abuse of discretion 

on the part of the trial court, an appellate court may not substitute its judgment for the 

judgment of the board or a trial court. Pons at 621. However, "on the question of whether 

the agency's order was in accordance with the law, this court's review is plenary." Leslie v. 

Ohio Dept. of Dev., 171 Ohio App.3d 55, 2007-Ohio-1170, ¶ 44 (10th Dist.), citing Univ. 

Hosp., Univ. of Cincinnati College of Medicine v. State Emp. Relations Bd., 63 Ohio St.3d 

339, 343 (1992). 

{¶ 11} The issue on appeal is whether the common pleas court abused its discretion 

or committed a legal error when it found that there is reliable, probative, and substantial 

evidence supporting the Board's resolution. Pons; Lorain City Bd. of Edn. at 261. An abuse 

of discretion occurs when a trial court's judgment is unreasonable, arbitrary, or 

unconscionable. State ex rel. McCann v. Delaware Cty. Bd. of Elections, 155 Ohio St.3d 14, 

2018-Ohio-3342, ¶ 12. Even under an abuse of discretion standard, however, "no court has 

the authority, within its discretion, to commit an error of law." Shaw v. Underwood, 10th 

Dist. No. 16AP-605, 2017-Ohio-845, ¶ 25; State v. Akbari, 10th Dist. No. 13AP-319, 2013-

Ohio-5709, ¶ 7. Thus, " '[a] court abuses its discretion when its ruling is founded on an 

error of law or a misapplication of law to the facts.' " Independence v. Office of the 

Cuyahoga Cty. Exec., 142 Ohio St.3d 125, 2014-Ohio-4650, ¶ 49 (O'Donnell, J., dissenting), 

quoting Doe v. Natl. Bd. of Med. Examiners, 199 F.3d 146, 154 (3d Cir.1999). 

B. First Assignment of Error 

{¶ 12} In her first assignment of error, Hal contends that the common pleas court 

abused its discretion by finding that the Board's resolution was supported by reliable, 

probative, and substantial evidence. Hal argues that the evidence offered by appelleeappellee, Ohio Department of Education ("ODE"), is inadequate because ODE did not 

definitively demonstrate that Hal was the person that changed the students' grades. 
No. 18AP-301 7 

{¶ 13} ODE introduced Exhibit 11, which is a spreadsheet of multiple grade changes 

attributed to Hal's username that occurred on June 2 and 10, 2011. On June 2 and 10, 2011, 

changes were made to the grades of 8 freshman students (29 changes in total), 5 of whom 

participated in the FFP, by someone using Hal's username. Hal admits to making 7 of the 

changes but denies making the other changes. Randy Ziemba, who during the 2010-2011 

school year was employed as a data analyst for the Student Information System used at that 

time, Electronic Student Information System, or eSIS, for CCS1 created Exhibit 11.2 Ziemba 

testified that at the end of June or early July every year, the database is frozen, and it cannot 

be edited anymore. The frozen database is archived. He created Exhibit 11 and explained 

that the information in the spreadsheet was extracted from the CCS eSIS 2010-2011 

database after the database had been frozen and changes could no longer be made to it. 

{¶ 14} Hal argues that Exhibit 11 does not constitute competent evidence and does 

not satisfy the rules of evidence. " 'Although administrative appeals to government agencies 

are required to comport with fundamental aspects of due process, they are not judicial 

proceedings.' " MNH Truck Leasing Co., LLC v. Dir., Ohio Dept. of Job & Family Servs., 

10th Dist. No. 16AP-301, 2017-Ohio-442, ¶ 12, quoting Rudd v. Ohio Dept. of Job & Family 

Servs., 2d Dist. No. 2015-CA-9, 2015-Ohio-3796, ¶ 13. "As a general rule, administrative 

agencies are not bound by the strict rules of evidence applied in court." MNH Truck 

Leasing Co. at ¶ 12, citing H.K. Trading Ctr., Inc. v. Liquor Control Comm., 10th Dist. No. 

09AP-293, 2010-Ohio-913, ¶ 41. 

{¶ 15} Hal contends that since Exhibit 11 was altered after Ziemba created it by 

replacing the students' names with numbers, it could not be considered an original. Evid.R. 

1001(3) provides that "[i]f data are stored in a computer or a similar device, any printout or 

other output readable by sight, shown to reflect the data accurately, is an 'original.' " Hal 

ignores Ziemba's testimony that other than the students' names, Exhibit 11 was identical to 

the exhibit he created. Ziemba compared Exhibit 11 to the original document (Exhibit 11(a)) 

he created during the hearing and found the information identical. Further, Ziemba 

testified that the student numbers corresponded to the student names reflected in the 

 

1 Subsequent to the 2010-2011 school year, CCS began using a database called Infinite Campus rather than 

eSIS. 

2 After Ziemba created Exhibit 11, the student names were exchanged for numbers to protect the students' 

identities. Ziemba testified that Exhibit 11 was identical to the exhibit he created except for the substitution 

of numbers for the names. 
No. 18AP-301 8 

Confidential Student Key, which was Exhibit 3B. Ziemba testified that the grade changes 

in Exhibit 11 corresponded to the students' condensed reports (end of quarter or end of year 

report) that constituted Exhibit 12. Thus, the common pleas court did not err in finding 

that Exhibit 11 constituted reliable, probative, and substantial evidence. 

{¶ 16} Hal further argues that the evidence demonstrated that the computer 

passwords were not secure and, thus, the evidence adduced at the hearing was not reliable. 

Hal testified that other employees used her computer and she saved her username and 

password in the system. She generally left her office door unlocked. She had seen someone 

using her computer remotely a couple times. Further, she believed once reassignment to a 

different building took place, all access to the student information from the former building 

was denied. Thus, once she transferred to Whetstone on June 6, 2011, she no longer had 

access to the information at Walnut Ridge. Finally, she testified that the principal at Walnut 

Ridge during the 2010-2011 school year admitted changing students' grades because the 

building was in academic distress and he had access to her computer. 

{¶ 17} The hearing officer found that the testimony regarding the accessibility of 

usernames and passwords was such that it is possible that someone else made the changes 

on June 10, 2011. (Report and Recommendation, Findings of Fact No. 16.) And it appears 

the hearing officer concluded that the evidence was not reliable, probative, and substantial 

in order to find that Hal made the grade changes on June 10, 2011. However, the hearing 

officer found that regardless of the security of the computers, usernames, and passwords, 

Hal's testimony denying she made the grade changes on June 2, 2011 "is not credible." 

(Report and Recommendation, Findings of Fact No. 15.) Credibility determinations are 

within the province of the trier of fact because the trier of fact is in the best position to take 

into account inconsistencies, witnesses' mannerisms and demeanor, and to determine 

witness credibility. Kabeer v. Purakaloth, 10th Dist. No. 05AP-1122, 2006-Ohio-3584, 

¶ 12. Thus, the fact that the username and passwords were not secure does not dictate an 

improper inference or a finding that the evidence at the hearing was unreliable. 

{¶ 18} Hal also argues that the citation in the hearing officer's report and 

recommendation incorrectly cites the record of that hearing. The hearing officer's findings 

include: 

On or about June 6, 2011, Ms. Hal was reassigned to Whetstone 

High School. Ms. Hal testified that she would not have had 
No. 18AP-301 9 

remote computer access to Walnut Ridge records to make any 

grade changes in June 10. However, because Ms. Hal's user ID 

was used to change grades, Ms. Hal clearly has access 

regardless of the building she was assigned to. Based on the 

testimony regarding the accessibility of user names and 

passwords, it is also possible that someone else made the 

changes. The changes made on June 10 were to Student 5's 

grades. The June 10 changes did not appear to follow the same 

pattern of changes made on June 2 to all of the other students' 

grades. Tr. Vol. 3, p. 82; ODE exhibits 11, 11a. 

(Report and Recommendation, Findings of Fact No. 16.) 

{¶ 19} The above quote of the hearing officer's Report and Recommendation refers 

to Hal's testimony about her own Exhibit BB. Exhibit BB is a computer document that Hal 

created on June 10, 2011, while at Whetstone High School. Hall offered in support of her 

assertion that she was present at her new assignment at Whetstone on June 10, 2011 and 

that she did not have remote access to Walnut Ridge student information after being 

transferred to Whetstone. However, we view the transcript reference as reflecting that the 

hearing officer believed that Hal was at Whetstone on June 10, 2011, and that someone else 

may have made the changes on that date. But even if the hearing officer made reference to 

that specific page in the transcript in error, we cannot conclude that the record shows the 

evidence at the hearing was unreliable. Moreover, Hal testified it was necessary to complete 

a Change of Location form in order to gain access, but such a form she states she completed 

on her first day at Whetstone was not produced during trial. 

{¶ 20} Finally, Hal takes issue with the statement of the hearing officer that Hal had 

access to a CCS computer on June 10, 2011, because there was no evidence of which 

computer Hal had access to on that date. We note that Hal's own Exhibit BB, submitted in 

an effort to demonstrate that she had access to a computer at Whetstone on that date, shows 

she had access to some computer in the school system on that date, which may have had an 

effect on the hearing officer's judgment of Hal's credibility. But as for the hearing officer's 

findings, Findings of Fact No. 16 and Conclusion of Law No. 6, contain this statement: 

"Based on the foregoing findings of fact, Ms. Hal's misconduct on June 2, 2011 violated 

Principles 1 and 3 [of the State Board of Education Licensure Code of Professional Conduct 

for Ohio Educators in 2008]." (Emphasis added.) Thus, it is clear that the hearing officer 
No. 18AP-301 10 

did not use the conduct that occurred on June 10, 2011 as a basis for finding Hal violated 

Principles 1 and 3. Hal's first assignment of error is overruled. 

{¶ 21} In her second assignment of error, Hal contends that the common pleas court 

abused its discretion when it found on the one hand that the hearing officer did not craft 

her own definition of what grades mean but on the other hand found that ODE offered 

probative, reliable evidence to establish the meaning of grades and to explain what 

constitutes accurate grades. Hal's argument is essentially that ODE did not present any 

evidence regarding what the students' grades at issue should have been in order to 

demonstrate that their recorded grades were not accurate. 

{¶ 22} Despite Hal's contention, a CCS employee did testify at the hearing about 

grades. Laura Commodore, a CCS administrator, testified that CCS did not have a policy 

stating that grades could not be changed. However, she testified that there were reasons 

for permitting grade changes, such as the teacher had inputted an incorrect grade, missing 

grades from the condensed grade report from transfer students, and changes to align the 

students' grades with policy where the students' grade calculations did not add together 

properly. Hal highlights Commodore's testimony on this point to argue that grades are 

changed to "align with policy" in an effort to argue that there was no set policy and grades 

could be changed, therefore, ODE did not demonstrate what constitutes accurate grades. 

However, Commodore testified that changes could be made to align with policy, but that 

was when the mathematical calculations were not accurate. Commodore described the 

mathematical calculation for determining grades by assigning a number to the letter grade 

for each grading period (four points for an A, three points for a B, two points for a C, one 

point for a D, and zero points for an F). The final grade was calculated by doubling each 

grading period, adding the points earned on the final exam and dividing the total by nine. 

See also Exhibit 10. 

{¶ 23} Hal testified that she believed it was important for grades to be accurate and 

to reflect what students have learned, to demonstrate what the student has mastered in the 

subject and to indicate such to the student, parents, and future teachers. Hal further 

testified that the classroom teacher is the person responsible for determining a student's 

grade. Hal also testified about what she understood to be "impermissible reasons" for 
No. 18AP-301 11 

changing grades as "reasons that were not governed by the Board or sanctioned by the 

teacher." (Tr. Vol. III at 124.) 

{¶ 24} Given this testimony, the common pleas court did not abuse its discretion in 

finding that the hearing officer did not craft her own definition of what grades mean and 

that ODE offered probative, reliable, and substantial evidence to establish the meaning of 

grades and to explain what constitutes accurate grades. Hal's second assignment of error 

is overruled. 

{¶ 25} In her third assignment of error, Hal contends that the common pleas court 

abused its discretion in upholding the finding that Hal's behavior constituted conduct 

unbecoming to the teaching profession. Hal argues that the penalty she received was an 

arbitrary application of the law. 

{¶ 26} The hearing officer, the Board, and the common pleas court relied on Ohio 

Adm.Code 3301-73-21(B)(1) and the Licensure Code in finding that Hal's behavior 

constituted conduct unbecoming to the teaching profession. Conversely, Hal argues an 

arbitrary and discriminatory application. 

{¶ 27} R.C. 3319.31(B)(1) permits the Board to "suspend, revoke, or limit a license 

that has been issued to any person" for "[e]ngaging in an immoral act, incompetence, 

negligence, or conduct that is unbecoming to the * * * person's position." Haynam v. Ohio 

State Bd. of Edn., 6th Dist. No. L-11-1100, 2011-Ohio-6499, ¶ 32, citing Poignon v. Ohio 

Bd. of Pharmacy, 10th Dist. No. 03AP-178, 2004-Ohio-2709. The Ohio Administrative 

Code augments the statute's implementation with specific factors for determining conduct 

that is "unbecoming." Ohio Adm.Code 3301-73-21(A) provides, 

(A) The state board of education shall consider, but not be 

limited to, the following factors when evaluating conduct 

unbecoming under division (B)(1) of section 3319.31 of the 

Revised Code: 

* * * 

(3) Crimes or misconduct involving academic fraud. 

{¶ 28} The hearing officer specifically found that Hal's conduct on June 2, 2011, 

violated Principles 1 and 3 of the Licensure Code of Professional Conduct for Educators. 

Principle 1 provides that an educator serves as a positive role model to both students and 

adults and is responsible for preserving the dignity and integrity of the teaching profession 
No. 18AP-301 12 

and for practicing the profession according to the highest ethical standards. Principle 1 lists 

as conduct unbecoming "[c]ommitting any violation of state or federal laws, statutes or rule, 

although the conduct may not have resulted in a criminal charge, indictment, prosecution 

or conviction." (Ex. 16.) Principle 3 provides that "[e]ducators shall accurately report 

information required by the local board of education or governing board, state education 

agency, federal agency or state or federal law." Id. Principle 3 lists conduct unbecoming as 

"falsifying, intentionally misrepresenting, willfully omitting or being negligent in reporting 

information regarding the evaluation of students and/or personnel." Id.

{¶ 29} The hearing officer specifically relied on these factors when evaluating Hal's 

conduct. Hal's argument is thus not meritorious that the hearing officer's finding was 

arbitrary, that is, that Hal engaged in conduct unbecoming in an arbitrary manner. Nor 

can we find that the common pleas court erred in affirming that finding. In the course of 

hearing the evidence at Hal's hearing, the hearing officer made a credibility determination, 

finding Hal not to be credible. As a result, based on the evidence adduced at the hearing, 

the hearing officer found Hal changed the grades on June 2, 2011, finding that behavior to 

constitute misconduct involving academic fraud and conduct unbecoming to her position 

as a teacher. Hal's third assignment of error is overruled. 

{¶ 30} In her fourth assignment of error, Hal argues that the common pleas court 

erred as a matter of law in stating its review standard—that reliable, probative, and 

substantial evidence is a question of the absence or presence of the requisite amount of 

evidence. Hal contends that the common pleas court only referred to the amount of 

evidence and not the quality of the evidence and whether the evidence was probative. 

{¶ 31} The common pleas court stated, "[d]etermining whether an agency's order or 

resolution is supported by reliable, probative and substantial evidence is a question of the 

absence or presence of the requisite amount of evidence. Although this is a legal question, 

it inevitably involves a consideration of the evidence and, to a limited extent would permit 

a substitution of judgment by the reviewing common pleas court." (Apr. 9, 2018 Decision 

at 16.) The common pleas court used this standard as it was reviewing the hearing officer's 

resolution of the evidentiary conflicts. 

{¶ 32} This Court previously stated in Beeler v. Franklin Cty. Sheriff, 67 Ohio 

App.3d 748, 753 (10th Dist.1990), citing Andrews v. Bd. of Liquor Control, 164 Ohio St. 
No. 18AP-301 13 

275 (1955), that "the determination of whether an agency order is supported by reliable, 

probative, and substantial evidence is primarily a question of the absence or presence of 

the requisite quantum of evidence." The Beeler court recognized that Andrews "pointed 

out that, while in essence this is a legal question, inevitably it involves a consideration of 

the evidence and to a limited extent would permit a substitution of judgment by the 

reviewing common pleas court." Id. 

{¶ 33} In Gallagher, this Court stated that "a trial court's role in an administrative 

appeal 'is to determine whether the agency's decision is supported by a preponderance of 

substantial, reliable, and probative evidence.' " Gallagher at ¶ 16, quoting Mathews v. Ohio 

State Liquor Control Comm., 10th Dist. No. 04AP-46, 2004-Ohio-3726, ¶ 11. In Collins v. 

Ohio State Racing Comm., 10th Dist. No. 03AP-587, 2003-Ohio-6444, ¶ 23, this Court 

stated: 

"[T]he key term is 'preponderance.' If a preponderance of 

reliable, probative and substantial evidence exists, the Court of 

Common Pleas must affirm the agency decision; if it does not 

exist, the court may reverse, vacate, modify or remand." 

Dudukovich v. Housing Auth. (1979), 58 Ohio St.2d 202, 207, 

389 N.E.2d 1113. 

{¶ 34} The common pleas court appropriately stated and applied the standard of 

review to the hearing officer's determinations as adopted by the Board and found them to 

be supported by reliable, probative, and substantial evidence. The common pleas court 

examined the evidence and its probative value and did not simply find there was a certain 

amount of evidence as Hal suggests. 

{¶ 35} Hal also argues that the hearing officer cited Pang v. Minch, 53 Ohio St.3d 

186 (1990), and that it is not relevant to the facts in this case. While the facts in Pang are 

not similar to the facts in this case, the hearing officer cited Pang for the proposition that a 

preponderance of the evidence required that ODE must prove that it is more likely than not 

that the misconduct occurred and that the misconduct constituted conduct unbecoming a 

teacher. In Pang, the Supreme Court of Ohio quoted the Restatement of the Law 2d, Torts, 

442, Section 433(B)(1), Comment a (1965), holding the meaning of the preponderance of 

the evidence to be that " 'it is more likely than not that the conduct of the defendant was a 

substantial factor in bringing about the harm.' " In light of this, we find that the hearing 
No. 18AP-301 14 

officer did not err in citing Pang for this proposition. Hal's fourth assignment of error is 

overruled. 

{¶ 36} In her fifth assignment of error, Hal contends that the common pleas court 

erred as a matter of law in finding that the sanction imposed by the Board is in accordance 

with law. In support of this, Hal argues that the hearing officer provided no legal basis for 

the conclusion that Hal's actions violated Principles 1 and 3 of the Licensure Code. Hal's 

argument is not clear. The hearing officer found that under the facts of this case, Hal's 

actions violated those principles. The hearing officer concluded that Hal's actions violated 

Ohio Adm.Code 3301-73-21(A) because she engaged in "crimes or misconduct involving 

academic fraud." (Emphasis added.) Hal argues that Exhibit 11 should not be taken at face 

value and as such there is not reliable, probative, and substantial evidence to support the 

findings. We have already addressed this argument and rejected it. 

{¶ 37} The real crux of Hal's fifth assignment of error is her argument that there is 

no justification for such a severe penalty as was imposed on her by the Board. The Board 

denied Hal's applications for a 5-year professional principal license and 5-year professional 

special all grades teaching license. The Board ordered that Hal is ineligible to reapply for 

any license issued by the Board until on or after April 11, 2022 and only after Hal submits 

evidence that she has completed 16 hours of ethics training. 

{¶ 38} R.C. 3319.31(B) authorizes the Board to refuse to issue a license to Hal or to 

suspend, revoke, or limit a license that has been issued to Hal for engaging in conduct that 

is unbecoming to the person's position. Ohio Adm.Code 3301-73-03(H) provides that 

"[d]isciplinary action under this chapter means a final disposition of an investigation by 

any professional licensing entity in this state or another jurisdiction. This can include, but 

is not limited to, a letter of admonishment, consent agreement, suspension, revocation, 

permanent revocation, limitation, denial or permanent denial of a license, or the voluntary 

surrender or voluntary denial of a license." Hal argues that the Board could have elected to 

impose a less severe penalty. 

{¶ 39} It is well-settled that the reviewing court may not modify a sanction that is 

authorized by statute if the agency's order is supported by reliable, probative, and 

substantial evidence. Henry's Café, Inc. v. Bd. of Liquor Control, 170 Ohio St. 233 (1959), 

paragraphs two and three of the syllabus. "As a practical matter, courts have no power to 
No. 18AP-301 15 

review penalties meted out by the commission. Thus, we have little or no ability to review 

a penalty even if it seems on the surface to be unreasonable or unduly harsh." Goldfinger 

Ents., Inc. v. Ohio Liquor Control Comm., 10th Dist. No. 01AP-1172, 2002-Ohio-2770, ¶ 16. 

{¶ 40} Statute (R.C. 3319.31(B)) and administrative law (Ohio Adm.Code 3301-73-

03(H)) permit the Board to refuse to issue a license to Hal or to suspend, revoke, or limit a 

license that had been issued to her. The common pleas court did not err in finding the 

Board was authorized to sanction Hal and the sanction imposed was authorized by statute, 

and the findings of misconduct were supported by reliable, probative, and substantial 

evidence. We agree. 

{¶ 41} Hal further argues that the Board was required to consider all mitigation 

factors listed in Ohio Adm.Code 3301-73-21(B) in determining the proper sanction. The 

common pleas court addressed this argument, finding that the mitigating circumstances 

listed in Ohio Adm.Code 3301-73-21 are factors that the Board may consider. Ohio 

Adm.Code 3301-73-21(B) provided at the time as follows: 

If the state board finds that a person has engaged in conduct 

unbecoming as described in paragraph (A) of this rule, then the 

state board may take the following mitigating and aggravating 

factors, as applicable and appropriate, into consideration when 

determining a final action under division (B)(1) of section 

3319.31 of the Revised Code: 3

{¶ 42} This administrative code section lists 14 factors. The hearing officer 

specifically considered some of the factors, such as, "the nature and seriousness of Ms. Hal's 

conduct," finding her conduct to be "serious." (Report & Recommendation, Conclusions of 

Law at ¶ 8.) The hearing officer also considered the aggravating factor that Hal did not 

disclose her misconduct to the Board. Id. Countering that, we note the hearing officer also 

found the lack of previous criminal activity or misconduct and Hal's excellent work activity 

to be mitigating factors. Id. at ¶ 9. Clearly, the hearing officer did consider mitigating and 

aggravating factors, not being required to consider every factor. We find no abuse of 

discretion by the common pleas court; nor did it err in affirming the Board's sanction. Hal's 

fifth assignment of error is overruled. 

 

3 Ohio Adm.Code 3301-73-21 was amended effective January 21, 2019. 
No. 18AP-301 16 

{¶ 43} In her sixth assignment of error, Hal contends that the common pleas court 

erred as a matter of law by violating her due process rights. Hal specifically argues that the 

common pleas court's reliance on Henry's Café in finding that the sanction imposed by the 

Board was in accordance with law, violated her due process rights. Hal contends that the 

common pleas court should have modified the Board's sanction because it is too harsh. 

{¶ 44} We already addressed the issue that when an administrative board's action is 

based on reliable, probative, and substantial evidence, and in accordance with law, a 

reviewing court may not modify the imposed sanction if it is authorized by law. In Wolfe v. 

Accountancy Bd. of Ohio, 10th Dist. No. 16AP-453, 2016-Ohio-8542, this court stated that 

"[t]he determination of the appropriate sanction in an administrative hearing is strictly for 

the agency." Id. at ¶ 16, citing Reed v. State Med. Bd., 162 Ohio App.3d 429, 2005-Ohio4071, ¶ 41 (10th Dist.). 

{¶ 45} Hal attempts to distinguish Henry's Café on the basis that her professional 

license is at issue and education has been her passion and livelihood. However, this Court 

has applied Henry's Café in the arena of professional licenses. See Shah v. State Med. Bd. 

of Ohio, 10th Dist. No. 14AP-147, 2014-Ohio-4067 (upheld permanent revocation of 

medical license); Kellough v. Ohio State Bd. of Edn., 10th Dist. No. 10AP-419, 2011-Ohio431 (upheld permanent revocation of teaching license); Wolfe (upheld revocation of a 

Certified Public Accountancy certificate). 

{¶ 46} Further, in Goldberg v. Kelley, 397 U.S. 254, 267 (1970), superseded by 

statute on other grounds, the United States Supreme Court held that due process in the 

administrative context requires, "[t]he fundamental requisite of due process of law is the 

opportunity to be heard." (Citations omitted.) Hal was afforded a hearing in this case. 

{¶ 47} This Court previously addressed a due process argument regarding the 

failure to modify or overturn Henry's Café, as follows: 

As a court inferior to the Supreme Court of Ohio, we are bound 

by and must follow the decisions of that court. State ex rel. 

Abrusci v. Indus. Comm., 10th Dist. No. 08AP-756, 2009-

Ohio-4381, ¶ 5; State v. Mickens, 10th Dist. No. 08AP-743, 

2009-Ohio-2554, ¶ 21; State v. Worrell, 10th Dist. No. 06AP706, 2007-Ohio-2216, ¶ 10. Ohio appellate courts have no 

authority to declare unconstitutional a decision of the Supreme 

Court of Ohio. State v. Howard, 7th Dist. No. 08-MA-121, 

2009-Ohio-6398, ¶ 49. Consequently, this court has 
No. 18AP-301 17 

repeatedly rejected appellants' requests that we modify or 

overrule Henry's Café. Auchi v. Liquor Control Comm., 10th 

Dist. 06AP-493, 2006-Ohio-6003, ¶ 8, fn. 3; Gehad & Mandi, 

Inc. v. Ohio State Liquor Control Comm., 10th Dist. No. 05AP1181, 2006-Ohio-3081, ¶ 7; Goldfinger Enterprises, Inc. v. 

Ohio Liquor Control Comm., 10th Dist. No. 01AP-1172, 2002-

Ohio-2770, ¶ 22; Lindner v. Ohio Liquor Control Comm. (May 

31, 2001), 10th Dist. No. 00AP-1430, 2001 Ohio App. LEXIS 

2447. We do so again in this case. 

Kellough at ¶ 58. 

{¶ 48} We hold that the common pleas court did not err in relying on Henry's Café

in Hal's case and Hal therefore was not denied due process. Hal's sixth assignment of error 

is overruled. 

IV. CONCLUSION 

{¶ 49} For the foregoing reasons, Hal's six assignments of error are overruled, and 

the judgment of the Franklin County Court of Common Pleas is affirmed. 

Judgment affirmed. 

DORRIAN and LUPER SCHUSTER, JJ., concur.