Janice Hunt Conley, R.N. v. Ohio Board of Nursing Edn. and Nurse Registration

• Decision Date: 05 April 1989
• Docket Number: 13848,89-LW-0968
• Parties: Janice Hunt CONLEY, R.N., Plaintiff-Appellant, v. OHIO BOARD OF NURSING EDN. AND NURSE REGISTRATION, Defendant-Appellee.
• Court: Ohio Court of Appeals

Janice Hunt CONLEY, R.N. Plaintiff-Appellant, v. OHIO BOARD OF NURSING EDN. AND NURSE REGISTRATION Defendant-Appellee.

No. 13848.

89-LW-0968 (9th)

Court of Appeals of Ohio, Ninth District Summit

April 5, 1989

Appeal from Judgment Entered in the Common Pleas Court County of Summit, Case No. 88 6 1701.

M Kathryn Croft, Akron, for plaintiff.

Diane Weaver, Asst. Attorney General, Columbus, for defendant.

DECISION AND JOURNAL ENTRY

This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:

REECE Judge.

Appellant, Janice Hunt Conley (Conley), appeals the County of Summit Common Pleas Court's decision upholding the State of Ohio Board of Nursing's (the Board's) Adjudication Order 243, which dissolved a stay of suspension of Conley's certificate to practice professional nursing as a registered nurse (Certificate).

The Board had previously issued the stay of suspension upon conditions enumerated in Adjudication Order 176, which suspended Conley's Certificate based upon her conviction of a fourth-degree felony. The common pleas court upheld the Board's decision as supported by a preponderance of substantial, reliable and probative evidence, and not unconstitutional, illegal, arbitrary, capricious or unreasonable. We affirm.

On October 23, 1985, Conley, represented by counsel, pleaded guilty to theft of drugs, a fourth degree felony, in the County of Summit Common Pleas Court. The court subsequently sentenced Conley to a one-year suspended sentence with two years of supervised probation.

The Board advised Conley by letter dated December 3, 1985, of her opportunity to be heard concerning the Board's proposed order to revoke or suspend her Certificate based upon the felony conviction, pursuant to R.C. 4723.28. Mrs. Conley duly requested a hearing on the proposed order. She presented her cause pro se during the regular session of the Board on January 17, 1986.

On January 22, 1986, the Board issued Adjudication Order 176, suspending Conley's Certificate until January 17, 1991. The Board stayed the suspension upon four conditions, requiring Conley's:

" * * *.

"1.Continued involvement in a chemical abuse peer assistance program.

"2.Continued involvement in a drug rehabilitation program until released.

"3.Compliance with probation requirements until released.

"4.Progress reports of employment if employed in nursing."

" * * *."

Order 176 additionally required Conley to ensure that representatives of the peer assistance program, drug rehabilitation program, probation department and any nursing employer submit progress reports on behalf of Conley during the period of her stayed suspension. These progress reports were to be received in the Board's offices by the first day of each month in which the Board regularly met. The Board provided Conley with a schedule of the meetings set for 1986.

On January 7, 1988, the Board notified Conley of an opportunity for hearing, based upon the Board's proposed order to lift the stay of suspension granted by Order 176. The Board premised the proposed order upon its sporadic receipt of the reports due under the conditions granted in the Order 176 stay of suspension. Conley requested a hearing, and presented her cause pro se to the Board on March 11 and May 12, 1988.®1¯

The state ®2¯ produced evidence, through cross-examination of Conley and a representative of her employer, and direct examination of a Board employee and Conley's Regional Liaison Person (RLP), tending to show that Conley had failed to ensure that the conditions supporting the Board's stay of Order 176 had been fulfilled.

Conley's own testimony, direct examination of her employer's representative, and cross-examination of the RLP produced evidence in rebuttal. Conley testified to nearly three years of complete sobriety following an intensive inpatient/outpatient substance abuse program, excellent attendance and substantial involvement in Alcoholics Anonymous, Dean's List status for two semesters of degree study at the University of Akron, and her recent reentry into nursing employment as shift supervisor in an extended care facility.

The Board released Adjudication Order 243 on May 20, 1988, finding that Conley failed to comply with the conditions of Order 176 supporting the stay of her Certificate suspension. The Board specifically determined that:

" * * *.

"1.The Board received only two progress reports from a representative of a substance abuse peer assistance program in 1987. Six reports were due in that period of time.

"2.One progress report was received from her probation officer in a two year period. The Board was never notified if and when she was released from probation.

"3.The Notice of Opportunity did not mention employment in Nursing because the Board had not been informed she was employed in Nursing. Testimony was presented that she has been employed in Nursing since November 16, 1987. Notification of employment in Nursing and progress reports from employer were never received in the Board office.

"The progress reports were to be submitted the first of each month in which the Board meets beginning April 1, 1986 and ending January 17, 1991."

" * * *."

The Board thereupon lifted the stay of suspension of Conley's Certificate.

On June 1, 1988, pursuant to R.C. 119.12, Conley appealed to the common pleas court from Order 243; the court suspended Order 243 pending Conley's appeal. The court ordered a briefing schedule, received the briefs of both parties, then made its determination based upon the briefs, the administrative record and the exhibits thereto.

The court affirmed, finding the Board's decision " * * * supported by a preponderance of substantial, reliable and probative evidence and * * * not unconstitutional, illegal, arbitrary capricious or unreasonable. * * *." Conley appeals raising a single assignment of error.

ASSIGNMENT OF ERROR

"The court erred in finding that Order # 243 [sic] was supported by a preponderance of substantial, reliable, and probative evidence and was not unconstitutional, illegal, arbitrary, capricious or unreasonable."

I.

Conley subdivides her assignment of error into five separate issues. Each issue, however, essentially addresses Mrs. Conley's assertion that Order 176 unfairly, invalidly and unconstitutionally limited her ability to adhere to the stay requirements of Order 176 by conditioning compliance on the actions of persons beyond Conley's control. Conley advanced the same arguments in the common pleas court.

Pursuant to R.C. 119.12, a party desiring to appeal the decision of an administrative agency must file a notice of appeal with the agency within fifteen days after the mailing of the agency's order, and file a copy of the notice with the common pleas court. Adjudication Order 176 was issued on January 22, 1986.

Accordingly, Conley's notice of appeal of...