McGee v. Ohio State Bd. of Psychology

• Decision Date: 26 January 1993
• Docket Number: No. 92AP-1054,92AP-1054
• Citation: 82 Ohio App.3d 301,611 N.E.2d 902
• Parties: McGEE, Appellant, v. OHIO STATE BOARD OF PSYCHOLOGY, Appellee.
• Court: Ohio Court of Appeals

Page 301

82 Ohio App.3d 301

611 N.E.2d 902

McGEE, Appellant, v. OHIO STATE BOARD OF PSYCHOLOGY, Appellee.

No. 92AP-1054.

Court of Appeals of Ohio, Tenth District, Franklin County.

Decided Jan. 26, 1993.

Vivyan, Graeff, Rigg & Schneider and David J. Graeff; and Samuel B. Weiner, Columbus, for appellant.

Lee I. Fisher, Atty. Gen., and Gregg B. Thornton, Asst. Atty. Gen., for appellee.

BOWMAN, Judge.

On December 21, 1989, appellant, Donald H. McGee, Ph.D., entered a guilty plea to one count of Medicaid fraud, a felony of the fourth degree. Based on R.C. 4732.17(A), which authorizes appellee, the Ohio State Board of Psychology ("board"), to take action against the license of any psychologist who has been convicted of a felony in any state or federal court, the board mailed appellant a notice of opportunity for hearing, indicating its intention to determine whether to issue a reprimand or suspend or revoke his license to practice psychology based on his being sentenced on a guilty plea to one count of Medicaid fraud.

Appellant requested a hearing on the matter and one was initially scheduled for February 8, 1991; however, it was continued because the board did not have a quorum. The hearing was rescheduled for May 17, 1991, at which time appellant stipulated to the fact that he had been convicted of a felony. Evidence was then presented at the hearing on the issue of mitigation, with appellant testifying on his own behalf. Part of the evidence admitted at the hearing included state's Exhibit No. 6, appellant's entry of guilty plea.

At its meeting on June 28, 1991, the board decided to delay a final decision on appellant's case until a complete, official transcript was available for review. At the September 20, 1991 meeting, the board reviewed the complete transcript of the hearing and the exhibits and determined that appellant's license should be revoked. Thereafter, on October 1, 1991, an adjudication order was issued stating that the board did not find that appellant provided adequate or persuasive reasons for his failure to comply with his provider agreement or the rules of the state for Medicaid reimbursement that would mitigate any sanctions levied against him. Consequently, the board revoked appellant's license.

Appellant appealed the decision of the board to the Franklin County Court of Common Pleas. On June 18, 1992, the trial court entered its decision affirming the order of the board, finding that it was supported by reliable, probative and substantial evidence and was in accordance with law.

Appellant then appealed to this court and filed a motion to supplement the record with a copy of a negotiated plea agreement which appellant allegedly entered into prior to his plea of guilty to one count of Medicaid fraud. The motion to supplement the record was denied. The board also filed a motion to strike extraneous matter from the files and this court determined that the motion would be addressed with the appeal on the merits. This court now overrules the board's motion to strike, as this appeal will be determined based only on the record before this court. See State v. Ishmail (1978), 54 Ohio St.2d 402, 8 O.O.3d 405, 377 N.E.2d 500; and App.R. 9(A).

Appellant asserts the following assignments of error:

"First Assignment of Error

"The board of psychology's order is contrary to law where the evidence establishes that Dr. McGee, in good faith, followed previous legal court decisions and agreements of all parties concerned. Said revocation is, therefore, not supported by reliable, probative, and substantial evidence.

"Second Assignment of Error

"Prejudicial error occurs when the board of psychology fails to certify a complete record of proceedings to the trial court.

"Third Assignment of Error

"The board of psychology's action is contrary to law where the evidence demonstrates no justification for the severe action of revocation, where a lesser disciplinary action is appropriate."

In an administrative appeal under R.C. 119.12, the trial court reviews the agency's order to determine whether it is supported by reliable, probative and substantial evidence and is in accordance with law. When performing this review, the common pleas court may consider the credibility of competing witnesses as well as the weight and probative character of the evidence. Andrews v. Bd. of Liquor Control (1955), 164 Ohio St. 275, 58 O.O. 51, 131 N.E.2d 390, paragraph one of the syllabus. To a limited extent, this standard of review permits the common pleas court to substitute its judgment for that of the administrative agency. Nevertheless, "the Court of Common Pleas must give due deference to the administrative resolution of evidentiary conflicts." Univ. of Cincinnati v. Conrad (1980), 63 Ohio St.2d 108, 111, 17 O.O.3d 65, 67, 407 N.E.2d 1265, 1267. The court also stated that an agency's factual findings should not be disturbed by the common pleas court absent legally significant reasons for doing so.

On further appeal to this court, the standard of review is more limited. Unlike the common pleas court, the court of appeals does not determine the weight of the evidence. Rossford Exempted Village School Dist. Bd. of Edn. v. State Bd. of Edn. (1992), 63 Ohio St.3d 705, 707, 590 N.E.2d 1240, 1241. In reviewing the common pleas court's determination that the agency's order is or is not supported by reliable, probative and substantial evidence, the appellate court's role is, in part, limited to determining whether the common pleas court abused its discretion. Hartzog v. Ohio State Univ 1985), 27 Ohio App.3d 214, 216, 27 OBR 254, 256, 500 N.E.2d 362, 364; Angelkovski v. Buckeye Potato Chips Co. (1983), 11 Ohio App.3d 159, 161, 11 OBR 242, 243, 463 N.E.2d 1280, 1282. This deferential standard of review is necessarily limited to issues (such as the weight of the evidence and credibility of witnesses) as to which the common pleas court has some limited discretion to exercise. On questions of law, the common pleas court does not exercise discretion and the court of appeal's review is plenary. Univ. Hosp., Univ. of Cincinnati College of Medicine v. State Emp. Relations Bd. (1992), 63 Ohio St.3d 339, 587 N.E.2d 835, paragraph one of the syllabus; In re Raymundo (1990), 67 Ohio App.3d 262, 265, 586 N.E.2d 1149, 1151. Based on these guidelines, this court will address appellant's assignments of error.

Appellant's first two assignments of error are related and will be considered together.

Initially, appellant asserts that the board failed to certify a complete record of the proceedings to the trial court. Appellant asserts that the record is incomplete because the record was certified without the minutes of the board's September 20, 1991 meeting, which showed the final disposition taken by the board in appellant's case. Appellant also asserts that the record is incomplete because a negotiated plea agreement, which allegedly formed the basis for his plea of guilty to Medicaid fraud, was not made a part of the record in the board's hearing and was never certified to the trial court, as is required.

Appellant's assertion that he is entitled to judgment in his favor because the record was incomplete, since the board failed to include the minutes of the September 20, 1991 meeting when it certified the record to the trial court, is without merit.

Pursuant to R.C. 119.12, the board is to prepare and certify to the court a complete record of the proceedings in the case within thirty days after receipt of a notice of appeal. In this case, appellant filed his notice of record request on October 22, 1991. On October 31, 1991, the board certified "a true and complete record of the proceedings * * * with the exception of the Minutes of the Board's September 20, 1991, meeting, which will be forthcoming upon approval at the meeting of December 13-14, 1991." The approved minutes of the September 20, 1991 meeting were filed with the court for inclusion in the record on December 18, 1991. No motion for extension of time to certify the record was filed by the board.

When the board failed to file a complete record of proceedings in a timely manner, appellant could have filed a motion for judgment in his favor, see Geroc v. Ohio Veterinary Med. Bd. (1987), 37 Ohio App.3d 192, 525 N.E.2d 501; however, he did not do so. In addition, appellant has failed to show that the board's omission of the minutes when the record was initially certified by the board prejudiced him. See Alban v. Ohio Real Estate Comm. (1981), 2 Ohio App.3d 430, 2 OBR 524, 442 N.E.2d 771; Genoa Banking Co. v. Mills (1983), 9 Ohio App.3d 237, 9 OBR 410, 459 N.E.2d 584. In Lorms v. State (1976), 48 Ohio St.2d 153, 2 O.O.3d 336, 357 N.E.2d 1067, the court held, at the syllabus:

"An agency's omission of items from the certified record of an appealed administrative proceeding does not require a finding for the appellant, pursuant to R.C. 119.12, when the omissions in no way prejudice him in the presentation of his appeal."

In this case, when the board sent the certified record to the trial court, it included in its letter of certification that the September 20, 1991 board minutes had not yet been fully transcribed or approved by the board. Once the minutes were transcribed and properly approved, the minutes were filed with the lower court and became a part of the record. The trial court did not render its decision until the complete record was before it and, thus, since all pertinent information was before the trial court when it made its decision on the merits, appellant was not prejudiced by the failure of the board to timely certify the entire record to the trial court.

Appellant next argues that, because of the terms of the negotiated plea agreement, the board had no legal authority or contractual right to pursue the charges against appellant. Appellant also argues that, because the plea agreement was not part of the record certified to the trial court, the record was...