Tuscarawas Cnty. Pub. Defender's Office v. Goudy

2021 Ohio 1754

TUSCARAWAS COUNTY PUBLIC DEFENDER'S OFFICE Appellant v. KRISTY GOUDY Appellee

Case No. 2020 AP 10 0023

COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT

May 20, 2021

JUDGES: Hon. Craig R. Baldwin, P.J. Hon. William B. Hoffman, J. Hon. Patricia A. Delaney, J.

OPINION

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)

APPEARANCES:

For Appellant:

SCOTT H. DEHART

JONATHAN J. DOWNES

Zashin & Rich Co., L.P.A.

17 South High St., Suite 750

Columbus, OH 43215

For Appellee:

MICHAEL A. MOSES

Moses Law Offices, L.L.C.

556 E. Town Street - Suite 201

Columbus, OH 43215-4802

Delaney, J.

{¶1} Appellant Tuscarawas County Public Defender's office appeals the September 16, 2020 judgment entry of the Tuscarawas County Court of Common Pleas.

FACTS AND PROCEDURAL HISTORY

Tuscarawas County Public Defender's Office

{¶2} Appellant Tuscarawas County Public Defender's Office ("TCPD") hired Appellee Kristy Goudy as a full-time secretary on or about August 19, 1996. Ms. Goudy was a classified employee.

{¶3} In 2017 and 2018, TCPD alleged that Ms. Goudy engaged in multiple acts of misconduct in violation of the Tuscarawas County personnel policy manual. The Tuscarawas County Human Resources began an investigation and placed 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 standards of conduct. On November 7, 2018, the TCPD issued an Order of Removal, terminating 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 telephone on June 15, 2018; dishonestly represented that [a secretary] was not on the phone; slammed [the secretary's] office door in anger; made inappropriate comments of a sexual nature directed at [another secretary]; violated a 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 Board of Review ("SPBR"). The administrative hearing was held before the Administrative Law Judge on April 2 and 3, 2019. Multiple witnesses testified at the hearing. 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 office door; disregarding the policy for answering the telephone; and discourteous or disrespectful treatment of a coworker. The ALJ did not find that Ms. Goudy engaged in menacing, dishonesty, or insubordination.

{¶6} Based on the ALJ's interpretation of TCPD's Personnel Manual, 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 employee's record of performance and conduct. Based on the Group 1 offenses, the progressive disciplinary system, and the failure of the TCPD to conduct a performance evaluation 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 represented the maximum three-day suspension for each offense plus an extra day of suspension 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, "Objections to reports and recommendations should include both a brief statement of the case and a concise statement of each area of disagreement, together with supporting arguments and memoranda. Parties' objections or responses must be limited to evidence presented at hearing. Objections and responses to objections containing 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 presented at the administrative hearing and cited the auditory record of the hearing (e.g., "Lowdermilk, 4/2/2019 04:02:00"). On August 28, 2019, a three-member panel of the SPBR held an oral hearing on the parties' objections.

{¶8} On September 18, 2019, the SPBR overruled the parties' objections and adopted the Report and Recommendation that Ms. Goudy's removal be modified to a ten-day 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 September 18, 2019 SPBR Order with the Tuscarawas County Court of Common Pleas. TCPD paid a deposit to the Ohio State Treasurer in the amount of $935.50 pursuant to R.C. 119.12(J) and Ohio Admin. Code. 124-15-08.

{¶10} On November 13, 2019, the trial court issued a judgment entry acknowledging a Notice of Appeal of Administrative Order was filed 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.

{¶11} On October 30, 2019, Shane G. Trace, SPBR Program Administrator, filed a notice with the Clerk of Courts stating "[e]nclosed please find the complete record of the proceedings before the State Personnel Board of Review in the appeal of Tuscarawas County Public Defender v. Kristy Goudy. This is to certify that the record consists of the enclosed proceedings, exhibits, miscellaneous documents, and transcript. 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 general 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 day, 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 earlier set by the Court.

Thanks for your attention and patience here. We apologize for this 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 Review." In the motion, TCPD stated it had requested copies from the SPBR of all the transcripts that SPBR had filed with the trial court when it certified the record. The SPBR provided TCPD with transcripts for April 2, 2019, the first day of the administrative 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-chief, where she and her witness, Lisa Calderon testified. TCPD contacted SPBR on January 29, 2020 regarding the missing April 3, 2019 transcript. In response, TCPD (and the trial court) received the January 30, 2020 email from Lisa Reid, quoted above.

{¶15} TCPD argued SPBR failed to prepare and certify the complete record in compliance with R.C. 119.12(I), thereby placing a mandatory duty on the trial court to find in favor of TCPD, the party adversely affected. It argued because the SPBR failed to certify the complete record, TCPD did not need to show prejudice. In the alternative, if the trial court determined a showing of prejudice was necessary, TCPD was prejudiced because the record evidence necessary for the trial court to dispose 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' briefing 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.

{¶17} On February 7, 2020, SPBR filed a Notice of Appearance, Memorandum 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, 2019 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 Party, 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 the record. The omission of the transcript was a clerical error, which did not prejudice TCPD. Ms. Goudy filed a supplemental memorandum on February 12, 2020.

{¶18} TCPD filed replies to the motions for joinder, arguing the SPBR was not a proper party to the administrative appeal. Ms. Goudy filed a response and included the affidavit of Shane Trace, the SPBR Program Administrator. Trace averred that in his capacity as Program Administrator, he prepares, files, and certifies the administrative record developed by the SPBR to the Courts of Common Pleas. He stated that due to a "clerical error" by his...