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Defenses Should Be Asserted As Early As Possible In Administrative Actions

In a decision issued October 20, 2016, the Ohio Court of Appeals for the Eighth District confirmed the broad discretionary authority of the Ohio Department of Education (“ODE”) with respect to the revocation of teaching licenses issued by the Ohio Board of Education pursuant to R.C. § 3319.31. Cobb v. Ohio Dept. of Educ. 2016-Ohio-7396. In this case, the ODE permanently revoked the license of Dr. Aries Cobb for failing to properly supervise students in her care. Dr. Cobb is the founder, director, and owner of a private clinic providing educational services to children with learning disabilities. Dr. Cobb’s license was permanently revoked after she allowed two minor interns to take roughly eleven students to a public park resulting in a five year-old special needs child being left alone in the park for up to an hour.

The ODE held a hearing and issued a 30 page report recommending that Dr. Cobb’s license be permanently revoked in light of the seriousness of the incident. Though the Court of Appeals believed permanent revocation was a “harsh sanction for an initial infraction,” it held that the ODE fully and appropriately considered the applicable statute, rules, and regulations in reaching a determination. As in previous cases, the Court of Appeals found that disciplinary decisions of the ODE will be upheld so long as there is reliable, substantial, and probative evidence supporting the ODE’s decision. The trial court found that the ODE’s decision was sufficiently supported by the evidence, and the Court of Appeals was unwilling to substitute its judgement for that of the trial court.

Dr. Cobb had challenged the trial court’s decision not to hold a formal hearing pursuant to R.C. § 119.12. However, the Court of Appeals noted that the hearing required by R.C. § 119.12 may be limited to a review of the record and did not require the trial court to accept briefs, oral argument, or newly discovered evidence. The Court of Appeals also rejected Dr. Cobb’s constitutional challenge to R.C. § 3319.31 as vague and a delegation of legislative authority to the State Board of Education, noting that the Ohio Administrative Code (e.g. 3301-73-21 and 3301-73-22) and the Licensure Code provide specific instances of behaviors constituting conduct unbecoming and negligence, and provide the range of potential penalties. And finally, the Court of Appeals held the trial court was not required to accept Dr. Cobb’s Objections to the Report of the Hearing Officer where the Objections were not filed with the ODE, and in any event the refusal was harmless and non-prejudicial.

Folkerth and Folkerth LLC has experience representing educators, including before the Ohio Department of Education.

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