COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69577 ERIC M. DAWSON, : : Plaintiff-Appellant : : JOURNAL ENTRY vs. : and : OPINION RICHMOND HTS. LOCAL SCHOOL : DISTRICT, : : Defendant-Appellee : : : DATE OF ANNOUNCEMENT OF DECISION : MAY 16, 1996 CHARACTER OF PROCEEDING : Civil appeal from : Common Pleas Court : Case No. 279934 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: James G. Dawson 4881 Foxlair Trail Richmond Heights, Ohio 44143 For defendant-appellee: Jeffrey J. Wedel SQUIRE, SANDERS & DEMPSEY 4900 Society Center 127 Public Square Cleveland, Ohio 44114-1304 -2- NAHRA, J.: This is an appeal from an order of the Cuyahoga County Court of Common Pleas rendered pursuant to R.C. 2506.04. The trial court affirmed the decision of appellee Richmond Heights Local School District Board of Education, which imposed a three-day suspension upon appellant Eric M. Dawson for violating a school disciplinary rule. Appellant's suspension resulted from an incident which occurred on Friday, September 23, 1994. That evening appellant, a student at Richmond Heights High School, had gone to the Cuyahoga Heights High School campus to attend a football game between the two schools. Prior to entering the stadium grounds, appellant was standing in a parking lot with some other young people. Dr. Hans Pesch, the principal of Richmond Heights High School, also came to the football game. Pesch was required to be at the game as part of his administrative duties in order to provide some monitoring of his students' behavior. Pesch was walking from his car through the parking lot on his way to the stadium when he saw appellant. Pesch recognized appellant from the previous school year. Pesch also thought he recognized appellant's companions as other Richmond Heights High School students, however, he did not know their names. As Pesch walked by the group, he observed appellant -3- light a cigarette for another youth. At that point, the students 1 saw Pesch watching them. Most of them promptly "scattered." The record reflects Dr. Pesch investigated the incident. On Monday, September 26, 1994, he questioned appellant and at least one other student about what had occurred. The other student admitted some youths had been smoking before the football game. During his interview with appellant, Pesch notified appellant that what he had observed was in violation of the school's code of student conduct. Appellant "admitted smoking during the incident" and "did not deny" that he had lighted another student's cigarette. Pesch decided the appropriate punishment for appellant's action would be the imposition of a three-day suspension to begin the following day. Pesch notified appellant's parents of his decision by telephone and by letter. Pesch's letter to appellant's parents indicated they had a right to appeal his decision to the superintendent of schools. However, the superintendent had to be notified in writing of their intent to appeal within five days so that an "appeal hearing" could be scheduled. 2 The record reflects appellant's father "faxed" a request for an appeal to Steven Franko, the superintendent of the Richmond 1 Quoted material indicates either testimony given by a witness at the trial court hearing or evidence included in the record on appeal. 2 Appellant's father is also attorney-of-record for appellant in this case. -4- Heights school system, on Monday, September 26, 1994, the same day he had been notified of the discipline measure. Moreover, that same evening, appellant's father spoke to Franko about the matter at a school athletic event. Since appellant's father wanted the hearing to take place "as soon as possible" on the chance Pesch's decision was overturned, Franko agreed to meet with appellant, his father, and Pesch the following morning at 7:30 a.m. Franko had to alter his schedule to accommodate appellant's father's request; Franko also informed appellant's father that he had another meeting to attend at 8:00 a.m., so his time was limited. The next morning, Tuesday, September 27, 1994, the appeal hearing took place. Franko took notes; however, the proceedings were not otherwise recorded. Franko's notes of the hearing indicate the following: 1) appellant's father was prepared and was well aware of the nature of the proceedings; 2) Pesch related the incident and, in general, the events which led to the imposition of a disciplinary measure only against appellant; 3) Pesch was cross-examined by appellant's father; 4) thereafter, the facts of the incident, the interpretation of school policies in regard to it, and the appropriateness of the disciplinary measure were all discussed; and 5) appellant's father would not permit appellant to give any statement regarding the incident. At the conclusion of the hearing, Franko indicated the appeal of the suspension was denied. -5- Appellant next appealed the suspension to appellee the Board 3 of Education. The matter was heard at the Board meeting of October 10, 1994. Franko read his notes into the record; thereafter, the board members asked questions concerning the incident and school disciplinary policies with regard to actions such as appellant's. Ultimately, the Board adopted a resolution upholding appellant's suspension. On November 17, 1994, appellant appealed the Board's decision 4 to the trial court pursuant to R.C. 2505.03. Appellant also filed a motion for a hearing de novo pursuant to R.C. 2506.03(A). This section permits the trial court to hear the appeal upon the record and "such additional evidence as may be introduced by any party." Appellant attached to his motion two affidavits, viz., his and his father's. In his affidavit appellant's father indicated the following concerning the initial appeal: 1) he was unaware of the nature of the meeting with Franko; 2) he was unprepared to present a "proper 3 The record reflects that on September 28, 1994, appellant first filed a complaint in the Cuyahoga County Court of Common Pleas seeking to enjoin the Board from enforcing the suspension; however, this effort was unsuccessful. 4 R.C. 2505.03(A) states: 2505.03 Final order may be appealed; exception. (A) Every final order, judgment, or decree of a court and, when provided by law, the final order of any administrative officer, agency, board, department, tribunal, commission, or other instrumentality may be reviewed on appeal by a court of common pleas, a court of appeals, or the supreme court, whichever has jurisdiction. -6- defense" for his son; and 3) Franko "terminated" the meeting before the defense was finished. On April 10, 1995, the trial court issued a judgment entry and opinion granting appellant's motion for a de novo hearing. The trial court determined Franko's narrative given at the Board meeting was inadequate for purposes of appellate review. See, e.g., Zannieri v. Norwalk Bd. of Bldg. & Zoning Appeals (1995), 101 Ohio App. 3d 737. The hearing was held on May 30, 1995. Appellant called three witnesses to testify upon cross-examination, viz., Dr. Pesch, Steven Franko, and Scott Becker, president of the school board. Appellant also introduced some exhibits into evidence, although some proffered exhibits were rejected by the trial court. Thereafter, the parties also submitted briefs for the trial court's consideration. On August 24, 1994, the trial court issued its judgment entry and opinion affirming the Board's decision. The trial court determined the following: 1) appellant was within the scope of his school's disciplinary rules when he was attending the football game; 2) appellant's conduct was in clear violation of the school's disciplinary rules; 3) the published rules gave appellant prior notice he could be punished for such behavior; 4) appellant received adequate notice of the appeal hearing and was able to participate in defending himself at it; 5) the disciplinary rules were consistent with the Board's powers and purpose; and 6) the decision to discipline appellant was supported by a preponderance -7- of reliable evidence and was neither unconstitutional nor unreasonable nor arbitrary. It is from the foregoing judgment entry that appellant has now appealed to this court. Appellant presents four assignments of error for review. I. Appellant's first assignment of error states: THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT BY FINDING THAT THE DECISION OF THE RICHMOND HEIGHTS LOCAL SCHOOL DISTRICT BOARD OF EDUCATION, AFFIRMING THE THREE DAY OUT-OF-SCHOOL SUSPENSION OF THE APPELLANT, WAS SUPPORTED BY THE PREPONDERANCE OF SUBSTANTIAL, RELIABLE AND PROBATIVE EVIDENCE. Appellant argues the trial court improperly concluded the disciplinary measure imposed upon him was appropriate since the conduct for which he received punishment did not fit within the scope of the school's disciplinary code in several ways. This court disagrees. Pursuant to R.C. 2506.04, the trial court must weigh the evidence in the record and whatever additional evidence is admitted to determine if an administrative agency's decision is supported by a preponderance of reliable, probative and substantial evidence. Dudukovich v. Housing Authority (1979), 58 Ohio St.2d 202; Harvey v. Cincinnati Civil Serv. Comm. (1985), 27 Ohio App.3d 304. The court must give deference to the agency's resolution of any evidentiary conflicts and, especially in areas of administrative expertise, may not blatantly substitute its judgment for the agency's. Dudukovich v. Housing Authority, supra, at 207; Greco v. -8- Roper (1945), 145 Ohio St. 243; Reed v. Vermilion Local School Dist. (1992), 83 Ohio App.3d 323; Lawson v. Foster (1992), 76 Ohio App.3d 784. In turn, this court's determination is limited to the question whether, as a matter of law, a preponderance of reliable, probative and substantial evidence exists to support the board's decision. Id.; see, also, Budd Co. v. Mercer (1984), 14 Ohio App.3d 269. In this case, appellant was suspended for violating section Q of the Richmond Heights Local Schools School Disciplinary Rules and Regulations, as follows: Q. Use of Possession of Tobacco Products A student shall not possess, use, sell, or offer to sell, buy or offer to buy, or distribute any tobacco product including, but not limited to cigarettes, cigars, snuff and chewing tobacco or aid any other student to use, sell, or distribute any tobacco product including but not limited to cigarettes, cigars, snuff and chewing tobacco. (Emphasis added.) Clearly, the foregoing section is stated in the disjunctive. Contrary to his assertion made in his appellate brief, therefore, appellant need not have "given" a cigarette to another student in order to violate the rule. Appellant's furnishing of a "light," since it aided another student to use a cigarette, was sufficient. Moreover, a review of the school's code reveals appellee has given a great deal of consideration to the rights and responsibilities of all parties involved in the educational -9- process. Thus, in the Introduction to the school code, the following is stated: The Board of Education considers school discipline as the controlled behavior of an individual whereby responsibility is assumed for one's own action in accordance with socially accepted conduct and the rules, regulations and policies of the school setting. Behaviors exhibited must be within the bounds of law and order and must respect the rights of others as individuals. (Emphasis added.) Thereafter, the school code sets forth the responsibilities of appellee, parents, staff, and the students. The school code specifically states: Students have the responsibility to: A. Respect the rights and inherent dignity of fellow students. * * * B. Know and understand school rules. C. Obey school rules * * * . D. * * * E. Accept the consequences of their behaviors. Ignorance of the rules is not an excuse for inappropriate behavior. With regard to basic school discipline, the school code goes on to state the following: The maintenance of school discipline and proper behavior is essential to the establishment of a proper learning environment. * * * . A breach of discipline is any pupil conduct which substantially and materially interferes with the maintenance of a proper learning environment. Acts or behavior which tend to conflict with the education program or which are antagonistic to the welfare of other students, the staff and/or the system cannot and will not be tolerated. -10- School authorities cannot accept liability and responsibility for student health, safety and welfare unless the student conforms to the specified standards of good conduct. In order to maintain the proper learning environment of all students, students committing serious breaches of discipline will be removed from the school setting in compliance with the student suspension and expulsion procedures. (Emphasis added.) Finally, under the heading "Areas in Which Disciplinary Control of Pupil is to be Exercised," the school code states: Students are subject to school disciplinary action up to and including suspension and expulsion as specified herein for all actions which affect the good order, efficiency, morale, management, and welfare of the school. Although primary emphasis will be directed to activities taking place in the school or activities taking place near the school grounds, any student action on or off school property which directly affects the school will be subject to disciplinary action. Areas of disciplinary control shall include: A. While in a school, on the schools grounds or in sight of school premises during and immediately before or immediately after school hours (including schools where the student is not in attendance). * * * C. While engaged in or attending school-related activities on or off school grounds. (Emphasis added.) As the foregoing demonstrates, appellee has determined that to protect the welfare of the school and the people therein students will be disciplined for behavior which could harm other students. It is generally known that the use of tobacco products causes physical harm, therefore, appellee is well within its discretion to -11- decide the act of lighting a cigarette for another student warrants disciplinary action. In re Appeal of Suspension of Huffer from Circleville High School (1989), 47 Ohio St.3d 12; Rohrbaugh v. Elida Local Bd. of Edn. (1990), 63 Ohio App.3d 685. The evidence before the trial court was sufficient to prove appellant's action was in violation of the school code. Pesch testified he saw appellant light a cigarette for another student. Although he did not know the other student's name since it was only the beginning of the school year, Pesch recognized the people in the group as students and this awareness was corroborated by his subsequent investigation of the incident. Moreover, Pesch's testimony was itself corroborated by the other evidence in the record. Cross v. Princeton City School Dist. Bd. of Edn. (1989), 49 Ohio Misc.2d 1. Appellant's argument that he was outside the "jurisdiction" of his school's code cannot be countenanced. The evidence in the record indicated appellant was in the parking lot with only the intent to attend his school's football game. Additionally, Pesch's presence at the Cuyahoga Heights school campus and in the same parking lot was only for the purpose of monitoring the behavior of Richmond Heights students. Thus, there was substantial evidence to prove appellant was subject to his school's disciplinary code at the time he was observed violating one of the rules. In re Appeal of Suspension of Huffer from Circleville High School, supra; Rohrbaugh v. Elida Local Bd. of Edn., supra. -12- For the foregoing reasons, appellant's argument with respect to his first assignment of error is unpersuasive. Accordingly, the first assignment of error is overruled. II. Appellant's second assignment of error states: THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT BY NOT FINDING THAT THE DECISION OF THE RICHMOND HEIGHTS LOCAL SCHOOL DISTRICT BOARD OF EDUCATION, AFFIRMING THE THREE DAY OUT-OF-SCHOOL SUSPENSION OF THE APPELLANT, WAS UNCONSTITUTIONAL. Appellant makes two arguments with respect to this assignment of error. Initially, appellant contends the trial court lacked a basis upon which to base its determination he was afforded his right to due process of law in the administrative proceedings, since "neither he nor his attorney received notice" that the September 5 27, 1994 meeting with Steven Franko was a R.C. 3313.66 hearing. 5 R.C. 3313.66 states in pertinent part: 3313.66 Suspension, expulsion or permanent exclusion; removal from curricular or extra-curricular activities. (A) The superintendent of schools of a city, exempted village, or local school district, or the principal of a public school may suspend a pupil from school for not more than ten schools days. * * * No pupil shall be suspended unless prior to the suspension such superintendent or principal does both of the following: (1) Gives the pupil written notice of the intention to suspend him and the reasons for the intended suspension * * * . -13- In view of the record, however, this contention is both disingenuous and without foundation. Pesch testified he notified appellant's parents of the pending suspension by letter and the telephone on September 26, 1994. He stated appellant's parents were told they had to contact Steven Franko to arrange a hearing. Pesch's testimony was corroborated by other evidence in the record. Franko testified that later the same evening he was approached in person by appellant's father, who requested a hearing on the matter as soon as possible in hopes of reversing the decision. (2) Provides the pupil an opportunity to appear at an informal hearing before the principal, assistant principal, superintendent, or superintendent's designee and challenge the reasons for the intended suspension or otherwise to explain his actions. * * * (E) A pupil or his parent, guardian, or custodian may appeal his expulsion or suspension by a superintendent or principal to the board of education or to its designee. The pupil or his parent, guardian, or custodian may be represented in all appeal proceedings and shall be granted a hearing before the board or its designee in order to be heard against the suspension or expulsion. At the request of the pupil or of his parent, guardian, custodian, or attorney, the board or its designee may hold the hearing in executive session but shall act upon the suspension or expulsion only at a public meeting. The board, by a majority vote of its full membership or by the action of its designee, may affirm the order of suspension or expulsion, reinstate the pupil, or otherwise reverse, vacate, or modify the order of suspension or expulsion. The board or its designee shall make a verbatim record of hearings held under this division. The decisions of the board or its designeee may be appealed under Chapter 2506. of the Revised Code. -14- Franko further testified as follows: 1) he rearranged his schedule to accommodate appellant; 2) appellant was informed in advance that Franko's time would be limited that morning due to a previously-scheduled appointment; 3) appellant and his father attended the hearing; 4) appellant's father arrived with a copy of the Ohio Revised Code in hand; 5) Pesch was both examined and cross-examined; 6) a discussion on the matter was held thereafter; 7) appellant would not make a statement; and 8) appellant never requested a continuance in order to procure more witnesses. Moreover, in view of the fact no transcript was made of the hearing, the trial court subsequently held a hearing do novo to permit appellant to correct any deficiencies in this regard. Furthermore, R.C. 3313.66 does not require a student's suspension to be held in abeyance until the appeal process is completely exhausted. See, e.g., Goss v. Lopez (1975), 419 U.S. 565 at 583. Based upon the foregoing evidence, the trial court properly concluded appellant failed to demonstrate the actions of appellee's representatives deprived him of his right to due process of law. Goss v. Lopez, supra; Rossman v. Conran (1988), 61 Ohio App.3d 246; McNaughton v. Circleville Bd. of Edn. (1974), 46 Ohio Misc. 12; cf., Schank v. Hegele (1987), 36 Ohio Misc.2d 4. Appellant also argues the school disciplinary code is unconstitionally vague. However, a review of the code reveals it provides "adequate notice and fair warning to persons of ordinary intelligence so that they can conform their conduct" to its -15- dictates. See, e.g., State v. Gill (1992), 62 Ohio St.3d 53; cf., Rossman v. Conran, supra. Therefore, appellant's second contention with respect to his second assignment of error is also rejected. Accordingly, appellant's second assignment of error also lacks merit and is overruled. III. Appellant's third assignment of error states: THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLATE BY FINDING THAT THE DECISION OF THE RICHMOND HEIGHTS LOCAL SCHOOL DISTRICT BOARD OF EDUCATION, AFFIRMING THE THREE DAY OUT-OF-SCHOOL SUSPENSION OF THE APPELLANT, WAS REASONABLE AND NOT CONTRARY TO THE STATE EDUCATIONAL POLICY. Appellant argues that under the facts of this case, the punishment imposed upon him was unreasonable. Appellant further contends the punishment was in direct contravention of Ohio statutes which require compulsory education, therefore, the trial court erred in affirming appellee's decision. A review of the record fails to support appellant's argument. Appellant was observed while attending a school athletic event aiding another student to smoke. Smoking is an activity which for school-age youths is both dangerous to their health and illegal. Appellant's conduct, moreover, was in direct contravention of the school disciplinary code. Appellee has within its discretionary power quite reasonably determined that actions such as appellant's are inimical to student welfare. In re Appeal of Suspension of Huffer from Circleville High School, supra; Rohrbaugh v. Elida Local Bd. of Edn., supra. -16- After appellee investigated the incident to determine whether it merited some further attention, appellee imposed upon appellant only a three-day suspension for his infraction of the school code, which was not a particularly harsh punishment and was well within its authority pursuant to R.C. 3313.66. On these facts, the trial court determined its judgment should not be substituted for appellee's. Since appellee's action was neither unreasonable nor in contravention of state educational policies, the trial court did not err in affirming appellee's decision. Brannon v. Bd. of Education (1919), 99 Ohio St. 369; Reed v. Vermilion Local School Dist. (1992), 83 Ohio App.3d 323; see, also, Bd. of Edn. of Rogers, Ark. v. McCluskey (1982), 458 U.S. 966. Accordingly, appellant's third assignment of error also lacks merit and is overruled. IV. Appellant's fourth assignment of error states: THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT BY FINDING THAT THE DECISION OF THE RICHMOND HEIGHTS LOCAL SCHOOL DISTRICT BOARD OF EDUCATION. (SIC) AFFIRMING THE THREE DAY OUT-OF-SCHOOL SUSPENSION OF THE APPELLANT, WAS LEGAL. In this final attempt to overturn the punishment imposed upon him for his conduct, appellant argues simply that his constitutional rights were violated. He contends appellee lacked "jurisdiction" over him because he was not a "pupil" at the time and place he was observed allegedly breaking a school rule. -17- There is sufficient reliable, probative evidence in the record, however, to belie appellant's assertion. In attending a school-related activity, appellant was within the scope of the school disciplinary code and was subject to its rules. In re Appeal of Suspension of Huffer from Circleville High School, supra; see, also, Wood v. Strickland (1975), 420 U.S. 308; Goss v. Lopez, supra; Bd. of Edn. of Rogers, Ark. v. MCluskey, supra. Therefore, the trial court did not err in finding appellee's decision was "legal" and affirming it. Accordingly, appellant's fourth assignment of error is also overruled. The judgment of the trial court is affirmed. -18- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. MATIA, DAVID T., P.J., and McMONAGLE, TIMOTHY E., J., CONCUR. JOSEPH J. NAHRA JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time .