COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 77448 CUYAHOGA COUNTY : JOURNAL ENTRY BOARD OF COMMISSIONERS : AND : OPINION Plaintiff-Appellant : vs. : : VIRGINIA SMILEY : : Defendant-Appellee : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 26, 2000 CHARACTER OF PROCEEDING: Civil appeal from the Court of Common Pleas Case Nos. CV-388261 CV-290813 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: STEVEN W. RITZ, ESQ. ASST. COUNTY PROSECUTOR 8TH Floor, Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellee: ROBERT W. SAUTIER, ESQ. CLOPPERT, PORTMAN, SAUTER, & LATANICK 225 East Broad Street P.O. Box 1810 Columbus, Ohio 43216-1810 ANN DYKE, A.J.: -2- Appellant, Cuyahoga County Board of Commissioners, is appealing the trial court's decision affirming the decision of the State Personnel Board of Review. Appellant had discharged its employee, appellee, Virginia Smiley. The State Personnel Board modified the removal of appellee, Virginia Smiley, to a demotion and six month suspension. For the following reasons, we affirm. Appellee started working for appellant in 1969 as a social worker. She was later promoted to social services supervisor. In 1995, she received a written reprimand concerning the need to better document her cases. In 1996, she was suspended for three days for neglect of duty. The three County Commissioners unanimously voted to terminate appellee's employment. Appellant issued an order of removal, effective March 20, 1998. The order of removal alleged that appellee: (1) inappropriately monitored worker activity in investigations, Risk Assessments and Safety Plans, (2) failed to take action to insure child safety when she had information concerning risk to the child; (3)failed to hold Administrative Case Plan Reviews; (4) failed to enforce the joint home visit policy; and (5) failed to document meetings with staff in spite of a previous corrective action plan. Appellee-Smiley appealed the termination to the State Personnel Board of Review. No transcript of the hearing was filed in this appeal. The Administrative Law Judge's report indicates as follows: -3- Most of the testimony centered on the case of the infant, Olivia Demeo. Intake of the Demeo case occurred on October 1, 1996. Social worker Amburgy was assigned to the case. Amburgy and an intake worker were supposed to make a home visit within 48 hours. A visit did not occur until 36 days later. Amburgy said this was due to the unavailability of an intake worker. Amburgy made the required monthly visits, but did not record them. Appellee claimed she formally met with Amburgy once a month, but did not record them. On February 24, the grandmother complained of emotional abuse. Amburgy visited the home that day and Olivia appeared fine. She wrote a safety plan, but she did not address safety of the child. Appellee never reviewed this plan. On March 6, 1997, a doctor's office called the Kids Hotline and said that Olivia's mother said she might hurt Olivia. The Hotline called Olivia's mother. The mother confirmed she was having thoughts of hurting the child. Goodman, the hotline social worker, visited Olivia that day. Goodman made a safety plan, but the plan was only good for one day. Goodman could have had the child removed, but did not do so. Amburgy was supposed to make another safety plan, but she was not aware she had to do so. An investigation was started, but not completed within 30 days, as required. Amburgy did not make a home visit after the Kidsline call because she was in mandatory training, in court, and had other urgent cases. Other agencies were involved with the Demeo family. Appellee never told Amburgy -4- to do a new safety plan or make a home visit after the Kidsline phone call. On April 4, 1997, a social worker from the McCafferty Clinic called appellee. The social worker was leaving her position, and wanted to give appellee a history on Olivia. The social worker informed appellee that Olivia's mother was pregnant, depressed, not taking her Prozac and not going to counseling. The father was an alcoholic. He was drunk when he went to the McCafferty Clinic. Appellee told the social worker to write a letter stating that the child was at risk of severe emotional and physical neglect. The social worker did not state the child was at such risk, but appellee wanted the letter in order to remove the child from the home at a later time. Appellee did not feel a home visit or other action was needed, because they already knew the information relayed by the McCafferty Clinic social worker. Amburgy did not visit the home again until April 21, 1997. On May 8, 1997, Amburgy decided she had enough information to commence a staffing in order to remove the child. Amburgy scheduled a home visit for May 17. If the situation of the mother's medication and the father's problems were not resolved, she would call a staffing. Unfortunately, on May 17, Olivia was killed by her mother. Ms. Wilkinson, appellee's supervisor, testified that the letter from the McCafferty Clinic indicated that the child was at risk and immediate action was required. In fact, an emergency -5- staffing was justified based upon this letter. An investigation should have been conducted after the McCafferty clinic letter. If appellee already knew the information relayed by the Clinic, she should have acted upon it. Also, appellee should have discussed an emergency staffing with Amburgy because of the Kidsline call. Mr. Komperda, another social work supervisor, testified that they were so busy it was impossible to keep up on all the paperwork. Appellee supervised six people, when she should have been supervising five people at the most. There are very high turnover rates among social workers. The administrative law judge found that the evidence supported the allegations in the order of removal. She found that appellee should not be discharged because she had worked for appellant for over 25 years, in a profession where there is high turnover and burnout. Appellant argues its assignments of error together. They state: THE COURT OF COMMON PLEAS ERRED BY AFFIRMING THE ORDER OF THE STATE PERSONNEL BOARD OF REVIEW (SPBR) WHEN THE SPBR'S ORDER WAS NOT SUPPORTED BY RELIABLE, PROBATIVE, AND SUBSTANTIAL EVIDENCE AND WAS NOT IN ACCORDANCE WITH LAW WHEN THE SPBR MODIFIED THE REMOVAL TO A SIX MONTH SUSPENSION AND DEMOTION. THE COURT OF COMMON PLEAS ERRED BY AFFIRMING THE ORDER OF THE STATE PERSONNEL BOARD OF REVIEW (SPBR) WHEN THE SPBR, PART OF THE EXECUTIVE BRANCH OF STATE GOVERNMENT, ERRED BY SUBSTITUTING ITS JUDGMENT IN PLACE OF THE DULY ELECTED COMMISSIONERS OF CUYAHOGA COUNTY. THE COURT OF COMMON PLEAS ERRED BY AFFIRMING THE ORDER OF THE STATE PERSONNEL BOARD OF REVIEW (SPBR) AS THE SPBR ERRED BY NOT MAKING SPECIFIC FINDINGS THAT THE COUNTY'S DISCIPLINE WAS ARBITRARY, UNREASONABLE OR UNLAWFUL, AND THAT THE DISCHARGE WAS IMPROPER OR UNNECESSARY. -6- The trial court's standard of review of an order of the SPBR is whether the order is supported by reliable, probative and substantial evidence, and is in accordance with law. Cook v. Maxwell (1989), 57 Ohio App.3d 131. As to factual matters, this court is limited to determining whether the trial court abused its discretion in determining whether the administrative decision is supported by reliable, probative, and substantial evidence. Traub v. Warren County Bd. of Comm'rs (1996), 114 Ohio App.3d 486. As to matters of law, this court is not limited to an abuse of discretion standard, since the common pleas court does not exercise discretion as to such issues. Id. SPBR can reverse or modify if the appointing authority's decision was arbitrary, unreasonable, unconscionable, improper or unnecessary. Maiden v. Fayette Cty. Bd. of Retardation (1984), 16 Ohio App.3d 196; State ex rel. Ogan v. Teater (1978), 54 Ohio St.2d 235; see also R.C. 124.03. The SPBR has authority to reduce the disciplinary action imposed on the employee if the discipline was not proper under the circumstances. Maiden, Traub, supra. The board may consider the employee's length of service and employment record in deciding whether the disciplinary action was reasonable, proper, and necessary. Steinbacher v. Louis (1987), 36 Ohio App.3d 68, 70. The SPBR may not disaffirm a termination if the disaffirmance is contrary to law. Jackson v. Coffey (1977), 52 Ohio St.2d 43. For example, if statutory provisions proscribe classified employees from engaging in political activity, the board must uphold a termination for engaging in political activity. Id. -7- In this case, the SPBR essentially determined that appellee's termination was unnecessary, improper or unreasonable. The SPBR based this determination on appellee's length of service in a profession of high turnover and burnout. The Administrative Law Judge's report indicates there was testimony concerning appellee's length of service, and the high turnover in the profession. The trial court did not abuse its discretion in finding that the SPBR's decision was supported by reliable, probative and substantial evidence. The trial court also correctly determined that the SPBR's decision modifying the termination was not contrary to law. Appellee's termination was not required by statute, as in Coffey, supra. Accordingly, appellant's assignments of error are overruled. The decision of the trial court is affirmed. -8- It is ordered that appellee recover of appellant her 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. LEO M. SPELLACY, J., AND KENNETH A. ROCCO, J., CONCUR. ANN DYKE ADMINISTRATIVE JUDGE N.B. This entry is an announcement of the court's decision. See App.R.22(B), 22(D) and 26(A); Loc.App.R.22. This decision will be journalized and will become the judgment and order of the court pursuant to App. R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also S.Ct.Prac.R. II, Section 2(A)(1). .