Case

Kellough v. Ohio State Bd. of Educ. (Feb. 1, 2011), 10th Dist. No. 10AP-419

Holdings:   

(1) An agency must send a notice of opportunity to a party by registered mail, but the copy that is required to be sent to the party’s attorney may be sent by regular mail.  There is no statutory or constitutional requirement that the party’s attorney actually receive the notice.

(2) If a party does not timely request a hearing under R. C. 119.07, the agency does not have the discretion to permit the party to participate in a Goldman hearing.

Summary

The Ohio State Board of Education issued a notice of opportunity for hearing to licensed teacher.  The Notice was sent to the licensee by certified mail, and to the licensee’s attorney via regular mail.  The licensee did not request a hearing because he believed his attorney would handle it, but the attorney never received the Notice and did not request a hearing within thirty days as required by R. C. 119.07.  The Board scheduled a Goldman hearing, at which it was made clear that the licensee would not be permitted to present evidence or cross-examine witnesses.  The licensee filed a motion for leave to request a hearing outside of the thirty-day time period set by R. C. 119.07, asserting that the Board had discretion to permit a late request or to hold a hearing without a timely request.  The motion was denied, and on appeal the common pleas court held that the board did not have discretion to permit the licensee to request a hearing after thirty days had passed.

On appeal, the Tenth District held that the Board satisfied R. C. 119.07 by sending the notice to the attorney via regular mail, and that actual receipt by the attorney was not required by R. C. 119.07 or by due process.  The court held that while notice to a party is required to satisfy due process, actual notice on the attorney is “merely a courtesy, not a constitutional prerequisite.” 

On the issue of the failure to request a hearing, the Tenth District held that the Board did not have statutory authority to permit the licensee to participate in the hearing when he did not timely request a hearing.  The licensee attempted to appeal to the Supreme Court of Ohio, but the Supreme Court declined to accept jurisdiction.