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When an agency issues an adjudication order, the respondent has the right to appeal the decision to the court of common pleas. When that happens, the agency must prepare and certify to the court a complete record of the proceedings in the case. The complete record of the proceedings has been defined as a precise history of the administrative proceedings from their commencement to their termination. The intentional failure to file the complete record of the proceedings causes the court to enter a finding in favor of the appellant. The appellant wins on a legal technicality.

The administrative attorneys with Graff & McGovern recently asked a common pleas court to enter a decision on behalf of our client because an agency did not file a complete record of the proceedings of the case. The agency in question failed to include a copy of an unsolicited memorandum prepared by its staff that was provided to its members. This memorandum was provided to the members prior to their deliberations regarding the Report and Recommendation issued by the hearing examiner. The agency intentionally failed to include the document because it thought privileged documents were not to be included as part of the record.

The common pleas court ordered the agency to submit the memorandum in question so it can be reviewed in camera. This means the judge will look at the memorandum and determine if it contained information that was not included at the hearing, or if the advice in the memorandum is contrary to law. Graff & McGovern expects the common pleas court will determine the memorandum should have been included with the complete record of the proceedings. The agency appears to agree. Although it submitted the memorandum to the court for review, the agency also asked the common pleas court to reconsider its decision and rule in their favor. This matter is still pending.

If you have any questions about administrative law, or challenging agency orders, you should consider contacting an Ohio professional license and administrative law attorney at Graff & McGovern. John Izzo of Graff & McGovern can be reached at 614-228-5800, extension 5, or johnizzo@grafflaw.com.