TWISM Ents., L.L.C. v. State Bd. of Registration for Professional Engineers & Surveyors , 2022 Ohio 4677 ( 2022 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
TWISM Ents., L.L.C. v. State Bd. of Registration for Professional Engineers & Surveyors, Slip
Opinion No. 2022-Ohio-4677.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2022-OHIO-4677TWISM ENTERPRISES, L.L.C., APPELLANT, v. STATE BOARD OF
REGISTRATION FOR PROFESSIONAL ENGINEERS AND SURVEYORS, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as TWISM Ents., L.L.C. v. State Bd. of Registration for
Professional Engineers & Surveyors, Slip Opinion No. 2022-Ohio-4677.]
Statutory interpretation—Judicial deference to administrative agencies—Start-up
firm seeking certificate of authorization to provide engineering services
satisfied R.C. 4733.16(D) by designating independent contractor as its full-
time manager—R.C. 4733.16(D) does not preclude an independent
contractor from serving as a full-time manager of an engineering firm— In
Ohio, judicial deference to administrative agencies is permissive rather
than mandatory and may occur only when a statutory term is ambiguous—
Court of appeals’ judgment after applying mandatory deference to agency’s
interpretation of statute reversed and cause remanded.
(No. 2021-1440—Submitted July 12, 2022—Decided December 29, 2022.)
APPEAL from the Court of Appeals for Hamilton County,
SUPREME COURT OF OHIO
Nos. C-200411, C-210125, 2021-Ohio-3665.
_______________________
DEWINE, J.
{¶ 1} This case involves a dispute about a statute that sets forth the
requirements a firm must meet to provide engineering services in Ohio.
Specifically, the firm must “designate one or more full-time partners, managers,
members, officers, or directors” as in “responsible charge” of its engineering
activities. R.C. 4733.16(D). The state agency in charge of administering the statute
contends that to be a full-time manager, one must be an employee and cannot be an
independent contractor. The court of appeals determined that it was required to
defer to the agency’s reasonable interpretation of an ambiguous statute and, on this
basis, held that the statute precluded an independent contractor from fulfilling the
role of full-time manager.
{¶ 2} To resolve the dispute, we must answer two questions. The predicate
question is: What deference, if any, should a court give to an administrative
agency’s interpretation of a statute? Second, once we have sorted out the deference
issue: What does the statute mean?
{¶ 3} We reaffirm today that it is the role of the judiciary, not administrative
agencies, to make the ultimate determination about what the law means. Thus, the
judicial branch is never required to defer to an agency’s interpretation of the law.
As we explain, an agency interpretation is simply one consideration a court may
sometimes take into account in rendering the court’s own independent judgment as
to what the law is.
{¶ 4} Applying our independent judgment here, we find nothing in the
statutory language to preclude an independent contractor from serving as a full-
time manager of an engineering firm. We reverse the contrary judgment of the
court of appeals.
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I. BACKGROUND
{¶ 5} The Ohio Board of Registration for Professional Engineers and
Surveyors (“the Board”) oversees the engineering profession in Ohio. This case
arises from the Board’s denial to TWISM Enterprises, L.L.C., of a certificate of
authorization to provide engineering services.
A. The Board denies TWISM’s application to provide engineering services
{¶ 6} Engineering firms that wish to do business in Ohio must receive
authorization from the Board. R.C. 4733.16(B). The firm seeking authorization
“shall designate one or more full-time partners, managers, members, officers, or
directors as being responsible for and in responsible charge of the professional
engineering or professional surveying activities and decisions.” R.C. 4733.16(D).
The person designated must be a state-registered engineer. Id. Once the statutory
requirements are met, the Board has a mandatory duty to register the firm: the
Board “shall issue a certificate of authorization to each firm, partnership,
association, limited-liability company, or corporation that satisfies the requirements
of this chapter.” R.C. 4733.16(E).
{¶ 7} The Board has adopted an administrative rule that defines
“responsible charge” as “being in control of, accountable for and in either direct or
indirect supervision of the engineering and/or surveying activities of the business
enterprise.” Ohio Adm.Code 4733-39-02(A). The rule defines “full-time” as
“working more than thirty hours per week or working substantially all the
engineering or surveying hours for a firm, partnership, association, limited liability
company or corporation that holds a certificate of authorization.” Ohio Adm.Code
4733-39-02(B).
{¶ 8} TWISM, a small start-up firm, applied to the Board for a certificate
of authorization. TWISM’s application designated James Cooper as its manager.
Cooper attested that he is a full-time engineer “in responsible charge for and in
charge of the professional engineering * * * activities and decisions of the firm.”
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Cooper represented that he provides engineering services to TWISM on a per-
project basis and that he provides all of TWISM’s engineering services. TWISM’s
operating agreement lists Cooper as a “manager” “vested with the management”
authority “to oversee the day to day operations of the engineering department.” For
tax purposes, the firm reports his income to the IRS as an independent contractor
on a form 1099, rather than withholding and reporting his income as an employee
under a W-2 tax form.
{¶ 9} The Board denied TWISM’s application. As the basis for its denial,
the Board said that TWISM had “failed to designate one or more full-time partners,
managers, members, officers, or directors as being responsible for and in charge of
professional engineering activities and decisions for the firm.” In the Board’s
view, a manager had to be a “W-2” employee rather than a “form-1099”
independent contractor.
{¶ 10} TWISM pursued its right to an administrative appeal, which it
presented to a hearing officer appointed by the Board. The hearing officer
recommended that the Board again deny TWISM’s application, noting that the
Board’s “expertise in the area” requires “deference” to its “interpretation of the
laws.” The Board adopted the hearing officer’s findings of fact and conclusions of
law and accepted his recommendation to deny the application.
{¶ 11} The Board identified two problems with TWISM’s application.
First, it said that Cooper did not work “full time” for TWISM. It pointed to Ohio
Adm.Code 4733-39-02(B)’s definition of “full-time,” which requires more than 30
hours of work weekly or “working substantially all the engineering or surveying
hours for” the firm. The Board, though, never explained why Cooper, who
indisputably performed “all the engineering * * * hours” of TWISM, failed to meet
this definition.
{¶ 12} Second, the Board found that TWISM did not satisfy the requirement
that it have a full time “manager,” because of Cooper’s status as an independent
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contractor rather than a W-2 employee. The Board said that it was necessary that
the holder of the certificate of authorization have control over the professional
engineer’s activity and “[t]hat control is ensured by an employer/employee
relationship.” Thus, the Board adopted a hardline rule that R.C. 4733.16(D)
requires formal W-2 employment; a business may not designate an independent
contractor as professional engineer.
B. The common pleas court applies de no novo review, but the court of
appeals defers to the Board’s interpretation
{¶ 13} TWISM appealed the agency adjudication to the Hamilton County
Court of Common Pleas. See R.C. 119.12(A)(1). In its arguments to the court, the
Board asked for “due deference” to its “reasonable” interpretation that R.C.
4733.16(D) requires an employer-employee relationship between the business and
the designated engineer. Adopting a magistrate’s recommendation, the court
reversed the Board’s decision without affording any deference to the agency’s
interpretation of the statute. In doing so, the court concluded that the Board’s
determination that a manager “is required to be a full-time ‘W-2’ employee in order
to satisfy the requirements of R.C. 4733.16(D)” is “not mandated by the plain text
of the statute.” The court also rejected the Board’s conclusion that Cooper did not
meet the full-time requirement. It explained that because Cooper performs
“substantially all” of TWISM’s engineering work, he satisfied the administrative
code’s definition of “full-time.” The court thus ordered the Board to issue TWISM
a certificate of authorization to perform engineering services.
{¶ 14} The Board appealed to the First District Court of Appeals. The court
of appeals framed the question as “whether the statute and regulation permit an
independent contractor to serve as a ‘full-time manager’ for the purposes of
obtaining a [certificate of authorization].” 2021-Ohio-3665, ¶ 14. The Board
asserted that the trial court should have inquired only into whether the Board’s
interpretation of the statute is reasonable. Id. at ¶ 15. As long as its interpretation
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SUPREME COURT OF OHIO
is reasonable, maintained the Board, the trial court owes it deference. Id.
{¶ 15} The court of appeals declined to go so far. It held that a court must
defer to an administrative interpretation only if the court first has found the statute
to be ambiguous. Id. at ¶ 16, citing Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837, 842-843, 104 S.Ct. 2778, 81 L.Ed.2d 694(1984). It then defined “ambiguity” broadly, holding that “a statute is ambiguous
when its language is subject to more than one reasonable interpretation.” Id. at
¶ 18.
{¶ 16} Applying this definition, the court found R.C. 4733.16(D) to be
ambiguous. It reasoned that the statute “could” be read as requiring the manager to
be “directly affiliated with the entity” or “could” be read as allowing the manager
to be an independent contractor. Id. at ¶ 28. It thus concluded: “Because there are
different, reasonable readings of ‘full-time manager,’ we find that the term is
ambiguous. As such, this court must defer to the Board’s interpretation.” Id. at
¶ 29.
{¶ 17} We accepted TWISM’s appeal to review (1) this court’s approach to
administrative deference and (2) whether TWISM’s application for a certificate of
authorization satisfies the requirements of R.C. 4733.16(D). See 165 Ohio St.3d
1540, 2022-Ohio-397, 180 N.E.3d 1170. The attorney general represents the Board
in this case. Separately, the attorney general has filed an amicus brief on his own
behalf. As amicus curiae, he takes no position on “which party ought to win this
case” but “urges the Court, in resolving the matter, to hold that agencies’ legal
interpretations are not entitled to any deference.”
II. AGENCY DEFERENCE
{¶ 18} We must decide whether TWISM may designate an independent
contractor as its full-time manager for purposes of R.C. 4733.16(D). Throughout
this litigation, the Board has asserted that the judiciary is required to defer to the
Board’s interpretation of the statute. In the courts below, the deference issue has
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January Term, 2022
proved dispositive: the court of common pleas reviewed the issue without deference
and held that an independent contractor could serve as the firm’s manager; the court
of appeals held that deference was required and reached the opposite conclusion.
But now the Board urges this court to avoid the deference issue and simply find
that the plain language of R.C. 4733.16(D) unambiguously compels an employment
relationship.
{¶ 19} For two reasons, we decline the Board’s invitation to decide this case
on a basis other than the legal positions advanced below and the propositions of
law we have accepted. First, R.C. 4733.16(D) is silent on any employment
requirement. The designated engineer must be a manager (or some similar role),
but, as the court of appeals noted, firms will often “outsource management duties
to independent contractors,” 2021-Ohio-3665 at ¶ 26. So the Board’s argument that
the law unambiguously requires a W-2 employment relationship with the
designated engineer is difficult to reconcile with the plain text of the provision.
Second, up to this point in the litigation, the Board had relied on authority that
required deference “unless the interpretation is unreasonable,” State ex rel. Clark
v. Great Lakes Constr. Co., 99 Ohio St.3d 320, 2003-Ohio-3802, 791 N.E.2d 974,
¶ 10. That position did not depend on ambiguity, and changing positions at this
advanced stage cannot cover up the deference issue lurking in this case.
{¶ 20} Thus, before we can determine whether TWISM is entitled to a
certificate of authorization, we must first decide what deference, if any, should be
given to the Board’s interpretation of the engineering laws. We will begin by
surveying this court’s (admittedly muddled) precedent on deference. We will then
clarify the circumstances under which a court might properly consider an agency
interpretation of a statute. Once we have set forth the proper standard for agency
deference, we will resolve TWISM’s challenge.
A. Ohio has deference cases but no deference doctrine
{¶ 21} Administrative deference is a frequent topic in the federal courts.
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SUPREME COURT OF OHIO
Most practitioners are familiar with the framework established by the United States
Supreme Court in Chevron, 467 U.S. at 865-866, 104 S.Ct. 2778, 81 L.Ed.2d 694,
under which a court is required to defer to an administrative agency’s reasonable
interpretation of an ambiguous statute. And few topics are more often discussed in
legal circles than the efficacy of the Chevron regime. See, e.g., Thomas Merrill,
The Chevron Doctrine: Its Rise and Fall and the Future of the Administrative State
(2022); Christopher J. Walker, Attacking Auer and Chevron Deference: A
Literature Review, 16 Geo.J.L. & Pub. Policy 103 (2018); Douglas H. Ginsburg
and Steven Menashi, Our Illiberal Administrative Law, 10 NYU J.L. & Liberty,
475 (2016).
{¶ 22} Ohio’s approach to deference is much harder to categorize. Prior to
Chevron, on only a couple occasions did this court directly address deference to an
agency’s legal determinations, and both dealt with deference to a federal agency’s
interpretation of federal law. See Jones Metal Prods. Co. v. Walker, 29 Ohio St.2d
173, 180-182, 281 N.E.2d (1972) (deferring to EEOC guidelines to determine
whether federal statute preempted state law); State ex rel. Brown v. Dayton
Malleable, Inc., 1 Ohio St.3d 151, 155-156, 438 N.E.2d 120 (1982) (looking to
EPA’s regulations to interpret Ohio law that implemented Federal Water Pollution
Control Act).
{¶ 23} In a few earlier cases, we suggested that a long-standing
administrative practice carries weight in the interpretive process. See Indus. Comm.
v. Brown, 92 Ohio St. 309, 311, 110 N.E. 744 (1915) (“Administrative
interpretation of a given law, while not conclusive, is, if long continued, to be
reckoned with most seriously and is not to be disregarded and set aside unless
judicial construction makes it imperative so to do”); In re Estate of Packard, 174
Ohio St. 349, 356, 189 N.E.2d 434 (1963) (“Such long standing administration
practices are not only persuasive, but should not be set aside unless judicial
construction makes it imperative to do so”). But neither case can fairly be read as
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January Term, 2022
setting forth a general rule of deference to agency interpretations. Rather, the
principle set forth in those cases is in line with the long-held idea that “certain
executive interpretations of legal text should receive ‘respect’ ” because “an
ambiguous legal text should be given its contemporaneous and customary
meaning.” Aditya Bamzai, The Origins of Judicial Deference to Executive
Interpretation, 126 Yale L.J. 908, 941 (2017).
{¶ 24} It was not until after the 1984 Chevron decision that deference
language began to appear in our cases on a regular basis. See, e.g., West Virginia
v. Ohio Hazardous Waste Facility Approval Bd., 28 Ohio St.3d 83, 85, 502 N.E.2d
625 (1986). But such instances seemed more a matter of tossing in a few lines here
and there to support a particular result than any application of an established
doctrine. Fair to say, there is no “Chevron moment” in this court’s history. There
has never been a case to systematically explain the contours of our deference
doctrine, its theoretical justification, and its application in particular cases. To the
contrary, if one parses our caselaw, one can find at least three different—and
irreconcilable—formulations by this court of deference standards.
{¶ 25} Mandatory deference. In one direction, a line of cases holds that
courts owe conclusive deference to “an agency’s interpretation of a statute that it
has the duty to enforce” so long as the interpretation is “reasonable.” Clark, 99
Ohio St.3d 320, 2003-Ohio-3802, 791 N.E.2d 974, at ¶ 10. “[C]ourts,” we have
said, “when interpreting statutes, must give due deference to an administrative
interpretation formulated by an agency which has accumulated substantial
expertise.” State ex rel. McLean v. Indus. Comm., 25 Ohio St.3d 90, 92, 495 N.E.2d
370 (1986). Statutory ambiguity plays no role here; the agency’s interpretation of
the law controls as long as it is reasonable. The Board relied on this precedent in
prior stages of this case.
{¶ 26} Ambiguity-triggered mandatory deference. In a second direction
runs a set of cases that resemble Chevron, 467 U.S. at 843, 104 S.Ct. 2778, 81
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L.Ed.2d 694, fn. 9. Under this line of authority, this court will conclusively defer
to an agency’s reasonable interpretation of an ambiguous statute. State ex rel.
Colvin v. Brunner, 120 Ohio St.3d 110, 2008-Ohio-5041, 896 N.E.2d 979, ¶ 57
(“the court must defer to [the secretary of state’s] reasonable interpretation” of an
ambiguous statute); UBS Fin. Servs. v. Levin, 119 Ohio St.3d 286, 2008-Ohio-3821,
893 N.E.2d 811, ¶ 34 (deferring to the tax commissioner’s reasonable interpretation
of a statutory ambiguity).
{¶ 27} Permissive deference. A third line of cases holds that a court “may
rely on the expertise of a state agency.” (Emphasis supplied.) Ohio Partners for
Affordable Energy v. Pub. Util. Comm., 115 Ohio St.3d 208, 2007-Ohio-4790, 874
N.E.2d 764, ¶ 11; see also In re Complaint of Reynoldsburg, 134 Ohio St.3d 29,
2012-Ohio-5270, 979 N.E.2d 1229, ¶ 19 (permitting reliance “on the expertise of a
state agency in interpreting a” specialized law).
{¶ 28} Most recently, we have suggested that to the extent that deference
may be appropriate in Oho, it is this permissive type. Just last year, we reiterated
that only the judiciary has the ultimate authority to interpret the law. State ex rel.
Ferrara v. Trumbull Cty. Bd. of Elections, 166 Ohio St.3d 64, 2021-Ohio-3156,
182 N.E.3d 1142, ¶ 21. We also explained, “There is authority that supports the
principle that when a statute is truly ambiguous in that there are two equally
persuasive and competing interpretations of the law, it is permissible for a court to
consider an administrative construction of the statute.” (Emphasis supplied.) Id.B. Constitutional and statutory underpinnings
{¶ 29} The confused state of our caselaw and our failure to articulate any
justification or consistent standard for agency deference suggests that we should
take a step back and examine the matter in light of first principles. As we will
explain, Ohio’s system of separation of powers precludes any sort of mandatory
deference to agency interpretations. Furthermore, the principal justification for
mandatory deference that has been set forth in the federal courts—that deference is
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appropriate because the legislature has delegated policy-making authority to an
administrative agency—cannot be reconciled with Ohio law.
1. The Ohio Constitution creates a system of separated powers
{¶ 30} Like the federal Constitution, the Ohio Constitution creates a system
of separation of powers. Ohioans have delegated to the General Assembly the
“legislative power of the state,” Ohio Constitution, Article II, Section 1; to the
governor the “supreme executive power of this state,” id. at Article III, Section 5;
and to the courts the “judicial power of the state,” id. at Article IV, Section 1.
{¶ 31} The “separation of powers is designed to preserve the liberty of all
the people.” Collins v. Yellen, __ U.S. __, 141 S.Ct. 1761, 1780, 210 L.Ed.2d 432(2021). Indeed, the American experiment has long been thought to rest on the idea
that “ ‘there can be no liberty, where the legislative and executive powers are united
in the same person, or body of magistrates;’ or, ‘if the power of judging, be not
separated from the legislative and executive powers.’ ” The Federalist No. 47, at
251 (James Madison) (Gideon Ed.2001), quoting Montesquieu, The Spirit of Law
181 (1748).
{¶ 32} Each branch of government “can exercise such power, and such
only, as falls within the scope of the express delegation.” Scovill v. Cleveland, 1
Ohio St. 126, 134 (1853). Separating “the several powers of enacting, construing,
and executing laws” aids “the just exercise of the powers” and “prevent[s] abuse.”
Chesnut v. Shane’s Lessee, 16 Ohio 599, 620 (1847) (Read, J., dissenting); see 3
Joseph Story, Commentaries on the Constitution of the United States, Section 519,
2-3 (1833) (“the three great powers of government * * * should for ever be kept
separate and distinct”).
{¶ 33} In carrying out their day-to-day obligations, the other branches of
government must follow and apply the law—a task that entails some level of
interpretation. But the ultimate authority to render definitive interpretations of the
law has long been understood as resting exclusively in the judicial power. Watson
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v. Tax Comm., 135 Ohio St. 377, 380, 21 N.E.2d 126 (1939) (“It is the province of
the courts only to construe and apply statutes”); State ex rel. Davis v. Hildebrant,
94 Ohio St. 154, 169, 114 N.E. 55 (1916) (“The construction of the laws and
constitution is for the courts * * * ”); The Federalist No. 78, at 404 (Alexander
Hamilton) (Gideon Ed.2001) (“The interpretation of the laws is the proper and
peculiar province of the courts”). Thus, only the judiciary may make “an
interpretation [that] would be considered authoritative in a judicial proceeding.”
Perez v. Mtge. Bankers Assn., 575 U.S. 92, 119, 135 S.Ct. 1199, 191 L.Ed.2d 186(2015) (Thomas, J., concurring).
{¶ 34} The idea that a court must defer to an agency determination is
difficult to reconcile with these separation-of-powers concepts. When a court
defers to an agency’s interpretation of the law, it hands to the executive branch the
judicial authority “to say what the law is,” State v. Parker, 157 Ohio St.3d 460,
2019-Ohio-3848, 137 N.E.3d 1151, ¶ 31 (lead opinion).
{¶ 35} Mandatory deference also raises questions of judicial independence.
In a case like this one, a court is charged with adjudicating a dispute between a
government agency and a private party. But how can the judiciary fairly decide the
case when it turns over to one party the conclusive authority to say what the law
means? To do so would fly in the face of the foundational principle that “no man
ought to be a judge in his own cause,” Monroeville v. Ward, 27 Ohio St.2d 179,
191, 271 N.E.2d 757 (1971) (Corrigan, J., dissenting); the Federalist No. 10, at 44
(James Madison) (Gideon Ed.2001) (“No man is allowed to be a judge in his own
cause; because his interest would certainly bias his judgment * * * ”). For this
reason, it has been said that mandatory deference creates “systematically biased
judgment” in cases where a government agency is a party. Philip Hamburger,
Chevron Bias, 84 Geo.Wash.L.Rev. 1187, 1211 (2016).
2. Ohio statutes do not support mandatory deference
{¶ 36} The theoretical justification for mandatory deference in the federal
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courts is that the legislature has delegated policy-making authority to the
administrative agency. The idea is that a statute’s ambiguity constitutes “ ‘an
implicit delegation from Congress to the agency to fill in the statutory gaps.’ ” King
v. Burwell, 576 U.S. 473, 485, 135 S.Ct. 2480, 192 L.Ed.2d 483 (2015), quoting
Food & Drug Adm. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159, 120
S.Ct. 1291, 146 L.Ed.2d 121 (2000). It’s easy to be skeptical of the notion: one
might think it more likely that an ambiguous law is the result of poorly considered
or hasty legislative action rather than a deliberate policy choice to surrender power
to an agency. Nonetheless, implicit delegation is the “legal fiction” upon which the
federal delegation doctrine rests. Jonathan H. Adler, Restoring Chevron’s Domain,
81 Mo.L.Rev. 983, 991 (2016).
{¶ 37} This implicit-delegation theory does nothing to resolve the
separation-of-powers concerns outlined above. But it is still worth asking whether
there is any indication that the Ohio General Assembly implicitly delegated to
administrative agencies the authority to fill in the gaps of ambiguous statutes. After
all, we have never set forth a theoretical justification for deference of our own, and
much of our doctrine seems to be loosely pulled from the federal courts.
{¶ 38} The most relevant authority is the Ohio Administrative Procedures
Act, R.C. 119.01 through 119.14. The act allows those adversely affected by many
types of agency adjudications to appeal to the court of common pleas. R.C.
119.12(A)(1). The court may affirm the order of an agency only if it “is supported
by reliable, probative, and substantial evidence and is in accordance with law.”
(Emphasis supplied.) R.C. 119.12(M). That standard—in accordance with law—
is a de novo review standard. Ohio Historical Soc. v. State Emp. Relations Bd., 66
Ohio St.3d 466, 471, 613 N.E.2d 591 (1993) (court “must construe the law on its
own”). De novo review, of course, is not deferential at all.
{¶ 39} Further evidence that the legislature did not intend to delegate
interpretive authority to administrative agencies comes from R.C. 1.49, a statute by
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which the legislature purports to set forth permissive considerations that a court
may utilize in ascertaining legislative meaning. That provision provides: “if a
statute is ambiguous, the court in determining the intention of the legislature, may
consider among other matters * * * the administrative construction of the statute.”
(Emphasis supplied.) R.C. 1.49(F). One might question the authority of the
General Assembly to tell the judiciary how to engage in its interpretive function.
But for our purposes, there are two points to take from the statute. First, the
legislature envisioned that a court might defer to an administrative agency only
when a statute is ambiguous. And even then, deference is permissive, not
mandatory.
{¶ 40} Thus, there is no reason in Ohio to construe ambiguity as an implicit
delegation of power to administrative agencies to fill in statutory gaps. To the
contrary, Ohio’s statutory scheme supports the view that any judicial deference to
administrative agencies is permissive rather than mandatory and may occur only
when a statutory term is ambiguous.
C. Ohio’s deference standard
{¶ 41} Based on the foregoing, we now clarify how courts should interpret
statutes administered by agencies.
1. We reject all forms of mandatory deference
{¶ 42} First, it is never mandatory for a court to defer to the judgment of an
administrative agency. Under our system of separation of powers, it is not
appropriate for a court to turn over its interpretative authority to an administrative
agency. But that is exactly what happens when deference is mandatory. When we
say that we will defer to an administrative agency’s reasonable interpretation of a
statute, or its reasonable interpretation of an ambiguous statute, we assign to the
agency a range of choices about statutory meaning. We police the outer boundaries
of those choices, but within the range (e.g., reasonableness), the agency renders the
interpretive judgment.
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{¶ 43} In our constitutional system, it is exclusively the “the province and
duty of the judicial department to say what the law is.” Marbury v. Madison, 5 U.S.
137, 177, 2 L.Ed. 60 (1803). Thus, we reject the position advanced by the Board
in prior stages of the litigation that the courts are required to defer to its reasonable
interpretation of a statute. We similarly reject the First District’s view that a court
must defer to an agency’s interpretation of an ambiguous statute.
2. A court may consider an agency interpretation based on its persuasive power
if a statute is genuinely ambiguous
{¶ 44} Second, we clarify that a court may consider an administrative
agency’s construction of a legal text in exercising its duty to independently interpret
the law, but we add a few caveats. To start, an administrative interpretation should
never be used to alter the meaning of clear text. If the text is unambiguous, the
court should stop right there.
{¶ 45} Now assume that a court does find ambiguity and determines to
consider an administrative interpretation along with other tools of interpretation.
The weight, if any, the court assigns to the administrative interpretation should
depend on the persuasive power of the agency’s interpretation and not on the mere
fact that it is being offered by an administrative agency. A court may find agency
input informative; or the court may find the agency position unconvincing. What
a court may not do is outsource the interpretive project to a coordinate branch of
government.
{¶ 46} In this respect, deference in Ohio bears similarities to the rule
announced by the United States Supreme Court in Skidmore:
[T]he rulings, interpretations and opinions of the
Administrator under this Act, while not controlling upon the courts
by reason of their authority, do constitute a body of experience and
informed judgment to which courts and litigants may properly resort
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for guidance. The weight of such a judgment in a particular case
will depend upon the thoroughness evident in its consideration, the
validity of its reasoning, its consistency with earlier and later
pronouncements, and all those factors which give it power to
persuade, if lacking power to control.
Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944).
{¶ 47} In assessing the persuasiveness of an agency interpretation, it is
appropriate for a court to keep in mind the respective competencies of the agency
and the judiciary. When it comes to interpretation of text involving common words
used in their ordinary sense, there will rarely, if ever, be a need for a court to look
to an agency interpretation. This task is routinely performed by courts and is well
within the judiciary’s core competence. On the other hand, in a specialized matter
that involves technical meaning uniquely within the competency of the agency, the
agency’s expertise might prove helpful to a court in its interpretive task. See
Sarasota Mem. Hosp. v. Shalala, 60 F.3d 1507, 1511 (11th Cir.1995). Even then,
it remains the judiciary’s role to independently interpret the law; the weight to be
given the agency interpretation depends on its persuasiveness.
3. We are not alone in revisiting our deference doctrine
{¶ 48} It is worth noting that we are not alone in recalibrating our approach
to agency deference. Roughly half the states in the Union review agency
interpretations of the law de novo. Daniel Ortner, The End of Deference: How
States Are Leading a (Sometimes Quiet) Revolution Against Administrative
Deference Doctrines (2020), https://ssrn.com/abstract=3552321. A number of
these states have recently adopted this standard. In Wisconsin, for example, its
Supreme Court questioned whether “[a]llowing an administrative agency to
authoritatively interpret the law” cedes “some part of the state’s judicial” power to
“the executive branch of government.” Tetra Tech EC, Inc. v. Wisconsin Revenue
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January Term, 2022
Dept., 2018 WI 75, 382 Wis.2d 496, 914 N.W.2d 21, ¶ 43. The court answered that
question yes and adopted a de novo standard to review agency determinations of
questions of law. Id. at ¶ 84. So did the Utah Supreme Court when it reiterated
that “agency decisions premised on pure questions of law are subject to non-
deferential review for correctness.” Ellis-Hall Consultants v. Pub. Serv. Comm.,
2016 UT 34, 379 P.3d 1270, ¶ 27. High courts in Arkansas, Delaware, Kansas,
Michigan, and Mississippi have similarly revamped their deference doctrines
lately, returning to de novo review. Myers v. Yamato Kogyo Co., 2020 Ark. 135,
597 S.W.3d 613, 617; Pub. Water Supply Co. v. DiPasquale, 735 A.2d 378, 381
(Del.1999); Cochran v. Dept. of Agriculture, Water Resources Div., 291 Kan. 898,
904, 249 P.3d 434 (2011); SBC Michigan v. Pub. Serv. Comm., 482 Mich. 90, 103,
754 N.W.2d 259 (2008); King v. Mississippi Military Dept., 245 So.3d 404, ¶ 12
(Miss.2018).
III. TWISM MET THE LEGAL REQUIREMENTS TO PROVIDE
ENGINEERING SERVICES
{¶ 49} We now return to the present dispute. The second proposition of law
we accepted asserts: “R.C. 4733.16(D) does not preclude an engineering firm from
designating an independent contractor as its professional-engineering manager.”
{¶ 50} The question is whether TWISM has met the requirements to be
authorized to provide professional engineering services. If so, the Board is
compelled to grant TWISM a certificate of authorization. R.C. 4733.16(E) (“shall
issue”). The relevant requirements are set by the General Assembly, not by the
Board. Id. (“the requirements of this chapter”). The facts are undisputed, and we
review an agency’s legal determinations de novo.
{¶ 51} TWISM was required to designate a registered professional engineer
“as being responsible for and in responsible charge of the professional engineering
* * * services and decisions” it renders. R.C. 4733.16(D). That designee must be
a “full-time” partner, manager, member, officer, or director for TWISM. Id.17
SUPREME COURT OF OHIO
{¶ 52} In the administrative proceedings and lower courts, the Board
maintained that Cooper cannot work “full-time” as an independent contractor—
only an employee can satisfy R.C. 4733.16(D)’s full-time requirement. Now, the
Board argues that Cooper, in his independent-contractor capacity, cannot possibly
be “responsible for and in responsible charge of” TWISM’s engineering services.
Both arguments rely on the legal status of an independent contractor.
A. An independent contractor may be a full-time manager
{¶ 53} Throughout the administrative proceedings and in both the common
pleas court and the court of appeals, the Board insisted that an independent
contractor could not be a full-time manager of a certified engineering firm. But it
has offered precious little textual support for such a reading. The Board’s own
regulations define “full time” as including someone who works all the engineering
hours of the firm, and there is no dispute that Cooper meets this requirement.
Accord Austintown Ambulatory Emergency Room v. Mansour, 7th Dist. Mahoning
No. 10 MA 152, 2011-Ohio-4559, ¶ 2 (“Appellant was a full-time independent
contractor medical director of the hospital’s emergency room”); Gibson v. Gibson,
2d Dist. Montgomery No. 28171 2019-Ohio-1799, ¶ 15 (“driving as an independent
contractor * * *[,] Robert worked full time”).
{¶ 54} And there is nothing in the term “manager” that requires someone to
be a W-2 employee instead of an independent contractor. In common parlance, a
manager is simply “one that manages” or “a person that conducts, directs, or
supervises something.” Webster’s Third New International Dictionary 1372
(2002); see also R.C. 1706.01(O) (defining “manager” for purposes of the limited-
corporate-liability statute as “any person designated * * * with the authority to
manage all or part of the activities or affairs of the limited liability company on [its]
behalf”). In today’s world, it is not at all uncommon for a manager to be an
independent contractor rather than a W-2 employee. 2021-Ohio-3665 at ¶ 26
(collecting cases). Indeed, the Board now concedes that “managers can be
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January Term, 2022
independent contractors rather than employees.”
{¶ 55} Thus, once the idea that we should defer to the Board’s interpretation
is stripped away, there is little to support the result reached by the Board in its
administrative proceeding and by the court of appeals. An independent contractor
like Cooper can be a full-time manager.
B. An independent contractor may be responsible for and in charge of
engineering activities and decisions
{¶ 56} Perhaps recognizing the textual implausibility of the argument that
it relied on below, the Board has advanced a different, and more nuanced, argument
before this court. Now it says that “independent contractors may be managers, but
they cannot be managers who are in responsible charge of and responsible for the
hiring entity’s work.” Because this argument is different from the one presented
below, there is a good argument that it has been forfeited. Nonetheless, because
TWISM has not raised a forfeiture argument and because the Board’s new
argument is easily dealt with, we will proceed to address it.
{¶ 57} TWISM’s operating agreement provides that Cooper, as manager, is
“responsible for and in responsible charge of the professional engineering activities
and decisions for TWISM Enterprise, LLC.” The Board contends that it is legally
impossible for Cooper to satisfy those conditions. “Responsible for” and “in
responsible charge of,” the Board says, are terms of art with distinct, technical
meanings in the engineering profession. Their specialized meanings, adds the
Board, involve a degree of “liability,” “supervision[,] and control” that only an
employee, never an independent contractor, could possess.
{¶ 58} But if “responsible charge of” translates to “supervision and control”
and “responsible for” means “liable for,” then those specialized meanings parallel
ordinary meaning. “In charge” is defined as “having the control or custody of
something” or “under supervision.” Webster’s at 377; accord Ohio Adm.Code
4733-39-02(A) (defining “responsible charge” as “being in control of, accountable
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for”). “Responsible,” in law, means “liable or subject to legal review or in the case
of fault to penalties.” Webster’s at 1935; Black’s Law Dictionary 1097, 1569
(2019) (“liability” and “responsibility” are synonymous).
{¶ 59} The Board contends that Cooper cannot be in responsible charge as
an independent contractor because TWISM lacks the ability to control the mode
and manner of his work. But that misses the point. The applicable language in
R.C. 4733.16(D) requires the registered engineer to be in responsible charge of the
engineering activities of the firm; it says nothing about the firm’s control over the
manager. Quite simply, the Board’s concern for TWISM’s control over Cooper is
unconnected to the text of R.C. 4733.16(D).
{¶ 60} And therein lies rub: what the Board now presents are simply policy
arguments that it tries to dress up as statutory ones. It says that allowing a firm to
be managed by an independent contractor creates potential problems because it
inhibits the firm’s ability to directly control the engineering activities of the firm.
Similarly, the Board says that if an independent contractor is responsible for the
firm’s work, tort claimants may face barriers in recovering damages. There are
reasons to be skeptical of such arguments. They ignore the ability of private
contracting parties—like TWISM and Cooper—to freely negotiate the terms of
their agreement, including the allocation of liabilities, and they also fail to account
for the availability of insurance coverage. But for our purposes, the critical point
is that these are arguments why an independent contractor should not be allowed to
be a firm’s manager, not arguments about whether R.C. 4733.16(D) allows a firm
to hire an independent contractor as manager. They are arguments about what the
Board would like the statute to say, not about what it does say. And for this reason,
they are best addressed to the General Assembly.
{¶ 61} Indeed, if the General Assembly meant to require an employment
relationship, it easily could have done so. The General Assembly specified whom
a firm may designate as professional engineer: “full-time partners, managers,
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January Term, 2022
members, officers, or directors.” Id. We see little reason to read an additional
“who” requirement into “in responsible charge of,” when the law already speaks
directly to who may hold the designation.
{¶ 62} This court expects a statutory requirement to be “written * * * into
the statute.” Wheeling Steel Corp. v. Porterfield, 24 Ohio St.2d 24, 27-28, 263
N.E.2d 249 (1970). Inasmuch as the Board believes that a W-2 employment
relationship is necessary, that requirement does not stem from R.C. 4733.16(D).
That provision requires TWISM to designate a registered professional engineer
who is a “full-time * * * manager[]” and is “responsible for and in responsible
charge of” its engineering activities. Because TWISM has “satisfied the
requirements,” R.C. 4733.16(E), it is entitled to a certificate of authorization to
provide professional engineering services. When the Board denied TWISM’s
application, it did not act “in accordance with law.” R.C. 119.12(M).
IV. CONCLUSION
{¶ 63} TWISM met the requirements for a certificate of authorization to
practice engineering. The Board reads the law differently, but Ohio courts are not
compelled to adopt that agency’s preferred reading of the law—unless, of course,
its reading is the best one. Here, the Board’s reading is second best. The judgment
of the court of appeals is reversed, and the matter is remanded to the Board for
proceedings consistent with this opinion.
Judgment reversed
and cause remanded.
KENNEDY, FISCHER, and DONNELLY, JJ., concur.
O’CONNOR, C.J., and STEWART and BRUNNER, JJ., concur in judgment only.
_________________
Pacific Legal Foundation, Oliver J. Dunford, and John F. Kerkhoff; and
Wood + Lamping, L.L.P., and Dale A. Stalf, for appellant.
Michael J. Hendershot, Chief Deputy Solicitor General, Samuel C.
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SUPREME COURT OF OHIO
Peterson, Deputy Solicitor General, and Shelli R. Brock and Brian R. Honen,
Assistant Attorneys General, for appellee.
Dave Yost, Attorney General, Benjamin M. Flowers, Solicitor General, and
Mathura J. Sridharan, Deputy Solicitor General, in support of neither party for
amicus curiae Attorney General Dave Yost.
James Bart Leonardi, L.L.C., and James Bart Leonardi; and Casey Norman,
urging reversal for amicus curiae New Civil Liberties Alliance.
Jay R. Carson and Robert Alt, urging reversal for amicus curiae Buckeye
Institute.
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