No Chevron Deference in Ohio

On December 29, 2022, the Ohio Supreme Court issued a definitive opinion that, at least in Ohio, the judicial branch is never required to defer to an agency’s interpretation of the law. TWISM Enterprises, L.L.C. v. State Board of Registration for Professional Engineers and Surveyors, (Slip Opinion No. 2022-Ohio-4677). The court noted that an agency interpretation is simply one consideration a court may sometimes take into account in rendering the court’s independent judgment on the law.

The TWISM case involved the interpretation of a statute requiring the designation of a “responsible charge” for an engineering firm to obtain a certificate of authorization from the Ohio Board of Registration for Professional Engineers and Surveyors (the Board) to conduct engineering services in Ohio. TWISM designated an independent contractor as its “responsible charge.” The Board denied TWISM’s application finding that the applicable statute required that the “responsible charge” be a “W-2” employee rather than a “Form-1099” independent contractor.

On an administrative appeal to the trial court, which conducted a de novo review, the court reversed the Board without offering any deference to the agency’s interpretation of the statute. The court simply rejected the Board’s interpretation of the statute based on the plain text of the statute. However, the court of appeals reversed and held that a court must defer to an administrative interpretation if the court first finds the statute to be ambiguous, citing Chevron, U.S.A., Inc. v. National Resources Defense Council, Inc., 467 U.S. 837 (1984). The court of appeals found that the statute in question was ambiguous.

In reversing the court of appeals decision, the Ohio Supreme Court opinion in TWISM provides an in-depth analysis of agency deference under Ohio law. In the end, the court concludes that “it is never mandatory for a court to defer to the judgment of an administrative agency.” If the statute is ambiguous, then the court may accord some deference to an agency interpretation, but “the weight to be given the agency interpretation depends on its persuasiveness” and not whether it is reasonable or from an agency in charge of administering the statutory program.