Stewart v. Lockland School Dist. Bd. of Edn. (Slip Opinion) , 144 Ohio St. 3d 292 ( 2015 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Stewart v. Lockland School Dist. Bd. of Edn., Slip Opinion No. 2015-Ohio-3839.]
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. 2015-OHIO-3839STEWART, APPELLANT, v. LOCKLAND SCHOOL DISTRICT BOARD OF
EDUCATION, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Stewart v. Lockland School Dist. Bd. of Edn., Slip Opinion
No. 2015-Ohio-3839.]
Open Meetings Act—A public employee can require that a hearing about his or
her employment status be held in public under R.C. 121.22(G)(1) only
when the employee is otherwise entitled to a public hearing—Employee
may have been otherwise entitled to a hearing, but not a public one—
Judgment affirmed.
(No. 2014-0164—Submitted March 10, 2015—Decided September 24, 2015.)
APPEAL from the Court of Appeals for Hamilton County, No. C-130263,
2013-Ohio-5513.
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SUPREME COURT OF OHIO
PFEIFER, J.
{¶ 1} The issue in this case is whether Ohio’s Open Meetings Act, R.C.
121.22, required appellee, the Lockland School District Board of Education
(“Lockland”), to hold the pretermination hearing of appellant, Adam Stewart, in
public. For the reasons that follow, we conclude that it did not. Accordingly, we
affirm the judgment of the court of appeals, which affirmed the trial court’s grant
of summary judgment in favor of Lockland.
BACKGROUND
{¶ 2} Lockland received notice from the Ohio Department of Education
that district employees had improperly reported false student-attendance data to
improve their district’s state report card for the 2010-2011 school year.
Lockland’s investigation implicated Stewart, whom the district employed as a
data coordinator, a nonteaching position.
{¶ 3} Following the investigation, Lockland held a meeting during which
it adjourned into executive session pursuant to R.C. 121.22(G)(1), which permits
a public body to privately consider the dismissal of a public employee. Stewart’s
counsel joined the executive session. After that meeting, Lockland sent a written
notice to Stewart stating that it would consider his status as an employee at an
upcoming special meeting to be held pursuant to R.C. 3319.081, which governs
nonteaching employment contracts.
{¶ 4} When it held the special meeting, Lockland again stated its intention
to adjourn into executive session pursuant to R.C. 121.22(G)(1). Stewart’s
counsel objected, stating that Stewart was exercising his right to have his
employment discussed publicly. Lockland rejected this objection and entered into
executive session. Lockland later reconvened in open session, where Stewart and
his counsel made a public presentation against Stewart’s termination. Following
the presentation, Lockland entered into another executive session, later emerging
to publicly pass a resolution terminating Stewart’s contract.
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January Term, 2015
{¶ 5} Stewart received notice that his contract had been terminated and
that he had ten days to file an appeal with the Hamilton County Court of Common
Pleas. Stewart timely filed his appeal, asserting that Lockland had violated the
Open Meetings Act.
{¶ 6} The trial court granted Lockland’s motion for summary judgment.
The court of appeals affirmed, stating that “an employee can only prohibit a
public body from holding an executive session when the employee is statutorily
entitled to a hearing.” Stewart v. Lockland School Dist. Bd. of Edn., 1st Dist.
Hamilton No. C-130263, 2013-Ohio-5513, ¶ 15. The court of appeals also stated
that Cleveland Bd. of Edn. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84
L.Ed.2d 494 (1985), did not grant Stewart the right to require that the entire
pretermination hearing be held in public. Stewart at ¶ 16.
{¶ 7} We granted Stewart’s discretionary appeal. 138 Ohio St.3d 1492,
2014-Ohio-2021, 8 N.E.3d 963.
ANALYSIS
{¶ 8} The Open Meetings Act grants to the public broad access to
meetings of public bodies. The act “shall be liberally construed to require public
officials to take official action and to conduct all deliberations upon official
business only in open meetings unless the subject matter is specifically excepted
by law.” R.C. 121.22(A). Even so, R.C. 121.22(G) allows public bodies to meet
in executive session, which is not open to the public, to discuss, among other
things, the dismissal of a public employee “unless the employee requests a public
hearing.” R.C. 121.22(G)(1).
{¶ 9} In Matheny v. Frontier Local Bd. of Edn., 62 Ohio St.2d 362, 367,
405 N.E.2d 1041 (1980), we stated that R.C. 121.22(G)(1) was intended to bring
the Open Meetings Act into conformity with existing statutes that governed
teacher employment, not to provide a substantive right to a public hearing where
there had been none previously. We held that a tenured teacher has the right to a
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SUPREME COURT OF OHIO
public hearing before a contract is terminated or not renewed. Id. at 365-366. We
found the source of this right in R.C. 3319.16, which governs employment of
tenured teachers. In direct contrast, we found no equivalent statutory guarantee
applicable to nontenured teachers and held that they are not entitled to a public
hearing and that the school board may deliberate about their terminations in
private. Id. at 367-368.
{¶ 10} Stewart is a nontenured, nonteaching employee. Accordingly, R.C.
3319.081 governs Stewart’s employment. R.C. 3319.081(C) provides that
contracts of nonteaching school employees
may be terminated by a majority vote of the board of education
* * * for violation of written rules and regulations as set forth by
the board of education or for incompetency, inefficiency,
dishonesty, drunkenness, immoral conduct, insubordination,
discourteous treatment of the public, neglect of duty, or any other
acts of misfeasance, malfeasance, or nonfeasance.
Matheny makes clear that R.C. 3319.081, which contains no reference to a public
hearing, did not entitle Stewart to have his entire pretermination hearing held in
public. See Matheny at 366-367. Neither, as far as we can determine, did any
other statute.
{¶ 11} Stewart argues, however, that he was entitled to a public hearing
under Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494. In Loudermill,
a case that just happened to involve Ohioans, the United States Supreme Court
stated that an “essential principle of due process is that a deprivation of life,
liberty, or property ‘be preceded by notice and opportunity for hearing appropriate
to the nature of the case.’ ” Id. at 542, quoting Mullane v. Cent. Hanover Bank &
Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 94 L.Ed. 865 (1950). The court
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January Term, 2015
further stated that an individual who has a property right in his employment is
entitled to a pretermination “hearing,” though that hearing need not be “elaborate”
and “need not definitively resolve the propriety of the discharge.” Id. at 545. The
court concluded that a “tenured public employee is entitled to oral or written
notice of the charges against him, an explanation of the employer’s evidence, and
an opportunity to present his side of the story.” Id. at 546.
{¶ 12} Stewart claims that a public employee can request a public hearing
any time a hearing is authorized by law, that he was entitled to a hearing under
Loudermill, and that Lockland was therefore required to conduct that hearing
entirely in public upon request. We disagree. Even if Stewart possessed a
property right in his employment and was entitled to a Loudermill pretermination
hearing, there was no requirement that the hearing be elaborate or in public, so
long as it comported with due process.
{¶ 13} Here, Stewart and his counsel had notice of the special meeting
regarding his employment, and they appeared before Lockland prior to its
adjournment into executive session. Stewart and his counsel availed themselves
of the opportunity, then and again when Lockland reconvened in open session, to
persuade Lockland to retain him as an employee and to refrain from any adverse
action.
{¶ 14} Loudermill does not entitle a public employee to have his or her
entire pretermination hearing held in public. See 470 U.S. at 542, 105 S.Ct. 1487,
84 L.Ed.2d 494. Stewart received due process: he had notice of the special
meeting regarding his employment status and an opportunity to be heard at that
meeting. Nothing prevented Lockland from thereafter adjourning into executive
session to deliberate upon its decision.
Conclusion
{¶ 15} A public employee can require that a hearing about his
employment status be held in public under R.C. 121.22(G)(1) only when the
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SUPREME COURT OF OHIO
employee is otherwise entitled to a public hearing. In this case, Stewart may have
been otherwise entitled to a hearing, but not a public one. Accordingly, we affirm
the judgment of the court of appeals.
Judgment affirmed.
O’CONNOR, C.J., and LANZINGER, KENNEDY, FRENCH, and O’NEILL, JJ.,
concur.
O’DONNELL, J., dissents and would dismiss the cause as improvidently
allowed.
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Kircher Law Office, L.L.C., Konrad Kircher, and Ryan J. McGraw, for
appellant.
Bricker & Eckler, L.L.P., David J. Lampe, and Kate V. Davis, for
appellee.
The Gittes Law Group, Frederick M. Gittes, and Jeffrey P. Varado, urging
reversal for amicus curiae, Ohio Employment Lawyers Association.
Isaac, Wiles, Burkholder & Teetor, L.L.C., Mark Landes, and Mark H.
Troutman, urging affirmance for amicus curiae, Ohio School Boards Association.
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