Saul v. Jefferson Twp. Local School Dist. Bd. of Edn. , 2012 Ohio 1574 ( 2012 )

[Cite as Saul v. Jefferson Twp. Local School Dist. Bd. of Edn., 2012-Ohio-1574.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
GEORGE SAUL :
: Appellate Case No. 24801
Plaintiff-Appellee :
: Trial Court Case No. 2010-CV-5789
v. :
:
JEFFERSON TOWNSHIP LOCAL : (Civil Appeal from
SCHOOL DISTRICT BOARD : (Common Pleas Court)
OF EDUCATION :
:
Defendant-Appellant :
:
...........
OPINION
Rendered on the 6th day of April, 2012.
...........
PETER J. RAKAY, Atty. Reg. #0011354, and LAURA E. RAKAY, Atty. Reg. #0082440,
Doll, Jansen, Ford & Rakay, 111 West First Street, Suite 1100, Dayton, Ohio 45402
Attorneys for Plaintiff-Appellee
NICHOLAS E. SUBASHI, Atty. Reg. #0033953, Subashi & Wildermuth, The Greene Town
Center, 50 Chestnut Street, Suite 230, Dayton, Ohio 45440
Attorney for Defendant-Appellant
.............
HALL, J.
{¶ 1} The Jefferson Township Local School District Board of Education decided not
to renew George Saul’s teaching contract. After determining that the board failed to comply
with statutory evaluation procedures, the trial court ordered the board to reemploy Saul and
2
ordered it to pay him full back pay. The board argues that both orders are erroneous. Finding
no error in the trial court’s order of reemployment, we affirm that order, but reverse and
remand the matter to the trial court for a hearing to determine the amount of back pay,
including the amount of set off, if any, to which the Board may be entitled.
A. Relevant Facts and History
{¶ 2} Saul was a science teacher in the Jefferson Township Local School District.
Five years after he began teaching there, the school district’s board of education, on the
recommendation of the superintendent of schools, Richard Gates, notified Saul that it was not
going to renew his teaching contract for the 2010-2011 school year. Saul asked for an
explanation of the board’s decision and was given one in a May 12, 2010 letter from Gates.
Saul asked for a hearing, and in June 2010, the board held a formal evidentiary hearing. The
board affirmed its original decision in a written decision issued later that month. In support,
the board cited the reason set forth in Gates’s letter, found that the procedures in R.C. 3319.11
and 3319.111 had been complied with, and found that not renewing Saul’s contract was in the
district’s students’ best interest.
{¶ 3} Saul appealed the board’s decision to the common-pleas court. The board
explained its decision to the court this way:
* * * Jefferson Township Local School District is one of only nine
Ohio districts in fiscal emergency under R.C. 3316.03. Fiscal Emergency
Status requires that a Financial Planning and Supervision Commission be
appointed to oversee the district, and the Commission is given certain powers
over the district under R.C. 3316.06. In an effort to lift the pall of fiscal
3
emergency, the Jefferson Township Local School District Board of Education
(“Jefferson”) has endeavored to reduce its expenditures and to remove those
teachers it believes fall short of the state standards. One teacher Jefferson chose
to non-renew was George Saul.
Saul was recommended for non-renewal, not only due to the district’s
fiscal concerns, but also because (1) Saul taught subjects for which he held no
license; (2) Jefferson does not offer any other subjects for which Saul is
licensed to teach (e.g., Physics); (3) an overwhelming majority of Saul’s
students fail his classes; (4) Saul is one of the reasons the school district has
been unable to achieve the goal of having 100% of its courses taught by highly
qualified teachers; and (5) Saul has not respectfully accepted requests for
improvement in instructional performance and student management.1
Based on the parties’ briefs (no hearing was held), the trial court reversed. It determined that
the board failed to follow statutory evaluation procedures under R.C. 3319.111. The court
therefore ordered, under R.C. 3319.11, that the board reemploy Saul and ordered that the
board pay him full back pay.
{¶ 4} The board’s appeal of the trial court’s orders is now before this Court.
B. Standard of Review
{¶ 5} “In an appeal of the common pleas court’s administrative appeal decision, an
appellate court does not review the administrative agency’s action directly.” Sturdivant v.
1
Response of Appellee, Jefferson Township Local School District Board of Education, to Notice of Appeal, 1-2 (August 18, 2010).
The five reasons are the same reasons stated in the superintendent’s letter to Saul.
4
Toledo Bd. of Edn., 157 Ohio App. 3d 401, 2004-Ohio-2878, 811 N.E.2d 581, ¶ 27 (6th Dist.).
Instead, it reviews the trial court’s action and factual findings for abuse of discretion, and it
reviews the court’s conclusions of law, including the court’s application of the law to the
facts, de novo. See id. R.C. Chapter 3319 governs school superintendents, teachers, and other
employees. In appeals under this chapter “a common pleas court’s scope of review is more
limited * * * than in standard administrative appeals under R.C. Chapters 2505 and 2506.” Id.
The only appeals allowed are those based on a board of education’s failure to comply with
R.C. 3319.11 or 3319.111. Id.; R.C. 3319.11(G)(7) (governing appeals of a board’s order
affirming its decision not to renew a teacher’s limited contract).2
{¶ 6} The board presents six assignments of error, which we review in two groups.
The first three assignments of error relate to the trial court’s order that the board reemploy
Saul. The last three relate to the court’s order that the board pay him back pay.
C. Reemployment
{¶ 7} The first, second, and third assignments of error assert four different reasons
why the trial court’s reemployment order is erroneous. The first is that the board did comply
with the mandatory statutory evaluation procedures. The second is that, even if it did not
comply with them, reemployment is not mandatory, as the trial court here concluded, but
within a court’s discretion. The third is that reemploying a teacher who is not licensed to teach
the subjects he was assigned to teach would violate R.C. 3319.30. The fourth contention is
that a trial court violates public policy when it orders a board to reemploy a teacher, who is not
licensed to teach the subjects that the teacher previously taught, when assigning the teacher to
2
In September 2011 sections 3319.11 and 3319.111 were amended. The former versions of these statutes govern in this case.
5
subjects the teacher is licensed to teach would displace a qualified teacher currently assigned
to those subjects. This, says the board, deprives the students of the benefits of being taught by
a qualified, licensed teacher and is unfair to the current teacher.
1. The statutory evaluation procedures
{¶ 8} Former R.C. 3319.11(G)(7) provides that a trial court may order a school
board to reemploy a teacher if the court determines that the board failed to properly notify the
teacher that it would not renew the teacher’s contract or if “the court determines that
evaluation procedures have not been complied with pursuant to division (A) of section
3319.111.” Former R.C. 3319.111(A) provides that a board who has a limited contract with a
teacher must “evaluate such a teacher in compliance with the requirements of this section in
any school year in which the board may wish to declare its intention not to re-employ the
teacher pursuant to division (B), (C)(3), (D), or (E) of section 3319.11.” Division (A) further
requires that (at least) two evaluations be done, each at a particular time; that the teacher be
given a written report of each evaluation’s results; and that any evaluation be conducted by (at
least) one of the people listed in the division. Division (B) provides that a board evaluating a
teacher under section 3319.111 must “adopt evaluation procedures” that must be applied in
each evaluation. The division states three evaluation procedures that a board must adopt (at a
minimum). There is no dispute in this case that the board gave Saul proper notice. Nor is it
disputed that the board evaluated Saul twice in compliance with the three requirements in
division (A). The board concedes, though, that it failed to comply with the evaluation
procedure in division (B)(3). The question here is one of law: whether division (A)
encompasses division (B) such that a failure to comply with division (B) constitutes a
6
violation of division (A).
{¶ 9} The board contends that the clear, unambiguous language of R.C.
3319.11(G)(7) authorizes reemployment when a court determines that a board failed to
comply with division (A) only. But the Ohio Supreme Court has clearly and unambiguously
concluded otherwise. In Naylor v. Cardinal Local School Dist. Bd. of Edn., 69 Ohio St. 3d
162, 630 N.E.2d 725 (1994), the Court held “that the failure of a board of education to satisfy
the requirements of R.C. 3319.111(B)(3) constitutes a failure to comply with the evaluation
requirements of R.C. 3319.111(A), and such failure will permit a reviewing court to order the
board to reemploy the teacher pursuant to R.C. 3319.11(G)(7).” Naylor at 166. The Court
relied on a holding in the companion case Farmer v. Kelleys Island Bd. of Edn., 69 Ohio St. 3d
156, 1994-Ohio-23, 630 N.E.2d 721 (Farmer I): “all of the evaluation requirements of R.C.
3319.111(B) are incorporated in R.C. 3319.111(A).” Naylor at 164; see Farmer I at 160
(“R.C. 3319.111(B) defines the evaluation procedures required under former R.C.
3319.111(A). A proper evaluation under former R.C. 3319.111(A) contains all the elements
delineated in R.C. 3319.111(B).”). Farmer I’s holding, said the Court, “eliminat[ed] the
argument that a school board’s violation of evaluation requirements in R.C. 3319.111(A) is
redressable under R.C. 3319.11(G)(7), but that a violation of evaluation requirements of R.C.
3319.111(B) is not.” Id. at 164. Later in Farmer II, a clarifying decision, the Court expressly
rejected the argument, made by the school boards in Farmer and Naylor and made by Chief
Justice Moyer’s dissents in those cases, that “R.C. 3319.11(G)(7) permits reinstatement only
when there is a violation of R.C. 3319.111(A).” (Emphasis sic.) Farmer v. Kelleys Island Bd.
of Edn., 70 Ohio St. 3d 1203, 1208, 638 N.E.2d 79 (1994) (giving three reasons why the
7
argument fails).
{¶ 10} The board here acknowledges the Ohio Supreme Court’s holdings but
suggests that the Court got it wrong. The board also asserts that, given its constitution, the
current Court would likely follow the dissents. Right or wrong, whether or not the current
Court would decide the issue the same, Naylor and Farmer remain the law that we are bound
to follow.
2. Reemployment: mandatory or discretionary?
{¶ 11} If a court determines that a school board failed to comply with the evaluation
procedures in section 3319.111, R.C. 3319.11(G)(7) provides that “the court may order a
board to reemploy a teacher in compliance with the requirements of division (B), (C)(3), (D),
or (E) of this section.” (Emphasis added.). The trial court here apparently ordered the board to
reemploy Saul because it concluded that reemployment is mandatory when a board fails to
comply with the statutorily mandated evaluation procedures. The court pointed out that,
“notwithstanding the general permissive nature of the word ‘may,’ the Board has not presented
a single case wherein a school district that failed to comply with the statutorily mandated
evaluation procedures was not ultimately ordered to reinstate the teacher with full back pay.”3
The board contends the trial court’s conclusion is incorrect.
{¶ 12} The four divisions cited in R.C. 3319.11(G)(7) all provide that a teacher
whose contract expires is automatically reemployed on certain terms if the employing school
board fails to comply with the statutory evaluation procedures. These divisions further provide
3
(Emphasis sic.) Final and Appealable Decision, Order and Entry Reversing the Decision of the School Board and Ordering
Re-Employment of Appellant Saul, p. 9 (August 5, 2011).
8
that the teacher is presumed to have accepted such employment, unless the teacher tells the
board otherwise. E.g., R.C. 3319.11(E) (providing that “a teacher who does not have
evaluation procedures applied in compliance with division (A) of section 3319.111 of the
Revised Code * * * is presumed to have accepted such employment unless such teacher
notifies the board in writing to the contrary”). Therefore, unless the teacher has told the school
board that he does not accept employment, a trial court ordinarily must order reemployment so
as to effect compliance with these divisions.
{¶ 13} The case law supports this conclusion. In Tulley v. Wickliffe City School Dist.
Bd. of Educ., 11th Dist. Lake No. 95-L-014, 1996 WL 648743, *8 (July 12, 1996), the
Eleventh District concluded that “once a procedural violation of R.C. 3319.111 has been
established, a court of common pleas is required to reinstate the teacher.” Pointing out that
R.C. 3319.11(E) “expressly states that if a violation has occurred, a teacher is deemed to be
automatically reinstated,” the court said that the provision “supports the conclusion that the
reinstatement of a teacher is mandatory whenever there is a violation of the R.C. 3319.111(A)
requirement.” Id. at *8. While the Eleventh District is apparently the only appellate court that
has directly considered this issue, the correctness of its conclusion (and ours) is supported by
the Ohio Supreme Court’s action in Snyder v. Mendon-Union Local School Dist. Bd. of Edn.,
75 Ohio St. 3d 69, 661 N.E.2d 717 (1996). In that case a teacher appealed a board’s decision
not to renew her contract to the trial court. The trial court had determined that, while the
board’s evaluation did not strictly comply with the statutory requirements in R.C.
3319.111(B), the board had substantially complied with the procedures required by R.C.
3319.111. So it affirmed the board’s decision. Holding that Farmer I requires strict
9
compliance with R.C. 3319.111, the Ohio Supreme Court reversed and remanded. 4
Pertinently, in addition to awarding back pay, the Court ordered the board to reemploy the
teacher. The Court did not order the trial court on remand to determine whether reemployment
was appropriate or consider whether the trial court’s decision not to order reemployment was
an abuse of its discretion–this in the face of the dissent’s argument that “R.C. 3319.11(G)(7)
does not mandate a court to order the board to re-employ a teacher when the court determines
that the board has not complied with the evaluation procedures of R.C. 3319.111(A)” but
rather uses discretionary language, see Snyder at 73 (Cook, J., dissenting) (concluding that the
trial court’s decision was not an abuse of discretion). Finally, in a similar case, citing Farmer
I, Naylor, and Snyder, we have said that “the proper remedy for failure to comply with
evaluation procedures is to order re-employment of the teacher and award back pay.” Koch v.
Greenville City Sch. Dist. Bd. of Edn., 2d Dist. Darke No. 1403, 1996 WL 697018, *5 (Dec. 6,
1996).
{¶ 14} To be clear, we are not saying that in every case in which a school board fails
to comply with the statutory evaluation procedures a trial court must order reemployment.
Clearly, if a teacher in a particular case tells the board that he does not accept employment–per
division (B), (C)(3), (D), or (E) of section 3319.11–the trial court need not order
reemployment. And there may be extraordinary situations in which a court might not order a
board to reemploy a teacher. Saul did not reject employment, and we find nothing
extraordinary about the situation. Reemployment in this case, therefore, was the proper
remedy.
4
The appellate court did not address the issue, finding it moot.
10
3. Reemployment and R.C. 3319.30
{¶ 15} R.C. 3319.30 pertinently provides that, “except as provided in section 3319.36
of the Revised Code, no person shall receive any compensation for the performance of duties
as teacher * * * who has not obtained a license of qualification for the position as provided for
under section 3319.22,” which governs educator licenses and the standards and requirements
for obtaining them. Section 3319.36 effectively prohibits a school board from paying a teacher
until the teacher files any required reports and a copy of his educator license. See R.C.
3319.36(A). The board contends that reemploying Saul violates section 3319.30 because Saul
has not obtained a license to teach the subjects he was teaching. We disagree.
{¶ 16} The cases cited here by the board are inapposite. In those cases, Merry v.
Perry Local Sch. Dist. Bd. of Edn., 5th Dist. Stark Nos. CA-7732, CA-7733, 1989 WL 82234
(July 10, 1989), and Cutler v. Pike Cty. Joint Area Vocational Sch. Dist., 6 Ohio St. 3d 138,
451 N.E.2d 800 (1983), the school board decided not to renew the contracts of teachers
because the board eliminated the course(s) they were certified to teach. The issue was whether
a board has a mandatory duty to reemploy a teacher when the subject in which the teacher is
certified to teach is no longer offered by the school district. The Ohio Supreme Court in Cutler
held that a board has no such duty. Here the issue concerns whether a trial court may order
reemployment when the board that has decided not to renew a teacher’s contract fails to
comply with statutory evaluation procedures. This issue has little to do with whether or not the
teacher has a right to employment.
{¶ 17} Employing a teacher and compensating that teacher are separate issues.
Nothing in the trial court’s order that the board reemploy Saul requires the board to violate
11
section 3319.30.
4. Reemployment and public policy
{¶ 18} The board contends that ordering the reemployment of a teacher who is not
licensed to teach the subjects previously taught violates public policy in one of two ways. If it
assigns the teacher to subjects he is licensed to teach, says the board, a qualified teacher
currently assigned to teach those subjects would be unfairly displaced. And if the teacher is
assigned to teach subjects that he is not licensed to teach, says the board, the students are not
being taught by a qualified, licensed teacher. This contention concerns an issue separate from
reemployment. The trial court’s order merely directs the board to reemploy Saul; it does not
order the board to assign him to teach any particular subject or, for that matter, any subject at
all.
{¶ 19} The trial court did not err by ordering the board to reemploy Saul. The first,
second, and third assignments of error are overruled.
D. Back Pay
{¶ 20} The trial court also ordered the board to pay Saul full back pay, beginning
when the board improperly decided not to renew his contract. The fourth and fifth assignments
of error assert three different reasons why the trial court’s back-pay order is erroneous. The
first is that paying back pay would violate R.C. 3319.30 and 3319.36. The second is that a
board that is in a state of fiscal emergency should not be required to pay a teacher for services
that the teacher did not provide. The last reason is that, before ordering payment, the court
should have held a hearing on whether paying Saul would require the board to engage in
deficit spending in violation of R.C. 5705.412(B). The sixth assignment of error alleges that,
12
even if the trial court did not err by ordering back pay, it erred by not holding a hearing to
determine the amount of back pay, including whether the board is entitled to any set offs.
{¶ 21} In Farmer I the Ohio Supreme Court also addressed back pay. The Court held
that “if a court determines that a board of education has failed to comply with the evaluation
procedures required by R.C. 3319.111(A), the teacher whose contract was not properly
nonrenewed is entitled to back pay.” Farmer I, 69 Ohio St. 3d at 160, 630 N.E.2d 721. “This
back pay,” said the Court, “begins to accumulate when the board improperly chose not to
renew the teacher’s contract.” Id. The Court explained that it was “award[ing] back pay
because to hold to the contrary would produce an absurd result”:
A board could improperly terminate its employee, tie up the employee’s case in
the courts for years, and, consequently, realize significant savings for the
salaries that it did not have to pay her during the pendency of the litigation. By
awarding back pay, we eliminate any incentive for the dilatory conduct of the
school board. Id.
{¶ 22} The board contends that the trial court’s back-pay order requires it to violate
sections 3319.30 and 3319.36. Section 3319.30 pertinently prevents a person from being paid
for “for the performance of duties as teacher” if the person does not have a valid educator
license, and section 3319.36 effectively prohibits a board from paying a teacher “for services”
until the teacher files any required reports and a copy of his educator license. R.C. 3319.36(A).
Here, based on the board’s August 24, 2011 motion to stay execution of the trial court’s
judgment, we infer that Saul has not been employed by the board since his contract expired at
the end of the 2009-2010 school year. Therefore back pay here is not payment “for the
13
performance of duties as teacher” or payment “for services.”
{¶ 23} Here, too, the two cases relied on by the board are inapposite. Both State ex
rel. Ekey v. Rocky River Bd. of Edn., 110 Ohio App. 3d 530, 674 N.E.2d 1199 (8th Dist.1996),
and State ex rel. Chavis v. Sycamore City School Dist. Bd. of Edn., 71 Ohio St. 3d 26, 641
N.E.2d 188 (1996), are mandamus cases in which a teacher was seeking back pay in the form
of additional pay for teaching services rendered. In the present case, back pay represents an
award of damages that Saul incurred as a consequence of the board’s failure to comply with
the statutory evaluation procedures.
{¶ 24} The board told the trial court that its decision not to renew Saul’s contract was
based in part on the school district’s being in a state of fiscal emergency under R.C. Chapter
3316. The board contends that because of this it should not be required to pay Saul for
services that he did not provide. This contention must be rejected because, according to the
board’s November 2010 merit brief, by the end of October 2010 the school district was no
longer in a state of fiscal emergency.
{¶ 25} The board also contends that the court should have held a hearing on whether
paying Saul back pay would require the board to engage in deficit spending in violation of
R.C. 5705.412(B), which generally requires a school district making certain expenditures to
certify that it has enough money to pay the expenses of the current school year. The board
does not explain why this is an issue in this case. The trial court was not required to hold a
hearing on this issue. Most importantly, the board never requested a hearing on this issue. The
board therefore forfeited its right to allege this error on appeal.
{¶ 26} Finally, the board contends that the trial court should have held a hearing to
14
determine the amount of back pay, including whether the board is entitled to any set offs. The
board is correct that “a public employee * * * ‘who is wrongfully excluded from his position
and sues to recover compensation for the period of exclusion, is subject to have his claim
reduced by the amount he earned or, in the exercise of due diligence, could have earned in
appropriate employment during the period of exclusion.’” Bertolini v. Whitehall City School
Dist. Bd. of Educ., 10th Dist. Franklin No. 02AP-839, 2003-Ohio-2578, ¶ 44, quoting State ex
rel. Martin v. Columbus Dept. of Health, 58 Ohio St. 2d 261, 389 N.E.2d 1123 (1979),
paragraph two of the syllabus.
{¶ 27} It is not clear to us on this record what the trial court’s award of “full back
pay” encompasses. The appellant is entitled to a determination of the amount of set off or
reduction, if any, applicable to the back pay award. Accordingly, the matter will be remanded
for further proceedings to determine the amount of back pay to which the appellant is entitled.
{¶ 28} The fourth and fifth assignments of error are overruled. The sixth assignment
of error is sustained.
{¶ 29} We have overruled assignments of error one through five, and the judgment of
the trial court is affirmed with regard to those issues. The sixth assignment of error is
sustained. The matter is reversed and remanded to the trial court for a hearing to determine the
amount of back pay awarded, and the amount of set off, if any, to which the Board may be
entitled. The judgment is otherwise affirmed.
.............
GRADY, P.J., and DONOVAN, J., concur.
15
Copies mailed to:
Peter J. Rakay
Laura E. Rakay
Nicholas E. Subashi
Hon. Steven K. Dankof