State ex rel. Donaldson v. Athens City School Dist. Bd. of Edn.

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The State ex rel. Donaldson, Appellee, v. Athens City School

District Board of Education, Appellant.

[Cite as State ex rel. Donaldson v. Athens City School Dist.

Bd. of Edn. (1994), Ohio St.3d .]

Mandamus to compel board of education to reinstate relator to

administrator's position with back pay and benefits from

which he was non-renewed for the school years 1988-1989

through 1991-1992 -- Writ granted when written -- Notice

provision of R.C. 3319.02(C) not complied with -- Writ

modified by Supreme Court denying compensation for school

years after 1988-1989, when.

(No. 92-1349 -- Submitted September 21, 1993 -- Decided

January 12, 1994.)

Appeal from the Court of Appeals for Athens County, No.

1479.

Terry D. Donaldson, appellee, requested a writ of mandamus

in the Court of Appeals for Athens County, alleging that the

Athens City School District Board of Education, appellant, had

not provided timely written notice of its intent not to issue

him an administrator's contract for the school years 1988-1989

through 1991-1992, as required by R.C. 3319.02. The court of

appeals granted the writ and ordered the board to give

Donaldson an administrator's contract for the 1991-1992 school

year, back pay and benefits.

The court of appeals found the following facts:

"Donaldson was first employed by the Board in 1968. From

then until July 1988 he was a full time employee of the Athens

City School District working in many capacities. During the

1987-88 school year the Board employed Donaldson as 'Attendance

Officer and Coordinator of Community Education.'

"In August 1987, the Superintendent of the Athens City

Schools notified Donaldson that he was a 'supervisor' pursuant

to R.C. 4117.01 and exempt from classified service.

"By a letter dated July 18, 1988 the Board notified

Donaldson that it had abolished the 'unclassified position of

Coordinator of Community Education * * * effective at the

conclusion of the 1987-88 school year.'

"Donaldson appealed the abolishing of that position to the

Athens Civil Service Commission. The Commission determined

that it had no jurisdiction to consider his appeal [because

Donaldson did not perform duties within the classified

service]. The Athens County Common Pleas Court affirmed the

Commission's order. Donaldson appealed to this court."

Donaldson v. Athens City School Dist. Bd. of Edn. (June 9,

1992), Athens App. No. 1479, unreported, at 1-2.

The court of appeals granted the writ by summary judgment

pursuant to Civ.R. 56, holding that the material facts were not

in dispute and that Donaldson was entitled to judgment as a

matter of law. The board's appeal is before this court as of

right.

Cloppert, Portman, Sauter, Latanick & Foley and Russell E.

Carnahan, for appellee.

Gary E. Hunter, Law Director, and Lisa A. Eliason, City

Prosecutor, for appellant.

Per Curiam. This cause presents four questions for our

review. First, did the court of appeals err in finding no

dispute as to Donaldson's administrator status for the purpose

of R.C. 3319.02? Second, did the court of appeals err in

granting the writ of mandamus on the ground that the board of

education did not comply with the notice requirements of R.C.

3319.02? Third, did the court of appeals err in not denying

the writ on the ground that Donaldson had an adequate remedy by

appeal or an independent action for breach of contract?

Fourth, did the court of appeals err by not applying the

doctrines of laches, collateral estoppel or res judicata to

deny the writ?

For the reasons that follow, we hold that the court of

appeals did not err in granting the writ. Accordingly, we

affirm.

R.C. 3319.02 and "Other Administrator" Status

The court of appeals found that the board of education had

a clear duty to continue Donaldson's employment under R.C.

3319.02, the relevant portions of which have not changed since

1988. R.C. 3319.02(C) provides in part:

"An assistant superintendent, principal, assistant

principal, or other administrator is, at the expiration of his

current term of employment, deemed reemployed at the same

salary plus any increments that may be authorized by the board

of education, unless he notifies the board in writing to the

contrary on or before the first day of June, or unless such

board, on or before the last day of March of the year in which

his contract of employment expires, either reemploys him for a

succeeding term or gives him written notice of its intention

not to reemploy him. The term of reemployment of a person

remployed under this paragraph shall be one year, except that

if such person has been employed by the school district as

assistant superintendent, principal, assistant principal, or

other administrator for three years or more, the term of

employment shall be two years." (Emphasis added.)

We have held that written and timely notice is mandatory

under R.C. 3319.02(C) and that noncompliance results in renewal

of the contract. State ex rel. Luckey v. Etheridge (1992), 62

Ohio St.3d 404, 583 N.E.2d 960, syllabus; State ex rel. Brennan

v. Vinton Cty. Local School Dist. Bd. of Edn. (1985), 18 Ohio

St.3d 208, 18 OBR 271, 480 N.E.2d 476. Donaldson's part-time

contract for employment as a "Coordinator of Community

Education" was due to expire on June 30, 1988. The board gave

notice in a letter dated July 18, 1988 that this position had

been "abolished effective at the end of the 1987-88 school year

due to lack of continued need."

The board argues that no evidence in the record

establishes Donaldson's status as an administrator and,

therefore, that the court of appeals erred in finding that

there was no dispute as to this material fact. The board

complains that Donaldson was not shown to possess certain

teaching certificates described in the R.C. 3319.02(A)

definition of "other administrator." As Donaldson points out,

however, these certificates are not the only indicia in the

definition of "other administator":

"As used in this section, 'other administrator' means any

employee in a position for which a board of education requires

a certificate of the type described by division (I)

[supervisor/teacher for kindergarten to twelve], (M)

[pupil-personnel workers], or (O) [educational adminstrative

specialists] of section 3319.22 of the Revised Code, * * * or

any other employee, except the superintendent, whose job duties

enable him to be considered as either a 'supervisor' or a

'management level employee,' as defined in section 4117.01 of

the Revised Code." (Emphasis added.)

In a letter dated August 4, 1987, the school

superintendent declared Donaldson and others to be "supervisors

(administrators)" pursuant to R.C. 4117.01 and "exempt from

Civil Service." The only conflicting evidence in the record is

the transcript from Donaldson's unsuccessful civil service

appeal in which he claimed to be classified. The court of

appeals, therefore, justifiably concluded that this fact was

not contested.

The board also contends that Donaldson's contract was

suspended due to decreased enrollment as part of a reduction in

force under R.C. 3319.17 1 and that written and timely notice

pursuant to R.C. 3319.02 was not required. The board is wrong

about the inapplicability of R.C. 3319.02. Even if we assume

that the board suspended Donaldson's contract during a valid

reduction in force under R.C. 3319.17, he was entitled to

written notice before March 31, 1988, and the board did not act

until July 18, 1988. Thus, Donaldson was reemployed by

operation of law under R.C. 3319.02(C) before any reduction in

force occurred.

Moreover, the court of appeals did not find the nonrenewal

of Donaldson's contract to be part of a valid reduction in

force, and neither do we. The July 18, 1988 notice to

Donaldson advised that he would "not receive a contract for * *

* [the part-time position of Coordinator of Community

Education] for the 1988-89 school year." The notice did not

purport to suspend his contract due to the conditions in R.C.

3319.17 that justify a reduction in force, or as a consequence

of preferences for other administrators with greater seniority

in the school system. Thus, R.C. 3319.02, not R.C. 3319.17,

was the authority under which the board attempted to terminate

Donaldson's employment. Accord State ex rel. Smith v.

Etheridge (1992), 65 Ohio St.3d 501, 508, 605 N.E.2d 59, 65.

Adequate Remedy and Equitable Defenses

The board's remaining arguments are that (1) Donaldson did

not establish the last condition for a writ of mandamus to

issue -- the absence of an adequate remedy in the ordinary

course of law, R.C. 2731.05, and (2) laches, collateral

estoppel and res judicata preclude issuance of the writ. The

court of appeals did not discuss these issues in its original

judgment entry, but it later found no unreasonable delay in

disposing of a Civ.R. 60(B) motion for relief from judgment.

The board first contends that Donaldson's civil service

appeal is an adequate and available remedy. Indeed, appeal

from the civil service commission would constitute an adequate

remedy if Donaldson were attempting to enforce his rights as a

classified public employee in this case. State ex rel. Farmer

v. McCormick (1961), 171 Ohio St. 530, 14 O.O.2d 453, 172

N.E.2d 461 (mandamus may not be substituted for appeal from

civil service commission order). Donaldson, however, seeks to

enforce his rights as an unclassified administrator, which are

rights apart from the protections afforded classified civil

servants and rights which a civil service commission has no

jurisdiction to determine. R.C. 124.34 and 124.40; See, also,

State ex rel. Stough v. Bd. of Edn. of Norton City School Dist.

(1977), 50 Ohio St.2d 47, 4 O.O. 3d 116, 362 N.E.2d 266.

The board next argues that an action for breach of

contract is an adequate and available remedy. A contract

action for damages, however, does not enforce the duty in R.C.

3319.02(C), which is the reason we granted a writ of mandamus

in Luckey, supra. See Monaghan v. Richley (1972), 32 Ohio

St.2d 190, 61 O.O.2d 425, 291 N.E.2d 462.

To successfully invoke the defense of laches, the board

must show unreasonable delay and material prejudice. Smith v.

Smith (1959), 168 Ohio St. 447, 7 O.O.2d 276, 156 N.E.2d 113;

State ex rel. Madden v. Windham Exempted Village School Dist.

Bd. of Edn. (1989), 42 Ohio St.3d 86, 90, 537 N.E.2d 646,

649-650.

The board argues that Donaldson delayed unreasonably in

pursuing mandamus by waiting two and one-half years after he

appealed his job abolishment to the civil service commission

before filing the instant complaint. The board, however, has

not explained how it was materially prejudiced by Donaldson's

delay, and prejudice will not be inferred from the mere passage

of time. Madden, supra, at 91, 537 N.E.2d at 650.

Accordingly, laches did not require denial of the writ of

mandamus.

Finally, the board maintains that the issue of Donaldson's

reinstatement was finally determined in the civil service

appeal, such that collateral estoppel and res judicata now bar

relief through mandamus. According to Donaldson, the parties

dismissed by agreement Donaldson's civil service appeal, which

suggests that a final determination has been reached in that

case. However, for collateral estoppel and res judicata to

apply, the judgment to which preclusive effect would be given

must have been issued by a court with jurisdiction over the

subject matter. State ex rel. Brookpark Entertainment, Inc. v.

Cuyahoga Cty. Bd. of Elections (1991), 60 Ohio St.3d 44, 47,

573 N.E.2d 596, 599-600. The jurisdiction invoked by

Donaldson's appeal from the civil service commission did not

extend to claims other than those related to his alleged

employment as a classified civil servant. Thus, we also reject

these defenses.

Conclusion

Based on the foregoing, we find no error in the court of

appeals' decision to grant a writ of mandamus. Accordingly, we

affirm the court of appeals' judgment, which compelled the

board "to issue an 'other administrator's' contract to

Donaldson pursuant to R.C. 3319.02 for employment through the

1991-92 school year and to pay Donaldson all back pay and

benefits to which he is entitled pursuant to R.C. 3319.02 and

to grant Donaldson all other benefits to which he is entitled."

Judgment affirmed.

A.W. Sweeney, Douglas, Resnick, F.E. Sweeney and Pfeifer,

JJ., concur.

Moyer, C.J., and Wright, J., dissent.

FOOTNOTE

1 In 1988, prior to recent amendment, R.C. 3319.17 provided:

"When by reason of decreased enrollment of pupils, return

to duty of regular teachers after leaves of absence, or by

reason of suspension of schools or territorial changes

affecting the district, a board of education decides that it

will be necessary to reduce the number of teachers, it may make

a reasonable reduction. In making such reduction, the board

shall proceed to suspend contracts in accordance with the

recommendation of the superintendent of schools who shall,

within each teaching field affected, give preference to

teachers on continuing contracts and to teachers who have

greater seniority. Teachers, whose continuing contracts are

suspended, shall have the right of restoration to continuing

service status in the order of seniority of service in the

district if and when teaching positions become vacant or are

created for which any of such teachers are or become

qualified." 1953 Am. H.B. No. 1.

Moyer, C.J., dissenting. I respectfully dissent from

the majority opinion. Even assuming this case is not

distinguishable from State ex rel. Luckey v. Etheridge (1992),

62 Ohio St.3d 404, 583 N.E.2d 960, we should not ignore the

notice provided on July 18, 1988, even though it was not in

time for the 1988-1989 school year. The July 18, 1988 notice

advised Donaldson of the board's intent not to reemploy him,

and it came before the last day of March 1989, the year in

which his 1988-1989 contract expired. Thus, this notice was

timely with respect to the 1989-1990 school year and should be

considered sufficient under R.C. 3319.02(C) to sever his

employment for the purpose of that year and each year

thereafter. The majority decision gives Donaldson a windfall

at the expense of the taxpayers of the Athens City School

District.

Wright, J., concurs in the foregoing dissenting opinion.