observing that, ordinarily, state law validates an unwritten school employment understanding where “the employee performs his or her duties as though a written contract were present”
How later courts described this case
- observing that, ordinarily, state law validates an unwritten school employment understanding where “the employee performs his or her duties as though a written contract were present”
Written by the judges who cited it.
The opinion
OPINIONS OF THE SUPREME COURT OF OHIO
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The State ex rel. Smith, Appellant, v. Etheridge,
Superintendent, et al., Appellees.
The State ex rel. Brown et al., Appellants, v. Columbus
Public Schools et al., Appellees.
[Cite as State ex rel. Smith v. Etheridge (1992), Ohio
St.3d .]
Schools -- Employment of administrators -- R.C. 3319.02 is a
remedial statute that must be liberally construed in favor
of administrators.
R.C. 3319.02 is a remedial statute that must be liberally
construed in favor of administrators. (State ex rel.
Brennan v. Vinton Cty. Local Bd. of Edn. [1985], 18 Ohio
St.3d 208, 18 OBR 271, 480 N.E.2d 476; and State ex rel.
Luckey v. Etheridge [1992], 62 Ohio St.3d 404, 583 N.E.2d
960, approved and followed.)
(Nos. 91-2483 and 91-2484 -- Submitted November 10, 1992
-- Decided December 15, 1992.)
Appeals from the Court of Appeals for Franklin County,
Nos. 90AP-849 and 90AP-847.
Case No. 91-2483
Appellant, Dr. Kevin C. Smith, was employed by appellee,
Columbus Public Schools, as an assistant principal at Columbus
Alternative High School. On August 2, 1988, the appellee,
Columbus Public Schools Board of Education ("board"), passed a
resolution whereby Smith was appointed to the position of
principal at Monroe Middle School. Smith asserts that he
requested a new contract from his supervisors that would
reflect his new position, but his supervisors told him that he
did not need a new contract form since "the Board speaks
through its minutes," and that, in any event, he should sign
the "senior high assistant principal" contract form that he had
already received from the board. Around the latter part of
August 1988, the personnel office of the board informed Smith
that his paycheck would be withheld until he signed the senior
high assistant principal contract form he had been previously
sent. Consequently, Smith signed and returned the senior high
assistant principal contract form even though he was serving as
a middle school principal.
On or about January 10, 1990, Smith received a letter from
the appellee, Superintendent of Columbus Public Schools, Dr.
Ronald E. Etheridge, which informed him of the superintendent's
intention to recommend that the board not renew his
administrative contract. The letter from Etheridge, however,
did not specifically identify the contract being considered for
nonrenewal.
On March 20, 1990, Smith met with the board in executive
session wherein he discussed, inter alia, his evaluation of
December 1988 and his performance as principal of Monroe Middle
School.
On April 11, 1990, the board passed a resolution to
nonrenew Smith's expiring contract which was listed as "Senior
High Assistant Principal," and subsequently informed Smith that
the board did not intend to reemploy him following the
expiration of his "current administrative contract."
Thereafter, Smith filed an original action in mandamus in
the court of appeals seeking to compel appellees to reemploy
him as principal of Monroe Middle School. Smith further
requested an award of back pay, attorney fees and costs.
In denying Smith's requested writ, the appellate court
held that "R.C. 3319.08 created a contract by operation of law
between relator and the Board for relator's services as
principal of Monroe Middle School" and that there was no other
contract of employment between Smith and the board "because a
school administrator can serve in only one full-time
administrative capacity at a time." The court of appeals
justified the board's action by stating that "[t]he incorrect
designation of [Smith's] position in the Board's resolution can
be used only to identify the person whose contract is not
renewed rather than to constitute nonrenewal of a nonexistent
contract."
Case No. 91-2484
Appellants, Dr. L. Wayne Brown, David R. Buxton, Dr. James
Cauley, Hugh Durbin, Edna Payne, Charles E. Pollock, Titus A.
Saunders, Jr., Dr. Kevin C. Smith (also the appellant in case
No. 91-2483), John A. Taracko, Margaret R. Wehner, Dr. Amos J.
White and Dr. Stacy Woodford, were employed by the appellee
board as administrators.
On or about October 4, 1988, the board directed appellee
Etheridge to engage the management consulting firm of Ernst &
Whinney to assist the board in conducting an organizational
audit and developing recommendations for changes in the
organizational structure of Columbus Public Schools. In its
final report to the board which was issued on or about April
18, 1989, Ernst & Whinney recommended, inter alia, that
fifty-four administrative positions be eliminated, and that
twenty-nine positions be created. The board accepted these
recommendations and directed Etheridge to implement them.
In consultation with Associate Superintendents Dr. Timothy
J. Ilg and Dr. Damon F. Asbury, Etheridge determined which
administrative positions would be eliminated and which
administrators would be nonrenewed. Ilg and Asbury met, or
attempted to meet, with the administrators under their
respective supervision and discuss the reasons for nonrenewal.
Appellants Saunders and Taracko, however, failed or refused to
meet with Ilg, their supervisor.
In letters dated January 10, 1990, Etheridge informed each
of the appellants that they could "* * * request a meeting with
the Board to discuss the Board's reasons for considering the
renewal or non-renewal of your current contract by submitting a
written request to me on or before February 16, 1990. If you
request such a meeting, it will be held at the regular Board
meeting on March 20, 1990 at 5:00 p.m."
Appellants therefore requested meetings with the board
wherein each appellant, according to board member Richard
Fahey, was given their "best shot" for renewal, under the
presumption that "someone in the administration had provided
[appellants] with the opportunity to know the reasons why they
were being * * * recommended for nonrenewal."
On March 23, 1990, the Ohio Association of Elementary
School Administrators obtained a temporary restraining order in
the court of common pleas on behalf of all appellants, except
Durbin and Cauley, to prevent the board from carrying out the
plan to nonrenew appellants' contracts.
On March 27, 1990, Cauley was notified of the board's
intention to not renew his administrative contract. On March
29, 1990, Durbin was also notified of the board's intention to
not renew his administrative contract.
Shortly thereafter, the temporary restraining order
expired, and the trial judge gave the board until April 30,
1990 to either reemploy or give written notice of its intention
not to reemploy the remaining appellants. Consequently, on
April 12, 1990, all the remaining appellants were notified that
the board intended not to renew their administrative contracts,
pursuant to a board resolution adopted April 11, 1990.
Subsequently, appellants filed a complaint for a writ of
mandamus with the court of appeals seeking reinstatement to
their former administrative positions, as well as back pay,
attorney fees and costs. However, the court found appellants'
claim for relief to be not well taken. In denying the
requested writ, the appellate court held, inter alia, that the
board essentially complied with the mandates of R.C. 3319.02 in
not renewing the administrative contracts of appellants.
This court has sua sponte consolidated these causes for
review and determination. The causes are now before this court
upon appeals as of right.
Espy & Benton and Ben E. Espy, for appellants.
Lawrence H. Braun; Bricker & Eckler, Jerry E. Nathan and
Diane R. Richards, for appellees.
A. William Sweeney, J.
I
In case No. 91-2483, we are asked whether R.C. 3319.02
requires a board of education to vote on the nonrenewal of an
administrator's actual position before the board can nonrenew
his or her contract. In our view, the statute requires that we
answer this issue in the affirmative and, therefore, we reverse
the judgment of the court of appeals below.
R.C. 3319.02(C) directs a board of education to "* * *
execute a written contract of employment with each assistant
superintendent, principal, assistant principal, and other
administrator it employs or reemploys. * * *" This provision
also deems an administrator reemployed if the board does not
notify him or her in writing of its intention not to reemploy
such person on or before March 31 of the year in which the
contract expires.
In State ex rel. Brennan v. Vinton Cty. Local Bd. of Edn.
(1985), 18 Ohio St.3d 208, 18 OBR 271, 480 N.E.2d 476, and
State ex rel. Luckey v. Etheridge (1992), 62 Ohio St.3d 404,
406, 583 N.E.2d 960, 962, we held that R.C. 3319.02 is a
remedial statute that must be liberally construed in favor of
administrators.
With this in mind, we first note that R.C. 3319.02
required the board to issue appellant Smith a written contract
for the position of principal, but the board either failed or
refused to issue a correct contract for the position to which
Smith was promoted. The record indicates that the board's
personnel office threatened to withhold Smith's paycheck unless
and until he signed the contract which listed his former
position as a senior high assistant principal. Subsequently,
Smith signed the senior high assistant principal's contract,
but served as the principal of Monroe Middle School.
Thereafter, the board notified Smith that he was nonrenewed for
a senior high assistant principal's position that he did not
then hold. Under these circumstances, and given the remedial
nature of R.C. 3319.02, we believe that since the board voted
not to renew Smith's contract for a position he did not hold,
he was automatically renewed, by operation of the statute, for
the position he actually did hold, which was principal of the
middle school.
Contrary to the reasoning of the court of appeals below
and appellees, we find R.C. 3319.08 to be inapplicable to
Smith's contract status. Ordinarily, R.C. 3319.08 will
validate a contract where the board does not put such contract
in writing but the employee performs his or her duties as
though a written contract were present. However, in this case,
Smith not only did not have a written contract for the
principal's position, he was not provided sufficient or timely
notice that his position as principal was to be nonrenewed.
Under a clear reading of R.C. 3319.08, the board is not
relieved of the requirement to provide a written contract or to
provide an administrator with sufficient notice of nonrenewal.
Accordingly, we reverse the judgment of the court of
appeals in case No. 91-2483, and remand the cause to that court
to issue the requested writ of mandamus to validate Smith's
administrative contract as a principal, as well as grant him
lost wages and any other appropriate relief.
II
Turning our focus to case No. 91-2484, we note that in
Luckey, supra, this court held in the syllabus:
"Pursuant to R.C. 3319.02(C), a board of education must
provide written notice of its intention not to reemploy an
assistant superintendent, principal, assistant principal or
other administrator on or before the last day of March of the
year in which the contract of employment expires."
A careful review of the record indicates that none of the
appellants herein, except Cauley and Durbin, was given
sufficient notice of nonrenewal of his or her administrative
contract pursuant to the syllabus law announced in Luckey,
supra.
Accordingly, we reverse the judgment of the court of
appeals with respect to appellants Brown, Buxton, Payne,
Pollock, Saunders, Smith, Taracko, Wehner, White and Woodford,
and remand the cause to that court to issue the requested writ
of mandamus which entitles these appellants to a renewal of
their respective administrative contracts, lost wages and any
other relief deemed appropriate.
III
Given our disposition above, the only remaining issues of
relevance in these appeals are as follows: (1) whether R.C.
3319.02 grants a public school administrator the right to be
advised of the reasons for his or her recommended nonrenewal;
and (2) whether R.C. 3319.02 requires a board of education to
base a decision to nonrenew an administrative contract on the
administrator's evaluation. For the reasons that follow we
answer both of these questions in the negative and, therefore,
affirm the judgment of the court of appeals in case No. 91-2484
on these particular issues.
A
With respect to the issue of whether R.C. 3319.02 grants
administrators the right to be advised of the reasons for
nonrenewal of their administrative contracts, we find that
under R.C. 3319.02(C), administrators are to "be employed or
reemployed in accordance with nominations of the superintendent
of schools of the district except that a city * * * board of
education, by a three-fourths vote, may reemploy any assistant
[administrator] whom the superintendent refuses to nominate
after considering two nominees for the position. * * *"
Furthermore, an administrator is deemed reemployed unless
the board, on or before March 31 in the last year of the
contract, gives him or her written notice of nonrenewal. In
addition, R.C. 3319.02(D) states in part:
"Before taking action to renew or nonrenew the contract of
an assistant superintendent, principal, assistant principal, or
other administrator under this section and prior to the last
day of March of the year in which such employee's contract
expires, the board of education shall notify each such employee
of the date that his contract expires and that he may request a
meeting with the board. Upon request by such an employee, the
board shall grant the employee a meeting in executive session
to discuss the reasons for considering renewal or nonrenewal of
his contract."
Appellants argue that R.C. 3319.02 requires a board of
education to provide an administrator with reasons for its
intention to nonrenew the administrator's contract and to
discuss these reasons at the administrator's meeting with the
board. Appellees deny this but argue, alternatively, that the
board satisfies any such requirement if, as here, the
administrator knows that the superintendent has recommended
nonrenewal, since that recommendation is the "reason" for the
board's considering nonrenewal.
In State ex rel. Saltsman v. Burton (1950), 154 Ohio St.
262, 267, 43 O.O. 136, 138, 95 N.E.2d 377, 379, this court held
that a superintendent is not entitled to a continuing contract
as a superintendent merely because he had tenure as a teacher,
and we explained the practical and statutory differences
between an administrator and a teacher. According to our
decision in Saltsman, teacher tenure Acts protect qualified
teachers and prevent their arbitrary dismissal. However, the
teacher tenure Acts omit administrators from coverage because
administrators exercise executive and discretionary power in
addition to holding professional qualifications as a teacher.
See, also, State ex rel. Specht v. Painesville Twp. Local
School Dist. Bd. of Edn. (1980), 63 Ohio St.2d 146, 17 O.O.3d
89, 407 N.E.2d 20.
In comparing R.C. 3319.02 with 3319.11(G), we note that
R.C. 3319.11 concerns continuing contracts for teachers, and
provides for written notice upon request describing the
circumstances leading to the board's intention not to reemploy
the teacher. R.C. 3319.11(G)(1). The statute also sets forth
specific times for responses and orders a hearing before the
board if requested, which may be recorded, within a specific
time period. In addition, R.C. 3319.11(G)(6) requires a board
to issue a written decision within ten days after the hearing.
On the other hand, the court of appeals in case No.
91-2484 concluded that the R.C. 3319.02 requirement that a
board "* * * 'discuss reasons' for an administrator's
nonrenewal mandates that an administrator be made aware of the
underlying reasons that the Board is considering as a basis for
nonrenewal of his contract so that the administrator can
respond thereto."
Nevertheless, R.C. 3319.02, unlike 3319.11, does not
require any written notification regarding reasons for the
nonrenewal of an administrator's contract. What the statute
does require is what in fact was provided to all of the
appellants, viz., a meeting to discuss the reasons for
considering the renewal or nonrenewal of their contracts.
While appellants deny that the reasons for nonrenewal were
discussed in their respective meetings with the board, we find
nothing in the record which compels us to overturn the decision
of the court of appeals on this issue.
In our view, appellees complied with the requirements of
R.C. 3319.02 in this regard and, thus, we affirm the court of
appeals' disposition with respect to this issue.
B
With respect to the issue of whether R.C. 3319.02 requires
a board of education to base its decision to nonrenew on the
administrator's evaluation, we note that subsection (D) of the
statute provides in relevant part:
"Each board of education shall adopt procedures for the
evaluation of all assistant superintendents, principals,
assistant principals, and other administrators and shall
evaluate such employees in accordance with those procedures.
The evaluation based upon such procedures shall be considered
by the board in deciding whether to renew the contract of
employment of an assistant superintendent, principal, assistant
principal, or other administrator. The evaluation shall
measure each assistant superintendent's, principal's, assistant
principal's, and other administrator's effectiveness in
performing the duties included in his job description and the
evaluation procedures shall provide for, but not be limited to,
the following:
"(1) Each assistant superintendent, principal, assistant
principal, and other administrators shall be evaluated annually
through a written evaluation process.
"(2) The evaluation shall be conducted by the
superintendent or his designee.
"(3) In order to provide time to show progress in
correcting the deficiencies identified in the evaluation
process the completed evaluation shall be received by the
evaluatee at least sixty days prior to any action by the board
of education on the employee's contract of employment.
"* * *
"The establishment of an evaluation procedure shall not
create an expectancy of continued employment. Nothing in this
section shall prevent a board of education from making the
final determination regarding the renewal of or failure to
renew the contract of any assistant superintendent, principal,
assistant principal, or other administrator." (Emphasis added.)
While the foregoing statutory language requires the board
to consider the administrator's evaluation, it does not require
the board to base its decision on such evaluations. A review
of the record sub judice indicates that the board members had
copies of each administrator's evaluation, and we will not
assume that they did not consider such evaluations in making
their determinations. In any event, the above-emphasized
language indicates that even if a board did not consider an
administrator's evaluation in voting to nonrenew a contract,
such a failure does not by itself undermine a board's decision
to nonrenew an administrative contract.
Finally, we also find no merit in appellants' argument
that the board herein improperly administered a reduction in
work force under R.C. 3319.17. A clear reading of the record
indicates that the board decided to reduce the number of
administrators by not renewing expiring contracts rather than
by suspending existing contracts. Thus, R.C. 3319.02 rather
than 3319.17 was the vehicle used by the board in its attempt
to reduce the number of administrators within the school system.
Based on all the foregoing, we reverse the judgment of the
court of appeals in case No. 91-2483 and remand the cause to
that court for further proceedings.
In case No. 91-2484, we reverse the judgment of the court
of appeals with respect to all appellants except Cauley and
Durbin. The cause is remanded to the court of appeals to issue
the requested writ of mandamus and to grant other appropriate
relief. With respect to appellants Cauley and Durbin, the
judgment of the court of appeals is affirmed.
Judgment accordingly.
H. Brown and Resnick, JJ., concur.
Douglas, J., concurs in part and dissents in part.
Moyer, C.J., Holmes and Wright, JJ., concur in part and
dissent in part.
Douglas, J., concurring in part and dissenting in part.
I concur with the syllabus law announced by the majority, and
with the majority's disposition of case No. 91-2483. I concur
in Part II of the opinion with regard to how the majority
decides, in part, case No. 91-2484, and in Part III(B) of the
opinion, as to the majority's discussion and disposition
pertaining to R.C. 3319.02(D) and 3319.17. I respectfully
dissent as to the discussion and judgment of the majority in
Part III(A) of the opinion.
As set forth in the majority opinion, R.C. 3319.02(D)
states, in part, that "* * * [u]pon request by such an
employee, the board shall grant the employee a meeting in
executive session to discuss the reasons for considering
renewal or nonrenewal of his contract." It is my judgment that
the majority's discussion and decision as to this subdivision
of the statute may be interpreted, for all practical purposes,
to read it out of existence. I would find that both the
statute and fundamental fairness require that reasons be given
for nonrenewal.
It would appear implicit that when the General Assembly
provides for a nonrenewed administrator to request and be
granted a hearing before the board "to discuss the reasons for
* * * nonrenewal," a necessary condition precedent therefor is
that reasons for the nonrenewal be given the employee.
Otherwise, the provision has no meaning and it is our duty to
give credence to the entire statute--not just a part thereof.
Since the record in this case clearly reflects that no reasons
for nonrenewal were given the employees and, in addition, that
at the meeting before the board, the employees were simply
given the opportunity to express to the board why they (the
employees) should have their contracts renewed, it is obvious
that there has not been compliance with the statute.
Finally, there is the question of fundamental fairness.
Which of us, if we were administrators, would like to face the
prospect of applying for a new job in a new school district and
appearing before a new school board, a new superintendent or
screening committee and having to respond to the question of
"Why were you nonrenewed?" with the answer "I don't know. They
did not tell me." Either such response would not be believed
or the worst would be assumed. Every person should know why
she or he has been terminated from employment. Was it because
of lack of funds, decreased enrollment, reduction in force or
even just because the administrator drives a blue, rather than
a red, car to work? Without being given any reasons, a stigma
attaches that will be difficult, if not impossible to remove.
Simply put--it is fundamentally unfair. I trust that the
majority opinion will not be read to sanction such unfairness.
Accordingly, I respectfully concur in part and dissent in
part.
Wright, J., concurring in part and dissenting in part.
I respectfully dissent from the court's opinion in Parts I and
II for the reasons I have stated previously in my dissents in
State ex rel. Brennan v. Vinton Cty. Local Bd. of Edn. (1985),
18 Ohio St.3d 208, 210, 18 OBR 271, 273, 480 N.E.2d 476, 478,
and State ex rel. Luckey v. Etheridge (1992), 62 Ohio St.3d
404, 407, 583 N.E.2d 960, 963. Relators received adequate
notice and an opportunity to discuss the reasons for nonrenewal
at the board meeting. This is sufficient to comply with R.C.
3319.02.
I concur in Part III of the majority's opinion.
Moyer, C.J., and Holmes, J., concur in the foregoing
opinion.