Doe v. Ronan

[Cite as Doe v. Ronan, 127 Ohio St.3d 188, 2010-Ohio-5072.]

DOE v. RONAN, SUPERINTENDENT, ET AL.

[Cite as Doe v. Ronan, 127 Ohio St.3d 188, 2010-Ohio-5072.]

As applied to employment contracts entered into by school districts governed by

R.C. Chapter 124, R.C. 3319.391 and Ohio Adm.Code 3301-20-01 do not

violate the provision in Section 28, Article II of the Ohio Constitution that

prohibits the General Assembly from passing laws that impair the

obligation of contracts — R.C. 3319.391 does not violate the provision in

Section 28, Article II of the Ohio Constitution that prohibits the General

Assembly from passing retroactive laws.

(No. 2009-2104 — Submitted June 8, 2010 — Decided October 26, 2010.)

ON ORDER from the United States District Court, Southern District of Ohio,

Western Division, Certifying Questions of State Law, No. 1:09cv243.

__________________

SYLLABUS OF THE COURT

1. As applied to administrative-employment contracts entered into by school

districts governed by R.C. Chapter 124, R.C. 3319.391 and Ohio

Adm.Code 3301-20-01 do not violate the provision in Section 28, Article

II of the Ohio Constitution that prohibits the General Assembly from

passing laws that impair the obligation of contracts.

2. R.C. 3319.391 does not violate the provision in Section 28, Article II of the

Ohio Constitution that prohibits the General Assembly from passing

retroactive laws.

__________________

CUPP, J.

{¶ 1} This case comes to us as two certified questions of state law from

the United States District Court for the Southern District of Ohio, Western

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Division. For the reasons that follow, we conclude that contractual obligations in

administrative-employment contracts entered into by school districts governed by

R.C. Chapter 124 are not impaired by R.C. 3319.391 and Ohio Adm.Code 3301-

20-01, and R.C. 3319.391 is not a retroactive law.

I. Facts

{¶ 2} According to the order certifying the questions to this court and the

facts agreed upon by the parties in their briefs, John Doe,1 petitioner, was

convicted in 1976 of drug trafficking in violation of R.C. 2925.03 and spent three

years in a correctional facility. After he was released, Doe obtained a college

degree, became a licensed social worker, and was certified as a chemical-

dependency counselor. In 1997, Doe’s conviction was expunged pursuant to R.C.

2953.32. Doe has had no other criminal convictions.

{¶ 3} In 1997, Doe began his employment with respondent Cincinnati

Public School (“CPS”) as a drug-free-school specialist. In 2002, Doe began to

work in an administrative capacity as a hearing officer. In this position, Doe’s

only direct contact with students was at administrative hearings, and the students’

guardians were also present at those hearings.

{¶ 4} Doe entered into a two-year administrative-employment contract

with CPS in July 2008, with the two-year term beginning on August 1. The

employment contract was made “subject to confirmation of appropriate state

certification.” Beginning in 2008, this confirmation process required Doe to

submit to a background check. This background-check requirement previously

applied only to licensed2 positions, but legislation enacted in 2007 extended it to

include administrative employees within the school district. R.C. 3319.39 and

1. The district court granted plaintiff’s motion to proceed under a pseudonym because it

determined that to pursue the lawsuit, the plaintiff would be compelled to disclose intimate

information and that a pseudonym would prevent the public from tying that information to the

plaintiff.

2. The term “license” is used herein consistently with the definition in R.C. 3319.31.

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3319.391, 2007 Sub.H.B. No. 190, eff. Nov.14, 2007 (“H.B. 190”). H.B. 190 also

authorized respondent Ohio Department of Education (“ODE”) to promulgate

administrative rules related to the background-check process, including rules

specifying circumstances under which persons with certain convictions could still

be hired. R.C. 3319.39(E).

{¶ 5} In November 2008, CPS notified Doe that his 32-year-old drug-

trafficking conviction was discovered during the background check.3 CPS further

advised Doe that the same recently enacted legislation that now required CPS to

conduct background checks on administrative employees also required CPS to

terminate its employment relationship with Doe because of the prior conviction.

{¶ 6} Doe filed suit on April 3, 2009, in the Hamilton County Court of

Common Pleas. Doe alleged that CPS breached the July 2008 employment

contract and that the recently enacted legislation expressed in H.B. 190 violated,

among other things, the Contracts Clauses of the United States and Ohio

Constitutions, the Ex Post Facto Clause of the United States Constitution, and the

Retroactivity Clause of the Ohio Constitution. CPS removed the case to the

federal district court pursuant to Section 1441, Title 28, U.S.Code, and on April

24, 2009, Doe filed an amended complaint in federal court. Respondent Mary

Ronan was the interim superintendent at the time the amended complaint was

filed.

{¶ 7} Thereafter, Doe filed a motion to certify his state-based

retroactivity and contract-impairment claims as state-law questions. The federal

3. When an offense is expunged, the record is sealed. R.C. 2953.32(C). However, inspection of

sealed records is permitted when a school board is conducting a background check. R.C.

2953.32(D)(8).

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district court granted the motion, and this court accepted the certified questions.4

124 Ohio St.3d 1440, 2010-Ohio-188, 920 N.E.2d 371.

II. Legislation and Regulations

{¶ 8} For many years, this state has required criminal background checks

for licensed and certificated school-district employees who have responsibility for

the care, custody, and control of a child. See former R.C. 3319.39(A)(1),

Am.Sub.S.B. No. 38, 145 Ohio Laws, Part I, 367, 383, eff. Oct. 29, 1993 (“S.B.

38”). If the background check uncovered a conviction of an offense listed in

former R.C. 3319.39(B)(1)(a), the school district was required to release that

employee from employment, unless the “standards in regard to rehabilitation”

were met. Former R.C. 3319.39(B)(1) and (E), S.B. 38. In keeping with the

ODE’s concern that persons who have drug-trafficking convictions on their record

may jeopardize the health, safety, or welfare of students, no rehabilitation was

available under the administrative regulation for a licensed employee who

committed a drug-trafficking offense under R.C. 2925.03. Former Ohio

Adm.Code 3301-20-01(B)(1), 1993-1994 Ohio Monthly Record 1257, eff. Mar. 4,

1994, and 3301-20-01(E)(1)(c) and (E)(2)(e), 2005-2006 Ohio Monthly Record

1261, eff. Sept. 23, 2005.

4. {¶ a} The certified questions of law are as follows:

{¶ b} “I. [Do] Ohio Revised Code § 3319.391 and Ohio Administrative Code § 3301-20-01

violate the Retroactivity Clause of Article II, Section 28 of the Ohio Constitution?”

{¶ c} “II. [Do] Ohio Revised Code § 3319.391 and Ohio Administrative Code § 3301-20-01

violate the Contract Clause of Article II, Section 28 of the Ohio Constitution?”

{¶ d} The district court’s certified question pertaining to the retroactivity question, however,

does not match the allegations in the amended complaint. In the amended complaint, Doe alleged

that both R.C. 3319.391 and R.C. 3319.39 were unconstitutionally retroactive. Further, Doe did

not assert that now-former Ohio Adm.Code 3301-20-01 was unconstitutionally retroactive.

{¶ e} We are unclear as to the rationale behind the district court’s phrasing of the question

regarding unconstitutional retroactivity and why the certified question does not comport with the

allegations in Doe’s amended complaint. In order to avoid rendering an advisory opinion on the

question whether Ohio Adm.Code 3301-20-01 is unconstitutionally retroactive, we limit our

discussion to the issues presented in the amended complaint, but we decline to address whether

R.C. 3319.39 is unconstitutionally retroactive, because this issue was not briefed by the parties.

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{¶ 9} In 2007, H.B. 190 expanded the background-check statutes to

require, among other things, criminal-background checks for administrative, or

nonlicensed, school-district employees. Former R.C. 3319.391(A), H.B. No. 190.

The list of enumerated offenses in R.C. 3319.39(B)(1) and the effect that a

conviction of one of the enumerated offenses had on an employee’s employment

within a district were not revised. Former R.C. 3319.391(C), H.B. 190 (stating

that a person convicted of an offense listed in R.C. 3319.39(B)(1) “shall not be

hired or shall be released from employment” unless the person meets the

rehabilitation standards promulgated by the ODE pursuant to R.C. 3319.39(E));

and former R.C. 3319.39(B)(1)(a), H.B. 190 (enumerated offenses not revised in

H.B. 190). Thus, an R.C. 2925.03 drug-trafficking offense remained an

enumerated offense, and an employee who had been convicted of such an offense

could not be employed by the school district unless the rehabilitation standards

were met.

{¶ 10} Prior to August 27, 2009, the ODE had promulgated only one

regulation to address how a person with a prior conviction of an enumerated

offense could be rehabilitated, allowing that person to be employed with the

school district. However, the regulation provided that for a conviction of an R.C.

2925.03 drug-trafficking offense, no rehabilitation was available to relieve a

person from employment disqualification. Former Ohio Adm.Code 3301-20-

01(E)(1)(c) and (A)(11), 2005-2006 Ohio Monthly Record 1261, eff. Sept. 23,

2005.

{¶ 11} Effective August 27, 2009, the ODE revised its background-check

regulations to respond to the 2007 revisions to the statutes. Rather than have one

regulation apply to all persons subject to a background check, the ODE

promulgated two regulations: one applicable to employees who hold positions that

require licenses, and one applicable to employees who hold nonlicensed positions.

Both of the regulations detail how a person with a conviction of an enumerated

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offense may demonstrate the person’s rehabilitation to relieve the person from

employment disqualification with a school district. Ohio Adm.Code 3301-20-

01(E) and 3301-20-03(D).

{¶ 12} The regulation that applies to licensed positions is essentially a

continuation of the original, pre-August 2009 ODE regulation. Ohio Adm.Code

3301-20-01. In this regulation, the prior rule with respect to an R.C. 2925.03

drug-trafficking offense is maintained: no rehabilitation is permitted. Ohio

Adm.Code 3301-20-01(E)(1) and (A)(10)(c).

{¶ 13} The second regulation created by the ODE was new and applied to

nonlicensed positions within a school district. Ohio Adm.Code 3301-20-03. For

these positions, the rehabilitation rule for R.C. 2925.03 drug-trafficking offenses

is different. If the drug-trafficking offense occurred within ten years of the

criminal-record check, no rehabilitation is permitted. Ohio Adm.Code 3301-20-

03(D)(1) and (A)(6)(e). But if the person committed the drug offense more than

ten years before the criminal-record check, a district may employ that person if

the rehabilitation conditions contained in Ohio Adm.Code 3301-20-03(D) are

met. Ohio Adm.Code 3301-20-03(A)(6)(e). But even if a person meets the

rehabilitation conditions so that the school district may deem that person

rehabilitated, a “district maintains the discretion whether to employ or retain in

employment [that] individual.” Ohio Adm.Code 3301-20-03(D).

III. Analysis

{¶ 14} Doe argues that R.C. 3319.391 and Ohio Adm.Code 3301-20-01

unconstitutionally impaired his employment contract with CPS. Doe also argues

that R.C. 3319.391 is unconstitutionally retroactive. After consideration of the

arguments presented in this case, we cannot agree with Doe.

A. Contract Impairment

{¶ 15} The Ohio Constitution provides that the “general assembly shall

have no power to pass * * * laws impairing the obligation of contracts.” Section

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January Term, 2010

28, Article II, Ohio Constitution. This provision applies to contracts that “existed

prior to the effective date of the statute [at issue in the litigation].” Aetna Life Ins.

Co. v. Schilling (1993), 67 Ohio St.3d 164, 168, 616 N.E.2d 893. In contrast,

“contracts entered into on or after the effective date of [a statute] are subject to

the provisions of the statute.” (Emphasis sic.) Id.

{¶ 16} A two-part test has been established to determine whether a statute

unconstitutionally impairs a contract. The first question is whether the legislation

at issue operates as a substantial impairment of a contractual relationship.

Middletown v. Ferguson (1986), 25 Ohio St.3d 71, 77, 25 OBR 125, 495 N.E.2d

380. If the answer is yes, the next question is whether the legislation is

reasonable and necessary to serve an important public purpose. Id. at 79.

{¶ 17} When CPS advised Doe that it was terminating his 2008

employment contract for the sole reason of Doe’s 1976 expunged drug-trafficking

conviction, it did so in accordance with the requirements of the 2007 revisions to

the background-check legislation. Doe not only claims that R.C. 3319.391

unconstitutionally impaired his 2008 employment contract with CPS, but he

further asserts that applying the administrative regulation in effect at the time of

his termination notice compounds the constitutional infirmity. Ohio Adm.Code

3301-20-01, 2005-2006 Ohio Monthly Record 1261, eff. Sept. 23, 2005. Doe

maintains that application of this administrative regulation to his circumstance is

inappropriate because it was promulgated when only licensed school-district

employees were subject to criminal-record checks. According to Doe, if the

revised August 2009 regulation applicable to nonlicensed school-district

employees had been promulgated sooner than it was following R.C. 3319.391’s

effective date, he would have met the new rehabilitation standard for nonlicensed

employees and could have remained employed by CPS. Ohio Adm.Code 3301-

20-03(A)(6)(e) and (D).

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{¶ 18} The General Assembly has enacted detailed statutes regulating the

employment of school employees. See R.C. Chapter 3319. When an employment

contract between a school district and its employee is made pursuant to these

statutes, that contract must be construed as though the statutes are incorporated

into the contract and become implied terms and conditions of any contract or

contractual right. See, e.g., Jacot v. Secrest (1950), 153 Ohio St. 553, 558, 42

O.O. 31, 93 N.E.2d 1, quoting Banks v. De Witt (1884), 42 Ohio St. 263,

paragraph two of the syllabus (“ ‘A contract made in pursuance of a statute or

resolution, must be construed as though such statute or resolution had been

incorporated into such contract’ ”).5 In this case, the 2008 employment contract

between Doe and CPS was made “subject to confirmation of appropriate state

certification.” Passing a statutorily mandated background check is necessary

“state certification” and is therefore a condition that must be met before

obligations in the contract become effective. In recognition of this condition

precedent, all prior and current versions of the background-check legislation

permit an employee to be conditionally employed until the results of the

background check are obtained. See, e.g., former R.C. 3319.39(B)(2), S.B. 38,

eff. Oct. 29, 1993, and former R.C. 3319.39(B)(2), H.B. 190, eff. Nov. 14, 2007.

5. The dissent claims that the incorporation of present statutory law into a contract is legal

artifice. To the contrary, “[i]t is an elementary principle that any law relating to a contract which

is in existence at the time of the execution of the contract becomes a part of such contract.” E.

Mach. Co. v. Peck (1954), 161 Ohio St. 1, 6-7, 52 O.O. 463, 117 N.E.2d 593; Bricker v. Preble

Shawnee Local School Dist. Bd. of Edn., 12th Dist. No. CA2007-10-020, 2008-Ohio-4964, ¶ 15;

Eastwood Local School Dist. Bd. of Edn. v. Eastwood Edn. Assn., 172 Ohio App.3d 423, 2007-

Ohio-3563, 875 N.E.2d 139, ¶ 27; Labate v. Natl. City Corp. (1996), 113 Ohio App.3d 182, 185,

680 N.E.2d 693. It is also “ ‘elementary that no valid contract may be made contrary to statute,

and that valid, applicable statutory provisions are parts of every contract.’ ” Holdeman v.

Epperson, 111 Ohio St.3d 551, 2006-Ohio-6209, 857 N.E.2d 583, ¶ 18, quoting Bell v. N. Ohio

Tel. Co. (1948), 149 Ohio St. 157, 158, 36 O.O. 501, 78 N.E.2d 42; Darwin Limes, L.L.C. v.

Limes, 6th App. No. WD-06-049, 2007-Ohio-2261, ¶ 25. Finally, this court has held in the

context of subrogation rights that the statutory “provisions must control, regardless of the terms

and conditions written into the policy by the contracting parties.” Verducci v. Cas. Co. of Am.

(1917), 96 Ohio St. 260, 265, 117 N.E. 235. Thus, applying the principle that existing statutory

provisions are incorporated into a contract is recognition of a basic legal concept of longstanding

and accepted use.

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{¶ 19} Doe was conditionally employed pending the results of his

background check. When these results indicated that Doe failed to meet the state-

certification requirement, Doe was unable to meet the condition precedent that

would have triggered CPS’s obligation to perform the contract. Consequently, the

contract between CPS and Doe failed to become binding.

{¶ 20} We further note that Doe and CPS executed the July 2008

employment contract eight months after the effective date of the provisions of

H.B. 190, which imposed the new background-check requirements. Because

Doe’s 2008 employment contract with CPS was executed after the date the

statutory change became effective, the new background-check requirements and

the employment-disqualification standards of Ohio Adm.Code 3301-20-01

became incorporated as implied terms and conditions of Doe’s contract. Thus,

Doe cannot demonstrate that R.C. 3319.391 impaired his employment contract

with CPS, because there was no contract between Doe and CPS to substantially

impair.

{¶ 21} Doe’s reliance on R.C. 3319.081 to establish that his employment

contract was a continuing contract is misplaced. R.C. 3319.081 applies to school

districts that are not governed by R.C. Chapter 124. CPS, however, is governed

by R.C. Chapter 124. R.C. 124.01(A) and 3319.081. Thus, there is no continuing

contract under R.C. 3319.081. Moreover, a public employee who meets the

classified-service criteria of R.C. 124.11(B) does have protection from

termination without specific cause, as defined in R.C. 124.34(A). One of the

specific causes for which an employee can be terminated, however, is the

conviction of a felony drug-abuse offense under R.C. 2925.03. R.C.

124.34(A)(2). Because the conviction was under R.C. 2925.03, it falls within the

purview of R.C. 124.34(A), and Doe has no statutory right to continued

employment.

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{¶ 22} Doe also claims that application of the pre-August 2009

administrative rule to his circumstance impaired his 2008 employment contract

with CPS. Had Ohio Adm.Code 3301-20-03 been promulgated more quickly

upon the enactment of H.B. 190, Doe’s R.C. 2925.03 drug-trafficking conviction

would not have constituted a nonrehabilitative offense, and he could likely have

met the conditions to show rehabilitation so that CPS could have maintained its

employment relationship with him. Ohio Adm.Code 3301-20-03(A)(6)(e) and

(D).

{¶ 23} Nonetheless, these laws reflect the General Assembly’s conclusion

that the health, safety, and welfare of students required an expansion of the

background-check laws to include nonteaching employees, e.g., administrators,

cafeteria workers, custodians, and maintenance personnel. Unfortunately, delay is

often an inherent characteristic of the rulemaking process. The effect that the

delay in the administrative rulemaking process had on Doe’s career is regrettable.

Doe’s past experiences and rehabilitation appear to have made him especially

qualified for the duties of the position for which he was hired, and Doe claims in

his amended complaint that he has received either an “acceptable” or

“accomplished” job evaluation every year since he became employed at CPS.

When his conviction was expunged in 1997, Doe was found to be rehabilitated.

The district court found that Doe has been “a model citizen since being released

from jail.” Regardless, the ODE acted pursuant to its statutory grant of

discretionary rulemaking authority and was under no obligation to amend the

Administrative Code to make different rehabilitation provisions for nonlicensed

positions. R.C. 3319.39(E) and 3319.391(C).

{¶ 24} Based on the foregoing, the revisions to the background-check

statutes and corresponding administrative regulations did not substantially impair

the contractual relationship between Doe and CPS; they merely prevented Doe

from being able to meet the condition precedent of the contract.

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B. Retroactivity

{¶ 25} The Ohio Constitution also provides that the “general assembly

shall have no power to pass retroactive laws.” Section 28, Article II, Ohio

Constitution. A determination that a law is unconstitutionally retroactive involves

a two-step inquiry. If the statute is expressly retroactive and is substantive, as

opposed to merely remedial, the statute violates the proscription against

retroactive laws. State v. LaSalle, 96 Ohio St.3d 178, 2002-Ohio-4009, 772

N.E.2d 1172, ¶ 13.

{¶ 26} Doe asserts that the background-check legislation is

unconstitutionally retroactive. In Doe’s view, his vested right in continued

employment was impaired when the General Assembly enacted R.C. 3319.391

and caused nonlicensed school-district employees to be terminated from current

employment if a background check disclosed a criminal conviction that predated

the employment relationship.

{¶ 27} Doe’s contention notwithstanding, the background-check

legislation in R.C. 3319.391 is prospective in application. This legislation simply

imposed a new restriction on the school district regarding the qualifications of

persons it could employ after a specific date, with a focus on those persons who

have had felony convictions. This legislation does not go back to the date of the

employee’s initial hire, terminate that person effective as of the hire date, and

eliminate any of that person’s accrued benefits. Doe has not been deprived of any

pay, retirement credit, or other benefits he accrued during his tenure with CPS.

Instead, the conduct that the background-check legislation prohibits, i.e.,

continued employment after a disqualifying criminal-background check, occurs

only after the effective date of the statute, November 14, 2007.

{¶ 28} Even if we did consider the statute to be expressly retroactive, we

have already concluded in our contract-impairment analysis that R.C. 3319.391

does not impair, in Doe’s circumstances, any vested right to continued

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employment. In view of the foregoing, we conclude that R.C. 3319.391, as

expressed in H.B. 190, is not expressly retroactive, did not affect a vested right,

and thus does not violate the retroactive-law proscription in Section 28, Article II

of the Ohio Constitution.

IV. Conclusion

{¶ 29} Based on the above discussion, we conclude that as applied to

administrative-employment contracts entered into by school districts governed by

R.C. Chapter 124, R.C. 3319.391 and Ohio Adm.Code 3301-20-01 do not violate

the provision in Section 28, Article II of the Ohio Constitution that prohibits the

General Assembly from passing laws that impair the obligation of contracts.

Further, we conclude that R.C. 3319.391 does not violate the provision in Section

28, Article II of the Ohio Constitution that prohibits the General Assembly from

passing retroactive laws.

So answered.

LUNDBERG STRATTON, O’CONNOR, O’DONNELL, and LANZINGER, JJ.,

concur.

BROWN, C.J., and PFEIFER, J., concur in part and dissent in part.

__________________

LUNDBERG STRATTON, J., concurring.

{¶ 30} While I sympathize with Doe’s plight, the law is clear, and I

concur in the majority’s disposition of the two narrow legal questions certified to

us by the district court.

{¶ 31} Although we have resolved the federal court’s legal questions

under the Ohio Constitution, I believe that on remand the court may resolve this

case by resorting to the doctrine of relation back. Under this doctrine, “an act

done at a later time is, under certain circumstances, treated as though it occurred

at an earlier time.” Black’s Law Dictionary (8th Ed.1999) 1314. This doctrine

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applies to the amendments of pleadings, see Civ.R. 15(C), but I believe that it

should apply here in the interest of equity.

{¶ 32} The Ohio Department of Education had statutory authority to

formulate the rules to carry out the legislative intent of 2007 Sub.H.B. No. 190,

eff. Nov. 14, 2007 (“H.B. 190”). R.C. 3319.39(E). The department promulgated

Ohio Adm.Code 3301-20-03 to carry out the legislative intent of H.B. 190.

Unfortunately, Doe fell into the gap between enactment of the new law and the

department’s regulations in response to the 2007 statutory revisions. The parties

agree that had the 2009 regulation been in effect, Doe would have remained in his

position, because he had been rehabilitated. Thus, I believe that the regulation

should relate back to the statute’s enactment.

{¶ 33} Courts must give due deference to an agency’s interpretation and

implementation of the law. State ex rel. Saunders v. Indus. Comm., 101 Ohio

St.3d 125, 2004-Ohio-339, 802 N.E.2d 650, ¶ 41; Northwestern Ohio Bldg. &

Constr. Trades Council v. Conrad (2001), 92 Ohio St.3d 282, 289, 750 N.E.2d

130. Under such circumstances, the court should apply the subsequent regulation

to Doe’s contract in this case, which would allow him to continue his employment

but would also fulfill the overall intent of the law.

__________________

BROWN, C.J., concurring in part and dissenting in part.

{¶ 34} I agree with the majority that R.C. Chapter 124, R.C. 3319.391,

and Ohio Adm.Code 3301-20-01 do not violate the Contract Clause, Section 28,

Article II of the Ohio Constitution. However, I would hold that R.C. 3319.391

violates the prohibition against retroactive laws in Section 28, Article II of the

Ohio Constitution.

{¶ 35} Today the majority holds that a long-term school-district

employee—a person who has successfully turned his life around and has not been

in trouble for over 30 years—can be summarily fired based upon a new law that

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looks back to conduct that occurred prior to his employment. Contrary to the

majority’s assertions, Doe’s vested right to continued public employment

provided him with constitutional rights, which should not be summarily denied.

{¶ 36} Therefore, I respectfully dissent from the majority’s holding that

R.C. 3319.391 does not violate the prohibition against retroactive laws.

Facts

{¶ 37} According to the order certifying the questions to this court, Doe

was convicted 34 years ago for drug trafficking and spent three years in jail. That

conviction was expunged in 1997.

{¶ 38} Doe obtained a bachelor’s degree in 1983 and became a licensed

social worker and certified chemical-dependency counselor. The federal court

that is hearing this case found that Doe “has been a model citizen since being

released from jail.”

{¶ 39} Beginning in 1997, Doe spent five years working for the school

district as a drug-free-school specialist. Doe has since worked in an

administrative capacity as a hearing officer.

{¶ 40} R.C. 3319.391 was enacted, effective November 14, 2007, to

expand the categories of school-district employees who were required to undergo

criminal background checks. 2007 Sub.H.B. No. 190. Doe was among the

employees who were newly subject to background checks.

{¶ 41} However, the statute provided that any employee whose

background check revealed crimes requiring termination could avoid termination

if that person met rehabilitation standards adopted by the Department of

Education. R.C. 3319.391(C). Doe’s 1976 conviction made him subject to

termination, and under the then-existing regulations, the drug offense was a

nonrehabilitative offense. Former Ohio Adm.Code 3301-20-01(E)(1)(c) and

(A)(11), 2005-2006 Ohio Monthly Record 1261, eff. Sept. 23, 2005.

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{¶ 42} In July 2008, Doe signed a new employment contract with the

school district; the contract stated that Doe’s employment was “subject to

confirmation of appropriate state certification.” In November 2008, the school

district informed Doe that a background check had revealed his former felony and

that his employment was terminated.

{¶ 43} Subsequently, the Department of Education passed regulations that

would have permitted Doe to retain employment by demonstrating rehabilitation.

Ohio Adm.Code 3301-20-03 (eff. Aug. 27, 2009). Had this regulation been in

effect in November 2008, it is unlikely that Doe would have been fired.

{¶ 44} Doe’s termination was incongruous in that had the General

Assembly not passed R.C. 3319.391, Doe would not have been fired, and had the

Department of Education more quickly promulgated its rule regarding

rehabilitation (Ohio Adm.Code 3301-20-03), Doe would not have been fired. As

noted by the federal court, Doe is a model citizen, a person who turned his life

around in a remarkable and exemplary way. His life and experiences made him

uniquely qualified for his service to the school district. Yet because his

background check occurred during the gap between November 2007 (when R.C.

3319.391 was enacted) and August 2009 (when the Department of Education

finally promulgated the rule that would allow rehabilitation for Doe’s offense),

Doe was terminated.

{¶ 45} Doe filed suit in state court, alleging breach of contract and

violation of constitutional rights. The school district removed the case to federal

court. The federal court certified questions of state law to this court concerning

the constitutionality of certain state laws in effect at the time of Doe’s

termination. We accepted the questions.

Law and Analysis

{¶ 46} For the majority, the analysis of whether R.C. 3319.391 violates

the prohibition against retroactive laws begins and ends with Doe’s 2008

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employment contract. According to the majority, Doe did not have a vested right

to employment, because his 2008 contract was contingent on “ ‘confirmation of

appropriate state certification.’ ” Majority opinion at ¶ 18, quoting the

employment contract.

{¶ 47} In order to reach this result, the majority equates passing the

criminal background check required by R.C. 3319.391 with “confirmation of

appropriate state certification” under Doe’s employment contract. The majority

springboards from this proposition to the holding that Doe did not meet the

“condition precedent” in his employment contract and therefore had no “vested

right” to continued employment. Without such a right, the majority concludes,

the law is not unconstitutionally retroactive.

{¶ 48} I disagree with the majority’s conclusion that the contract makes

Doe’s employment conditional on a background check. The contract does not

clearly and unambiguously say that Doe would be subject to a background check

and that he could be fired based on the result. It says instead that his employment

is “subject to confirmation of appropriate state certification.” The phrase “state

certification” is ambiguous. In the context of a school-district employment

contract, “certification” could as easily mean “licensed,” since certain school-

district jobs require licenses. See R.C. 3319.22, describing “educator licenses.”

{¶ 49} Thus, the contract is ambiguous, at best, with regard to whether

passing a criminal background check equates to “confirmation of appropriate state

certification.” In contracts, we construe ambiguities against the proponent of the

instrument. Monnett v. Monnett (1888), 46 Ohio St. 30, 34-35, 17 N.E. 659.

“Any ambiguities in the document setting forth the rights and responsibilities of

each party must be construed against the drafter of the document. Otherwise the

nondrafter of the document may ultimately forfeit far more than he or she

reasonably contemplated at the time the agreement was signed.” Fletcher v.

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Fletcher (1994), 68 Ohio St.3d 464, 471, 628 N.E.2d 1343 (Resnick, J.,

dissenting).

{¶ 50} In light of the ambiguity, the court should not deprive Doe of his

vested right to continued employment. Instead, the court should hold the

ambiguity against the contract’s proponent—the school district—and hold that the

clause does not mean that the employee must pass a criminal background check.

{¶ 51} The majority next asserts that Doe’s satisfying R.C. 3319.391 was

an implied term of the employment contract because the statute was in effect

before the contract was executed. In other words, the majority holds that Doe

loses the ability to raise his otherwise viable constitutional right based upon terms

of the contract that were added to the contract by this court by implication.

{¶ 52} I cannot agree to so casually dispose of Doe’s constitutional claims

through the use of a legal artifice (contract terms implied in law).

{¶ 53} This is not a proper use of the court’s ability to supply implied

contractual terms. The court should imply terms to prevent injustice and to

conform the contract to the parties’ actual intent, but not to deprive a person of his

ability to enforce his constitutional rights. This is particularly true when, as here,

the terms being implied are from a newly passed law and would significantly alter

the contractual relationship between the parties. Accordingly, I would not find

that Doe’s satisfying R.C. 3319.391 was an implied term of his contract.

{¶ 54} The majority also states that R.C. 3319.391 is not retroactive

because it does not go back in time and terminate Doe from the date of his initial

hire or deprive him of pay and benefits that he previously acquired. But these

facts are irrelevant.

{¶ 55} What is relevant is that the new law required Doe’s termination

from employment based on his past conduct. We have held that laws are

unconstitutionally retroactive when they impair a vested right based upon prior

conduct. Smith v. Smith, 109 Ohio St.3d 285, 2006-Ohio-2419, 847 N.E.2d 414, ¶

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6. The principle is that a law cannot add new burdens to rights that are presently

lawfully enjoyed, based upon events that occurred in the past. R.C. 3319.391 is

such a statute.

{¶ 56} R.C. 3319.391 applies retroactively by its own terms. The statute

applies to new and current employees alike and instructs that an employee whose

background check discloses a proscribed felony “shall be released from

employment.” R.C. 3319.391(C).

{¶ 57} Our caselaw establishes that public employees, like Doe, have a

vested right to continued employment. Ohio Assn. of Pub. School Emps.,

AFSCME, AFL-CIO v. Lakewood City School Dist. Bd. of Edn. (1994), 68 Ohio

St.3d 175, 176, 624 N.E.2d 1043. And where, as here, that vested right is

impaired by a new law requiring the employee’s termination based on the

employee’s prior conduct, the law is unconstitutionally retroactive.

Conclusion

{¶ 58} For the foregoing reasons, I would hold that R.C. 3319.391

violated the constitutional prohibition against retroactive laws. Accordingly, I

dissent from the majority’s holding that R.C. 3319.391 does not violate the

prohibition against retroactive laws.

PFEIFER, J., concurs in the foregoing opinion.

__________________

Dinsmore & Shohl, L.L.P., Christopher R. McDowell, Kimberly Beck,

and Sarah Sparks Herron, for petitioner.

Taft, Stettinius & Hollister, L.L.P., Mark J. Stepaniak, and Daniel J.

Hoying, for respondents Mary Ronan and Cincinnati Public Schools.

Richard Cordray, Attorney General, Benjamin C. Mizer, Solicitor General,

David M. Lieberman, Deputy Solicitor, Mia T. Meucci, Assistant Solicitor, and

Amy Nash Golian and Todd R. Marti, Assistant Attorneys General, for

respondent Ohio Department of Education.

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January Term, 2010

Carrie L. Davis, in support of petitioner for amicus curiae American Civil

Liberties Union of Ohio Foundation, Inc.

Christina M. Royer, Ltd., and Christina M. Royer; and Cynthia McGrae,

in support of petitioner for amici curiae Ohio Employment Lawyers Association,

Legal Aid Society of Cleveland, and Towards Employment, Inc.

______________________

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