The opinion
Krupansky, J.,
dissenting. I do not comment on the previous decision rendered by the visiting panel sitting on this court on October 27, 1983. I do, however, feel it is my duty to respectfully dissent from the majority opinion since I am a member of this panel.
Civ. R. 56(C) sets forth the standard for granting a summary judgment; it provides in pertinent part:
“The adverse party prior to the day of hearing may serve and file opposing affidavits. Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
No evidence or stipulation may be considered except as stated in this rule.
A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor.” (Emphasis added.)
The purposes of summary judgment are: the elimination of frivolous lawsuits and the clogging of the courts’ dockets' by the expeditious disposal of lawsuits which do not present substantial questions for determination at trial. See
Washington County Farm Assn.
v.
B. & O.
(1972), 31 Ohio App. 2d 84 [ 60 O.O.2d 174 ], and
North
v.
Penn. Rd. Co.
(1967), 9 Ohio St. 2d 169 [ 38 O.O.2d 410 ]. The granting of summary judgment in favor of appellees in the case
subjudice
clearly fulfills the purposes of summary judgment.
Two of the ways by which the school board can relieve an individual from employment are: (1) non-renewal pursuant to Article 9.2 of the parties’ collective bargaining agreement and R.C. 3319.11 which is not subject to the arbitration provision in the collective bargaining agreement; and (2) non-renewal due to a reduction in force (“RIF”) pursuant to Article 11 of the parties’ collective bargaining agreement which is subject to the arbitration provision in that agreement.
The appellees provided substantial evidence in the documents attached to their motion for summary judgment to establish appellant was non-renewed in accordance with R.C. 3319.11. R.C. 3319.11 requires the following procedures and states in pertinent part:
“A teacher eligible for continuing contract status employed under an additional limited contract for not to exceed two years pursuant to written notice from the superintendent of his intention to make such recommendation, is, at the
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expiration of such limited contract, deemed re-employed under a continuing contract at the same salary plus any increment granted by the salary schedule,
unless the employing board, acting on the superintendent’s recommendation as to whether or not the teacher should be reemployed, gives such teacher written notice of its intention not to re-employ him on or before the thirtieth day of April. ”
(Emphasis added.)
In the case
sub judice
the school board acted in accordance with the provisions set forth in R.C. 3319.11 as evidenced by the materials attached to appellees’ motion for summary judgment. Richard Mueller, the Superintendent of the Polaris Joint Vocational School District, informed appellant in writing he would recommend the non-renewal of her limited contract at the April 13, 1982 board of education meeting. The certified minutes of the Board of Education of the Polaris Joint Vocational School District show appellant’s name appeared in the list of employees who were non-renewed pursuant to R.C. 3319.11 without explanation. The minutes also indicate other employees’ continuing contracts were suspended “for reasons of declining enrollment and other related factors.” Donald E. McElrath, treasurer of the board of education, provided an affidavit in which he stated he sent a notice of non-renewal to appellant of her limited contract on April 14,1982 in accordance with R.C. 3319.11. Thus, all provisions of R.C. 3319.11 had been met pursuant to non-renewal of appellant’s contract.
Appellant has continually maintained she was non-renewed under Article 11 due to RIF
5
and, thus, is entitled to arbitrate her grievance. However, appellant has failed to raise a genuine issue of material fact that she was RIF in her brief in opposition to appellees’ motion for summary judgment and the attached documents. Appellant attached three documents to her brief in opposition to the motion for summary judgment:
viz.,
(1) a news release; (2) a memo from the civil service commission; and (3) appellant’s own affidavit stating what Dr. Charlette Nealeigh and Kenneth Collier allegedly told her concerning the non-renewal of her contract.
The court can consider neither the (1) press release nor (2) the memo from the civil service commission since they fail to comply with those items listed in Civ. R. 56(C),
i.e.,
the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case and written stipulations of fact, and only these items can be considered by the court in ruling on a motion for summary judgment.
Appellant’s affidavit is a self-serving declaration which would be inadmissible evidence at trial.
Banick
v.
Indus. Comm.
(1941), 71 Ohio App. 421 [ 26 O.O. 354 ];
Indus. Comm.
v.
Simpson
(App. 1934), 17 Ohio Law Abs. 580 . Appellant’s best evidence would have been Nealeigh’s and Collier’s signed affidavits. However, even Nealeigh’s and Collier’s signed affidavits would have constituted insufficient evidence since appellant failed to cite any statutory or other authority which establishes that Collier’s and Nealeigh’s comments were official statements which would impede, alter or overrule the board of education’s action. While Nealeigh and Collier were entitled to exercise their First Amendment right to free speech and to express their opinions on the matter, if in fact they did, only the duly elected school board had the authority to non-renew school district employees' contracts. Furthermore, the firing of employees is not an easy task at best and, when buttonholed, other employees may make certain statements to avoid embarrassment. In short, the quality of appellant’s evidence is nil. The documents attached to her brief in op
*69
position to the motion for summary judgment demonstrate appellant has failed to raise a genuine issue of material fact.
Thus, when we consider all the materials the trial court is permitted to consider in the case
sub judice
under Civ. R. 56(C), it is clear appellant cannot prove she was RIF. Even if appellant could establish an RIF occurred at the same time she was non-renewed appellant could not prove she was part of that RIF. In its journal entry the trial court stated:
“Tye does not challenge the non-renewal of her limited contract in this action. Rather, Plaintiff challenges the Board’s failure to place her on a recall list as part of a planned reduction in force.”
Appellant has defied the very roots of the board’s statutory authority, but has failed to override its actions by attaching any reliable, official, competent or authoritative material of her own to raise a material issue of fact. Therefore, appellees are entitled to a summary judgment; there is no issue of material fact in the case
sub judice
and there is no way appellant can possibly prove what the majority of this panel contends.
5
Reduction in force.