# State ex rel. Remley v. Board of Education

> Ohio Court of Appeals · June 1, 1990 · 4 Ohio App. Unrep. 121

URL: https://www.frixlaw.com/law-library/cases/6708168

## Case

- **Full name:** State, ex rel. Remley v. Board of Education
- **Court:** Ohio Court of Appeals
- **Decided:** June 1, 1990
- **Citations:** 4 Ohio App. Unrep. 121
- **Precedential status:** Published
- **Opinion:** Dissent by Smart
- **Judges:** Hoffman, Milligan, Smart
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

SMART, J.,
dissenting
I dissent.
Revised Code §3319.11 states in pertinent part:
"The superintendent may recommend reemployment of such teacher, if continuing service status has not previously been attained elsewhere, under a limited contract for not to exceed two years, provided that written notice of the intention to make such recommendation has been given to the teacher with reasons directed at the professional improvement of the teacher on or before the thirtieth day of April, and provided that written notice from the board of education of its action on the superintendent's recommendation has been given to the teacher on or before the thirtieth day of April, but upon subsequent re-employment only a continuing contract may be entered into. If the board of education does not give such teacher written notice of its action to the superintendent'srecommendation of a limited contract for not to exceed two years before the thirtieth day of April, such teacher is deemed re-employed under a continuing contract at the same salary plus any increment provided by the salary schedule.."
The majority finds that R.C. 311.01 "clearly" permits the Board to delegate the duty outlined in 3319.11 to the superintendent. I am not persuaded that the superintendent may perform this duty for the Board.
In my view, the statutory scheme devised by the legislature provides that the superintendent make the recommendation to the Board; the Board makes the final decision. The Board must then notify the teacher of its decision. For the same person to give the recommendation and the notice is a conflict of interest based upon the statutory duties and a violation of the clear *124 wording of the statute I think the Board may no more delegate the duty of notification than it may delegate the duty of deciding whether to award the continuing contract.
The majority cites the case of State, ex rel. Harper v. Board of Education (1966), 7 Ohio St.2d 49 , as authority for its holding that the Board may delegate to the superintendent the sending of the statutory notice I find Harper inapplicable.
The Supreme Court in Harper held:
"The board of education of a local school district has authority to employ an executive head and delegate to him the duty of carrying out the policy decisions of the board as well as certain ministerial duties, such as the receiving of the county superintendent's recommendations on the re-employment of teachers and the sending of written notices to teachers that they will not be re-employed." (Sections 3319.02 and 3319.11 of the Revised code construed.)
Syllabus by the Court.
In Harper, the Board of Education employed an executive head to perform certain duties. Appellee has incorrectly asserted that this executive head was just a superintendent by another name. The facts in Harper were that there was both an executive head, and also a superintendent. The duties to recommend and to notify were not delegated to the same person in Harper.
In the case of State, ex rel. Lee v. Board of Education (1985), 17 Ohio St.3d 124 , decided some nine years after Harper, our Supreme Court held that where a teacher is not given written notice, pursuant to statute, that the superintendent intends to recommend that she not be awarded a continuing contract, then the recommendation is effective and the teacher has a statutory right to the continuing contract. In Lee, it was undisputed that the teacher did have actual notice of the superintendent's intentions, including written materials. The Supreme Court's holding in Lee directs us that "substantial compliance" is not sufficient; there must be strict compliance with the statutory schema
If the teachers must follow the statutory rules for appeals to "survive," then it is only fair for the same responsibility to fall on the Board of Education to do its required steps in the procedure.
I would overrule the assignment of error and affirm the trial court's decision.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6708168. Public record. Not legal advice.