# Ash v. Board of Review

> Ohio Supreme Court · August 25, 1986 · 26 Ohio St. 3d 158

URL: https://www.frixlaw.com/law-library/cases/6759523

## Case

- **Full name:** Ash v. Board of Review, Ohio Bureau of Employment Services
- **Court:** Ohio Supreme Court
- **Decided:** August 25, 1986
- **Citations:** 26 Ohio St. 3d 158; 26 Ohio B. 136; 497 N.E.2d 724; 1986 Ohio LEXIS 760
- **Precedential status:** Published
- **Opinion:** Concurrence by Celebrezze
- **Judges:** Brown, Celebrezze, Douglas, Eighth, Holmes, Locher, Parrino, Sweeney, Wright
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6759523

## Opinion text

Celebrezze, C.J.,
concurring. Our reversal of the judgment below is clearly justified because a full-time teacher, whose contract is not renewed at year’s end for the upcoming school year and whose only assurance of reemployment is an agreement with the school board to be placed on a substitute teacher list for the next school year, does not have a “reasonable assurance” of employment in the upcoming academic year and therefore may not be denied unemployment benefits over the summer months pursuant to R.C. 4141.29(1) and Sections 3304(a)(6)(A)(i) and (ii), Title 26, U.S. Code. A contrary holding would provide that classroom teachers, whose full-time contracts are validly terminated, could not receive summer unemployment benefits where the discharging schools placed the fired teachers on substitute teaching lists. 4
I write additionally to further explain and amplify today’s decision. The “hiring” notice sent to Ms. Ash by the school board’s treasurer advised her that “[y]ou will be on call as needed and as determined by the Board of Education.” 5 The substitute teaching agreement did not con *165 stitute a “reasonable assurance” of employment even if these two very dissimilar positions are viewed as similar. In fact, the “contract” entered into did not guarantee nor even promise that appellant would ever receive any employment or remuneration. 6
At best, Ash had a hope of being called in as a substitute teacher on a day-to-day basis. Other jurisdictions have also held that such teachers are eligible for unemployment benefits 7 and, contrary to appellees’ contention, such a result is consistent with the federal Act. Representative of this better view is the decision in Sulat v. Bd. of Review (1980), 176 N.J. Super. 584, 589-590 , 424 A. 2d 451, 453-454 , which, in construing federal law and New Jersey’s comparable statute, stated:
“Claimant here lost full-time employment; she should not be denied unemployment benefits because the school board relegated her to the uncertain status of a day-to-day substitute against her will, despite her clearly expressed desire to find full-time employment in education or, if necessary, elsewhere in the economy. This case is in vivid contrast to the many cases standing for the proposition that a substitute teacher has a disqualifying ‘reasonable assurance’ of employment if substitute teaching will be available in the succeeding year. * * *
<<* * * [F]ull-time teachers under annual contract are not disqualified because, after lay-off, they are offered substitute teaching work. We conclude that ‘services in any such capacity’, [see Section 3304(a)(6)(A)(i), Title 26,, U.S. Code, and Ohio R.C. 4141.29(I)(2)] in the circumstances, contemplates continuation of full-time services under an annual contract, not an offer of eligibility for day-to-day substitute services. We find this result fully consistent with the policy of our Unemployment Compensation Law and the federal act to ameliorate the impact of involuntary unemployment upon the employees and the general public as well.”
Lastly, since appellant’s interpretation of Ohio’s Act is correct and has been held not to conflict with federal law, the General Assembly’s goal of conforming state law to the federal Act is fulfilled.
In Leissring v. Dept. of Industry (1983), 115 Wis. 2d 475, 492-493 , 340 N.W. 2d 533, 541 , the Supreme Court of Wisconsin recognized the potential for abuse resulting from appellees’ statutory construction: “* * * [A] school district could easily avoid the payment of unemployment compensation benefits during an intervening summer period by simply offering a teacher who previously had a contract for fulltime employment a de minimus contract to teach only one hour per day, or the possibility of substitute teaching with no guarantee of steady employment or a regular source of income. To allow an employer the opportunity to avoid liability for unemployment compensation benefits by merely offering some possibility of employment, no matter how minimal, creates the potential for abuse and is contrary to the general purpose of [the statute].”
The limited teacher’s contract sent to Ash described the offer as follows:
“Substitute Teacher to work as needed as determined by the Board of Education.”
In Leissring, supra, at 489-490 , 340 N.W. 2d at 539-540 , the Wisconsin court articulated important reasons to allow benefits in such cases and also recognized the absurd and unreasonable results that appellees’ interpretation would lead to:
“A teacher previously employed fulltime who becomes unemployed at the end of an academic year, and whose only employment prospect for the following year is a substitute teaching position involving no guaranteed hours or wages * * * is immediately confronted with a potential need to find alternative means of economic support. In addition, that individual may need to seek another teaching position in a severely restricted job market. If the teacher wants to secure another fulltime position for the next academic year, he or she must utilize the summer months for this job search, and will need economic aid for this purpose as well. This teacher is confronting a far different situation than the teacher who can look forward to resuming his or her fulltime employment in the fall. If the latter individual seeks unemployment compensation benefits over the summer period, it is possible that he or she is merely seeking a subsidized summer vacation, which * * * [the statute] is intended to prevent. The former teacher, who is unemployed at the end of the year, and realistically may remain unemployed in the fall, is not seeking benefits simply because he or she wants a subsidized summer vacation. Such benefits would likely be needed to meet current and future living expenses and to defray the expenses of seeking new employment. These are precisely the type of circumstances for which unemployment compensation has traditionally been intended. It is unreasonable to assume that this need for unemployment compensation benefits will not arise until the summer period ends.”
Arguably, this agreement could be viewed as an illusory promise; that is, the school system merely agreed to call Ash “for a substitute job if we want to.” See 1 Restatement of the Law 2d, Contracts (1981) 194, Section 77; Andreoli v. Brown (1972), 35 Ohio App. 2d 53, 55 [ 64 O.O.2d 173 ], In such cases, “[t]he consideration is to be tested by the agreement, and not by what was done under it.” Strong v. Sheffield (1895), 144 N.Y. 392, 396 , 39 N.E. 330, 331 . Hence, it would be of no significance whether a school board actually called regarding a substitute job the following fall.
E.g., Fort Wayne Community Schools v. Review Bd. (Ind. App. 1981), 428 N.E. 2d 1379 ; Johnson v. Independent School Dist. No. 535 (Minn. 1980), 291 N.W. 2d 699 ; Leissring v. Dept. of Industry (1983), 115 Wis. 2d 475 , 340 N.W. 2d 533 ; Mallon v. Employment Div. (1979), 41 Ore. App. 479 , 599 P. 2d 1164 ; Sulat v. Bd. of Review (1980), 176 N.J. Super. 584 , 424 A. 2d 451 , followed in Charatan v. Bd. of Review (1985), 200 N.J. Super. 74 , 490 A. 2d 352 ; cf. Kelly v. Employment Div. (1985), 74 Ore. App. 69 , 701 P. 2d 448 ; Whitley v. Bd. of Review (1983), 116 Ill. App. 3d 476 , 451 N.E. 2d 942 .

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6759523. Public record. Not legal advice.