involving asserted defenses of “estoppel and laches” to bar a claim
How later courts described this case
- involving asserted defenses of “estoppel and laches” to bar a claim
- “Silence or inaction alone will not constitute a knowing and voluntary waiver of rights unless one is under an obligation to speak or act.”
Written by the judges who cited it.
The opinion
Wright, J.,
dissenting. I disagree with the majority’s conclusion that a writ of mandamus is appropriate in this case. Accordingly, I respectfully dissent.
The dispositive issue here is whether respondent board of education had a legal duty to place relator at step four when she was reemployed for the 1979-1980 school year. This issue essentially depends on whether the board was obligated at that time to give relator a full year of credit for a prior year during which she had worked one hundred five days in another Ohio school district, and for which she had previously been given credit by the board.
Regarding Madden’s initial employment by respondent, there is agreement on two points: (1) when Madden was originally hired in 1968, the board was not required by R.C. 3317.13 to credit her with a full year of service because she had not taught for one hundred twenty days the year before; and (2) while the board was not statutorily obligated to grant this credit to Madden, it had the discretion to do so under R.C. 3317.14.
When Madden was hired for the 1968-1969 school year the board placed her at step one, thereby crediting her with a full year of service. From that point on the board may have been obligated to continue to give her credit for the prior year while her employment continued, though that issue is, of course, not before us today. In any event, Madden was placed at step two for the 1969-1970 school year, and at step three for the 1970-1971 school year.
Madden resigned her position effective March 12, 1971, and she was not employed for school years 1971-1972 through 1978-1979, inclusive. When the board rehired Madden in 1979, it was obligated under R.C. 3317.13 to credit her with three years of prior service, i.e., 1968-1969 to 1970-1971, inclusive. At that point the board was no longer obligated to give a full year of credit for the earlier one hundred five days of service. In continuing contract cases this court has consistently recognized that resig *92 nation constitutes a waiver of entitlements. See, e.g., State, ex rel. Brubaker, v. Hardy (1966), 5 Ohio St. 2d 103 , 34 O.O. 2d 225, 214 N.E. 2d 79 ; State, ex rel. Ford, v. Bd. of Edn. (1943), 141 Ohio St. 124 , 25 O.O. 241 , 47 N.E. 2d 223 . Thus, Madden waived any right she had to have the earlier one hundred five days count as a full year.
Accordingly, when the board rehired Madden in 1979, it was solely within the board’s discretion whether to again grant her a full year of credit for that earlier time. It is axiomatic that mandamus will not lie to compel the board to perform this discretionary act, and the majority errs in its decision in this case.
Moyer, C.J., concurs in the foregoing dissenting- opinion.