TOM F. ELSASS, PLAINTIFF-APPELLEE, CROSS-APPELLANT, v. ST. MARYS CITY SCHOOL DISTRICT BOARD OF EDUCATION, DEFENDANT-APPELLANT, CROSS-APPELLEE.
CASE NO. 2-10-30
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT AUGLAIZE COUNTY
April 18, 2011
2011-Ohio-1870
Appeal from Auglaize County Common Pleas Court Trial Court No. 2010 CV 0199 Judgment Affirmed in Part, Reversed in Part and Cause Remanded
Brian L. Wildermuth and James K. Stucko, Jr. for Appellant/Cross-Appellee
Christine A. Reardon and Bethany German Ziviski for Appellee/Cross-Appellant
{¶1} Defendant-Appellant, St. Marys City School District Board of Education (“St. Marys” or “the Board“), appeals the judgment of the Auglaize County Court of Common Pleas reviewing St. Marys’ decision to terminate the teaching contract of Plaintiff-Appellee, Tom F. Elsass (“Elsass“). St. Marys argues that the trial court erred when it modified the termination order to award Elsass eight months of back pay even though it affirmed his termination for lewd behavior. Cross-Appellant Elsass, however, claims that the trial court committed reversible error when it failed to reinstate him to his teaching position with Cross-Appellee St. Marys. For the reasons set forth below, the judgment is reversed in part and affirmed in part.
{¶2} Prior to his termination, Elsass had been a mathematics teacher for thirty-four years and had worked for St. Marys’ for approximately twenty years. Elsass was employed at Memorial High School under a continuing service contract. On September 11, 2009, the Board passed a resolution to initiate termination proceedings after Elsass was charged with public indecency and voyeurism following an incident that occurred during a school sporting event.
{¶3} On the evening of September 3, 2009, Elsass and his family traveled to watch his daughter play varsity volleyball for St. Marys at the Elida field house. Meanwhile, William Koontz (“Koontz“) and his six-year-old daughter were
{¶4} When the police arrived, Koontz described the man and what he had observed. Based upon Koontz‘s description, the police officers located Elsass inside the field house and asked him to step outside for questioning. Koontz confirmed that Elsass was the man he had seen.
{¶5} Elsass, however, vehemently denied that he had been doing anything improper. He claimed that he was outside by his car talking with his wife and two friends between volleyball matches. He remained by his car after the women returned to the game in order to smoke a cigarette. Elsass stated that he then noticed that he had a wet spot on his shorts. He had gone to the restroom prior to coming outside and Elsass claimed that he had long suffered from a problem
{¶6} The following day at school, the school superintendent obtained a police report from the Allen County Sheriff‘s Department and met with Elsass after classes. At that meeting, Elsass was informed that he was facing criminal charges based upon the allegations that had been made by Koontz the night before. Elsass was given the choice of either resigning or being fired. Being confronted with only those two options, Elsass originally stated that he would resign and retire.
{¶7} However, Elsass did not resign, contending that being forced to do so without being given an opportunity to respond to the charges was a violation of his due process rights. St. Marys then scheduled two meetings to provide Elsass an opportunity to respond to the charges. Elsass did not appear at either meeting
{¶8} On September 11, 2009, the Board met and passed a resolution to initiate termination proceedings and to suspend Elsass without pay during the pendency of the termination proceedings. (Resolution No. 141-09, Joint Ex. 1.) Specifically, the board resolved that the following facts gave rise to good and just cause for termination:
- On September 3, 2009, Mr. Elsass was observed masturbating while standing in a parking lot at Elida Local Schools in Elida, Ohio.
- On September 3, 2009, Mr. Elsass was observed masturbating while standing in a parking lot at Elida Local Schools in Elida, Ohio, while looking at a group of girls.
- On September 4, 2009, Mr. Elsass was summoned and charged with public indecency (
O.R.C. 2907.09 ) and voyeurism (O.R.C. 2907.08 ) for the conduct referred to in paragraphs 1 and 2 above.
(Id.)
{¶9} After receiving notice of the Board‘s resolution, Elsass requested a hearing before a neutral referee pursuant to his rights under
{¶10} At the hearing, Koontz testified about the events he claimed he and his daughter witnessed in the parking lot. Deputy John Chiles from the Allen County Sheriff‘s Department also testified as to his investigation of the incident that evening and about what he observed when he questioned Koontz and Elsass. Deputy Chiles testified that Elsass originally told him that he had not left the field house. The deputy also testified that Elsass appeared nervous and that “[w]ith my experience,1 how Mr. Elsass was acting, it appeared that he was hiding something that he didn‘t want me to know.” (Mar. 4, 2010 Tr., p. 57.) Deputy Chiles’ police report also stated that while he was questioning Koontz, the young daughter “was making masturbation gestures” and indicated “that guy was doing this.” (Sep. 3, 2009 Supplemental Offense Report).
{¶11} On cross-examination, Elsass’ lawyer questioned Koontz about several matters pertaining to his credibility, including a domestic violence call, a criminal charge, and the fact Koontz had been terminated from his position as a Special Deputy to the Allen County Sheriff‘s Office for obstructing official business. Elsass claims that Koontz was unreliable and his credibility was questionable. Under cross-examination, Deputy Chiles acknowledged that Elsass’
{¶12} Elsass then testified as to his version of the events that evening. While many of the facts that Koontz and Elsass testified to were not in dispute, their stories differed dramatically as to whether Elsass was masturbating, with his penis exposed, or merely “flapping” his pants to dry a wet spot on his pants. Also, Elsass denied ever seeing or hearing Koontz yell and come towards him; he claims he just finished his cigarette, rubbed the wet spot off of his pants, and returned to the field house.
{¶13} In addition to testimony from Elsass and his wife, Elsass’ attorney called fourteen character witnesses, including Elsass’ pastor, members of his church, many long-time friends and neighbors, parents of children Elsass had taught, a school secretary, and some professional colleagues. These witnesses testified as to Elsass’ good character, his excellent reputation in the community, his truthfulness, and his numerous unselfish, charitable, and civic-minded deeds and activities. Many of Elsass’ witnesses also testified about what a dedicated and outstanding teacher Elsass was and how much his students liked him and learned from him. The referee noted, however, that only one of the fourteen character
{¶14} Elsass also personally testified about his education, his teaching experience, his church and community activities, and his professional accomplishments and accolades. When Elsass began introducing performance reviews from the 1980‘s from a different school district, St. Marys’ attorney objected as to the relevancy of this material, arguing that Elsass’ performance as a teacher was not being questioned. He stated that Elsass’ termination was based upon the sole issue of whether or not he had masturbated in the school parking lot on September 3, 2009.
{¶15} Elsass’ attorney argued that “just cause” was bigger than what happened that night and that it required looking at a teacher‘s entire history. After a discussion of the matter, the referee sustained the objection but allowed Elsass’ attorney to proffer approximately thirty exhibits pertaining to Elsass’ achievements in mathematics and education that they would have submitted. St. Marys’ also proffered six exhibits showing that Elsass had been disciplined several times for unethical behavior and unprofessional conduct. The parties filed post-hearing briefs for the referee‘s consideration.
{¶16} On April 23, 2010, Referee Amick issued a detailed twenty-page “Findings of Fact” reviewing the undisputed facts, the disputed issue, the salient
Thus, in order to resolve this sole issue, this Referee must review, dissect, analyze and carefully consider the salient testimony, and ultimately determine which testimony is believable, and what facts are more likely to have occurred. In essence, such determination rests solely upon a determination of which of the witnesses this Referee finds, by a preponderance of the evidence, to be more credible.
(Referee‘s Findings of Fact, p. 4.)
{¶17} In his final analysis, the referee concluded that the greater weight and credibility should be afforded to the testimony of Koontz. Koontz did not know Elsass before that evening and had nothing to gain by the outcome of the proceedings. The referee “did not discern a scintilla of evidence to discern a motive which would cause Koontz to fabricate a story involving Elsass’ actions.” (Id. at p. 18.) In contrast, the referee found that Elsass’ own self-interests provided a motivation to fabricate his testimony and that “Elsass’ rendition of the facts evokes more questions than it provides plausible explanation.” Id. Referee Amick‘s conclusion stated that the findings of fact supported the Board‘s decision to terminate Elsass’ teaching contract for good and just cause.
{¶19} Pursuant to his rights under
{¶20} On August 23, 2010, the trial court filed its judgment entry affirming the Board‘s termination of Elsass. The trial court found that the Board had followed the appropriate procedures and that Elsass’ claims that he was denied due process were overruled.
{¶21} As to Elsass’ claims that the decision to terminate him was against the weight of the evidence, the trial court stated:
This court cannot replace its judgment for that of the finder of fact who saw and listened to the witnesses and had the advantage of being able to weigh the evidence in light of the
manner of testifying and all of those factors that triers of fact use to determine credibility of the witnesses and what weight to give to the testimony. [Elsass‘] argument concerning the evidence not supporting that finding is not in accordance with established law and is rejected. *** Masturbating in public, as found by the hearing officer, warrants termination.
(Aug. 23, 2010 J.E. Decision on Merits and Judgment, Vol. 182, p. 644.) However, the trial court also noted that the referee‘s decision was based upon a “marginally thin” determination of the factual issues. Id.
{¶22} The trial court also reviewed Elsass’ complaints that the referee should have considered Elsass’ past record as a teacher and the materials that were proffered but not admitted. The trial court determined that this was an error, but it was a “harmless error” (pursuant to
{¶23} However, due to the close determination of the evidence and upon consideration of Elsass’ thirty-four year teaching record, the trial court held that a “modification of the Order of the Board will do more complete justice.” (Id. at p. 644.) Therefore, the trial court modified the Board‘s order and allowed for Elsass’ to receive back pay and benefits from the time of his suspension through the May 12th date of termination. (Id.)
{¶25} St. Marys sets forth the following two assignments of error in its appeal.
St. Marys’ First Assignment of Error
The trial court erred in awarding back pay while, at the same time, affirming the Order terminating the teacher‘s contract for good and just cause.
St. Marys’ Second Assignment of Error
The trial court erred in modifying the Board‘s Order suspending the teacher without pay where the statute does not permit review of that Order.
{¶26} In his cross-appeal, Elsass raises the following assignment of error for our review.
Elsass’ Cross-Assignment of Error
The trial court committed reversible error when it failed to reinstate Tom Elsass to his teaching position with full back pay and benefits.
{¶27} We will first address Elsass’ cross-appeal, in which he claims that the trial court committed reversible error when it affirmed the Board‘s decision to terminate his contract. Within his assignment of error, Elsass raises multiple issues that he claims require the reversal of the trial court‘s decision, including: (1) whether the law requires a consideration of a teacher‘s past employment history, even if the alleged misconduct was not related to performance; (2) whether the trial court utilized the correct standard of review; (3) whether the trial court abused its discretion in concluding that the weight of the evidence supported termination; and, (4) whether the trial court erred in finding that the Board did not violate Elsass’ due process rights.
{¶28} The Ohio Teacher Tenure Act, contained in
{¶29} Before terminating a contract, the employing board must furnish the teacher with a written notice of its intention to terminate the contract containing the grounds for action. Id. The teacher may then file a written demand for a hearing “before the board or before a referee.”3 Id. A board may suspend a teacher pending final action to terminate the teacher‘s contract if the board believes that the character of the charges warrants such an action. Id.
{¶30} If a hearing is conducted by a referee, the referee must file a report. After considering the referee‘s report, “the board, by a majority vote, may accept or reject the referee‘s recommendation on the termination of the teacher‘s contract.” Id. When the hearing has been conducted by a referee, a board must accept the referee‘s findings of fact, unless they are against the greater weight or preponderance of the evidence. Aldridge v. Huntington Local School Dist. Bd. of Edn. (1988), 38 Ohio St.3d 154, 527 N.E.2d 291, at paragraph one of the syllabus. However, the school board has the discretion to accept or reject the referee‘s
{¶31} A teacher whose contract has been terminated may appeal the board‘s decision to the local court of common pleas by filing a complaint against the board, alleging the facts “upon which the teacher relies for a reversal or modification of the order of termination of contract.”
{¶32} After the hearing, the trial court shall “grant or deny the relief prayed for in the complaint as may be proper in accordance with the evidence adduced in the hearing.” Id. Either the teacher or the board may appeal from the court of common pleas’ decision. Id.
{¶33} Our appellate review of the trial court‘s decision in this special proceeding is “extremely narrow” and “strictly limited to a determination of whether the common pleas court abused its discretion.” See James v. Trumbull Cty. Bd. of Edn. (1995), 105 Ohio App.3d 392, 396, 663 N.E.2d 1361. “Absent an abuse of discretion, an appellate court may not engage in what amounts to a substitution of the judgment of the common pleas court.” Id. “Therefore, appellate courts must take great care in applying the abuse of discretion standard,
Elsass’ First Issue: The trial court abused its discretion when it held that the referee‘s error of excluding evidence regarding Mr. Elsass’ teaching career was harmless.
{¶34} In Elsass’ first issue, he claims that “Ohio law mandates that a board of education must first consider the teacher‘s employment record before imposing the sanction of termination.” (Cross-Appellant‘s Brief, p. 10.) Elsass complains that the failure to consider his teaching record impacted the issue of mitigation; affected the referee‘s credibility determination; and was central to the question of whether he committed the act with which he was charged. Therefore, he maintains that the trial court erred when it determined that the omission of Elsass’ proffered documents concerning his teaching career was only a “harmless error.” We find that Elsass’ arguments concerning this issue fail for several reasons.
{¶35} First, in this case, Elsass’ teaching record did not have anything to do with the ultimate issue in this case, i.e., did he masturbate in public at a school event. The cases that Elsass cites wherein courts held that it was an error to
{¶36} In another case, where the teacher was being disciplined for falsifying a sick leave statement, the board had a choice of either suspending or terminating the teacher. Katz v. Maple Hts. City School Dist. Bd. of Edn. (1993), 87 Ohio App.3d 256, 264, 622 N.E.2d 1. The school board ignored the referee‘s recommendation to only suspend the teacher and further ignored the teacher‘s record demonstrating that she was an effective teacher, was well-respected, had no prior disciplinary infractions, and was under severe emotional pressure at the time of the offense. Id. The Eighth District Court of Appeals held that “where *** the relevant statutory provisions and the teaching contract itself provides for a range of possible sanctions for a particular offense, it is necessary that a superintendent take into account a teacher‘s employment record prior to recommending a
{¶37} Furthermore, we find that there was extensive evidence before the referee concerning Elsass’ competence as a mathematics teacher, his record in the school system, and his teaching abilities in mathematics. Elsass himself testified at length about his educational experience and accomplishments. There was also testimony concerning his teaching skills from numerous character witnesses. The additional materials that Elsass wanted to admit were generally dated, irrelevant, and cumulative.4 The documents would not have provided any new information concerning Elsass’ credibility, his competence as a teacher, or whether or not he masturbated in the parking lot. Furthermore, the trial court, which was entitled to view additional evidence, did look at the proffered documents and determined that their exclusion had not caused any prejudice to Elsass.
{¶39} Elsass’ claim that it was a reversible error for the referee to exclude the proffered records of his teaching career fails for several reasons. Although the trial court found that the exclusion was a “harmless error,” we find that the referee and the trial court had already reviewed considerable evidence pertaining to
Elsass’ Second Issue: The trial court committed reversible error when it applied an improper standard of review.
{¶40} In his second issue, Elsass claims that the trial court erred when it gave deference to the referee‘s report and findings of fact. Elsass argues that, because the trial court allegedly found that “the facts in the record could have just as easily led to a finding that Mr. Elsass did nothing wrong,” the court should have held additional hearings to weigh the evidence, determine the credibility of witnesses, and render its own factual determinations. (Cross-Appellant‘s brief, p. 13.) Elsass claims that the trial court abused its discretion when it found that the weight of the evidence did not support the referee‘s findings, “yet deferred to those findings despite their clear error.” (Id. at p. 21)
{¶41} We find that Elsass’ arguments concerning this issue are without merit for two reasons. First, we find that the trial court correctly followed the statutes and applicable case law, and that it applied the correct standard of review. And secondly, Elsass has mischaracterized the trial court‘s determination concerning the referee‘s findings of facts.
{¶42} When a teacher‘s contract termination proceeding is conducted by a referee pursuant to
{43} Although the common pleas court‘s review of a board‘s decision is not de novo,
{44} We find that the trial court properly applied this standard of review. Although the trial court acknowledged that the decision basically came down to a credibility determination between Koontz’ version of events as compared to Elsass’ story, contrary to Elsass’ assertions, the trial court did not conclude that the referee‘s recommendation failed to meet its burden of proof. The trial court expressly considered Elsass’ argument that the decision was not supported by the weight of the evidence and concluded that:
The unsubstantiated testimony of one witness if believed by the finder of fact is sufficient to warrant the finder of fact to conclude the issue of whether the teacher was masturbating in the parking lot by a preponderance of the evidence. This court cannot replace its judgment for that of the finder of fact who saw and listened to the witnesses and had the advantage of being able to weigh the evidence in light of the manner of testifying and all of those factors that triers of fact use to determine credibility of the witnesses and what weight to give to the testimony. [Elsass‘] argument concerning the evidence not supporting that finding is not in accordance with established law and is rejected.
(Id. at p. 644.)
{45} Elsass then points to the next sentence in the decision, in which the judge states, “[w]hile a review of the transcript would have equally supported a finding by the hearing officer that the witness was mistaken ***” as support for his assertion that the trial court did not find that the Board‘s decision was supported by a preponderance of the evidence. Taken out of context, this statement could potentially stand for that position. However, the trial court expressly decided that because he did not have the advantage of observing the witnesses to determine who was telling the truth, he could not second-guess the decision of the fact-finder who did have that opportunity and vantage point. It is often stated that “determining credibility from a sterile transcript is a Herculean endeavor.” See, e.g., State v. Thompson (1998), 127 Ohio App.3d 511, 529, 713 N.E.2d 456. While the trial court did state that it “may have ruled differently if it
{46} Elsass is correct in his assertion that
{47} The decision in this case turned upon who the referee believed after hearing all of the witnesses testify. Given that no party asked to re-open the testimony in the court of common pleas, the trial court gave due deference to the referee‘s findings of fact and determination of credibility. The trial court‘s deference to the fact finder, who was able to assess the witness’ credibility in person, was in no way unreasonable, arbitrary, or unconscionable.
{48} Elsass contends that the Board failed to prove its case by a preponderance of the evidence. He alleges that Koontz was not a credible witness and his testimony “did not make sense.” Elsass continues to argue that the evidence supported his version of events. He also asserts that the referee incorrectly created the presumption that Elsass’ testimony was false because of the fact that Elsass had an interest in preserving his reputation and career.
{49} Our review of the trial court‘s decision in this appeal is limited to whether the trial court abused its discretion when affirming the Board‘s order. Thus, upon review, we must find more than error of judgment. The trial court‘s attitude must be unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 218-219, 450 N.E.2d 1140. Judgments supported by “some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence.” C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279, 280, 376 N.E.2d 578; see, also, Oleske, 146 Ohio App.3d at 62.
{50} As discussed above, the trial court showed deference to the referee‘s determinations of credibility because he was able to see and hear the witnesses
{51} The referee examined each of the claims Elsass raised concerning Koontz’ credibility, and found that four of the five alleged incidents had no adverse impact on Koontz’ credibility. In fact, for one of the allegations, the referee noted that Koontz was “no billed” on two separate occasions and that “Koontz [was] more the victim in connection with these matters as opposed to a criminal.” (Ref. rpt. p. 13.) The only incident potentially affecting Koontz’ credibility was a July 2009 charge for obstructing official business (Koontz was found guilty in January 2010.) The referee found that this conviction did have a negative impact on Koontz’ credibility. However, because no additional information specifying the exact nature of the improper conduct was provided, the referee found it difficult, if not impossible, to quantify the extent of negative impact. In fact, with those charges pending at the time of the parking lot incident, the referee believed that it was highly unlikely that Koontz would knowingly call the police to falsely accuse Elsass, thereby risking the filing of additional criminal charges against him for falsification. The referee found that Koontz’ version of the events had remained consistent throughout.
{53} The referee was also concerned about several credibility issues concerning Elsass’ claimed “wet spot.” Elsass testified that his urinary problems that had existed “for years.” However, the referee questioned why Elsass never consulted a doctor about this problem until a few days after the incident. And, if he knew that he spotted his clothing “every time” he urinated, why didn‘t he utilize some type of protection, or at least check himself before he left the restroom? Furthermore, if the spot was so large and noticeable, why hadn‘t his wife mentioned it when she was with him just moments before? Finally, the referee wondered why Elsass would “vigorously rub” his shorts in open view of the public when he was standing beside his own car. He could have simply
{54} In trying to determine which individual was “lying” and which one was “telling the truth,” the referee weighed numerous factors. One of those factors was that Koontz did not appear to have any motivation to lie, whereas Elsass had a strong interest in protecting his career and reputation. Contrary to Elsass’ assertions, the referee and trial court did not improperly shift the burden and create a “presumption” against Elsass because of that. This matter was raised before the trial court, and Elsass’ attorney acknowledged that a party‘s “interest and bias” could be a factor used in judging the credibility of a witness. At the hearing, the trial court read the following (from the court‘s standard instructions to juries):
To weigh the evidence you must consider the credibility of the witness. You will use the test of truthfulness which you use in your daily lives. These tests include the appearance of each witness on the stand, their manner of testifying, the reasonableness of the testimony, the opportunity they had to see, hear, and know the things concerning that which they testified, their accuracy of memory, their frankness or lack of it, their intelligence, their interest and bias, if any, together with all of the facts and circumstances surrounding the testimony.
(Emphasis added.) (Hearing Tr., p. 19.) The trial court then asked:
THE COURT: So the evaluation of, for example, the interest and bias that may be present in any particular witness is to be one of the things considered?
[ELSASS’ ATTORNEY:] Correct.
{55} Elsass’ argues that “the only credible testimony presented at the hearing was that of Mr. Elsass and his friends and family.” That was not what the referee determined. The trial court, in its review of the record, found that there was sufficient competent and credible evidence in the record to sustain the referee‘s findings and the Board‘s decision. We find that the trial court‘s decision in this regard was reasonable and supported by the evidence in the record. Therefore, the trial court did not abuse its discretion.
Elsass’ Fourth Issue: The trial court abused its discretion and committed reversible error when it held that substantial justice had been done in this matter.
{56} In the final issue raised by Elsass, he claims that he was denied due process and substantial justice was not done because he wasn‘t given the opportunity to be heard and to respond to the charges against him “at a meaningful time and in a meaningful manner.” Specifically, Elsass complains that his due process rights were violated when: (1) he was “blindsided” in the initial meeting with the superintendent and given the choice of resigning or being fired; (2) the initial meetings with the board to respond to the charges weren‘t rescheduled until after his criminal charges were resolved; (3) the Board did not provide him the
{57} We have already outlined the requirements that have been mandated by statute to protect a teacher‘s due process rights during a termination proceeding. The trial court reviewed all of Elsass complaints about alleged due process violations and found that they were baseless.
{58} Due process rights guaranteed by the United States and Ohio Constitutions apply in administrative proceedings, such as a teacher termination. See, e.g., Cleveland Bd. of Educ. v. Loudermill (1985), 470 U.S. 532, 545, 105 S.Ct. 1487, 84 L.Ed.2d 494.
{59} We do agree with Elsass’ first claim, that St. Marys did not follow proper procedures when he was initially confronted without any warning and given the choice of immediately resigning or being fired. However, St. Marys remedied that error and followed proper procedures thereafter to safeguard Elsass’ rights throughout the proceedings. The Board immediately set up two dates to give Elsass an opportunity to respond to the allegations. The Board was under no
{60} Elsass also complains that he should have been given another hearing before the Board after the referee held a hearing and issued his recommendations. However,
{61} Elsass has failed to demonstrate any due process violation. The trial court correctly overruled Elsass’ claims, finding that the Board followed all appropriate procedures. Based upon our discussion of all of the issues raised by Elsass in his cross appeal, we do not find that the trial court abused its discretion when it affirmed the Board‘s decision to terminate Elsass. Elsass’ assignment of error is overruled.
St. Marys’ Appeal
{62} In its appeal, St. Marys contends that the trial court erred in awarding back pay while, at the same time, affirming the Board‘s order terminating Elsass’ contract for good and just cause. St. Marys asserts that: (1) the trial court did not have the authority to modify the Board‘s decision and create a remedy that was not provided for in the statute; and (2) the trial court‘s review was limited to the Board‘s termination decision and it was not permitted to modify the Board‘s previous resolution to suspend Elsass without pay. Because both of the Board‘s assignments of error are closely related, we will review them together.
{63} These issues involve whether or not the trial court had the legal authority under
{64} The trial court‘s decision found that substantial justice had been done; that any alleged errors or defects occurring at the hearing were not prejudicial and were to be disregarded; that Elsass’ actions warranted termination; and that the order terminating his teaching contract should be affirmed. However, the trial court then decided to award Elsass a type of equitable “consolation prize” and modified the Board‘s termination order to award Elsass eight months of back pay for the time the Board had suspended him without pay. The trial court stated that this modification would do more “complete justice.”
{65} The trial court claimed that it had the authority to modify the Board‘s orders pursuant to
[i]f the reviewing court determines and certifies that, in its opinion, substantial justice has been done to the party complaining as shown by the record, all alleged errors or defects occurring at the trial shall be deemed not prejudicial to the party complaining and shall be disregarded, and the final judgment or decree under review shall be affirmed, or it shall be modified if, in the opinion of such reviewing court, a modification of it will do more complete justice to the party complaining.
(Emphasis added.)
{67}
Any order of termination of a contract shall state the grounds for termination. If the decision, after hearing, is against termination of the contract, the charges and the record of the hearing shall be physically expunged from the minutes, and, if the teacher has suffered any loss of salary by reason of being
suspended, the teacher shall be paid the teacher‘s full salary for the period of such suspension.
{68} The trial court‘s decision also focused on language in
{69} The trial court further offered an example wherein the Ohio Supreme Court modified a judgment in a “creative way” in order to “accomplish justice,” citing to Dardinger v. Anthem Blue Cross & Blue Shield, 98 Ohio St.3d 77, 2002-Ohio-7113, 781 N.E. 2d 121. In Dardinger, the Supreme Court used the power to order a remittitur to reduce what it determined to be an excessive punitive damages award from $49 million to $30 million, and to distribute $20 million of that to cancer research, with the remaining $10 million going to the deceased‘s estate. Id. at ¶ 181-190. However, the Dardinger case has nothing to do with the facts and law applicable in the case before us.8 Furthermore, the Ohio Supreme Court carefully cited to the applicable law upon which it relied for its authority to order such a remitter. As discussed above,
{70} Finally, the Board argues that its decision to suspend Elsass without pay was never challenged by Elsass; it was never appealed by Elsass; no evidence
{71} The Board‘s assertions above are correct. Elsass’ vague and general prayer does not allow a trial court to award relief that is not provided for within the law. Therefore, the Board‘s assignments of error are sustained.
{72} Having found no error prejudicial to the Cross-Appellant, Tom Elsass, herein in the particulars assigned and argued in his cross-appeal, we affirm the judgment of the trial court as it pertains to the termination of his teaching contract.
{73} However, having found error prejudicial to the Appellant, St. Marys City School District Board of Education, we reverse the judgment of the trial court as it pertains to the “modification” of the Board‘s order by awarding back pay to Elsass, and remand this matter to the trial court for further proceedings consistent with this opinion.
ROGERS, P.J. and PRESTON, J., concur.
/jlr
Judgment Affirmed in Part, Reversed in Part and Cause Remanded