MATTHEW GALLOWAY, Aрpellee, v. FIRELANDS LOCAL SCHOOL DISTRICT BOARD OF EDUCATION, Appellant.
C.A. No. 12CA010208
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
September 30, 2013
[Cite as Galloway v. Firelands Local School Dist. Bd. of Edn., 2013-Ohio-4264.]
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 11CV171845
Dated: September 30, 2013
CARR, Presiding Judge.
{¶1} Appellant, Firelands Local School District Board of Education (“School Board“), appeals from the judgment of the Lorain County Court of Common Pleas. This Court vacates the judgment of the trial court because of a lack of jurisdiction, and remands the matter to the trial court with instructions to dismiss the appeal.
I.
{¶2} On November 29, 2010, the superintendent of the Firelands Local School District, Gregory Ring, delivered a letter to Matthew Galloway, a 15-year non-teaching employee of the school district. The letter indicated that the superintendent wоuld be conducting a Loudermill hearing on December 1, 2010, concerning Galloway‘s possible termination of employment as a custodian, informed him of the alleged grounds for such termination, and also informed him that he could attend with legal counsel. See Cleveland Bd. of Edn. v. Loudermill, 470 U.S. 532 (1985) (concerning due process hearings to which terminated school district employees are
{¶3} Immediately following the December 13, 2010 hearing, Superintendent Ring sent a third letter to Galloway. That letter indicated that the School Bоard had voted to terminate his employment at its meeting. The letter further recited that the School Board agreed to offer him a final opportunity to continue employment under a “last chance agreement.” On December 22, 2010, Superintendent Ring again corresponded with Galloway, indicating that Galloway was terminated from his employment, effective December 17, 2010, because the superintendent had not received an acceptance of the “last chance agreement” from Galloway. Based on this letter, Galloway filed a notice of administrative appeal to the Lorain County Court of Common Pleas. Subsequently, the parties apparently agreed to dismiss the appeal without prejudice and to conduct a second hearing before the School Board.
{¶4} The School Board conducted that hearing on March 23, 2011. The transcript of that hearing does not indicate the decision of the School Board. Superintendent Ring prepared yet another letter, dated April 12, 2011, addressed to Galloway. It stated in full as fоllows:
Dear Mr. Galloway,
At its regular Board Meeting last evening, the Firelands Board of Education voted 5-0 to affirm its December 13, 2010 decision to terminate your employment with the Firelands Schools.
Regretfully,
/s/ Gregory D. Ring
Superintendent
II.
ASSIGNMENT OF ERROR I
PLAINTIFF‘S FAILURE TO TIMELY FILE A PRAECIPE CONTRA R.C. 2506.02 WARRANTS DISMISSAL.
ASSIGNMENT OF ERROR II
A 2506 APPEAL CANNOT BE REVERSED SIMPLY BECAUSE FINDINGS OF FACT AND CONCLUSION[S] OF LAW WERE NOT PART OF THE RECORD.
ASSIGNMENT OF ERROR III
A UNION IS NOT A PROPER PARTY TO AN R.C. 3319.081 APPEAL.
{¶6} This Court need not reach the assigned errors because we conclude that the record does not contain a final order by the School Board, and that, therefore, the trial court lacked jurisdiction to hear the appeal. Although this jurisdictional question was not raised in the trial court, the lack of a final appealable order goes to the issue of subject matter jurisdiction which cannot be waived and may be raised sua sponte by an appellate court. State ex rel. Wright v. Ohio Adult Parole Auth., 75 Ohio St.3d 82, 84 (1996). See also Jenkins v. Keller, 6 Ohio St.2d 122 (1966), paragraрh five of the syllabus. The determination of whether a trial court had
{¶7} The letter from which Galloway sought to appeal was a letter written by the superintendent of the school district in his capacity as superintendent. In that letter, the superintendent, in his own name, reported that an action was taken by another entity, the School Board. The record сontains no such order from the issuing entity itself. This Court concludes that the superintendent‘s letter does not meet the requirements of a final order or decision of the School Board.
{¶8} “Appeals taken from a schоol board or board of education‘s decision are governed by
{¶9}
{¶10} A prior decision of this court emphasized that an action taken by a superintendent, in his own name, is not the action of the board of education. See Kipp v. Lorain Bd. of Edn., 9th Dist. Lorain No. 99CA007373, 2000 WL 1729485 (Nov. 22, 2000). In that case, a student sought review оf a superintendent‘s decision to issue him an in-school suspension. The student sought a hearing before the board of education, but the superintendent refused to make that request on the grounds that there is no right to apрeal an in-school suspension. The student filed a notice of appeal to the court of common pleas, and the trial court dismissed the appeal. The trial court found that it lacked jurisdiction to hеar the appeal because the opinion letter of the superintendent is not a final order, adjudication, or decision within the meaning of
{¶11} The Fourth District Court of Appeаls recently considered a case in which it did accept a letter by the superintendent as a final order under
{¶12} In this case, Galloway filed a notice of appeal from a letter that was written by the superintendent in his capacity as superintendent and in which he reported that the school board had made a decision about Galloway‘s employment. Superintendent Ring did not write the letter as an agent of the School Board, as occurred in A.M.R., but rather solely in his capacity as superintendent. The letter took the same form as all of the superintendent‘s previous letters, including the initial letter informing Galloway of the Superintendent‘s allegations in suppоrt of termination and of the scheduled Loudermill hearing before the Superintendent. Significantly, the letter itself was not the decision of the School Board and did not purport to be. Even assuming that this would be a proper procedure, neither party has argued that the letter from the superintendent was, in effect, a decision of the School Board, nor has either party cited any authority by which the superintendent is so enabled. In this cаse, the School Board is the determining body and any appeal must be taken from a decision of that body. The superintendent‘s letter does not constitute an action of the School Board and does not dеtermine rights, duties, privileges, benefits, or legal relationships. Accordingly, the superintendent‘s letter does not constitute a final order, adjudication, or decision within the meaning of
III.
{¶13} The judgment of the Lorain County Court of Commоn Pleas is vacated, and the matter is remanded to the trial court with instructions to dismiss the appeal.
Judgment vacated, and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App. R. 30.
Costs taxed to Appellee.
DONNA J. CARR
FOR THE COURT
WHITMORE, J.
HENSAL, J.
CONCUR.
WARREN ROSMAN and JOHN S. KLUZNIK, Attorneys at Law, for Appellant.
THOMAS C. DRABICK, JR., Attorney at Law, for Appellee.