395 N.E.2d 1337 | Ohio Ct. App. | 1978
In April 1973, plaintiff-appellee, Clifford *139
Jones, received notice from the defendant-appellant, the Board of Education of Mt. Healthy City School District, that the board was considering the termination of Jones' teaching contract "for gross inefficiency and for other good and just cause." In response, Jones timely filed a written demand for a public hearing, electing to have the hearing held before a referee rather than before the board pursuant to R. C.
The board, in its first assignment, asserts that the trial court erred in ruling that Jones was entitled, under the provisions of R. C.
"* * * Within ten days after receipt of the notice [of termination] from the clerk of the board, the teacher may file with the clerk a written demand for a hearing before the board or before a referee * * *. The hearing shall be private unless the teacher requests a public hearing. The hearing shall be conducted by a referee appointed pursuant to section
"Both parties may be present at such hearing, be represented by counsel, require witnesses to be under oath, cross-examine witnesses, take a record of the proceedings, and require the presence of witnesses in their behalf upon subpoena to be issued by the clerk of the board. * * * Any member of the board or the referee may administer oaths to witnesses. After a hearing by areferee, the referee shall file his report within ten days after the termination of the hearing. After consideration of 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. After a hearing by the board, the board by majority vote may enter its determination upon its minutes." (Emphasis added.)
Appellee Jones contends that the final sentence of the above quoted language — prefaced as it is by the words "after a hearing by the board" — invests him with an absolute right to a hearing before the board at some point prior to the termination of his teaching contract, whether or not he originally had elected to avail himself of the opportunity to be heard by an impartial referee. The appellant, on its part, argues that the language cited by Jones in support of his claimed right to a hearing before the board is inapplicable to cases where, as here, a teacher had chosen to present his case to a referee. The phrase, "after a hearing by the board," the board asserts, is intended to preface a description of the procedure to be followed only when a teacher originally has elected to have his termination hearing before the board; the provision is parallel with, and not sequential to, the preceding two sentences of the statute which, the board suggests, delineate fully and exclusively the procedures to be followed "after a hearing by a referee," and which do not include the right to an additional hearing before the board.
A careful review of the pertinent statutory language compels our conclusion that the interpretation of R. C.
Having thus determined that Jones, having once had a full hearing before a referee, has no right to a separate hearing *142
before the board under the provisions of R. C.
The constitutional propriety of this elective statutory scheme under due process standards was recognized, in no uncertain terms, by the United States Court of Appeals for the Sixth Circuit in Whitsel v. Southeast Local School District
(C.A. 6, 1973),
"The pertinent Ohio statute [R. C.
We find the Court's holding in Whitsel to be dispositive of the constitutional issues presented for determination in the instant appeal. The cases cited by Jones in support of a contrary result — viz., Goldberg v. Kelly, (1970),
We therefore conclude that the trial court erred in ruling that R. C.
The board's third assignment of error, challenging that part of the judgment below awarding back pay to Jones during the term of his allegedly unlawful termination, is mooted by our disposition of the foregoing two assignments of error, and is accordingly overruled. *144
The judgment of the court below must be, and hereby is, reversed.
Judgment reversed.
SHANNON and KEEFE, JJ., concur.
"Any teacher affected by an order of termination of contract may appeal to the court of common pleas * * *. * * * Upon service or waiver of summons in said appeal, the board shall immediately transmit to the clerk of said court for filing * * * a certified transcript of all evidence adduced at the hearing or hearings before the board or a certified transcript of all evidence adduced at a hearing or hearings before the referee * * *." R. C.