KIEL, APPELLANT, v. GREEN LOCAL SCHOOL DISTRICT BOARD OF EDUCATION, APPELLEE.
No. 92-1873
Supreme Court of Ohio
Submitted November 9, 1993—Decided April 27, 1994
69 Ohio St.3d 149 | 1994-Ohio-21
APPEAL from the Court of Appeals for Wayne County, No. 2709.
R.C. 3319.11 does not providе the procedure that must be followed in an appeal pursuant to subdivision (G)(7). Thus, the procedural provisions ofR.C. Chapter 2506 govern.R.C. 3319.11(E) requires that a teacher receive actual written notice of the board‘s intent not to renew his limited teaching contract.
{¶ 1} Plaintiff-appellant, John Kiel, was a public high school teacher employed by defendant-appellee, Green Local School District Board of Education, under a limited teaching contract that expired at the conclusion of the 1990-1991 school year. After he was evaluated by the Principal of Smithville High School, the principal and suрerintendent determined that Kiel would not be recommended for continued employment after the expiration of his limited teaching contract. Accordingly, on April 16, 1991, the school board acted upon the recommendation and voted not to reemploy Kiel. Following a hearing, the board reaffirmed this decision not to renew Kiel‘s limited contract.
{¶ 2} On June 12, 1991, pursuant to
{¶ 3} The cause is befоre this court pursuant to the allowance of a motion to certify the record.
Green, Haines, Sgambati, Murphy & Macala Co., L.P.A., Ronald G. Macala and Anthony M. DioGuardi II, for appellant.
Whalen & Compton Co., L.P.A., G. Frederick Compton, Jr., R. Brent Minney and Elizabeth Grooms Taylor, for appellee.
Means, Bichimer, Burkholder & Baker Co., L.P.A., and Kimball H. Carey, urging affirmance for amicus curiae, Ohio School Boards Association.
FRANCIS E. SWEENEY, SR., J.
{¶ 4} This case and the companion cases which follow provide this court with its first opportunity to address legal issues arising under
{¶ 5} The Ohio Teacher Tenure Act, contained in
{¶ 6}
{¶ 7} In addition,
Any teacher employed under a limited contract, and not eligible to be considered for a continuing contract, is, at the expiration of such limited contract, сonsidered reemployed * * * unless evaluation procedures have been complied with pursuant to division (A) of section 3319.111 of the Revised Code and the employing board, acting upon the superintendent‘s written recommendation that the teacher not be reemployed, gives such teacher written notice of its intention not to reemploy him on or before the thirtieth day of April. (Emphasis added.)
{¶ 8} Kiel contends and we determine that the school board failed to timely notify him of its decision not to renew his limited teaching contract as required by
{¶ 9} In Kiel‘s appeal to the common pleas court, the court permitted the board, over Kiel‘s objection, to supplement the record with an affidavit of its treasurer, Joyce Mast. Mast averred that she had personally served Kiel on April 23, 1991 with written notice of the board‘s decision not to renew Kiel‘s limited contract.
{¶ 10} The appellate court rejected Kiel‘s contention that the general administrative appeal procedures found in
{¶ 11} Kiel contends, however, that while
{¶ 12} The very terms of
Notwithstanding section 2506.04 of the Revised Code, the court in an appeal under this division is limited to the determination of procedural errors and to ordering the correction of procedural errors and shall have no jurisdiction to order a board to reemploy a teacher, except that the court may order a board to reemploy a teacher in compliance with the requirements of division (B), (C)(3), (D), or (E) of this section when the court determines that evaluation procedures have been not been complied with pursuant to division (A) of section 3319.111 of the Revised Code or the board has not given the teacher written notice on or before the thirtieth day of April of its intention not to reemploy the teacher pursuant to division (B), (C)(3), (D), or (E) of this section.
{¶ 13} This section of the Revised Code addresses the remedies available to a school teacher whose limited contract is not renewed.
{¶ 14}
{¶ 15}
{¶ 16} Pursuant to these provisions, the common pleas court was limited to the record filed on appeal. The treasurer‘s affidavit was not a part of this record, and it was error for the court to allow the board to supplement the record.
{¶ 17} In reaching its holding, the appellate court relied on DeLong v. Bd. of Edn. of Southwest School Dist. (1973), 36 Ohio St.2d 62, 65 O.O.2d 213, 303 N.E.2d 890, where, in construing former
{¶ 18} The statute considered in DeLong has been substantially amended.
{¶ 19} Having determined that the record on appeal should not have been supplemented, we must next determine whether Kiel received timely nоtice of the board of education‘s intent not to renew his limited teaching contract.
{¶ 20} The record reveals that the board‘s notice of its intent not to reemploy Kiel was sent by certified mail, return receipt requested, to Kiel, in care of Smithville High School and to his home address. The only return reсeipt received and offered into evidence by the board is the return receipt from Smithville High School. The receipt was signed by someone other than Kiel. The board produced no evidence that Kiel had personally received the notice sent April 17, 1991.
{¶ 21}
{¶ 22} In State ex rel. Peake v. S. Point Local School Dist. Bd. of Edn. (1975), 44 Ohio St.2d 119, 73 O.O.2d 437, 339 N.E.2d 249, in construing former
{¶ 23} By mailing the notice of its intent not to renew Kiel‘s teаching contract to the Smithville High School, the school board did not comply with
{¶ 24} Therefore, consistent with this opinion, wе hold the following: (1)
{¶ 25} Accordingly, we rеverse the judgment of the court of appeals and order appellee board of education to reinstate appellant to a one-year limited contract and to award appellant all compensation and benefits that he has lost as a result of the unlawful nonrenewal of his contract.
Judgment reversed.
A.W. SWEENEY, DOUGLAS and PFEIFER, JJ., concur.
MOYER, C.J., WRIGHT and DESHLER, JJ., dissent.
DANA A. DESHLER, JR., J., of the Tenth Appellate District, sitting for RESNICK, J.
WRIGHT, J., dissenting.
{¶ 26} I respectfully dissent because I believe the board did everything it was required to do under the statute with respect to notifying Kiel of its decision. The board was required by
{¶ 27} That Kiel had timely notice of the board‘s decision is evident by Kiel‘s written objection to it on April 22, 1991. On that day Kiel‘s representative Richard Schneider mailed two letters, both of which were properly in the record filed on appеal, to the treasurer of the board. Both clearly indicate Kiel knew the board had decided not to renew his contract. The first letter reads:
Pursuant to O.R.C. Section 3319.11(G)(1) et seq., John Kiel hereby demands a written statement describing the cirucumstances which led the Green Local Board of Education to decide not to re-employ him.
{¶ 28} The second letter reads:
Pursuant to O.R.C. Section 3319.11(G)(3) et seq., John Kiel hereby demands that a hearing be scheduled regarding the circumstances which led to the Green Local Board of Education‘s intention not to re-employ John Kiel. John Kiel demands a record be made of these proceedings and thаt all issues relating to the decision to non-renew John Kiel‘s limited contract of employment be considered.
{¶ 29} The conclusion is inescapable that Kiel had notice of the board‘s decision at least eight days before the April 30, 1991 deadline, notice which one may reasonably infer was prоvided by the two letters mailed by the board to Kiel on April 17. As Judge Cacioppo of the court of appeals aptly observed: His prior knowledge of [the board‘s] decision is *** obvious. Indeed it is!
{¶ 30} The conclusion is so obvious even Kiel‘s representative, who had signed and mailed the April 22 letters, dared nоt risk answering the question whether Kiel had received notice of the board‘s decision. At the May 15, 1991 hearing before the board, the following exchange took place between Kiel‘s representative Schneider and board member John Tucker:
MR. TUCKER: One question, Mr. Schneider. Mr. Kiel did receive notice of nonrenewal.
MR. SCHNEIDER: We have no proof of that. I got it by reading the newspaper. Whether that‘s substantial under the new law, I don‘t know, but we haven‘t filed any suit, John. But I notice by what the affidavit of the Board is, is one Frank Hayes received that, and it was sent to the high school.
John, you know as well as I do, whether it be legal or nоt, that is not Mr. Kiel. So, we are not aware of that, and we have no proof that it was received before the required deadline. As to when it was actually received, I got a copy of it in my office, and mine is probably time-stamped. Let‘s see if it is. No, mine is not time-stamped either, John. We don‘t know that.
{¶ 31} If еver there was a dissembling answer to a simple question, we have it here. It is unfortunate that the board did not follow up on its question by asking Kiel himself if he had received the two April 17 letters which the board had mailed to him. Certainly Kiel, who was present at the hearing, knew whether he had received them. He said nothing, howеver, and his representative spoke only about the lack of proof of notice rather than answering the question in a forthright manner. It is difficult, however, to fault the board for not pursuing the matter since Kiel had demanded on April 22 both an explanation for the board‘s decision and a hearing.
{¶ 32} Based on my review of the record properly filed on appeal, I disagree with the majority‘s conclusion that the school board failed to timely notify [Kiel] of its decision not to renew his limited teaching contract. The record clearly shows (1) the board mailed written notice to Kiel (which is all
{¶ 33} I reach my decision on this issue without deciding the admissibility of the treasurer‘s affidavit, which the board sought to add to the record. I note, however, that a sworn statement from the treasurer that she personally delivered timely written notice to Kiel on April 23, 1991 would add nothing to what the facts of this case and common sense already reveal. The decision by the court of common pleas to allow the board to supplement the record was, at worst, harmless error.
{¶ 34} For the foregoing reasons, I would affirm the decision of the court of appeals. I therefore dissent.
MOYER, C.J., and DESHLER, J., concur in the foregoing dissenting opinion.