STATE OF OHIO ex rel. CRAIG A. JONES, et al. v. BOARD OF EDUCATION OF DAYTON PUBLIC SCHOOLS
Appellate Case No. 28637
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
Rendered on the 16th day of October, 2020.
[Cite as State ex rel. Jones v. Dayton Pub. Schools Bd. of Edn., 2020-Ohio-4931.]
WELBAUM, J.
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO ex rel. CRAIG A.
JONES, et al.
Plaintiffs-Appellants/Cross-Appellees
v.
BOARD OF EDUCATION OF
DAYTON PUBLIC SCHOOLS
Defendant-Appellee/Cross-Appellant
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Appellate Case No. 28637
Trial Court Case No. 2016-CV-4132
(Civil Appeal from
Common Pleas Court)
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O P I N I O N
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DENNIS L. PERGRAM, Atty. Reg. No. 0010853, 50 North Sandusky Street, Delaware,
Ohio 43015
Attorney for Plaintiffs-Appellants/Cross-Appellees
BRIAN L. WILDERMUTH, Atty. Reg. No. 0066303 and LAUREN K. EPPERLEY, Atty.
Reg. No. 0082924, 50 Chestnut Street, Suite 230, Dayton, Ohio 45440
Attorneys for Defendant-Appellee/Cross-Appellant
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WELBAUM, J.
{¶ 1} Plaintiff-Appellant/Cross-Appellee, Craig A. Jones, appeals from a judgment awarding him damages against Defendant-Appellee/Cross-Appellant, Board of Education of Dayton City Schools (“Board”). According to Jones, the trial court should have awarded him additional damages because the Board failed to send him nonrenewal notices after his employment was reinstated by operation of law. In addition, Jones argues that the trial court erred by failing to award him attorney fees.
{¶ 3} For the reasons discussed below, Jones was not entitled to additional damages based on Board’s failure to send him further notices of nonrenewal pursuant to
I. Facts and Course of Proceedings
{¶ 4} This case is before us for the second time, following our reversal of the trial
court’s summary judgment in favor of the Board and a remand for further proceedings. See State ex rel. Jones v. Bd. of Edn. of Dayton Pub. Schools, 2018-Ohio-676, 96 N.E.3d 333 (2d Dist.). A detailed history of this case can be found in our prior opinion. For purposes of this appeal, we note that the Board employed Jones as Treasurer pursuant to a three-year contract that began on August 1, 2013, and was to end on July 31, 2016, unless
{¶ 5} Instead of terminating the contract, the Board held a special meeting in February 2016 and voted not to renew the contract. Id. at ¶ 8. Jones subsequently brought an action for mandamus and declaratory judgment against the Board, claiming that the Board had failed to comply with statutory requirements in
{¶ 6}
{¶ 7} Violation of the Ohio Sunshine Law involved a different analysis, however.
23652878, *6 (Dec. 24, 2003); State ex rel. Hardin v. Clermont Cty. Bd. of Elections, 2012-Ohio-2569, 972 N.E.2d 115, ¶ 85 (12th Dist.). This is also the standard our own district has used. Maddox, 2014-Ohio-2312, 12 N.E.3d 476, at ¶ 61.5
{¶
{¶ 56} In Mathews v. E. Local School Dist., 4th Dist. Pike No. 00CA647 , 2001 WL 243501 (Jan. 4, 2001), the court commented that “at least one Board member knew prior to the meeting that the ‘Sunshine Law’ required the Board to take formal action only in an open meeting and at least two Board members knew that it was highly unusual to do so in an executive session. Therefore, we find that the trial court did not abuse its discretion in determining that the Board was not entitled to a reduction in attorneys [sic] fees pursuant to
{¶ 57} With these
{¶ 58} After reviewing the record and applicable law, we find that the trial court’s decision was based on unsound reasoning, and therefore, was an abuse of discretion. Regarding the first prong, the court stressed that existing law before our decision had held that “to comply with
{¶ 59} In its decision on attorney fees, the trial court went on to comment in a footnote that we had “changed” existing law by deciding that the “ ‘true’ purpose of the special meeting notice was not really notice at all.” Id. at p. 8, fn. 27. Based on our reversal of the trial court’s decision granting summary judgment to the Board, it is clear that the trial court disagrees with our opinion. However, we are not aware of any case law permitting public bodies to mislead the public by including language in notices that disguises what the public body actually intends to do. The parties have also not provided us with any such authority.
{¶ 60} In this regard, our opinion found a violation of
Likewise, in the case before us, the notice of the special meeting did not inform the public of the true purpose of the meeting. As in Keystone, the Board knew the meeting was about a specific topic, but the public did not receive information about the meeting‘s actual purpose. In fact, the special meeting notice failed to state any purpose for the open session. To the extent that any purpose could be inferred from the statement that the Board might act on recommendations of the superintendent and treasurer, the comment in the notice was not true.
* * *
In fact, the true purpose for the meeting was other than stated, as the Board president knew that the Board was not going to consider recommendations of the superintendent or treasurer with respect to public employees. Considering any such recommendations was obviously not contemplated, since the Board intended to consider these employees’ own contracts. The superintendent or treasurer would hardly have recommended nonrenewal of their own contracts. Furthermore, the Board president knew prior to the issuance of the notice that the meeting‘s purpose was to discuss nonrenewal of the contracts of the treasurer and superintendent. Doc. # 18, Affidavit of Dr. Adil T. Baguirov, ¶ 5.
Jones, 2018-Ohio-676, 96 N.E.3d 333, at ¶ 51 and 53, citing Keystone Commt. v. Switzerland of Ohio Sch. Dist. Bd. of Edn., 2016-Ohio-4663, 67 N.E.3d 1 (7th Dist.).
{¶ 61} Given the above discussion, a well-informed board would not have reasonably believed under existing law that it could send out a misleading special meeting notice. Notably, when we considered the case previously, the Board argued that the language we questioned was often inserted in meeting notices. Jones at ¶ 59. We found that “fact” was not established by the evidence. Id. at ¶ 60. We also said it was irrelevant for purposes of the current case because “the Board president knew when the special meetings notice was issued that the Board would not be
{¶ 62} Additionally, a well-informed board would not have reasonably believed it could alter the content of its previously published agenda after the Board meeting. Id. at ¶ 35, 38, and 40. In our prior opinion, we noted that the nonrenewal of the contracts of Jones and the superintendent were not listed in the agenda that the Board posted online before the meeting. Id. at ¶ 40. However, the Board modified the agenda the day after the meeting “by adding the non-renewal resolutions as agenda items, while maintaining the prior date used for the original agenda.” Id. at ¶ 35.
{¶ 63} Concerning this issue, we note that the Board has attempted to add facts not of record during the current appeal, as it did in the prior appeal and in the trial court on remand. Specifically, the Board blames any problems with the agenda on a computer program. Jones, 2018-Ohio-676, 96 N.E.3d 333, at ¶ 35, fn.3; Objections of Baord to the Magistrate’s Decision (June 21, 2019), p, 13; and Board’s Appellate Brief, p. 16, fn.6.
{¶ 64} Our opinion noted that the Board had “argued on appeal that modification of the agenda was required due to a computer program that the Board uses. No evidence establishing such a fact was presented in the trial court.” Jones at ¶ 35, fn.3.
{¶ 65} Despite the fact that we explicitly mentioned this point, the Board made no attempt to introduce further evidence in the trial court as to the alleged justification for its alteration of the agenda. This failure raises an inference that the evidence to which the Board alludes either does not exist or is unfavorable to its position. And now, the Board again raises this point on appeal in its brief.
{¶ 66} The legal principle is well-established that appellate courts decide appeals based only on the evidence of record. “A reviewing court cannot add matter to the record before it, which was not a part of the trial court‘s proceedings, and then decide the appeal on the basis of the new matter.” State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500 (1978), paragraph one of the syllabus. Accord Morgan v. Eads, 104 Ohio St.3d 142, 2004-Ohio-6110, 818 N.E.2d 1157, ¶ 13; Stuck v. Miami Valley Hosp., 2020-Ohio-129, 141 N.E.3d 290, ¶ 14 (2d Dist.).
{¶ 67} When the trial discussed the second prong of
{¶ 68} Dunlap involved a mandamus action brought in the court of appeals, in which several violations, even ones that the board admitted, were barred by the statute of limitations. However, the court of appeals did find several instances where the board failed to comply with
The conduct by Respondents in this case was not as egregious as the conduct where attorney fees have been awarded. Attorney fees were awarded where the minutes were wholly incomplete and contained such errors as citing a member had voted who was not even on the council. In the instant case, aside from the two instances where any statutory reason was omitted, it appears Respondents attempted to comply with the Sunshine laws by citing to a specific code section together with the topic which was to be discussed. Of the many instances cited by Relator, only one clerical error or omission was found. Further, the public benefit in bringing this cause is minimal at best in this case as the majority [sic] alleged violations have not been proven.
{¶ 69} Thus, Dunlap did not state that violations must be “egregious” for attorney fees to be allowed; it simply noted that the violations in the case before were not as bad as those in other unnamed cases. However, we have found no authority indicating that a public body’s conduct must be egregious. As indicated, the issue relates to whether “a ‘well informed’ public body reasonably would have believed * * * that its conduct served public policy.” Maddox, 2014-Ohio-2312, 12 N.E.3d 476, at ¶ 61. The statute does not mention good faith.
{¶ 70} Furthermore, the idea of whether a public benefit is served is not the correct standard to apply under
ORDC cites several cases in support of the trial court‘s conclusion that attorney fees were not warranted on the basis that no significant public benefit would result from appellant‘s OMA [Open Meeting Act] action. However, such cases are not applicable to the request for attorney fees here. First, those cases largely dealt with the Ohio Public Records Act under
R.C. 149.43 and not the OMA. Second, even if the analysis set forth in such cases was once applicable to attorney fees under the OMA, such is no longer the case due to an amendment toR.C. 121.22(I) in 1994.R.C. 121.22(I) now clearly sets forth the test to be applied in determining whether attorney fees should be reduced or denied, and it is this test that courts must now follow.
Id. at ¶ 111. The court therefore reversed the case and remanded for consideration of the proper test. Id. at ¶ 112 and ¶ 169.
{¶ 71} Consequently, the standard is not how many violations exist or how “egregious” they are, nor is an attorney award contingent on the extent to which the action benefits the public.
{¶ 72} Based on the preceding discussion, we conclude that the trial court erred in refusing to award attorney fees. Accordingly, the Second Assignment of Error is sustained, and this cause will be remanded for a determination of reasonable fees to be awarded to Jones.
IV. The Board’s Cross-Assignment of Error
{¶ 73} The Board’s Cross-Assignment of Error states that:
The Trial Court Erred in Awarding Jones Salary “Increments” Based on Compensation Benefits That the Board Never Authorized for the 2016-2017 School Year (12/13/19 Amended Entry, pgs. 4-6).
{¶ 74} Under this cross-assignment of error, the Board contends that the trial court erred when it included additional
{¶ 75} As noted above, the magistrate concluded that Jones was entitled only to the amount of one year of his base salary ($132,000) and the corresponding standard 14% contribution to SERS, for a total, after setoffs, of $42,345.78. After Jones objected, the trial court held that Jones was entitled to recover for his base salary, a $19,200 annuity, and $39,916.80 in SERS contributions. After applying setoffs, the court granted Jones a total of $82,482.58. Amended Entry at p. 5-6.
{¶ 76} The additional $39,916.80 in SERS contributions consisted of amounts specified in the employment contract, which required the Board to pay to SERS a 15.4% employer contribution rate and an extra 11% of Jones’s compensation (for a total of 26.4%). This was known as a “pickup” and “pickup on pickup.”6 The court applied this percentage to the total of Jones’s salary and annuity ($151,200), which resulted in the $39,916.80 SERS contribution amount.
{¶ 77} The relevant part of
{¶ 78} According to the Board, the use of the word “increment” relates to Jones’s salary only and does not include the annuity or the additional SERS contributions covered by the employment contract. The Board agrees that it should pay the standard 14% of Jones’s salary to SERS. This would be the amount the magistrate found to be due after setoff: $42,345.78. In contrast, Jones contends that he is required to be made whole, which would be consistent with the amount, after setoff that the trial court ordered: $82,482.58.
{¶ 79} Per our above discussion of statutory analysis, “[t]o discern legislative intent, we first consider the statutory language, reading the words and phrases in context, according to rules of grammar and common usage.” Armstrong, 136 Ohio St.3d 58, 2013-Ohio-2237, 990 N.E.2d 568, at ¶ 12.
{¶ 80} Before we address this issue, we note that the parties do not dispute that 14% is the standard employer contribution to SERS. By law, the Board would have been required to remit this amount to SERS for the one-year period that Jones was reemployed by operation of law. See
{¶ 81} Returning to
{¶ 82} Even if we were required to consider matters other than the common meaning of the words in the statute, the word “increment” is used in other statutes in the educational field. As an example,
{¶ 83} Under
{¶ 84} Unlike a situation in which a school district has a stated salary schedule with increases based on years of service, negotiated contracts like the one here would not have a continuing salary schedule. This is probably why the term “provided by the salary schedule” was not included in
{¶ 85} In support of his contention that the trial court’s decision on damages should be affirmed, Jones relies on State ex rel. Stacy v. Batavia Local School Dist. Bd. of Edn., 105 Ohio St.3d 476, 2005-Ohio-2974, 829 N.E.2d 298. In that case, the court did say that “[t]he purpose of a back-pay award is to make the wrongfully terminated employee whole and to place that employee in the position the employee would have been in absent a violation of the employment contract.” Id. at ¶ 26. Stacy is not relevant, however, as it involved wrongful termination of a non-teaching employee who had a continuing contract under
{¶ 86} The magistrate in this case correctly concluded that Jones was entitled to his salary and the Board’s 14% contribution to SERS, which after offset was $42,345.78. As a result, the trial court erred in sustaining Jones’s objections and in awarding Jones $82,482.58. Accordingly, the Board’s sole cross-assignment of error is sustained, and this cause will be remanded to the trial court for further proceedings consistent with this opinion.
V. Conclusion
{¶ 87} Jones’s First Assignment of Error is overruled, Jones’s Second Assignments of Error is sustained, and the Board’s sole cross-assignment of error is sustained. The judgment of the trial court, therefore, is affirmed in part and reversed
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DONOVAN, J., concurs.
HALL, J., concurs in part and dissents in part:
{¶ 88} I concur with my colleagues with regard to the analysis and disposition overruling the first assignment of error, arguing for serial statutory contract renewal until a non-renewal notice is issued, and sustaining the cross-assignment of error, regarding the awarding of additional benefits not included in the “increments” of salary contemplated by the applicable statute.
{¶ 89} I disagree, however, with the conclusion that the trial court abused its discretion by failing to award Jones attorney fees, and I therefore dissent, in part.
{¶ 90} As the majority points out, we review the trial court’s decision regarding attorney fees for an abuse of discretion. Maddox, 2014-Ohio-2312, 12 N.E.3d 476, at ¶ 53. Abuse of discretion review “is deferential and does not permit an appellate court to simply substitute its judgment for that of the trial court.” State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34.
{¶ 91} The two statutory prongs that must be found by a court to deny an award of attorney fees were that “a well-informed public body reasonably would believe that the public body was not violating” the statute and that “a well-informed public body reasonably would believe that the conduct * * * would serve the public policy that underlies the authority that is asserted as permitting that conduct.”
{¶ 92} After reviewing the record and applicable law, I cannot find that the trial court’s decision was based on unsound reasoning or was otherwise arbitrary or capricious. Concerning the first prong, our prior opinion admittedly disagreed with the trial court’s initial summary judgment decision, and did so by distinguishing a case the Board and trial court had cited. See Jones, 2018-Ohio-676, 96 N.E.3d 333, at ¶ 52-56, discussing Warthman v. Genoa Twp. Bd. of Trustees, 5th Dist. Delaware No. 10CAH040034, 2011-Ohio-1775. However, reasonable minds may differ with respect to our interpretation of that case.
{¶ 93} Moreover, in the previous case we determined that the meeting notice did comply with
{¶ 94} I consider the violation of
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Dennis L. Pergram