COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 66757 GERALD E. FUERST, CLERK OF COURTS STATE OF OHIO EX REL. DOROTHY P. : FLEMING, ET AL., : : PETITION FOR WRIT OF : MANDAMUS Relators : : CASE NO. 66757 v. : : MOTION NO. 74707 ROCKY RIVER BOARD OF EDUCATION, : ET AL., : : : Respondents : DATE OF ANNOUNCEMENT OF DECISION : JULY 22, 1996 JUDGMENT : JUDGMENT IN PART FOR : RELATORS; JUDGMENT IN PART : FOR RESPONDENTS. WRIT : GRANTED IN PART. FINAL. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For relators: Thomas L. Brunn HOHMANN, BOUKIS & BRUNN 520 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 Michael T. Williams 75 Public Square No. 1001 Cleveland, Ohio 44113 For respondents: Susan C. Hastings SQUIRE, SANDERS & DEMPSEY 4900 Society Center 127 Public Square Cleveland, Ohio 44114-1304 -2- NAHRA, P.J.: Sua sponte pursuant to the Joint Stipulation of Damages filed by the parties, the Rocky River Board of Education is liable as follows: $7,017.15 in gross back wages to Dorothy Fleming and $982.40 to the State Teachers' Retirement System on Ms. Fleming's behalf; $3,495.35 in gross back wages to Carol Weissinger and $489.35 to the State Teachers' Retirement System on Ms. Weissinger's behalf; and $6,735.54 in gross back wages to Paula Binder and $942.98 to the State Teachers' Retirement System on Ms. Binder's behalf. Partial judgment entry no. 72522 dated June 4, 1996, is incorporated herein. Accordingly, a writ of mandamus is hereby issued as follows: The Rocky River Board of Education, having been found liable in part to the relators, shall pay on or before August 5, 1996, $7,017.15 in gross back wages to Dorothy Fleming and $982.40 to the State Teachers' Retirement System on Ms. Fleming's behalf; $3,495.35 in gross back wages to Carol Weissinger and $489.35 to the State Teachers' Retirement System on Ms. Weissinger's behalf; and $6,735.54 in gross back wages to Paula Binder and $942.98 to the State Teachers' Retirement System on Ms. Binder's behalf. Interest shall accrue at the rate of ten percent per annum postjudgment beginning on August 6, 1996. Judgment in part for relators; judgment in part for respondents. Writ granted in part. Costs divided one-half to each side. Final. HARPER, J., and JOSEPH J. NAHRA PATTON, J., CONCUR. PRESIDING JUDGE COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA GERALD E. FUERST, CLERK OF COURTS STATE OF OHIO EX REL. DOROTHY : P. FLEMING, ET AL., : : PETITION FOR WRIT OF : MANDAMUS Relators : : CASE NO. 66757 v. : : MOTION NO. 72522 ROCKY RIVER BOARD OF EDUCATION, : ET AL., : : : Respondents : DATE OF ANNOUNCEMENT OF DECISION : JUNE 4, 1996 JUDGMENT : PARTIAL JUDGMENT FOR : RELATORS; PARTIAL JUDGMENT : FOR RESPONDENTS. NOT : FINAL. DAMAGES : UNDETERMINED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For relators: For respondents: Thomas L. Brunn Susan C. Hastings HOHMANN, BOUKIS & BRUNN CO., SQUIRE, SANDERS & DEMPSEY L.P.A. 4900 Society Center 520 Standard Building 127 Public Square 1370 Ontario Street Cleveland, Ohio 44114-1304 Cleveland, Ohio 44113 Michael T. Williams LAW OFFICES OF DANIEL W. DREYFUSS 75 Public Square No. 1001 Cleveland, Ohio 44113 -2- NAHRA, P.J.: On January 13, 1994, Relators, Paula Binder, Dorothy P. Fleming and Carol Weissinger, initiated this mandamus action against Respondents, the Rocky River Board of Education, Dr. Victor Smole, school district superintendent, and Stephen A. Vasek, school district treasurer. Each Relator holds a valid Ohio teaching certificate. Each Relator entered into contracts with the Rocky River Board of Education to be employed as a tutor and as a learning assistant. Relators are seeking a writ of mandamus to compel Respondents to compensate Relators at the salary level of classroom teachers for the work Relators perform as tutors and as learning assistants. For the reasons that follow, we find respondents partially liable to relators for work performed as tutors from January 13, 1988, to August 17, 1989. The parties stipulated to facts in July, 1994. Subsequently, this court appointed a Commissioner to resolve the disputed issues of fact. Following an evidentiary hearing, the Commissioner filed Findings of Fact, which are hereby adopted. I. FACTS Prior to the decision of the Supreme Court of Ohio in Brown v. Milton-Union Exempted Village Board of Education (1988), 40 Ohio St.3d 21, 531 N.E.2d 1297, the Board employed individuals generically termed "tutors" to perform a variety of functions, including assisting students with instructional tasks. Certain "tutors" were hired to provide federal and state-mandated special -3- education services to students specifically identified with a handicap. These tutors required teaching certification by state law, and the school district received a partial reimbursement (50%) from the State for those services in accordance with Ohio Administrative Code 3301-51-06. The Board also hired persons they called "tutors" to provide services for students that the district identified as needing additional assistance, but who were not legally designated as handicapped. The Board was not required by federal or state law to provide the second category of services and the program was funded exclusively through local monies, i.e., the Board received no reimbursement from the State Department of Education for provision of this second category of services. Further, there was no requirement under federal or state law that the individuals performing the second category of locally funded services hold any specific teaching certification. The Board elected, however, to require teaching certification for individuals performing the additional services because certificated individuals were available, and the Board determined it was in the best interest of the district and its students to employ certificated individuals for learning assistant positions. Following the Brown decision, the Board changed its program for providing (1) special education tutoring services and (2) other learning assistance services to students. Specifically, the Board created a separate formal category of tutors whose instructional assignments require responsibility for individual or small group -4- education for disabled students in accordance with the students' individual education plans ("IEPs"). These tutors providing special education services are required to be properly certificated for the specific services being provided (e.g., hearing impaired; learning disability). The Board chose to continue locally funded support services for regular education students who require extra assistance by creating a separate category of "learning assistants" to provide that support. Neither state nor federal law or regulation required learning assistants to obtain teaching certification, and the Board did not separately require such certification. The Board required only that learning assistants obtain an educational aide permit in accordance with R.C. 3319.088. Learning assistants do not provide services to legally identified handicapped students pursuant to their IEPs but rather work with (a) new American students for whom English is a second language; (b) at-risk students who are not eligible for special education; (c) students with special needs (such as attention deficit disorders) who are not otherwise eligible for special education; (d) students with behavioral difficulties who do not qualify for special education; and (e) students requiring intervention to pass the mandatory state proficiency test. Prior to August 17, 1989, tutors were compensated at an hourly rate less than the State Minimum Teachers' Salary Schedule, based upon the prevailing market conditions and the Superintendent's recommendation. Since August 17, 1989, the Board adopted the State -5- Minimum Teachers' Salary Schedule, R.C. 3317.13, for purposes of calculating a tutor's hourly wage. A separate hourly rate is adopted by the Board annually for learning assistants, based upon the prevailing market conditions and the Superintendent's recommendations. Classroom teachers are employed on an annual salary schedule published in the collective bargaining agreement negotiated between the Rocky River Teachers' Association ("RRTA") and the Board (hereinafter the "RRTA Master Agreement"). Respondent Board receives partial reimbursement from the State Department of Education on an hourly, rather than salaried, basis for certificated tutors pursuant to O.A.C. 3301-51-04(G)(7)(b). The Board receives no reimbursement from the State Department of Education for its learning assistants. EMPLOYMENT HISTORY OF RELATORS Paula Binder Relator Binder has been employed by the Rocky River School District for fifteen years. Since the restructuring of the Learning Resource Services Program in August of 1989, Binder has been employed in two capacities: as a specific learning disability ("SLD") tutor and as a learning assistant. Binder holds teaching certification in grades K through 12 to teach special education students who have been identified as disabled and are educated under IEPs. She is also certificated to teach English for grades 7 through 12. Her only other certification is the educational aide certificate. -6- When working as a SLD or special education tutor, Binder works with students who have individualized education plans ("IEPs"), which are written plans required by state law for students qualifying for special education. As a tutor, most of Binder's students have specific learning disabilities in the areas of either reading comprehension, reading skills, written skills, listening comprehension, oral language or math skills, or reasoning skills. She also teaches a visually impaired student and a hearing handicapped student. When working as a learning assistant, Binder works with high school students who require additional assistance by virtue of falling into one of the following categories: (a) attention deficit disorders who are not otherwise eligible for special education; (b) new American students who have English as a second language; (c) at-risk students who are not otherwise eligible for special education; and (d) students who require intervention to pass the mandated state proficiency test. When performing her responsibilities as a tutor or as a learning assistant, Binder works with students in an area of the Rocky River High School called the Learning Resource Center ("LRC") which is a room separate from the students' regular classrooms. Dorothy Fleming Relator Fleming has been employed by the Rocky River School District from 1972 to 1974, 1976 to 1980, and regularly since 1982. Since the restructuring of the Learning Resource Services Program, -7- Fleming has been employed in two capacities; as an individual small group instruction tutor for special education (learning disabled) students and as a learning assistant for regular education students who require further educational assistance. Fleming works in the middle school (grades 6 through 8). For the relevant periods of time, Fleming held teaching certification in elementary grades 1 through 8 and special education grades K through 12 for learning disabled and behavioral disabled. When working as a special education tutor, Fleming works with students in accordance with the students' IEPs which are prepared by Fleming. When working as a learning assistant, Fleming has worked with middle school students who require additional assistance by virtue of falling into one of the following categories: (a) at-risk students who are not otherwise eligible for special education; (b) new American students who have English as a second language; and (c) students who require intervention to pass the mandated state proficiency test. When performing her responsibilities as a tutor or as a learning assistant, Fleming works with students in the LRC of the middle school which, as in the high school, is a room separate from the students' regular classroom. -8- Carol Weissinger Relator Weissinger has been employed by the Rocky River School District since January 1980. Since August, 1989, Weissinger, like the other Relators, has been employed in two capacities: as a special education tutor and as a learning assistant. Weissinger works at the high school. For the relevant periods of time, Weissinger held teaching certification for grades 1 through 8 and special education for grades K through 12. When working as a special education tutor, Weissinger works with students in accordance with the student's IEPs, which are prepared by Weissinger. As a learning assistant, Weissinger has been working with two students who required assistance to pass the mandated state proficiency test and a hearing handicapped student who required assistance in math. When performing her responsibilities as a tutor or as a learning assistant, Weissinger works with students in the LRC of the high school. CERTIFICATION AND TERMS OF EMPLOYMENT OF LEARNING ASSISTANTS, TUTORS, AND CLASSROOM TEACHERS Learning assistants are not required to hold a teaching certificate in accordance with state law but are required to maintain a valid educational aide certificate. Respondents have -9- previously employed as learning assistants persons who have never held any teaching certification. Honors students have performed learning assistant duties at the high school in the past. Tutors must be certificated for the specific special education service being provided, (i.e. the specific handicap of the student whom they are tutoring). While Relator Binder holds certification in grades K through 12 to work with special education students, her only other teacher certification is in the area of English for grades 7 through 12. Since Binder is not certificated to teach regular education high school students in areas other than English she is not teacher- certificated to teach the other subjects that she assists students with as a learning assistant, e.g., high school math. Relator Fleming is teacher-certificated to teach the subjects and grade levels that she assists students with as a learning assistant, i.e. grades K through 8. While Relator Weissinger is certificated as a special education teacher for grades K through 12, she does not hold any other high school certification that would allow her to teach high school regular education students. She holds a teaching certificate for grades 1 through 8. Respondent Board does not extend to Relators the same benefits as provided to full-time classroom teachers. The terms and conditions of employment of regular classroom teachers are, and at all material times have been, governed by collective bargaining agreements. Certificated tutors and noncertificated learning -10- assistants who have educational aide permits have been excluded from the RRTA Master Agreement. All classroom teachers are employed pursuant to written limited or continuing teaching contracts. Certificated tutors and learning assistants are employed from year to year pursuant to tutor or learning assistant employment contracts. Employment of tutors and learning assistants must be approved annually by Board resolution. Relators participate in the State Teachers Retirement System per R.C. Chapter 3307 while employed as tutors. Relators participate in the State Employees Retirement System per R.C. 3309 while employed as learning assistants. DUTIES AND RESPONSIBILITIES Classroom Teachers Classes taught by classroom teachers generally range from 20 to 30 students, with the average class size being approximately 25 students. The workday of the classroom teachers is described in Article XIV of the RRTA Master Agreement. Unlike learning assistants and certificated tutors, classroom teachers are and have been assigned to perform extra duties such as bus supervision; supervision of students outside the building before and after school; playground supervision; in-school suspension; after-school detention; study hall; hall supervision; and lunch supervision. Classroom teachers are also required to participate in faculty meetings and curriculum development. The curriculum for a -11- particular subject is developed by a curriculum committee in which teachers participate. Courses of study for each subject to be taught are developed by groups of classroom teachers and submitted to the Board for review. After adoption by the Board, the official courses of study are submitted to the State Department of Education for approval. The classroom teachers have the responsibility for introducing the elements of each course of study through daily lessons and for ensuring that when the student is finished with a grade in a particular course, that the student has mastered the objectives of a subject. Classroom teachers are expected to prepare lesson plans for teaching a particular course of study. The classroom teachers are also responsible for monitoring students' mastery of courses of study through tests and other evaluation instruments. Classroom teachers are responsible for assigning grades to students. Certificated Tutors Certificated tutors employed by Respondents are those tutors whose instructional assignments require responsibility for individual or small group education for disabled students in accordance with the students' IEPs. The duties assigned to certificated tutors are set forth in a Tutor Handbook. Certificated tutors are restricted, by law, to small group instruction of no more than three students during a given period. A special education tutor is responsible for writing goals and objectives for each special education student assigned to the -12- tutor, and those goals and objectives are placed on the student's IEP. The tutor is responsible for making sure those goals and objectives are met through the lesson plans developed by the tutor and in working with the student. The special education tutor is the one who is responsible for implementing the student's IEP. Tutors evaluate and test students assigned to them to determine if the goals that are on the IEP have been met and what further instruction is needed and what new goals need to be set. Tutors are required to have conferences with the parents of their IEP students. Tutors, like teachers, get planning and conference time. Record-keeping requirements of tutors are more extensive than for learning assistants. Learning Assistants Students who utilize the services of learning assistants are generally referred through the guidance office and assigned to a learning assistant by the Coordinator of Learning Resource Services. The duties assigned to learning assistants are set forth in a Learning Assistant Handbook. The number of students with whom a learning assistant may work at any given time is not limited by state law and learning assistants might work with as many as five students in a period and have as many as 15 students in a day. Learning assistants are not expected to, nor do they, participate in curriculum development or course of study planning which are developed by classroom teachers. Learning assistants are not required to prepare or develop lesson plans or IEPs. Learning -13- assistants are not expected to develop educational goals and objectives for the learning assistant students that they serve. Learning assistants are not required or expected to, nor do they, develop tests or evaluation instruments for their learning assistant students. Any tests administered by learning assistants are developed by the classroom teachers to test the goals set by the classroom teachers. Learning assistants do not assign grades to students. Learning assistants are not required to create instructional materials, but are expected to use materials created or provided by the classroom teachers, such as syllabi, lesson plans, homework assignments, tests and quizzes, and outlines. Learning assistants do not introduce new educational concepts for the first time to the students they assist nor do they decide when particular concepts will be introduced to the students. They reteach, review, support, reinforce and provide extra practice with concepts originally introduced to the student in the regular classroom. Learning assistants do not cover the entire curriculum or course of study with their students, but assist each student only with individual concepts or discrete skills, i.e. a small piece of a larger course that the student is having difficulty learning. The classroom teacher's job is to teach the whole content of a subject and is responsible for the students learning the course from the beginning to the end. Learning assistants do assist in instructional tasks, but are considered by the Board to be assistants to the classroom teachers -14- from which the learning assistant students come to the LRC for the additional assistance provided by the learning assistants. Learning assistants work under the supervision and direction of teachers. The supervision of learning assistants is twofold: (1) the classroom teachers determine the subject matter that the learning assistant students must master, and (2) the coordinators of the LRCs direct and supervise the work of the learning assistants. Supervision by Classroom Teacher. The classroom teacher determines what material is to be taught, how it is to be taught and when it is going to be taught. The students who go to the LRC for learning assistance bring materials from the classroom teacher to work on, such as homework assignments, projects or problems. The classroom teacher then determines and directs the content of the work that the learning assistant will do with each student. Supervision by Coordinators. The coordinator of the LRC for the high school is Cathy Calamia. Ms. Calamia is a certificated teacher in English, grades 7 through 12; reading, grades K through 12; and biology, grades 9 through 12. The coordinator of the LRC for the middle school is Diane Delsanter. Ms. Delsanter is certificated in special education, grades K though 12; elementary education, grades 1 through 8, and holds a supervisor certificate. Both coordinators hold teacher's contracts and supplemental teaching contracts as coordinators with the Rocky River School District. Both coordinators are members of the Rocky River Teachers' Association bargaining unit, and the RRTA Master -15- Agreement recognizes coordinators as teachers. Both coordinators are compensated in accordance with the negotiated teachers' salary schedule included in the collective bargaining agreement and in accordance with their supplemental teaching contracts as coordinators. Ms. Calamia and Ms. Delsanter as coordinators of their respective LRCs are responsible for the overall supervision of the learning assistants and those students serviced in their LRCs. The coordinators participate in the determination of whether a student is an appropriate candidate for learning assistant services and are responsible for the assignment of students to individual learning assistants. The coordinators monitor the work of the learning assistants to assure that services are being appropriately rendered. The coordinators provide input, suggestions and strategies to the learning assistants for use in their work assisting students. Ms. Calamia is also responsible for monitoring the learning assistants in terms of tardiness, attendance and compliance with personnel procedures. The coordinators are also responsible for directing classroom teachers to provide a constant flow of information to the LRC staffs including lesson plans, syllabi, schedules of quizzes and tests, term paper requirements, extra credit projects, homework assignments and other materials to assist the learning assistants in working with students. -16- II. LAW AND APPLICATION A writ of mandamus compelling back pay and corresponding benefits will be issued only when the relator establishes a clear legal right to the relief requested, that the respondent has a clear legal duty to perform the act requested, and that the relator has no plain and adequate remedy in the ordinary course of law. State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn. (1994), 69 Ohio St.3d 217, 631 N.E.2d 150. Relators as Tutors While this action was pending, the Supreme Court of Ohio decided State ex rel. Chavis v. Sycamore City School Dist. Bd. of Edn. (1994), 71 Ohio St.3d 26, 641 N.E.2d 188. In Chavis, the court held that tutors who provided learning disabled and secondary English tutoring services provided instruction to students and therefore were "teachers" for purposes of compensation. The court held that the tutor-teachers, even though excluded from the collective bargaining agreement, were entitled to be paid at the collectively-bargained rate since the Board had adopted the collectively-bargained salary schedule for teachers pursuant to R.C. 3317.14. R.C. 3317.14 provides, in relevant part, that "[a]ny school district board of education . . . participating in funds distributed under Chapter 3317. of the Revised Code shall annually adopt a teachers' salary schedule with provision for increments based upon training and years of service. * * * On the fifteenth day of October of each year the salary schedule in effect on that -17- date in each school district . . . shall be filed with the superintendent of public instruction. * * * No teacher shall be paid less than the salary to which such teacher is entitled pursuant to section 3317.13 of the Revised Code." R.C. 3317.13 delineates the minimum salary schedule for teachers. Relying on Chavis, relators contend that they, too, while employed by the Board as tutors who instruct students have a clear legal right to compensation pursuant to the collectively-bargained salary schedule for teachers because the collectively-bargained salary schedule was the only teachers' salary schedule filed with the superintendent of public instruction pursuant to R.C. 3317.14. In light of Chavis and earlier case law, State ex rel. Tavenner v. Indian Lake Local School Dist. Bd. of Edn. (1991), 62 Ohio St.3d 88, 578 N.E.2d 464; State ex rel. Brown v. Milton-Union Exempted Village Bd. of Edn. (1988), 40 Ohio St.3d 21, 531 N.E.2d 1297, respondents do not dispute the status of relators as "teachers" when employed as tutors. In fact, since August, 1989, respondents have paid relators in accordance with the R.C. 3317.13 teachers' salary schedule while relators were employed as tutors. Respondents challenge relators' claimed right to be compensated pursuant to the negotiated teachers' salary schedule. Respondents support their challenge and distinguish Chavis with the undisputed fact that since August 17, 1989, the Board adopted the R.C. 3317.13 state minimum teachers' salary schedule for purposes of compensating relators while employed as tutors. Relators indeed have stipulated that since August 17, 1989, the -18- Board adopted the statutory teachers' salary schedule for purposes of calculating the tutors' hourly wages. In Chavis, the Sycamore school board had adopted only one teachers' salary schedule, that being the negotiated salary schedule. In our case the Board adopted two teachers' salary schedules: (1) the statutory salary schedule for the payment of teachers employed as tutors and (2) the negotiated salary schedule for the payment of teachers employed as classroom instructors. We find nothing inherently wrong with the Board's decision to compensate teachers according to different salary schedules while working under different circumstances, as long as, according to R.C. 3317.14, no teacher is paid less than the statutory minimum. See, generally, State ex rel. Burch v. Sheffield-Sheffield Lake City School Dist. Bd. of Edn. (1996), 75 Ohio St.3d 216. The fact that the Board did not file the adopted salary schedule for tutors until the 1993-94 school year does not persuade us to find this omission fatal to the position of the Board. Since August, 1989, the Board indisputably adopted the additional salary schedule, entered into contracts and paid its teacher-tutors accordingly, contributed to the State Teachers Retirement System, and received its partial reimbursement from the state based upon the adopted, but not physically filed, teachers' salary schedule. We believe the Board so substantially complied with its obligations that to hold otherwise in this case would produce an injustice. Based on Chavis, we reach a different result for the time period relators worked prior to the Board's adoption of the -19- statutory teachers' salary schedule. The parties stipulated that at all material times the terms and conditions of employment of classroom teachers were governed by collective bargaining agreements. Consequently, relators are entitled to the difference in compensation between the collectively-bargained rate and the hourly rate they were paid while working as tutors for the time period prior to the Board's adoption of the statutory salary schedule. Applying the six-year statute of limitations, see R.C. 2305.07; State ex rel. Gingrich v. Fairfield City Bd. of Edn. (1985), 18 Ohio St.3d 244, 480 N.E.2d 485, relators are entitled to back compensation equal to the difference between their actual pay and the pay they would have earned calculated pursuant to the 1987- 88 and 1988-89 negotiated salary schedules for their concomitant time periods worked between January 13, 1988 and August 17, 1989. The Board is also liable to the State Teachers' Retirement System in the appropriate amounts for each relator, see Gingrich, 18 Ohio St.3d at 245, and will be liable for postjudgment interest, R.C. 1343.03(A); State ex rel. Tavenner v. Indian Lake Local School Dist. Bd. of Edn. (1991), 62 Ohio St.3d 88, 90-91, 578 N.E.2d 464. Each party shall bear its own costs and attorneys' fees. Finally, the Board has raised the affirmative defense of laches to bar relators' claims. Laches is established upon a showing of (1) an unreasonable delay in asserting a right, (2) the absence of an excuse for the delay, (3) actual or constructive knowledge of the injury or wrong, and (4) prejudice by the delay in asserting the claim. State ex rel. Cater v. N. Olmsted (1994), 69 -20- Ohio St.3d 315, 631 N.E.2d 1048; Kennedy v. Cleveland (1984), 16 Ohio App.3d 399, 476 N.E.2d 683. The mere lapse of time cannot establish the element of prejudice. State ex rel. Meyers v. Columbus (1995), 71 Ohio St.3d 603, 646 N.E.2d 173; State ex rel. Chavis v. Sycamore City School Dist. Bd. of Edn. (1994), 71 Ohio St.3d 26, 641 N.E.2d 188. The Board argues and avers that it has demonstrated prejudice since, absent successful litigation, it cannot collect its partial reimbursements from the state for any amounts it may be held to owe to relators. There is no evidence, however, that if, in fact, the Board cannot recoup its partial reimbursement from the state, that the Board cannot fulfill its obligation to pay the additional ordered amount. As in Chavis, the Board has failed to show any detriment to the Board's ability to defend against this mandamus action. Because we find that respondent has failed to establish the element of prejudice, we render no opinion on whether relators' delay in asserting their claims was reasonable. Relators as Learning Assistants In the recent case of State ex rel. Ekey v. Rocky River Bd. of Edn. (Apr. 23, 1996), Cuyahoga App. No. 67155, unreported, this court held that a teacher certified in grades one through eight who was employed as a learning assistant was not entitled to compensation pursuant to the Board's salary schedule for teachers. The court concluded that the relator was not entitled to and the Board was prohibited from paying the higher teacher salary because -21- the relator was not teacher-certified at the level for which she provided assistance. The court also concluded that relator failed to demonstrate that her activities as a learning assistant were closer to those of a teacher as opposed to the duties and responsibilities of an educational aide. Similarly, in our case, relators Binder and Weissinger are not properly certified to teach general high school students and therefore are not entitled to compensation pursuant to any teachers' salary schedule while working as learning assistants with general high school students. Additionally, as in Ekey, the relators failed to establish plainly, clearly and convincingly that the work they perform as learning assistants is the same or close to that of a teacher rather than an educational aide. To the contrary, the evidence as set forth in the Commissioner's findings is overwhelming with respect to the distinctions between the duties and responsibilities of regular teachers and learning assistants. Moreover, on previous occasions the Board has used honor students to perform the same duties as learning assistants. This indicates to us that the qualifications and skills of a teacher are not necessary for or utilized by learning assistants. The fact that the Board hired "overqualified" individuals who were available and willing to work as learning assistants does not mean that the Board should be required to pay professional or inflated wages for the position. As in Ekey, absent the Board's failure to discharge a clear legal duty, this court cannot presume to substitute its -22- judgment for that of the Board with respect to the allocation of its resources. III. CONCLUSIONS AS TO LIABILITY Accordingly, for the time periods relators worked as teacher- tutors between January 13, 1988 and August 17, 1989, the Board shall compensate relators for the differences between what they were paid and what they would have earned pursuant to the negotiated teachers' salary schedule in effect at the relevant times, including any postjudgment interest due, if any, after final judgment in this matter. The Board shall also make the appropriate contributions to the State Teachers' Retirement System for each relator for the relevant time periods worked. Each party shall bears its own costs and attorneys' fees. IV. DAMAGES A joint stipulation, or a declaration as to the inability to stipulate, as to the amounts owed to each relator pursuant to this partial judgment are due twenty-one days after the date of this order. HARPER, J., and .