COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70398 STATE OF OHIO EX REL. : MICHAEL McGINTY : : RELATOR : JOURNAL ENTRY : v. : AND : CLEVELAND CITY SCHOOL DISTRICT, : OPINION BOARD OF EDUCATION : : MOTION NO. 76620 RESPONDENT : DATE OF ANNOUNCEMENT OF DECISION: JANUARY 13, 1997 CHARACTER OF PROCEEDING: MANDAMUS JUDGMENT: DENIED DATE OF JOURNALIZATION: APPEARANCES: For Petitioner: Jeremy A. Rosenbaum, Esq. Larry S. Gordon, Esq. Berkman, Gordon, Murray & Devan 55 Public Square 2121 Illuminating Building Cleveland, OH 44113 For Respondent: George S. Crisci, Esq. Cleveland Board of Education 1380 East Sixth Street Cleveland, OH 44114 Wanda Rembert Arnold 1380 East 6th Street, No. 152 Cleveland, OH 44114 -3- DAVID T. MATIA, P.J.: Relator avers that he had been employed by respondent board from 1965 until 1978 as well as from 1979 to 1993 and as a manager from 1982 until the nonrenewal of his contract in 1993. He further avers that, although respondent issued him a one-year contract for the 1992-93 school year [Complaint, Exh. A], R.C. 3319.02(C) required that respondent issue a two-year contract because relator had been an "other administrator" for three years or more. Also attached to the complaint is a copy of the notice of nonrenewal which respondent delivered to relator in March, 1993. Complaint, Exh. B. Relator contends that the board failed to issue a notice of nonrenewal of his two-year contract for 1992-94. As a result, relator further contends that he was effectively reemployed for the 1994-96 school years. Relator requests that this court compel respondent to: a) issue contracts for the 1992-94 school years and the 1994- 96 school years; b) compensate him for back pay and benefits; c) reinstate him. This court denied relator's application for alternative writ and respondent's cross-motion for judgment on the pleadings. In response to a scheduling order, the parties filed stipulations and briefs. For the reasons stated below, we deny relator's request for relief in mandamus. In 1987, the general assembly revised R.C. 3319.02(A) to include the language capitalized below: -4- As used in this section, "other administrator" means any employee in a position for which a board of education requires a certificate [described in specific divisions of R.C. 3319.22] OR ANY OTHER EMPLOYEE, EXCEPT THE SUPERINTENDENT, WHOSE JOB DUTIES ENABLE HIM TO BE CONSIDERED AS EITHER A "SUPERVISOR" OR A "MANAGEMENT LEVEL EMPLOYEE," AS DEFINED IN SECTION 4117.01 OF THE REVISED CODE. Am.H.B. No. 107, 142 Ohio Laws 2017 (Capitalization in original). In the same bill, the general assembly also revised R.C. 3319.02(C): *** The board of education shall execute a written contract of employment with each assistant superintendent, principal, assistant principal, and other administrator it employs or reemploys. The term of such contract shall not exceed three years except that when IN THE CASE OF A PERSON WHO HAS BEEN EMPLOYED BY THE SCHOOL DISTRICT AS an assistant superintendent, principal, assistant principal, or other administrator has been employed by the school district for three years or more, the term of his contract shall not be for less than two nor NOT more than five years AND, UNLESS THE SUPERINTENDENT OF THE DISTRICT RECOMMENDS OTHERWISE, NOT LESS THAN TWO YEARS. IF THE SUPERINTENDENT SO RECOMMENDS, THE TERM OF THE CONTRACT OF A PERSON WHO HAS BEEN EMPLOYED BY THE SCHOOL DISTRICT AS AN ASSISTANT SUPERINTENDENT, PRINCIPAL, ASSISTANT PRINCIPAL, OR OTHER ADMINISTRATOR FOR THREE YEARS OR MORE MAY BE ONE YEAR, BUT ALL SUBSEQUENT CONTRACTS GRANTED SUCH PERSON SHALL BE FOR A TERM OF NOT LESS THAN TWO YEARS AND NOT MORE THAN FIVE YEARS. *** An assistant superintendent, principal, assistant principal, or other administrator is, at the expiration of his current term of employment deemed reemployed for a term of one year at the same salary plus any increments that may be authorized by the board of education, unless he notifies the board in writing to the contrary on or before the first day of June, or unless such board, on or before the last day of March of the year in which his contract of employment expires, either reemploys him for a succeeding term or gives him written notice of its intention not to reemploy him. THE TERM OF REEMPLOYMENT OF A PERSON REEMPLOYED UNDER THIS PARAGRAPH SHALL BE ONE YEAR, EXCEPT THAT IF SUCH PERSON HAS BEEN EMPLOYED BY THE SCHOOL DISTRICT AS AN ASSISTANT SUPERINTENDENT, PRINCIPAL, ASSISTANT PRINCIPAL, OR OTHER ADMINISTRATOR FOR THREE YEARS OR MORE, THE TERM OF REEMPLOYMENT SHALL BE TWO YEARS. -5- Am.H.B. No. 107, 142 Ohio Laws 2018-19 (Capitalization and deletion in original). [Since 1987, the general assembly has revised these provisions of R.C. 3319.02 by, for example, substituting gender- neutral language and including educational service centers (R.C. Chapter 3311). The substance of the portions of R.C. 3319.02 which are relevant to this action, however, has not changed.] In its answer, respondent admits that relator was among the "other administrators" defined in R.C. 3319.02(A). Answer, par. 4. The issue in this action, therefore, is whether the provisions in R.C. 3319.02(C) quoted above entitle relator to additional compensation after the nonrenewal of his contract in 1993. We must apply the controlling provisions of R.C. 3319.02 to the facts in the record in order to determine whether relator has a clear legal right to employment after August 6, 1993 and whether respondent has a clear legal duty to continue his employment. The parties stipulate that [r]elator *** was employed by Respondent in various positions from 1965 until 1978 and then from 1979 until the nonrenewal of his contract in 1993. From 1982 and until the nonrenewal of his employment, Relator held the title and performed the duties of Manager-technical support. At all times relevant, Relator was qualified to perform the duties associated with the positions he held. Stipulations, par. 2. They further stipulate that: respondent did not execute a written contract with relator for the school years 1987-1988, 1988-1989, 1989-1990, 1990-1991 and 1991-1992 (Stipulations, par. 5); for the year commencing August 8, 1992 and ending August 6, 1993, respondent tendered and relator signed a one-year written contract dated October 1, 1992 which accompanied a -6- letter from the superintendent dated October 28, 1992 (Stipulations, par. 6; Exhibits D and E). R.C. 3319.02(C) requires that "[t]he board of education shall execute a written contract of employment with each *** other administrator it employs or reemploys." Nevertheless, the parties stipulate that, when the amendments to R.C. 3319.02 which are quoted above became effective on September 10, 1987, relator did not have a written contract with respondent. Stipulations, par. 5. The plain language of R.C. 3319.02(C) anticipates this circumstance, however. R.C. 3319.02(C) clearly states that an administrator is "deemed reemployed" by operation of law unless the board of education notifies the administrator that it will not reemploy him or her. State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn. (1994), 69 Ohio St.3d 217, 222, 631 N.E.2d 150. The record does not reflect any notice before March 31, 1987 of respondent's "intention not to reemploy" relator. R.C. 3319.02(C) also specifies the term of relator's reemployment. THE TERM OF REEMPLOYMENT OF A PERSON REEMPLOYED UNDER THIS PARAGRAPH SHALL BE ONE YEAR, EXCEPT THAT IF SUCH PERSON HAS BEEN EMPLOYED BY THE SCHOOL DISTRICT AS AN *** OTHER ADMINISTRATOR FOR THREE YEARS OR MORE, THE TERM OF REEMPLOYMENT SHALL BE TWO YEARS. Am.H.B. No. 107, 142 Ohio Laws 2019 (Capitalization in original). Initially, we must determine whether relator was employed as an other administrator for three years or more when the 1987 amendments to R.C. 3319.02(C) became effective. -7- As mentioned above, the parties stipulate that: "From 1982 and until the nonrenewal of his employment, Relator held the title and performed the duties of Manager-technical support." Stipulations, par. 2. Additionally, the pleading reflects that the parties do not dispute that relator was among the "other administrators" defined in R.C. 3319.02(A). Complaint, par. 4; Answer, par. 4. The parties also stipulate that the position advertised by respondent in 1993 was "the very position or one substantially the same as the position previously held by Relator." Stipulations, par. 12. A review of the duties and responsibilities set forth in the announcements of vacancies issued by respondent (Exhibits U and V) demonstrates that relator's position as manager-technical support was one which fits the definition of "other administrator" under R.C. 3319.02(A). Cf. R.C. 4117.01(F) ["`Supervisor' means any individual who has authority *** to responsibly direct" other public employees]. Relator argues, inter alia, that 1987 is the first year of relator's employment as an administrator. As a consequence, relator contends that, after three one-year terms by operation of law for the school years 1987-1988, 1988-1989 and 1989-1990, relator received two-year terms by operation of law for the school years 1990-1992, 1992-1994. Relator further contends that--because no notice of intention to reemploy relator was issued in 1994 prior to March 31, 1994--he received a two-year term by operation of law for the school years 1994-1996. Yet, this and the other possible -8- interpretations of R.C. 3319.02 posited by relator fail to acknowledge the express provisions of R.C. 3319.02. The standards for applying R.C. 3319.02 are well-established. R.C. 3319.02 is a remedial statute that must be liberally construed in favor of administrators. State ex rel. Smith v. Etheridge (1992), 65 Ohio St.3d 501, 605 N.E.2d 59, syllabus; R.C. 1.11. Pursuant to R.C. 3319.02(C), a board of education's failure to provide timely written notice of its intention not to reemploy an administrator results in the administrator's entitlement to mandamus to be reemployed by the board. State ex rel. Luckey v. Etheridge (1992), 62 Ohio St.3d 404, 583 N.E.2d 960; State ex rel. Brennan v. Vinton Cty. Local School Dist. Bd. of Edn. (1985), 18 Ohio St.3d 208, 18 OBR 271, 480 N.E.2d 476. Cassels, supra, at 219. The record indicates that, at the time the 1987 amendments became effective, relator had been serving as manager-technical support for more than three years, i.e., since 1982. Construing the amendments in favor of relator as of the effective date, we must conclude that the term of relator's reemployment was two years. He had not received the required notice of the board's intention not to reemploy him in 1987. By operation of law, therefore, he was reemployed for a two-year term for the years 1987-1989. Likewise, he was reemployed by operation of law for two-year terms for the years 1989-1991, 1991-1993. We recognize that respondent's conduct was frequently inconsistent with this conclusion. For example, the parties stipulate that relator would testify that, during the annual evaluation process, he was advised by his superiors that he would be reemployed. Stipulations, par. 5. Yet, the Supreme Court has held that failure to comply with the evaluation process required by -9- R.C. 3319.02(D) does not invalidate a decision of a board of education not to reemploy an administrator if the board has complied with the notice requirement of R.C. 3319.02(C). Cassels, supra. Similarly, respondent's tendering and withdrawing a written contract (Exhibits A and B) as well as the superintendent's writing relator in 1992 and indicating that relator was "employed on an at- will basis" do not supersede the mandate of R.C. 3319.02(C) that relator was reemployed by operation of law unless he received the requisite notice. The parties stipulate that respondent "gave notice of the non- renewal of Relator's contract (Exhibit E) [for the school year 1992-1993] by the `last day of March 1993.'" Stipulations, par. 7; Exhibit F. Relator argues, however, that the school year 1992- 1993 was the first year of a two-year term ending in 1994. Relator asserts that the 1993 notice would not be effective because it was not given to relator "on or before the last day of March of the year in which his contract of employment expires." R.C. 3319.02. That is, relator would have us hold that the notice was not effective because it was not given to relator in 1994 before the last day of March. It is not necessary for us to decide this issue, however. Rather, R.C. 3319.02(C) requires that we conclude that, by operation of law, relator was serving in the second year of a two- year term of reemployment at the time he received the March, 1993 notice of intention not to reemploy him. That is, having served as an administrator for more than three years prior to the effective -10- date of the amendments of R.C. 3319.02(C), he was reemployed by operation of law for two-year terms for the school years 1987- 1989, 1989-1991 and 1991-1993. As a consequence, the March, 1993 letter, Exhibit F, discharged the board's duty to notify him and terminated his employment effective August 6, 1993. The one-year contract for the school year 1992-1993, Exhibits D and E, is not controlling. That is, the contract did not affect the two-year term of reemployment for the school years 1991-1993. We hold, therefore, that the notice of nonrenewal which respondent delivered to relator in March, 1993 was timely and prevents relator from maintaining this action in mandamus. Accordingly, relator's request for relief in mandamus is denied. Relator to pay costs. Writ denied. DAVID T. MATIA, PRESIDING JUDGE LEO M. SPELLACY, J., CONCURS WITH SEPARATE CONCURRING OPINION; and DIANE KARPINSKI, J., DISSENTS WITH DISSENTING OPINION. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70398 STATE OF OHIO, EX REL. : MICHAEL McGINTY : : Relator : : CONCURRING -vs- : : OPINION CLEVELAND CITY SCHOOL DISTRICT : : Respondent : DATE OF ANNOUNCEMENT OF DECISION: JANUARY 13, 1997 LEO M. SPELLACY, J., CONCURRING: I concur in the majority opinion and write separately to clarify issues raised in the dissent. As stated in the majority opinion, R.C. 3319.02(C)--as amended in 1987-- provides in part: *** The board of education shall execute a written contract of employment with each *** other administrator it employs or reemploys. The term of such contract shall not exceed three years except that *** IN THE CASE OF A PERSON WHO HAS BEEN EMPLOYED BY THE SCHOOL DISTRICT AS an *** other administrator *** for three years or more, the term of his contract shall *** be for *** NOT more than five years AND, UNLESS THE SUPERINTENDENT OF THE DISTRICT RECOMMENDS OTHERWISE, NOT LESS THAN TWO YEARS. IF THE SUPERINTENDENT SO RECOMMENDS, THE TERM OF THE CONTRACT OF A PERSON WHO HAS BEEN EMPLOYED BY THE SCHOOL DISTRICT AS AN *** OTHER ADMINISTRATOR FOR THREE YEARS OR MORE MAY BE ONE YEAR, BUT ALL SUBSEQUENT CONTRACTS GRANTED SUCH PERSON SHALL BE FOR A TERM OF NOT LESS THAN TWO YEARS AND NOT MORE THAN FIVE YEARS. (Emphasis added.) The superintendent recommended that relator receive a one-year contract for the school year 1992-1993. - 2 - (Stipulation, Exh. L.) The record does not reflect any other executed contracts. Under R.C. 3319.02(C), a one-time, one-year contract would have been permissible. Likewise, the March 29, 1993, notice of nonrenewal would have been sufficient to terminate the one-year contract. (Stipulations, Exhibit F). The majority finds that, during the 1992-1993 school year, relator was in the second year of a two-year term effected by operation of law pursuant to R.C. 3319.02(C). The dissent finds that a two-year term ended with the 1991-1992 school year. A necessary inference which results from the finding stated in the dissent is that the 1992-1993 school year begins a new period of employment either by contract or by operation of law. The portion of R.C. 3319.02(C) quoted above demonstrates that the dissent's conclusion regarding the timing of the two-year terms requires the same result as that reached by the majority. That is, if the 1992-1993 school year begins a new term of employment, then relator was working under a statutorily authorized one-year contract. As a consequence, the March 29, 1993, notice of nonrenewal was effective. Accordingly, I concur in the judgment of the majority denying relief in mandamus. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70398 : STATE OF OHIO EX REL. : MICHAEL McGINTY : : Relator : : DISSENTING v. : : OPINION CLEVELAND CITY SCHOOL DISTRICT : : : Respondent : : : DATE OF ANNOUNCEMENT OF DECISION: JANUARY 13, 1997 KARPINSKI, J., DISSENTING: I respectfully dissent. The record shows the Cleveland Board of Education has ignored the R.C. 3319.02(C) state law requirements governing written contracts for administrators. Exhibit J1 reveals that as of 1992, five years after these amendments became effective, only a tiny fraction of the administrators listed on the six-page document were employed under contracts. McGinty was employed by the Board for approximately twenty- two years before the 1987 amendments to R.C. 3319.02 involved in this case. The Board originally tendered McGinty a written - 2 - contract dated December 11, 1987, for a period of three years. (Exhibit B.) Superintendent Tutela withdrew the contract before it was executed, however, claiming "confusion and misunderstanding surrounding the law change" in a letter dated January 22, 1988. (Exhibit C.) Superintendent Huml subsequently sent McGinty the following letter dated March 3, 1992: The Board has determined that Ohio law, specifically Section 3319.02 of the Ohio Revised Code, has required since 1987 that a written limited contract govern your employment. As you are aware, for a variety of reasons no such contract was entered into in 1987 or thereafter. The Board has concluded that because you do not have a written limited contract as required by Ohio law, you are employed on an at-will basis, and the Board may legally terminate your employment at any time at the sole discretion of the Board. Nevertheless, as a gesture of good faith, the Board is willing to treat you as though you have a current contract that expires in September of this year [1992]. Ohio Revised Code Section 3319.02 permits the Board either to renew or to decline to renew your contract as of that date. *** 1/ (Exhibit N.) The Board finally issued McGinty a written contract dated October 1, 1992. The contract recited that it was for a period of one year commencing retroactively from August 6, 1992 through August 6, 1993. The Board thereafter delivered a notice of non- renewal to McGinty on March 30, 1993. (Exhibit F.) R.C. 3319.02 generally requires school boards to issue to administrators with a length of experience such as McGinty written 1/ This interpretation of McGinty's employment as "at will" is a blatant misreading of the law. - 3 - contracts with terms of two to five years. When applying this requirement to the facts of this case, the majority begins with 1987, the effective date the statute was amended. Counting two- year intervals from that date, the majority views the contract as covering the second half of a two-year term ending in 1993. Appellant argues, on the other hand, because the one-year contract signed in 1992 (the first written contract issued since 1987) was required to be for two years, this contract initiated the first half of a two-year term ending in 1994. The latter interpretation of the two-year requirement should prevail because "R.C. 3319.02 is a remedial statute that must be liberally construed in favor of administrators." State ex rel. Smith v. Etheridge (1992), 65 Ohio St. 3d 501, syllabus. To be effective, a notice of non-renewal must be given by "the last day of March of the year in which the contract of employment expires." State ex rel. Lucky v. Etheridge (1992), 62 Ohio St.3d 404, syllabus. Because the Board's March 30, 1993, notice of non- renewal was more than one year prior to the mandated 1994 expiration of McGinty's written contract, the notice was ineffective. The concurring opinion argues to the contrary that McGinty's written contract expired after the notice in 1993 because the Board was exercising an exception, under R.C. 3319.02(C), permitting the offer of a one-time, one-year written contract for the 1993 school year. This argument is unpersuasive for two reasons. First, it ignores evidence that the parties continued their employment - 4 - relationship on an annual basis as they had prior to the 1987 amendments and that Superintendent Huml had already exercised the option under R.C. 3319.02, as amended, for the 1992 school year in the letter dated March 3, 1992. (Exhibit N.) Moreover, even if the option had not already been exercised as the concurring opinion argues, the statute does not purport to authorize the Board to exercise the option retroactively as in this case. Under the circumstances, I would grant the writ. To the extent that there is any ambiguity in the parties' relationship, the Board created it by consistently failing since 1987 to satisfy its statutory duty to execute written employment .