East Canton Education Ass'n v. McIntosh , 85 Ohio St. 3d 465 ( 1999 )

Douglas, J.

I

ECEA, McIntosh, and the board filed stipulations with the trial court in case No. 1995-CV-2208-1. In paragraph five they agreed that “[a]t its regular meeting of April 8, 1975, the Marlington Local School District Board of Education voted to grant Defendant McIntosh a continuing contract of employment.” In paragraph six they stated further that “[although the Marlington Local School District Board of Education took such action at its April 8, 1975 meeting, Defendant McIntosh has no recollection that a continuing contract of employment was ever physically issued to, or executed by him.”

ECEA correctly states that if McIntosh had attained continuing contract status as a teacher with Marlington in 1975, then he would be “entitled to a continuing contract [as a teacher] upon the non-renewal of his subsequent administrative employment” with Osnaburg. This conclusion is supported by R.C. 3319.11(B), which provides that “[t]eachers eligible for continuing service status in any * * * school district shall be those teachers qualified as described in division (B)(1) or (2) of section 3319.08 of the Revised Code, who within the last five years have taught for at least three years in the district, and those teachers who having attained continuing contract status elsewhere, have served two years in the district * * (Emphasis added.) Moreover, in State ex rel. Kelley v. Clearcreek Local School Dist. Bd. of Edn. (1990), 52 Ohio St.3d 93, 556 N.E.2d 173, this court held that “[a] certified teacher who has attained continuing service status in one school district, and who has served at least two years as an administrator in a second school district, is entitled to a continuing service, contract as a teacher in the second school district if the administrative contract is not renewed.” Id. at syllabus.

ECEA contends, however, that Osnaburg was justified in not reemploying McIntosh as a teacher in the district because McIntosh failed to establish that he actually attained continuing service status with Marlington. ECEA points out that the record does not contain a written continuing contract of employment between McIntosh and Marlington. Therefore, according to ECEA, in order to establish that he is entitled to continuing service status as a teacher with Osnaburg, McIntosh was required to comply with R.C. 3319.08, which he failed to do.

R.C. 3319.08 states that “[t]he board of education of each * * * school district * * * shall enter into written contracts for the employment and reemployment of all teachers.” (Emphasis added.) However, entitlement to continuing service status as a teacher is not dependent upon a written contract of employment between the teacher and the board. R.C. 3319.08 also provides that “[i]f the board adopts a motion or resolution to employ a teacher under a limited or continuing contract and the teacher accepts such employment, the failure of such parties to execute a written contract shall not void such employment contract.” (Emphasis added.) See, also, State ex rel. Smith v. Etheridge (1992), 65 Ohio St.3d 501, 505, 605 N.E.2d 59, 62 (“Ordinarily, R.C. 3319.08 will validate a contract where the board does not put such contract in writing but the employee performs his or her duties as though a written contract were present.”).

Specifically, ECEA points to the language “the teacher accepts such employment” in R.C. 3319.08, and asserts that, in the absence of a written contract between the teacher and the board, the teacher claiming continuing service status must present affirmative evidence that he or she had in fact accepted a continuing contract offer of employment. In this regard, ECEA claims that McIntosh “has not, and cannot, establish such acceptance.” ECEA states that “[t]here is no evidence in the record that [McIntosh] ever responded to the continuing contract offer; and, he did not commence performance pursuant to that offer of a continuing contract. Rather, [McIntosh] expressly accepted the [Marlington] Board’s subsequent offer of a limited (one-year) administrative contract of reemployment for the 1975-1976 school year and executed a written contract evidencing that acceptance. Plainly, the parties’ express and written agreement that [McIntosh] would be employed pursuant to a limited administrative contract for the 1975-1976 school year precludes a contemporaneous finding that [McIntosh] was employed during that year under a continuing teaching contract.”

We disagree. ECEA misinterprets the statute. In order to accept ECEA’s interpretation of R.C. 3319.08, we would have to add language to the statute that simply does not exist. By its very terms, R.C. 3319.08 does not contain language that places an affirmative duty on the teacher to establish that he or she had in fact accepted a continuing contract of employment. Rather, R.C. 3319.08, when read in conjunction with R.C. 3319.11(B)(1), supports a finding that the attainment of continuing service status by an eligible teacher is not dependent upon a written contract of employment between the teacher and a board of education. If, after a teacher attains continuing service status, the board adopts a motion or resolution to employ the teacher under a continuing contract of employment, the teacher will be considered to be employed and serving under a continuing contract of employment. In fact, the only qualifying condition precedent found in R.C. 3319.11(B)(1) is if the board, by a three-fourths vote, refuses to reemploy the teacher. Here, the board voted to grant McIntosh a continuing contract. In such a case, the teacher will have attained continuing contract status. Thus, we agree with the conclusions reached by the trial court and the panel of judges from the Seventh Appellate District sitting by assignment in the Fifth Appellate District that McIntosh had attained continuing service status as a teacher with Marlington in 1975.

We also reject ECEA’s assertion that MclntosNs acceptance of the administrative contract, subsequent to Marlington’s vote to offer him a continuing contract of employment, served as a rejection of that offer, thereby waiving his continuing contract status. R.C. 3319.02(C)³ expressly allows a teacher to accept an administrative position without jeopardizing his or her continuing service status as a teacher. See, also, Kelley, supra. Therefore, McIntosh did not waive his continuing teaching status upon subsequently accepting the administrative position with Marlington.

II

In case No. 96-CA-293, a panel of judges from the Ninth Appellate District sitting for the Fifth District Court of Appeals thoroughly reviewed relevant decisions from this court and the United States Supreme Court and concluded that McIntosh was neither a public official nor a public figure for purposes of his defamation claims. This ruling regarding McIntosh’s status was, also, subsequently adopted by the panel of judges from the Seventh Appellate District sitting for the Fifth Appellate District in case Nos. 97-CA-50, 97-CA-56 and 97-CA-60, “[s]o as to assure a consistent application of law within the context of the separate defamation claims.”

In New York Times Co. v. Sullivan (1964), 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, the United States Supreme Court held that the constitutional protections afforded by the First and Fourteenth Amendments prohibit a public official from recovering damages for alleged defamatory statements relating to his or her conduct unless the official can establish that the statement was made with actual malice. The court declined, however, to determine “how far down into the lower ranks of government employees the ‘public official’ designation would extend for purposes of [the actual malice] rule, or otherwise to specify categories of persons who would or would not be included.” Id., 376 U.S. at 283, 84 S.Ct. at 727, 11 L.Ed.2d at 708, fn. 23. However, guidance was provided later in Rosenblatt v. Baer (1966), 383 U.S. 75, 85, 86 S.Ct. 669, 676, 15 L.Ed.2d 597, 605, where the court determined that “the ‘public official’ designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.” The court in Rosenblatt also observed that the New York Times rule is specifically applicable “[w]here a position in government has such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general public interest in the qualifications and performance of all government employees.” Rosenblatt, 383 U.S. at 86, 86 S.Ct. at 676, 15 L.Ed.2d at 606. And “[t]he employee’s position must be one which would invite public scrutiny and discussion of the person holding it, entirely apart from the scrutiny and discussion occasioned by the particular charges in controversy.” Id. at 87, 86 S.Ct. at 676, 15 L.Ed.2d at 606, fn. 13.

This court has not considered the issue whether a public high school principal is a public official for purposes of defamation law. We have, however, in accordance with the Rosenblatt guidelines, considered the status of a high school superintendent and a high school teacher/wrestling coach. In Scott v. The News-Herald (1986), 25 Ohio St.3d 243, 25 OBR 302, 496 N.E.2d 699, paragraph two of the syllabus, we held that a public school superintendent is a public official. In Milkovich v. The News-Herald, (1984), 15 Ohio St.3d 292, 15 OBR 424, 473 N.E.2d 1191, reversed in part on other grounds by Scott, supra, we determined that an individual is not a public official for purposes of applying the New York Times rule in a defamation action by virtue of his employment as a public high school teacher and head wrestling coach.

Courts in other jurisdictions are divided whether public school principals should be accorded public official status. Annotation, Who is “Public Official” for Purposes of Defamation Action (1996), 44 A.L.R.5d 193, 318-323, Section 30. However, we believe that the better view is that principals are not public officials for purposes of defamation law. See, e.g., McCutcheon v. Moran (1981), 99 Ill.App.3d 421, 424, 54 Ill.Dec. 913, 425 N.E.2d 1130, 1133 (“The relationship a public school teacher or principal has with the conduct of government is far too remote, in our minds, to justify exposing these individuals to a qualified privileged assault upon his or her reputation.”); and Ellerbee v. Mills (1992), 262 Ga. 516, 517, 422 S.E.2d 539, 540 (“[Ujnder normal circumstances, a principal simply does not have the relationship with government to warrant ‘public official’ status under New York Times. Principals, in general, are removed from the general conduct of government, and are not policymakers at the level intended by the New York Times designation of public official.”).

Accordingly, we hold that a public school principal is not a public official for purposes of defamation law. We affirm the findings of the Fifth Appellate District in this regard.

We also agree with the Fifth Appellate District that, under the circumstances here, McIntosh is not a “public figure” as defined by Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 345, 94 S.Ct. 2997, 3009, 41 L.Ed.2d 789, 808. Specifically, the Fifth District Court of Appeals, in case No. 96-CA-293, aptly observed and held:

“As a high school principal, McIntosh did not assume a role of special prominence in the affairs of society. He did not occupy a position of such persuasive power and influence that he can be deemed a public figure for all purposes as required by Gertz. Nor did he thrust himself to the forefront of the public controversy that may have developed concerning his termination. According to the record before us, McIntosh left the high school on March 9,1995, when ordered to do so by the Superintendent and armed police officers. There is no evidence linking McIntosh to the actions of the students and parents who protested his termination. Nor is there any evidence that McIntosh sought out the media to trumpet his cause. Accordingly, the trial court erred in finding that McIntosh was a public figure and requiring that he be held to the New York Times standard of proving actual malice.”

For the foregoing reasons, we affirm the judgments of the Fifth Appellate District with respect to case Nos. 97-2039 and 98-834. The causes are remanded to the Stark County Court of Common Pleas for further proceedings not inconsistent with this opinion.

Judgments affirmed and causes remanded.

Resnick, F.E. Sweeney and Pfeifer, JJ., concur. Cook, J., concurs in part and dissents in part. Moyer, C.J., dissents. Lundberg Stratton, J., dissents.

3 . R.C. 3319.02(C) states, “When a teacher with continuing service status becomes an assistant superintendent, principal, assistant principal, or other administrator with the district or service center with which the teacher holds continuing service status, the teacher retains such status in the teacher’s nonadministrative position as provided in sections 3319.08 and 3319.09 of the Revised Code.”