State, Ex Rel. Kohr v. Hooker , 106 Ohio App. 1 ( 1958 )

This is an action for a writ of mandamus originating in this court. It comes about by reason of the merger of Mill Local School District with the Uhrichsville City School District in Tuscarawas County.

Since the question is presented to this court by demurrer, all well pleaded allegations must be taken as true. Paragraphs 7, 8 and 11 of the petition are especially to be noticed.

Paragraphs 7, 8 and 11 of the petition, we quote:

"VII. That each plaintiff-relator received under date of April 10, 1958 over the signatures of S. J. Mahaffey, President, and Lucille Born, Clerk of the Board of Education of Mill Local School District a letter advising them as follows:

"``Dear Miss Kohr:

"``This is to notify you that after July 1, 1958, the Board of Education of Mill Township will cease to exist and will be legally merged with the Uhrichsville City School District. Under the circumstances, it is my duty to notify you that your employment with the Board of Education of Mill Township will terminate as of July 1, 1958.

"``Please consider your contract and employment terminated as of July 1, 1958, by the Board of Education of Mill Township.

"``The board appreciates your services and cooperation and we regret the termination of the contract.

"``Respectfully'

"That the above letter was sent to all of the teachers of the Mill Local School District.

"VIII. That since the merger of the Mill Local School District into the Uhrichsville City School District no reduction in the number of teachers has been necessary."

"XI. That at all times the defendants-respondents in their attempt to dismiss the plaintiffs-relators from their positions have failed to follow the provisions of the Teachers' Tenure Act and deprived them of their rights thereunder."

Relators are two teachers in the former Mill Local School District. Both have attained more than seventy years of age and have more than thirty-six years of service credit.

Respondents are members of the school board of the Uhrichsville City School District.

The petition also alleges that relators have been and are now ready and willing to assume their duties as teachers and that they have been advised on July 22nd and on other previous occasions, by respondents, that they could not do so.

Mandamus is a high prerogative writ to be issued at the discretion of the court, when it is clearly shown that there is a plain dereliction of duty by public officers. (State, ex rel.Van Harlingen, v. Bd. of Edn., 104 Ohio St. 362,136 N.E. 196). It will issue when a clear right thereto appears and when there is no plain and adequate remedy at law. Sections 2731.01 to 2731.05, Revised Code.

If these relator teachers are entitled to continue in their positions, they are entitled to the benefits that may accrue by way of retirement income, or otherwise, from more service credit. We are aware of no legal remedy except mandamus that would be adequate to continue them as teachers.

The Teachers' Tenure Act of this state was enacted in 1941. It was modeled after similar acts of other states, particularly Indiana and Pennsylvania, whose Supreme Courts have spoken, in actions similar to the one at bar, that mandamus is the proper remedy and that teachers similarly situated have no other adequate remedy at law.

"A public school teacher who has a fixed statutory tenure or can be removed only for certain causes prescribed by statute may enforce her right to reinstatement by an action of mandate if she has been removed from her position in violation of her statutory rights." School City of Elwood v. State, ex rel.Griffin, 203 Ind. 626, 180 N.E. 471, 81 A. L. R., 1027.

"As the school boards were given no discretion in the execution of these contracts, mandamus was unquestionably theproper proceeding to compel the school directors to perform their statutory duty." (Emphasis added.) Teachers' Tenure Act Cases,329 Pa. 213, 222, 197 A. 344.

Ohio has recognized the propriety of mandamus in similar cases. See State, ex rel. Bishop, v. Bd. of Edn., 139 Ohio St. 427, 40 N.E.2d 913; State, ex rel. Frank, v. Meigs CountyBd. of Edn., 140 Ohio St. 381, 44 N.E.2d 455; State, exrel. Saltsman, v. Burton, 154 Ohio St. 262, 95 N.E.2d 377.

Somewhat similar situations were presented in four consolidated cases before the Supreme Court, reported in 139 Ohio St., at page 427 (State, ex rel. Bishop, v. Bd. of Edn.,supra). That decision was handed down soon after the Teachers' Tenure Act became effective September 1, 1941.

In those cases writs of mandamus were caused to be issued as against four different employing school boards, ordering them to tender continuing contracts to the teacher who, at the time of the passage of the Act, is completing five or more consecutive years of employment. All four of the teacher-relators therein were found to be completing such terms of service and by operation of law entitled to continuing contracts under the mandatory terms of the Teachers' Tenure Act.

At the outset attention is directed to the now universally recognized principle that the Teachers' Tenure Act should be liberally construed in favor of the teachers and the corollary principle of strict construction as against their employing school boards.

Judge Zimmerman in his opinion in the Bishop case, supra (139 Ohio St. 427), said of the Teachers' Tenure Act:

"Such legislation bears a resemblance to the older civil service laws."

Recognizing such resemblance we go to Ohio case law as to the use of mandamus actions to restore such civil service officers to their positions.

The leading Ohio case thereon is State, ex rel. Brittain, v.Board of Agriculture, 95 Ohio St. 276, 116 N.E. 459. In that case a writ of mandamus was granted. The claim was made therein that relator had an adequate remedy at law in that Section 486-17a, General Code (now Section 143.27, Revised Code), provided for an appeal.

The ruling of the court is epitomized in the second and third paragraphs of the syllabus as follows:

"2. The provisions of that section do not confer upon the commission authority to hear an appeal from an order of removal made by an appointing authority, where the employee has not been furnished its reason for the removal.

"3. The provision of Section 486-17a, General Code, that in all cases of removal the appointing authority shall furnish the employee its reasons for the order of removal, is mandatory and the failure of the appointing authority to comply with this provision is fatal to such order and the same is a nullity."

In the case of State, ex rel. Harris, Chief of Police, v.Haynes, Mayor, 157 Ohio St. 214, 105 N.E.2d 53, Judge Taft distinguishes but does not overrule the Brittain case because "no reason whatever" was stated in its order of removal.

In the instant case it is likewise claimed that relators here had an adequate remedy at law in that Section 3319.16, Revised Code, provides for an appeal. Such contention is based upon the premise that the letter from the Mill Local School District Board above quoted was sufficient and valid as an "order of termination of contract." It follows that if that letter was insufficient, invalid and a nullity as such order, there is no right of appeal therefrom.

The following language by Newman, J., at page 283 of theBrittain case, supra (95 Ohio St.), is pertinent:

"The purpose of the civil service law is to continue in positions those who are efficient, faithful and trustworthy. By force of the provisions of the section we have quoted the relator was entitled to hold his position during good behavior and efficient service. The defendant in error could remove him, but there was a limitation on the power to remove. There must have existed one or more of the grounds enumerated in the statute before an order of removal could be made, and, then, the process for removal as therein prescribed must have been followed."

By analogy, the purpose of the Teachers' Tenure Act is "protection of those established and qualified in the teaching profession," and by force of its provisions relators are entitled to hold their positions and have continuing service status. The employing board could remove them, but there are limitations upon its power to retire, terminate or suspend. The provisions of the Act enumerate and prescribe the process for retirement, termination or suspension.

Most of the questions raised here are resolved by simple reference to, and application of, specific sections of the Teachers' Tenure Act.

Sections 3319.08 through 3319.18, Revised Code, contain all the provisions of the Teachers' Tenure Act. These provisions were contained in former Sections 7690-1 through 7690-8, General Code (later Sections 4842-7 to 4842-14, inclusive, General Code).

First, Section 3319.18, Revised Code, answers the question about the status of relators as teachers after the merger and specifically tells us that the merger did not terminate their contracts.

"If an entire school district or that part of a school district which comprises the territory in which a school is situated is transferred to any other district, or if a new school district is created, the teachers in such districts or schools employed on continuing contracts immediately prior to such transfer, or creation shall, subject to Section 3319.17 of the Revised Code, have continuing service status in the newly created district, or in the district to which the territory is transferred."

And subsection (C) of Section 3319.09, Revised Code, defines "continuing service status" by saying that it "for a teacher means employment under a continuing contract."

A continuing contract is defined by Section 3319.08, Revised Code, as follows:

"* * * A continuing contract is a contract which shall remain in effect until the teacher resigns, elects to retire, or is retired pursuant to Section 3307.37 of the Revised Code, or until it is terminated or suspended * * *."

Therefore, relators have continuing service contract status with the Uhrichsville City School District, which means employment with the Uhrichsville City School District under a continuing contract, subject to the provisions of Section3319.17, Revised Code.

The relators having such employment, the Uhrichsville City School District Board becomes the employing board mentioned in Section 3319.16, Revised Code, applicable parts of which are as follows:

"The contract of a teacher may not be terminated except for gross inefficiency or immorality; for willful and persistent violations of reasonable regulations of the board of education; or for other good and just cause. Before terminating any contract, the employing board shall furnish the teacher a written notice signed by its clerk of its intention to consider the termination of his contract with full specification of the grounds for such consideration. * * *" (Emphasis added.)

The question as to whether the Uhrichsville City School District Board becomes the employing board mentioned in this section has given us some concern, and it might be said that relators' whole position is dependent upon our conclusions thereon.

We have arrived at this position by reason of the fact that we must assume that the Uhrichsville City School District Board knew positively that its district was going to be merged with the Mill Local School District and that they had this knowledge at least on April 10, 1958, which is the date of the Mill Local School District's letter above quoted, and that they had knowledge that these relators had continuing contracts, the benefits and detriments of which the Uhrichsville City School District Board must assume, come July 1, 1958.

Let us suppose that the Mill Local School District had obligated itself upon a note or bond, which was to run for the same period of time. Could it be doubted that the Uhrichsville City School District would, by operation of law, become obligated thereon? This obligation could have been revoked by retiring the relators for superannuation, pursuant to Section 3307.37, Revised Code, in much the same manner as an infant may revoke before attaining majority, but unless the infant does revoke he is bound.

To use another analogy, several sections of the Revised Code pertaining to the transfer of property (Sections 3311.22,3311.23 and 3311.24) provide that when transfer of territory from one school district to another is complete, "the legal title of the school property in the territory transferred shall be vested in the board of education of the school district to which the territory is transferred."

Can it be doubted that once the merger is ordered the school district to which the territory is to be transferred acquires a definite interest in and responsibility for all school property in the territory transferred?

The Uhrichsville City School District, as the employing board of these relators, had the duty to notify them of its intention to cause the termination of their contracts. This termination could have been either by complying with the provisions of Section 3319.16, Revised Code, above quoted, or it could have easily been done under the express provisions of Section3307.37, Revised Code, which provides as follows:

"Any teacher, except a new entrant with less than five years of service, who has attained sixty years of age or who has thirty-six years of service credit may retire, if a member, by filing with the state teachers retirement board an application for retirement. An employer may as of the thirtieth day of June of any year terminate the contract or the employment of any member who has attained the age of seventy or who will attain the age of seventy by the following thirty-first day of August."

Sections 3307.37 and 3319.08 through 3319.18, Revised Code, must all be construed in pari materia so as to give effect to each and every word of each section.

The Uhrichsville City School District Board "in their attempt to dismiss plaintiff-relators from their positions" had the mandatory duty to notify them of its intention to cause a termination of their contracts. Since these contracts were continuous, under the law they could be terminated in three ways:

(a) By retirement for superannuation under Section 3307.37, Revised Code;

(b) By termination for cause under Section 3319.16, Revised Code; or

(c) By suspension for reduction in number of teachers under Section 3319.17, Revised Code.

The demurrer causes us to assume the truth of the allegation in the petition that "since the merger no reduction in the number of teachers has been necessary." Therefore, (c) can be eliminated from our consideration, leaving only (a) and (b).

(a) Under Section 3307.37, Revised Code, the superannuation statute, "An employer may as of the thirtieth day of June of any year terminate the contract or employment of any member" (for superannuation). The General Assembly must have had some purpose in fixing and naming this date of the 30th day of June in this particular statute, and since teachers' contracts, by law (Section 3313.62, Revised Code), begin on July 1st and end on the following June 30th, it is only logical to assume and hold that the employing board, if they intended to retire these teachers for superannuation under this statute, could and must do so by giving notice to that effect to the teacher on or before June 30th. Otherwise these words in this statute have no meaning whatsoever.

The use of the phrase "as of" when the Legislature might have said "before" or "prior to" obscures the real meaning somewhat. But again assuming that the use of the words "as of" was for a definite purpose, we think the Legislature thereby intended to protect teachers from being retired for superannuation during a school year. To interpret these words in any other way is to say that the Legislature intended that a teacher could be retired for superannuation at any time during a school year, dating her retirement back as of the beginning of the school year, which would be absurd.

We hold that the retirement notice under Section 3307.37, Revised Code, must be given on or before June 30th. Otherwise the continuing contracts of the teacher remain in full force and effect for another year.

(b) We note that Section 3319.16, Revised Code, provides for terminating a teacher's contract for cause. (Gross inefficiency or immorality; for wilful and persistent violation of reasonable regulations of the board of education; or for other good and just cause.)

This is the other method that this employing board of the Uhrichsville City School District could have employed "in their attempt to dismiss the plaintiff-relators from their positions." But here again we find a failure to follow the provisions of the Teachers' Tenure Act, in that no notice was given to either of these relators, as provided in Section 3319.16. Revised Code, which specifies that the employing board shall furnish the teacher a written notice signed by its clerk of its intention to consider the termination of its contract with full specification of the ground.

This particular section (3319.16) also provides for a hearing after written notice and specification of grounds is given, and from that hearing, if the result is adverse to the teacher's interest, he may appeal to the Common Pleas Court. This is an appeal from an order of termination, which can only come after a hearing. Therefore, it can not, by any stretch of the imagination, be held to constitute an adequate remedy at law or right of appeal from anything except a definite order of the employing board terminating the teacher's continuing contract.

The position is unassailable that notice above quoted by the Mill Township School District was not sufficient to terminate these continuing contracts of these teachers, for the following reasons:

(1) That notice was sent to all the teachers of Mill District, whether they held continuing contracts or not, and irrespective of age. Consequently, it can not be construed as a superannuation retirement notice.

(2) If it was purportedly drawn under Section 3319.16, Revised Code, it is defective because it is not a notice of intention as required and does not give full specifications.

In either event, it is void because it purported to cover the school year 1958 and 1959, under which, by operation of law (Section 3319.18, Revised Code) the Uhrichsville City School District became the employer. Consequently, we must look to the actions of that board alone.

We hold that a retirement for superannuation under Section3307.37, Revised Code, may be effected merely by giving notice, provided that notice be given prior to June 30th and that it is not necessary that a retirement under Section 3307.37 be in accordance with Section 3319.16, Revised Code, but if a contract is terminated, compliance with Section 3319.16 as to written notice and specification of cause is necessary.

In this particular case the employing board of the Uhrichsville City School District did not comply with the mandatory provisions of the Teachers' Tenure Act, either as to retirement or termination of contract.

The notice given by their former employing board of the Mill Local School District is insufficient to terminate the contracts of these relators, since it was not the employing board.

The relators' petition alleges that the respondent school board has failed to follow the provisions of the Teachers' Tenure Act in its attempt to dismiss relators.

The provisions of this Act are mandatory and are to be strictly construed in the teachers' favor.

Failure to notify these relators of intention to terminate their contracts is a definite noncompliance with the mandatory provisions of the Teachers' Tenure Act and is a failure to perform duties clearly enjoined by the specific provisions thereof.

The demurrer will be overruled, and a writ of mandamus will issue, commanding respondents as members of the Board of Education of the Uhrichsville City School District to reinstate relators as teachers at its schools at a salary of $4,075 each for the ensuing school year of 1958-1959. No alernative writ as to payment of salary will be granted.

Writ allowed

PUTNAM, J., concurs.