State ex rel. King v. North Gallia Local Board of Education , 93 Ohio Law. Abs. 358 ( 1963 )

Collier, P. J.

The relator, Leo P. King, a former teacher in the North Gallia Local School District, Gallia County, Ohio, has invoked the original jurisdiction of this court in this action in mandamus to compel respondent board of education of the North Gallia Local School District to grant him a continuing contract of employment as a teacher in said school district.

The evidence shows that relator was first employed as a teacher by the respondent board of education in 1956, for a period of three years, beginning with the school year 1956-1957. On April 13, 1959, the relator was re-employed on a one year, limited contract. The relator taught these four years under a four-year provisional certificate. The relator was granted an eight year professional certificate, effective September 1, 1959, by the Department of Education of the State of Ohio.

In April, 1960, the respondent board of education voted unanimously not to re-employ the relator and he was notified of such action prior to April 30,1960. On August 1,1960, relator was employed for one year to teach the seventh grade at the Yinton Elementary School of said district. The relator’s provisional certificate did not qualify him to teach the elementary grades and he was granted a temporary elementary certificate in order to be properly certified under this contract.

Prior to April 3'0, 1961, the relator was notified that he would not be re-employed for the succeeding year, but in August, 1961, relator was employed by the respondent board for one year on a limited contract.

The respondent board on April 13, 1962, by an affirmative vote of four members of the five-member board, voted not to re-employ the relator for the ensuing year. Prior to April 30, 1962, relator was notified by the respondent board of such action and that he would not be re-employed for the next year. The evidence does not show that the relator was ever recommended for re-employment as a teacher on a continuing contract in said school district by the county superintendent of schools.

Is the relator, under this statement of facts, entitled to a writ of mandamus to compel the respondent board of education to grant him a continuing contract? Any and all rights that the relator may have to such a contract are derived from statutes granting such rights and also fixing the conditions and requirements of qualification and eligibility of a teacher to receive such benefits. These statutes are referred to as the Teachers’ Tenure Law.

Section 3319.11, Revised Code, is the statute with which we are chiefly concerned. Under the provisions of this statute, in its original form, the procedure required to award a continuing contract to a teacher was outlined in the following terms:

“Upon the recommendation of a superintendent that a teacher eligible for continuing service status be re-employed, a continuing contract shall be entered into between the board and the teacher unless the board by a three-fourth vote of its full membership rejects the recommendation of the superintendent.”

The Supreme Court of Ohio in the case of State, ex rel. Farley, v. Board of Education of Euclid City School District, 169 Ohio St., 388, in interpreting this statute held that a teacher, otherwise eligible, is not entitled to re-employment under a continuing contract without the recommendation of the superintendent. Subsequent to the pronouncement in the Earley decision, the legislature amended Section 3319.11, Revised Code, effective October 17, 1961, eliminating the necessity of the superintendent’s recommendation as a condition to continuing contract status. The obvious purpose of this amendment was to nullify the rule pronounced in the Farley case.

It will be observed, however, that all the transactions in regard to the contractural relations between the relator and the respondent board of education occurred prior to October 17, 1961, the effective date of the amendment to the statute. Therefore, relator’s rights to a continuing contract are defined and must be determined upon a consideration of the conditions and requirements contained in the statute as it was in force and effect at the time the several contracts of re-employment were entered into.

Prior to October 17, 1961, when the statute, in its amended form, became effective, in order to be entitled to a continuing contract, a teacher had to fulfull the following requirements:

(1) That he was the holder of a professional, permanent, or life certificate. (Section 3319.08, R. C.)

(2) That within the last five years he had taught for at least three years in the district, or that he had attained continuing contract status elsewhere and had served two years in the district.

(3) That he had been recommended by the superintendent for re-employment.

Tbe relator had fulfilled tbe first and second requirements. He was granted a professional certificate, effective September 1, 1959, and be bad also qualified as to prior years of service. But as to tbe third condition tbe record contains no evidence that be was recommended for re-employment by tbe county superintendent. Without tbe superintendent’s recommendation tbe relator, under tbe provisions of tbe statute as it was in effect when be was re-employed by tbe respondent from year to year, was not entitled to a continuing contract.

Section 3319.08, Revised Code, provides two types of teacher contracts: limited contracts and continuing contracts. A teacher under a limited contract may not be re-employed for a term to exceed five years, but a continuing contract remains in effect until tbe teacher resigns, elects to retire, or is retired for cause under tbe provisions of Section 3319.16, Revised Code.

48 Ohio Jurisprudence (2d), 541, Section 118, reads in part as follows:

“Tbe superintendent of schools and tbe board of education may exercise their discretion in awarding a continuing contract to an eligible teacher, and such eligible teacher does not, solely by virtue of his eligibility acquire a clear right to such contract. A teacher’s right to continuous employment is not unconditional but depends upon tbe statutory provisions affecting tbe contract, as these statutes are part of such contract. Tbe Teachers’ Tenure Law has not taken away tbe administrative responsibility of tbe board of education which continues to wield tbe power of tbe state in this field as a governmental agency.” (Emphasis added.)

To be entitled in tbe instant ease to a writ of mandamus tbe relator must show a clear right thereto. Tbe purpose of tbe writ is to compel tbe respondent board of education to perform a duty enjoined upon tbe board by law. Tbe burden is on tbe relator to show an absolute obligation upon tbe respondent to re-employ him as a teacher under a continuing contract. See 35 Ohio Jurisprudence (2d), 254, Section 13. To grant such relief this court must find as a matter of law that at least one of tbe contracts of re-employment between relator and respondent became a continuing contract by operation of law. Such conclusion could be reached only by construing tbe amended statute retroactively. The relator, having failed to fulfill one of the conditions imposed by the statute in effect at the time of his last employment in August 1961, was entitled only to a limited contract. A subsequent act of the legislature could not have retroactively affected the contract entered into before the effective date of the amendment when the amendment evinces no such intent. 50 Ohio Jurisprudence (2d), 317, Section 339 reads: “Courts indulge in the presumption that the legislature intended statutes enacted by it to operate prospectively rather than retroactively.” The statute, as amended, applied only to future contracts, i. e., contracts after its effective date. To hold otherwise would abolish the statutory distinction between a limited contract and a continuing contract, and, also deprive the respondent board of education of any discretion in the employment of a teacher eligible for continuing contract status when Section 3319.11, Revised Code, expressly provides that a board of education shall have such discretion.

Under Section 3319.11, Revised Code, as amended, although the relator held a professional certificate and had the necessary prior teaching service in the district, the respondent board was expressly vested with discretion as to whether or not the relator should be re-employed. This statute provides that by a three-fourths majority of the full membership of the board a continuing contract may be denied. Such discretion was exercised by the board on April 13, 1962, when it was decided by an affirmative vote of four members of the five-member board not to re-employ the relator and served the relator of such action with the required notice. A writ of mandamus may be issued to compel the exercise of discretion but never to control it.

Our conclusion is that the evidence does not show a failure of the performance of an act specially enjoined upon the respondent by law, that the relator has not shown a clear right to the relief sought and, therefore, the peremptory writ must be and is denied.

Peremptory writ denied.

Brown, J., concurs. Carlisle, J., dissents.