Perkins v. Columbus Bd. of Edn.

[Cite as Perkins v. Columbus Bd. of Edn., 2014-Ohio-2783.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Marvin Perkins [by and for his minor :
son, Markel Perkins, and on behalf of all
others similarly situated], :
Plaintiff-Appellant, : No. 13AP-803
(C.P.C. No. 12CV-14709)
v. :
(REGULAR CALENDAR)
Columbus Board of Education et al., :
Defendants-Appellees. :
D E C I S I O N
Rendered on June 26, 2014
Mills, Mills, Fiely & Lucas, LLC, John Sherrod, Laura Mills
and Paul Vincent, for appellant.
Porter Wright Morris & Arthur LLP, Kathleen M. Trafford,
Robert W. Trafford and Bryan R. Faller, for appellees.
APPEAL from the Franklin County Court of Common Pleas
KLATT, J.
{¶ 1} This action arises out of a widely-publicized controversy in which the
Columbus City School District stands accused of a failure to accurately account for
academic performances of students in its schools. The details are not pertinent to the
present case, but generally the underlying dispute involves assertions that the school
system deliberately submitted inaccurate student attendance data and grades to the Ohio
Department of Education in a process known as "grade-scrubbing."
{¶ 2} Appellant began the action with a complaint filed on behalf of his minor
son, a Columbus City Schools student, naming as defendants the Columbus Board of
No. 13AP-803 2
Education and Columbus Superintendent of Schools Gene T. Harris in her official
capacity. The initial complaint alleged that the inaccurate data reported to the Ohio
Department of Education violated R.C. 3313.205, which requires a board of education to
adopt a policy for notifying a student's parent or legal guardian when a student is absent,
and R.C. 3313.209, addressing districts that do not operate latchkey programs. The
complaint in sum alleges that the failure to comply with statutory reporting requirements
deprived appellant's son and similarly-situated students their fundamental right to an
education. A later amended complaint added various individual school district employees
as defendants, also in their official capacity, and expanded the complaint to include claims
for fraud, constructive fraud, repondeat superior liability, negligent supervision, and
breach of fiduciary duty.
{¶ 3} The amended complaint appears to propose a class action and seeks
monetary damages, declaratory and injunctive relief, and a writ of mandamus ordering
the superintendent to require Columbus schools to report student data in compliance
with state law. Appellant later withdrew his request for a writ of mandamus.
{¶ 4} The various defendants moved for judgment on the pleadings, asserting that
the school board and district employees were immune from liability. Defendants also
asserted that R.C. 3301.0714, the statute governing data reporting, did not provide for a
private right of action.
{¶ 5} The trial court granted judgment on the pleadings in favor of the board of
education and superintendent. The court granted motions to dismiss filed by the other
individual defendants. Appellant has filed a timely appeal from the trial court's final
judgment. The notice of appeal is expressly limited to that part of the trial court's entry
that grants judgment in favor of Superintendent Harris. Appellant brings the following
assignments of error:
Assignment of Error No. 1: The trial court erred in incorrectly
determining that "[O]fficeholders and employees [of political
subdivisions] acting in their official capacity, cannot perform
proprietary functions," which is the reason it improperly
failed to subject Appellee to the two-tiered immunity analysis
contained in R.C. § 2744.03(A)(6).
Assignment of Error No. 2: The application of its improper
bright line rule caused the trial court to err in determining
No. 13AP-803 3
Appellee was entitled to R.C. § 2744.02 three-tiered blanket
immunity protection because its categorical conclusion
Appellee's alleged attendance and grade scrubbing were
"governmental functions" as opposed to "proprietary
functions" under the tw0-tiered immunity analysis required
by R.C. § 2744.02 was not made with any deference to the
standards contained in R.C. § 2744.01(C)(1) and R.C. §
2744.01(G)(1)(b), which specifically define "governmental"
and "proprietary functions," and this failure finally led to its
erroneous conclusion Appellee's actions were "governmental
functions."
Assignment of Error No. 3: The trial court erred in
determining R.C. § 3301.0714 did not confer standing upon
Appellant to assert equitable claims simply because there is no
language in the statute or other legislative intent to suggest an
implied or express private right of action for intentional and
malicious attendance and grade manipulation, and further in
dismissing Appellant's equitable claims on grounds other than
there being no real controversy of justiciable issue between
the parties; and/or based upon the fact that a declaratory
judgment would not terminate the uncertainty or controversy
under R.C. § 2721.07.
{¶ 6} Assignments of error one and two assert that the trial court erred by
applying the wrong immunity standard when determining the superintendent's
immunity. These two assignments of error will be addressed together.
{¶ 7} The record reveals that in his complaint appellant chose to specifically sue
Superintendent Harris in her official capacity only. Appellant's brief on appeal confirms
this, and the trial court decision is based on this specification. During the pendency of the
case, Superintendent Harris left her position and was replaced by the current
superintendent of Columbus City Schools, James Daniel Goode, who is hereby substituted
as a proper party by operation of law pursuant to Civ.R. 25(D) and App.R. 29(C). We
therefore refer in the discussion below to the defendant-appellee in this case generally as
"the superintendent."
{¶ 8} The trial court granted judgment on the pleadings in favor of the
superintendent. Civ.R. 12(C) provides that "[a]fter the pleadings are closed but within
such time as not to delay the trial, any party may move for judgment on the pleadings."
"Civ.R. 12(C) motions are specifically for resolving questions of law." State ex rel.
No. 13AP-803 4
Midwest Pride IV, Inc. v. Pontious, 75 Ohio St. 3d 565, 570 (1996). Appellate review of
motions for judgment on the pleadings is de novo, without deference to the trial court's
determination. Fontbank, Inc. v. CompuServe, Inc., 138 Ohio App. 3d 801, 807 (10th
Dist.2000). Thus, we are restricted, as was the trial court, to the allegations in the
pleadings, as well as material incorporated by reference or attached as exhibits to those
pleadings, in determining the motion for judgment on the pleadings. Curtis v. Ohio Adult
Parole Auth., 10th Dist. No. 04AP-1214, 2006-Ohio-15, ¶ 24. When addressing a Civ.R.
12(C) motion, the court "is required to construe as true all the material allegations in the
complaint, with all reasonable inferences to be drawn therefrom, in favor of the
nonmoving party." Whaley v. Franklin Cty. Bd. of Commrs., 92 Ohio St. 3d 574, 581
(2001). The court will grant judgment on the pleadings only when the material facts are
undisputed and the pleadings demonstrate that the movant is entitled to judgment as a
matter of law. Midwest Pride at 570.
{¶ 9} We examine the legal merits of appellant's complaint in light of the above
standard. Insofar as this appeal is concerned, the complaint attempts to sue a
government employee in her official capacity only. Claims for damages against officers of
employees of a political subdivision acting in their official capacity are the equivalent of a
claim against the political subdivision itself, and are governed by R.C. 2744.02(A) and (B).
Lambert v. Clancy, 125 Ohio St. 3d 231, 2010-Ohio-1483, ¶ 22.
{¶ 10} Under R.C. 2744.02(A)(1), a political subdivision cannot be held liable for
damages in a civil action for injury or loss, unless the conduct that caused the injury or
loss is of a type specifically enumerated in R.C. 2744.02(B). Repasky v. Upper Arlington,
10th Dist. No. 12AP-752, 2013-Ohio-2516, ¶ 9. Asserted defenses of political subdivision
immunity, therefore, involve a three-tiered analysis pursuant to the statute and Colbert v.
Cleveland, 99 Ohio St. 3d 215, 2003-Ohio-3319. The first step is an acknowledgment that
political subdivisions are immune pursuant to R.C. 2744.02(A) from civil liability
incurred in performing either a governmental function or proprietary function. The
second step of analysis moves to a consideration of whether any of the specific exceptions
set forth in R.C. 2744.02(B)(1) through (5) apply. These concern operation of motor
vehicles, exercise of proprietary functions, failure to keep public roads and thoroughfares
in repair, physical defects in public buildings, or specific liability imposed by statute in
No. 13AP-803 5
derogation of the general immunity granted by R.C. 2744.02. The third step in the
analysis, which we do not reach in the present case, is to establish whether any of the
specific defenses set forth in R.C. 2744.03(A) will apply to defeat any of the exceptions to
general immunity. Colbert at ¶ 7-9.
{¶ 11} If appellant had sued the superintendent in her personal capacity, we would
consider whether the superintendent was personally liable under a different standard.
Under this we would examine whether the superintendent's actions were done with
malicious purpose, in bad faith, or in a wanton or reckless manner. R.C.
2744.03(A)(6)(b); Anderson v. Massillon, 134 Ohio St. 3d 380, 2012-Ohio-5711, ¶ 23.
Appellant has chosen not to sue the superintendent in her personal capacity, however,
and we are confined to the three-tier standard set forth in Colbert.
{¶ 12} None of the exceptions to immunity set forth in R.C. 2744.02(B) apply in
this case. Most importantly, the exception for the exercise of proprietary functions does
not apply. The provision of public education is specifically identified as a governmental,
rather then a proprietary, function pursuant to R.C. 2744.01(C)(2)(c); Hopkins v.
Columbus Bd. of Edn., 10th Dist. No. 07AP-700, 2008-Ohio-1515, ¶ 17. This extends to
most school activities and administrative functions of the educational process, even if not
directly comprising part of the classroom teaching process. See generally, DeMartino v.
Poland Local School Dist., 7th Dist. No. 10 MA 19, 2011-Ohio-1466, ¶ 29; Taylor v.
Boardman Twp. Local School Dist. Bd. of Edn., 7th Dist. No. 08 MA 209, 2009-Ohio-
6528, ¶ 3; Doe v. Massillon City School Dist., 5th Dist. No. 2006CA00227, 2007-Ohio-
2801, ¶ 18; Bush v. Beggrow, 10th Dist. No. 03AP-1238, 2005-Ohio-2426, ¶ 37; Coleman
v. Cleveland School Dist. Bd. of Edn., 8th Dist. No. 84274, 2004-Ohio-5854,¶ 56.
{¶ 13} In accordance with the above standard governing immunity, appellant's
complaint simply and directly pleads a claim for which the defendant superintendent in
her official capacity was immune. The complaint sets forth no statutorily-created
exception to the general immunity for governmental functions. The Franklin County
Court of Common Pleas did not err in granting judgment on the pleadings in favor of the
superintendent. Appellant's first and second assignments of error are overruled.
{¶ 14} Appellant's third assignment of error asserts that the trial court erred in
concluding that R.C. 3301.0714, which governs school data reporting to the state board,
No. 13AP-803 6
does not grant a private right of action for parents or students to assert claims against a
school district for failure to comply with the statute. This concerns appellant's request for
declaratory judgment and injunction.
{¶ 15} Courts will not infer that a statute grants a private right of action unless the
language of the statute indicates a clear intent that the legislature intended such a remedy.
Fawcett v. G.C. Murphy & Co., 46 Ohio St. 2d 245 (1976); recognized as superseded by
amendment to statute at issue, Kohmescher v. Kroger Co., 61 Ohio St. 3d 501, 505, fn. 2
(1991); Wurdlow v. Turvy, 10th Dist. No. 12AP-25, 2012-Ohio-4378.
{¶ 16} R.C. 3301.0714 provides guidelines for a state-wide education management
or data-gathering system. R.C. 3301.0714(L) requires the Ohio Department of Education
to implement a series of corrective remedies for violation by local school districts of the
reporting statute. As the trial court noted, R.C. 3301.0714 sets forth in detail the duties of
Ohio school districts to report student attendance and grades, and the response of the
Ohio Department of Education when the school districts fail to comply with those duties.
The statute leaves no room to infer a private right of action. Appellant's third assignment
of error is overruled.
{¶ 17} In accordance with the foregoing, the judgment of the Franklin County
Court of Common Pleas granting judgment on the pleadings in favor of appellee, the
superintendent of Columbus City Schools, is affirmed.
Judgment affirmed.
CONNOR and DORRIAN, JJ., concur.