[Cite as Stewart v. Lockland School Dist. Bd. of Edn., 2013-Ohio-5513.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
ADAM STEWART, : APPEAL NO. C-130263
TRIAL NO. A-1206854
Plaintiff-Appellant, :
O P I N I O N.
vs. :
BOARD OF EDUCATION OF :
LOCKLAND SCHOOL DISTRICT,
Defendant-Appellee. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: December 18, 2013
Kircher, Arnold & Dame, LLC, Konrad Kircher and Ryan J. McGraw, for Plaintiff-
Appellant,
Bricker & Eckler, LLP, David J. Lampe and Kate V. Davis, for Defendant-Appellee.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
SYLVIA S. HENDON, Presiding Judge.
{¶1} Plaintiff-appellant Adam Stewart has appealed from the trial court’s
entry adopting the magistrate’s decision denying his motion for summary judgment
and granting the motion for summary judgment filed by defendant-appellee the
Board of Education of the Lockland School District (“the Board”) on Stewart’s claim
alleging a violation of Ohio’s Open Meetings Act under R.C. 121.22.
{¶2} Because we determine that the trial court properly granted summary
judgment to the Board and denied the motion for summary judgment filed by
Stewart, we affirm.
Background
{¶3} Stewart had been employed by Lockland as a data coordinator, a
nonteaching employee. On August 21, 2012, Stewart received a letter notifying him
that the Board would be holding a meeting on August 23, 2012, to consider
terminating his employment, and that he would be accorded the opportunity to
speak and present evidence at this meeting. The meeting was convened for the
Board to consider Stewart’s role in the false reporting of student attendance data to
the Ohio Department of Education. At the outset of the August 23 meeting, the
Board adjourned into executive session over the objection of Stewart and his counsel.
When the Board reconvened into open session, Stewart presented evidence and
argument in support of his continued employment. Following Stewart’s
presentation, the Board again adjourned into executive session over Stewart’s
objection. Upon resuming open session, the Board passed a resolution terminating
Stewart’s employment.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶4} Stewart received a letter the following day officially notifying him that
the Board had passed a resolution terminating his employment. The letter further
notified him of his right to appeal, which Stewart timely acted upon by filing a
complaint in the court of common pleas. Stewart’s complaint contained two causes
of action. The first alleged a violation of the Open Meetings Act under R.C.
121.22(G)(1). The second cause of action was Stewart’s administrative appeal
challenging his termination under R.C. 3319.081.
{¶5} Both parties filed motions for summary judgment on the first count of
Stewart’s complaint alleging a violation of the Open Meetings Act. The magistrate
granted the motion filed by the Board and denied Stewart’s motion. The trial court
overruled Stewart’s objections and adopted the magistrate’s decision. In his sole
assignment of error, Stewart now argues that the trial court erred in adopting the
magistrate’s decision granting summary judgment to the Board.
Standard of Review
{¶6} We review a trial court’s ruling on a motion for summary judgment de
novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).
Summary judgment is appropriately granted when there exists no genuine issue of
material fact, the movant is entitled to judgment as a matter of law, and the evidence,
when viewed in favor of the nonmoving party, permits only one reasonable
conclusion that is adverse to the nonmoving party. State ex rel. Howard v. Ferreri,
70 Ohio St.3d 587, 589, 639 N.E.2d 1189 (1994).
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OHIO FIRST DISTRICT COURT OF APPEALS
Open Meetings Act
{¶7} Stewart argues in his sole assignment of error that the trial court erred
in granting summary judgment to the Board on his claim for a violation of the Open
Meetings Act.
{¶8} As a nonteaching employee, Stewart’s employment was governed by
R.C. 3319.081. This statute provides, in relevant part, that Stewart’s employment
could be terminated by a majority vote of the Board, but that Stewart could only be
terminated for cause. See R.C. 3319.081(C). Because Stewart could only be
terminated for cause, he possessed a property right in his employment, and was
entitled under due-process principles to a pretermination hearing before his
employment was terminated. Cleveland Bd. of Edn. v. Loudermill, 470 U.S. 532,
542, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). The United States Supreme Court has
held that when an employee is also afforded posttermination administrative
procedures, which Stewart was, the pretermination hearing need not be formal or
elaborate, and does not require a full evidentiary hearing. Id. at 545-548. Stewart
does not dispute that he was accorded the required pretermination hearing. But he
contends that the Open Meetings Act dictated that the Board conduct his entire
hearing in public.
{¶9} The Open Meetings Act is codified in R.C. 121.22, which provides that
“[t]his section shall be liberally construed to require public officials to take official
action and to conduct all deliberations upon official business only in open meetings
unless the subject matter is specifically excepted by law.” R.C. 121.22(A). As a public
body, the Board was required to conduct its meetings in public and open such
meetings to the public at all times. R.C. 121.22(C).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶10} R.C. 121.22(G) contains several exceptions permitting a public body to
hold an executive session when properly convened by a quorum of the body.
Specifically, R.C. 121.22(G)(1) allows for a public body to adjourn into executive
session to consider the employment or dismissal of a public employee, unless the
employee requests a public hearing. The Board relied on this provision when
adjourning into executive session to discuss terminating Stewart’s employment. But
Stewart argues that the Board was not justified in convening an executive session
because he had objected and requested that his entire hearing be conducted
publically, as permitted by R.C. 121.22(G)(1).
{¶11} We must determine whether R.C. 121.22(G)(1) allowed Stewart to
mandate that his entire hearing be held publically and to prevent the board from
adjourning into executive session. We hold that it did not.
{¶12} In Matheny v. Frontier Local Bd. of Edn., 62 Ohio St.2d 362, 405
N.E.2d 1041 (1980), the Ohio Supreme Court considered whether R.C. 121.22(G)(1)
granted the right to a public hearing to a nontenured teacher. The court ultimately
held that a nontenured teacher had no expectancy of continued employment and was
not entitled to any hearing, let alone a public hearing, before the teacher’s contract
was not renewed. Id. at 364. The court held that R.C. 121.22(G)(1) must be read to
conform to existing statutes governing teacher employment. It specifically cited R.C.
3319.16, which governs the employment contracts of teachers who could only be
terminated for cause, and provides that, unlike nontenured teachers, such teachers
were entitled to a hearing before termination, which “shall be private unless the
teacher requests a public hearing.” Id. at 366. In reaching its determination, the
court stated that
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OHIO FIRST DISTRICT COURT OF APPEALS
R.C. 121.22(G)(1) was intended to bring the other provisions of that
section into conformity with existing statutes, such as R.C. 3319.16,
which prescribe the procedure applicable to public employee
termination actions. We do not believe that the words ‘unless the
public employee * * * requests a public hearing * * *’ were intended to
grant the right to a hearing where none existed previously, as in the
instance of contract considerations of non-tenured teachers.
Id. at 367.
{¶13} This court recently applied Matheny in Schmidt v. Village of
Newtown, 1st Dist. Hamilton No. C-110470, 2012-Ohio-890. In determining that an
at-will employee of the Village of Newtown had no right to a public hearing, we held
that “[o]nly when a hearing is statutorily authorized, and a public hearing is
requested, does R.C. 121.22(G) operate as a bar to holding an executive session to
consider the dismissal of a public employee.” Id. at ¶ 26.
{¶14} Unlike R.C. 3319.16, R.C. 3319.081, which governs Stewart’s
employment, does not authorize a nonteaching employee to request a public
pretermination hearing. Nor was Stewart otherwise statutorily entitled to a
pretermination hearing. Consequently, he could not prevent the Board from holding
an executive session under R.C. 121.22(G)(1). Stewart contends that we interpreted
Matheny too narrowly in Schmidt, and that an employee can require a public hearing
any time a hearing is authorized by law, rather than only when statutorily
authorized. And he maintains that, because due-process considerations entitled him
to a Loudermill pretermination hearing, he was entitled to a hearing authorized by
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OHIO FIRST DISTRICT COURT OF APPEALS
law and could require a public hearing under R.C. 121.22(G)(1). We are not
persuaded.
{¶15} The Matheny court held that R.C. 121.22(G)(1) was intended to bring
the Open Meetings Act into conformity with existing statutes. It followed by stating
that R.C. 121.22(G)(1) could not provide the right to a hearing where none had
existed previously. Matheny, 62 Ohio St.2d at 367, 405 N.E.2d 1041. Reading these
statements in conjunction, we are convinced that our interpretation in Schmidt was
correct, and that an employee can only prohibit a public body from holding an
executive session when the employee is statutorily entitled to a hearing.
{¶16} Stewart cannot rely on his entitlement to a Loudermill pretermination
hearing to prevent the Board from entering into executive session. Our decision
comports with the basic principles guiding the Loudermill court’s decision.
Loudermill sought to provide persons who possessed a property interest in
continued employment with the basic due-process protections of notice and an
opportunity to be heard prior to termination of employment. Considering its
statement that a required hearing need not be formal or elaborate, the Loudermill
court certainly did not accord such persons the right to require that the entire
pretermination hearing be held publically.
{¶17} The trial court did not err in granting the Board’s motion for summary
judgment or in denying Stewart’s motion for summary judgment on his claim
alleging a violation of the Open Meetings Act. Stewart’s assignment of error is
overruled, and the judgment of the trial court is affirmed.
Judgment affirmed.
HILDEBRANDT, J. concurs.
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OHIO FIRST DISTRICT COURT OF APPEALS
DEWINE, J., concurs separately.
DEWINE, J., concurring separately.
{¶18} I concur in the judgment because I agree with the lead opinion that
this case is controlled by the Ohio Supreme Court’s decision in Matheny v. Frontier
Local Bd. of Edn., 62 Ohio St.2d 362, 405 N.E.2d 1041 (1980). I write separately to
explain my discomfort with that result.
{¶19} If we were to decide this case on “a blank slate,” it would seem evident
that Mr. Stewart is entitled to a hearing. Such a conclusion follows from the plain
language of the statute: a public body may move into executive session “to consider
the * * * dismissal of * * * a public employee * * * unless the public employee * * *
requests a public hearing.” As I read this language, it seems clear that an employee
such as Mr. Stewart had a right to prevent the Board from discussing his termination
in executive session and require that such a discussion take place in public.
{¶20} Such a result is not only consistent with the plain language of the
exception, but also with the introductory section of the Open Meetings Act, which
provides that the section is to be “liberally construed” to require that public business
be conducted in public unless specifically excepted by law. It is also consistent with
the evident purpose behind the section of allowing employee matters to be discussed
in private “to protect the [employee’s] reputation and privacy.” See Gannett Satellite
Information Network v. Chillicothe City School Dist. Bd. of Edn., 41 Ohio App.3d
218, 220, 534 N.E.2d 1239 (4th Dist.1988). If the employee is not concerned about a
public airing, there is little justification to allow policymakers to shield their
discussions from the public ear.
{¶21} Nevertheless, the Supreme Court in Matheny limited the right of an
employee to require the discussion to be held in public to cases where the employee
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OHIO FIRST DISTRICT COURT OF APPEALS
already had a right to a public hearing. And as the majority correctly holds, the clear
implication of Matheny is that this only applies when an existing right to a hearing
comes from statute.
{¶22} The result we reach today finds little support in the language of the
Open Meetings Law. But unless the Supreme Court revisits Matheny or the
legislature takes action, it is the decision we are required to reach.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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