I respectfully dissent from the majority opinion since the majority has failed to demonstrate that appellants were unable to comply with the statutory appeal procedure mandated by R.C.3319.11(G)(7).
R.C. 3319.11(G)(7) states in relevant part as follows:
"A teacher may appeal an order affirming the intention of the board not to reemploy the teacher to the court of common pleas * * * within thirty days of the date on which the teacher receives the written decision * * *. No appeal of an order of a board maybe made except as specified in this division." (Emphasis added.)
In the case sub judice, it was undisputed that Hunt failed to file an appeal from the order of the board which order affirmed the board's original intention to nonrenew Hunt's limited employment contract. On the contrary, Hunt, upon receiving written notice of the board's order, chose instead to commence the case sub judice as an original action, rather than an appeal, in the common pleas court.
In accordance with R.C. 3319.11(G)(7), supra, the common pleas court lacked subject matter jurisdiction to adjudicate Hunt's claims which arose from *Page 245 R.C.3319.11 and, therefore, properly dismissed such claims. In this conclusion, I am in full agreement with the majority who write as follows:
"Accordingly, plaintiffs were required to appeal the decision of the board under the procedures outlined in R.C.3319.11(G)(7). Plaintiffs could not simply challenge the board'snonrenewal in an original action in the court of common pleas." (Emphasis added.)
The majority and I, however, henceforth part company.
Although the majority correctly asserts that Hunt was required to appeal from the order of the board rather than commence an original action, the majority cryptically finds that Hunt never received "final notice" of the board's "ultimate decision." Since Hunt never received final notice, the majority concludes that the statutory time in which Hunt was required to file a notice of appeal was never commenced and, presumably, has even now not begun to run. The evidence contained in the record before this appellate court, however, belies this conclusion.
In the majority, the majority states in relevant part as follows:
"In this instance, the evidence indicated that Hunt did notdirectly receive Dinklocker's letter, but instead received a copy of it from the WTA."
The majority, thus, hints that whatever notice was, in fact, provided was deficient because the notice was not sentdirectly to Hunt. The majority, however, fails to consider the circumstances under which the within notification occurred.
It was undisputed that on or about August 12, 1991, the board met in executive session and affirmed its intention not to renew Hunt's limited employment contract. Hunt, in her deposition, admitted that Acting Superintendent Christina M. Dinklocker thereafter mailed written notification of the board's order to Hunt who failed to receive the notice since she had moved from her former place of residence. Hunt also stated, however, that she obtained a copy of Dinklocker's written notification from Hunt's union representative at some point in August 1991.
In her deposition at pp. 151-152, Hunt answered questions as follows:
"Q. At that point in time did you know that you were not coming back for the following school year?
"A. I believe it was the end of August, and I still did not know then definitely whether I was coming back or not. I believe it was after the Board hearing, but there was still the possibility that I was coming back.
"Q. And that's because you said that you did not receive the letter from Dr. Dinklocker that you produced. * * * *Page 246
"Q. This is document 15 in Exhibit A. Is this the letter you claim you never received?
"A. Yes.
"Q. Okay. It's addressed to your address on Harold Avenue.That's the address that you moved from August 1st?
"A. Yes.
"Q. All right. Did you have a mail forwarding order on that address to forward to Elyria?
"A. Yes.
"Q. Did you later acquire a copy of this letter from somesource?
"A. Yes.
"Q. And where did you get a copy of it?
"A. Either Pat Walsh or Lynn Heitzman.
"Q. How long after August 12 of '91 did you get a copy ofthat?
"A. Was this letter mailed on August 12th?
"Q. It was dated August 12th. How long after that date do youthink you got it?
"A. At least a week.
"Q. Sometime in August?
"A. Yeah, I think. I'm not sure, because I never did receive it, and I did call and ask where it was.
"Q. And you ultimately got it from somebody at the WTA?
"A. Yes.
"Q. Had they received a copy of it?
"A. I believe so." (Emphasis added.)
Based upon the foregoing colloquy, it is obvious that Dinklocker, on August 12, 1991, timely mailed written notification of the board's order to Hunt. At deposition, Hunt identified the letter sent by Dinklocker to Hunt's former address which letter was postmarked August 12, 1991. Since Hunt, however, had moved her place of residence, Hunt did not receive the written notification.
In light of these facts, it cannot be said that Dinklocker failed to "directly" notify Hunt of the board's order. Under the foregoing circumstances, Dinklocker did all that could have been expected of her, viz., she mailed Hunt written notification of the board's order at Hunt's last known address. *Page 247
Therefore, the majority's analysis in the case sub judice with respect to direct notification is fatally flawed.
The majority in its opinion also states, however, as follows:
"In addition, there was evidence that the letter was written by Dinklocker in her capacity as acting superintendent, without being directed to do so by the board, and that there was no `order' which affirmed or vacated the previous decision, no formal decision by the board, and no manifestation of the board's intention that Hunt's employment not be continued."
The majority thus concludes that R.C. 3319.11(G)(6) required only the board rather than Dinklocker to issue written notification to Hunt of the board's order affirming its original intention to nonrenew Hunt's employment contract and, therefore, the board failed to comply with the foregoing statutory mandate. In addition, the majority infers that Dinklocker's letter to Hunt failed to provide actual notice to Hunt of the board's order. Once again, however, the evidence contained in the instant record belies these conclusions.
It is first noted that the instant record contains no copy of Dinklocker's letter to Hunt. However, Hunt, in her foregoing deposition statements, clearly implied that once she received a copy of Dinklocker's letter, Hunt understood that the board had failed to order a reversal of its original intention to nonrenew her contract. In fact, Dinklocker stated at deposition that Hunt called Dinklocker after Hunt received the copy of Dinklocker's letter to discuss the ramifications of the letter.
Dinklocker stated in her deposition at p. 94 in relevant part as follows:
"During the conversation that Frances [Hunt] and I had after the Board meeting in which the letter was sent indicating that she would have the opportunity to serve as a day-to-day casual sub. [sic] Frances, as I mentioned, did call and ask forclarification of that, at which point I gave the clarificationas described, and she indicated to me her displeasure with thatdecision, that it was unacceptable." (Emphasis added.)
In addition, Hunt stated in her original complaint in relevant part as follows:
"19. Despite the above-described representations, the Board on or about August 12, 1991, finalized its decision and refusedto re-employ Plaintiff as a full-time and/or as long-termsubstitute teacher for the 1991-1992 school year." (Emphasis added.)
Based upon the foregoing evidence, it is clear that Hunt, upon receiving a copy of Dinklocker's letter, understood that the board affirmed its earlier intention to nonrenew her contract. *Page 248
Moreover, Hunt has not alleged on appeal that upon receiving a copy of Dinklocker's letter Hunt still failed to understand that the board affirmed its earlier intention not to renew her contract. Restated, although Hunt claimed throughout the instant litigation that she received no notification prior to April 30, 1991 of the board's intention to nonrenew her contract, Hunt never claimed she failed to receive notification of the board's August 12, 1991 order affirming its intention not to renew her contract.
Therefore, the majority's conclusion that Dinklocker's letter failed to notify Hunt of the board's order to affirm its earlier intention to nonrenew Hunt's employment is not substantiated by the evidence contained in the within record and is also fatally flawed.
Furthermore and most importantly, the majority, in the foregoing statement from the majority opinion, suggests that since Dinklocker rather than the board itself notified Hunt, the notification was not in conformity with R.C. 3319.11(G)(6),supra. The majority, however, ignores the numerous deposition statements of Dr. Mary Spor who was a member of the Westlake Board at the relevant times herein. Of significance are the statements by Spor which demonstrate unequivocably that Dinklocker possessed actual authority to notify Hunt on behalf of the board of the board's order.
Spor's answers contained in her deposition at pp. 22-23 stated in relevant part as follows:
"Q. And whom [sic] ultimately made the final decision on whether an applicant was hired or not hired?
"A. The final decision was made by the Superintendent of Schools for all hirings. He makes the recommendation — or in the past has made the recommendation to the Board.
"Q. And then the Board would either take that recommendation or not take it; is that correct?
"A. Well, the Board would take that recommendation.
"Q. As a matter of course, or you had absolutely delegatedthat authority to him?
"A. That was his authority. The screening process wasconducted by the Administration, and the final recommendationcame from the Superintendent.
"Q. Was the Superintendent's recommendation ever rejected ona hiring?
"A. No, it was never rejected for a certificated staff. * * *" (Emphasis added.) *Page 249
In addition, Spor's answers contained in her deposition stated at pp. 48-49, 52 in relevant part as follows:
"Q. Why did you make that determination? Why did you make the determination to go with the casual substitute, as opposed to a long-term substitute?
"A. Because the Administration did not recommend her for one of the long-term substituted positions.
"Q. Do you know why that was so?
"A. I have no idea.
"Q. But you did find out that she had not timely received the notice from the Superintendent?
"A. That's right. * * *
"Q. Why didn't you — didn't you find that to be important?
"A. It's important, but it's — there had been times in thepast when the Superintendent didn't send out notification forother things. * * *" (Emphasis added.)
Furthermore, Spor also answered in her deposition in relevant part on pp. 61-62 as follows:
"Q. Okay. What I'm asking is when did the Board make its decision, that night after the hearing was over, the next day? When did it decide?
"A. I don't know if the Board ever made a `decision.'
"Q. Even to this day?
"A. Well —
"Q. At least while you were still on the board?
"A. The decision that was made — if you want to call it a decision — I believe was communicated to Miss Hunt by Dr.Dinklocker.
"Q. Well, how did Dr. Dinklocker know what to do?
"A. She was in Executive Session with us. * * *" (Emphasis added.)
Significantly, Spor answered in relevant part in her deposition at pp. 73-74 as follows:
"Q. So at least based upon those documents, there is no indication that the Board or the Administration ever gave written notice of non-renewal to Miss Hunt, is that what you're saying?
"A. Well, I don't see anything here.
"The Board would not have given written notice ofnon-renewal, the Administration would have. *Page 250
"Q. The Administration acts for the board?
"A. Right." (Emphasis added.)
Based upon the foregoing statements, and upon other similar statements contained in Spor's deposition not herein reproduced, it is blatantly obvious that Dinklocker was granted by the board, at the very least, implied actual authority, if not express actual authority, to notify Hunt on behalf of the board of the board's order affirming its intention not to renew Hunt's contract. In fact, Spor's deposition statements indicate the board delegated all notification responsibilities to the Superintendent who acted on behalf of the board as the board's agent. R.C. 3319.11(G)(6), supra, does not preclude the board from issuing its order via the board's own agent.
Thus, the majority's conclusion that "the letter was written by Dinklocker in her capacity as acting superintendent, without being directed to do so by the board" is not supported by the evidence contained in the within record and is fatally flawed.
The majority finally relies upon the principle contained inKiel v. Green Local School Dist. Bd. of Edn. (1994), 69 Ohio St.3d 149,150, 630 N.E.2d 716, 717, which states as follows:
"We have consistently held that the [Ohio Teacher Tenure] Act is remedial legislation which is to be liberally construed in favor of teachers."
Although I agree with this principle, I do not agree that the statutory appeal procedure should be arbitrarily abandoned. Furthermore, Kiel, supra, does not mandate such arbitrary abandonment.
In Kiel, supra, 69 Ohio St.3d at 153, 630 N.E.2d at 719-720, the Ohio Supreme Court deemed a teacher reemployed pursuant to R.C. 3319.11 stating in relevant part as follows:
"By mailing the notice of its intent not to renew Kiel's teaching contract to the Smithville High School, the school board did not comply with R.C. 3319.11(E). The certified return receipt is not signed by Kiel. The board did not timely presentany evidence that Kiel personally received the notice. * * *" (Emphasis added.)
In the case sub judice, however, evidence contained in the within record clearly demonstrates that Hunt did, in fact, receive actual notice of the board's order affirming its earlier intention to nonrenew Hunt's contract. Hunt received a copy of the letter of notification sent by Dinklocker as agent for the board. Hunt obviously understood from the letter that the board had failed to reverse its intention to nonrenew Hunt's employment contract. Hunt thereafter telephoned Dinklocker whereby she received additional clarification of the board's order. *Page 251
Hunt, subsequently, commenced the original action which is the case sub judice. Pursuant to R.C. 3319.11(G)(7), supra, however, Hunt was required to commence an appeal from the board's final order rather than an original action in order to challenge the board's compliance or noncompliance with R.C.3319.11. The common pleas court realized that it was without subject matter jurisdiction to adjudicate Hunt's claims arising from R.C. 3319.11 and rightly dismissed such claims in the casesub judice.
The majority opinion also concludes that the board failed to conduct a proper hearing when it reviewed its original intention to nonrenew Hunt's contract. The majority states in relevant part as follows:
"Herein, plaintiffs' evidence established that the board allowed Hunt to relate the substance of her complaint in an executive session. However, from Dinklocker's testimony regarding the fact that no evidence was presented, no questions asked, no discussions held, and no formal decisions made, this meeting hardly qualifies as a hearing pursuant to Naylor v.Cardinal Local School Dist. Bd. of Edn., supra."
In Naylor v. Cardinal Local School Dist. Bd. of Edn. (1994),69 Ohio St.3d 162, 630 N.E.2d 725, the respective board of education notified the plaintiff teacher of its intention to nonrenew her employment contract. The board, thereafter, conducted a hearing in which the board prohibited the plaintiff from calling any witnesses to testify on her own behalf. The Ohio Supreme Court stated at 168-169, 630 N.E.2d at 730-731 in relevant part as follows:
"In our view, the requirements of R.C. 3319.11(G)(5) envision more than an informal session between a school board and the teacher, where the teacher makes a verbal presentation protesting nonrenewal of his or her contract. *
"Therefore, we hold that the hearing provided teachers under limited contracts by R.C. 3319.11(G)(3), (4) and (5) necessarily includes the presentation of evidence, confrontation and examination of witnesses and the review of the arguments of the parties."
Naylor, supra, however, is inapposite to the case sub judice for one very important reason, viz., there is no evidence contained in the within record that the Westlake Boardprohibited Hunt from presenting evidence or witnesses on her own behalf. The majority admits that Hunt stated her case to the board at the August 12, 1991 Executive Session. The majority opinion then finds that since Hunt refused or failed to adduce evidence before the board, the hearing is deemed to be invalid and the board was prohibited from issuing an order. Such conclusion flies in the face of logic.
The burden of proof was on Hunt to adduce evidence on her own behalf. The fact that Hunt failed to produce evidence or witnesses on her own behalf did not *Page 252 prevent the board from deliberating and issuing an order. Had the board prohibited Hunt from adducing evidence on her own behalf, the hearing, pursuant to Naylor, supra, would have indeed been invalid. Such, however, was not the circumstance in the casesub judice.
Based upon the foregoing analyses, I therefore respectfully dissent from the majority decision. I would hold that the board properly conducted the Executive Session and satisfied R.C.3319.11(G)(6), supra, when Dinklocker notified Hunt of the board's order affirming its original intention to nonrenew Hunt's employment contract. Furthermore, since Hunt failed to timely appeal from the board's order in accordance with R.C.3319.11(G)(7), supra, I would dismiss the appeal sub judice for lack of subject matter jurisdiction.