Borman v. Gorham-Fayette Board of Education

Douglas, J.,

dissenting. In Dayton Teachers Assn. v. Dayton Bd. of Edn. (1975), 41 Ohio St. 2d 127, this court held:

“A board of education is vested with discretionary authority to negotiate and to enter into a collective bargaining agreement with its employees, so long as such agreement does not conflict with or purport to abrogate the duties and responsibilities imposed upon the board of education by law.” Dayton Teachers Assn., supra, at paragraph one of the syllabus.

This holding of the court was, more recently, approved and followed in Struthers City Schools Bd. of Ed. v. Struthers Edn. Assn. (1983), 6 Ohio St. 3d 308, syllabus, where it was held:

“Contractually created procedural requirements relating to the nonrenewal of teachers’ limited employment contracts, contained in collective bargaining agreements and arrived at through open negotiation, are enforceable so long as the procedures do not directly conflict with R.C. 3319.11.”

As school boards tested the resolve of this court to apply this law, this court was forced to emphasize its position:

a* * * puj3ijc agencies should be aware that their agreements are as sacrosanct as those made between strictly private parties. Public agencies, like those in the private sector, are bound by the agreements made by those who negotiate on their behalf. Such agreements are not subject to the subsequent whims and caprices of the public agency or its members. This court should not, and indeed will not, tolerate eleventh hour specious challenges to agreements made by public agencies after they have negotiated and have given their word.” Warren Edn. Assn v. Warren City Bd. of Edn. (1985), 18 Ohio St. 3d 170, 175.

*156So that the message of these cases would not be misinterpreted, this court, most recently, reemphasized:

“* * * [Negotiated collective bargaining agreements are just as binding upon public employers as they are upon private employers. Courts should not allow public employers to disregard the terms of their collective bargaining agreements whenever they find it convenient to do so. On the contrary, the courts will require public employers to honor their contractual obligations to their employees just as the courts require employees to honor their contractual obligations to their employers.” (Citations omitted.) Mahoning Cty. Bd. of Mental Retardation v. Mahoning Cty. TMR Edn. Assn. (1986), 22 Ohio St. 3d 80, 84.

In spite of these recent admonitions, I find that the most flagrant transgressions of this mandate continue.

In 1981, Phoebe Borman entered into a one-year written contract with the Gorham-Fayette Board of Education to teach in that district. In contemplation of improving her teaching skills so as to better serve the district’s needs in the following years, the school board inserted an express provision in the contract that provided:

“Phoebe Borman will be under a formal evaluation system, e.g. Evluation [sic] Procedure adopted June 1975 or an evaluation procedure agreed between the evaluator and teacher.
“By Board Resolution this evaluation process is to be a strong evaluation.”

Upon consideration, inasmuch as a provision providing for the evaluation of a teacher does not abrogate the statutory authority of a school board to nonrenew a limited teaching contract under R.C. 3319.11, the provision is an acceptable clause in an employment contract. Second, notwithstanding the grammatical signal, “e.g.,” in this provision, this contract envisioned more than a perfunctory evaluation of Borman’s abilities. The provision demonstrates the explicit intent that the evaluation be conducted under either of two permissible conditions. One, an evaluation could be conducted pursuant to the specific evaluation procedure approved and adopted in 1975 by both the Gorham-Fayette school board and by the Gorham-Fayette Teachers’ Association. This procedure dictated that in September of the year in which an evaluation is to take place, the evaluator for the school board, i.e., the principal, would meet with the teacher to be evaluated. At this meeting, the parties would establish specific long-term and short-term goals necessary for the teacher to improve her skills. Also, the parties would mutually establish a minimum number of classroom observation visits to be conducted along with a corresponding minimum number of minutes to each visit. In conjunction with these visits, regularly scheduled conferences between the principal and the teacher would be conducted throughout the year at mutually agreed-upon times to discuss progress toward the teacher’s goals. Following each conference, the principal was to provide the teacher with a written summary *157of the conference and to allow the teacher an opportunity to comment upon the summary. Two, as an alternative to this more rigid format, the contract provided that any evaluation procedure could be employed if the procedure to be used were mutually agreed upon by the principal and the teacher.

In this case, however, by the evaluating principal’s own admission, neither condition was met. Instead, and without consulting Borman, the principal used an evaluation process he had developed himself while serving in a different school district. The procedure involved three classroom observation visits: two in September 1981 and one in March 1982. This constituted less than two total hours of classroom observation. Although the principal presented Borman with his written observations and then asked her to sign the form, there was no meaningful discussion of his observations. The principal indicated each review process was completed in “a few minutes.”

Considering these facts, it is clear that the evaluation procedure afforded Borman did not meet, in any material fashion, as a matter of law, the strictures of the mutually agreed-upon terms of the contract. It is quite obvious that the Gorham-Fayette Board of Education did not consider itself bound by its own agreements. Had the postures of the parties been reversed, however, it is certain that the board would have demanded strict compliance with the terms of the contract. Such conduct should not be countenanced.

Accordingly, I would affirm the decision of the court of appeals in its finding that a breach of contract occurred. In accordance with this finding, I would enter judgment for appellee Borman on her contract claim and grant her relief, including damages, as provided by law.

Celebrezze, C.J., and C. Brown, J., concur in the foregoing dissenting opinion.