State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn.

• Decision Date: 04 May 1994
• Docket Number: No. 93-1876,93-1876
• Citation: 631 N.E.2d 150,69 Ohio St.3d 217
• Parties: The STATE ex rel. CASSELS, Appellant, v. DAYTON CITY SCHOOL DISTRICT BOARD OF EDUCATION, Appellee.
• Court: Ohio Supreme Court

Page 217

69 Ohio St.3d 217

631 N.E.2d 150

The STATE ex rel. CASSELS, Appellant, v. DAYTON CITY SCHOOL DISTRICT BOARD OF EDUCATION, Appellee.

No. 93-1876.

Supreme Court of Ohio.

Submitted Feb. 22, 1994.

Decided May 4, 1994.

On August 19, 1992, Winona P. Cassels, relator-appellant, filed this mandamus action in the Montgomery County Court of Appeals against the Dayton City School District Board of Education, respondent-appellee. The complaint, as subsequently amended, requested a writ of mandamus commanding appellee to issue a two-year assistant principal contract to appellant, effective as of July 1, 1992. Appellant further prayed for back pay and fringe benefits. The parties filed motions for summary judgment.

Appellee employed appellant as an assistant director of magnet schools for the 1989-1990 school year at a salary of $48,904.13. Appellee then contracted with appellant for employment in the same position for a two-year period beginning July 1, 1990 and ending June 30, 1992, at a salary of $53,485.12 per year. During this period appellant was transferred to a position as assistant principal and her salary was increased. At no time prior to June 1, 1992 did appellant notify appellee in writing that she did not wish to be deemed reemployed pursuant to R.C. 3319.02(C). Prior to March 31, 1992, appellee issued to appellant a written notice of its intent not to reemploy her as an assistant principal.

In deciding not to reemploy appellant as an assistant principal or other administrator, appellee neither reviewed nor discussed any written evaluation of appellant. In fact, during appellant's last school year as an assistant principal, appellee did not make any written evaluation of her. During the school year beginning July 1, 1992, appellee employed appellant in a position other than as an assistant principal or school administrator at a substantially lower salary.

Appellee attached to its motion for summary judgment and memorandum in opposition to appellant's motion for summary judgment the affidavits of David B. Puthoff, treasurer of appellee, and Robert Cannarozzi, Supervisor of Certificated Personnel and Reserve Teachers for appellee. The affidavits noted as follows:

"The factual statements set forth in the Memorandum in Opposition to Motion For Summary Judgment under the argument: The Position for which Relator held an administrative contract was abolished, are true and accurate."

That memorandum indicated that (1) appellant, along with all other administrators whose contracts were expiring on June 30, 1992, was sent notice by appellee of its intent not to reemploy her as an administrator for the 1992-1993 school year; (2) the school district subsequently abolished eleven assistant principal positions, including appellant's, for the 1992-1993 school year; and (3) appellant accepted reemployment as a high school English teacher.

On December 11, 1992, appellant filed a motion to strike certain portions of the Puthoff and Cannarozzi affidavits, including those parts incorporating the factual statements set forth in appellee's memorandum. Appellant claimed that the affidavits failed to establish that either of the affiants possessed the requisite personal knowledge concerning the matter. Appellee filed no response to appellant's motion, and the court of appeals never expressly ruled on it. The court of appeals ultimately granted appellee's summary judgment motion and denied appellant's complaint for a writ of mandamus.

This cause is before the court upon an appeal as of right.

Young, Pryor, Lynn & Jerardi and Larry A. Smith, Dayton, for appellant.

John F. Lenehan, Dayton, for appellee.

PER CURIAM.

In order for a writ of mandamus to issue, a relator must demonstrate that (1) he or she has a clear legal right to the relief prayed for; (2) respondent is under a corresponding legal duty to perform the requested act; and (3) relator has no plain and adequate legal remedy. State ex rel. Glass, Molders, Pottery, Plastics & Allied Workers Internatl. Union, Local 333, AFL-CIO, CLC v. State Emp. Relations Bd. (1993), 66 Ohio St.3d 157, 158, 609 N.E.2d 1266, 1267. Furthermore, Civ.R. 56(C) provides that before summary judgment may be granted, it must be determined that (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing the evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the nonmoving party. Davis v. Loopco Industries, Inc. (1993), 66 Ohio St.3d 64, 65-66, 609 N.E.2d 144, 145; Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274.

Appellant's second, third, fourth, and fifth propositions of law essentially assert that the court of appeals committed reversible error by granting appellee's motion for summary judgment because appellee's failure to comply with the evaluation requirements of R.C. 3319.02(D) rendered its action to not reemploy appellant as an assistant principal void.

R.C. 3319.02(C) provides in part:

"An assistant superintendent, principal, assistant principal, or other administrator is, at the expiration of his current term of employment, deemed reemployed at the same salary plus any increments that may be authorized by the board of education, unless he notifies the board in writing to the contrary on or before the first day in June, or unless such board, on or before the last day of March of the year in which his contract of employment expires, either reemploys him for a succeeding term or gives him written notice of its intention not to reemploy him."

R.C. 3319.02 is a remedial statute that must be liberally construed in favor of administrators. State ex rel. Smith v. Etheridge (1992), 65 Ohio St.3d 501, 605 N.E.2d 59, syllabus; R.C. 1.11. Pursuant to R.C. 3319.02(C), a board of education's failure to provide timely written notice of its intention not to reemploy an administrator results in the administrator's entitlement to mandamus to be reemployed by the board. State ex rel. Luckey v. Etheridge (1992), 62 Ohio St.3d 404, 583 N.E.2d 960; State ex rel. Brennan v. Vinton Cty. Local School Dist. Bd. of Edn. (1985), 18 Ohio St.3d 208, 18 OBR 271, 480 N.E.2d 476. Similarly, appellant claims that the failure of a board of education to comply with the evaluation procedures of R.C. 3319.02(D) renders any board action not to reemploy an administrator void.

Resolution of appellant's contentions requires statutory construction of R.C. 3319.02(D), which provides:

"Each board of education shall adopt procedures for the evaluation of all assistant superintendents, principals, assistant principals, and other administrators and shall evaluate such employees in accordance with those procedures. The evaluation based upon such procedures shall be considered by the board in deciding whether to renew the contract of employment of an assistant superintendent, principal, assistant principal, or other administrator. The evaluation shall measure each assistant superintendent's, principal's, assistant principal's, and other administrator's effectiveness in performing the duties included in his job description and the evaluation procedures shall provide for, but not be limited to, the following:

"(1) Each assistant superintendent, principal, assistant principal, and other administrator shall be evaluated annually through a written evaluation process.

"(2) The evaluation shall be conducted by the superintendent or his designee.

"(3) In order to provide time to show progress in correcting the deficiencies identified in the evaluation process the completed evaluation shall be received by the evaluatee at least sixty days prior to any action by the board of education on the employee's contract of employment.

" * * *

"The establishment of an evaluation procedure shall not create an expectancy of continued employment. Nothing in this section shall prevent a board of education from making the final determination regarding the renewal of or failure to renew the contract of any assistant superintendent, principal, assistant principal, or other administrator." (Emphasis added.)

"In construing a statute, a court's paramount concern is the legislative intent in enacting the statute. * * * In determining legislative intent, the court first looks to the language in the statute and the purpose to be accomplished." State v. S.R. (1992), 63 Ohio St.3d 590, 594-595, 589 N.E.2d 1319, 1323. Words used in a statute must be taken in their usual, normal or customary meaning. R.C. 1.42; Indep. Ins. Agents of Ohio, Inc. v. Fabe (1992), 63 Ohio St.3d 310, 314, 587 N.E.2d 814, 817. In construing a statute, it is the duty of the court to give effect to the words used and not to insert words not used. S.R., supra, 63 Ohio St.3d at 595, 589 N.E.2d at 1323. "Where the language of a statute is plain and unambiguous and conveys a clear and definite meaning, there is no need to apply rules of statutory interpretation. * * * However, where a statute is found to be subject to various interpretations, a court called upon to interpret its provisions may invoke rules of statutory construction in order to arrive at legislative intent." Cline v. Ohio Bur. of Motor Vehicles (1991), 61 Ohio St.3d 93, 96, 573 N.E.2d 77, 80.

At least one treatise has noted an arguable internal inconsistency in R.C. 3319.02(D):

"It is not entirely clear whether an administrator's contract may be nonrenewed even though the board has failed to provide an evaluation sixty days prior to the nonrenewal action. The language of the statute seems to make timely receipt of the evaluation by the administrator an absolute prerequisite to any contract action. However, the statute also declares that the evaluation procedure 'shall not create an expectancy of continued employment,' and that '[n]othing in...