Bowman v. Parma Bd. of Educ.

• Decision Date: 14 March 1988
• Docket Number: No. 53501,53501
• Citation: 44 Ohio App.3d 169,542 N.E.2d 663
• Parties: , 55 Ed. Law Rep. 707, 4 IER Cases 1805 BOWMAN, Admx., Appellant, v. PARMA BOARD OF EDUCATION et al., Appellees.
• Court: Ohio Court of Appeals

Page 169

44 Ohio App.3d 169

542 N.E.2d 663, 55 Ed. Law Rep. 707, 4 IER Cases 1805

BOWMAN, Admx., Appellant, v. PARMA BOARD OF EDUCATION et al., Appellees.

No. 53501.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

March 14, 1988.

Syllabus by the Court

1. An employment separation agreement clause purporting to prohibit a school district from disclosing pedophilia on the part of a teacher to a school district that subsequently employs him is void as against public policy and no cause of action will lie for its breach.

2. An employment separation agreement clause is illegal per se when it purports to suppress information concerning the commission of a felony. (R.C. 2921.22, applied.)

3. A claim for "psychic" injury or infliction of serious emotional distress survives the death of the person upon whom the injury or distress was inflicted.

Michael I. Greenwald, Cleveland, for appellant.

Ronald V. Rawlin and C. Douglas Lovett, Cleveland, for appellees.

MATIA, Judge.

Plaintiff-appellant, Cynthia J. Bowman, Administratrix of the Estate of Phillip L. Ginebaugh, appeals the ruling of the Cuyahoga County Court of Common Pleas granting the unopposed motion for summary judgment of defendants-appellees, Board of Education of the Parma City School District (hereinafter "the Parma Board"), David Smallwood, and Edward Karns.

The original plaintiff in this matter was Phillip L. Ginebaugh. His initial complaint was filed April 22, 1985, named the Parma Board and five John Does as defendants and stated two causes of action. The first claim for relief in the complaint alleged breach of a covenant of non-disclosure contained in a settlement agreement which terminated appellant's employment as a teacher in the Parma City School District. The second claim of the complaint alleged that the breach of the covenant of non-disclosure was "tortious in nature." On August 20, 1985, a "First Amended Complaint" was filed adding Parma Board member David Smallwood as a defendant, modifying the second claim to allege that the defendants' breach of the covenant of non-disclosure was "reckless" or "negligent," and adding a third claim which sounded in defamation.

On November 12, 1985, Phillip L. Ginebaugh committed suicide. On January 3, 1986, a "Second Amended Complaint" was filed substituting Cynthia J. Bowman, administratrix of the decedent's estate, as plaintiff ¹ and adding Parma Board member Edward Karns as a new-party defendant. On August 8, 1986, a "Third Amended Complaint" was filed adding a claim for wrongful death.

On December 5, 1986, pursuant to leave appellees moved for summary judgment. Appellees variously argued that the non-disclosure clause was unenforceable and non-binding in any event on the individual defendants; that appellant's defamation claims lacked merit and were time-barred; and that the tort claims did not survive Ginebaugh's death. Appellant filed neither a brief nor evidentiary materials in opposition to appellees' summary judgment motion.

The extensive materials attached to the appellees' motion for summary judgment and authenticated through reference by incorporation into accompanying affidavits establish the following facts. Phillip Ginebaugh had been employed by the Parma City School District as a physical education teacher since 1971. As early as 1978, female aides began avoiding Ginebaugh due to improper advances on his part for which he was duly warned by his principal at that time. In February 1980, Ginebaugh was warned that his employment was in "jeopardy" following a struggle with a high school student and episodes of paddling students, a practice forbidden by school district policy. In December 1981, Ginebaugh reportedly punched a third grade student.

In June 1982, Ginebaugh cornered a sixth grade student in a storeroom where they were taking inventory of gym materials. The student reported that Ginebaugh "nibbled" on her ear and asked, "What would you do if I kissed you?" At the same time another child complained that during a gym class Ginebaugh called her over and attempted to kiss her. At this time the Parma Board demanded that Ginebaugh resign. He was given to June 24, 1982 to obtain legal counsel.

On August 17, 1982, formal termination proceedings were initiated against Ginebaugh. A written summary of the allegations against him was supplied. Since Ginebaugh's teaching contract was continuing in nature, the proceedings were for an involuntary termination for cause. The matter was set down to be heard on October 28, 1982.

Prior to the hearing, the Parma Board engaged in an in-depth investigation of Ginebaugh's alleged misconduct. The investigation placed the events that had prompted the termination proceedings into a disturbing perspective. In the school year 1981-1982 alone it was discovered that Ginebaugh had molested a far greater number of children in a far greater variety of ways than previously had been suspected. Specifically, a number of students came forward and asserted that Ginebaugh had attempted or succeeded at kissing, hugging, or rubbing their legs or thighs, had rubbed his body against them while they were pinned against a wall, ² had offered good grades in exchange for back rubs, had taken off their shoes and socks, or had tickled their legs, sides or abdomens. In one instance Ginebaugh had insisted that a new female student give him a hug. In another instance Ginebaugh had held a girl around the back, lowered her to the floor and given her a "Hollywood type kiss" in front of an entire gym class.

On October 7, 1982, the Parma Board supplied to Ginebaugh's counsel a list of twelve student witnesses who were prepared to testify against him. The Parma Board indicated that as many as a dozen more students were expected to be called to testify.

Within the week, Ginebaugh's union representatives contacted the Parma Board. The union representatives proposed settlement by resignation on favorable terms. The Parma Board rejected the initial proposal but accepted a subsequent proposal. The parties entered into a settlement agreement which provided in part that:

"4. The Board shall provide Ginebaugh with a letter stating the dates of his employment by the Board, a description of his teaching duties during this period and a statement as to when he obtained his continuing contract. No further references or other statements related to Ginebaugh's employment will be given unless required by Court order."

The agreement also settled financial matters between the parties and banned Phillip Ginebaugh from all school buildings and office buildings of the Parma City School District. On October 26, 1982, Phillip Ginebaugh tendered his resignation. The record does not reveal which party drafted the settlement agreement.

The incident which constitutes the foundation for the appellant's claims occurred on October 30, 1984. That evening appellee David Smallwood, having discovered that the Lorain City School District had employed Phillip Ginebaugh as a teacher, telephoned James Dayka, President of the Lorain Board of Education. Appellee Smallwood confidentially advised Dayka that Phillip Ginebaugh had been in the process of being terminated by the Parma Board " * * * on a morals charge for child molesting * * * based on at least one incident involving tickling elementary school students * * *."

Prior to appellee Smallwood's telephone call to James Dayka, the Lorain Board had made a pre-employment investigation of Phillip Ginebaugh. During interviews, Ginebaugh downplayed the circumstances attendant to his resignation in Parma, informing his prospective employer that his troubles had involved using "unnecessary force" with students and a "harmless" incident of "tickling" a student. Officials of the Parma Board had declined to divulge to the Lorain Board any information from Ginebaugh's "sealed" personnel file. School officials in Berea and Brunswick also advised the Lorain Board that Ginebaugh had a poor work record and "a lot of personal problems."

In spite of the results of its investigation the Lorain Board employed Ginebaugh. No action was taken by the Lorain Board despite appellee Smallwood's telephone call to Lorain Board President James Dayka.

In January 1985, a female student reported that Ginebaugh had touched her legs and propositioned her at a wrestling match held at Norwalk Junior High School on January 12, 1985. On January 23, 1985, Lorain City School officials advised Ginebaugh that an administrative hearing would be held on January 29, 1985, to consider charges and specifications concerning the wrestling match incident.

On February 21, 1985, Ginebaugh walked off the job at 10:00 a.m. and went to a bar where he consumed six vodka-based beverages. The next day Ginebaugh was advised that an administrative hearing would be held on March 1, 1985, with respect to the incident of the previous day.

On March 14, 1985, the Lorain Board initiated termination proceedings against Ginebaugh. On April 9, 1985, the Superintendent of the Lorain City School District received a note from Ginebaugh wherein Ginebaugh stated, inter alia, "If only the little girl had not lied about the wrestling match I would be at work today." In May 1985, the Lorain Board entered into a settlement agreement with Phillip Ginebaugh, who resigned.

On February 12, 1987, the Cuyahoga County Court of Common Pleas granted the appellees' motion for summary judgment. This appeal timely followed.

I

Appellant's first assignment of error is that:

"The lower court erred in granting summary judgment to defendants. The non-disclosure clause of the settlement contract is not void or illegal as a matter of public policy."

In their motion for summary judgment, appellees argued that the non-disclosure clause of the settlement agreement between the Parma Board and Phillip Ginebaugh was void as against public policy, because it violated the open public records provision of Ohio law and because in effect...