County of Summit Board of Mental Retardation and Developmental Disabilities v. Gail L. Mcalister

• Decision Date: 13 October 1993
• Docket Number: 16142,93-LW-5458
• Parties: COUNTY OF SUMMIT BOARD OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES, Appellant v. GAIL L. McALISTER, Appellee C.A.
• Court: Ohio Court of Appeals

COUNTY OF SUMMIT BOARD OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES, Appellant v. GAIL L. McALISTER, Appellee

No. 16142.

93-LW-5458 (9th)

Court of Appeals of Ohio, Ninth District Summit

October 13, 1993

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE NO. 92 06 2351.

DECISION

This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:

REECE J.

Appellants, the Administrator of the Ohio Bureau of Employment Services (Administrator) and Gail McAlister,^[1] appeal the judgment of the Summit County Court of Common Pleas reversing the decision of the Board of Review for the Bureau of Employment Services (Board) permitting McAlister to receive unemployment benefits. We affirm.

McAlister was employed as a teacher by the Portage County Board of Education for the 1990-1991 school year. She expected to receive a similar position for the 1991-1992 school year; however, this position was eliminated on July 2 1991, because of a reduction in students. Prior to learning of the elimination of this position, McAlister accepted a position with the appellee, Summit County Board of Mental Retardation and Developmental Disabilities (Summit MRDD), as an instructor for the summer term of 1991. During this time, McAlister informed Summit MRDD that she had obtained a position with the Portage County MRDD for the 1991-1992 school year.

McAlister applied to the Ohio Bureau of Employment Services for unemployment benefits on August 5, 1991. This application was granted and the first claim for benefits was allowed for the week of August 10, 1991. The Summit MRDD and Portage County Board of Education were both charged for these benefits. Summit MRDD unsuccessfully pursued its administrative remedies with the Bureau of Employment Services, the last being the Board Is decision. Summit MRDD then appealed to the Common Pleas Court which reversed the Board's decision. The Administrator and McAlister appeal raising as their sole assignment of error, the trial count's decision to reverse the Board.

Assignment of Error

"The Court of Common Pleas erred as a matter of law in reversing the board of review."(sic)

The referee for the Board of Review found that the Portage MRDD was not a "school". Therefore, R.C. 4141.29(I)(1), which prohibits the payment of unemployment benefits to teachers at educational institutions for periods in between academic terms, did not amply. The trial court found that the Portage MRDD was an educational institution and applied R.C. 4141.29(I)(1).

R.C. 4141.01(CC) defines an educational institution for purposes of unemployment benefits. It provides:

"(CC) `Educational institution' means an institution other than an institution of higher education as defined in division (y) of this section which:

"(1) Offers participants, trainees, or students an organized course of study or training designed to transfer to them knowledge, skills, information, doctrines, attitudes or abilities from, by or under the guidance of an instructor or teacher; and

"(2) Is approved, chartered, or issued a permit to operate as a school by the state board of education or other government agency that is authorized within the state to approve, charter, or issue a permit for the operation of a school.

The Summit and Portage County MRDD are educational institutions within the meaning of R.C. 4141.01(CC). The state board of education is entrusted to ensure that each local board of education in the state establishes and maintains a special education program, R.C. 3323.07. That statute also requires the state to authorize any department of mental retardation and developmental disabilities to establish and maintain special education programs. The purpose of these programs is to help fulfill the legislature's intent that all handicapped children of compulsory school age be provided with an appropriate public education. R.C. 3323.02. Pursuant to R.C. 3323.01(D), an appropriate public education means special education and related services that:

"(1) Are provided at public expense and under public supervision;

"(2) Meet the standards of the state board of education;

"(3) Include an appropriate preschool, elementary or secondary education;

"(4) Are provided in conformity with the individualized education program required under this chapter.

Further, the special education programs are to be maintained in accordance with a plan submitted to, and approved by, the state board of education. R.C. 3323.08. Each plan must provide individualized education programs ford each child and the necessary educational programs and related services needed to meet the educational needs of every handicapped child between the ages of three and twenty one. R.C. 3323.08(C) and (D). Also, each MRDD is required to establish special education programs for all handicapped children who have been placed in special education programs which it operates. R.C. 3323.09(B). Each plan must also provide for necessary staffing and supervision for the identification, placement and provision of educational programs for the handicapped. R.C. 3323.08(A). Any teacher hired in these education programs must...