Ellsworth v. Streetsboro City Sch. Dist. Bd. of Educ.
| Decision Date | 18 November 2019 |
| Docket Number | 2018-P-0105,NOS. 2018-P-0104,S. 2018-P-0104 |
| Citation | 2019 Ohio 4731,136 N.E.3d 549 |
| Parties | Shane ELLSWORTH, et al., Plaintiffs-Appellants, v. STREETSBORO CITY SCHOOL DISTRICT BOARD OF EDUCATION, Defendant-Appellee. |
| Court | Ohio Court of Appeals |
Ira J. Mirkin, Richard T. Bush and Danielle L. Murphy, Green, Haines, Sgambati Co., LPA, 100 Federal Plaza East, Suite 800, P.O. Box 849, Youngstown, OH 44501 (For Plaintiffs-Appellants).
James A. Climer, Frank H. Scialdone and John D. Pinzone, Mazanec, Raskin & Ryder Co., LPA, 100 Franklin's Row, 34305 Solon Road, Cleveland, OH 44139 (For Defendant-Appellee).
{¶1} Appellants, Gretchen Weaver and Shane Ellsworth, appeal the November 19, 2018 decision of the Portage County Court of Common Pleas, as modified on December 7, 2018, which dismissed their R.C. 3319.16 administrative appeal. While a trial court hearing an administrative appeal under R.C. 3319.16 may weigh the evidence, hold additional hearings, and render factual decision, the appellate court review of that decision is limited to whether the trial court abused its discretion. Therefore, the issue before this court is whether the trial court abused its discretion in affirming the Board's resolution to terminate the appellants' teaching contracts where the Board determined, contrary in some regards to the hearing referee's conclusions of fact and ultimate recommendation, that appellants' conduct constituted "fairly serious matters" and "good and just cause" for termination. Because we find, after a careful and thorough review of the record, that the lower court did not abuse its discretion, the decision of the Portage County Court of Common Pleas is affirmed.
{¶2} The present appeal stems from two original actions, consolidated at the trial court, brought pursuant to R.C. 3319.16 by appellants appealing the termination of their teaching and supplemental contracts. In January 2017, the Board notified, and initiated termination proceedings against appellants based on a complaint alleging that appellants permitted, condoned, and encouraged the hazing of students during Streetsboro High School's summer band camp in 2016 and prior years. Both appellants were immediately suspended without pay pending investigation. At that point, Ms. Weaver had been employed by the Streetsboro City School District as a music teacher and Band Director for twelve years, and Ms. Ellsworth had been employed by the Streetsboro City School District as a music teacher and Assistant Band Director for sixteen years.
{¶3} At appellants' request, a hearing was held, pursuant to R.C. 3319.16, with a referee appointed by the Ohio Department of Education. Specifically, the hearing considered nine instances of alleged hazing occurring in 2016 and two instances of alleged hazing occurring in prior years as laid out in the Notice of Pretermination Meeting provided to appellants. The occurrence of the specific allegations is not generally disputed, though various purportedly mitigating factors are noted by appellants.
{¶4} The hearing lasted 14 days, included 31 witnesses and approximately 80 documentary exhibits, and resulted in a 2,711-page transcript. Following the hearing, the referee issued his Report, Findings of Fact and Recommendation ("Report") to the Board, which found that appellants engaged in three instances of "fairly serious" misconduct during the 2016 band camp and that the misconduct violated the Board's policy. The referee, however, recommended discipline short of employment termination for both appellants. The Board accepted certain factual findings, rejected others as being "against the manifest weight of evidence," and found that the referee "incorrectly considered each activity in isolation and determined that the individual activity was not hazing." The Board ultimately rejected the referee's recommendation of discipline less than termination and adopted a resolution to terminate appellants' teaching and supplemental contracts.
{¶5} A detailed look at the specific allegations, the referee's findings, and the Board's ultimate determination is foundational to understanding appellants' assignments of error:
{¶9} The referee found specifications one and two did occur, but that they did not create a substantial risk of harm and were not a form of initiation, and, therefore, did not constitute a "fairly serious matter" meriting discipline or termination. The Board did not expressly disagree with the referee's finding of fact as to these specifications but disagreed with the Referee's determination that hazing, as a whole, did not occur.
{¶10} 3. Participating in a skit with an intent to target and humiliate a freshman band member, and by further sharing the freshman band member's personal information with senior band members with the intent to ridicule the freshman band member;
{¶11} The referee found that both appellants performed a skit in front of the band which compared renaissance artists who were skilled in drawing male genitalia to an incoming freshman boy and then held up the freshman boy's agenda notebook, in which he had drawn pictures of male genitalia, to the senior band members. Without concluding whose testimony he found to be more credible, the referee noted that the Board presented evidence that during Ms. Weaver's investigatory interview, she stated that the skit was intended to be a "got-you" moment, to send him a message that he should not have written in the agenda as he did, and to make an example of him, although she denied such at the hearing. Regardless of intent, the referee found that their actions were inappropriate and in bad taste, at best reckless and at worst intentional, and it was a "fairly serious matter" that constitutes good and just cause to take disciplinary action against appellants, but found that because it was not a requirement or form of initiation, it did not constitute hazing. The Board expressly agreed with this finding of fact, only disagreeing with the Referee's determination that hazing did not occur.
{¶12} 4. Participating in a skit that disparaged two former band members and a former administrator in front of band members and chaperones;
{¶13} The referee found that appellants performed a skit in front of the band in which they named two former students and a former administrator as "people who were not being missed." The referee found that their actions were inappropriate and in bad taste and constituted good and just cause to take disciplinary action short of termination against appellants; however, because it was not a requirement or form of initiation, the referee found it did not constitute hazing. The Board expressly agreed with this finding of fact, only disagreeing with the Referee's determination that hazing did not occur.
{¶14} 5. Approving and/or permitting senior skits that included inappropriate language, sexual content, and which were otherwise inappropriate for a school activity;
{¶15} The referee found that several skits performed by senior members of the band contained sexual references and inappropriate language1 , noting that "even Ms. Weaver admitted that the skits violated the rules." The referee found that appellants' failure to adequality preapprove the skits, as they had stated to band members' parents that they would, the skits contain some content inappropriate for a school activity. The referee found, however, it did not rise to the level of "fairly serious matter."2 The Board disagreed with this conclusion.
{¶18} The referee found that the allegations in six and seven did occur, noting, however, that there was "inconclusive testimony as to the time of night when this event occurred" and that there were at least seven chaperones at the dock and beach during the event, including a paramedic, an emergency room nurse, a fire department captain, and a scuba instructor. The referee noted that while some students testified that they did not know they did not have to go into the water, he found that the students were informed they did not have to participate, and some students did not participate. Nevertheless, the referee found it to be a generally unsafe activity, despite the precautions taken, and that appellants permitted senior band members to throw, push, or otherwise force underclass band members into a lake when at least one of the underclass band members was unable to swim. Accordingly, the referee concluded this constituted a "fairly serious matter" providing good and just cause for discipline, but because it was not a requirement or form of initiation, it was not hazing. The Board accepted these facts but rejected the conclusion that it did not constitute hazing and was not just cause for termination.
{¶19} 8. Permitting senior band members to wake up the underclass band members at or around 2:30 a.m. with noisemakers and loud music, and further permitting the senior band members to trash the rooms, bathrooms, and camp grounds;
{¶20} The referee found that the seniors were permitted to stay up late to "decorate" the campgrounds with chalk drawings on the...
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