Sorin v. Board of Educ., 887418

• Decision Date: 18 March 1974
• Docket Number: No. 887418,887418
• Citation: 315 N.E.2d 848,39 Ohio Misc. 108,68 O.O.2d 270
• Parties: , 68 O.O.2d 270 SORIN v. BD. OF EDUC. of Warrensville Heights School Dist.
• Court: Ohio Court of Common Pleas

Page 108

39 Ohio Misc. 108

315 N.E.2d 848, 68 O.O.2d 270

SORIN v. BD. OF EDUC. of Warrensville Heights School Dist.

No. 887418.

Court of Common Pleas of Ohio, Cuyahoga County.

March 18, 1974.

Bernard A. Berkman, Cleveland, for plaintiff.

Sheldon P. Weitzman, Cleveland, for defendant.

FRIEDMAN, Judge.

The action before this court is an appeal under R.C. 3319.16, from a decision of the board of education of the Warrensville Heights School District terminating plaintiff's contract as superintendent of schools. Plaintiff was hired by the defendant board of education on May 20, 1968, for a definitive term of three years, commencing August 1, 1968, and ending July 31, 1971. The record in this case shows that at an informal meeting of the board, in which three members of the five member board participated, sought plaintiff's resignation. The plaintiff reluctantly agreed to submit his resignation, to be effective July 31, 1970, but the board refused to extend such and advised plaintif that his resignation was to be accepted forthwith. The plaintiff thereby withdrew his offer of resignation and the board drafted a list of approximately thirteen alleged major charges containing many sub-charges and suspended him from his position pending the termination of his contract.

Pursuant to procedures in R.C. 3319.16, as it existed then, plaintiff requested a public hearing before the board and such commenced April 23, 1970.

On September 28, 1970, after over five months of proceedings containing approximately 11,000 pages of testimony and approximately 367 exhibits, the same three members of the board heretofore referred to, by a three to two vote, terminated plaintiff's contract retroactive to March 23, 1970. Plaintiff filed his appeal to this court on September 29, 1970.

There are three major issues presented to this court for its consideration:

(1) Was the majority group of the defendant board a biased tribunal, whose adjudication of the proceedings against plaintiff denied him a fair hearing required by due process and in violation of his basic constitutional rights?

(2) Were the charges as compiled against plaintiff so general and vague as not to be in compliance with R.C. 3319.16, and was plaintiff thereby deprived of due process?

(3) If plaintiff prevails, would he be entitled to reasonable attorney fees as against the defendant?

In answering these issues, a careful analysis of the record clearly demonstrates the following.

The record discloses, as aforementioned, that there was approximately five months of testimony consisting of thirty-nine volumes which testimony had little to do with the compliance and propriety of plaintiff's performance as superintendent of the school system of Warrensville Heights School District. The testimony further disclosed that the relationship between plaintiff and the defendant board at the outset was so satisfactory that an increase, in the amount of $3,000, was given to the plaintiff, from his fixed agreed salary, after his first year of service.

Throughout the proceedings alluded to, there appears an obvious prejudice and bias on the part of the three members of the five member board against the plaintiff. The three member panel not only investigated and prosecuted, but also appeared as the primary witnesses and then proceeded to make a judgment against plaintiff. The record is clear that many attempts were made by plaintiff's counsel, prior to and during the proceedings, to disqualify the three members who evidenced bias and prejudice and that his motions, when made, were turned down by a three to two vote of the board. The record also discloses that the three members of the board and indicated that they had decided at all costs, prior to the hearing on the charges, to get the plaintiff out of the community as superintendent of the school. Plaintiff asserts that the proceedings clearly demonstrated that the three members of the board which represented the majority with the power of final decision constituted a biased tribunal resulting in a denial of a fair hearing required by due process of law.

As already stated, the Warrensville Heights school board was divided into two factions-majority and minority. The majority presided over the hearing throughout the period and made the decision against the plaintiff.

The question here revolves not around whether the board members had any preconceived opinions about the questions involved, but whether or not plaintiff was able to obtain a fair and impartial hearing consistent with the principles of substantive due process.

The contention of the defendant, in one of its reply briefs, that a tribunal such as the Board of Education of Warrensville Heights could be biased and could conduct a hearing with relation to charges and not violate the principle of due process as contended by plaintiff is repugnant to the very fiber of our judicial structure. There is a wide area of difference between having an opinion and having bias. Opinions may be laid aside. Bias is so deeply structured in the person that fairness is impossible.

The school board is an arm of the government and properly should be responsive to the needs and requirements of the students and the community that it serves. The line to be drawn between bias and pure public concern and awareness of the needs of the community is many times one of fine distinction and sometimes difficult to determine.

Each member of the school board has a duty to promote that which he believes to be the activities in the best interest of the school system. The difficulty in this particular instance is that the investigative and prosecutorial body-namely, the board majority of three-was also the body that was required by R.C. 3319.16 to preside at the hearing which would consider the charges and ultimately cast its vote of dismissal or reinstatement. The foregoing statute has since been revised, in the good judgment of our legislature, to allow a choice of an independent referee.

Administrative agencies are not held to the same standard of procedural due process as a court of law would be. Agencies are not always composed of persons with legal training. They are established because of their expertise in certain areas and therefore better able to determine whether a person is functioning in a proper manner. In 2 American Jurisprudence 2d 166, Administrative Law, Section 353, it is stated:

'In administrative proceedings of a judicial or quasi-judicial character, the liberty and property of the citizen must be protected by the observance of the rudimentary requirements of fair play. Whether a person has been deprived of due process of law by the action of an administrative agency depends upon whether it acted contrary to the statutes and rules and with arbitrary and unreasonable discrimination.'

It is also stated in 2 American Jurisprudence 2d 221, Administrative Law, Section 412, that if the elements constituting a fair, open and impartial hearing are absent from the proceedings, the hearing is void.

In regard to the requirements of fairness and impartiality, 16 Ohio Jur.2d § 582 states:

'* * * and a statute which compels a litigant to submit his controversy to a tribunal of which his adversary is a member does not afford due process of law.'

In accordance with the decisions of various jurisdictions and the Supreme Court of the United States, an unbiased tribunal is a constitutional necessity in a quasi-judicial hearing, and a denial of the same is a denial of due process. Ward v. Village of Monroeville, 409 U.S. 57, 93 S.Ct. 80, 34 L.Ed.2d 267; Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749; In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942. The requirement of an impartial tribunal applies to administrative proceedings no less than criminal trials. Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287.

One who investigates and then proceeds to prosecute and furthermore proceeds to act as a witness in the prosecution cannot and should not proceed in judgment upon the evidence so obtained. United States ex rel. McCans v. Armour & Co., 102 U.S.App.D.C. 391, 254 F.2d 90 states:

'the fundamental requirements of fairness in the performance of (quasi-judicial) functions require at least that one who participates in a case on behalf of any party, whether actively or merely formally by being on pleadings or briefs, take no part in the decision of that case by any tribunal on which he may thereafter sit.'

It is regretful that when the defendant board had the opportunity upon the request of the plaintiff to remove itself from hearing any of the charges that it brought against the plaintiff, it did not do so. It could have availed itself, under R.C. 3313.85, of the procedure for submitting the charges to the Probate Court for a hearing. As this court has stated, and repeats, that at the outset of the hearing plaintiff made every effort to disqualify those who demonstrated pre-judgment and was turned down every time when such requests were made.

Throughout the proceedings, there seemed to be confusion in the manner of presentation-a refusal to follow orderly procedure. Practically every objection raised by the plaintiff, the record discloses, was overruled. One of the majority of three characterized plaintiff's counsel's objection as 'horse shit.' That persons sitting in a quasi-judicial capacity should use language of the gutter in answer to an attorney's objection during the course of a proceeding shocks this court's conscience.

As heretofore stated, plaintiff strongly argues that the charges, as contained in the record, that were presented to the plaintiff by the three-member board were so vague as to be indefensible, and he cited, as his authority, among the many cases, State ex rel. Kohr v. Hooker, 106 Ohio App. 1, 152 N.E.2d 788.

This court has given careful consideration to R.C. 3319.16, which provides, in part:

'Before terminating any contract, the...