State ex rel. Board of Ed. of North Canton Exempted Village School Dist. v. Holt

• Decision Date: 12 December 1962
• Docket Number: No. 37242,37242
• Citation: 174 Ohio St. 55,186 N.E.2d 862,21 O.O.2d 325
• Parties: , 21 O.O.2d 325 The STATE ex rel. BOARD OF EDUCATION OF NORTH CANTON EXEMPTED VILLAGE SCHOOL DISTRICT v. HOLT, Supt. of Public Instruction, et al.
• Court: Ohio Supreme Court

Page 55

174 Ohio St. 55

186 N.E.2d 862, 21 O.O.2d 325

The STATE ex rel. BOARD OF EDUCATION OF NORTH CANTON EXEMPTED VILLAGE SCHOOL DISTRICT v. HOLT, Supt. of Public Instruction, et al.

No. 37242.

Supreme Court of Ohio.

Dec. 12, 1962.

Syllabus by the Court.

1. No rule or regulation of the School Employees Retirement System shall be effective unless promulgated and filed in accordance with the provisions of Section 111.15, Revised Code.

2. Where a local board of education contracts with a bus owner for the transportation of pupils to and from school in buses operated by drivers whom the bus owner hires and pays, such drivers are employees of the local board of education under the provisions of Section 3309.01(B), Revised Code, for the purposes of membership in and contributory parments to the School Employees Retirement System.

This is an action in mandamus originating in this court.

It was brought by the relator, the Board of Education of the North Canton Exempted Village School District. A writ is prayed for to require the respondent School Employees Retirement Board to advise and direct the respondent E. E. Holt, Superintendent of Public Instruction, to pay to the relator the sum of $2,009.80. This is the amount of money now being held by the respondent superintendent for payment to the School Employees Retirement System as contributory payments for school-bus drivers engaged in transporting pupils to schools in the North Canton Exempted Village School District.

Chastang & Carroll, Columbus, for relator.

Mark McElroy, Atty. Gen., and Victor S. Krupman, Cleveland, for respondent E.E. Holt, Superintendent of Public Instruction.

Mark McElroy, Atty. Gen., and Joseph S. Gill, Columbus, for respondent School Employees Retirement Board.

O'NEILL, Judge.

The question to be decided by this court is whether the school-bus drivers are employees of the relator and, therefore, members of the School Employees Retirement System and subject to the withholding of contributions to the retirement system, or whether the arrangements for their employment are such that the withholding of such contributory payments is not required by law.

The relator entered into a contract with one R.G. Mortimer to provide transportation of North Canton school pupils to and from the North Canton schools in consideration of an annual lump sum, payable in installments.

Respondent School Employees Retirement Board takes the position that the drivers are employees of the relator and relies upon a resolution passed by the board and made effective July 1, 1949, which provides in part as follows:

'The following persons regularly driving vehicles used in the transportation of pupils for a board of education shall be considered as employees under the provisions of Section 7896-64 of the General Code of Ohio [Section 3309.01, Revised Code]:

* * *

* * *

'c. The driver of a school bus owned or controlled by one who has a contract with the board of education to furnish the bus and driver.' (Emphasis added.)

A certified copy of this resolution was not filed with the Secretary of State of Ohio under the provisions of Section 111.15, Revised Code.

Relator contends that this resolution is invalid because it was not filed with the Secretary of State pursuant to the provisions of Section 111.15, Revised Code.

Respondent board contends that the General Assembly did not intend to include the retirement systems under Section 111.15, Revised Code, and that, if it did, this statute is only a recording act so far as they are concerned.

Respondent board argues further that the protection therein provided would extend only to people without actual notice, and that since relator had notice of this rule it can not take advantage of the fact that the rule was not filed with the Secretary of State.

Respondent board cites federal cases involving federal administrative agencies which follow this line of reasoning.

Persuasive as these arguments are, this court does not agree. The court is of the opinion that Section 111.15, Revised Code, was enacted by the General Assembly to protect parties from bureaucratic red tape created by regulations and rules of administrative...