State ex rel. Singer v. Fairland Local Sch. Dist. Bd. of Educ.
| Decision Date | 01 November 2017 |
| Docket Number | No. 2015-1517,2015-1517 |
| Citation | 91 N.E.3d 732,2017 Ohio 8368,151 Ohio St.3d 594 |
| Parties | The STATE EX REL. SINGER v. FAIRLAND LOCAL SCHOOL DISTRICT BOARD OF EDUCATION. |
| Court | Ohio Supreme Court |
The Law Firm of Richard M. Lewis, L.L.C., Richard M. Lewis, Christen N. Finley, and Suzanna T. King, Jackson; and the Gittes Law Group, Frederick M. Gittes, and Jeffrey P. Vardaro, Columbus, for relator.
Schroeder, Maundrell, Barbiere & Powers, Lawrence E. Barbiere, and Scott A. Sollmann, Mason, for respondent.
French, J.{¶ 1} In this original action, relator, Kurt Singer, seeks a writ of mandamus to compel respondent, Fairland Local School District Board of Education ("Fairland"), to recognize him as a "regular nonteaching school employee" under R.C. 3319.081 with continuing-contract status. He also asks this court to order Fairland to make him whole by awarding him back wages and benefits and crediting him with paid leave and other accrued rights. We deny the writ.
Background
{¶ 2} Fairland hired Singer as a substitute custodian on September 11, 2006. Singer's employment as a substitute custodian has continued to the present. All the paystubs that Singer received from Fairland identify him as a "SUB CUST" (capitalization sic), and Fairland's staff-attendance reports detail that Singer was "substituting" every date he worked for Fairland between September 2006 and June 30, 2016. Singer has never signed a written employment contract with Fairland. Singer nevertheless contends that he is a "regular nonteaching school employee" under R.C. 3319.081 and that he is entitled to the statutory rights set out in R.C. Chapter 3319.
{¶ 3} R.C. 3319.081 governs employment contracts for certain nonteaching school-district employees. "Newly hired regular nonteaching school employees, including regular hourly rate and per diem employees, shall enter into written contracts for their employment which shall be for a period of not more than one year." R.C. 3319.081(A). If the school district rehires such an employee, the second contract shall be for a period of two years. Id . And if the school district renews the employee's contract after the second contract expires, then "the employee shall be continued in employment." R.C. 3319.081(B). In other words, a qualifying employee who is employed more than three years achieves continuing status.
{¶ 4} "Continuing" status under R.C. 3319.081 carries benefits. The person's employment is generally subject to termination only for cause. R.C. 3319.081(C). And the school district may not reduce a continuing employee's salary, except as part of a uniform plan affecting all nonteaching employees. R.C. 3319.081(B).
{¶ 5} In addition to the contract rights afforded by R.C. 3319.081, regular nonteaching employees are statutorily entitled to a host of benefits, including vacation leave ( R.C. 3319.084 ), paid holidays ( R.C. 3319.087 ), sick leave ( R.C. 3319.141 ), and personal leave ( R.C. 3319.142 ).
{¶ 6} Singer alleges that Fairland wrongly designated him as a "substitute" and that as a result, he has been paid less than a full-time custodian, lost health benefits and some pension benefits, and been deprived of sick leave, personal days, vacation days, and holiday pay. Singer requests a writ of mandamus directing Fairland to recognize him as a regular nonteaching employee with a continuing contract pursuant to R.C. 3319.081(B) since the beginning of the 2009–2010 school year and ordering Fairland to make him whole for the back wages and benefits he would have received had he been timely recognized as a regular nonteaching employee.
Analysis
{¶ 7} Mandamus is the appropriate vehicle for vindicating rights under R.C. 3319.081. See State ex rel. Couch v. Trimble Local School Dist. Bd. of Edn. , 120 Ohio St.3d 75, 2008-Ohio-4910, 896 N.E.2d 690, ¶ 14, 34. To be entitled to a writ of mandamus, Singer must establish, by clear and convincing evidence, (1) a clear legal right to the requested relief, (2) a clear legal duty on the part of the respondent to provide it, and (3) the lack of an adequate remedy in the ordinary course of the law. State ex rel. Cleveland Right to Life v. State Controlling Bd. , 138 Ohio St.3d 57, 2013-Ohio-5632, 3 N.E.3d 185, ¶ 2.
{¶ 8} At the outset, we reject two theories that Fairland puts forward as grounds for denying Singer's petition. First, Fairland contends that Singer is not a regular nonteaching employee because he does not have a written employment contract. According to Fairland, R.C. 3319.081(A) imposes a mandatory condition by stating that regular nonteaching employees "shall enter into written contracts." (Emphasis added.) And R.C. 3319.081(B) makes those employees eligible for continuing employment only upon expiration of a second written contract. Because Singer has never had a written contract, Fairland argues that he cannot qualify as an employee "continued in employment" under R.C. 3319.081(B).
{¶ 9} But R.C. 3319.081(A) imposes a duty upon the employer to extend a written contract to all regular nonteaching school employees. The employee cannot control whether he receives a written contract. To adopt Fairland's position would be to declare that R.C. 3319.081 imposes a duty on a school board to offer a contract only if the school board determines that an employee qualifies for a contract; in other words, it would defeat the statute's purpose, which is to protect the rights of qualifying nonteaching employees. See State ex rel. Boggs v. Springfield Local School Dist. Bd. of Edn. , 82 Ohio St.3d 222, 226, 694 N.E.2d 1346 (1998).
{¶ 10} In support of its argument on this point, Fairland cites Gates v. River Local School Dist. Bd. of Edn. , 11 Ohio St.2d 83, 228 N.E.2d 298 (1967), which held that in the absence of an express employment contract, a school board could hire a nonteaching employee for an indeterminate period of time, to be measured by the work to be accomplished, without incurring an obligation to offer continuing employment. Id. at 90–91, 228 N.E.2d 298. But Gates involved a prior version of R.C. 3319.081 that neither contained the phrase "regular nonteaching school employees" nor stated that it applied to regular hourly and per diem employees. See Am.S.B. No. 200, 126 Ohio Laws 162, effective Sept. 1, 1955. Gates offers no guidance regarding compliance with the current version of R.C. 3319.081.
{¶ 11} Second, Fairland suggests that Singer does not qualify as a regular nonteaching employee because he does not qualify as a "full-time" employee, as that term is purportedly defined in the collective-bargaining agreements that have been in place since the date of Singer's hiring in 2006 between Fairland and the union that represents its nonteaching employees. Fairland has submitted an affidavit asserting that pursuant to those agreements, "full-time regular custodians, custodial maintenance, and maintenance employees at Fairland are contracted to work eight (8) hours a day for two hundred and sixty (260) days a year over the course of twelve (12) months" and has submitted several other affidavits making essentially the same assertion. No affidavit cites a specific section of the collective-bargaining agreements where this provision may be found, and our review of the four collective-bargaining agreements filed as evidence shows that they contain no such term and do not purport to define "full-time" employment. Two of the collective-bargaining agreements—those in effect from September 30, 2005, through September 29, 2008, and from October 1, 2014, through September 30, 2017—do, however, include appendices that chart contract amounts, i.e., annual-salary schedules, for various positions, including custodians, and the hourly rates upon which those annual contract amounts are based. The hourly rates and annual salaries increase depending on an employee's years of service. At the bottom of the columns that detail the hourly rates that apply to custodians, the charts identify the months worked as 12, the hours per day as 8, and the contract days as 260.
{¶ 12} R.C. 3319.09(B) defines "year," as applied to an employee's term of service, to mean at least 120 days of actual service within a school year. Singer exceeded that mark during the first seven of his years of service. The statutory definition is controlling unless there is a collective-bargaining agreement in force that specifically covers the matter at issue. State ex rel. Chavis v. Sycamore City School Dist. Bd. of Edn. , 71 Ohio St.3d 26, 28–29, 641 N.E.2d 188 (1994).
{¶ 13} Fairland argues that the collective-bargaining agreements conflict with the definition of "year" in R.C. 3319.09(B) and thus supersede the statutory definition. But "to negate statutory rights of public employees, a collective bargaining agreement must use language with such specificity as to explicitly demonstrate that the intent of the parties was to preempt statutory rights." State ex rel. Ohio Assn. of Pub. School Emps./AFSCME, Local 4, AFL–CIO v. Batavia Local School Dist. Bd. of Edn. , 89 Ohio St.3d 191, 729 N.E.2d 743 (2000), syllabus. We conclude that the calculation of a full-time regular custodian's salary based on a greater number of hours than that which statutorily defines a year for purposes of an employee's "term of service" does not explicitly demonstrate an intent to preempt statutory rights, especially when, as here, all four collective-bargaining agreements recognize that the term "regular non-teaching employees" includes not only full-time employees but also "regular short-hour employees."
{¶ 14} Whether or not Singer is a full-time employee, he is not entitled to continuing status unless he is also a regular nonteaching employee. State ex rel. Borders v. Jefferson Local School Dist. , 59 Ohio St.2d 109, 110, 391 N.E.2d 1040 (1979) ; see also Blair v. Milford Exempted Village School Dist. Bd. of Edn. , 62 Ohio App.3d 424, 429–430, 575 N.E.2d 1190 (12th Dist.1989) (...
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