State ex rel. Webb v. Board of Educ. of Bryan City School Dist., 83-628

• Decision Date: 21 March 1984
• Docket Number: No. 83-628,83-628
• Citation: 10 OBR 178,10 Ohio St.3d 27,460 N.E.2d 1121
• Parties: , 16 Ed. Law Rep. 613, 10 O.B.R. 178 The STATE, ex rel. WEBB, Appellee, v. BOARD OF EDUCATION OF the BRYAN CITY SCHOOL DISTRICT et al., Appellants.
• Court: Ohio Supreme Court

Page 27

10 Ohio St.3d 27

460 N.E.2d 1121, 16 Ed. Law Rep. 613, 10 O.B.R. 178

The STATE, ex rel. WEBB, Appellee, v. BOARD OF EDUCATION OF the BRYAN CITY SCHOOL DISTRICT et al., Appellants.

No. 83-628.

Supreme Court of Ohio.

March 21, 1984.

Syllabus by the Court

The pertinent language in R.C. 3319.16 regarding hearing requirements in the case of the termination of the contract of a teacher is directory and not mandatory, and a board of education under this statute in a referee-requested hearing need only schedule the date for such hearing within thirty days of the receipt of the written demand from the teacher for such hearing.

On March 11, 1983, the appellee, Russell Webb, filed a complaint in mandamus in the court of appeals against the Board of Education of the Bryan City School District ("board"), the individual members of the board of education in their representative capacities, and the treasurer of the school district in his official role, appellants here, requesting a writ dismissing the termination proceedings which the board had commenced against appellee, reinstating him to his employment, and awarding him back pay for his suspension period. Appellee's claim was based on the fact that the hearing requested before a referee pursuant to R.C. 3319.16 was not commenced or conducted within thirty days of his written demand.

After a hearing on the merits on March 16, 1983, the court of appeals on April 1, 1983, issued its decision granting the writ of mandamus. In reaching this result, the court of appeals interpreted R.C. 3319.16 to require that "where the Board fails to conduct a hearing in a tenured teacher's case within 30 days from the date of receipt of the tenured teacher's written demand for such a hearing, the Board is without authority to suspend or terminate * * * [the] teacher's employment." In effect, it held that this failure was jurisdictional.

Appellee was employed by the board as an elementary teacher under a limited contract from 1963 to 1971, and under a continuing contract since 1971, when he was awarded tenure.

By letter dated January 26, 1983, appellee was informed by the board through its treasurer that it was considering terminating his employment for good and just cause pursuant to R.C. 3319.16. As expressed in this letter, the primary reason for the board's action was appellee's conviction for criminal damaging, on January 6, 1983, in the Bryan Municipal Court. Appellee was then suspended from his teaching duties effective January 27, 1983 pending termination proceedings.

By letter dated February 1, 1983, appellee, through counsel, made written demand pursuant to R.C. 3319.16 to the board for a hearing before a referee who was to be designated by the Ohio Superintendent of Public Instruction ("superintendent") under R.C. 3319.161.

On February 4, 1983, the treasurer of the school district sent written notice to the appellee advising him that the hearing was scheduled for March 2, 1983, and further advising him of the specific time and location of the hearing. On the same day, appellants, through counsel, gave written notice to the superintendent of the date, time, and location of the hearing to consider termination of appellee's teaching contract, and requested the superintendent to supply a list of potential referees as provided by R.C. 3319.161.

The list of referee-designees had not been provided by the superintendent on February 17, 1983, when appellee's attorney wrote to appellants' counsel. This correspondence stated in part:

"In addition, I have also not received a list of referees in this matter. I presume that if we do not receive that list in adequate time for the March 2, 1983, hearing date that you have no objections to rescheduling the hearing. At this point, however, I will go forward upon the basis that the hearing will proceed on March 2."

On February 25, 1983, in a telephone conference between the parties' counsel, appellants' attorney proposed that the parties proceed with the hearing on March 2 before the board but without a referee, or that the hearing be continued until a referee could be selected. Appellee's counsel rejected the proposals, and by letter of February 25 advised the board that she expected the hearing to be rescheduled as expeditiously as possible, but that appellee was not waiving his objections to the failure to provide a hearing before a referee within thirty days of his request.

On March 10, 1983, counsel for the parties received a list of potential referees from the superintendent. Appellee filed his mandamus action on March 11. The parties selected Roger Bacon as referee, and each sent written approval of his selection to the superintendent in mid-March 1983.

The cause is now before this court upon an appeal as of right.

Gallon, Kalniz & Iorio Co., L.P.A., Ted Iorio and Tobie Braverman, Toledo, for appellee.

Means, Bichimer, Burkholder & Baker Co., L.P.A., Robert J. Baker and Darin G. Kendall, Columbus, for appellants.

FORD, Justice.

This case concerns the proper construction of R.C. 3319.16 regarding the Ohio termination procedure for teachers and other administrative personnel in public schools. It essentially presents two issues: first, whether the statute places a jurisdictional requirement on boards of education to conduct a hearing before a referee within thirty days of the employee's request; and second, if there is such a requirement, whether mandamus is the proper remedy to be employed in its enforcement.

With respect to the jurisdictional question, appellants submit that R.C. 3319.16 requires only that a board of education schedule a hearing to be held before a referee within thirty days of the teacher's request, and does not require that the hearing actually be commenced or concluded within that time. This claim is premised primarily on the assertion that the following language in R.C. 3319.16 is directory and not mandatory:

" * * * Within ten days after the receipt of the notice from the treasurer of the board, the teacher may file with the treasurer a written demand for a hearing before the board or before a referee, and the board shall set a time for the hearing which shall be within thirty days from the date of receipt of the written demand * * *."

The directory interpretation of the foregoing statutory language is consistent with the court's decision in State, ex rel. Jones v. Farrar (1946), 146 Ohio St. 467, 66 N.E.2d 531 , where, at paragraph three of the syllabus, this court discussed the criteria to be employed in interpreting this type of provision, as follows:

"As a general rule, a statute providing a time for the performance of an official duty will be construed as directory so far as time for performance is concerned, especially where the statute fixes the time simply for convenience or orderly procedure; and, unless the object or purpose of a statutory provision requiring some act to be performed within a specified period of time is discernible from the language employed, the statute is directory and not mandatory."

In reaching its decision to issue a writ of mandamus, the court of appeals below relied on the case of Jones v. Hannon (1978), 58 Ill.App.3d 504, 16 Ill.Dec. 59, 374 N.E.2d 834. This case involved the suspension of a school principal. The relevant statute, Illinois Revised Statutes (1975), Chapter 122, Paragraph 34-85, stated in part:

" * * * The hearing shall be held and the decision rendered within 80 days from the date of service of the notice * * *."

Paragraph 34-85 expressly required that the suspension hearing be conducted within the time period specified. Another portion of this Illinois statute further required that this hearing was to be conducted before a local board of education or a duly authorized committee thereof. There was no provision for the appointment of a referee.

Thus, the Jones case and the Illinois statute are distinguishable from their Ohio counterparts, and hence are inapposite to the case at hand. First, unlike the Illinois statute, there is no express language in R.C. 3319.16 or 3319.161 manifesting a legislative intent to deprive a board of education of the authority to proceed to terminate a teacher's contract where a hearing before a referee has not been commenced, conducted, or concluded within thirty days of the teacher's request for such hearing.

Moreover, the collateral Ohio section, namely R.C. 3319.11, is also inapposite. R.C. 3319.11, which deals with non-renewal of teaching contracts, discusses continuing contracts as follows:

" * * * If the board of education does not give such teacher written notice of its action on the superintendent's recommendation of a limited contract for not to exceed two years before the thirtieth day of April, such teacher is deemed reemployed under a continuing contract at the same salary plus any increment provided by the salary schedule. * * * "

This language has been interpreted to mean that the failure by a school board to timely serve the teacher with notice of non-renewal deprives the board of its authority to bar renewal. See State, ex rel. Peake v. Bd. of Edn. (1975), 44 Ohio St.2d 119, 339 N.E.2d 249 .

Second, the Illinois statute provides that the suspension hearing is to be held only before the board. Thus, in essence, in Illinois the board alone controls the mechanics of the hearing. In contrast, when teachers in Ohio elect to go forward with a hearing before a referee under R.C. 3319.16, it is the referee, and not the school board, who assumes responsibility for the conduct of the hearing, the granting of continuances, etc.

It is the duty of the Superintendent of Public Instruction, under R.C. 3319.161, to designate the list of eligible referee-designees, and to resolve a lack of concert by the parties as to a joint recommendation of one of the designees. The board has no control under R.C. 3319.16 or 3319.161 over the superintendent's timely selection of a referee, except to the extent...