Supreme Court holds that public employees may sue employers for intentional torts

The Supreme Court of Ohio held today that when an employee of a political subdivision brings a civil lawsuit against the subdivision alleging an intentional tort, such as defamation, assault, battery, or other delibertte act, that lawsuit may proceed, and an employer may be liable for such. Further, the court's decision finds that an employee’s suit “arises out of the employment relationship” if there is a causal connection or relationship between the claims raised by the employee and the employment relationship.

The decision helps clarify the liablity of, among others, school districts for suits brought against them by employees.

Teacher's appeal of non-renewal must be filed with Board of Education, Court rules

Earlier this month, the Third District Court of Appeals of Ohio agreed with a trial court that dismissed a teacher's complaint after he was non-renewed by his school district. The reason was because the teacher failed to initially file a notice of appeal with the board of education, and instead, went straight to court.

In that case, the teacher was informed that his contract was to have been non-renewed after approximately a decade of service. The teacher requested a hearing regarding the non-renewal, which was subsequently granted by the Board of Education. Thereafter, the Board of Education affirmed its decision to non-renew his contract. Twenty eight days later, the teacher filed a complaint in the Marion County Court of Common Pleas.

The school district responded by filing a motion to dismiss the complaint, which was granted by the court. The school district argued, and the court agreed, that before the complaint was filed, the teacher should have filed a notice of appeal with the Board of Education within 30 days of the decision of the Board not to renew the contract.

The appellate court agreed that the teacher has 30 days to file his appeal, and that appeal must first be filed with the Board of Education.

Summit County appeals court reverses trial court in bus driver retaliation case

The Ninth District Court of Appeals, which covers Summit County, has reversed the decision of a Summit County Court of Common Pleas that excluded certain evidence in an employment discrimination case against Nordonia Hills School District.

In that case, a bus driver had been terminated in 1998, allegedly for refusing to park her bus where it would have blocked a handicap sidewalk cutout. She subsequently filed a lawsuit and won her case after a jury trial. However, the court of appeals reversed the judgment and granted the school district a new trial. Before the new trial could take place, though, the parties reached a settlement. The bus driver was subsequently reinstated to her position in 2000.

In 2005, the bus driver was terminated again. This time, the bus driver essentially alleged that the school district terminated her in 2005 in retaliation for the prior litigation. She argued that certain individuals within the school district resented the prior litigation and the settlement she obtained. Further, she asserted that those
individuals purposefully set out to construct a documented disciplinary record that could serve as a basis for termination, not because she was an unfit bus driver, but because they intended to retaliate against her for the 1998 litigation.

The trial court, however, excluded almost all evidence of the 1998 settlement. The court of appeals found that the bus driver should have been able to submit such evidence and thus reversed the court of appeals.

School Board terminates teacher's contract, adopts referee's recommendation

The Mount Vernon School Board of Education voted this week to terminate the contract of a teacher accused of, among other things, violating school board policies, violating the U.S. Constitution, and teaching Christianity in class. In their 4-1 vote, the school board adopted the decision of the "referee" or hearing officer.

Pursuant to Ohio Revised Code 3319.16, public school teachers employed pursuant to a contract may only have that contract terminated for "good and just cause." Before such termination may take place, however, the school board has to give the teacher notice of intention, and an opportunity for a hearing in front of either the board, or a referee. Both parties may be present at such hearing, be represented by counsel, subpoena witnesses, require witnesses to be under oath, cross-examine witnesses, take a record of the proceedings. The referee must then furnish her report, recommending a termination or not. The board must then vote to adopt the report and recommendation or to reject it by majority vote.

The teacher affected then has the opportunity to appeal the case to the court of common pleas in which the school is located.

Bill to allow teachers to deduct classroom materials from income tax proposed

Ohio State Senator Eric Kearney, D-Cincinnati, introduced S.B. 290 to allow teachers to write off on their Ohio income tax the amounts that they spend for instructional materials in their classroom.

Under the bill, the tax commissioner has the right to request that the teacher provide a receipt for each item used in calculating the deduction and a letter from the teacher's employer confirming that the items were used for classroom instruction. Only teachers in grades K-12 are eligible, and are required to hold an educator license. Teachers who instruct a child exclusively at home and not eligible for the deduction.

The Ohio Education Association has not taken an official stance yet on the legislation. Stay tuned.

African-American teacher's appeal denied

The Eight District Court of Appeals, which covers Cuyahoga County, has denied a teacher's appeal from a lawsuit claiming he was discriminated against because of his race.
The plaintiff teacher, who was an African-American, filed a complaint in the trial court against the defendant board of education alleging that it failed to promote him to the position of assistant principal and hired a less-qualified Caucasian applicant instead.

In that case, the teacher had applied for an assistant principal position. The school board, after interviewing two candidates, chose the Caucasian candidate over the African-American candidate. Believing that the school district lacked a legitimate non-discriminatory reason for taking the action that it took, the teacher filed a lawsuit. However, the trial court decided no genuine issue of material fact existed, and that the school board won as a matter of law. The teacher appealed to the Eight District Court of Appeals.

The appeals court determined that the school board had legitimate reasons for choosing the Caucasian applicant over the African-American teacher. Moreover, the school board's committee reviewed the candidates’ application materials, asked each candidate the same questions from a prepared list of questions, and considered the strengths and concerns related to each candidate. The committee believed that both men were qualified, but the Caucasian applicant was better qualified than the plaintiff because he had more leadership experience relating to building and district-wide initiatives that impacted both students and staff issues. Thus, there was no evidence in the record of a discriminatory animus. Further, having found no evidence of racial discrimination, the plaintiff's alleged claim of emotional distress resulting therefrom also failed.

Consequently, the court of appeals agreed there was no discrimination.

Teacher reinstated, but board of education does not have to pay attorney fees, appeals court rules

The First District Court of Appeals today affirmed a decision by a trial court to reinstate a teacher who was terminated by his board of education under R.C. 3319.16 for "good and just cause" for alleging throwing a basketball at a student. That court, however, also found that the teacher was not entitled to attorney fees because his district did not act in bad faith.

The case involved a physical education/health teacher who had 20 years experience. Throughout his tenure, he had received positive reviews and had eight consecutive years of perfect attendance. In his evaluations, the teacher was specifically complimented on his (1) "strong discipline"; (2) his "professional manner"; (3) having "full control of * * * his classes"; (4) his "classroom management"; (5) his "professional manner structure and organization"; (6) the fact that "safety is stressed in both health and PE"; (7) being a "good role model"; and (8) being a "true professional who is a great role model for the students."

In June 2007, a male student athlete who stood six feet seven inches left the teacher's class without permission and began "shooting hoops" in the gymnasium. The teacher found the student and instructed him to go to the locker room to change clothes and then to attend his next class. The teacher had to instruct this student three times before the student complied. The student changed in the locker room, but instead of going to his next class, he went back to the gym to play basketball. The teacher again instructed the student, at least five or six times, not to shoot the basketball and to leave the court. When the student refused to comply with the instructions, the teacher, "with a two-hand push" of his own basketball, knocked the basketball the student was holding out of the student's hands in an effort to get him to leave the court. The student was angry and approached the teacher, but another teacher escorted the student from the gymnasium. The student was not injured.

Although the student claimed that he had been hit in the stomach, another student who had witnessed the incident stated that the ball that the teacher had thrown hit the basketball in the student's hands. The teacher was suspended indefinitely without pay.

The male student's mother initiated criminal proceedings against the teacher. The state charged him with assault, but he was acquitted following the presentation of the state's case due to the failure to prove that he had knowingly caused or attempted to cause physical harm to the student. The student had testified that the teacher had not thrown the ball "very hard" at him and that he had not believed that the teacher intended to harm him. He further testified that he had not been injured.

As a result of this incident, the Board initiated termination proceedings against the teacher. After hearing evidence, a referee determined that the teacher had not intended to throw a basketball at the student and that there was a difference between throwing a ball at a student and throwing a ball at an object the student was holding. The referee recommended reinstatement.

The Board of Education, however, terminated the teacher's contract, not agreeing with the referee's distinction between throwing a ball at a student and throwing a ball at an object a student was holding. The teacher appealed to the Court of Common Pleas, who agreed with the referee, that the incident was not a "fairly serious matter." The Court also awarded the teacher all of his attorney fees.

The Board of Education appealed. The Court of Appeals agreed that the incident was not a "fairly serious matter" but disagreed with the trial court that the board acted in bad faith. Thus, it upheld the teacher's reinstatement, but denied his attorney fees.

The case is Stalder v. St. Bernard-Elmwood Place City School District, 2010-Ohio-2363.

Appeals Court Upholds Grant of Unemployment to Special Education Teacher

The Ninth District Court of Appeals has upheld the decision of a trial court finding that a special education teacher was terminated without just cause.

In that case, the special education teacher was discharged by her board of education for allegedly abusing a student in her care. She was initially denied unemployment benefits, after there was a finding that she was discharged for just cause. However, the teacher continued her appeals, and the decision was subsequently reversed by the review commission.

The review commission's decision was appealed to the Court of Common Pleas, which upheld the decision of the review commission. That decision was affirmed by the Ninth District. In reaching its decision that the trial court's decision was not unlawful, unreasonable, or against the manifest weight of the evidence, the appeals court relied on the facts that a county children services did not reveal bruising on the child's wrist or neck. Also, the children services’ final determination was that the claim of abuse was unsubstantiated and the Center for the Teaching Profession after conducting an investigation determined there was no abuse and renewed the appellee individual's teaching certificate. Furthermore, the state Department of Mental Retardation and Developmental Disabilities did not place the appellee individual on its registry of those who had abused students.

Accordingly, the teacher was able to collect her unemployment benefits.

Supreme Court of Ohio sets oral arguments in school background check case

The Supreme Court of Ohio has set oral arguments for June 8, 2010 in a dispute over the constitutionality of a law requiring the termination of all school employees with certain convictions.

In that case, the plaintiff was terminated his contract from his position of 11 years with the Cincinnati Public Schools after it was found out that he had been convicted of selling narcotics in 1976. The conviction had been expunged from his record and the plaintiff had been rehabilitated and not committed any other crimes.

The lawsuit alleges violations of both state and federal law. The federal court asked the Supreme Court of Ohio to clarify whether the statute violated two provisions of the Ohio Constitution, namely, (1) whether the statute was impermissibly retroactive under Article II, Section 28 and (2) whether the statute violated the Contracts Clause of the Ohio Constitution.

After the Supreme Court makes its determination, the lawsuit will likely be sent back to the federal court for determination of the federal issues.

Teacher not entitled to continuing contract, appeals court rules

An Ohio appeals court upheld the dismissal of a teacher who claimed he had a legal right to a continuing contract in the case of State ex rel. Browne v. Sandusky School District Board of Education.

In that case, the teacher had graduated with a Bachelor of Fine Arts degree from Bowling Green State University. In the spring semester of 1983, he enrolled in and received three credit hours in the area of licensure or in an area related to the teaching field. In the spring semester of 1994, at Bowling Green State University, Mr. Browne enrolled in and received credit for 18 hours of coursework in the area of licensure or in an area related to the teaching field.

On June 20, 1994, the Ohio Department of Education issued appellant his
first four-year provisional teaching certificate; at that time, appellant did not hold a master's degree. From 1994 until present, Mr. Browne has been employed with the Sandusky City School District. Following the issuance of his initial teaching certificate through 2003, appellant completed ten hours of coursework in his area of licensure or in an area related to the teaching field.

Believing that he had attained eligibility for a continuing contract, Mr. Browne
applied for a continuing contract for the 2005-2006 school year. In November 2005,
Mr. Browne was informed that he needed to complete two additional semester hours in order to be eligible for continuing contract status. In 2006, Mr. Browne completed an additional three hours of coursework. Also in 2006, he was issued a five-year professional license by the Ohio Department of Education.

In November 2006, Mr. Browne again requested that the Board consider his
eligibility for a continuing contract. In a letter dated December 8, 2006, the Superintendent informed Mr. Browne that, upon closer inspection of
his transcripts, the semester hours that appellant completed following his baccalaureate degree but prior to his initial licensure did not count toward the 30 semester hour requirement for continuing contract purposes. The Superintendent then informed appellant that he needed to complete 20 additional semester hours to be eligible for continuing contract status.

Mr. Browne did not complete any additional semester hours but continued to
assert his right to a continuing contract. On September 18, 2007, the Board again denied his request for a continuing contract.

On July 15, 2008, he filed a complaint for a writ of mandamus
requesting that the Erie County Court of Common Pleas compel the Board to issue him a
continuing contract. Specifically, he asserted that, pursuant to R.C. 3319.11,
he had a clear legal right to a continuing contract; the Board was under a duty to
award him a continuing contract; and that he had no adequate remedy at law.

On the school board's motion, the trial court dismissed the case. The appeals court upheld the dismissal, finding that Ohio Revised Code 3319.08(B)(2)(a) requires that 30 semester hours, in their entirety, must be commenced and completed following the issuance of the initial teaching certificate. Mr. Browne had argued that teachers could commence taking the hours beforehand. The lesson to teachers is that if they want their semester hours to count towards continuing contracts, they should only begin such coursework upon the initial issuance of their licensure.

State Board of Education considering new rules for school employees with convictions

The State Board of Education is debating a proposal that would give greater leeway to school districts to hire non-licensed personnel, such as custodians, secretaries, bus drivers, and cafeteria workers, who have nonviolent criminal convictions.

The proposal would allow districts to hire applicants (and keep current employees) who can show that they have been rehabilitated for a period of years. The proposal would not be a mandate; a school district could apply tougher standards than the state.

Generally, under the proposal, people convicted of non-violent felonies, would be required to show they have had a clean record for 20 years; drug offenders would have to stay clean for 10 years, and misdemeanor offenders would have to have a clean record for 5 years.

In addition to having no new criminal convictions, the non-licensed personnel would be required to provide the district with a statement from a court, parole officer, probation officer or counselor.

While good arguments exist on both sides, school districts should be given the opportunity to hire the most qualified, able-bodied applicants for the job, even if those applicants have a several years-old, relatively minor criminal conviction. Unless there is a good reason to exclude someone with a conviction from working in the schools (i.e. sexual conviction), first-time offenders should be given an opportunity at a second chance if they have been rehabilitated.

Former School Librarian's Denial of Disability Upheld

The Supreme Court of Ohio, in a 5-2 decision, upheld the decision of the 10th District Court of Appeals, denying a request that State Teachers Retirement Board reinstate a former librarian's disability-retirement benefits.

The former junior high librarian applied to the STRS for disability-retirement in December 1987. Her attending physician diagnosed her with having chronic systemic viral syndrome and certified that she was, at least temporarily, incapacitated from her performance as a teacher. Additional examinations, requested by STRS, confirmed she was disabled. Thus, she was granted disability retirement in 1988.

Seventeen years later, in 2005, the retirement board requested the librarian's treating physician provide a report on her medical status. The treating physician noted her diagnosis of chronic fatigue syndrome and fibromyalgia; the doctor also noted that the librarian suffered from fatigue, muscle and joint pain, swollen glands, and a low-grade fever.

Again, the STRS retirement board ordered another physician to examine the librarian to determine whether her disability should be continued. While not disagreeing with any of the librarian's treating physician's diagnoses, the STRS physician concluded the librarian was not disabled because of her lack of objective abnormalities. The STRS physician certified that the librarian was capable of resuming regular full-time service similar to that from which she had retired and that disability benefits should cease. A recomendation was then made that the librarian's benefits should cease.

In response, the librarian was evaluated by another physician who again affirmed her treating physician's diagnosis. This physician went on to note that chronic fatigue syndrome was incapable of objective quantification.

The STRS physician, again not disagreeing with the librarian's physician, concluded that based on objective abnormalities, the librarian should return to work. As a result of the STRS physician's recommendations, the librarian's benefits were terminated.

The Supreme Court, in affirming the decision of the Court of Appeals below, held that the decision to terminate the librarian's benefits was not unreasonable, arbitrary, or unconscionable. The Court found that the STRS could propertly consider the librarian's lack of objective abnormalities in finding she was not disabled.

The case should be cited State ex rel. Morgan v. State Teachers Retirement Bd. of Ohio,
121 Ohio St.3d 324