Summary
In Weekley, the Ohio Supreme Court reasoned that a continuing contract entered into by operation of law, i.e., mandated by the Teachers Tenure Act, did not bar a termination proceeding on that contract as long as the charges were based upon the statutory ground of gross inefficiency.
Summary of this case from Sylvania Edn. Assn. v. Sylvania City SchoolsOpinion
No. 29359
Decided March 24, 1943.
Schools — Teachers' Tenure Act — Section 7690-1 et seq., General Code — Grounds for terminating continuing contract — Board of Education may conduct hearing and act upon termination, when — Full right of appeal by teacher to courts — Section 7690-6, General Code — Disqualification warranting termination of continuing contract — Res judicata inapplicable, when — Prior adjudication in mandamus requiring execution of continuing contract — Prohibition — Writ not issued to prevent board from terminating contract, when — Adequate remedy of appeal by teacher.
1. A continuing contract entered into between a board of education and a teacher pursuant to the Teachers' Tenure Act, Section 7690-1 et seq., General Code, may be terminated upon any ground which is therein specified and which arises or exists during the time the contract is in force.
2. Regardless of the nature of the grounds specified in the notice to the teacher of the proposed termination of the contract, the board of education has power to conduct a hearing and to act upon the matter of termination, and the teacher, if aggrieved, has full right of appeal to the courts pursuant to Section 7690-6, General Code.
3. Where a disqualification, which would warrant the termination of a teacher's contract, existed prior to an adjudication in mandamus, ordering and directing that a continuing contract be entered into with a teacher who has a continuing contract status, such adjudication is not res judicata as to a charge based upon the same disqualification within a period subsequent to the time the continuing contract became effective.
4. The teacher's remedy under and by virtue of the statutory provision (Section 7690-6, General Code) is full, adequate and complete, and prohibition will not lie to prevent a board of education from proceeding to suspend or terminate a teacher's contract when the board's action conforms to statutory requirements.
IN PROHIBITION.
In an action brought originally in this court the relatrix, Bertha Weekley, seeks a writ of prohibition to prevent the respondents, Dr. Earl Young, L.U. Hulin, Sara Jane Peterson, Warren P. Williamson, Dr. H.W. Patrick, L. Calvin Jones and Robert Wadsworth, as members of the Board of Education of the City School District of the City of Youngstown, Mahoning county, Ohio, from proceeding with the hearing to terminate the continuing contract which exists between them and the relatrix. Upon the filing of the petition, an alternative writ of prohibition was issued.
The cause is submitted on the pleadings, and the operative facts set forth therein are not in controversy. On and before September 1, 1941, relatrix was a school teacher holding a teacher's life certificate in the state of Ohio and on May 15, 1941, had completed 12 consecutive years as a teacher in the public schools in the city of Youngstown under the employment of the board of education of the Youngstown school district. The board of education of that district failed and refused to enter into a continuing contract with the relatrix as a teacher pursuant to Section 7690-1 et seq., General Code (119 Ohio Laws, 451). Thereafter, in an action in the Court of Common Pleas of Mahoning county, a peremptory writ of mandamus was granted to the relatrix directing such board of education to enter into a continuing contract of employment with the relatrix. Accordingly on June 1, 1942, such a contract was entered into as of September 2, 1941; but relatrix was not assigned by respondents to teach in the public schools of that district in consummation of the contract. The record in the present prohibition proceeding does not show what the exact issues were in the mandamus proceeding. On or about September 17, 1942, respondents served a written notice upon the relatrix advising her of their intention to terminate such continuing contract in pursuance of the provision of Section 7690-6, General Code, which notice contained the following language:
"I am further instructed to advise you that the grounds for such consideration are gross inefficiency and other good and just causes as hereinafter more fully stated, and which were the basis of the superintendent's failure to reappoint you in June, 1941.
"These grounds include inability to maintain reasonable standards of discipline in the classroom, lack of ability to plan work resulting in much waste of time, progress of pupils, particularly in reading was far below an acceptable standard. These weaknesses combined with a rather highly emotional state led the superintendent to believe that it was in the best interests of the children to discontinue your services."
Relatrix demanded an opportunity to appear and be heard and filed with the board of education an application to make the charges definite and certain in stated respects. This application was refused but otherwise no hearing was had due to the commencement of this proceeding and the issuance of the alternative writ.
There is another fact that should be mentioned, although perhaps not one of materiality. During the school year beginning with September 1941 relatrix, after refusal of employment by respondents, taught in the public schools of Trumbull county but with a specific understanding that made her subject to call for duty by the respondents.
Messrs. Williams Stanley, for relatrix.
Mr. W.P. Barnum, for respondents.
The relatrix maintains that the respondents have no jurisdiction to hear the matter of terminating the contract for the following reasons: (1) The relatrix was not a "teacher" within the meaning of that term as used in Section 7690-6, General Code; (2) respondents have no jurisdiction to determine charges against relatrix because they refer to a period prior to the effective date of the continuing contract; (3) respondents are estopped from inquiring into relatrix's conduct prior to September 1, 1941; and (4) the adjudication in the mandamus case directing respondents to enter into the continuing contract with the relatrix is res judicata.
Respondents maintain that the situation is otherwise. They assert that manifestly she was a teacher and that they are not trying to terminate the contract for any conduct or disqualifications of relatrix that took place or existed prior to the effective date of the continuing contract and that the principles of estoppel and res judicata have no application.
The first contention of relatrix concerns her relationship to the public schools and the board of education which had employed her. To hold that she is not a teacher would be to deny to her every right that would flow from a teachership. We may therefore dismiss this line of argument without more ado.
The remaining questions are to some extent inter-related and require careful consideration of the provisions of the statutes that are applicable. Section 7690-6, General Code, provides inter alia that a contract made with a teacher may not be terminated except for gross inefficiency or immorality; for wilful and persistent violations of reasonable regulations of the board of education; or for other good and just cause. Under that section written notice of the proposed action must be given by the clerk of the board to the teacher and the teacher may demand in writing an opportunity to be heard.
The section also contains the following germane provision: "Any teacher affected by an order of termination of contract shall have the right of appeal to the Court of Common Pleas of the county in which the school is located within thirty days after receipt of notice of the entry of such order. Such appeal shall be an original action in said Common Pleas Court and shall be commenced by the filing of a petition against such board of education, in which petition the facts shall be alleged upon which the teacher relies for a reversal or modification of such order of termination of contract." It is further provided therein that upon final hearing the court may grant or deny the relief prayed for and such an action shall be deemed a special proceeding within the meaning of Section 12223-2, General Code, with the right of appeal on behalf of either the teacher or the board of education.
The purpose of the Teachers' Tenure Act, as shown by its purpose clause, is not to secure absolute permanence of tenure to reemployed teachers eligible for continuing service status but to afford to them continuity of service and at the same time provide an orderly procedure for the termination or suspension of such contract. In keeping with this purpose a board of education, under and by virtue of Section 7690-6, General Code, has full authority to terminate a contract of that character in every instance in which a statutory ground therefor is shown to exist subsequent to the effective date of the contract.
The contention of relatrix that the charges contained in the written notice served upon her and quoted above relate to a period previous to the date the continuing contract became operative is not well founded. The notice recites merely that gross inefficiency and other good and just causes, including inability to maintain discipline and lack of ability to plan work, together with a highly emotional state, all of which are alleged grounds for the termination of the contract, were also the reasons for the failure of the superintendent to reappoint her in June 1941. Clearly the written notice specifies disqualifications covering a period during the existence of the contract.
Gross inefficiency (as specified in the notice sent to the relatrix by the board), if existent after the date the contract took effect, would warrant such termination, even though the employed teacher never taught under that particular contract. It may be urged that, in proof of such charge, evidence of inefficiency extending back a reasonable time into the period covered by the previous contract would be admissible as an aid in establishing that ground. On that question it is not necessary to pass at this time. Nevertheless a contract cannot be terminated upon any ground based upon what happened prior to the effective date of such contract or upon a disqualification that has not existed since that date.
With respect to estoppel, relatrix advances the theory that under Section 7701, General Code (97 Ohio Laws, 360), which authorized a board of education to dismiss a teacher for inefficiency or neglect of duty, among other things, the respondents could have dismissed the relatrix during the school year ending in June 1941, because her inefficiency then existed according to the notice served on her; therefore the failure to dismiss her for inefficiency while her prior contract was in force prevents a charge of gross inefficiency afterwards. In other words relatrix relies on what is sometimes referred to as estoppel by conduct. In our judgment the respondents are not estopped because grounds of dismissal existed during the period of the prior contract. When the continuing contract was entered into, the provision in Section 7690-6, General Code, as to grounds for termination or suspension of a contract, was read into and became a part of the contract as made. Palmer v. Tingle, 55 Ohio St. 423, 45 N.E. 313. To hold otherwise would nullify the statute and defeat one of its purposes. So the very agreement of relatrix of itself would prevent the operation of estoppel.
The judgment in mandamus, likewise, could not on the theory of former adjudication or res judicata bar the right of the respondents to terminate relatrix's present contract on statutory grounds. In State, ex rel. Brown, v. Board of Education of City of Elyria, 139 Ohio St. 427, 40 N.E.2d 913, the rule applicable here is stated thus:
"Under the first proviso of Section 7690-2, General Code, * * * a teacher in the public schools holding a professional, permanent or life certificate, who was completing five or more consecutive years of employment * * * at the time of the passage of the act, was entitled to the tender of a continuing contract of employment by such board on September 1, 1941, or within a reasonable time thereafter."
All that was necessary for the court to find in adjudging the right to a writ of mandamus was that the teacher had a continuing contract status within the meaning of this rule. There is nothing in the applicable statutes which requires any other test to be applied and it may be assumed that the legislative intent was to require the continuing contract to be entered into subject to the power of the board of education to terminate or suspend it. There is no difficulty in this respect except as to a continuous disqualification like gross inefficiency; but even though gross inefficiency could have been properly pleaded as a defense in the mandamus proceeding, the judgment therein in favor of the relatrix could not of itself bar the board of education from presenting charges of gross inefficiency covering a period subsequent to the date as of which the continuing contract, entered into pursuant to the writ of mandamus, became effective. There is always the chance that inefficiency may increase or even arise afterwards and this court may not now anticipate what may be shown at the bearing on the charges before the board. Therefore the board should not be prohibited from taking further action on the ground that the matter of the charges is res judicata.
The respondents have jurisdiction to proceed to determine the charges, and the statute affords to the teacher, if aggrieved, a remedy that is full, adequate and complete. In view of the power and authority of the board of education to proceed with the hearing and the amplitude of the remedy of the relatrix, prohibition will not lie.
For the reasons given the writ of prohibition is denied.
Writ denied.
WEYGANTDT, C.J., MATTHIAS, HART, ZIMMERMAN, BELL and TURNER, JJ., concur.