Opinion
No. 27250
Decided April 5, 1939.
Schools — Boards of education — Authority conferred by statute and not through rule-making power — Statutes govern removal of employees — Retirement age.
1. Boards of education are creatures of statute and have only such jurisdiction as thus conferred. They may not, under their rule-making power granted by statute, confer upon themselves further jurisdiction or authority. ( Davis et al., Civil Service Comm., v. State, ex rel. Kennedy, Dir. of Public Service, 127 Ohio St. 261, approved and followed.)
2. A board of education may not prescribe grounds for the removal of employees who are within the classified service, other than or in addition to those enumerated by statute, or exempt itself from the procedural requirements of Section 486-17 a, General Code.
APPEAL from the Court of Appeals of Cuyahoga county.
This case originated in the Court of Common Pleas of Cuyahoga county. Issue was made by a general demurrer to the amended petition of the plaintiff.
The amended petition alleges that plaintiff is an employee in the classified service of the city school district of Cleveland; that he is a member of the state Public School Employees' Retirement System; that he brings the action on his own behalf and on behalf of all other employees in the classified service of said city school district similarly situated; and that defendants are the members of the board of education of such city school district and the director of schools, respectively.
It is further alleged that in April, 1938, the board of education adopted the following resolution:
"Be it resolved that [by] the Board of Education of the City School District of the city of Cleveland, Ohio; that the regulations of the administrative code governing employees of this board be amended as follows:
"1. No contract shall be entered into for the employment of a teacher for any school year if such teacher has attained or shall attain the age of sixty-five years before the first day of such school year.
"2. All other employees shall be honorably retired by the director of schools from the service of this board at the end of the school year during which such employees shall have attained the age of sixty-five years.
"Be it further resolved, that for the purpose of this resolution a school year shall be defined as the period from September 1st to and including August 31st of the next succeeding year,
"And further be it resolved, that resolution No. 22302 adopted by this board on February 14, 1938, be and the same is hereby rescinded."
It is alleged further, in effect, that the retirement of members of the Public School Employees' Retirement System is provided for by Section 7896-99, General Code; and that plaintiff is sixty-six years of age, but has not elected to retire under such section.
It is also alleged, in effect, that Section 486-17 a, General Code, fixes the tenure of civil service employees of city school districts during good behavior and efficient service; that plaintiff had been efficient in his service and no charges of misconduct had been preferred against him; and that defendants would proceed, unless restrained, to deprive him of his employment for the sole reason that he is sixty-six years of age, in derogation of the rights of the plaintiff and his class as civil service employees of such city school district.
Plaintiff prayed that the resolution of the board of education be declared null and void, that defendants be enjoined from giving effect to it and that they be further enjoined from discharging or separating plaintiff and his class from their employment for the reason only that they had attained the age of sixty-five years prior to August 31, 1938.
The Common Pleas Court overruled the demurrer and, defendants not desiring to plead further, judgment for plaintiff as prayed for was entered. On appeal, the Court of Appeals affirmed the judgment of the Court of Common Pleas. The case is in this court for review by reason of the allowance of a motion to certify.
Messrs. Phillips Falsgraf, for appellee.
Mr. Henry S. Brainard, director of law, and Mr. Charles W. White, for appellant.
The single question presented is whether a board of education has authority to adopt and enforce a rule requiring the retirement of its employees who are within the classified service upon attaining the age of sixty-five years. The board of education claims such authority by virtue of Sections 4749 and 4750, General Code. The former section confers very broad general powers upon boards of education, while the latter section provides as follows: "The board of education shall make such rules and regulations as it deems necessary for its government and the government of its employees and the pupils of the schools. * * *"
Boards of education are created by statute, and their jurisdiction is conferred only by statutory provision. Just as any other administrative board or body, they have such powers only as are clearly and expressly granted. State, ex rel. Locher, Pros. Atty., v. Menning, 95 Ohio St. 97, 115 N.E. 571; State, ex rel. Clarke, v. Cook, Aud., 103 Ohio St. 465, 134 N.E. 655; Perkins et al., Bd. of Edn., v. Bright, 109 Ohio St. 14, 141 N.E. 689.
Such boards cannot increase their powers or confer upon themselves additional jurisdiction under authority conferred to adopt rules and regulations for their government and the government of their employees. State, ex rel. Bd. of Edn. of Cincinnati, v. Griffith, 74 Ohio St. 80, 77 N.E. 686; Davis et al., Civil Service Comm., v. State, ex rel. Kennedy, Dir. of Public Service, 127 Ohio St. 261, 187 N.E. 867.
There is no statute authorizing boards of education, by resolution or otherwise, to fix and determine the tenure of office of their employees in the classified service or to alter or modify general statutory provisions affecting the age of involuntary retirement of such employees from service. Under the provisions of Section 7896-99, General Code, a section of the retirement act, an employee may retire at sixty years of age and receive the benefits therein provided, and is required thereby to retire at seventy years of age. The provisions of Section 486-17 a, General Code, fix the tenure of such employees to be during good behavior and efficient service, and specify the grounds for and the procedure governing the removal of any such employee from his position. Although possibly contributing to cause inefficiency, age in itself, regardless of merit and efficiency, is not made a ground for removal. Section 7701, General Code, specifies no additional ground for such removal. It provides that "each board may dismiss any appointee or teacher for inefficiency, neglect of duty, immorality, or improper conduct." The effect of the resolution in question is to specify a new and additional ground for removal of employees, the enforcement of which would result in the dismissal of employees arbitrarily and in violation of the positive and mandatory requirements of Section 486-17 a, General Code.
If an administrative board may arbitrarily fix and specify a certain age as a ground of disqualification, varying ages may be established by various boards throughout the state which, of course, would materially increase the demand upon the state employees' retirement fund.
This case does not present a situation of mere abuse of discretion upon the part of the board of education, and hence the cases cited which involve such question have no application here. Nor is it even claimed that any position is being abolished or that employees are being laid off for economic reasons subject to reinstatement pursuant to civil service requirements. The action of the board, therefore, finds no support in the decision of this court in the case of Curtis, Safety Dir., v. State, ex rel. Morgan, 108 Ohio St. 292, 140 N.E. 522. Obviously, the effect of the action in question, if permitted, would be to authorize the dismissal of employees who are in the classified service for reasons and upon grounds other than and in addition to those enumerated in the statute, unrestricted by the requirements of procedure prescribed by statute.
The board of education has no such authority. The decision of the Court of Appeals was correct and its judgment is therefore affirmed.
Judgment affirmed.
WEYGANDT, C.J., DAY, ZIMMERMAN, WILLIAMS, MYERS and HART, JJ., concur.