Legal Report

WHY I WOULD PREFER BINDING ARBITRATION, AS OPPOSED TO THE R.C. 3319.16 PROCEEDINGS, IN TERMINATION CASES

BY DENNIS PERGRAM

Under Ohio law, termination cases are governed by R.C. 3319.16 unless there is a collective bargaining agreement providing for arbitration or the educator and the school board have agreed in a contract to have the termination matter resolved through binding arbitration.

I have yet to see a principal’s contract or, for that matter, a contract of a superintendent, treasurer, or other administrator which provides for binding arbitration in a contract termination case in place of the procedure under R.C. 3319.16. It is my belief that school boards prefer R.C. 3319.16 proceedings as opposed to binding arbitration for several reasons, which I will discuss in this article.

Under R.C. 3319.16, the school board initiates the termination by providing the educator with a specification of the grounds for termination. Under the current version of R.C. 3319.16, the only ground for termination is “other good and just cause.” The prior version of R.C. 3319.16 provided for termination in the event of gross inefficiency, immorality, willful and persistent violation of reasonable board of education rules, or other good and just cause. There are those who argue that the legislative change was intended by the legislature to make it easier for a school board to terminate an educator’s contract.

Once the educator receives a specification of the grounds along with the notice of intent to terminate, the educator has a right to request a referee hearing and a referee is appointed by the State Superintendent

of Public Instruction but is compensated by the school board. The referee conducts a termination hearing and makes a written report and a recommendation to the school board as to whether the school board proved at the termination hearing good and just cause to terminate the educator’s contract. Unfortunately, the referee’s recommendation is just that—a recommendation.

The matter then goes to the school board to consider the referee’s report and to decide whether to accept or reject the referee’s recommendation as to the termination of the educator’s contract. The Supreme Court of Ohio has held that a school board must, with respect to factual findings by the referee, give “due deference” to the findings or, in other words, must accept the factual findings of the referee unless they are against the greater weight of the evidence. Graziano v. Amherst Exempted Village Bd. of Edn., 32 Ohio St.3d 289 (1987). What often happens, however, is that a school board does not contest the factual findings of the referee but, rather, differs with the conclusion reached by the referee and then rejects the referee’s recommendation. So, in other words, the school board initiates the termination matter by issuing charges against the educator, it presents evidence at the termination hearing in support of the termination, and it then is permitted to accept or reject the referee’s recommendation.

The recourse for the educator who receives determination from the school board that it has rejected a referee’s recommendation in favor of the educator is to appeal to the common pleas court in the county

in which the school district is located. The appeal to the common pleas court is not a new trial or hearing but, rather, the common pleas court is required to examine the transcript of the termination hearing and may, but rarely does, hold additional hearings if it feels the same are necessary. The common pleas court may only reverse the order of termination made by a board of education if it finds that the termination order is not supported by or is against the manifest weight of the evidence and the “burden” rests with the educator to prove the same. If either the educator or the school board is dissatisfied with the decision of the common pleas court, an appeal may be taken to the court of appeals; however, the review by the court of appeals is even more limited. The standard for review by a court of appeals is to determine whether the common pleas court has abused its discretion. The party taking the appeal has the burden of proving an abuse of discretion, which is very hard to prove. The procedure under R.C. 3319.16 has been attacked on the basis that the educator’s due process rights are being violated under R.C. 3319.16 because the school board ultimately makes the decision and it is, obviously, not an impartial decisionmaker. Unfortunately, the courts have held that R.C. 3319.16 satisfies the due process requirements of the 14th Amendment to the U.S. Constitution. Hortonville Joint School Dist. v. Hortonville Education Asso., 426 U.S. 42 (1976) and Whitser v. Southwest Local School Dist., 484 F.2d 1222 (6th Cir. 1973). The R.C. 3319.16 process of the referee issuing a recommendation and the school board accepting or rejecting it differs from the binding arbitration process. In a binding arbitration, the arbitrator, like the referee, conducts an evidentiary hearing where both sides can present witnesses and documents and cross-examine the other party’s witnesses. The major difference is that after the hearing, the arbitrator issues an “award” which states whether the school board has proven good and just cause for termination. That “award” (sometimes referred to as a decision) is final and binding on both the educator and the school board and may only be vacated in very limited circumstances as R.C. 2711.10 provides as follows: In any of the following cases, the court of common pleas shall make an order vacating the award upon the application of any party to the arbitration if: (A) The award was procured by corruption, fraud, or undue means. (B) There was evident partiality or corruption on the part of the arbitrators, or any of them. (C) The arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced. (D) The arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made. If an award is vacated and the time within which the agreement required the award to be made has not expired, the court may direct a rehearing by the arbitrators. My preference for binding arbitration and why a school board would be opposed to the same are obvious. If we win the referee hearing and get a favorable referee recommendation, the school board can still reject the recommendation. After rejecting the favorable recommendation, the school board can then pass a resolution to terminate the educator’s employment and issue an order of termination. That leaves us with an uphill battle in common pleas court. On the other hand, if we win the binding arbitration hearing, the favorable arbitrator’s award is final and binding on the school board unless one of the very limited reasons to vacate exists. I understand that educators are presented with contract provisions that are most often not negotiable and are placed in a position of “take it or leave it.” If, however, there is any opportunity to negotiate a “binding arbitration clause” in an employment contract, it is my opinion that such a provision would be very beneficial to an educator who later is facing a possible termination. Dennis Pergram, legal counsel to OAESA, is a partner in the law firm of Manos, Martin & Pergram Co., LPA. He is a former chairperson of the Ohio State Bar Association School Law Committee and has practiced school law for over 30 years. DID YOU KNOW? Your OAESA membership entitles you to one free hour of work-related legal consultation with OAESA legal counsel, Dennis Pergram, every year.