Legal Report

NON-RENEWALS, REDUCTIONS IN FORCE, AND TERMINATIONS

BY DENNIS PERGRAM

Principals’ contracts are involuntarily discontinued through three statutory procedures, and those are non-renewals, reductions in force, and terminations.

NON-RENEWALS R.C. 3319.02(C)(i) provides that in any school year that your contract of employment is not due to expire, at least one evaluation shall be completed in that year, and you are to be provided with a copy of the same no later than the end of your contract year.

R.C. 3319.02(C)(i) provides that in any school year that your contract of employment is due to expire, you are to be provided with a preliminary evaluation and at least a final evaluation in that school year, you are to be provided with a written copy of the preliminary evaluation at least 60 days prior to any action by the school board on your contract, and you are to receive the final evaluation at least 5 days prior to the board acting to renew or non-renew your contract. That final evaluation shall indicate the Superintendent’s intended recommendation to the board.

R.C. 3319.02(D)(4) provides that before taking any action to renew or non-renew your contract, the board shall, prior to the first day of June, notify you of the date that your contract expires, and that you may request a meeting with the board. Upon such a request, the board shall grant you a meeting in executive session.

Under R.C. 3319.02(D)(4), you are entitled to have a representative present at the executive session, and the board is obligated to discuss its reasons for considering renewal or non-renewal of your contract.

R.C. 3319.02(C) provides that if you did not receive a notice of non-renewal on or before the first day of June, you are deemed re-employed at the same salary plus any increments that may be authorized by the board. The term of the automatic re-employment is one year, except that if you have been employed in the district as an administrator for two years or more, the term of re-employment shall be two years.

service status becomes an assistant superintendent, principal, assistant principal, or other administrator with the district or service center with which the teacher holds continuing contract status, the teacher retains such status in the teacher’s non-administrative position as provided for in sections 3311.77, 3319.08, and 3319.09 of the Revised Code.”

If you have continuing service status as a teacher in another district and have served two years as an administrator in your current district, you have also acquired continuing service status as a teacher in your current district as a result of serving two years as an administrator. R.C. 3319.11 provides that teachers eligible for continuing service status include those who, having obtained continuing contract status elsewhere, have served two years in the district or center where they are employed as an administrator.

REDUCTIONS IN FORCE Most school districts have administrative personnel suspension policies that they use to achieve reductions in force, and under R.C. 3319.171(B), the administrative personnel suspension policy must include the following:

(1) One or more reasons that a board may consider for suspending any contract of employment entered into under section 3319.02 of the Revised Code. A reason for such suspension may include the financial conditions of the school district or educational service center.

(2) Procedures for determining the order of suspension of contracts within the employment service areas affected;

(3) Provisions requiring a right of restoration for employees whose contracts of employment are suspended under the policy if and when any positions become vacant or are created for which any of them are or become qualified.

An area of concern is the administrator’s recall rights when his/ her contract has been suspended under an administrative personnel suspension policy. As set forth above, R.C. 3319.171(B)(3) provides

that the administrative personnel suspension policy shall include a right of restoration (recall) for administrators “if and when any positions become vacant or are created for which any of them are or become qualified.” It is my opinion that an administrator is qualified for such a position if they are licensed for that position. I have seen some administrative personnel suspension policies that I do not believe are compliant with R.C. 3319.171. For example, a policy that states that the administrator may only be recalled to the position that was abolished if that position is recreated is, in my opinion, violative of the executor’s recall rights under R.C. 3319.171 and most likely meaningless as it is highly unlikely that the abolished position would be recreated.

I have also seen some administrative personnel suspension policies that vest discretion in the superintendent to determine what is in the best interest of the district when deciding an educator’s right to be recalled. I also believe that such a provision is violative of R.C. 3319.171, as it is my opinion that R.C. 3319.171 was intended to provide the administrator with a “right” of restoration (recall), not merely a “chance” of being recalled if a position becomes vacant or is created for which they are qualified.

TERMINATIONS If a school board seeks to terminate a principal’s contract before its expiration date, it must proceed under R.C. 3319.16 and R.C. 3319.161. Under R.C. 3319.16, the termination must be based on “good and just cause.” Good and just cause is not defined in the statute and has been developed through Ohio’s case law.

The first step in the formal termination of a principal’s contract is for the school board to provide the principal with a pre-termination hearing, often referred to as a Loudermill hearing. Essentially, this rather informal hearing is to enable the principal to provide reasons why his or her contract should not be terminated and is not a fullblown due process hearing. Most often, this Loudermill hearing is merely the first formal step used by a school board to start the termination process.

The next step under R.C. 3319.16 requires the school board to furnish the principal with a written notice signed by its treasurer of its intention to consider the termination of the principal’s contract with full specification of the grounds for such consideration.

R.C. 3319.16 provides that a school board may suspend a principal, without pay, pending final action to terminate the principal’s contract if “in its judgment, the character of the charges warrants such action.” It is rare for a school board not to suspend a principal without pay at the same time that it votes to provide the principal with written notice of the charges. Of course, that means that the principal will be without pay from the school board during, at least, the pendency of the termination proceedings. school board which has initiated the termination proceeding.

After a written demand for a referee hearing is made, the school board informs the Ohio Department of Education that such a demand has been made. The superintendent of public instruction provides legal counsel for the school board and legal counsel for the principal with the names of three prospective referees. The prospective referees usually are practicing attorneys. Legal counsel for the school board and legal counsel for the principal first attempt to determine whether they can agree on one of the three prospective referees. If so, the superintendent of public instruction is so notified and the referee is appointed. If legal counsel for the school board and legal counsel for the principal cannot agree upon a referee, the superintendent of public instruction is so notified and appoints one of the three prospective referees to serve. The school board is responsible for paying the referee’s attorney fees, the fees charged by a court reporter, the costs of the transcript of the hearing, and its own attorney fees.

Once a referee is either agreed to or appointed, the referee schedules the due process hearing, and it is fairly well established that the school board must prove its case by a preponderance of substantial, reliable, and probative evidence. The statute specifically provides that the hearing “shall be confined to the grounds given for the termination.” That means, of course, that the school board may not add additional grounds for the termination that are not set forth in the written notice of its intention to consider termination.

The school board is obligated to provide a complete stenographic record of the termination proceedings with a copy of the record to be provided to the principal. It is fairly common for the referee to continue the hearing after all of the evidence has been presented to enable the parties to receive a complete stenographic record and to permit their legal counsel to file briefs with references to the record. After those briefs are submitted to the referee, the referee then issues a report and a recommendation. The referee’s recommendation is a recommendation as to whether the principal’s contract should or should not be terminated.

The school board must, by majority vote, accept or reject the referee’s recommendation. If the school board’s decision is against termination of the principal’s contract, the charges and the record of the hearing shall be physically expunged from the minutes and, if the principal has suffered any loss of salary by reason of being suspended, the principal shall be paid the principal’s full salary for the period of such suspension.

If, on the other hand, the school board votes in favor of terminating the principal’s contract, the school board is to provide the principal with the order of termination, which must state the grounds for the termination.

A principal who receives a written notice of intention to consider the termination of his/her contract and who desires to challenge the termination, must file, with the treasurer, a written demand for a hearing before the school board or before a referee. That demand must be filed with the treasurer within ten (10) days after receipt of the notice of the charges. It would be rare for a principal to demand a hearing before the school board in light of the fact that it is the The statute further allows for appeals from the school board’s order of termination if that is the action taken by the school board.

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.

39 spring 2019