State ex rel. Donah v. Windham Exempted Village School Dist. Bd. of Edn. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[The State ex rel.] Donah, Appellant, v. Windham Exempted
Village School District Board of Education, Appellee.
[Cite as State ex rel. Donah v. Windham Exempted Village School
Dist. Bd. of Edn. (1994), Ohio St.3d .]
Schools -- Determining whether employee is an administrator or
a teacher -- R.C. 3319.02(A) phrase "working with
students" requires the presence of the student(s) when the
activity is performed.
(No. 92-2607 -- Submitted February 22, 1994 -- Decided
April 27, 1994.)
Appeal from the Court of Appeals for Portage County, No.
91-P-2360.
On July 16, 1991, Carol Donah, relator-appellant, filed a
complaint for a writ of mandamus in the court of appeals to
compel Windham Exempted Village School District Board of
Education, respondent-appellee, to issue her continuing and
supplemental contracts of employment. Based upon stipulations
as well as an evidentiary hearing before a referee of the
court, the following facts were adduced. Appellant is a
certified school psychologist who has an eight-year teaching
certificate in school psychology. She has been employed by
appellee continuously since the 1973-1974 school year.
Appellant served as the only school psychologist in the
district until the 1979-1980 school year, when she assumed the
title of "Director of Special Education." The parties had
entered into a series of limited employment contracts which
were identical to administrators' contracts issued by appellee
except that appellant's contracts were denominated
"[t]eacher's" contracts. Appellant was never given a written
evaluation as either an administrator or a teacher.
Appellant's salary during her employment with appellee always
exceeded the teachers' salary schedule.
Appellant's duties as Director of Special Education
included the identification and placement of handicapped
students, counseling, keeping records, and preparing reports
for federally and state-funded programs connected with special
education programs in the school district. According to
appellant, she believed that she spent more than fifty percent

of her time working with students. Appellant testified that
the physical presence of children was not necessary for her to
work with students to achieve goals, but admitted that everyone
employed by appellee had the same goals, i.e., the best
interest of the children. Trina K. Prufer, another certified
school psychologist employed by appellee, testified that the
amount of time she and appellant actually spent in the presence
of the students "reflects probably the shortest percentage of
time * * *." However, Prufer further testified that she
believed appellant spent more than fifty percent of her time
working with students in the sense that such work was done in
the "interest" of individual students.
Appellee had requested and received approval for a .5 unit
for school psychologist by the Ohio State Department of
Education, Division of Special Education, resulting in fifty
percent funding for a school psychologist position for all
school years since 1979-1980. Pursuant to Ohio Adm. Code
3301-51-05(M), a school psychologist assigned for a unit or
fraction of a unit of funding cannot perform any administrative
duties for the fraction of time assigned to the funded unit.
During every school year since 1979-1980, appellant was
reported by appellee as the school psychologist providing the
services for which funding had been requested and received. In
CS-1 reports sent by appellee to the State Department of
Education, appellee listed appellant under the code for
psychologist rather than under codes for administrative and
supervisory personnel. However, Jack Raymond, the
superintendent of the school district, testified that the fact
that the CS-1 report includes a position code merely indicates
the employee's type of certification and not necessarily the
title or responsibilities of the position.
Since the 1979-1980 school year, appellant had been
required to work a ten-month work year, which is twenty days
more than the regular teaching school year. Although teachers
required to work in excess of the regular period received
supplemental contracts for such additional time, appellant's
request for a supplemental contract was denied.
On August 19, 1992, the referee issued a report which
included findings of fact and conclusions of law and
recommended that appellant's request for a writ of mandamus be
denied. The referee's findings of fact included:
"12. That Relator has not submitted sufficient evidence to
establish that she spends 50% or more of her time working with
students in her physical presence, although a combination of
her time working with students in her physical presence and her
time spent on student oriented work would amount to more than
50% of her work time.
" * * *
"14. That in CS-1 reports submitted to the State
Department of Education, the school district has reported
relator as being employed as a school psychologist and not as a
director or supervisor. That these reports list employees by
the type of certificate rather than by position held."
After appellant filed objections to the referee's report,
on November 16, 1992, the court of appeals entered a judgment
adopting and incorporating the report and denying mandamus
relief to appellant on the basis that she was an administrator

pursuant to R.C. 3319.02(A), and not a teacher.
The cause is before the court upon an appeal as of right.

Green, Haines, Sgambati, Murphy & Macala Co., L.P.A., Ronald G.
Macala, Anne Piero Silagy and Anthony M. DioGuardi II, for
appellant.
Whalen & Compton Co., L.P.A., G. Frederick Compton, Jr.,
R. Brent Minney and Elizabeth Grooms Taylor, for appellee.

Per Curiam. In order to be entitled to a writ of
mandamus, the relator must establish (1) that relator has a
clear legal right to the relief prayed for, (2) that respondent
has a clear legal duty to perform the acts, and (3) that
relator has no plain and adequate remedy in the ordinary course
of law. State ex rel. Manson v. Morris (1993), 66 Ohio St.3d
440, 441, 613 N.E.2d 232, 233-234, citing State ex rel. Berger
v. McMonagle (1983), 6 Ohio St.3d 28, 29, 6 OBR 50, 51, 451
N.E.2d 225, 226.
Continuing contracts of employment, i.e., tenure, for
teachers are provided for in R.C. 3319.11. State ex rel.
Kelley v. Clearcreek Local School Dist. Bd. of Edn. (1990), 52
Ohio St.3d 93, 94, 556 N.E.2d 173, 174-175; State ex rel.
Specht v. Painesville Twp. Local School Dist. Bd. of Edn.
(1980), 63 Ohio St.2d 146, 149-150, 17 O.O.3d 89, 91-92, 407
N.E.2d 20, 23. Teachers who are eligible for continuing
contract service status in a school district include certified
teachers who within the last five years have taught for at
least three years in the district. R.C. 3319.11(B). Teacher
tenure Acts protect qualified teachers by preventing their
arbitrary dismissal; however, these acts omit administrators
from coverage because administrators generally exercise
executive and discretionary power in addition to holding
professional qualifications as a teacher. State ex rel. Smith
v. Etheridge (1992), 65 Ohio St.3d 501, 506-507, 605 N.E.2d 59,
63-64; see, also, State ex rel. Saltsman v. Burton (1950), 154
Ohio St. 262, 43 O.O. 136, 95 N.E.2d 377. Therefore, contracts
of "other administrators" are always limited contracts. See
Bennett v. Lorain Cty. Bd. of Edn. (1985), 23 Ohio App.3d 136,
23 OBR 248, 491 N.E.2d 742 (applying the holding to school
psychologists).
Pursuant to R.C. 3319.09(A), the term "teacher" includes
"all persons certified to teach and who are employed in the
public schools of this state as instructors, principals,
supervisors, superintendents, or in any other educational
position for which the state board of education requires
certification including persons having a certificate issued
pursuant to sections 3319.22 to 3319.31, inclusive, of the
Revised Code and employed in an educational position * * *."
As noted by the court of appeals, under the foregoing
definition, even school administrators are teachers. However,
for purposes of the continuing contract eligibility
requirements for administrators, supervisors, and special
teachers, R.C. 3319.02(A) defines the term "other
administrator" as follows:
"As used in this section, 'other administrator' means any
employee in a position for which a board of education requires
a certificate of the type described by division (I), (M), or

(O) of section 3319.22 of the Revised Code, provided that an
employee required to have the type of certificate described by
division (M) of such section spends less than fifty per cent of
his time teaching or working with students, or any other
employee, except the superintendent, whose job duties enable
him to be considered as either a 'supervisor' or a 'management
level employee,' as defined in section 4117.01 of the Revised
Code." (Emphasis added.)
R.C. 3319.22(M) provides that teachers' certificates may
be issued for "[p]upil-personnel workers, including school
psychologists * * *." Appellant was required to have a
certificate of the type described in R.C. 3319.22(M) for school
psychologists. Therefore, for purposes of being eligible for
tenure, it is clear that a school psychologist would not be a
teacher but an "other administrator" if the school psychologist
spent less than fifty percent of the time teaching or "working
with students." R.C. 3319.02(A); see, generally, Baker &
Carey, 1993-94 Handbook of Ohio School Law (1993) 264, Section
T 7.01.
Appellant's first, second, and part of her third
propositions of law assert that the court of appeals erred in
interpreting the phrase "working with students" to require the
presence of students when the work activity is performed. In
construing a statute, a court's paramount concern is the
legislative intent in enacting the statute. State v. S.R.
(1992), 63 Ohio St.3d 590, 594, 589 N.E.2d 1319, 1323. In
determining legislative intent, the court first looks to the
language in the statute and the purpose to be accomplished.
Id. at 594-595, 589 N.E.2d at 1323. Words used in a statute
must be taken in their usual, normal or customary meaning. Id.
at 595, 589 N.E.2d at 1323. See R.C. 1.42.
As the court of appeals determined, if "working with
students" were construed as broadly as appellant desires, i.e.,
to include any time spent on an activity which assists or
benefits a student regardless of the student's presence during
the activity, the fifty percent or more distinction would be
rendered virtually meaningless, since, as appellant admitted in
her testimony, the activities of all school employees are
ostensibly for the benefit of a student or a group of
students. In effect, the limiting preposition "with" would be
replaced with the words "in the interest of." Consequently,
appellant's interpretation of R.C. 3319.02(A) would be contrary
to the statute's plain and unambiguous language. See, also,
R.C. 1.47(C) (presumption against any construction that would
produce an unreasonable or unjust consequence); State v. Arnold
(1991), 61 Ohio St.3d 175, 178, 573 N.E.2d 1079, 1082 (cardinal
rule of statutory construction that a statute shall be
construed, if practicable, as to give some effect to every part
of it). Moreover, although R.C. 3319.02(A) is a remedial
statute required to be liberally construed in favor of
administrators and teachers, see, e.g., Smith, supra, at
syllabus, the issue here is whether appellant is an
administrator or a teacher. The court of appeals correctly
determined that the R.C. 3319.02(A) phrase "working with
students" requires the presence of the student(s) when the
activity is performed.
The court of appeals further concluded that appellant

failed to establish that she spent fifty percent or more of her
time working with students in her physical presence. Although
appellant claims that there was no evidence that she spent less
than fifty percent of her time working with students, it is her
burden to prove a clear legal right to mandamus relief. State
ex rel. Ellis v. Indus. Comm. (1990), 53 Ohio St.3d 64, 65, 559
N.E.2d 454, 455. Prufer's testimony indicated that appellant's
work activities included only a small percentage of time in the
presence of students. Appellant did not testify that fifty
percent or more of her time at work was spent in the physical
presence of students. Therefore, sufficient evidence supports
the court's finding. Appellant's first, second, and the first
portion of her third propositions of law are thus meritless.
Appellant additionally asserts in her third proposition of
law that the court of appeals erred when it found that the CS-1
reports prepared and filed by appellee list personnel by the
type of certificate held and not by their position, and that
these state funding requests and reports conclusively
established that appellant spent fifty percent or more of her
time working with students. Initially, it should be noted that
appellant did not object below to the referee's finding that
the CS-1 reports submitted to the State Department of
Education, in which appellee reported appellant as being
employed as a school psychologist rather than as a director or
supervisor, listed "employees by the type of certificate held
rather than by position held." On appeal, a party may not
assign as error the court's adoption of a referee's finding of
fact unless an objection to that finding is contained in that
party's written objections to the referee's report.
Civ.R.53(E)(6); Proctor v. Proctor (1988), 48 Ohio App.3d 55,
548 N.E.2d 287; see, generally, McCormac, Ohio Civil Rules
Practice (2 Ed.1992) 344, Section 12.32(E). Therefore, to the
extent that the referee's finding may be considered to be
factual, appellant waived any error. In this regard,
Superintendent Raymond's testimony that the CS-1 report
indicated type of certification rather than the title or
responsibilities of the position supported the referee's
finding and the court's adoption of that finding. An appellate
court should not substitute its judgment for that of the trial
court where some competent and credible evidence supports the
rial court's factual findings. Wisinstainer v. Elcen Power
Strut Co. (1993), 67 Ohio St.3d 352, 355, 617 N.E.2d 1136, 1138.
Moreover, to the extent that the referee's finding may be
characterized as the resolution of a question of law which is
not subject to the waiver set forth in Civ.R. 53(E)(6), see,
e.g., Hartt v. Munobe (1993), 67 Ohio St.3d 3, 5-6, 615 N.E.2d
617, 620, citing Normandy Place Assoc. v. Beyer (1982), 2 Ohio
St.3d 102, 2 OBR 653, 443 N.E.2d 161, paragraph one of the
syllabus, appellant's actual duties, rather than any "title"
filled out on forms, were the critical and conclusive evidence
concerning the issue of her status.
For similar reasons, appellant's remaining contention
under her third proposition of law, that her contracts,
denominated as teacher's contracts, and not specifying her
administrative position and duties pursuant to R.C. 3319.02,
were conclusive evidence that she was employed as a teacher
rather than an administrator, is likewise meritless. As noted

by the court of appeals, the fact that a valid contract was not
executed would not void the parties' agreement, and R.C.
3319.02(A) does not specify the existence of a proper contract
as a determinative factor in resolving whether a school
employee is an "other administrator." Even appellant admits,
in her reply brief, that her status as either an administrator
or a teacher must be "determined by examining what she does * *
*."
Appellant in her fourth proposition of law asserts that
she is entitled to a supplemental contract for her additional
teaching duties. Where a school board has authorized
compensation for duties performed in addition to a teacher's
regular duties, R.C. 3319.08 mandates that the school board
shall issue a supplemental limited contract to the teacher
performing such additional duties. Wolf v. Cuyahoga Falls City
School Dist. Bd. of Edn. (1990), 52 Ohio St.3d 222, 556 N.E.2d
511, paragraph one of the syllabus. However, there is no
statute authorizing a board of education to enter into
supplemental contracts with nonteaching employees. Hall v.
Lakeview Local School Dist. Bd. of Edn. (1992), 63 Ohio St.3d
380, 383, 588 N.E.2d 785, 788. Since the court of appeals
correctly held that appellant was an administrator rather than
a teacher, it had no legal duty to issue a supplemental
contract for appellant.
In short, the court of appeals correctly found that
appellant possessed no clear legal right to either a continuing
or a supplemental contract and appellee possessed no
corresponding clear legal duty to issue such contracts because
appellant was an "other administrator" as provided in R.C.
3319.02(A).
Accordingly, the judgment of the court of appeals is
affirmed.
Judgment affirmed.
Moyer, C.J., A.W. Sweeney, Douglas, Wright, Resnick, F.E.
Sweeney and Pfeifer, JJ., concur.