Kiel v. Green Local School Dist. Bd. of Edn. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
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Kiel, Appellant, v. Green Local School District Board of
Education, Appellee.
[Cite as Kiel v. Green Local School Dist. Bd. of Edn.
(1994), Ohio St.3d .]
Schools -- Teachers -- Nonrenewal of limited teaching contract
-- R.C. 3319.11 does not provide procedure that must be
followed in an appeal pursuant to subdivision (G)(7) --
Procedural provisions of R.C. Chapter 2506 govern -- R.C.
3319.11(E) requires that teacher receive actual written notice
of board's intent not to renew contract.
1. R.C. 3319.11 does not provide the procedure that must be
followed in an appeal pursuant to subdivision (G)(7).
Thus, the procedural provisions of R.C. Chapter 2506
govern.
2. R.C. 3319.11(E) requires that a teacher receive actual
written notice of the board's intent not to renew his
limited teaching contract.
(No. 92-1873 -- Submitted November 9, 1993 -- Decided
April 27, 1994.)
Appeal from the Court of Appeals for Wayne County, No.
2709.
Plaintiff-appellant, John Kiel, was a public high school
teacher employed by defendant-appellee, Green Local School
District Board of Education, under a limited teaching contract
that expired at the conclusion of the 1990-1991 school year.
After he was evaluated by the Principal of Smithville High
School, the principal and superintendent determined that Kiel
would not be recommended for continued employment after the
expiration of his limited teaching contract. Accordingly, on
April 16, 1991, the school board acted upon the recommendation
and voted not to reemploy Kiel. Following a hearing, the board
reaffirmed this decision not to renew Kiel's limited contract.
On June 12, 1991, pursuant to R.C. Chapters 3319 and 2506,
Kiel filed a complaint in the Wayne County Court of Common
Pleas, seeking review of the nonrenewal of his teaching
contract. On January 7, 1992, the common pleas court concluded
that the board had complied with the requirements of R.C.
3319.11 and 3319.111. The court also permitted the board, over

Kiel's objection, to supplement the record on appeal with an
affidavit from its treasurer purporting to demonstrate service
of the board's notice of nonrenewal. In a divided decision,
the court of appeals affirmed.
The cause is before this court pursuant to the allowance
of a motion to certify the record.

Green, Haines, Sgambati, Murphy & Macala Co., L.P.A.,
Ronald G. Macala 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.
Means, Bichimer, Burkholder & Baker Co., L.P.A., and
Kimball H. Carey, urging affirmance for amicus curiae, Ohio
School Boards Association.

Francis E. Sweeney, Sr., J. This case and the companion
cases which follow provide this court with its first
opportunity to address legal issues arising under R.C. 3319.11
and 3319.111 as amended and enacted by Am.Sub.H.B. No. 330, 142
Ohio Laws, Part II, 3356.
The Ohio Teacher Tenure Act, contained in R.C. Chapter
3319, governs the employment of public school teachers in
Ohio. We have consistently held that the Act is remedial
legislation which is to be liberally construed in favor of
teachers. State ex rel. Brennan v. Vinton Cty. Local School
Dist. Bd. of Edn. (1985), 18 Ohio St.3d 208, 209, 18 OBR 271,
272, 480 N.E.2d 476, 477; Struthers City Schools Bd. of Edn. v.
Struthers Edn. Assn. (1983), 6 Ohio St.3d 308, 310, 6 OBR 368,
370, 453 N.E.2d 613, 615.
R.C. 3319.11 underwent major revisions effective July 1,
1989 with the passage of Am.Sub.H.B. No. 330. Prior to
Am.Sub.H.B. No. 330, minimal safeguards existed to protect a
nontenured teacher. Under former law, a teacher's contract
would not be renewed if the board, acting on the recommendation
of the superintendent, gave written notice to the teacher on or
before April 30. R.C. 3319.111 now requires that boards of
education follow certain prescribed statutory procedures prior
to nonrenewal, including formal evaluation, written notice and,
if requested, a hearing.
In addition, R.C. 3319.11(E) was amended and now provides
in part: "Any teacher employed under a limited contract, and
not eligible to be considered for a continuing contract, is, at
the expiration of such limited contract, considered reemployed
* * * unless evaluation procedures have been complied with
pursuant to division (A) of section 3319.111 of the Revised
Code and the employing board, acting upon the superintendent's
written recommendation that the teacher not be reemployed,
gives such teacher written notice of its intention not to
reemploy him on or before the thirtieth day of April."
(Emphasis added.)
Kiel contends and we determine that the school board
failed to timely notify him of its decision not to renew his
limited teaching contract as required by R.C. 3319.11.
However, before we address this issue, we confront Kiel's
second proposition of law, dealing with the board of
education's supplementation of the record on appeal.
In Kiel's appeal to the common pleas court, the court

permitted the board, over Kiel's objection, to supplement the
record with an affidavit of its treasurer, Joyce Mast. Mast
averred that she had personally served Kiel on April 23, 1991
with written notice of the board's decision not to renew Kiel's
limited contract.
The appellate court rejected Kiel's contention that the
general administrative appeal procedures found in R.C. Chapter
2506 applied. The court believed that the exclusive method for
challenging a decision not to renew a limited teaching contract
is contained in R.C. 3319.11(G)(7), which states that "[n]o
appeal of an order of a board may be made except as specified
in this division." Obviously, the school board agrees with
this determination.
Kiel contends, however, that while R.C. 3319.11(G)(7)
authorizes the appeal of the nonrenewal of his contract, R.C.
Chapter 2506, in particular R.C. 2506.02 and 2506.03, governs
the procedure that must be followed in an appeal pursuant to
R.C. 3319.11(G)(7). We agree.
The very terms of R.C. 3319.11(G)(7) contemplate that
certain sections of R.C. Chapter 2506 are applicable to the
appeal. R.C. 3319.11(G)(7) provides in part:
"Notwithstanding section 2506.04 of the Revised Code, the
court in an appeal under this division is limited to the
determination of procedural errors and to ordering the
correction of procedural errors and shall have no jurisdiction
to order a board to reemploy a teacher, except that the court
may order a board to reemploy a teacher in compliance with the
requirements of division (B), (C)(3), (D), or (E) of this
section when the court determines that evaluation procedures
have not been complied with pursuant to division (A) of section
3319.111 of the Revised Code or the board has not given the
teacher written notice on or before the thirtieth day of April
of its intention not to reemploy the teacher pursuant to
division (B), (C)(3), (D), or (E) of this section."
This section of the Revised Code addresses the remedies
available to a school teacher whose limited contract is not
renewed. R.C. 3319.11(G)(7) limits a court's scope of review
to procedural matters by expressly excluding the substantive
review of the merits otherwise available under R.C. 2506.04.
See Farmer v. Kelleys Island Bd. of Edn. (1994), Ohio
St.3d , N.E.2d . R.C. 3319.11 does not provide the
procedure that must be followed in an appeal pursuant to
subdivision (G)(7). Thus, the procedural provisions of R.C.
Chapter 2506 govern.
R.C. Chapter 2506 deals with appeals taken from orders of
administrative officers and agencies. R.C. 2506.01 provides in
part that "[e]very final order, adjudication, or decision of
any * * * board * * * of any political subdivision of the state
may be reviewed by the court of common pleas of the county in
which the principal office of the political subdivision is
located * * *." A school board certainly fits the definition
of a "board," and the word "any" certainly means that it is
included within the purview of R.C. Chapter 2506. See In re
Appeal of Sergent (1976), 49 Ohio Misc. 36, 39, 3 O.O.3d 308,
310, 360 N.E.2d 761, 764; Estock v. Conneaut Area City School
Dist. Bd. of Edn. (Sept. 30, 1993), Ashtabula App. No.
92-A-1757, unreported, 1993 WL 408168.

R.C. 2506.02 requires the filing of a transcript by the
officer or body from which the appeal is taken. R.C. 2506.03
provides that, with certain delineated exceptions, the hearing
of the appeal shall be confined to the transcript as filed
pursuant to R.C. 2506.02. The board of education does not
contend that any of the exceptions exist.
Pursuant to these provisions, the common pleas court was
limited to the record filed on appeal. The treasurer's
affidavit was not a part of this record, and it was error for
the court to allow the board to supplement the record.
In reaching its holding, the appellate court relied on
DeLong v. Bd. of Edn. of Southwest School Dist. (1973), 36 Ohio
St.2d 62, 65 O.O.2d 213, 303 N.E.2d 890, where, in construing
former R.C. 3319.11, this court held that a school board's
action in deciding not to reemploy a school teacher whose
limited employment contract is due to expire is not a
quasi-judicial proceeding subject to judicial review under R.C.
2506.01.
The statute considered in DeLong has been substantially
amended. R.C. 3319.11(G)(7) now creates a right to a hearing
before the board and a limited right to appeal and does not
foreclose the procedural appellate rights contained within R.C.
Chapter 2506. Thus, DeLong is not controlling.
Having determined that the record on appeal should not
have been supplemented, we must next determine whether Kiel
received timely notice of the board of education's intent not
to renew his limited teaching contract.
The record reveals that the board's notice of its intent
not to reemploy Kiel was sent by certified mail, return receipt
requested, to Kiel, in care of Smithville High School and to
his home address. The only return receipt received and offered
into evidence by the board is the return receipt from
Smithville High School. The receipt was signed by someone
other than Kiel. The board produced no evidence that Kiel had
personally received the notice sent April 17, 1991.
R.C. 3319.11(E) states that a teacher with a limited
contract is considered reemployed unless the board "gives such
teacher written notice of its intention not to reemploy him on
or before the thirtieth day of April."
In State ex rel. Peake v. S. Point Local School Dist. Bd.
of Edn. (1975), 44 Ohio St.2d 119, 73 O.O.2d 437, 339 N.E.2d
249, in construing former R.C. 3319.11 containing identical
notice language, we stated that where a statute requires notice
of a proceeding, but is silent concerning its form or manner of
service, only actual notice will satisfy such requirement.
Thus, in Peake, we rejected the notion that a teacher had
received the required notice of nonrenewal when the teacher was
present at the meeting at which the board decided not to renew
her contract. While the board sent the written notice of
nonrenewal to the teacher on April 29, it was not delivered
until May 2. We held that the board was compelled to reemploy
the teacher.
By mailing the notice of its intent not to renew Kiel's
teaching contract to the Smithville High School, the school
board did not comply with R.C. 3319.11(E). The certified
return receipt is not signed by Kiel. The board did not timely
present any evidence that Kiel personally received the notice

on or before April 30. Thus, the provisions of R.C. 3319.11
have not been met and Kiel must be deemed reemployed.
Therefore, consistent with this opinion, we hold the
following: (1) R.C. 3319.11 does not provide the procedure
that must be followed in an appeal pursuant to subdivision
(G)(7). Thus, the procedural provisions of R.C. Chapter 2506
govern. (2) R.C. 3319.11(E) requires that a teacher receive
actual written notice of the board's intent not to renew his
limited teaching contract.
Accordingly, we reverse the judgment of the court of
appeals and order appellee board of education to reinstate
appellant to a one-year limited contract and to award appellant
all compensation and benefits that he has lost as a result of
the unlawful nonrenewal of his contract.
Judgment reversed.
A.W. Sweeney, Douglas and Pfeifer, JJ., concur.
Moyer, C.J., Wright and Deshler, JJ., dissent.
Dana A. Deshler, Jr., J., of the Tenth Appellate District,
sitting for Resnick, J.
Wright, J., dissenting. I respectfully dissent because
I believe the board did everything it was required to do under
the statute with respect to notifying Kiel of its decision.
The board was required by R.C. 3319.11(E) to give Kiel written
notice of its decision. The board did so on April 17, 1991 by
sending Kiel two letters, both by certified mail, to Kiel's
work and home address. Notwithstanding the majority's
assertion to the contrary, the record filed by the board on
appeal (i.e., the record in its unsupplemented state) clearly
and beyond doubt contains sufficient evidence showing that Kiel
received notice of the board's decision not to renew his
contract before the deadline of April 30, 1991.
That Kiel had timely notice of the board's decision is
evident by Kiel's written objection to it on April 22, 1991.
On that day Kiel's representative Richard Schneider mailed two
letters, both of which were properly in the record filed on
appeal, to the treasurer of the board. Both clearly indicate
Kiel knew the board had decided not to renew his contract. The
first letter reads:
"Pursuant to O.R.C. Section 3319.11(G)(1) et seq., John
Kiel hereby demands a written statement describing the
cirucumstances which led the Green Local Board of Education to
decide not to re-employ him."
The second letter reads:
"Pursuant to O.R.C. Section 3319.11(G)(3) et seq., John
Kiel hereby demands that a hearing be scheduled regarding the
circumstances which led to the Green Local Board of Education's
intention not to re-employ John Kiel. John Kiel demands a
record be made of these proceedings and that all issues
relating to the decision to non-renew John Kiel's limited
contract of employment be considered."
The conclusion is inescapable that Kiel had notice of the
board's decision at least eight days before the April 30, 1991
deadline, notice which one may reasonably infer was provided by
the two letters mailed by the board to Kiel on April 17. As
Judge Cacioppo of the court of appeals aptly observed: "His
prior knowledge of [the board's] decision is *** obvious."
Indeed it is!

The conclusion is so obvious even Kiel's representative,
who had signed and mailed the April 22 letters, dared not risk
answering the question whether Kiel had received notice of the
board's decision. At the May 15, 1991 hearing before the
board, the following exchange took place between Kiel's
representative Schneider and board member John Tucker:
"MR. TUCKER: One question, Mr. Schneider. Mr. Kiel did
receive notice of nonrenewal.
"MR. SCHNEIDER: We have no proof of that. I got it by
reading the newspaper. Whether that's substantial under the
new law, I don't know, but we haven't filed any suit, John.
But I notice by what the affidavit of the Board is, is one
Frank Hayes received that, and it was sent to the high school.
"John, you know as well as I do, whether it be legal or
not, that is not Mr. Kiel. So, we are not aware of that, and
we have no proof that it was received before the required
deadline. As to when it was actually received, I got a copy of
it in my office, and mine is probably time-stamped. Let's see
if it is. No, mine is not time-stamped either, John. We don't
know that."
If ever there was a dissembling answer to a simple
question, we have it here. It is unfortunate that the board
did not follow up on its question by asking Kiel himself if he
had received the two April 17 letters which the board had
mailed to him. Certainly Kiel, who was present at the hearing,
knew whether he had received them. He said nothing, however,
and his representative spoke only about the lack of proof of
notice rather than answering the question in a forthright
manner. It is difficult, however, to fault the board for not
pursuing the matter since Kiel had demanded on April 22 both an
explanation for the board's decision and a hearing.
Based on my review of the record properly filed on appeal,
I disagree with the majority's conclusion that "the school
board failed to timely notify [Kiel] of its decision not to
renew his limited teaching contract." The record clearly shows
(1) the board mailed written notice to Kiel (which is all R.C.
3319.11[E] requires) on April 17, and (2) Kiel had notice by
April 22, well before the April 30 deadline. As a result, I am
not willing to impose the costly sanction of reinstatement in
this case.
I reach my decision on this issue without deciding the
admissibility of the treasurer's affidavit, which the board
sought to add to the record. I note, however, that a sworn
statement from the treasurer that she personally delivered
timely written notice to Kiel on April 23, 1991 would add
nothing to what the facts of this case and common sense already
reveal. The decision by the court of common pleas to allow the
board to supplement the record was, at worst, harmless error.
For the foregoing reasons, I would affirm the decision of
the court of appeals. I therefore dissent.
Moyer, C.J., and Deshler, J., concur in the foregoing
dissenting opinion.