State ex rel. Chavis v. Sycamore City School Dist. Bd. of Edn. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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The State ex rel. Chavis et al., Appellants, v. Sycamore City
School District Board of Education, Appellee.
[Cite as State ex rel. Chavis v. Sycamore City School Dist. Bd.
of Edn. (1994), Ohio St.3d .]
Schools -- Tutors employed under individual tutor contracts
performing learning disabled and English as a second
language tutoring services -- Mandamus to compel board of
education to pay tutors difference between their actual
pay as tutors and the pay set forth in collective
bargaining agreements' teachers' salary schedules -- Court
errs in denying writ, when.
(No. 94-557 -- Submitted September 20, 1994 -- Decided
November 23, 1994.)
Appeal from the Court of Appeals for Hamilton County, No.
C-920906.
Relators-appellants are fourteen individuals employed as
tutors by respondent-appellee, Sycamore City School District
(a.k.a. Sycamore Community School District) Board of Education
("board"), at various times during the 1986-1987 through
1990-1991 school years. Eleven of the appellants provided
supplemental instruction to learning disabled ("LD") students
and the three remaining appellants provided supplemental
instruction in English as a second language ("ESL"). All of
the fourteen appellants held valid teaching certificates when
they performed tutorial duties for the board in the pertinent
time period.
Appellants were employed under individual "tutor"
contracts in which they agreed to perform LD and ESL "tutoring
services" on an "as needed basis" at an hourly rate of pay.
The tutors' salary schedules set a flat hourly rate for school
years 1986-1987 through 1988-1989 and included increases in the
hourly rates based on years of service for school years
1989-1990 and 1990-1991. The tutors' salary schedules did not
provide for increments based upon training and were not filed
with the Superintendent of Public Instruction pursuant to R.C.
3317.14. During school years 1986-1987 through 1990-1991, the
board made contributions to the State Teachers Retirement
System ("STRS") on behalf of each of the appellants, based on

wages paid to them as LD and ESL tutors. Funds under R.C.
Chapter 3317, the School Foundation Program, were paid to STRS
by the Ohio Department of Education on behalf of the board.
During the same period in which appellants were employed
under LD and ESL "tutor" contracts, the board entered into
several collective bargaining agreements with the Sycamore
Education Association, the exclusive collective bargaining
agent for all board employees with "teacher" contracts. The
collective bargaining agreements in effect during school years
1986-1987 through 1990-1991 covered all persons "employed as
teachers by the Board *** excluding *** all hourly paid
employees[.]" As the parties all concede, since appellants
were hourly paid employees when they were employed under the LD
and ESL "tutor" contracts, they were not included within the
bargaining unit, were not represented by the union, and were
not covered by the agreements. The teachers' salary schedules
in the collective bargaining agreements included increments
based upon training and years of service. Although the board
does not know whether the teachers' salary schedules were filed
with the Superintendent of Public Instruction pursuant to R.C.
3317.14, it submitted the schedules to the Ohio Department of
Education for school years 1986-1987 through 1990-1991. The
collective bargaining agreements also contained a grievance and
arbitration procedure.
During school years 1986-1987 through 1990-1991, all
appellants were paid in accordance with the tutors' salary
schedules for duties performed under their "tutor" contracts
and were not paid under either the teachers' salary schedules
incorporated in the collective bargaining agreements covering
this period or the R.C. 3317.13(C) minimum salary schedule for
teachers for these duties. In some of the school years in this
period, appellants Jane Duncan, Noreen D. Eyre, Susan H. Ford,
and Constance K. Weethee were also employed by the board as
teachers expressly covered under the collective bargaining
agreements and were paid the amounts set forth in the teachers'
salary schedules. However, these appellants were not given
experience credit by the board on the teachers' salary
schedules for past years of tutor service, and the union
eventually filed a grievance on their behalf.
In the collective bargaining agreement effective beginning
with the 1991-1992 school year, LD and ESL tutors, including
appellants, were brought into the bargaining unit and a
separate salary schedule was incorporated into the collective
bargaining agreement, providing for lower annual salaries for
tutors than other instructors. Shortly following appellants'
inclusion in the bargaining unit, they became aware of recent
court decisions concerning tutors, and in June 1992, they
demanded that the board properly compensate them for their
tutoring for school years 1986-1987 through 1990-1991. The
board refused appellants' demand.
Appellants instituted a mandamus action in the Hamilton
County Court of Appeals, seeking to compel the board to pay
them the difference between their actual pay as tutors and the
pay set forth in the collective bargaining agreements'
teachers' salary schedules for school years 1986-1987 through
1990-1991. Alternatively, appellants requested a writ
compelling the board to pay the difference between their pay as

tutors and the amounts mandated in the R.C. 3317.13(C)
teachers' minimum salary schedule. Appellants Duncan, Eyre,
Ford, and Weethee requested payment of the additional amounts
they would have received as classroom teachers if the board had
credited their years of service as tutors in computing their
salaries.
The parties submitted the matter to the court of appeals
on motions for summary judgment limited to the liability
issues. On January 26, 1994, the court of appeals granted the
board's motion for summary judgment and denied appellants'
petition for a writ of mandamus.
The cause is now before this court upon an appeal as of
right.

Gary Moore Eby, for appellants.
Taft, Stettinius & Hollister and Robert J. Townsend, for
appellee.

Per Curiam. The court of appeals granted the board's
motion for summary judgment and denied the writ because it
determined that the collective bargaining agreements' exclusion
of appellants from coverage prevailed over any provisions of
R.C. Chapters 3317 and 3319 containing more expansive
definitions of the term "teacher" or establishing conflicting
salary requirements. The court of appeals relied on R.C.
4117.10(A), which provides:
"An agreement between a public employer and an exclusive
representative entered into pursuant to this chapter governs
the wages, hours, and terms and conditions of public employment
covered by the agreement. *** Where no agreement exists or
where an agreement makes no specification about a matter, the
public employer and public employees are subject to all
applicable state or local laws or ordinances pertaining to the
wages, hours, and terms and conditions of employment for public
employees. *** [T]his chapter prevails over any and all other
conflicting laws, resolutions, provisions, present or future,
except as otherwise specified in this chapter or as otherwise
specified by the general assembly. ***" (Emphasis added.)
R.C. 4117.10(A) was designed to free public employees from
conflicting laws which may interfere with their right to
collectively bargain. State ex rel. Rollins v. Cleveland
Hts.-Univ. Hts. Bd. of Edn. (1988), 40 Ohio St.3d 123, 127, 532
N.E.2d 1289, 1293. "Except for laws specifically exempted, the
provisions of a collective bargaining agreement entered into
pursuant to R.C. Chapter 4117 prevail over conflicting laws."
State ex rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509,
513, 628 N.E.2d 1377, 1381; Streetsboro Edn. Assn. v.
Streetsboro City School Dist. Bd. of Edn. (1994), 68 Ohio St.3d
288, 626 N.E.2d 110. A collective bargaining agreement does
not prevail over conflicting laws where it either does not
specifically cover certain matters, State ex rel. Clark v.
Greater Cleveland Regional Transit Auth. (1990), 48 Ohio St.3d
19, 22, 548 N.E.2d 940, 943, or no collective bargaining
agreement is in force. State ex rel. Internatl. Union of
Operating Engineers v. Cleveland (1992), 62 Ohio St.3d 537, 584
N.E.2d 727.
Appellants, when employed as LD and ESL tutors during the

pertinent school years, were excluded from the applicable
collective bargaining agreements because they were hourly paid
employees. Appellants were not members of the bargaining unit
represented by the unions when the agreements were negotiated,
executed, or in effect. R.C. 4117.10(A) specifies that public
employment collective bargaining agreements govern only the
wages, hours, and terms and conditions "covered by the
agreement." Since appellants were not covered by the
agreements, R.C. Chapters 3317 and 3319 governed appellants'
employment conditions. The court of appeals thus erred in
concluding otherwise.
Appellants contend that a tutor is a "teacher" under R.C.
3319.09(A), a tutor is entitled to compensation according to
the board's duly adopted pay schedule under R.C. 3317.14, and a
tutor may obtain back pay by way of mandamus, citing State ex
rel. Tavenner v. Indian Lake Local School Dist. Bd. of Edn.
(1991), 62 Ohio St.3d 88, 578 N.E.2d 464, and State ex rel.
Brown v. Milton-Union Exempted Village Bd. of Edn. (1988), 40
Ohio St.3d 21, 531 N.E.2d 1297. The board asserts that tutors
are not teachers for purposes of determining whether they are
entitled to be paid under the teachers' salary schedule
specified in R.C. 3317.13 and 3317.14.
In Brown and Tavenner, the court relied on the R.C.
3319.09(A) definition of "teacher." R.C. 3319.09 provides:
"As used in sections 3319.08 to 3319.18, inclusive, of the
Revised Code:
"(A) 'Teacher' means 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 determined by the state board of education, under
programs provided for by federal acts or regulations and
financed in whole or in part from federal funds, but for which
no certification requirements for the position can be made
under the provisions of such federal acts or regulations."
(Emphasis added.)
Although Brown and Tavenner utilized the R.C. 3319.09(A)
definition of "teacher" for purposes of placement of tutors on
the teachers' salary schedule required by R.C. 3317.13 and
3317.14, this definition "is expressly applicable only to
teaching contracts and conditions of employment set forth in
[R.C.] 3319.08 to 3319.18," the Teacher Tenure Act. Buchter,
Scriven & Sheeran, Baldwin's Ohio School Law (1993) 145,
Section 8.02. In that limited extent, we hold that Brown and
Tavenner applied the incorrect statutory provision in their
analyses. R.C. 3317.13 provides a minimum salary schedule for
teachers and contains its own definition of "teacher" in
subsection (A)(2):
"'Teacher' means all teachers employed by school district
boards of education ***."
While the R.C. 3317.13(A)(2) definition of "teacher" is
somewhat circular, see Buchter, Scriven & Sheeran, supra, at
190, Section 10.02, fn. 11, R.C. 3317.13 and 3317.14 use the
word in its ordinary sense, not as a term of art. Wood v.

Trotwood Madison Bd. of Edn. (June 12, 1990), Montgomery App.
No. CA 11836, unreported. Words used in a statute must be
taken in their usual, normal or customary meaning. R.C. 1.42;
State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn.
(1994), 69 Ohio St.3d 217, 220, 631 N.E.2d 150, 153. A
"teacher" is "[o]ne who teaches or instructs," and a "tutor" is
"[o]ne who teaches, usually a private instructor." Black's Law
Dictionary (6 Ed.1990) 1463 and 1518. The evidence in the
record is uncontroverted that appellants, when employed as LD
and ESL tutors, provided instruction to students and were
employed by the board. Therefore, appellants were teachers for
purposes of the statutes relating to teacher salaries, R.C.
3317.13 and 3317.14.
Nevertheless, R.C. 3317.13(A)(2) must be read in
conjunction with R.C. 3319.30, which provides that "no person
shall receive any compensation for the performance of duties as
teacher in any school supported wholly or in part by the state
or federal funds who has not obtained a certificate of
qualification for the position as provided for by section
3319.22 of the Revised Code and which certificate shall further
certify to the good moral character of the holder thereof.
***" The board admitted that thirteen of the fourteen
appellants held valid teaching certificates during the relevant
school years.
The board contends that Judith J. Pryor, an ESL tutor, is
not entitled to any back pay because her teaching certificate
does not include certification for teaching English to speakers
of other languages. The board relies on Ohio Adm. Code Section
3301-23-21, which states in pertinent part:
"*** [T]eaching validations may be approved for grade
levels set forth in rules 3301-23-01 to 3301-23-07 of the
Administrative Code and for the following:
"***
"(F) Teaching English to speakers of other languages
***." (Emphasis added.)
However, R.C. 3319.30 requires only a "certificate of
qualification for the position as provided for by section
3319.22 of the Revised Code" and a certification of the "good
moral character of the holder" in order to avoid denial of
compensation. See, generally, Whitley v. Canton City School
Dist. Bd. of Edn. (1988), 38 Ohio St.3d 300, 528 N.E.2d 167.
R.C. 3319.22 provides that teachers' certificates may be issued
in several different types, including:
"(B) Elementary, valid for teaching in grades one to eight;
"(C) Middle grades, valid for teaching the subjects named
in such certificate in grades four to nine;
"(D) High school, valid for teaching the subjects named in
such certificate in grades seven to twelve[.]"
While the board contended below that appellant Pryor never
held any valid teaching certificate for the 1989-1990 school
year, it now concedes that the evidence established that she
did possess a teaching certificate. The uncontroverted
evidence shows that appellant Pryor held an elementary teaching
certificate, valid for teaching in grades one through eight
during the relevant period. The certificate contained the
additional certification that she was of good moral character
and that she had satisfactorily completed the minimum

requirements prescribed by the State Board of Education.
Since appellant Pryor was properly certified under R.C.
3319.22(B), her elementary teaching certificate, unlike those
for middle grades or high school as specified in R.C.
3319.22(C) and (D), was valid for teaching in grades one
through eight without limitation as to subject matter. See,
e.g., Fisler v. Mayfield City School Dist. Bd. of Edn. (Oct.
31, 1985), Cuyahoga App. No. 49548, unreported. The board did
not present any competent factual evidence to rebut appellants'
evidence that Pryor was properly certified under R.C.
3319.22(B), e.g., there was no evidence that appellant Pryor
taught in other grades besides one through eight during the
pertinent school year. Further, the board's summary contention
on appeal is limited to Ohio Adm. Code 3301-23-21(F)'s
validation procedure, and does not mention R.C. 3319.22(B)'s
provision for elementary certification, which allows the holder
to teach in the stated grades without requiring additional
certification in specific subjects. Under these circumstances,
appellant Pryor was properly certified in order to entitle her
to be compensated as an ESL tutor. Therefore, all appellants
were "teachers" for purposes of R.C. 3317.13 and 3317.14 and
were not barred by R.C. 3319.30 from compensation for their
duties as tutors.
"Generally, an hourly rate [for tutors] which is agreed
upon in collective bargaining, and incorporated in the
collective bargaining agreement, may be less than the rate of
compensation provided by the salary schedule. If, however,
there is no separate pay rate for tutors set forth in the
agreement, or if the tutors in question are not members of the
bargaining unit, the tutors are subject to [Brown] and must be
paid 'in accordance with' the [board's duly adopted teachers'
salary] schedule." 1 Baker, Ohio School Law (1993) 334,
Section 7.44.1; see, also, Brown and Tavenner, supra. Since
appellants were not members of the collective bargaining unit
nor covered by the agreements when they were employed as LD and
ESL tutors, they must be paid in accordance with the board's
teachers' salary schedules for the subject school years. The
board asserts that since the teachers' salary schedules were
adopted as a result of collective bargaining rather than under
R.C. 3317.14, appellants are not entitled to the difference
between what they would have earned under the agreements and
what they were paid as tutors, but are entitled, at most, only
to the difference between the R.C. 3317.13(C) minimum teachers'
salary schedule amounts and the sums they were paid.
R.C. 3317.14 states:
"Any board of education participating in funds distributed
under Chapter 3317. of the Revised Code shall annually adopt a
teachers' salary schedule with provision for increments based
upon training and years of service. ***
"On the fifteenth day of October of each year the salary
schedule in effect on that date in each school district shall
be filed with the superintendent of public instruction. A copy
of such schedule shall also annually be filed by the board of
education of each local school district with the county
superintendent of schools, who thereupon shall certify to the
treasurer of such local district the correct salary to be paid
to each teacher in accordance with the adopted schedule."

The board participated in funds distributed under R.C.
Chapter 3317, the school foundation program, since it admitted
that during the school years at issue, R.C. Chapter 3317 funds
were paid on its behalf by the Ohio Department of Education to
STRS. The teachers' salary schedules adopted by the board and
incorporated in the collective bargaining agreements were the
only schedules containing provisions for "increments based upon
training and years of service" as required by R.C. 3317.14.
Although the board indicated it did not know if the schedules
were filed with the Superintendent of Public Instruction as
also required by R.C. 3317.14, they were filed with the
Department of Education.
The foregoing evidence establishes that the teachers'
salary schedules contained in the collective bargaining
agreements were filed and adopted in substantial compliance
with R.C. 3317.14. Therefore, appellants possessed a statutory
right to be paid in accordance with those schedules during
school years 1986-1987 through 1990-1991. The fact that the
schedules were also contained in the collective bargaining
agreements from which appellants were excluded does not vitiate
this result, since appellants' claim is premised on R.C.
3317.14 rather than the agreements. Appellants thus have a
clear legal right to the difference between the amounts they
were paid as tutors and the amounts they should have been paid
under the board's duly adopted teachers' salary schedule. The
board has a corresponding legal duty to pay this compensation.
The board contends that even if the court of appeals'
rationale was erroneous, its judgment denying appellants'
complaint for a writ of mandamus was proper because appellants
had various adequate remedies at law. A writ of mandamus will
not be issued when there is a plain and adequate remedy in the
ordinary course of the law. R.C. 2731.05. In order for an
alternate remedy to be considered adequate, the remedy must be
complete, beneficial, and speedy. See, e.g., State ex rel.
Horwitz v. Cuyahoga Cty. Court of Common Pleas, Probate Div.
(1992), 65 Ohio St.3d 323, 328, 603 N.E.2d 1005, 1009. The
board claims that appellants had several adequate remedies,
including a complaint to the superintendent under R.C.
3317.13(B), declaratory judgment, a contest to their exclusion
from the bargaining unit, and the grievance and arbitration
procedure set forth in the collective bargaining agreements.
R.C. 3317.13(B) provides in part:
"Upon written complaint to the superintendent of public
instruction that the board of education of a district has
failed or refused to annually adopt a salary schedule or to pay
salaries in accordance with the salary schedule set forth in
division (C) of this section, the superintendent of public
instruction shall cause to be made an immediate investigation
of such complaint. If the superintendent finds that the
conditions complained of exist, he shall order the board to
correct such conditions within ten days from the date of the
finding. No moneys shall be distributed to the district under
this chapter until the superintendent has satisfactory evidence
of the board of education's full compliance with such order."
In State ex rel. Tavenner v. Indian Lake Local School
Dist. Bd. of Edn. (May 16, 1990), Logan App. No. 8-90-3,
unreported, affirmed in part and reversed in part on other

grounds in Tavenner, supra, 62 Ohio St.3d 88, 578 N.E.2d 464,
the appellate court rejected a similar argument:
"In this regard, we note that R.C. 3317.13(B) provides
only for an investigation of either (1) a failure or refusal to
adopt an annual salary schedule or (2) a failure to pay
salaries in accordance with the state minimum salary schedule.
However, the instant claim does not concern either subject
contained in R.C. 3317.13(B). Instead, we are concerned with
respondents' failure to pay relator in accordance with the
district's adopted Teachers' Salary Schedule. Therefore we do
not find the statute to provide a plain and adequate remedy at
law. "
Similarly, neither declaratory judgment nor the right to
contest the bargaining unit is an adequate legal remedy. A
declaratory judgment would not provide back pay and would not
be complete without a mandatory injunction. See, e.g., State
ex rel. Kmart Corp. v. Westlake Planning Comm. (1994), 68 Ohio
St.3d 151, 158, 624 N.E.2d 714, 720; State ex rel. Fenske v.
McGovern (1984), 11 Ohio St.3d 129, 11 OBR 426, 464 N.E.2d 525,
paragraph two of the syllabus. A contest to the composition of
the bargaining unit would not have necessarily resulted in
"complete relief," since the tutors would not then have to be
compensated pursuant to the same salary schedule, and
appellants' claims for relief arose subsequent to the 1985
certification of the bargaining unit. It is well settled that
a claim by a public employee of entitlement to wages or
benefits which are granted by statute is actionable in
mandamus. State ex rel. Madden v. Windham Exempted Village
School Dist. Bd. of Edn. (1989), 42 Ohio St.3d 86, 88, 537
N.E.2d 646, 647; State ex rel. Gingrich v. Fairfield City
School Dist. Bd. of Edn. (1985), 18 Ohio St.3d 244, 245, 18 OBR
300, 301, 480 N.E.2d 485, 486.
Appellants' complaint also contained a claim by appellants
Duncan, Eyre, Ford, and Weethee for payments of additional
amounts they would have received if the board had credited
their years of service as tutors in computing their salaries as
teachers under the collective bargaining agreement. These
appellants were covered under the collective bargaining
agreements and were paid amounts provided in the teachers'
salary schedules. They filed a grievance concerning the matter
and it was set for arbitration. The grievance and arbitration
procedures were complete, beneficial, and speedy as to this
claim. "[A] reviewing court is not authorized to reverse a
correct judgment merely because erroneous reasons were assigned
as a basis thereof." Cassels, supra, 69 Ohio St.3d at 222, 631
N.E.2d at 154. Accordingly, the court of appeals did not err
in granting the board's motion for summary judgment and denying
a writ of mandamus as to appellants Duncan, Eyre, Ford, and
Weethee's claims regarding their teachers' salaries.
Finally, the board asserts that the court of appeals
properly denied appellants' request for mandamus relief because
of equitable estoppel, laches, and waiver. Equitable estoppel
prevents relief when one party induces another to believe
certain facts exist and the other party changes his position in
reasonable reliance on those facts to his detriment. Madden,
supra, 42 Ohio St.3d at 90, 537 N.E.2d at 649. The doctrine of
equitable estoppel generally requires actual or constructive

fraud. State ex rel. Richard v. Bd. of Trustees of Police &
Firemen's Disability & Pension Fund (1994), 69 Ohio St.3d 409,
414, 632 N.E.2d 1292, 1296. Contrary to the argument of the
board, there is no evidence that appellants, either
intentionally or through culpable negligence, misled the board
by continuing to accept tutors' compensation following this
court's December 1988 decision in Brown. Appellants'
affidavits indicated that they were unaware of their rights
under Brown and Tavenner prior to their inclusion in the
bargaining unit for the 1991-1992 school year, and never made
any misrepresentations to the board. The board's estoppel
defense lacks merit.
"The elements of a laches defense are (1) unreasonable
delay or lapse of time in asserting a right, (2) absence of an
excuse for such delay, (3) knowledge, actual or constructive,
of the injury or wrong, and (4) prejudice to the other party."
State ex rel. Cater v. N. Olmsted (1994), 69 Ohio St.3d 315,
325, 631 N.E.2d 1048, 1056. There is no evidence that the
board's ability to defend against appellants' mandamus suit was
prejudiced by the delay. Prejudice will not be inferred from a
mere lapse of time. Madden, supra, 42 Ohio St.3d at 91, 537
N.E.2d at 650.
The board's waiver argument is also meritless. Waiver is
a voluntary relinquishment of a known right. Id. at 89, 537
N.E.2d at 648. Brown rejected a similar argument that
acceptance and performance of a tutorial service limited
contract waived a right to a continuing contract. Id., 40 Ohio
St.3d at 27, 531 N.E.2d at 1303. Subsequent appellate court
opinions have also rejected waiver defenses in tutor back pay
cases. State ex rel. Fink v. Grandview Hts. City School Dist.
Bd. of Edn. (May 12, 1994), Franklin App. No. 93APE10-1462,
unreported; Cuyahoga Falls Edn. Assn. v. Cuyahoga Falls City
School Dist. Bd. of Edn. (Nov. 20, 1991), Summit App. No.
14962, unreported.
Accordingly, the court of appeals erred in failing to
grant appellants a writ of mandamus compelling the board to pay
them the difference between their pay as tutors and the pay set
forth in the collective bargaining agreements' teachers' salary
schedules for the period from 1986-1987 through 1990-1991.
Since the damage and other issues, e.g., interest, have not yet
been resolved, the court of appeals must address these issues
on remand. The summary judgment and denial of mandamus relief
are affirmed as to appellants Duncan, Eyre, Ford, and Weethee's
claim for increased compensation during the years they were
covered by the collective bargaining agreements.
Judgment affirmed in part,
reversed in part
and cause remanded.
Moyer, C.J., A.W. Sweeney, Wright, Resnick and F.E.
Sweeney, JJ., concur.
Douglas, J., concurs in judgment only.
Pfeifer, J., dissents and would affirm in toto.