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4 of 98 DOCUMENTS
MILLER, APPELLEE, v. WAYNE COUNTY JOINT VOCATIONAL SCHOOL
DISTRICT BOARD OF EDUCATION, APPELLANT
No. 1641
Court of Appeals of Ohio, Ninth Appellate District, Wayne County
69 Ohio App. 2d 66; 430 N.E.2d 475; 1980 Ohio App. LEXIS 9686; 23 Ohio Op. 3d
70

July 16, 1980, Decided


SUBSEQUENT HISTORY: [***1] Reporter's Note:
A motion to certify the record was overruled by the
Supreme Court of Ohio, November 7, 1980.
PRIOR HISTORY:
Wayne County.

APPEAL: Court of Appeals for

DISPOSITION: Judgment reversed.


CASE SUMMARY:
PROCEDURAL POSTURE: Appellant school board
sought review of a judgment of the Court of Common
Pleas of Wayne County (Ohio), which required it to hire
appellee teacher on a continuing contract with back pay,
even though the board did not vote by a three-fourths
majority to rehire him over a superintendent's
recommendation that he not be rehired.
OVERVIEW: The teacher taught English for three
years. The superintendent recommended to the school
board that the teacher's contract not be renewed. The
school board took two votes as a result of the
superintendent's recommendation. A motion to "accept"
the recommendation was defeated, and a motion to
override the recommendation was also defeated. The
school board notified the teacher of its decision not to
reemploy him. The teacher contended that the school

board failed to follow proper procedures under Ohio Rev.


Code Ann. 3319.11 and that the nonrenewal constituted
punishment for exercise of his First Amendment rights.
The trial court entered summary judgment in favor of the
teacher. On appeal, the court rejected the teacher's
contention that because the school board had failed to
accept the superintendent's recommendation by a
majority of its nine members, his right to reemployment
under 3319.11 was not extinguished. Because only four
out of the nine members voted to reemploy the teacher,
the
force
of
the
superintendent's
negative
recommendation was not overcome and the contract was
properly not renewed under Ohio Rev. Code Ann.
3319.07.
OUTCOME: The court reversed and remanded the
judgment of the trial court.
LexisNexis(R) Headnotes

Education Law > Administration & Operation > Boards


of Elementary & Secondary Schools > Authority
Governments > Local Governments > Employees &
Officials
[HN1] Ohio Rev. Code Ann. 3319.11 provides the
following with respect to those teachers who are eligible

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69 Ohio App. 2d 66, *; 430 N.E.2d 475, **;
1980 Ohio App. LEXIS 9686, ***1; 23 Ohio Op. 3d 70
for
continuing
service
contracts:
Upon
the
recommendation of the superintendent that a teacher
eligible for continuing service status be re-employed, a
continuing contract shall be entered into between the
board and such teacher unless the board by a
three-fourths vote of its full membership rejects the
recommendation of the superintendent. Effective October
17, 1961, 3319.11 was amended, 129 Ohio Laws
1207-1208, to reflect the following: The failure of a
superintendent of schools to make a recommendation to
the board of education under any of the conditions set
forth in this section shall not prejudice or prevent a
teacher from being deemed re-employed under either a
limited or continuing contract as the case may be under
the provisions of this section. The effect of this
amendment is to nullify the requirement that a teacher
must be recommended by the superintendent to continue
his employment.
Education Law > Administration & Operation > Boards
of Elementary & Secondary Schools > Authority
Governments > Local Governments > Employees &
Officials
[HN2] Ohio Rev. Code Ann. 3319.07 provides in part:
In city and exempted village districts, no teacher or
principal shall be employed unless such person is
nominated by the superintendent of schools of such
district. Such board of education, by a three-fourths vote
of its full membership may re-employ any teacher whom
the superintendent refuses to appoint.
Education Law > Administration & Operation > Boards
of Elementary & Secondary Schools > Authority
Governments > Local Governments > Employees &
Officials
Governments > State & Territorial Governments >
Elections
[HN3] Ohio Rev. Code Ann. 3319.07 provides that
three-fourths of the board may vote to reemploy a teacher
whom the superintendent refuses to appoint. Ohio Rev.
Code Ann. 3319.11 provides that three-fourths of the
board may vote not to reemploy a teacher whom the
superintendent recommends for reemployment.
Education Law > Administration & Operation > Boards
of Elementary & Secondary Schools > Authority
Governments > Local Governments > Employees &
Officials

[HN4] In order to reemploy a teacher whom the


superintendent recommends not be reemployed, the board
must muster a three-fourths vote in favor of
reemployment.
Education Law > Administration & Operation > Boards
of Elementary & Secondary Schools > Authority
Governments > Local Governments > Employees &
Officials
[HN5] Under Ohio Rev. Code Ann. 3319.11, a board
has two options with reference to rehiring a teacher
eligible for a continuing service contract. It can issue
such a contract, or it can rehire the teacher under a
limited contract, for no more than two years.
HEADNOTES
Schools -- Teachers -- Superintendent recommends
that contract of teacher eligible for continuing service
status not be renewed -- R. C. 3319.07, rather than R. C.
3319.11, provides the procedure for board of education
to follow.
SYLLABUS
Where the superintendent of schools recommends to
the school board that the contract of a teacher, who was
eligible for continuing service status pursuant to R. C.
3319.11, not be renewed, and where the school board is
unable to override the recommendation of the
superintendent, R. C. 3319.07, rather than R. C. 3319.11,
governs the situation so that notification by the school
board to the teacher by April 30th of its intention not to
renew his contract is valid.
COUNSEL: Green, Schiavoni, Murphy, Haines &
Sgambati Co., L.P.A., and Mr. Ronald G. Macala, for
appellee.
Messrs. Logee, Hostetler, Stutzman & Broehl, Mr. F.
Emerson Logee and Mr. Mark W. Baserman, for
appellant.
JUDGES: MAHONEY, J. VICTOR, P.J., and
HUNSICKER, J., concur. HUNSICKER, [***2] J.,
retired, of the Ninth Appellate District, was assigned to
active duty under authority of Section 6(C), Article IV,
Constitution.
OPINION BY: MAHONEY

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69 Ohio App. 2d 66, *; 430 N.E.2d 475, **;
1980 Ohio App. LEXIS 9686, ***2; 23 Ohio Op. 3d 70
OPINION
[*66] [**476] The school board appeals the trial
court's summary judgment order requiring it to hire
plaintiff-appellee, Barry Miller, on a continuing contract
with back pay, even though the board did not vote by a
three-fourths majority to rehire him over the
superintendent's recommendation that he not be rehired.
We reverse.
Facts
Miller taught English for the Wayne County Joint
Vocational School District Board of Education, appellant
here, for three years. On April 23, 1979, the
superintendent of schools recommended to the school
board that Miller's contract not be renewed. The board
took two votes as a result of the superintendent's negative
recommendation. A motion to "accept" [*67] the
recommendation was defeated by a vote of four-to-four.
A motion to override the recommendation was also
defeated by a vote of four-to-four. On April 24, 1979, the
board notified Miller of its decision not to reemploy him.
In his complaint, Miller alleged two claims. First, he
alleged that appellant failed to follow [***3] proper
procedures under R. C. 3319.11 in attempting to not
renew his contract. Secondly, he alleged that the
nonrenewal constituted punishment for the exercise of his
First and Fourteenth Amendment rights.
Discussion
Assignment of Error No. I
"The trial court erred in awarding appellee summary
judgment."
Miller, having taught three of the previous five years
in the district, was eligible for continuing service status
pursuant to R. C. 3319.11. [HN1] That statute also
provides the following with respect to those teachers who
are eligible for continuing service contracts:
"Upon the recommendation of the superintendent
that a teacher eligible for continuing service status be
re-employed, a continuing contract shall be entered into
between the board and such teacher unless the board by a
three-fourths vote of its full membership rejects the
recommendation of the superintendent. * * *"
Effective October 17, 1961, R. C. 3319.11 was

amended (see 129 Ohio Laws 1207-1208) to reflect the


following:
"The failure of a superintendent of schools to make a
recommendation to the board of education under any of
the conditions set forth in this section, * * * shall not
prejudice or [***4] prevent a teacher from being deemed
re-employed under either a limited or continuing contract
as the case may be under the provisions of this section."
The effect of this amendment was to nullify the
requirement that a teacher must be recommended by the
superintendent to continue his employment.
Miller insists that R. C. 3319.11 applies to his
situation. He alleges that, since the board failed to accept
the superintendent's negative motion by a majority of its
nine members, i.e., by five votes, his right to
reemployment under R. C. 3319.11 [*68] was not
extinguished. Finding no mention at all in R. C. 3319.11
of the proper procedure to be followed when a
superintendent recommends that a teacher not be
reemployed, we reject Miller's contention.
R. C. 3319.07 provides, in part, that:
"* * * [HN2] In city and exempted village districts
no teacher or principal shall be employed unless such
person is nominated by the superintendent of schools of
such district. Such board of education, by a three-fourths
[**477] vote of its full membership may re-employ any
teacher whom the superintendent refuses to appoint. * *
*"
In Justus v.. Brown (1975), 42 Ohio St. 2d 53,
[***5] the court analyzed the interplay of R. C. 3319.07
and 3319.11. R. C. 3319.07 [HN3] provides that
three-fourths of the board may vote to reemploy a teacher
whom the superintendent refuses to appoint. R. C.
3319.11 provides that three-fourths of the board may vote
not to reemploy a teacher whom the superintendent
recommends for reemployment.
We analogize the situation where a superintendent
refuses to appoint under R. C. 3319.07 with the situation
presented here, where the superintendent actually
recommends that a teacher not be rehired. Thus, [HN4] in
order to reemploy a teacher whom the superintendent
recommends not be reemployed, the board must muster a
three-fourths vote in favor of reemployment. Here, only
four out of nine members voted to reemploy Miller.

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69 Ohio App. 2d 66, *68; 430 N.E.2d 475, **477;
1980 Ohio App. LEXIS 9686, ***5; 23 Ohio Op. 3d 70
Therefore, the force of the superintendent's negative
recommendation was not overcome, and Miller's contract
was properly not renewed under R. C. 3319.07.
Assignment of Error No. II
"The trial court was without authority to order the
employment of appellee under a continuing contract and
to award back pay."
Upon granting summary judgment for Miller, the
trial court issued an entry reinstating him under a limited
contract. [***6] However, the judge then issued a
second judgment entry, nunc pro tunc, which corrected
the former entry and ordered Miller reinstated under a
continuing contract with full back pay. Appellant alleges
that if Miller should have been reinstated, he should have
been reinstated under a limited contract, if at all. We
agree.
[*69] [HN5] Under R. C. 3319.11, a board has two
options with reference to rehiring a teacher eligible for a
continuing service contract. It can issue such a contract,
or it can rehire the teacher under a limited contract, for no
more than two years. See State, ex rel. Hura, v.. Bd. of
Edn. (1977), 51 Ohio St. 2d 19, 21-22; State, ex rel.
Farley, v.. Bd. of Edn. (1959), 169 Ohio St. 388, 391-92.
Here, the board did not comply with the letter of R.
C. 3319.11 because it failed to notify Miller by April
30th that it intended to reappoint him to a limited
contract. However, it did inform Miller by April 30th of
its intention not to reemploy him at all. This timely
notice substantially complied with R. C. 3319.11.
"* * * Thus, having chosen not to re-employ * * *
[Miller], the board took effective action preventing * * *
[Miller] from [***7] automatically being deemed
re-employed under a continuing contract pursuant to R.

C. 3319.11." State, ex rel. Hura, v.. Bd. of Edn., supra, at


22.
Thus, had we found that the board failed to employ
proper procedures in not renewing Miller's contract, a
limited contract, not a continuing contract, would have
been the appropriate relief. To force the board to hire a
teacher on a continuing contract under these
circumstances would be to deprive the school board of
the ability to hire experienced and qualified teachers and
to impair its flexibility to cope with the ever-changing
economic and social conditions of the school district.
State, ex rel. Hura, v.. Bd. of Edn., supra, at 24.
Thus, had the board erred in not renewing Miller's
contract, we would have found that Miller was entitled to
a one-year limited contract for the 1979-80 school year;
and, Miller would have been entitled to pay for that year,
less mitigated damages. 35 Ohio Jurisprudence 2d,
Master and Servant, Section 51.
Summary
We find that the board followed proper procedures in
not renewing Miller's teaching contract. We reverse the
judgment of the Court of Common Pleas of Wayne
County and [***8] remand this cause for further
proceedings according to law.
The judgment is reversed.
Judgment reversed.
[**478] VICTOR, P.J., and HUNSICKER, J.,
concur.
HUNSICKER, J., retired, of the Ninth Appellate
District, was assigned to active duty under authority of
Section 6(C), Article IV, Constitution.