Summary
In Hardesty, the River View Local School District Board of Education suspended students who allegedly received food items from the school cafeteria without paying sufficient compensation for them.
Summary of this case from Brenneman v. Allen Cnty. Comm'rsOpinion
No. 93-CI-51.
Decided May 10, 1993.
Philip S. Phillips, for appellants.
R. Brent Minney, for appellee.
This matter is before the court on an administrative appeal brought pursuant to R.C. Chapter 2506. The appeal challenges the February 8, 1993 decision of the River View Local School District Board of Education, which decision affirmed disciplinary suspension of students Aden Hardesty, Kristopher Davis, and Kade Kempf. Appellants, who were not student cashiers, were each alleged to have received food items from the school cafeteria without giving adequate compensation therefor.
The court has considered the record of the board of education proceedings, the additional evidence presented at the court hearing on March 15, 1993, and the transcripts of depositions previously taken of members of the board of education. The court has not considered Exhibit B, which was attached to appellants' brief filed April 14, 1993, which consists of policy statements of the River View Local School District Board of Education. Such exhibits were not properly made a part of the record of this case. Appellee's motion to strike Exhibit B is denied as moot, because the court has not considered that portion of appellants' brief.
Central to decision of this matter is this court's deep respect for the delicate balance which must be maintained between local control of a public school district by the elected board of education and the protection of the statutory and constitutional rights of the students. Whether this court finds the actions of the board of education to be wise, compassionate, or even prudent is not the issue. This court may alter the board's decision only if the court finds that that decision is unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable, and probative evidence on the whole record. See R.C. 2506.04 and Reed v. Vermilion Local School Dist. (1992), 83 Ohio App.3d 323, 614 N.E.2d 1101.
In appellants' first assignment of error, they assert that the affirming by the board of education of their suspensions involved a denial of due process, both procedural and substantive. On this point, the court cannot agree. The standards for such review were set forth in Goss v. Lopez (1975), 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725, by the Supreme Court of the United States. Such guarantees in the area of suspension are now codified in R.C. Chapter 3313. See R.C. 3313.66 and 3313.661. This court finds that these appellants were adequately made aware of the charges against them and were given sufficient opportunity to respond in a manner which would comply with Goss v. Lopez.
Neither does the court find persuasive appellants' argument that the River View Student Handbook does not authorize suspension for behavior of the type exhibited in this case because that code contains an exhortation to use the severe sanction of suspension "generally after other alternate strategies have failed or when students' actions, by their nature, warrant formal proceedings including suspension or expulsion." See Student Handbook, at 14. When the Student Handbook is considered as a whole, it is clear that the use of suspension in a matter of this type lies within the sound discretion of the board. Having found that suspension is so authorized, it is not for this court to judge whether suspension in these cases is or is not too severe, even for students who are "academic achievers" as appellants are characterized in their brief. In light especially of the various admissions by the appellants-students over the course of this matter, suspensions for each would appear both reasonable and supported by the record.
Thus, the record of this case establishes to the court's satisfaction and the court finds that the suspensions of the appellants are supported by a preponderance of substantial, reliable, and probative evidence, and are neither unconstitutional, arbitrary, capricious, nor unreasonable, as those terms are used in R.C. 2506.04. The remaining issue for the court to decide then is whether the actions of the appellee board were "illegal."
In this regard, appellants argue that the actions of the board should be reversed or vacated because the board's approvals of the suspensions were the result of at least one illegal executive session held prior to the public hearings and that the approvals were voted in violation of R.C. 121.22, "The Ohio Sunshine Act," which generally requires that all meetings of public bodies including boards of education be open. On this point, the depositions taken of board members, which depositions constitute part of the record of this case, establish that the appellee board did meet in executive session on December 14, 1992, for the purpose of "personnel evaluations" and again on January 11, 1993, in executive session, for purposes of "personnel agenda items." It is also clear from the depositions that at these executive sessions and despite the "sole purpose" requirement of R.C. 121.22(G), board members and school administrators also discussed the "cafeteria problem," discussed proposed disciplines, and discussed the general progress of the investigation — albeit without reference to any specific student. Under the circumstances under which these executive sessions were called, any discussion of the "cafeteria problem" was improper and in violation of R.C. 121.22.
In making the finding, this court should bear in mind the preamble stated in R.C. 121.22, which preamble must be noted by all governmental bodies charged with conducting the public's business and by all courts reviewing those actions, to wit:
"This section shall be liberally construed to require public officials to take official action and to conduct all deliberations upon official business only in open meetings, unless the subject matter is specifically exempted by law." R.C. 121.22(A).
Some exemptions are created by Division (G) of R.C. 121.22, which provides that members of a public body may hold an executive session, but may do so only after a majority of a quorum of the public body determines by roll call vote to hold such session and "only at a regular or special session for the sole purpose of consideration of any of the following matters[.]" (Emphasis added.)
It should be noted that in this case appellants made no request for executive session consideration of their cases by the board under R.C. 3313.66, and, in fact, at the January 25, 1993 board meeting, actively stated their opposition to any such consideration. None of the exemptions listed in R.C. 121.22(G) applies here.
Division (H) of R.C. 121.22 states that any formal action adopted in an open meeting that "results from" deliberations in a meeting not open to the public is invalid unless exempted under Division (G). This invalidation is obviously a severe sanction. However, that severity is apparently the conscious result of a legislative decision made by a General Assembly which was determined to ensure that the openness component of Ohio's open meeting law could not be defeated by a combination of executive session digression and public meeting ratification.
Appellee board argues that this court is without jurisdiction to consider the effect of R.C. 121.22 in this administrative appeal, reasoning that R.C. 121.22(I) authorizes the bringing of an action to enforce provisions of this section and appellants in this case have brought only an R.C. Chapter 2506 appeal. This argument is unconvincing and appellee has provided to the court no authority for the principle that the injunction proceedings set forth in R.C. 121.22 are the exclusive remedy for a person adversely affected by an "invalid" act of a governmental body. R.C. 2506.04 clearly authorizes the court, "consistent with its findings," to vacate the order of the appellee board. It is the opinion of this court that in the course of an R.C. 2506.04 administrative appeal, an action found to be "invalid" under R.C. 121.22 can also, under appropriate factual circumstances, be found to be "illegal" under R.C. 2506.04, and this court so holds.
Here, the facts require such a finding. Under the clear language of R.C. 121.22(H), it is of no consequence that the final action was taken in an open meeting if that action "results from deliberations in a meeting not open to the public" unless the executive session exemption applies.
The board argues unconvincingly that the actions taken at the open board meetings did not flow from or result from deliberations held in any executive session called to discuss matters other than the "cafeteria problem." However, deposition testimony of board members reveals, without contravention, that in executive session and well before the February 8, 1993 meeting, at least the following took place before the appellee board in connection with the "cafeteria problem":
1. The superintendent indicated to board members that he had "a student discipline situation that was happening at the high school";
2. A report on the disciplinary proceedings was given "primarily" by the superintendent but also with some comment by the assistant principal, comments made "in regard to questions";
3. The superintendent indicated it was important for the board to "be — just be aware of the situation";
4. The superintendent did a "brief information thing for the board";
5. The assistant principal "did answer a couple of questions";
6. Among the items discussed was "a discipline situation for specific students regarding a number of specific (but unnamed) students";
7. A "possible discipline scenario for other (than the cashiers) students involved" was discussed;
8. The superintendent indicated that the administration was "considering two-, three-, and five-day suspension scenarios for students who were involved in this situation but had not been cashiers";
9. "[I]ndividual board members might have made some comment to indicate their approval or disapproval (of such scenario), but the board did not give approval";
10. That the assistant principal reported that the administration had tried "to find as much collaborating [ sic] evidence as they could in making these evaluations and that they tried not to pit one student against another student one on one anymore than they possibly had to"; and
11. At least one board member "was of the opinion" that the length of any suspension "was basically left in (the principal's) hands to affirm suspensions as he seen [ sic] fit."
Some evidence was presented showing that the "general subject matter" discussed in executive session as included in later board minutes pursuant to the requirement of R.C. 121.22(C) did not mention the "cafeteria problem."
On such a record, this court is compelled to conclude that the actions taken by the appellee River View Local School District Board of Education at its meeting held on February 8, 1993, which actions consisted simply of roll call votes affirming the suspensions of appellants Kristopher Davis, Aden Hardesty, and Kade Kempf are "invalid" under R.C. 121.22 and "illegal" under R.C. 2506.04. The board's resolutions affirming the suspensions of each of these three appellants are therefore VACATED and the suspensions must be deemed not to have been approved by the board. Because the suspensions were appealed and were not affirmed, they are of no effect and may not be imposed.
The costs of this action, including the costs of the transcript filed pursuant to R.C. 2506.02, are assessed to the appellee. Appellants' bond is released.
Judgment accordingly.