Opinion
No. 79155
Decided October 3, 1969.
Civil Rights Commission — Attorney General its legal representative — Investigation on complaint — Section 4112.05 (B), Revised Code — "Conference, conciliation and persuasion" construed — "Civil rights" defined — "Civil liberties" defined — Civil Rights Act — Balance between civil rights and civil liberties — Who may file charges — Board of education hiring superintendent — Member of board not "employer" — Section 4112.01 (B), Revised Code — Appointment of superintendent of schools — Section 3319.01, Revised Code — Limited to person having required qualifications — "Deciding vote" construed — Discriminatory practice — Substantial evidence — Fair Employment Act — Constitutionality — Police power to protect public welfare — Order of commission violation of constitutional civil liberties, when.
1. The Attorney General, by virtue of the provisions of Sections 109.02 and 4112.05(B), Revised Code, being chief law officer for the state of Ohio and for all its departments, is the legal representative of the defendant, Ohio Civil Rights Commission, not only on the commission hearing level, but with respect to all other legal matters as well.
2. The words, "conference, conciliation and persuasion," as used in Section 4112.05(B), Revised Code, are limited to conscientious efforts on the part of the defendant-commission to resolve a dispute and, as such, are not to be tainted by threat, coercion or undue pressure exerted to effect a settlement.
3. Civil rights, within the meaning of Sections 4112.01 to 4112.08, inclusive, and 4112.99, Revised Code, are economic rights, functioning as legally enforceable claims which are structured in legislation.
4. Civil liberties are natural rights which appertain originally and essentially to each person as a human being and are inherent in his nature; such rights, which are constitutionally protected, are not actually rights but are immunities, or restraints on government.
5. The Ohio General Assembly, by legislative enactment of the Ohio Civil Rights Act, effective July 27, 1959, gave to those persons whose civil rights were violated, a legally enforceable claim against the violator; this enactment, however, was not expressive of legislative intent to interfere with the preservation of the constitutional assurances that prevent governmental encroachments; and it is this balance between civil rights as claims, and civil liberties as immunities, that the courts must weigh carefully and judiciously in all controversies such as the case at bar.
6. The language of Section 4112.01 et seq., Revised Code, makes it clear that any person may file charges with the Ohio Civil Rights Commission, provided they are in writing and under oath; there is no requirement that actions can be commenced only by the aggrieved party.
7. A board of education of a school district being constituted a body politic and corporate, a member thereof, in voting on the hiring of a school superintendent is acting in his official capacity as a member of the board of a corporate entity and, as such, he is not individually an "employer" within the meaning of Section 4112.01(B), Revised Code.
8. An unconditional offer of a position requires only an acceptance to make it a binding contract — thus the "appointment," as referred to in Section 3319.01, Revised Code, would be contingent only upon the acceptance of the offeree, regardless of the fact as to whether he possessed the proper type of superintendent certificate; such a unilateral contingency was not contemplated by the Legislature in its enactment of this statute; on the contrary, the aforesaid language imposes upon a board of education an absolute prohibition from offering one, not possessed of the proper certificate, the position of superintendent.
9. Had respondent-plaintiff abstained from voting at the board meeting of January 11, 1967, the result would have been a tie and the motion would have failed for want of a majority vote; the respondent-plaintiff could have cast the "deciding vote" only had he voted for the motion to hire Dr. Tobasco; since he did not, it cannot now be said that his vote was the deciding one.
10. From the facts of this case, the history of bickering and dispute within the membership of the board, along with the further fact that from the evidence adduced reasonable minds could conclude that the minority members of the board (being so insistent that Dr. Tobasco be hired as superintendent, with or without qualifications) were engaging in a discriminatory practice by so favoring Dr. Tobasco; it is therefore the judgment of this court that the evidence does not support the defendant-commission's finding of fact and conclusion of law with respect to the respondent-plaintiff to the extent that it is reliable, probative and substantial within the meaning of the statute.
11. State fair employment acts do not force an employer to hire employees because they belong to a particular minority group; such laws merely demand that the same employment criteria be applied to all persons regardless of race, color, religion, national origin or ancestry; and these state laws are considered valid as a reasonable exercise of the police power, which is sufficient to make them constitutional as against claims of deprivation of liberty of contract and freedom of association; however, only a reasonable exercise of police power to protect public welfare, health, and peace will be sustained; thus, the determinative question is: does the Ohio Fair Employment Act come within the purview of providing for public welfare; since Section 4112.01 et seq., do come within the purview of providing for the public welfare there is no doubt as to the constitutionality, it is only abuse of the authority therein granted that is of concern in the instant case.
12. Keeping in mind the distinction between civil rights as claims structured in legislation, and civil liberties as immunities constitutionally protected, and the balance that is to be maintained between them, an order issued by the Ohio Civil Rights Commission to a member of a school board, individually, directing him to cease and desist from all practices designed to deny employment because of race, religion, etc.; and to abstain from taking part in voting or other activities related to employment, said order being based on a finding of fact that the respondent board member voted against the hiring of a superintendent because of religious discrimination, such finding not being supported by reliable, probative and substantial evidence, is a violation of respondent's constitutional civil liberties of freedom of speech and freedom of religion.
Mr. Richard de Nobel, for respondent-plaintiff.
Mr. Paul W. Brown, attorney general, and Mr. William H. Grubbs, for defendant Ohio Civil Rights Commission.
Mr. David Griffith, prosecuting attorney, and Mr. Raymond E. Schryver, for Newton Falls Board of Education.
This cause is before the court for judicial review on the petition of respondent-plaintiff Sowers, the transcript of the record of the hearings before the Ohio Civil Rights Commission, the briefs of the parties, and the evidence.
Examination of the record herein and the evidence reveals that these proceedings were commenced by the filing of employment charge affidavits by complainants Rudolph Phillips and Eli Steigner on the 26th day of February, 1967, with the defendant herein, the Ohio Civil Rights Commission. Phillips and Steigner, members of the Newton Falls Exempted Village Board of Education and, along with members Edward T. Harnish, Theodore Montgomery and Austin E. Sowers, respondent-plaintiff herein, constituted the entire membership of the board of education. The affidavits charged respondent-plaintiff with voting against hiring one, Dr. Tobasco, as superintendent of schools because he was a Catholic and, that accordingly, said Dr. Tobasco was unlawfully discriminated against because of his religion.
It appears that at the end of the school year, in the spring of 1966, the resignation of the then superintendent of schools necessitated action on the part of the board of education to find a successor. The investigation conducted by defendant-commission's field director Lieb acknowledged the board's requirements for the position of superintendent, at that time, to be:
"1. Age — between 35 and 55 years.
"2. A maximum salary of $12,000.00 per year.
"3. Experience as a superintendent."
And it appears further that from a total of forty applicants, the field was narrowed to five by the board for the purposes of interview. No formal application was ever filed by Dr. Tobasco, nevertheless, in addition to the five, he was interviewed on August 19, 1966, "as a courtesy to him because we (the board) had been criticized for not interviewing him previously." At that time he did not have a superintendent's certificate as required by Section 3319.01, Revised Code. Tobasco admitted that he had made no formal application for the position.
Testimony of respondent-plaintiff, uncontroverted of record, indicates that on the last Friday of 1966 (December 30th), prior to the January 2, 1967, organizational meeting of the board of education, board member Steigner telephoned the respondent-plaintiff requesting his vote for Steigner as president and Phillips as vice president of said board. Respondent-plaintiff stated that he made no commitment, whereupon Steigner "hung up" and "wasn't too pleased."
Minutes of the organizational meeting, January 2, 1967, indicate that at such meeting (which was to be confined to the election of officers, administration of oath and employment of a clerk) a request by member Phillips to read a prepared statement concerning the right of one board member (respondent-plaintiff) to remain on said board after making statements in violation of Section 4112.02, Revised Code, was granted by president Steigner over a point of order raised by member Hornish. Thereafter, Phillips moved that a resolution be adopted to investigate such violation. Motion died for want of a second. Phillips then moved that the meeting be adjourned. Said motion also died for want of a second. Thereafter, Phillips and Steigner excused themselves and left the meeting. Following this action, Acting Superintendent Prescott (not a board member) who was present was asked to preside as temporary chairman. The remaining three members proceeded to nominate and elect Montgomery as president and Sowers as vice president of said board of education.
On January 11, 1967, a further organizational meeting of the Newton Falls Board of Education was called to order by Steigner as a result of a ruling by the assistant prosecutor to the effect that neither candidate had been legally elected to the offices of president and vice president. Thereupon Montgomery and Sowers were again nominated for the offices of president and vice president respectively, for the year 1967. Said candidates were then elected by a vote of 3 ayes and 2 nays (Phillips and Steigner voting in the negative). At the conclusion of other business Phillips moved, Steigner seconded, that a two-year contract be offered to Dr. Tobasco at a salary of $14,000 annually for the position of superintendent. The vote on the motion, and in the order made, was as follows:
First — Harnish — Nay Second — Phillips — Aye Third — Steigner — Aye Fourth — Sowers — Nay Fifth — Montgomery — Nay
Thereafter, respondent-plaintiff read a prepared statement (in response to the January 2, 1967, statement made by Phillips) concerning his (Sowers') right to remain on the board because of unlawful discriminatory practices, in which statement of clarification (as he called it) he explained a statement he had previously made to the effect that he could not conscientiously vote for a Catholic as superintendent. Following discussion concerning the right of member Sowers to serve on the board, Phillips moved, seconded by Steigner, to present a resolution to the Ohio School Boards Association to investigate the question of legal representation of member Sowers and to determine his right to stay on as a board member. The motion failed for want of majority vote.
Thereafter, on February 20, 1967, the board of education received a certified mail notice from regional director Hunter of the defendant-commission advising that employment charge affidavits had been received and that a preliminary investigation relative to the allegations contained therein would be commenced.
By letter dated March 6, 1967, field representative Lieb of the defendant-commission, directed that the board at its March 8th meeting "shall":
(1) Decide upon specific requirements for the position of superintendent;
(2) Upon acceptance by the commission of said requirements the board is to so advise each applicant;
(3) Advise each of the interviewed applicants that his application will be reconsidered and those not meeting requirements so informed; and
(4) Advise Tobasco of the board's regret for unlawful discriminatory statements made by one of its members.
No action was taken by the board at the March 8th meeting with respect to defendant-commission's letter of March 6, 1967. However, the board did move to abide by Section 4112.02, Revised Code, in all of its acts and not discriminate against any person. Said motion passed by unanimous vote.
The board further voted to adopt, pursuant to defendant-commission's directive, more specific qualifications for the position of superintendent. By a vote of 3-2 (Phillips and Steigner voting in the negative) the following were adopted:
1. Superintendent's certificate.
2. Age 35-55 years.
3. Experience as superintendent, executive head or assistant superintendent.
4. Salary $10,000.00-$12,000.00.
5. Two-year contract.
On March 11, 1967, the board of education mailed to defendant-commission a certified copy of the motion setting forth the specific qualifications for superintendent and of the resolution on nondiscrimination that were adopted at the March 8, 1967 meeting.
By letter dated March 21, 1967, regional director Hunter of defendant-commission, notified board of education that the qualifications for superintendent decided upon at the March 8, 1967, meeting were acceptable with one exception — namely, that the minimum length of experience desired must be clearly stated. The commission further advised that it would expect a resume of each applicant, whether interviewed or not, and that said report must be submitted by Friday, March 24, 1967.
Thereafter, by letter dated April 5, 1967, regional director Hunter of defendant-commission, forwarded five guidelines for future school board action in the matter now under investigation:
1. The qualifications adopted March 8, 1967, by the board shall be accepted upon further clarification as to experience.
2. The board shall interview and consider all persons applying for the position of superintendent until employment of a candidate qualifying thereunder is accomplished or until June 5, 1967, whichever occurs first.
3. If the board fails to hire one of the candidates by June 5, 1967, the commission office shall presume the adopted standards have been unrealistic.
4. If the board is unsuccessful in hiring by June 5, 1967, the regional office shall request the board to alter its standards to conform to the proposed qualifications prior to amendment at the March 8, 1967, board meeting, namely item 3 to read "experience as administrator" (as proposed by minority members Phillips and Steigner).
5. Failure of the board to comply with these requests will result in a recommendation of probable cause.
At the board's regular meeting of April 10, 1967, moved by Phillips, seconded by Steigner, that member Sowers' right to cast a vote as recorded in the minutes of the meeting of March 8, 1967, designated Motion No. 13, Qualifications For Superintendent Candidate, be challenged. Motion lost. Three nays — two ayes (Phillips and Steigner voting in the affirmative).
Subsequently, by letter dated May 5, 1967, assistant prosecutor Ford submitted to the board of education, as a result of his meeting with regional director Hunter and compliance officer Gibb of the defendant-commission, his recommendations for a harmonious conclusion of the situation:
1. That the guideline as to experience should be expressed in a generic sense.
2. That the board notify Tobasco that he would be given an opportunity to reapply under the new guidelines.
3. That separate biographical backgrounds of all candidates be prepared.
4. That extracts of board minutes be prepared pertaining to the discussions and actions involving guests for superintendent candidates and selection.
At the board's regular meeting held May 8, 1967, in accordance with the recommendations of the assistant prosecutor, it was moved by Harnish, seconded by Sowers, that Tobasco be informed of the guideline qualifications adopted at the March 8th meeting and that he further be informed of his eligibility to be considered for the position of superintendent without regard to race, religion, etc., provided he could qualify under the aforesaid guidelines. The motion carried by a vote of 3-2 (Phillips and Steigner voting in the negative). Whereupon, the clerk, by telephone and subsequently confirmed by letter dated May 8, 1967, so advised Dr. Tobasco.
Further, in line with recommendations of the assistant prosecutor, it was moved by Harnish and seconded by Sowers, that the clerk be instructed to prepare resumes as suggested. This motion carried by a vote of 3-2 (Phillips and Steigner again voting in the negative).
Thereafter moved by Phillips, seconded by Steigner "To get in writing a challenge of the right to vote for Mr. Sowers; whether Mr. Sowers violated Section 4112.02, Revised Code."
Motion lost due to lack of majority. Two votes in the affirmative, Phillips and Steigner — 3 votes in the negative.
By letter dated May 17, 1967, Tobasco was notified that his candidacy was being rejected for lack of experience in running an elementary school; in dealing with transportation and custodial problems; in teacher evaluation; in principal evaluation; in school building direction; and in dealing with boards of education.
Thereafter, at the regular adjourned meeting of the board on May 22, 1967, Richard C. Latture was hired as superintendent for a two-year period at a salary of $11,500 annually through July 31, 1967; $12,000 per year to August 1, 1968 and $12,500 to August 1, 1969.
At the regular board meeting of July 10, 1967, on invitation, the representatives of defendant-commission, Gibb and Hunter, reported on the conciliatory efforts of the commission. The board moved to make the report public and the representatives advised as to the necessary steps the board should take if the proposal was adopted.
Said proposal was made a part of the minutes of the board and is as follows:
"I
"The Commission shall provide to Respondent, and Respondent shall distribute to their personnel, copies of the Commission's publication, Laws Against Discrimination, including Sections 4112.01 through 4112.08, Revised Code, administered by the Commission.
"II
"Respondent shall, within ten (10) days following notification to them of the Commission's acceptance of this CONCILIATION PROPOSALS, prepare and distribute a written statement of non-discriminatory policies to their employees and agents, including those whose duty it is to serve the public. Said statement shall include, but not necessarily be limited to, a specific statement that neither Respondent nor their employees shall deny or limit the availability of Respondent's advantages, facilities, privileges, or services to any person, or otherwise discriminate against him, except for reasons applicable alike to all persons, regardless of race, color, religion, national origin or ancestry.
"III
"Respondent shall, immediately upon the Commission's acceptance of this CONCILIATION PROPOSAL, take the following steps:
"(1) Arrange a special meeting of the Newton Falls School Board according to the laws governing such procedures (unless the date for a regularly scheduled Board meeting would occur first).
"(2) During such meeting the Newton Falls School Board will proceed with the necessary measure (s) to remove Rev. Austin Sowers from membership on its body.
"IV
"Unless otherwise provided herein, Respondent shall within ten (10) days following the effective date of this CONCILIATION PROPOSAL, forward to the Commission's Northeast Regional Office, 435 Perry-Payne Building, 740 Superior, N.W. Cleveland, Ohio 44113, copies of all correspondence carried out in compliance with Sections II and III of this CONCILIATION PROPOSAL.
"V
"The Commission shall make such compliance reviews as it believes to be warranted. Respondent agrees to furnish whatever information is required by the Commission in order to implement such reviews."
At the board meeting of July 17, 1967, a copy of the letter dated July 17, 1967, addressed to said board by the prosecuting attorney advising that the board had "no power under the laws of this state to remove one of its members," was incorporated in the minutes.
The prosecutor's letter advised further that inquiry had been made of the defendant-commission "as to the means by which the action of removal suggested by them might be accomplished and were advised that they were not prepared to advise or suggest any specific manner by which the board could remove Reverend Sowers.
Thereafter the board adopted a conciliation proposal and forwarded a copy thereof to the defendant-commission. The vote was 3-2 (Phillips and Steigner voting in the negative). Said proposal was as follows:
"1. To distribute to all school personnel copies of the Commission's publication, "Laws Against Discrimination," to be obtained from the Commission, including Sections 4112.01 through 4112.08 and 4112.99, Revised Code.
"2. To distribute to all school employees and agents, within 10 days of the acceptance of this proposal by the Commission, written copies of the Board's policy of non-discrimination as adopted at the regular meeting of this board on March 8, 1967, and including the specific statements requested by the Commission in their proposal of conciliation presented to us at the meeting of July 10, 1967.
"3. Inasmuch as we are, according to the legal advice given to us by the Prosecuting Attorney of Trumbull County, Ohio, legally unable to comply with the Commission's request to remove Mr. Austin Sowers from membership on this board, we hereby, individually and collectively, express our complete opposition to the expression used by Mr. Sowers which, in the opinion of many citizens of our school district, indicates a discriminatory attitude; and we hereby censure Mr. Sowers for his unwise and unfortunate use of words, despite his later attempts to clarify them.
"4. To hereby reaffirm our promise, individually and collectively, to comply with all provisions of State and Federal laws applying to non-discrimination in the operation of this school system.
"5. To refrain, individually and collectively, from making any further statements or comments for public dissemination on the incident in question, except as may be required in a formal public hearing on this matter."
To the foregoing proposal, compliance officer Gibb, of defendant-commission, replied by letter dated July 31, 1967, in which he advised that the defendant-commission had rejected the board's proposal and further stated that the commission's position is that employment activities of the board can not now, nor in the future be free of religious discrimination so long as influenced by Sowers. And further that no proposal that failed to provide for the elimination of Sowers' unlawful discriminatory influence will be acceptable to the commission.
This letter and a revised conciliation proposal wherein Item III was changed to read:
"III
"Respondent Austin E. Sowers shall forthwith and hereafter exclude himself from and take no part in any discussion, motion, vote, or any other Board activity relating to hire, tenure, terms, conditions, or privileges of employment, or any other matter directly or indirectly related to employment."
were incorporated in the minutes of the board meeting of August 14, 1967.
To this amended proposal assistant prosecutor Ford replied by letter, dated August 3, 1967, advising that board would stand on their conciliation proposal.
Thereafter, September 3, 1968, defendant-commission issued its Findings of Fact, Conclusions of Law and Order which are the subject of this appeal.
It is to be noted that while the Ohio Civil Rights Commission's Findings of Fact, Conclusions of Law and Order, in Commission Case No. 70, were directed at both respondents Austin E. Sowers, individually, and Newton Falls Exempted Village School Board of Education, the cause before this court for judicial review is limited to said document insofar as its provisions have application to, and may affect the individual rights of, the plaintiff-respondent herein, Austin E. Sowers.
Therefore the relevant provisions before this court for consideration are as follows:
"FINDINGS OF FACT
"Austin E. Sowers, on January 11, 1967, voted against hiring Dr. Tobasco as superintendent of the Newton Falls Exempted Village Schools because of religious discrimination.
"* * *
"CONCLUSIONS OF LAW
"Austin E. Sowers engaged in an unlawful discriminatory practice in violation of Section 4112.02(A), Revised Code.
"* * *
"ORDER
"It is ORDERED that Respondents Austin E. Sowers and the Newton Falls Exempted Village Board of Education, their officers, agents and employees, CEASE AND DESIST from any and all practices designed to deny employment because of the race, color, religion, national origin or ancestry of any person or otherwise to discriminate against him with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment.
"* * *
"It is further ORDERED that Respondent Austin E. Sowers abstain from taking part in any consideration, deliberation, voting or any other activities of the Newton Falls Exempted Village Board of Education with respect to hire, tenure, terms, conditions, or privileges of employment of any person or persons, or any other matter directly or indirectly related to employment, until such time as he shall provide a written assurance to the Commission that he is willing and able to conduct and take part in such activities without regard to the religion of any employee or prospective employee who may be affected thereby.
"* * *
"THIS CEASE AND DESIST ORDER ISSUED BY THE OHIO CIVIL RIGHTS COMMISSION THIS 3RD DAY OF SEPTEMBER, 1968."
At the July 31, 1969, hearing before this court, rulings on two motions by counsel for the respondent-plaintiff herein, were deferred pending the filing of briefs by the respective parties on or before the 11th day of September, 1969. Accordingly, upon consideration of said briefs, now filed by respondent-plaintiff and the defendant Ohio Civil Rights Commission, and upon review of the transcripts and the exhibits in question the court finds:
1. As to motion for clarification as to the right of the Attorney General to represent the Ohio Civil Rights Commission in matters other than on the Commission hearing level, that the Attorney General, by virtue of the provisions of Sections 109.02 and 4112.05(B), Revised Code (being chief law officer for the state of Ohio and for all of its departments), is the legal representative of the defendant, Ohio Civil Rights Commission, not only on such commission hearing level, but with respect to all other legal matters as well.
2. As to motion to have C R Exhibits 4, 7, 8, 9, 10, 11, 12, 13, 14, 16, 17, 26, 27, 28, and Sowers Exhibit 2 admitted in evidence, that according to the record of the commission hearings, November 9, 1967, and December 4, 1967, the subject exhibits were, upon agreement of the parties, first admitted by the hearing examiner during the course of the November 9th hearing and, subsequently, during the December hearing, rejected or, in the words of said hearing examiner, "knocked out," on the grounds that they were concerned with conciliation attempts of the defendant-commission and were, therefore, inadmissible in the record of said commission's proceedings.
This court, upon examination of the exhibits in question and the transcript of the proceedings before the defendant-commission, is of the opinion that, for what they are worth, such exhibits should be admitted for the purposes of this proceeding, excepting, however, pages 2-6 and 2-7 of Sowers Exhibit 2, said pages being the conciliation proposal of the Ohio Civil Rights Commission.
It is to be noted that eight of the fifteen exhibits in question, namely, C R Exhibits 4, 8, 9, 14, 17, 26, 27 and 28 are copies of, or a portion of a copy of, minutes of various meetings of the Newton Falls Board of Education. Section 3313.26, Revised Code, provides that:
"The clerk of the board of education shall record the proceedings of each meeting in a book provided by the board for that purpose, which shall be a public record. * * *" (Emphasis added.)
Certainly, if proceedings of meetings of boards of education are available to the public they are available to this court.
The remaining seven exhibits, namely, C R Exhibits 7, 10, 11, 12, 13, 16 and Sowers Exhibit 2 (pages 1, 2-1, 2-2, 2-3, 2-4 and 2-5), are copies of letters and reports by investigators and representatives of the defendant-commission and the assistant prosecutor, all of which appear to be more or less of common knowledge to all concerned with the subject controversy, and which are referred to in the transcript of the hearing before defendant-commission's examiner, Robinson, who rejected said exhibits, despite the stipulation of the parties that all exhibits were to be admitted.
The court assumes that the hearing examiner's ruling rejecting the aforesaid exhibits was based on the provisions of Section 4112.05, Revised Code, which reads:
"* * * If it [commission] determines after such investigation that it is probable that unlawful discriminatory practices have been or are being engaged in, it shall endeavor to eliminate such practices by informal methods of conference, conciliation, and persuasion. Nothing said or done during such endeavors shall be disclosed by any member of the commission or its staff or be used as evidence in any subsequent proceeding. * * *"
In the opinion of the court the language of the statute excluding the use of reference to such endeavors as evidence is bottomed on the same rationale as is the general rule of law which holds that an offer to compromise or settle a disputed claim will not be received as an admission of the party making the offer. However, this rule, excluding evidence of offers of compromise and negotiations for compromise, does not preclude the introduction of evidence of independent statements of fact material to a cause of action or defense made by a party (see 21 Ohio Jurisprudence 2d 335). The words "conference, conciliation" and "persuasion" as used in the statute, in the opinion of this court, are limited to conscientious efforts on the part of the defendant-commission to resolve a dispute and, as such, are not to be tainted by threat, coercion or undue pressure exerted to effect a settlement. It is to be noted that a further modification of the general rule with respect to admissibility of offers to compromise appears to obtain in the case of threats made during such negotiations (see 15 A.L.R. 3d 27).
Accordingly, respondent-plaintiff's motion to admit the aforesaid enumerated exhibits is hereby sustained.
The issue before this court, simply stated, is: Did respondent-plaintiff Sowers on January 11, 1967, engage in unlawful discriminatory practices when, as a member of the Newton Falls Exempted Village Board of Education, he voted against hiring one, Dr. Tobasco, as superintendent of schools for two years at an annual salary of $14,000?
However, in order to determine the issue herein, other questions must first be answered. Plaintiff's petition alleges that the proceedings, decision and orders of the defendant-commission are illegal and unconstitutional for ten (10) reasons. The defendant's brief suggests five (5) reasons why the commission's order should be affirmed. The court, coming now to consider these reasons advanced by the parties, is of the opinion that the following are the pertinent questions to be answered in the case at bar:
1. Were the complainants, Phillips and Steigner, proper parties within the meaning of Section 4112.05, Revised Code, to file charges in the instant case?
2. Was the plaintiff-respondent, Sowers, individually, an "employer" within the meaning of Section 4112.01 (B), Revised Code, on January 11, 1967, when the motion to hire Dr. Tobasco was presented to the board of education?
3. Was the proposed hiring of Dr. Tobasco an action prohibited within the meaning of Section 3319.01, Revised Code?
4. Did the respondent-plaintiff cast the deciding vote against hiring Dr. Tobasco on January 11, 1967?
5. Were the so-called "conciliation proposals" of the defendant-commission compatible with legislative intent as expressed in the language "* * * endeavor to eliminate such practices by informal methods of conference, conciliation, and persuasion * * *," Section 4112.05 (B), Revised Code?
6. Were the defendant-commission's Findings of Fact and Conclusions of Law supported by reliable, probative, and substantial evidence?
7. Did the defendant-commission's order of September 26, 1968, violate the respondent-plaintiff's constitutional civil liberties of freedom of speech and freedom of religion?
Before attempting to answer these questions this court is of the opinion that some discussion is in order concerning what appears to be a confused conception of the term "civil rights." The facts of this case seemingly are illustrative of this observation. As stated in 15 American Jurisprudence 2d 406: "`Civil rights' have been defined simply as such rights as the law will enforce, or as all those rights which the law gives a person." I. e., a civil right is a legally enforceable claim of one person against another.
"Natural rights" are those rights which appertain originally and essentially to each person as a human being and are inherent in his nature, as contrasted to civil rights, which are given, defined and circumscribed by such positive laws, enacted by civilized communities, as are necessary to the maintenance of organized government, Byers v. Sun Savings Bank, 41 Okla. 728, 139 P. 948.
Professor Pollack, 27 Ohio State Law Journal 567, points out that indiscriminate use of the term "rights" to describe an immunity, or privilege, has fostered confusion in the law. Our constitutional government was originally framed on a system of limited powers, reserving rights in individuals. "However," says Pollack:
"* * * what were reserved in this context were not actually rights but immunities — restraints on the government."
Accordingly, the distinction between claims and immunities becomes increasingly important in relation to our consideration of problems arising from alleged violations of our Ohio Civil Rights Act.
President Kennedy carefully drew this distinction, identifying immunities as civil liberties, and claims as civil rights. He said:
"The Bill of Rights, in the eyes of its framers, was a catalogue of immunities, not a schedule of claims. It was, in other words, a Bill of Liberties * * *. When civil rights are seen as claims and civil liberties as immunities, the government's differing responsibilities become clear. For the security of rights the energy of government is essential. For the security of liberty restraint is indispensable."
In line with this distinction, civil, or economic rights, functioning as claims, are structured in legislation, while civil liberties are constitutionally protected.
Pollack goes on to say that this distinction and separation wisely suggests a constitutional definition of historic rights and a developmental pattern of economic and social activities through legislation. He further states:
"Liberty is preserved through constitutional assurances that prevent governmental encroachments, and economic and social change is re-enforced by legislative action."
Civil rights then, within the meaning of Sections 4112.01 to 4112.08, inclusive, and 4112.99, Revised Code, are economic rights functioning as legally enforceable claims which are structured in legislation. On the other hand civil liberties are natural rights which appertain originally and essentially to each person as a human being and are inherent in his nature; such rights, which are constitutionally protected, are not actually rights but are immunities, or restraints on government.
The objective of the Ohio Civil Rights Act, Sections 4112.01 to 4112.08, inclusive, Revised Code, as the purpose clause indicates (128 Ohio Laws 12), is to prevent and eliminate the practice of discrimination, against persons because of their race, color, religion, origin or ancestry, and to create a commission to enforce the same, and to define its powers and duties.
Thus, the Ohio General Assembly, by legislative enactment effective July 27, 1959, gave to those persons whose civil rights were violated, a legally enforceable claim against the violator. This enactment, however, was not expressive of any legislative intent to interfere with the preservation of the constitutional assurances that prevent governmental encroachments. And it is this balance between civil rights as claims, and civil liberties as immunities, that the courts must weigh carefully and judiciously in all controversies such as the case at bar.
The desires of those who mean well for the so-called "underdog" and "downtrodden" minorities must not be permitted a blank-check utilization of the provisions of the Fair Employment Act as a launching pad for indiscriminate witch-hunts, nor as a vehicle for overzealous public administrative agencies, not bound by the established common-law rules of evidence prevailing in courts of law and equity, to make conclusive arm-chair judgments as to the facts of a given case unless such findings of facts are convincingly supported, of record, by reliable, probative, and substantial evidence.
Examination of the facts of the instant case indicate, in the words of respondent-plaintiff's brief: "* * * as nice a school board fight as can be imagined." The progress report of Acting Regional Director Lieb of the defendant-commission, dated June 20, 1967, states, when referring to the board meeting of March 2, 1967, with the defendant-commission's staff:
"In the heated discussion which ensued, it became evident that the present controversy is only the latest in a long line of disagreements stemming from personality clashes and hostile feelings among certain board members."
And, that while, in the same report Acting Director Lieb states: "* * * there was no doubt that Rev. Sowers' comments and vote constitute unlawful discriminatory acts, * * *" the record of the November and December 1967, hearings before the defendant-commission's hearing examiner, in the opinion of this court, fail to support this finding by reliable, substantial and probative evidence.
Further, defendant-commission's Findings of Fact, Conclusions of Law and Order, dated September 28, 1968, page 1, paragraph 2, states, in referring to the application of Dr. Tobasco:
"* * * who had duly applied for the vacant position of superintendent of schools." (Emphasis added.)
While the transcript of the defendant-commission December 4, 1967, hearing, shows that Dr. Tobasco on cross-examination responded as follows:
"Q. Did you make a formal application with the Board for the position? A. No, sir."
On the other hand, respondent-plaintiff Sowers who stated that he voted against Tobasco on the grounds of experience rather than religious affiliation at the January 11, 1967, board meeting, apparently, chose to discuss the Catholic philosophy of education, assuming Tobasco was a Catholic, and admittedly making the statement that he could not conscientiously vote for a Catholic because of the Catholic philosophy of education.
Impartial review of the proceedings makes it difficult to determine whether or not the episode in question was a "school boy's dispute" or a "school board's controversy."
Matters of this character are better settled by the application of common sense and reason than by judicial determination. It is unfortunate that acts of legislative bodies must all too frequently be tested by a set of facts and surrounding circumstances that should never reach the point of litigation.
Turning now to the questions presented in this case, the court will deal with them in the same order as they were previously herein stated:
FIRST: Were the complainants proper parties to initiate the action against the plaintiff-respondent Sowers?
It is to be noted that the Fair Employment Acts of most states require that the complaint against discriminatory employment practices be filed by the aggrieved individual or his attorney. This feature is one of the distinctions of the Ohio Act. Section 4112.05 (B) provides that:
"Whenever it is charged in writing and under oath by a person, referred to as the complainant, that any person, referred to as the respondent, has engaged or is engaging in unlawful discriminatory practices * * * the commission may initiate a preliminary investigation."
The language of Section 4112.01 et seq., Revised Code, makes it clear that any person may file charges with the commission provided they are in writing and under oath. There is no requirement that actions can be commenced only by the aggrieved party.
Accordingly, complainants, Phillips and Steigner, were proper parties, within the meaning of the statute to file the affidavits of charge against respondent Sowers, and this court so finds.
SECOND: Was the respondent-plaintiff Sowers, individually, an "employer" within the meaning of a section of the Ohio Fair Employment Act?
Section 4112.01 (B), Revised Code, reads:
"`Employer' includes the state, or any political or civil subdivision thereof, any person employing four or more persons within the state, and any person acting in the interest of an employer, directly or indirectly."
Black's Law Dictionary, Fourth Edition (West Publishing Company), defines the term:
"One who employs the services of others; one for whom employees work and who pays their wages or salaries. The correlative of `employee.'"
In the case of Marting v. Groff, 82 Ohio Law Abs. 212, the Court of Appeals said:
"An action against a board of education must be brought against the board in its corporate capacity, and not against the individuals constituting the board."
And 48 Ohio Jurisprudence 2d 750, states:
"The board of education of each school district is constituted a body politic and corporate."
This court is therefore of the opinion that respondent-plaintiff, in voting on the motion to hire Dr. Tobasco January 11, 1967, was acting in his official capacity as a member of the board of a corporate entity and as such he was not individually an "employer" within the meaning of the statute, and it is so found.
THIRD: Was the proposed hiring of Dr. Tobasco an action prohibited within the meaning of Section 3319.01, Revised Code?
This statute, which makes provision for the appointment of a superintendent by the board of education of an exempted village school district states:
"No person shall be appointed to the office of superintendent who is not possessed of a certificate of the superintendent type * * *."
This court does not concur in defendant-commission's position that:
"Offering of the position is not an appointment. Had the Board offered the position to Mr. Tobasco, he could easily have acquired a certificate by the time of his appointment."
An unconditional offer of a position requires only an acceptance to make it a binding contract. Thus the appointment, as referred to in Section 3319.01, Revised Code, would be contingent only upon the acceptance of the offeree, regardless of the fact as to whether or not he possessed the proper type of superintendent certificate. Such a unilateral contingency was not contemplated by the Legislature in its enactment of this statute, on the contrary, the aforesaid language imposes upon a board of education an absolute prohibition from offering to one, not possessed of the proper certificate, the position of superintendent. And this court so finds.
FOURTH: Did the respondent-plaintiff cast the deciding vote against hiring Dr. Tobasco January 11, 1967?
The uncontroverted evidence shows that on the night in question the entire membership of the board (five) were present; that they voted in the following order:
First — Harnish — Nay Second — Phillips — Aye Third — Steigner — Aye Fourth — Sowers — Nay Fifth — Montgomery — Nay;
and that the motion to hire Dr. Tobasco (made by Phillips, seconded by Steigner) lost.
It is to be noted that had respondent-plaintiff abstained from voting at the board meeting of January 11, 1967, the result would have been a tie and the motion would have failed for want of a majority vote. The respondent-plaintiff could have cast the "deciding vote" only had he voted for the motion to hire Dr. Tobasco. Since he did not it cannot now be said that his vote was the deciding one, and this court so finds.
FIFTH: Were the defendant-commission's proposals compatible with the legislative intent to eliminate discriminatory practices by informal methods of conference, conciliation and persuasion as provided in the statute?
According to the Ohio Civil Rights Commission Annual Report (1966) the Ohio Act:
"* * * establishes an administrative commission charged with eliminating unequal treatment of minority groups through `informal methods of conciliation and persuasion' which removes the expense, inconvenience, and haphazardness of court action."
If the commission determines there is probable cause to believe discriminatory practices have occurred the statute requires that it attempt to induce compliance by informal methods before a formal hearing may be instituted (see 29 Ohio State Law Journal 466, 1968).
In the instant case certain endeavors were undertaken and so-called conciliation proposals made by the defendant-commission. However, it is the opinion of the court that the defendant-commission's proposals of March 6, 1967, April 5, 1967, and those subsequently incorporated in the minutes of the board of education meetings July 10, 1967, August 14, 1967, read more like mandates than suggestions for amicable settlement.
For example, the letter of March 6th states that "board of education shall take the following action: * * *"; the letter of April 5th states "the * * * Northeast Regional Office forwards the following guidelines for future school board action in the matter now under investigation: * * *"; the proposal incorporated in the minutes of July 10, 1967, Item III "respondent (board of education) shall * * * arrange a special meeting of the Newton Falls School Board * * * during such meeting the Newton Falls School Board will proceed with the necessary measure(s) to remove Reverend Austin E. Sowers from membership on its body."; and the final proposal incorporated in the board meeting minutes of August 14, 1967 reads: "III, respondent Austin E. Sowers shall forthwith and hereafter exclude himself from and take no part in any discussion, motion, vote, or any other board activity relating to hire, tenure, terms, conditions, or privileges of employment, or any other matter directly or indirectly related to employment." (Emphasis added.)
It is obvious that the legislative intent to eliminate discriminatory practices by informal methods of conference, conciliation and persuasion, as provided in Section 4112.05 (B), Revised Code, was to encourage amicable settlement in those cases where probable cause had been found. Directives and ultimata issued by the commission do not, however, comport with such legislative intent, and this court so finds.
SIXTH: Were the defendant-commission's Findings of Fact and Conclusions of Law supported by reliable, probative, and substantial evidence?
As previously indicated, only the first of defendant-commission's Findings of Fact, namely, that on January 11, 1967, respondent-plaintiff voted against hiring Dr. Tobasco as superintendent because of religious discrimination; and its first Conclusion of Law, that respondent-plaintiff engaged in an unlawful discriminatory practice in violation of Section 4112.02(A), Revised Code, are material in the within cause.
As to said Finding of Fact and Conclusion of Law this court finds that neither are supported by reliable, probative and substantial evidence. Aside from the answers hereinbefore given to questions "Second, Third" and "Fourth," the record shows that Phillips' motion January 11, 1967, provided for a salary of $14,000 a year, rather than $12,000 as contained in the qualifications provided by the board at that time; that Tobasco, by his own admission had not filed a formal application for the position of superintendent; that defendant-commission's representative Hunter testified that there was nothing in the record to indicate any religious discrimination on the part of Mr. Sowers; that the memo of defendant-commission's representative Gibb admits that the fixing of experience requirements represents an "overextension of our prerogatives"; that testimony of the respondent-plaintiff indicated that he voted against the hiring of Dr. Tobasco because of his lack of experience; and finally Peter Nolan's testimony that respondent-plaintiff voted against Tobasco because of what he called the Catholic Philosophy of Education (not religion).
Reliable, probative and substantial evidence has been defined by the court in the case of Ohio Real Estate Commission v. Cohen, 90 Ohio Law Abs. 137, 139, as follows:
"Reliable, that is, means dependable, with reasonable assurance of its probability, as not only truthful but also true.
"Probative relates to the evidentiary value of the testimony and other evidence in an analytical sense, having depth and being more than merely superficial or speculative.
"Substantial would mean that the evidence has body or substance of sufficient degree to be of some weight, as well as quality, that gives it standing and credence, as well as dependable and trustworthy."
From the facts of this case, as enumerated in the previous paragraph, the history of bickering and dispute within the membership of the board, along with the further fact that from the evidence adduced reasonable minds could conclude that the minority members of the board (being so insistent that Dr. Tobasco be hired as superintendent, with or without qualifications) were engaging in a discriminatory practice by so favoring Dr. Tobasco. And, therefore, it is the judgment of this court that the evidence herein does not support the defendant-commission's finding of fact and conclusion of law with respect to the respondent-plaintiff to the extent that it is reliable, probative and substantial within the meaning of the statute.
SEVENTH: Did the defendant-commission's order of September 3, 1968, violate the respondent-plaintiff's constitutional civil liberties of freedom of speech and freedom of religion?
With respect to freedom of speech it is generally understood that:
"The right to freely express one's opinion is guaranteed by the Constitution of the United States and by the Constitution of the state of Ohio * * * These are fundamental freedoms and are the pillars on which all others rest. * * * Accordingly, these are given a broad scope." (10 Ohio Jurisprudence 2d 534, Section 460.)
With regard to freedom of religion, it is expressly guaranteed in the Ohio and in the Federal Bill of Rights. It is also included among the liberties which are protected from state action by the Fourteenth Amendment to the Constitution of the United States.
"The Ohio Constitution adopts the doctrine of `hands off.' It secures to every citizen of the state the fullest liberty of conscience in matters of religion." 10 Ohio Jurisprudence 2d 579, Section 508.
It is important to note that state fair employment acts do not force an employer to hire employees because they belong to a particular minority group. Such laws merely demand that the same employment criteria be applied to all persons regardless of race, religion, etc. These state laws are considered valid by most authorities as a reasonable exercise of the police power. This is sufficient to make them constitutional as against claims of deprivation of liberty of contract and freedom of association. However, as the case of West Coast Hotel Co. v. Parrish (1937), 300 U.S. 379, points out, only a reasonable exercise of police power to protect public welfare, health, and peace will be sustained. The determinative question then is: Does fair employment legislation, such as the Ohio Act, come within the purview of providing for public welfare. More specifically, the question to be asked is whether the discrimination in employment is detrimental to the public generally. (See 16:608 Western Res. Law Journal 628-630 (1965).)
In the opinion of this court there is no doubt as to the constitutionality of the act itself; it is, however, the abuse of the authority therein granted that is of concern here. Keeping in mind the distinction between civil rights as claims that are structured in legislation, and civil liberties as immunities that are constitutionally protected, the effect, as Professor Pollack (supra) has stated:
"* * * is a discordant variety of protection under each conceptual category, although all are identified as `rights.' Since the conceptions affect powers and benefits differently, they should be viewed hierarchically and not kaleidoscopically."
It is this balance between civil rights and civil liberties, as was pointed out previously, that must be weighed carefully in all cases such as the one at bar.
It is the finding of this court that the defendant-commission's order directed to the respondent-plaintiff that:
(a) He cease and desist from all practices designed to deny employment because of race, color, religion, national origin or ancestry or otherwise discriminate directly or indirectly in any matter related to employment; and
(b) abstain from taking part in consideration, deliberation, voting or any other activities of the board of education in matters directly or indirectly related to employment until such time as he has given written assurance that he will take part in such activities without regard to the religion of any employee or prospective employee, in view of the facts surrounding this case and, further, in view of the board of educations' conciliation proposal adopted July 17, 1967 (seconded by respondent-plaintiff and voted for by him), wherein the board reaffirmed their promise, individually and collectively, to comply with all provisions of the state and federal laws applying to non-discrimination in the operation of the Newton Falls school system, did violate the respondent-plaintiff's constitutional civil liberties of freedom of speech and freedom of religion.
Accordingly, it is the general finding of this court that respondent-plaintiff, Sowers, did not engage in unlawful discriminatory practices when, as a member of the Newton Falls Exempted Village Board of Education, he voted against hiring one, Dr. Tobasco as superintendent of schools for two years, at an annual salary of $14,000.
The order of defendant-commission of September 26, 1968, is hereby set aside.
Judgment accordingly.