Opinion
No. 29314
Decided February 17, 1943.
Schools — Teachers' Tenure Act — Certified teacher voluntarily accepting contract for balance of school year — And tendering resignation operative at end of school year — Not entitled to writ of mandamus compelling issuance of continuing contract.
A certificated public school teacher, having been employed by a school board for more than five consecutive years, who, after the effective date of the Ohio Teachers' Tenure Act in 1941, voluntarily accepted a contract for the balance of the school year and at about the same time tendered her resignation operative at the close of such year, which resignation was accepted, is concluded thereby and is not thereafter entitled to a writ of mandamus directing such board of education to issue her a continuing contract under the first proviso of Section 7690-2, General Code.
IN MANDAMUS.
This is an original action in mandamus, instituted by Florence W. Ford, as relatrix, against the Board of Education of the City School District of the city of Cleveland, its clerk and the superintendent of schools, as respondents, to compel the issuance to her of a continuing contract of employment as a teacher in the public schools of the district for the school year 1942-1943 and thereafter, pursuant to law and especially in accordance with Section 7690-2, General Code.
Relatrix avers in her petition that she is 44 years old, is a member of the Ohio State Teachers' Retirement System and holds a special life certificate issued under authority of the state of Ohio in 1927, authorizing her to teach music in any school in Ohio; that she has been continuously employed as a teacher of music by the respondent board for a period of 15 years, and was so employed during the school year of 1941-1942; that there was a duty enjoined by law upon the respondents to issue to relatrix a continuing contract of employment as a teacher for the school year 1941-1942 which they failed and refused to perform; and that on July 29, 1942, she presented herself to the respondents and both orally and in writing demanded that a continuing contract be issued to her, but that the respondents refused and still refuse to issue her such contract or any other contract.
After certain admissions, the respondents set out in their joint answer that for several consecutive years prior to the school year 1941-1942 the competency of relatrix as a teacher had been challenged by the school authorities under whom she had worked; that in the spring of 1941 a recommendation as to her reappointment was deferred and it was finally decided she should not be reemployed for the school year 1941-1942, written notice of which latter fact was delivered to the relatrix on or about August 28, 1941; that because of the importuning of relatrix and a committee of an organization to which she belonged, relatrix was, on September 29, 1941, reemployed for the remainder of the school year 1941-1942; that on September 30, 1941, she executed a "Tender of Resignation," reading as follows:
"I hereby tender my resignation as a teacher in Cleveland schools, to take effect June 20, 1942, for the following reason: To seek a position elsewhere."
The answer further alleges that such resignation was voluntarily executed and delivered, and was accepted; that, in reliance upon such resignation, relatrix's position as a teacher of music was filled, prior to the commencement of the present action, by another teacher returning from leave of absence, and that there is now no available place for relatrix.
In her reply the relatrix alleges that under Section 7690-2, General Code, she should have received from the respondent board a continuing contract of employment as a teacher, on or before September 1, 1941. She admits that in the spring of 1941 she was not recommended for reappointment as a teacher and was told by the assistant superintendent of schools that unless she would agree to a reduction in salary she would not be reemployed; that she declined to accept such reduction and was advised in writing on August 28, 1941, that she would not be reappointed; that thereupon she elicited the assistance of the teachers' union, to which she belonged, and it was finally arranged that if she would execute the "Tender of Resignation" as described she would receive a contract for the remainder of the school year 1941-1942; that she executed the resignation on or about September 21, 1941, and shortly thereafter received the teaching contract; that on March 19, 1942, she sent a written withdrawal of the "Tender of Resignation," and later, as averred in the petition, demanded in writing a continuing contract of employment.
Replying further, relatrix denies any challenge as to her competency, ability, qualifications or moral character was made, under the provisions of Section 7690-6, General Code, and at no time did she voluntarily, willingly or purposely resign or terminate her continuing contract status as a teacher in the Cleveland public schools, but on the contrary has in every way and at all times endeavored to keep, defend and retain the same.
The controversy is submitted solely on the pleadings as outlined.
Mr. Lex Kintner, for relatrix.
Mr. Thomas A. Burke, Jr., director of law, and Mr. Charles W. White, for respondents.
The pending cause presents a new question in connection with the "Ohio Teachers' Tenure Act" not heretofore decided by this court.
It is apparent from the pleadings that the performance of relatrix as a teacher was not satisfactory to those under whom she worked. In the spring of 1941 any recommendation as to her reappointment was deferred. Later it was definitely decided not to reemploy her and she was duly notified of that fact in August.
The so-called "Ohio Teachers' Tenure Act" was enacted by the General Assembly on May 15, 1941 (119 Ohio Laws, 451), was approved by the Governor on May 29, 1941, and became effective September 1, 1941. By virtue of her certification and long employment by the respondent board, relatrix came within the first proviso of Section 7690-2, General Code. ( State, ex rel. Bishop, v. Bd. of Edn. of Mt. Orab Village School Dist., Brown County, 139 Ohio St. 427, 40 N.E.2d 913.) However, subsequent to the effective date of the Teachers' Tenure Act, with the provisions of which relatrix must be presumed to have been familiar, she accepted from the respondent board a contract dating from September 29, 1941, and continuing only for the remainder of the school year, and, near the time of its issuance, also tendered her resignation as a teacher, effective June 20, 1942, to seek another position. Relatrix claims no fraud or misrepresentation in these transactions.
While the respondents do not expressly plead waiver as a defense, the affirmative allegations of the answer certainly suggest it.
The principle of law is well established that one is free to waive the rights and privileges which are due him, whether secured by contract, conferred by statute, or guaranteed by the Constitution, so long as there is no violation of public policy. 40 Ohio Jurisprudence, 1235, Section 3.
When relatrix accepted without protest the limited contract of September 29, 1941, and likewise tendered her resignation, she covenanted with the respondent board that her services as a teacher would finally end, so far as the board was concerned, on June 20, 1942, and she should be bound by such conduct.
Instead of demanding a continuing contract and standing on such demand, relatrix deliberately pursued another course, the effect of which was to relieve the board of education from tendering the continuing contract provided by statute.
Mandamus is not a writ of right, but its issuance rests in the sound discretion of the court. State, ex rel. Mettler, Pros. Atty., v. Stratton et al., Commrs., 139 Ohio St. 86, 38 N.E.2d 393.
Under the circumstances of the present case, the court is of the opinion that the relatrix is not entitled to the requested writ and it is consequently denied.
Writ denied.
WEYGANDT, C.J., MATTHIAS, HART, BELL and TURNER, JJ., concur.
WILLIAMS, J., not participating.