State ex rel. Harper
Board of Education

Not overruled or negatively treated on appealinfoCoverage
Supreme Court of OhioJun 29, 1966
7 Ohio St. 2d 49 (Ohio 1966)
7 Ohio St. 2d 49218 N.E.2d 616

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No. 39898

Decided June 29, 1966.

Schools — Board of education of local school district — Authority to employ executive head and delegate duties — Re-employment of teachers — Notice of refusal to re-employ.

The board of education of a local school district has authority to employ an executive head and delegate to him the duty of carrying out the policy decisions of the board as well as certain ministerial duties, such as the receiving of the county superintendent's recommendations on the re-employment of teachers and the sending of written notices to teachers that they will not be re-employed. (Sections 3319.02 and 3319.11 of the Revised Code construed.)

APPEAL from the Court of Appeals for Summit County.

The relator-appellant, William L. Harper, was employed under a limited contract as a teacher in the Bath-Richfield Local School District during the 1964-1965 school year. The Bath-Richfield district is one of 12 such districts in Summit County. Each district has a board of education and an executive head employed by such board to execute and administer the board's policy decisions. On March 26, 1965, Dr. Frank C. Mayer, who was the Executive Head of the Bath-Richfield Local School District but not a member of the board of education of such district, communicated to the relator that his employment would be terminated at the end of the school year, at which time his contract of employment expired. On March 29, 1965, the relator wrote a letter to each member of the respondent board of education protesting his upcoming dismissal.

On April 2, 1965, John Ralph Gillman, the Summit County Superintendent of Schools, telephoned and recommended to Dr. Frank C. Mayer that the relator not be re-employed for the following year. Gillman made this recommendation to Mayer and directed him to communicate the recommendation to the respondent Board of Education of the Bath-Richfield Local School District. Mayer did, in fact, communicate the message to the board.

On April 8, 1965, the board of education adopted a resolution that certain teachers be employed or re-employed for 1965-1966 as recommended by the executive head and the Summit County superintendent. The list of teachers to be employed or re-employed did not contain the name of the relator.

On April 21, 1965, the executive head, Mayer, whose duty it was to execute and administer the policy decisions of the board of education, wrote a letter to the relator which said, "This is to give you official notice that you will not be re-employed by the Bath-Richfield Board of Education. Your employment will terminate at the conclusion of the 1964-1965 school year." The letter was signed, "Frank C. Mayer, Executive Head." The relator received this letter prior to April 30, 1965.

On May 13, 1965, the board adopted a resolution confirming "the action taken on April 8, 1965, not to re-employ Mrs. Margaret O'Neil and Mr. William Harper."

On June 3, 1965, the board, upon consideration of a request of the Bath-Richfield Education Association that relator be rehired, held firm to its former position.

On July 10, 1965, the relator filed an action in mandamus with the Court of Appeals for Summit County to compel the respondent board to execute a limited contract of employment with the relator for the 1965-1966 school year.

On July 27, 1965, the board adopted the following resolution:

"Whereas, the members of the Bath-Richfield Board of Education understood and intended that when this board (all members being present) unanimously adopted motion No. 38 at its regular meeting on April 8, 1965, concerning the re-employment and non-re-employment of certain teachers recommended by the executive head of this local school district and the Superintendent of Summit County Schools, it was intended and understood as a resolution also not to re-employ the two individuals; namely, William L. Harper and Mrs. Margaret O'neil, whose names did not appear on the list of teachers attached to the minutes of that meeting;

"Now, therefore, in order to fully, accurately and completely express the whole truth, it is hereby moved that item No. 38, mentioned above, be and the same is hereby corrected to read, when corrected, as follows:

"`That this board of education in accordance with the recommendations of the executive head of this local school district, Dr. Frank C. Mayer, and the Superintendent of the Summit County Schools, Mr. Ralph Gillman, for the school year 1965-1966:

"`(a) Re-employ and employ those teachers whose names appear on the list appended to the minutes of this meeting, and

"`(b) Do not re-employ William L. Harper and Margaret K. O'Neil, and

"`(c) That the said executive head, Dr. Frank C. Mayer notify said William L. Harper and Margaret K. O'Neil that they will not be re-employed by the Bath-Richfield School District for the year 1965-1966.'"

The Court of Appeals decided the case on the merits and denied the writ. The case is before this court on an appeal as of right.

Messrs. Johnson, Whitmer Sayre and Mr. Raymond W. Eaton, for appellant.

Mr. James V. Barbuto, prosecuting attorney, Mr. John D. Smith and Mr. Rice A. Hershey, for appellee.

The relator's basic claim is that he is entitled to a limited contract of re-employment because he claims that he is "deemed re-employed" under the provisions of Section 3319.11 of the Revised Code. That section provides in part as follows:

"Any teacher employed under a limited contract, and not eligible to be considered for a continuing contract, is, at the expiration of such limited contract, deemed, re-employed under the provisions of this section . . . unless the employing board, acting on the superintendent's recommendation as to whether or not the teacher should be re-employed, gives such teacher written notice of its intention not to re-employ him on or before the thirtieth day of April." (Emphasis added.)

The relator argues (1) that the employing board did not act on the superintendent's recommendation because the superintendent never made a recommendation to the board as such but rather made it only to the executive head of the local school district, and (2) that the employing board never gave the relator a written notice and that the only notice ever received was from the executive head.

Admittedly, the statute requires that the superintendent make a recommendation to the board, and that the board notify the teacher that his employment will be terminated. Hence, the question is presented whether the executive head of the local school district may act as agent of the employing board.

The executive head is employed by the board pursuant to a statutory grant of authority. Section 3319.02 of the Revised Code provides in part as follows:

"Upon recommendation of the county superintendent, a local board may at a regular meeting employ a person of proper certification or a person holding or qualified to hold the position of executive head of a local school district on September 16, 1957, as executive head for a period not to exceed five years beginning with the first day of August and ending on the thirty-first day of July."

The county superintendent testified that "executive head is the official who carries out the work of administering the policies of the board of education." He testified further that there was a "working understanding" between him and each of the executive heads of the 12 districts within Summit County that each would communicate his recommendations on the re-employment of teachers to the respective employing boards. In the instant case, the county superintendent directed the executive head, Mayer, to communicate his recommendation not to re-employ the relator to the board, and Mayer did so. As the county superintendent phrased it, "I made a recommendation to the board of education through their executive head." Certainly it was within the board's authority to permit an agent to receive communications on its behalf. Such an agent's duties would be purely "mechanical" and "ministerial." Such duties may be subdelegated to an executive head as is the custom in the 12 districts of the county. 3 American Jurisprudence 2d, Agency, Sections 150 and 151; 2 Ohio Jurisprudence 2d, Agency, Section 83. The act of the executive head was thus the act of the board.

Likewise, after the board decided not to re-employ the relator on April 8, 1965, the executive head gave "written notice" of this fact to the relator. Certainly the rendering of such notice by letter is one reason why an executive head is employed. He was carrying out a policy decision of the board. Since it was a ministerial and customary duty, the subdelegation was proper, and the act of the executive head was the act of the board.

Moreover, in this case, it seems doubtful that such written notice would be necessary since the relator was well aware of the fact that his employment would be terminated, as his letter of March 29, 1965, heretofore referred to, indicated.

Lastly, the relator asserts the invalidity of the board's action on July 27, 1965, to amend its resolution of April 8, 1965, to make express (1) that the relator was not to be re-employed, and (2) that the executive head had authority to send written notice to the relator on behalf of the board. The nunc pro tunc amendment says that these points were "intended and understood" at the April meeting. The relator does not dispute that a record may, be present amendment, be made to reflect a past action which was actually taken but either omitted from, or erroneously stated in, the past record. See State, ex rel. Wuebker, v. Bockrath et al., Trustees (1949), 152 Ohio St. 77.

There was, in fact, a record made on April 8, 1965, which had attached to it a list of all the teachers that were to be employed or re-employed in the following year. The relator's name was absent from that list. Thus the relator's argument raises only the factual question whether the board did actually act on the relator's employment status for the following year. There is ample evidence in the record (such as the board's resolutions, passed prior to the filing of this action, which expressly confirmed the decision not to re-employ the relator) to support the conclusion of the Court of Appeals that the board did act on the relator's employment status. There is no evidence which would support a contrary finding.

For these reasons, the judgment of the Court of Appeals, denying the writ, is affirmed.

Judgment affirmed.