Board of Education of the City School District v. Rhodes

OPINION By DUFFY, J. Plaintiff-appellant filed a petition for a declaratory judgment asking the Common Pleas Court of Franklin County to decide whether certain *514 dus drivers who drive buses under contracts with the Board of Education of their city are employees of the Board of Education within the meaning of the term as used in §3309.01 R. C. The matter was submitted to a judge of the Common Pleas Court on an agreed statement of fact, and it was decided by that court that the bus drivers were emyployees of the Board of Education, making the Board liable for certain payments to the School Employees Retirement System. From that decision the school board has appealed to this court. The plaintiff-appellant states that the local school board enters into contracts with contract haulers for the transportation of children to its many schools. These contracts fall into three different categories: (1) the school board contracts with a corporation where several buses are used for the transportation of children; (2) the school board contracts with an individual who furnishes two or more buses for transportation; and (3) one contract is with an individual who furnishes one bus and one driver. The specific question asked by the plaintiff-appellant is, are the drivers of these buses, furnished under contract with the contract haulers, employees within the meaning of §3309.01 (B) R. C., which section read as follows: “(B) ‘Employee’ means any person regularly employed in the public schools of the state who is not a teacher as defined in division (A) of §3319.09 R. C.; and any person, not a faculty member, regularly employed in any school or college or other institution wholly controlled and managed, and wholly or partly supported by the state or any subdivision thereof, the board of trustees or other managing body of which shall accept the requirements and obligations of §§3309.01 to 3309.68 inclusive, R. C. In all cases of doubt the school employees retirement board shall- determine whether any person is an employee, as defined in this division, and its decision shall be final. No employee shall be excluded from membership in the school employees retirement system because of membership in any other state retirement system established under the laws of this state unless such employee is receiving a disability allowance from such other retirement system.” The parties are in agreement that on December 17, 1948, the Retirement Board declared that after July 1, 1949, all of the contract drivers would be considered as employees for Retirement Board purposes. The Attorney General of Ohio (in his Opinion No. 1371 of the Opinions of the Attorney General for 1937, Page 2309) advised the Retirement Board that the eligibility of the drivers for membership in the system depended upon whether they were “subject to the orders, control and supervision of the board of education as to the mode and manner of performing the work.” The Ohio courts have many times stated the test to be applied in determining whether or not an individual is an employee of a named employer. See Gillum v. Industrial Commission of Ohio, 141 Oh St 373; Councell v. Douglas, 163 Oh St 292; and Bobik v. Industrial Commission, 146 Oh St 187. It is apparent from those cases that the principal test to apply in determining whether or not an employer-employee relationship exists is the reservation of the right to control the manner or *515 means of doing the work by the person or company for whom the service is being performed. See also the discussion in Snyder, Admrx., v. The American Cigar Company, 22 C. C. (N. S.), 45, and Ohio Bell Telephone Company v. Ray, 19 Abs 294. It is apparent from these cases that it is possible for one who is in the general employ of one person to become, by a sort of adoption, the employee also of another. From the copies of contracts entered as exhibits, along with the agreed statement of fact, it is apparent that the exact routing of the school buses was a decision for the principal of the school to make, and the routing always remained subject to any changes desired by the school board or principal of the school, which changes had only “to best serve the children.” The drivers also agreed to observe carefully all standards required by statute or regulations for drivers. Sec. 3327.01 R. C., and subsequent sections in that chapter refer to school boards and the drivers of buses transporting pupils to and from school. From these sections it is apparent that it is the duty of the board to designate certain places as depots from which to gather children and to adopt and put in force a time schedule on which the buses shall be run. The school bus drivers must also be certified by the school board as to age, good moral character, and physical fitness for such a position The control which the boards of education, by law and regulations, exert over the drivers of the school buses appears to control the manner and mode of transporting the children to and from school so as to make the relationship between the board and the drivers an employer-employee relationship. The finding of the lower Court that the school bus drivers were employees within the meaning of §3309,01 (B) R. C., was correct, and the judgment should be affirmed. BRYANT, PJ, concurs. FESS, J, dissents.