Kiel v. Green Local School District Board of Education

Francis E. Sweeney, Sr., J. This case and the companion cases which follow provide this court with its first opportunity to address legal issues arising under R.C. 3319.11 and 3319.111 as amended and enacted by Am.Sub.H.B. No. 330,142 Ohio Laws, Part II, 3356. The Ohio Teacher Tenure Act, contained in R.C. Chapter 3319, governs the employment of public school teachers in Ohio. We have consistently held that the Act is remedial legislation which is to be liberally construed in favor of teachers. State ex rel. Brennan v. Vinton Cty. Local School Dist. Bd. of Edn. (1985), 18 Ohio St.3d 208, 209, 18 OBR 271, 272, 480 N.E.2d 476, 477; Struthers City Schools Bd. of Edn. v. Struthers Edn. Assn. (1983), 6 Ohio St.3d 308, 310, 6 OBR 368, 370, 453 N.E.2d 613, 615. R.C. 3319.11 underwent major revisions effective July 1, 1989 with the passage of Am.Sub.H.B. No. 330. Prior to Am.Sub.H.B. No. 330, minimal safeguards existed to protect a nontenured teacher. Under former law, a teacher’s contract would not be renewed if the board, acting on the recommendation of the superintendent, gave written notice to the teacher on or before April 30. R.C. 3319.111 now requires that boards of education follow certain prescribed statutory procedures prior to nonrenewal, including formal evaluation, written notice and, if requested, a hearing. In addition, R.C. 3319.11(E) was amended and now provides in part: “Any teacher employed under a limited contract, and not eligible to be considered for a [151] continuing contract, is, at the expiration of such limited contract, considered reemployed * * * unless evaluation procedures have been complied with pursuant to division (A) of section 3319.111 of the Revised Code and the employing board, acting upon the superintendent’s written recommendation that the teacher not be reemployed, gives such teacher written notice of its intention not to reemploy him on or before the thirtieth day of April.” (Emphasis added.) Kiel contends and we determine that the school board failed to timely notify him of its decision not to renew his limited teaching contract as required by R.C. 3319.11. However, before we address this issue, we confront Kiel’s second proposition of law, dealing with the board of education’s supplementation of the record on appeal. In Kiel’s appeal to the common pleas court, the court permitted the board, over Kiel’s objection, to supplement the record with an affidavit of its treasurer, Joyce Mast. Mast averred that she had personally served Kiel on April 23, 1991 with written notice of the board’s decision not to renew Kiel’s limited contract. The appellate court rejected Kiel’s contention that the general administrative appeal procedures found in R.C. Chapiter 2506 applied. The court believed that the exclusive method for challenging a decision not to renew a limited teaching contract is contained in R.C. 3319.11(G)(7), which states that “[n]o appeal of an order of a board may be made except as specified in this division.” Obviously, the school board agrees with this determination. Kiel contends, however, that while R.C. 3319.11(G)(7) authorizes the appeal of the nonrenewal of his contract, R.C. Chapter 2506, in particular R.C. 2506.02 and 2506.03, governs the procedure that must be followed in an appeal pursuant to R.C. 3319.11(G)(7). We agree. The very terms of R.C. 3319.11(G)(7) contemplate that certain sections of R.C. Chapter 2506 are applicable to the appeal. R.C. 3319.11(G)(7) provides in part: “Notwithstanding section 2506.04 of the Revised Code, the court in an appeal under this division is limited to the determination of procedural errors and to ordering the correction of procedural errors and shall have no jurisdiction to order a board to reemploy a teacher, except that the court may order a board to reemploy a teacher in compliance with the requirements of division (B), (C)(3), (D), or (E) of this section when the court determines that evaluation procedures have not been complied with pursuant to division (A) of section 3319.111 of the Revised Code or the board has not given the teacher written notice on or before the thirtieth day of April of its intention not to reemploy the teacher pursuant to division (B), (C)(3), (D), or (E) of this section.” This section of the Revised Code addresses the remedies available to a school teacher whose limited contract is not renewed. R.C. 3319.11(G)(7) limits a court’s [152] scope of review to procedural matters by expressly excluding the substantive review of the merits otherwise available under R.C. 2506.04. See Farmer v. Kelleys Island Bd. of Edn. (1994), 69 Ohio St.3d 156, 630 N.E.2d 721. R.C. 3319.11 does not provide the procedure that must be followed in an appeal pursuant to subdivision (G)(7). Thus, the procedural provisions of R.C. Chapter 2506 govern. R.C. Chapter 2506 deals with appeals taken from orders of administrative officers and agencies. R.C. 2506.01 provides in part that “[e]very final order, adjudication, or decision of any * * * board * * * of any political subdivision of the state may be reviewed by the court of common pleas of the county in which the principal office of the political subdivision is located * * A school board certainly fits the definition of a “board,” and the word “any” certainly means that it is included within the purview of R.C. Chapter 2506. See In re Appeal of Sergent (1976), 49 Ohio Misc. 36, 39, 3 O.O.3d 308, 310, 360 N.E.2d 761, 764; Estock v. Conneaut Area City School Disk Bd. of Edn. (Sept. 30, 1993), Ashtabula App. No. 92-A-1757, unreported, 1993 WL 408168. R.C. 2506.02 requires the filing of a transcript by the officer or body from which the appeal is taken. R.C. 2506.03 provides that, with certain delineated exceptions, the hearing of the appeal shall be confined to the transcript as filed pursuant to R.C. 2506.02. The board of education does not contend that any of the exceptions exist. Pursuant to these provisions, the common pleas court was limited to the record filed on appeal. The treasurer’s affidavit was not a part of this record, and it was error for the court to allow the board to supplement the record. In reaching its holding, the appellate court relied on DeLong v. Bd. of Edn. of Southwest School Disk (1973), 36 Ohio St.2d 62, 65 O.O.2d 213, 303 N.E.2d 890, where, in construing former R.C. 3319.11, this court held that a school board’s action in deciding not to reemploy a school teacher whose limited employment contract is due to expire is not a quasi-judicial proceeding subject to judicial review under R.C. 2506.01. The statute considered in DeLong has been substantially amended. R.C. 3319.11(G)(7) now creates a right to a hearing before the board and a limited right to appeal and does not foreclose the procedural appellate rights contained within R.C. Chapter 2506. Thus, DeLong is not controlling. Having determined that the record on appeal should not have been supplemented, we must next determine whether Kiel received timely notice of the board of education’s intent not to renew his limited teaching contract. The record reveals that the board’s notice of its intent not to reemploy Kiel was sent by certified mail, return receipt requested, to Kiel, in care of Smithville High [153] School and to his home address. The only return receipt received and offered into evidence by the board is the return receipt from Smithville High School. The receipt was signed by someone other than Kiel. The board produced no evidence that Kiel had personally received the notice sent April 17, 1991. R.C. 3319.11(E) states that a teacher with a limited contract is considered reemployed unless the board “gives such teacher written notice of its intention not to reemploy him on or before the thirtieth day of April.” In State ex rel. Peake v. S. Point Local School Disk Bd. of Edn. (1975), 44 Ohio St.2d 119, 73 O.O.2d 437, 339 N.E.2d 249, in construing former R.C. 3319.11 containing identical notice language, we stated that where a statute requires notice of a proceeding, but is silent concerning its form or manner of service, only actual notice will satisfy such requirement. Thus, in Peake, we rejected the notion that a teacher had received the required notice of nonrenewal when the teacher was present at the meeting at which the board decided not to renew her contract. While the board sent the written notice of nonrenewal to the teacher on April 29, it was not delivered until May 2. We held that the board was compelled to reemploy the teacher. By mailing the notice of its intent not to renew Kiel’s teaching contract to the Smithville High School, the school board did not comply with R.C. 3319.11(E). The certified return receipt is not signed by Kiel. The board did not timely present any evidence that Kiel personally received the notice on or before April 30. Thus, the provisions of R.C. 3319.11 have not been met and Kiel must be deemed reemployed. Therefore, consistent with this opinion, we hold the following: (1) R.C. 3319.11 does not provide the procedure that must be followed in an appeal pursuant to subdivision (G)(7). Thus, the procedural provisions of R.C. Chapter 2506 govern. (2) R.C. 3319.11(E) requires that a teacher receive actual written notice of the board’s intent not to renew his limited teaching contract. Accordingly, we reverse the judgment of the court of appeals and order appellee board of education to reinstate appellant to a one-year limited contract and to award appellant all compensation and benefits that he has lost as a result of the unlawful nonrenewal of his contract. Judgment reversed. A.W. Sweeney, Douglas and Pfeifer, JJ., concur. Moyer, C.J., Wright and Deshler, JJ., dissent. Dana A. Deshler, Jr., J., of the Tenth Appellate District, sitting for Resnick, J.