Summary
finding sections of the Ohio Administrative Code in conflict with the Revised Code invalid.
Summary of this case from Grybosky v. Ohio Civil Rights Comm'nOpinion
No. 84-1898
Decided January 2, 1986.
Schools — Teachers — Renewal of one-year vocational teaching certificate — Ohio Adm. Code 3301-21-39(E)(3) conflicts with R.C. 3319.281 — Unemployment compensation — "Available for suitable work," construed — R.C. 4141.29(A)(4).
O.Jur 2d Schools § 113.
1. To the extent that Ohio Adm. Code 3301-21-39(E)(3) has been interpreted to permit only one renewal of a one-year vocational teaching certificate, it is in conflict with R.C. 3319.281, which provides for a maximum of three renewals, and is hence invalid.
O.Jur 2d Unemployment Compensation § 45.
2. A teacher-claimant will be deemed "available for suitable work," within the meaning of R.C. 4141.29(A)(4) for the purposes of eligibility for unemployment compensation benefits where he is eligible to teach pursuant to a second renewal of a one-year vocational teaching certificate and such renewal has not been denied.
APPEAL from the Court of Appeals for Madison county.
Thomas J. Young, Sr. was employed by appellant, Central Ohio Joint Vocational School District Board of Education, beginning in August 1980 as a plumbing instructor. Young was originally employed as a full-time instructor under a one-year vocational teaching certificate. In 1981, Young was again hired under a one-year certificate.
R.C. 3319.281 provides as follows:
"One year vocational certificates, valid only for the year issued by the state board of education, shall be issued to those who meet the criteria of occupational competency in a skilled or technical occupation or who meet the qualifications as an occupational work experience, work adjustment, or cooperative coordinator and pre-service teacher education requirements of an institution approved by the board for vocational teacher education.
"Such certificate shall be issued only upon the request of the employing local administrator or his agent.
"The one year vocational certificate may be renewed, not to exceed three times for secondary program teachers."
Young, during the fall of 1981, enrolled in two courses at Ohio State University, one taught during fall quarter of 1981 and the other during spring quarter of 1982. Both courses were necessary educational prerequisites to Young's obtaining a four-year provisional certificate which is issued pursuant to R.C. 3319.24.
R.C. 3319.24 provides:
"Provisional certificates valid for four years shall be issued by the state board of education to those who have completed the respective courses prescribed therefor by the board in an institution approved by it for the type of preparation required; provided that the requirements shall not be lower than graduation from a two-year course for types (A) and (B) as set forth in section 3319.22 of the Revised Code and graduation from a four-year course for all other types, except vocational trades and industries for which the training shall be as prescribed by the state board and approved by the board.
"The board may renew for like period and for like type and validity any provisional certificate upon satisfactory evidence of the applicant's professional standing, and, if experienced, teaching success."
On April 26, 1982, Young received formal written notification from appellant that his teaching contract would not be renewed for the next academic year. The notice stated "[y]ou are hereby notified that it is not the intention of the Board of Education to reemploy you at the expiration of your limited contract." The superintendent of the joint vocational school district, Harry Tolles, Jr., testified that declining enrollment and lack of funding were the reasons for nonrenewal. There is some evidence in the record to indicate that Young was informed orally that there was a possibility that he would be rehired in the fall if there was a sufficient demand for the course which he taught.
Young testified that, after he received notice of nonrenewal, he dropped out of one course at Ohio State University and failed to complete his course of study in the other class to remove his incomplete grade. Young testified that he had no reason to complete the courses since he would not have a teaching position in the fall of 1982. Young worked through the end of the school year, i.e., June 8, 1982.
Thereafter, student enrollment was determined to be sufficient to warrant reemployment of Young. The superintendent testified that Young would have been rehired if he had obtained a four-year provisional certificate.
On September 9, 1982, Young filed an application for unemployment compensation benefits. The claim was initially disallowed, but on reconsideration and after a hearing before a referee, Young's claim for benefits was allowed. The referee's decision provided as follows: "Claimant [Young] was separated by Central Ohio Joint Vocational School due to a lack of work. No disqualification for benefit rights is imposed; however, the first claim for the week ending October 30, 1982, is disallowed because claimant was not able to work during said week."
After exhausting administrative avenues for relief, appellant board of education appealed to the Court of Common Pleas of Madison County. The court upheld the referee's decision, stating that, based on the record, it could not find that the referee's determination that Young was terminated because no other work was available was unlawful, unreasonable or against the manifest weight of the evidence.
The court of appeals likewise upheld the award of benefits. The court found that Young was not dismissed for cause. The court stated: "* * * [T]he record as it stands before us discloses only that the notice of non-renewal was given due to lack of work. Such a termination is not for cause." The court also held that the claim that Young was unable to obtain a teaching certificate for the new school year was not supported by the record and the applicable statute. The court cited R.C. 3319.281 which provides that a one-year vocational certificate may be renewed, not to exceed three times, and then found that "[t]here is no evidence in the record of the request by the employer for a renewal of the one-year certificate * * * [nor of] the refusal to issue such a certificate."
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Squire, Sanders Dempsey, R. Dean Jollay, Jr., and David W. Alexander, for appellant.
Anthony J. Celebrezze, Jr., attorney general, and Patrick A. Devine, for appellee, Administrator, Ohio Bureau of Employment Services.
Means, Bichimer, Burkholder Baker Co., L.P.A., Robert T. Baker and Matthew J. DeTemple, urging reversal for amicus curiae, Ohio School Boards Association.
The issue presented in this case is whether Young was "available for suitable work" for purposes of eligibility under the unemployment compensation laws. For the reasons that follow, this court finds that there was sufficient evidence in the record to support the finding that Young was available for suitable work. This court thus holds that the award of unemployment compensation benefits to Young was proper.
In reaching this decision today, this court has remained mindful of the statutorily imposed limitations on its right of review of unemployment compensation benefit awards. R.C. 4141.28(O) provides in pertinent part as follows: "* * * If the court finds that the decision [of the board] was unlawful, unreasonable, or against the manifest weight of the evidence, it shall reverse and vacate such decision or it may modify such decision and enter final judgment in accordance with such modification; otherwise such court shall affirm such decision. * * *"
The court, in applying R.C. 4141.28(O) held, in Simon v. Lake Geauga Printing Co. (1982), 69 Ohio St.2d 41, 45 [23 O.O.3d 57], that "[a] reviewing court can not usurp the function of the triers of fact by substituting its judgment for theirs. `The decision of purely factual questions is primarily within the province of the referee and the board of review.' Brown-Brockmeyer Co. v. Roach (1947), 148 Ohio St. 511, 518 [35 O.O. 101]." More generally, this court has held that "[j]udgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence." C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279 [8 O.O.3d 261], syllabus.
In the case at bar, appellant contends that Young is not entitled to unemployment compensation benefits for either one of two reasons. First, appellant maintains that inasmuch as Young was unable to obtain a teaching certificate for the new school year, he was thus "unavailable for suitable work" within the meaning of R.C. 4141.29(A)(4). More specifically, appellant argues that Young was not eligible for certification because Ohio Adm. Code 3301-21-39(E)(3) provides only for "[a] first one year vocational renewal" and because no provision for additional renewals is made in the Ohio Administrative Code. In addition, appellant stresses that inasmuch as Young failed to complete the requisite educational course work, he was ineligible for a four-year provisional teaching certificate.
R.C. 4141.29 provides in part as follows:
"Each eligible individual shall receive benefits as compensation for loss of remuneration due to involuntary total or partial unemployment in the amounts and subject to the conditions stipulated in sections 4141.01 to 4141.46 of the Revised Code.
"(A) No individual is entitled to * * * benefits * * * unless he:
"* * *
"(4)(a) Is able to work and available for suitable work and is actively seeking suitable work either in a locality in which he has earned wages subject to Chapter 4141. of the Revised Code, during his base period, or if he leaves such locality, then in a locality where suitable work is normally performed."
Appellant's position, however, is not supported by the record, nor is it supported by statute. R.C. 3319.281 provides, in pertinent part, that a one-year vocational "* * * certificate shall be issued only upon the request of the employing local administrator or his agent," and that "[t]he one year vocational certificate may be renewed, not to exceed three times for secondary program teachers." (Emphasis added.)
For the complete text of the statute, see footnote 1, supra.
In the instant case, it is undisputed that Young's one-year vocational certificate had been renewed only once. Pursuant to R.C. 3319.281, a one-year certificate may be renewed three times. As the court of appeals correctly noted, there is no credible evidence in the record that appellant, the employing local administrator, ever made a request for a renewal of the one-year certificate. Moreover, there is no competent evidence in the record of a refusal to issue such a certificate. Accordingly, Young cannot be said to be unavailable for employment on the basis he was ineligible for employment due to lack of certification. A teacher-claimant will thus be deemed "available for suitable work" within the meaning of R.C. 4141.29(A)(4) for purposes of eligibility for unemployment compensation benefits where he is eligible to teach pursuant to a second renewal of a one-year vocational teaching certificate and such renewal has not been denied.
The court of appeals did note that there was some "hearsay testimony in the record to the effect that the one-year vocational certificate would not be renewed for a second or third time except for extenuating circumstances which do not include failure to attend class * * *."
Furthermore, the evidence in the record supports the referee's determination that Young "* * * was separated on June 8, 1982, because this was the end of the school term and no other work was available for claimant[;] * * * [that Young] was at no time discharged by the school board[;] * * * [and that Young] was laid off at the end of the school term and was not subsequently rehired because it was not felt that he continued to meet the qualifications for the available position. * * *"
There being some competent, credible evidence to support the board's finding that Young was separated by appellant for lack of work and to support the board's decision to award benefits, this decision will not be reversed on appeal.
In arriving at this outcome, this court has considered the impact of Ohio Adm. Code 3301-21-39(E)(3) which provides as follows:
"Renewal of one year vocational certificate — A first one year vocational renewal will be issued upon the completion of an in-service program of education which shall be equivalent to a minimum of four semester hours (six quarter hours) of teacher improvement at a college or university approved for vocational trade and industrial education.
"(a) Course work shall be selected from the following areas: * * *."
First, we note that the language of Ohio Adm. Code 3301-21-39(E)(3) only explicitly addresses the first renewal; more importantly, it does not explicitly prohibit second and third renewals.
Second, if Ohio Adm. Code 3301-21-39(E)(3) were construed to permit only one renewal of a one-year certificate, it would be in direct conflict with R.C. 3319.281 which permits renewal of one-year certificates, not to exceed three renewals. It is well established, however, that administrative rules, in general, may not add to or subtract from, as is the situation herein, the legislative enactment. See, e.g., Ransom Randolf Co. v. Evatt (1944), 142 Ohio St. 398 [27 O.O. 348]. Moreover, if Ohio Adm. Code 3301-21-39(E)(3) were so construed, it would be rendered a nullity, for it has been held that a rule is invalid where it clearly is in conflict with any statutory provision. See, e.g., Matz v. J.L. Curtis Cartage Co. (1937), 132 Ohio St. 271 [8 O.O. 41]; Carroll v. Dept. of Adm. Serv. (1983), 10 Ohio App.3d 108. Thus, to the extent that Ohio Adm. Code 3301-21-39(E)(3) may have been interpreted, as appellant contends, to permit only one renewal of a one-year vocational teaching certificate, it is invalid as it is in conflict with R.C. 3319.281 which provides for a maximum of three renewals.
Appellant also asserts that Young, by abandoning the mandatory course of study for a four-year provisional certificate, "quit" his employment within the meaning of R.C. 4141.29(D)(2). Inasmuch as this court has determined that Young was eligible to teach under a renewed one-year certificate, there is no need for the court to address this issue.
R.C. 4141.29(D) provides in part:
"Notwithstanding division (A) of this section, no individual may serve a waiting period or be paid benefits under the following conditions:
"* * *
"(2) For the duration of his unemployment if the administrator finds that:
"(a) He quit his work without just cause or has been discharged for just cause in connection with his work, provided division (D)(2) of this section does not apply to the separation of a person under any of the following circumstances: * * *."
For the foregoing reasons, the judgment of the court of appeals is affirmed.
Judgment affirmed.
SWEENEY, LOCHER, HOLMES and C. BROWN, JJ., concur.
CELEBREZZE, C.J., concurs in judgment only.
WRIGHT, J., dissents.
The majority decision insulates Young from responsibility for his failure to obtain proper certification as a teacher. Further, the decision appears to require the school board to request a renewal of a provisional teaching certificate for someone who deliberately aborted efforts to fulfill the statutory requirements for a teaching certificate.
The record supports the board's initial conclusion that when Young applied for compensation benefits he was unavailable for suitable work within the meaning of the unemployment compensation statute.
The majority fails to focus on R.C. 4141.29, which addresses eligibility requirements for unemployment compensation benefits, and provides:
"(A) No individual is entitled to a waiting period or benefits for any week unless he:
"* * *
"(4)(a) Is able to work and available for suitable work and is actively seeking suitable work * * *."
In its opinion upon reconsideration, the board stated that Young was separated from employment at the school because of "lack of work." Nevertheless, at the point where there was an available teaching position at the school, Young was not prepared to accept the position because he did not possess the required teaching certificate. Young chose not to complete the courses required for obtaining a four-year teaching certificate. He acted in anticipation of discharge based on a lack of enrollment. The April 26 letter informing Young that his contract would not be renewed was not a dismissal. The notice merely prevented the operation of the statute that provides for automatic renewal of teaching contracts. The school board complied with R.C. 3319.11 which requires that a teacher whose contract may not be renewed for the following school year be notified prior to April 30. Although the statute requires early notification, the effective date of non-renewal is the beginning of the following school year.
Young was one of four teachers receiving notification. All were further informed that, if enrollment increased, they would be reemployed the following year. Three of the four were in fact offered contracts for the following school year after enrollment increased. Young would also have been offered a contract for the following year, since enrollment in his program did increase. The school board's failure to continue Young's employment was not a discretionary act, but was required by R.C. 3319.30 which specifically prohibits the employment of any teacher who does not hold a teaching certificate for the position.
The Superintendent of Central Ohio Joint Vocational School testified that it was the practice in Ohio to complete the requirements for a four-year provisional teaching certificate after teaching for two years with one-year teaching certificates. Young testified that he knew the decision to offer his course could not be made until the beginning of the fall semester and that he was aware that to remain employed by the school he would have to obtain a four-year provisional certificate. Nevertheless, Young decided not to complete either of the courses necessary to meet the requirements for a four-year certificate.
The parties acknowledged that in order to obtain another renewal of Young's one-year teaching certificate there would have to have existed extenuating circumstances preventing Young from completing his course work. The superintendent stated that when he inquired as to the possibility that Young be granted a third one-year teaching certificate, a member of the Division of Vocational Education told him that such a renewal has only been allowed "on occasion for serious illness or other very severe extenuating circumstances[,] but it would not be done because an individual did not attend classes for whatever reason." The evidence supports the conclusion that another renewal of the one-year teaching certificate would not have been granted absent serious extenuating circumstances which were not present in this case. The circumstances of this case did not require the superintendent to request a renewal of Young's certificate.
The board's holding that Young was separated from employment at the school because of "lack of work" is inaccurate. When there was an available teaching position at the school, Young was unqualified. Therefore, on September 9, 1982, when Young applied for compensation benefits he was unavailable for suitable work within the meaning of the unemployment compensation statute.
Based on the foregoing, I respectfully dissent.